Law Commons^™

Looking Backward And Forward At The Suspension Clause, G. Edward White

Michigan Law Review

Review of Amanda L. Tyler's Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay.

Article Ii And Antidiscrimination Norms, Aziz Z. Huq

Michigan Law Review

The Supreme Court’s opinion in Trump v. Hawaii validated a prohibition on entry to the United States from several Muslim-majority countries and at the same time repudiated a longstanding precedent associated with the Japanese American internment of World War II. This Article closely analyzes the relationship of these twin rulings. It uses their dichotomous valences as a lens on the legal scope for discriminatory action by the federal executive. Parsing the various ways in which the internment of the 1940s and the 2017 exclusion order can be reconciled, the Article identifies a tension between the Court’s two holdings in Trump …

What Is "New"?: Defining "New Judgement" After Magwood, Patrick Cothern

Michigan Law Review

Habeas corpus petitioners must navigate the procedural barriers of the Anti-terrorism and Effective Death Penalty Act (“AEDPA”) before courts consider their petitions on the merits. Among the barriers imposed is a general prohibition on “second or successive” habeas petitions, meaning a petitioner who previously filed a habeas petition may not bring another, with limited exceptions. One such exception, recognized by the Supreme Court in Magwood v. Patterson, allows for a second habeas petition after the petitioner obtains a “new judgment.” Magwood and AEDPA, however, left the term “new judgment” undefined. This Note summarizes the history of habeas corpus in the …

The New Impartial Jury Mandate, Richard Lorren Jolly

Michigan Law Review

Impartiality is the cornerstone of the Constitution’s jury trial protections. Courts have historically treated impartiality as procedural in nature, meaning that the Constitution requires certain prophylactic procedures that secure a jury that is more likely to reach verdicts impartially. But in Peña- Rodriguez v. Colorado, 137 S. Ct. 855 (2017), the Supreme Court recognized for the first time an enforceable, substantive component to the mandate. There, the Court held that criminal litigants have a Sixth Amendment right to jury decisions made without reliance on extreme bias, specifically on the basis of race or national origin. The Court did not …

Qualified Immunity And Constitutional Structure, Katherine Mims Crocker

Michigan Law Review

A range of scholars has subjected qualified immunity to a wave of criticism— and for good reasons. But the Supreme Court continues to apply the doctrine in ever more aggressive ways. By advancing two claims, this Article seeks to make some sense of this conflict and to suggest some thoughts toward a resolution.

First, while the Court has offered and scholars have rejected several rationales for the doctrine, layering in an account grounded in structural constitutional concerns provides a historically richer and analytically thicker understanding of the current qualified-immunity regime. For suits against federal officials, qualified immunity acts as a …

Understanding State Agency Independence, Miriam Seifter

Michigan Law Review

Conflicts about the independence of executive branch officials are brewing across the states. Governors vie with separately elected executive officials for policy control; attorneys general and governors spar over who speaks for the state in litigation, and legislatures seek to alter governors’ influence over independent state commissions. These disputes over intrastate authority have weighty policy implications both within states and beyond them, on topics from election administration and energy markets to healthcare and welfare. The disputes also reveal a blind spot. At the federal level, scholars have long analyzed the meaning and effects of agency independence—a dialogue that has deepened …