Law Commons^™

Preventative Pretrial Detention And The Failure Of Interest-Balancing Approaches To Due Process, Albert W. Alschuler

Michigan Law Review

This article, echoing Highmore's treatise of 1783, maintains that neither a legitimate nor a very important governmental interest can justify preventive detention in the absence of significant proof of past wrongdoing or an inability to control one's behavior. Both the Supreme Court's neglect of this issue and Congress' similar neglect in the preventive detention provisions of the Federal Bail Reform Act of 1984 reveal the extent to which cost-benefit analysis has captured American law and threatened core concepts of individual dignity.

The article does not oppose all forms of preventive pretrial detention. To the contrary, it recognizes that the detention …

Government Responsibility For Constitutional Torts, Christina B. Whitman

Articles

This essay is about the language used to decide when governments should be held responsible for constitutional torts.' Debate about what is required of government officials, and what is required of government itself, is scarcely new. What is new, at least to American jurisprudence, is litigation against government units (rather than government officials) for constitutional injuries. 2 The extension of liability to institutional defendants introduces special problems for the language of responsibility. In a suit against an individual official it is easy to describe the wrong as the consequence of individual behavior that is inconsistent with community norms; the language …

State Constitutional Law: Federalism In The Common Law Tradition, Ellen A. Peters

Michigan Law Review

A Review of Developments in State Constitutional Law edited by Bradley D. McGraw

Burden Of Proof, James Boyd White

Book Chapters

Although the Constitution does not mention burden of proof, certain principles are widely accepted as having constitutional status. The first and most significant of these is the rule that in a criminal case the government must prove its case ‘‘beyond a REASONABLE DOUBT.’’ This is the universal COMMON LAW rule, and was said by the Supreme Court in IN RE WINSHIP (1970) to be an element of DUE PROCESS. This standard is commonly contrasted with proof ‘‘by a preponderance of the evidence’’ or ‘‘by clear and convincing evidence.’’ The standard of proof is in practice not easily susceptible to further …

The Uniform Statutory Rule Against Perpetuities, Lawrence W. Waggoner

Articles

When the National Conference of Commissioners on Uniform State Laws recently approved the Uniform Statutory Rule Against Perpetuities, it may at long last have made perpetuity reform achievable in this country. Coming, as it does, on the heels of the 1981 promulgation of the Restatement (Second) of Property (Donative Transfers), which adopts the same general type of perpetuity reform, and having been unanimously endorsed by the House of Delegates of the American Bar Association, the Board of Regents of the American College of Probate Counsel, and the Board of Governors of the American College of Real Estate Lawyers, the Uniform …