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Articles 1 - 4 of 4
Full-Text Articles in Law
Don't Answer The Door: Montejo V. Louisiana Relaxes Police Restrictions For Questioning Non-Custodial Defendants, Emily Bretz
Don't Answer The Door: Montejo V. Louisiana Relaxes Police Restrictions For Questioning Non-Custodial Defendants, Emily Bretz
Michigan Law Review
In 2009, the Supreme Court held in Montejo v. Louisiana that a defendant may validly waive his Sixth Amendment right to counsel during police interrogation, even if police initiate interrogation after the defendant's invocation of the right at the first formal proceeding. This Note asserts that Montejo significantly altered the Sixth Amendment protections available to represented defendants. By increasing defendants' exposure to law enforcement, the decision allows police to try to elicit incriminating statements and waivers of the right to counsel after the defendant has expressed a desire for counsel. In order to protect the defendant's constitutional guarantee of a …
Pleading With Congress To Resist The Urge To Overrule Twombly And Iqbal, Michael R. Huston
Pleading With Congress To Resist The Urge To Overrule Twombly And Iqbal, Michael R. Huston
Michigan Law Review
In Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the Supreme Court changed the rhetoric of the federal pleading system. Those decisions have been decried by members of the bar, scholars, and legislators as judicial activism and a rewriting of the Federal Rules of Civil Procedure. Such criticism has led members of both houses of Congress to introduce legislation to overrule the decisions and return to some variation of the "notice pleading" regime that existed before Twombly. This Note argues that both of the current proposals to overrule Twombly and Iqbal should be rejected. Although the bills take different …
New Pleading, New Discovery, Scott Dodson
New Pleading, New Discovery, Scott Dodson
Michigan Law Review
Pleading in federal court has a new narrative. The old narrative was one of notice, with the goal of broad access to the civil justice system. New Pleading, after the landmark Supreme Court cases of Twombly and Iqbal, is focused on factual sufficiency, with the purpose of screening out meritless cases that otherwise might impose discovery costs on defendants. The problem with New Pleading is that factual insufficiency often is a poor proxy for meritlessness. Some plaintifs lack sufficient factual knowledge of the elements of their claims not because the claims lack merit but because the information they need is …
Engineering The Endgame, Ellen D. Katz
Engineering The Endgame, Ellen D. Katz
Michigan Law Review
This Article explores what happens to longstanding remedies for past racial discrimination as conditions change. It shows that Congress and the Supreme Court have responded quite differently to changed conditions when they evaluate such remedies. Congress has generally opted to stay the course, while the Court has been more inclined to view change as cause to terminate a remedy. The Article argues that these very different responses share a defining flaw, namely, they treat existing remedies as fixed until they are terminated. As a result, remedies are either scrapped prematurely or left stagnant despite dramatically changed conditions. The Article seeks …