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Full-Text Articles in Law
The Sacred Fourth Amendment Text, Christopher Slobogin
The Sacred Fourth Amendment Text, Christopher Slobogin
Michigan Law Review Online
The Supreme Court’s jurisprudence governing the Fourth Amendment’s “threshold”—a word meant to refer to the types of police actions that trigger the amendment’s warrant and reasonableness requirements—has confounded scholars and students alike since Katz v. United States. Before that 1967 decision, the Court’s decisions on the topic were fairly straightforward, based primarily on whether the police trespassed on the target’s property or property over which the target had control. After that decision—which has come to stand for the proposition that a Fourth Amendment search occurs if police infringe an expectation of privacy that society is prepared to recognize as …
In Defense Of (Circuit) Court-Packing, Xiao Wang
In Defense Of (Circuit) Court-Packing, Xiao Wang
Michigan Law Review Online
Proposals to pack the Supreme Court have gained steam recently. Presidential candidate Pete Buttigieg endorsed a court-packing plan at the start of his campaign, and several other candidates also indicated a willingness to consider such a plan, including Senators Elizabeth Warren and Amy Klobuchar. Legal scholars have similarly called upon Congress to increase the size of the Supreme Court, particularly following the heated confirmations of Justices Neil Gorsuch and Brett Kavanaugh. These suggestions for Court reform have only gotten more pronounced with the recent passing of Justice Ruth Bader Ginsburg, the subsequent nomination of Judge Amy Coney Barrett, and the …
How Definitive Is Fourth Amendment Textualism?, Evan H. Caminker
How Definitive Is Fourth Amendment Textualism?, Evan H. Caminker
Michigan Law Review Online
Professor Jeffrey Bellin’s excellent article advances a comprehensive and straightforward textual approach to determining what policing activities constitute “searches” triggering the protections of the Fourth Amendment. Bellin’s thesis is that a text-based approach to interpreting the Amendment is superior to the Supreme Court’s current approach, which ever since Katz v. United States has defined “search” primarily by reference to a non-textual “reasonable expectation of privacy” standard. After soundly criticizing the ungrounded and highly subjective nature of the Katz test, Bellin declares that the Court should instead simply follow where the text leads: the Amendment protects people from a search, meaning …
Textualism’S Gaze, Matthew L.M. Fletcher
Textualism’S Gaze, Matthew L.M. Fletcher
Michigan Journal of Race and Law
This Article attempts to address why textualism distorts the Supreme Court’s jurisprudence in Indian law. I start with describing textualism in federal public law. I focus on textualism as described by Justice Scalia, as well as Scalia’s justification for textualism and discussion about the role of the judiciary in interpreting texts. The Court is often subject to challenges to its legitimacy rooted in its role as legal interpreter that textualism is designed to combat.
A Small But Mighty Docket: Select Criminal Law And Procedure Cases From The Supreme Court's 2019-20 Term, Eve Brensike Primus, Jeremy Shur
A Small But Mighty Docket: Select Criminal Law And Procedure Cases From The Supreme Court's 2019-20 Term, Eve Brensike Primus, Jeremy Shur
Articles
With its 2019-20 Term disrupted by the COVID-19 pandemic, the Supreme Court released just 53 signed decisions, the fewest decisions in a Term since the Civil War. But the Court's lighter docket still featured important criminal law and procedure cases touching on what constitutes reasonable individualized suspicion, the necessity of jury unanimity, and the proper form of the insanity defense.
Consent, Coercion, And Employment Law, Samuel R. Bagenstos
Consent, Coercion, And Employment Law, Samuel R. Bagenstos
Articles
The Roberts Court has recently handed several high-profile wins in labor and employment law cases to anti-labor and pro-employer forces. This paper argues that those decisions replicate crucial moves made by some infamous Lochner-era cases — and that those same moves continue to underlie key elements of labor and employment doctrine more generally. In particular, these decisions rest on a contestable understanding of free worker choice. This paper begins by examining the key recent Roberts Court decisions and demonstrates that they appear to invoke at least two distinct and conflicting understandings of employee and employer choice. It then turns to …
Pub. L. No. 86-272 And The Anti-Commandeering Doctrine: Is This Anachronism Constitutionally Vulnerable After Murphy V. Ncaa?, Matthew A. Melone
Pub. L. No. 86-272 And The Anti-Commandeering Doctrine: Is This Anachronism Constitutionally Vulnerable After Murphy V. Ncaa?, Matthew A. Melone
Michigan Business & Entrepreneurial Law Review
State taxing authority suffers from little of the structural impediments that the Constitution imposes on the federal government’s taxing power but the states’ power to tax is subject to the restrictions imposed on the exercise of any state action by the Constitution. The most significant obstacles to the states’ assertion of their taxing authority have been the Due Process Clause and the Commerce Clause. The Due Process Clause concerns itself with fairness while the Commerce Clause concerns itself with a functioning national economy. Although the two restrictions have different objectives, for quite some time both restrictions shared one attribute—a taxpayer …
A More Perfect Pickering Test: Janus V. Afscme Council 31 And The Problem Of Public Employee Speech, Alexandra J. Gilewicz
A More Perfect Pickering Test: Janus V. Afscme Council 31 And The Problem Of Public Employee Speech, Alexandra J. Gilewicz
University of Michigan Journal of Law Reform
In June 2018, the Supreme Court issued its long-awaited—and, for the American labor movement, long-feared—decision in Janus v. AFSCME Council 31. The decision is expected to have a major impact on public sector employee union membership, but could have further impact on public employees’ speech rights in the workplace. Writing for the majority, Justice Samuel Alito’s broad interpretation of whether work-related speech constitutes a “matter of public concern” may have opened the floodgates to substantially more litigation by employees asserting that their employers have violated their First Amendment rights. Claims that would have previously been unequivocally foreclosed may now …
Translating The Constitution, Jack M. Balkin
Translating The Constitution, Jack M. Balkin
Michigan Law Review
Review of Lawrence Lessig's Fidelity and Constraint: How the Supreme Court Has Read the American Constitution.
The Passion Of John Paul Stevens, Linda Greenhouse
The Passion Of John Paul Stevens, Linda Greenhouse
Michigan Law Review
Review of John Paul Stevens' The Making of a Justice: Reflections on My First 94 Years.
Waiving Federal Sovereign Immunity In Original Actions Between States, Sandra B. Zellmer
Waiving Federal Sovereign Immunity In Original Actions Between States, Sandra B. Zellmer
University of Michigan Journal of Law Reform
There are tremendous disparities between high stakes original actions between states before the U.S. Supreme Court, where there is no waiver of federal sovereign immunity, and other types of cases in the lower courts, where a plethora of immunity waivers allow states and other parties to seek relief from the federal government for Fifth Amendment takings, unlawful agency action, and tort claims. Federal actions or omissions are often at the heart of the dispute, and federal involvement may be crucial for purposes of providing an equitable remedy to the state parties, but there is no reliable mechanism for bringing the …
Hernandez, Bivens, And The Supreme Court’S Expanding Theory Of Judicial Abdication, William J. Aceves
Hernandez, Bivens, And The Supreme Court’S Expanding Theory Of Judicial Abdication, William J. Aceves
Michigan Law Review Online
This Essay examines the Hernandez decision and critiques the Court’s expanding theory of judicial abdication, an approach with profound implications for civil rights and the future of the judiciary. While Hernandezinvolved a cross-border shooting, the Court’s reasoning extends to all facets of civil litigation. Accordingly, this Essay proposes a new theory of judicial engagement that would empower federal courts to grant relief for constitutional claims against federal officials. It is a theory founded in extant constitutional jurisprudence that the Court has used for over a century to apply the Bill of Rights to state and local governments—an approach that …
Muted Justice, Leah Litman
Muted Justice, Leah Litman
Articles
The Chief Justice of the United States possesses significant power. His position as the senior most Justice on the U.S. Supreme Court allows him to assign opinions to other Justices and to coordinate scheduling the Court’s cases for argument. And after Justice Kennedy retired in June 2018, Chief Justice Roberts was the median Justice on the Court, whose vote often determined the outcome in a case. Even after Justice Barrett’s confirmation changed that state of affairs, the Chief remains an important Justice to watch.