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Articles 1 - 30 of 32
Full-Text Articles in Law
A Tempered "Yes" To The "Exculpatory No", Scott D. Pomfret
A Tempered "Yes" To The "Exculpatory No", Scott D. Pomfret
Michigan Law Review
What circumstances trigger a person's duty to tell the truth? Immanuel Kant claimed without qualification that all circumstances require truthtelling, even when speaking the truth injures the speaker. John Henry Cardinal Newman made exceptions for lies that achieved some positive end. Hugo Grotius permitted lies to adversaries. The philosophy of twentieth-century common sense largely permits white lies. Perhaps surprisingly, some courts have found that Kant's absolute prohibition of falsehood more accurately characterizes a speaker's duty to tell the truth to the federal government under 18 U.S.C. § 1001 than these other, more relaxed standards. According to this view, the prohibition …
The Path To Habeas Corpus Narrows: Interpreting 28 U.S.C. § 2254(D)(1), Sharad Sushil Khandelwal
The Path To Habeas Corpus Narrows: Interpreting 28 U.S.C. § 2254(D)(1), Sharad Sushil Khandelwal
Michigan Law Review
The enforcement of the U.S. Constitution within the criminal justice system is an odd subspecies of constitutional law. In areas other than criminal law, federal courts act as the ultimate guarantors of constitutional rights by providing remedies whenever violations occur. Criminal law, however, is different by necessity; the bulk of criminal justice occurs in state courthouses, leaving constitutional compliance largely to state judges. The U.S. Supreme Court, of course, may review these decisions if it chooses, but a writ of certiorari can be elusive, especially given the Court's shrinking docket. After World War II, however, this feature of criminal constitutional …
Equal Protection, Class Legislation, And Colorblindness, Melissa L. Saunders
Equal Protection, Class Legislation, And Colorblindness, Melissa L. Saunders
Michigan Law Review
Scholars and judges have long assumed that the Equal Protection Clause is concerned only with state action that has the effect of singling out certain persons or groups of persons for special benefits or burdens. Under the traditional doctrinal framework, state action that has this purpose and effect bears a certain burden of justification under the clause, a burden whose stringency varies, depending on the criteria used to define the class being singled out for special treatment and the importance of the interest affected. But state action that lacks such a "discriminatory effect" is not, on the traditional understanding, subject …
Antidisestablishmentarianism: Why Rfra Really Was Unconstitutional, Jed Rubenfeld
Antidisestablishmentarianism: Why Rfra Really Was Unconstitutional, Jed Rubenfeld
Michigan Law Review
Two months ago, the Supreme Court struck down the Religious Freedom Restoration Act of 1993 (RFRA), handing down its most important church-state decision, and one of its most important federalism decisions, in fifty years. Through RFRA, Congress had prohibited any state actor from "substantially burden[ing] a person's exercise of religion" unless imposing that burden was the "least restrictive means" of furthering "a compelling governmental interest." RFRA was a response to Employment Division, Department of Human Resources of Oregon v. Smith, in which the Supreme Court abandoned the very same compelling interest test that RFRA mandated. Smith, overturning decades-old precedent, held …
On-Call Time Under The Fair Labor Standards Act, Eric Phillips
On-Call Time Under The Fair Labor Standards Act, Eric Phillips
Michigan Law Review
Economic pressures, changing family structures, and technology have increasingly blurred the line between work time and personal time. The rise of independent contracting, the growing number of families in which both parents work, and the. expanding reach of computer networks, fax machines, pagers, and mobile telephones, to provide a few examples, have blurred the once-familiar distinction between work time and leisure time. This distinction is particularly unclear for on-call employees. An on-call employee is one who may be physically away from the workplace but who remains connected to it by telephone, beeper, computer, or radio, and who must respond to …
Awarding Attorney's Fees To Pro Se Litigants Under Rule 11, Jeremy D. Spector
Awarding Attorney's Fees To Pro Se Litigants Under Rule 11, Jeremy D. Spector
Michigan Law Review
Among the myriad rules and statutes designed to curb litigation abuse, Rule 11 of the Federal Rules of Civil Procedure ("FRCP") is "the most widely used and most controversial of the sanctions rules." The increased use of Rule ll during the last fifteen years and the recent proliferation of fee-shifting provisions in federal statutes4 have led to an onslaught of motions for attorney's fees in the federal district courts. Simultaneously, these courts are seeing an increasing number of pro se litigants appear before them. The confluence of these two trends has produced the seemingly paradoxical result of pro se parties …
The "Solely Criminal Purpose" Defense To The Enforcement Of Irs Summonses, Darius J. Mehraban
The "Solely Criminal Purpose" Defense To The Enforcement Of Irs Summonses, Darius J. Mehraban
Michigan Law Review
Recent years have witnessed a gradual erosion of the practical distinctions between the civil and criminal investigations performed by federal administrative agencies. This trend arose naturally from a growing number of federal statutes and regulations that carry both civil and criminal penalties for their violation. Administrative agencies today wield investigative summons power almost as expansive as the grand jury subpoena power and can use that power to investigate without first deciding whether criminal or civil liability ultimately will be sought. The Internal Revenue Service (IRS) has participated to some extent in this intermingling of civil and criminal inquiry - with …
Suspect Linkage: The Interplay Of State Taxing And Spending Measures In The Application Of Constitutional Antidiscrimination Rules, Dan T. Coenen, Walter Hellerstein
Suspect Linkage: The Interplay Of State Taxing And Spending Measures In The Application Of Constitutional Antidiscrimination Rules, Dan T. Coenen, Walter Hellerstein
Michigan Law Review
This article examines an important and recurring question that courts frequently resolve, but rarely analyze: whether taxing and spending measures should be viewed together when a state imposes a nondiscriminatory tax but also affords relief to some taxpayers through government spending. The answer to this question will often determine whether the state's actions violate constitutional strictures against discriminatory taxation. The taxing measure and the spending measure will generally pass muster if viewed in isolation. After all, courts rarely invalidate nondiscriminatory taxing measures on constitutional grounds. And true government spending measures, if considered alone, plainly fall outside the reach of constitutional …
The Immovable Object Versus The Irresistable Force: Rethinking The Relationship Between Secured Credit And Bankruptcy Policy, Lawrence Ponoroff, F. Stephen Knippenberg
The Immovable Object Versus The Irresistable Force: Rethinking The Relationship Between Secured Credit And Bankruptcy Policy, Lawrence Ponoroff, F. Stephen Knippenberg
Michigan Law Review
The last leaf in O. Henry's classic short story was hanging by a delicate thread, but it never fell. It never fell, of course, because it wasn't real; Old Behrman had painted it (and caught pneumonia for his trouble) in order to give Johnsy the will to live. The Supreme Court's decision in Dewsnup v. Timm is also hanging by a thread, following a barrage of scholarly criticism and more than four years of limiting case law and legislative incursions on the case's core conceptual rationale. But the holding in Dewsnup, unlike the last leaf, is very real. It has …
Loyal Lieutenant, Able Advocate: The Role Of Robert H. Jackson In Franklin D Roosevelt's Battle With The Supreme Court, Stephen R. Alton
Loyal Lieutenant, Able Advocate: The Role Of Robert H. Jackson In Franklin D Roosevelt's Battle With The Supreme Court, Stephen R. Alton
William & Mary Bill of Rights Journal
Before his appointment to the Supreme Court, Justice Robert H. Jackson played a highly visible role in Franklin D. Roosevelt's failed "court packing plan. " Roosevelt's legislation would have increased the size of the Supreme Court and could have dramatically altered the functioning of our government. Jackson supported the plan from his post as Assistant Attorney General. This Article uses a chronological narrative to examine Jackson's role in Roosevelt's court fight. The Article examines his role in light of the surrounding history and the tension between the backers of the New Deal and the Supreme Court. Jackson's testimony before the …
The Supreme Court, Visibility, And The "Politics Of Presence", Kathryn Abrams
The Supreme Court, Visibility, And The "Politics Of Presence", Kathryn Abrams
Vanderbilt Law Review
Jane Schacter has made a critical contribution by elaborating the meaning and potential consequences of the Court's holding in Romer v. Evans. At the center of her account is the thought-provoking suggestion that the Court's opinion enables a visibility or "presence" for gays and lesbians in the extended realm of the "political." While I salute her illumination, I am less certain about whether to share her optimism. In this Comment, I will explore the latter question by looking beyond the decision in Romer to other cases involving group-based civil rights. I will probe the effects of Supreme Court decisionmaking on …
An Implied Cause Of Action Under The Real Estate Settlement Procedures Act, Christopher L. Sagers
An Implied Cause Of Action Under The Real Estate Settlement Procedures Act, Christopher L. Sagers
Michigan Law Review
John and Janet lived for most of their early years together in a townhouse in Manhattan. It was a rental, a two-story walk-up on the Upper West Side with barely enough room for the two of them, and it ate up most of their income so that they were barely able to save anything. "Wait a minute," John said one day, "we're paying almost as much for this dump as we'd pay for a mortgage on a nice house!" So the two of them looked over their finances. Not much there. A few thousand and a 401(k) at Janet's work. …
Neutral Principles: A Retrospective, Barry Friedman
Neutral Principles: A Retrospective, Barry Friedman
Vanderbilt Law Review
Once upon a time, Enlightenment ideals prevailed across the land. Neutrality, objectivity, and reason were accepted as the firmaments of Supreme Court decisionmaking. "Americans tend[ed] to believe that 'playing fair' [meant] making everyone play by the same rules, and any deviation from this definition [was] immediately suspect."' But "then, some scholars.., abandoned the fundamental aspiration toward. . . neutrality in government." "Neutrality" came to be "considered a chimera, an illusion used by those in power to justify and perpetuate existing hierarchies." The nation was threatened with a return to pre-Enlightenment days, a "return to a world in which it matters …
The Casey Standard For Evaluating Facial Attacks On Abortion Statutes, John Christopher Ford
The Casey Standard For Evaluating Facial Attacks On Abortion Statutes, John Christopher Ford
Michigan Law Review
Since the Supreme Court declared in 1973 that the Constitution grants women a limited right to an abortion, the Justices have decided abortion cases with reference to such weighty matters as religious freedom, the disadvantaged position of women in society, and the proper role of the judiciary. Understandably, the Supreme Court's writings on abortion deal extensively with these large themes. The Court, and certainly others, view abortion cases as rivaling Brown v. Board of Education in their importance to the nation. While the Court has focused on the big issues, however, it has neglected an equally important, if less emotionally …
The Unwelcome Judicial Obligation To Respect Politics In Racial Gerrymandering Remedies, Jeffrey L. Fisher
The Unwelcome Judicial Obligation To Respect Politics In Racial Gerrymandering Remedies, Jeffrey L. Fisher
Michigan Law Review
Like it or not, the attack on "bizarrely" shaped majority-minority electoral districts is now firmly underway. Nearly four years have passed since the Supreme Court first announced in Shaw v. Reno that a state's redistricting plan that is "so extremely irregular on its face that it rationally can be viewed only as an effort to segregate the races for purposes of voting" may violate the Equal Protection Clause. Such a district, the Court held, reinforces racial stereotypes, carries us further from the goal of a political system in which race no longer matters, and "threatens to undermine our system of …
Restoring Rights To Rites: The Religious Motivation Test And The Religious Freedom Restoration Act, Steven C. Seeger
Restoring Rights To Rites: The Religious Motivation Test And The Religious Freedom Restoration Act, Steven C. Seeger
Michigan Law Review
This Note argues that the religious motivation test best secures the religious liberty guaranteed by the Constitution and the RFRA. Part I examines the text and legislative history of the Act and establishes that Congress intended to protect religiously motivated practices. Part II argues that the free exercise case law prior to Smith, to which the RFRA explicitly appeals, did not require litigants to prove centrality or compulsion. Part III demonstrates that the religious motivation test protects the full spectrum of religious practices and religious groups, unlike the centrality test and the compulsion test. Part IV illustrates that the motivation …
Critical Race Praxis: Race Theory And Political Lawyering Practice In Post-Civil Rights America, Eric K. Yamamoto
Critical Race Praxis: Race Theory And Political Lawyering Practice In Post-Civil Rights America, Eric K. Yamamoto
Michigan Law Review
At the end of the twentieth century, the legal status of Chinese Americans in San Francisco's public schools turns on a requested judicial finding that a desegregation order originally designed to dismantle a system subordinating nonwhites now invidiously discriminates against Chinese Americans. Brian Ho, Patrick Wong, and Hilary Chen, plaintiffs in Ho v. San Francisco Unified School District, represent "all [16,000] children of Chinese descent" eligible to attend San Francisco's public schools. Their high-profile suit, filed by small-firm attorneys, challenges the validity of a 1983 judicial consent decree desegregating San Francisco's schools. Approved in response to an NAACP class action …
Tribal Court General Civil Jurisdiction Over Actions Between Non-Indian Plaintiffs And Defendants: Strate V. A-1 Contractors, Jamelle King
Tribal Court General Civil Jurisdiction Over Actions Between Non-Indian Plaintiffs And Defendants: Strate V. A-1 Contractors, Jamelle King
American Indian Law Review
No abstract provided.
Doma: An Unconstitutional Establishment Of Fundamentalist Christianity, James M. Donovan
Doma: An Unconstitutional Establishment Of Fundamentalist Christianity, James M. Donovan
Michigan Journal of Gender & Law
According to the text of the Act, DOMA's purposes are "to define and protect the institution of marriage," where marriage is defined to exclude same-sex partners. To be constitutionally valid under the Establishment Clause, this notion that heterosexual marriages require "protection" from gay and lesbian persons must spring from a secular and not religious source. This Article posits that DOMA has crossed this forbidden line between the secular and the religious. DOMA, motivated and supported by fundamentalist Christian ideology, and lacking any genuine secular goals or justifications, betrays the Establishment Clause of the U.S. Constitution.
An Analysis Of The Supreme Court's Reliance On Racial "Stigma" As A Constitutional Concept In Affirmative Action Cases, Andrew F. Halaby, Stephen R. Mcallister
An Analysis Of The Supreme Court's Reliance On Racial "Stigma" As A Constitutional Concept In Affirmative Action Cases, Andrew F. Halaby, Stephen R. Mcallister
Michigan Journal of Race and Law
The Article's focus is confined to discussions of race-based affirmative action; it does not consider stigmatization arguments in the context of discrimination involving gender or disabilities, for example. Further, the Article's scope is limited to the stigmatization issue as between Whites and African Americans. Although similar issues exist with respect to other ethnic or racial groups, we view the White/African American paradigm as providing the clearest framework for analysis. Moreover, the cases of Plessy v. Ferguson and Brown v. Board of Education, joint progenitors of stigmatization as a concept having constitutional significance in interpreting the Equal Protection Clause of …
Race-Conscious Diversity Admissions Programs: Furthering A Compelling Interest, Marty B. Lorenzo
Race-Conscious Diversity Admissions Programs: Furthering A Compelling Interest, Marty B. Lorenzo
Michigan Journal of Race and Law
This Article argues that narrowly tailored, race-conscious admissions programs can be employed to achieve a more diverse student body and consequently a more enlightened and egalitarian society. An admissions body which looks beyond traditional academic indicators and explores the whole person of each applicant will matriculate a group of students with a wide variety of race, gender, class and other backgrounds, thereby fostering a robust exchange of ideas among these students. Pointing to the enduring precedential value of Bakke as well as the ideological makeup of the Supreme Court, this Article asserts that the Courts would likely uphold a program …
Recent Developments In American Indian Law
Recent Developments In American Indian Law
American Indian Law Review
No abstract provided.
Crashing The Party- The Supreme Court Subjects Political Parties To Preclearance Under Section 5 Of The Voting Rights Act Of 1965 In Morse V. Republican Party Of Virginia, Matthew M. Farley
Crashing The Party- The Supreme Court Subjects Political Parties To Preclearance Under Section 5 Of The Voting Rights Act Of 1965 In Morse V. Republican Party Of Virginia, Matthew M. Farley
University of Richmond Law Review
If someone told you that whenever a particular "State or political subdivision" attempts to change its voting laws or regulations, they must first receive approval from the Department of Justice or a federal court in the District of Columbia, would you consider this requirement applicable to political parties? Asked in isolation, the question appears too obvious to warrant serious consideration. An understanding of the history of discrimination denying America's blacks full and complete franchise and an understanding of the adoption and evolution of the Voting Rights Act of 1965, however, may give you pause before answering.
Robinson V. Shell Oil Co.: Policy-Not Ambiguity-Drives The Supreme Court's Decision To Broaden Title Vii's Retaliation Coverage, Barry T. Meek
Robinson V. Shell Oil Co.: Policy-Not Ambiguity-Drives The Supreme Court's Decision To Broaden Title Vii's Retaliation Coverage, Barry T. Meek
University of Richmond Law Review
Before the Supreme Court's pronouncement in Robinson v. Shell Oil Co., a majority of the circuit courts were blurring seemingly unambiguous language to expand Title VII's coverage to comport with amiable policy goals. Only policy justifications could explain the courts' willingness to cover postemployment retaliation based on language that prohibits an employer from discriminating "against his employees" and that further defines employees as those persons "employed by an employer." Clearly, the plain meaning of such language envisions that persons protected under Title VII have an existing employment relationship with the covered employer at the time of the alleged retaliatory conduct. …
The Supreme Court's Rejection Of Government Indemnification To Agent Orange Manufacturers In Hercules, Inc. V. United States: Distinguishing The Forest From The Trees?, Kacey Reed
University of Richmond Law Review
In recent years, the Supreme Court clarified the scope of immunity afforded to contractors for damages resulting from the performance of a government contract. However, the extent of the government's responsibility to indemnify third party claims resulting from a government contract has remained relatively obscure. Without clear direction, courts rejected government indemnification, relying upon a variety of detailed points of contract law which often concealed larger issues. In an appellate court dissent, Judge Plager criticized this result, warning that "undue attention to trees . . . often hides the forest."' Recently, in Hercules, Inc. v. United States, the Supreme Court …
The Supreme Court's "Exceedingly [Un]Persuasive" Application Of Intermediate Scrutiny In United States V. Virginia, Jeffrey A. Barnes
The Supreme Court's "Exceedingly [Un]Persuasive" Application Of Intermediate Scrutiny In United States V. Virginia, Jeffrey A. Barnes
University of Richmond Law Review
The Supreme Court's decision in the case of United States v. Virginia in June of 1996 was a landmark decision that could change how future courts approach and resolve gender-based equal protection claims. The Supreme Court held that the Virginia Military Institute (VMI) could no longer continue its male-only admissions policy as a state-funded institution of higher education. The Court's apparent heightening of the level of scrutiny applied to gender-based classifications from the previously used intermediate scrutiny to an ambiguous standard either somewhere between the traditional intermediate scrutiny and strict scrutiny, or, in effect, a standard equivalent to strict scrutiny, …
Chief Justice John Marshall In Historical Perspective, 31 J. Marshall L. Rev. 137 (1997), Samuel R. Olken
Chief Justice John Marshall In Historical Perspective, 31 J. Marshall L. Rev. 137 (1997), Samuel R. Olken
UIC Law Review
No abstract provided.
Discrimination Cases, Eileen Kaufman
Seminole Tribe V. Florida - Extinction Of The "New Buffalo?", Michael Grant
Seminole Tribe V. Florida - Extinction Of The "New Buffalo?", Michael Grant
American Indian Law Review
No abstract provided.
It Was A Very Good Year - For The Government: The Supreme Court's Major Criminal Rulings Of The 1995-1996 Term, William E. Hellerstein
It Was A Very Good Year - For The Government: The Supreme Court's Major Criminal Rulings Of The 1995-1996 Term, William E. Hellerstein
Touro Law Review
No abstract provided.