Law Commons^™

Backing Off Bivens And The Ramifications Of This Retreat For The Vindication Of First Amendment Rights, Joan Steinman

Michigan Law Review

In Part I of this Article, Chappell and Bush are analyzed against the backdrop of the preceding Bivens cases. The analysis explains how these cases presented situations that were similar to one another but unlike any the Supreme Court previously had faced in Bivens cases. It demonstrates how the Court departed from the line of analysis that its previous Bivens cases had established, in a way that makes it more difficult for at least some plaintiffs seeking vindication of their constitutional rights to succeed in having a money damage remedy implied directly under the Constitution. The Article then argues that …

School Desegregation Law In The 1980'S: The Courts' Abandonment Of Brown V. Board Of Education, Neal Devins

William & Mary Law Review

No abstract provided.

Consequences Of Supreme Court Decisions Upholding Individual Constitutional Rights, Jesse H. Choper

Michigan Law Review

The thrust of this Article is to attempt to ascertain just what differences the Court's judgments upholding individual constitutional rights have made for those who fall within the ambit of their protection. It seeks to address such questions as: What were the conditions that existed before the Court's ruling? How many people were subject to the regime that was invalidated by the Justices? Was the Court's mandate successfully implemented? What were the consequences for those affected? At a subjective level, were the repercussions perceived as salutary by those (or at least most of those) who were the beneficiaries of the …

Probable Cause And Common Sense: A Reply To The Critics Of Illinois V. Gates, Joseph D. Grano

University of Michigan Journal of Law Reform

Part I of this article reviews Gates's actual holding. Although one can view much of the Court's more interesting discussion of the two-pronged test as dicta, the majority and dissenters clearly did not regard it as such. The majority and dissenters disagreed, however, not only over the appropriate hearsay test but, more fundamentally, over the nature of probable cause itself. I will argue that one must resolve this more basic disagreement before properly addressing the hearsay issue.

Part II examines probable cause from an historical perspective. In this part, I attempt to demonstrate that both the English common law …

The Canons Of Indian Treaty And Statutory Construction: A Proposal For Codification, Jill De La Hunt

University of Michigan Journal of Law Reform

This Note argues that the canons of construction should play a central role in the interpretation of Indian treaties and statutes. The Note proposes revitalization of the canons through congressional action codifying the rules of construction into federal law. Part I traces the historical development of the canons to further the federal-Indian trust relationship. Part II analyzes recent Supreme Court decisions that demonstrate decreased use of the canons. Part III argues that strong canons of construction are necessary to the development of self-determining Indian tribes and proposes federal legislation to ensure the continued vitality and importance of the canons of …

The Pretext Search Doctrine: Now You See It, Now You Don't, John M. Burkoff

University of Michigan Journal of Law Reform

One can only hope, to put it bluntly, that the Supreme Court majority in Villamonte-Marquez did not mean what it seemed to have said. Indeed, there is some evidence that this is precisely the case. In the same Term Villamonte-Marquez was decided, the Court also decided Texas v. Brown. In Brown, the Supreme Court continued to recognize and respond to the problem of pretext searches. In other words, the Court still acts as if the pretext search doctrine remains vital, despite the apparent body blow delivered to it in Scott and Villamonte-Marquez. The remainder of this Article …

The Fourth Amendment And The Control Of Police Discretion, William J. Mertens

University of Michigan Journal of Law Reform

The fourth amendment protects the security of people's "persons, houses, papers, and effects" in two distinct (if overlapping) ways. First, it requires a sufficiently weighty public interest before the government's agents are allowed to search or seize. Thus, for example, probable cause is required for arrest. Whatever uncertainty there may be in the phrase "probable cause" (and, for that matter, however indefinite the idea of "arrest" may have become), in this context, at least, the probable cause standard requires the demonstration of objective facts that point with some probability to the guilt for some particular offense of the person arrested. …

Introduction: Trends And Developments With Respect To That Amendment 'Central To Enjoyment Of Other Guarantees Of The Bill Of Rights', Yale Kamisar

Articles

Seventy years ago, in the famous Weeks case,' the Supreme Court evoked a storm of controversy by promulgating the federal exclusionary rule. When, a half-century later, in the landmark Mapp case,2 the Court extended the Weeks rule to state criminal proceedings, at least one experienced observer assumed that the controversy "today finds its end." 3 But as we all know now, Mapp only intensified the controversy. Indeed, in recent years spirited debates over proposals to modify the exclusionary rule or to scrap it entirely have filled the air - and the law reviews.'

Is The Burger Court Really Like The Warren Court?, Paul Bender

Michigan Law Review

A Review of The Burger Court: The Counter-Revolution That Wasn't by Vincent Blasi

Does Doctrine Matter?, Frederick Schauer

Michigan Law Review

A Review of The Burger Court: The Counter-Revolution That Wasn't by Vincent Blasi

Toward Increased Judicial Activism: The Political Role Of The Supreme Court, Michigan Law Review

Michigan Law Review

A Review of Toward Increased Judicial Activism: The Political Role of the Supreme Court by Arthur Selwyn Miller

Brandeis, Michigan Law Review

Michigan Law Review

A Review of Brandeis by Lewis J. Paper

From Swift To Erie: An Historical Perspective, Gene R. Shreve

Michigan Law Review

A Review of Harmony & Dissonance: The Swift & Erie Cases in American Federalism by Tony Freyer

Who Is Injured When Racially Discriminatory Private Schools Are Tax-Exempt?, Neal Devins

Faculty Publications

No abstract provided.

Diminished Luster In Escambia County?, Neal Devins

Faculty Publications

No abstract provided.

A New Look At An Old Association: Will Today's Women Be Tomorrow's Jaycees?, Neal Devins

Faculty Publications

No abstract provided.

Do Government Rights Prevail, Or Are Shoshone Indians Trespassers In Their Own Country?, Richard B. Collins

Publications

No abstract provided.

What Standards Apply When Freedoms Collide?, Neal Devins

Faculty Publications

No abstract provided.

The 1965 Voting Rights Act: Some Wrongs Still Not Righted, Neal Devins

Faculty Publications

No abstract provided.

Are Residential Quotas Constitutional?, Neal Devins

Faculty Publications

No abstract provided.

Your Money Or Your Wife's?: Social Security Changes Considered, Neal Devins

Faculty Publications

No abstract provided.

Miranda: The Case, The Man, And The Players, Yale Kamisar

Reviews

On the eve of America's bicentennial, the American Bar Association told its members of a plan to publish a book about the "milestone events" in 200 years of American legal history, and invited them to vote on the milestones to be included. When the balloting was over, Miranda v. Arizona1 - "the high-water mark" of the Warren Court's revolution in American criminal procedure2 - had received the fourth highest number of votes.3 I venture to say that if members of the general public had been asked to list the "most regrettable" or "most unfortunate" milestones in American legal history, Miranda …

Legislative Formality, Administrative Rationality, Harold H. Bruff

Publications

No abstract provided.

On Complaining About The Burger Court, Robert F. Nagel

Publications

No abstract provided.

How Useful Is Judicial Review In Free Speech Cases?, Robert F. Nagel

Publications

No abstract provided.

Discrimination Bans Demonstrate Approaching Maturity Of Employment Law, Theodore J. St. Antoine

Articles

The pervasive message of this symposium sponsored by the Labor Relations Law Section, whether or not intended by the individual authors, is that American employment law is moving beyond adolescence and may be approaching maturity.

Legal Barriers To Worker Participation In Management Decision Making, Theodore J. St. Antoine

Articles

Collective bargaining lies at the heart of the union-management relationship. It is the end and purpose of the whole effort to protect employees against reprisals when they form an organization to represent them in dealing with their employers. Collective bargaining is grounded in the belief that industrial strife will be checked, and the workers' lot bettered, if workers are given an effective voice in determining the conditions of their employment. My thesis is that federal law, even while placing the force of government behind collective bargaining, has so artificially confined its scope that the process has been seriously impeded from …

Gates, 'Probable Cause', 'Good Faith', And Beyond, Yale Kamisar

Articles

Illinois v. Gates1 was the most eagerly awaited constitutional-criminal procedure case of the 1982 Term. I think it fair to say, however, that it was awaited a good deal more eagerly by law enforcement officials and the Americans for Effective Law Enforcement than by defense lawyers and the American Civil Liberties Union. As it turned out, of course, the Gates Court, to the disappointment of many, did not reach the question whether the exclusionary rule in search and seizure cases should be modified so as not to require the exclusion of evidence obtained in violation of the fourth amendment when …

The Bildisco Case And The Congressional Response, James J. White

Articles

Section 365 of the Bankruptcy Reform Act authorizes one in bankruptcy to "assume or reject any executory contract ...of the debtor." The most frequent use of the section arises when a lessee goes into Chapter 11 and decides either to reject its real estate lease with its lessor or, if the lease is at a favorable rental rate, to assume it and assign it to another. A less frequent but more controversial use of section 365 is to reject one's collective bargaining agreement with his employees.