Law Commons^™

Affirmative Duty And Constitutional Tort, Michael Wells, Thomas A. Eaton

University of Michigan Journal of Law Reform

This Article argues that the Bowers principle is wrong. It examines the issues of doctrine and policy that bear on the affirmative duty question in constitutional tort and contends that affirmative duties may be imposed even though constitutional rights are generally negative in character, as a matter of federal constitutional common law. It ·develops a foundation in doctrine and policy, so far lacking in the opinions, to support these duties and to place proper limits upon them.

Part I identifies issues of tort policy that arise in affirmative duty cases, while Part II addresses the distinctive problems that come up …

The Doctrine Of Prior Restraint Since The Pentagon Papers, James L. Oakes

University of Michigan Journal of Law Reform

The purpose of this speech is to examine how the doctrine against prior restraint has evolved since the Pentagon Papers case. I intend to demonstrate that while traditional antipathy to prior restraint has for the most part remained strong, several recent cases foreshadow a dangerous expansion of well-established exceptions to the doctrine. To understand fully the significance of these recent cases, I will begin this lecture with a general discussion of the historical origins of the doctrine against prior restraint. I will then proceed with a critical overview of the landmark Pentagon Papers case, more formally called New York Times …

Salvaging Proportionate Prison Sentencing: A Reply To Rummel V. Estelle, Thomas F. Cavalier

University of Michigan Journal of Law Reform

Part I of this Note provides a capsule of the Court's holding in Rummel. Part II argues, contrary to Rummel, that precedential support can be mustered to support eighth amendment review of sentence length. Finally, part 11,1 discusses the continued viability of the proportionality test as a vehicle for assessing challenges to the length of imprisonment, and discounts the concerns voiced in Rummel regarding the difficulty of judicial review of legislative sentencing decisions.

Making Campaign Finance Law Enforceable: Closing The Independent Expenditure Loophole, John P. Relman

University of Michigan Journal of Law Reform

This Note explores the problems posed by present attempts to define "coordination." Part I discusses generally the complexities of the coordination problem under Buckley, setting forth the rationale behind the Buckley rule and examining present efforts by Congress and the FEC to enforce the Buckley standards. Part I concludes by proposing a new definition for "coordination" designed to improve enforcement of the Buckley rule. Part II presents an alternative means for remedying the coordination problem. Rather than relying on a redefinition of coordination for proper enforcement of federal election law, this section proposes prophylactic legislation designed to regulate independent …