Law Commons^™

European Integration Through Fundamental Rights, Jochen Abr. Frowein

University of Michigan Journal of Law Reform

The conception of fundamental rights as natural rights of human beings developed in European legal thinking mainly in the seventeenth and eighteenth centuries. John Locke, Jean-Jacques Rousseau, and also Immanuel Kant should be mentioned. But it was in the new world that the principles of fundamental human rights were first put into practice. A little more than ten years after the first American declarations, the "Declaration des droits de l'homme et du citoyen" was adopted in Paris; it remains part of French constitutional law today. But, unlike the development in the United States, the French guarantees could not be enforced …

Towards A United Kingdom Bill Of Rights, Francis G. Jacobs

University of Michigan Journal of Law Reform

The United Kingdom has no fundamental constitutional instrument. It is in that respect almost unique. Instead it has a fundamental constitutional doctrine: the doctrine of the sovereignty of Parliament. The first paradox of the United Kingdom constitution is that no rules have a constitutional status.

The doctrine of Parliamentary sovereignty entails that all the constitutional rules that, in other countries, would be set out in a constitution are, in the United Kingdom, contained in Acts of Parliament-or in the common law, or in unwritten constitutional conventions or custom; and that any such rules, whether statutory or not, can be repealed …

Public Employees Or Private Citizens: The Off-Duty Sexual Activities Of Police Officers And The Constitutional Right Of Privacy, Michael A. Woronoff

University of Michigan Journal of Law Reform

This Note proposes a framework for dealing with problems in this area in a manner which best balances the competing interests involved. It argues that, while there is no explicit constitutional guarantee of privacy, the state is not free to regulate all aspects of a police officer's otherwise legal, off-duty, sexual activity. Part I of the Note examines several possible sources of a constitutional right of privacy. It concludes that, although many of the courts which invalidate state regulation of police officers' off-duty sexual activity do so on the basis of some constitutional right of privacy, any implied fundamental right …

The Liability Of Third Parties Under Title Vii, Andrew O. Schiff

University of Michigan Journal of Law Reform

This Note considers the extent to which Title VII covers discrimination by third parties other than employment agencies and labor organizations. Part I analyzes the rationale for covering third parties, discussing Title VIl's language and the policies that Congress intended it to serve. Part II proposes a framework for analyzing the liability of third parties. Part III applies this framework to three instances where courts have disagreed about the liability of a particular third party: insurance companies' administration of employee benefits, state licensing agencies' licensing of individuals for various occupations, and hospitals' granting of staff privileges to doctors.

Rights And Judges In A Democracy: A New Canadian Version, Paul C. Weiler

University of Michigan Journal of Law Reform

Canadians sought a constitutionally entrenched Charter of Rights not just for its own sake, but also as part of a larger effort at constitutional renewal. The hope was that such a Charter would preserve a united Canada in the face of the serious threat posed by French Canadian nationalism within a potentially independent Quebec. In this Article, I comment on those features of the Canadian debate and its denouement that are noteworthy within the Canadian context, as well as those that illustrate some of the universal themes of constitutional theory.

Abusive Pro Se Plaintiffs In The Federal Courts: Proposals For Judicial Control, Michael J. Mueller

University of Michigan Journal of Law Reform

This Note argues that a few courts have adopted lawful restraints and administrative procedures that, if uniformly adopted, would significantly improve protection of judicial resources while preserving access to the civil courts for legitimate claims. Part I identifies career plaintiffs and the burdens imposed on courts by excessive and abusive litigation. Part I also examines the source and scope of the right of access to the judicial process. Part II analyzes judicial responses to abuse in terms of their constitutionality and effectiveness at curbing such tactics. Part III advocates administrative procedures that would promote earlier identification of pro se career …

The Applicability Of Miranda Warnings To Non-Felony Offenses: Is The Proper Standard "Custodial Interrogation" Or "Severity Of The Offense"?, Kenneth W. Gaul

University of Michigan Journal of Law Reform

This Note argues that the proper standard for determining the necessity of the Miranda warnings for any offense is the existence of custodial interrogation. When interrogation for non-felony offenses takes place in a custodial atmosphere, Miranda warnings should be required, as they are for more serious offenses. Part I summarizes the two basic approaches taken by courts that have confronted the question of the applicability of the Miranda warnings to non-felony offenses. Part Ill argues that neither the rationale for the Miranda doctrine nor the roots of the fifth amendment support a distinction based on the severity of the offense …

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 …

"Seizures" Typology: Classifying Detentions Of The Person To Resolve Warrant, Grounds, And Search Issues, Wayne R. Lafave

University of Michigan Journal of Law Reform

This seizures typology constitutes a most important part of extant fourth amendment doctrine. The precision with which and perspective from which such classifications are drawn is obviously a matter of considerable interest to the police, who must in the first instance resolve these warrant, grounds, and search issues. It is also an appropriate subject of broader concern, as the shape of these categories has a critical bearing upon the effectiveness of our law enforcement processes and the extent of our protected liberty and privacy. The following comments are directed to this seizures typology.

Action Accrual Date For Written Warranties To Repair: Date Of Delivery Or Date Of Failure To Repair?, Carey A. Dewitt

University of Michigan Journal of Law Reform

This Note argues that the statute of limitations for an action for breach of a repair warranty should begin to run not when the goods are delivered (on-delivery rule), but when the manufacturer has failed to repair the goods (failure-to-repair rule). Part I considers the current division of authority relating to the action accrual date (the date at which the limitations period begins) for repair warranties. It analyzes the issue of whether the repair warranty is a species of future performance warranty under section 2-725(2) and examines non-Code law on repair promises. Part II discusses the advantages and disadvantages of …

The Severability Of Legislative Veto Provisions: An Examination Of The Congressional Budget And Impoundment Control Act Of 1974, Steven W. Pelak

University of Michigan Journal of Law Reform

This Note examines the constitutionality of the legislative veto provision (section 1013(b)) in the Congressional Budget and Impoundment Control Act, and discusses section 1013(b)'s and Title X's severability from the Act. Part I demonstrates that Chadha invalidates section 1013(b). Part II outlines the traditional severability doctrine. Part III proposes a refined model of the severability doctrine with which to resolve severability conflicts involving legislative veto provisions. Part IV applies the proposed severability model to the Congressional Budget and Impoundment Control Act, and concludes that section 1O13(b)'s unconstitutionality requires that the entire Congressional Budget and Impoundment Control Act fall.

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 Battering Parent Syndrome: Inexpert Testimony As Character Evidence, Thomas N. Bulleit Jr.

University of Michigan Journal of Law Reform

This Note proposes that courts refuse to give further consideration to admitting the battering parent syndrome as evidence in both civil and criminal proceedings arising out of child abuse. Part I of the Note describes the syndrome as it appears in the psychological literature. Part II suggests that current judicial attitudes favor the future admissibility of the syndrome, conditioned only on an improved showing of scientific accuracy. Part III demonstrates that regardless of scientific accuracy, the character evidence rule forbids courts from admitting the battering parent syndrome. Part IV argues that the important policies underlying the character evidence rule override …

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. …

Preface, Journal Of Law Reform

University of Michigan Journal of Law Reform

In April 1983, several members of the Journal suggested choosing immigration reform as a Special Issue topic. The idea had immediate appeal: the passage of the Simpson-Mazzoli bill seemed imminent; the new Refugee Act was not performing, in the views of some people, in a neutral (nonideological) manner; and many new immigration problems emerged that would soon require congressional, judicial, and administrative attention. Professor Alexander Aleinikoff helped us hammer this notion into a Special Issue by suggesting topics, providing sources, and ultimately writing an Article for the issue. This project may not have come off without his assistance. This is …

The Immigration Reform And Control Act: Immigration Policy And The National Interest, Alan K. Simpson

University of Michigan Journal of Law Reform

Today more than ever the United States is a target for international migration. Population growth and economic stagnation in the Third World are increasing the pressures for emigration, and current United States immigration law is incapable of responding to the growing flow of illegal immigrants. The number of illegal aliens apprehended in the United States increased forty percent in 1983, and reached 1.4 million by the year's end. The backlog of applications for political asylum is over 165,000, and many of these claims are frivolous. Polls by Roper, Gallup, NBC, and others have shown that ninety percent of the American …

A Commentary On American Legal Scholarship Concerning The Admission Of Migrants, James A.R. Nafziger

University of Michigan Journal of Law Reform

The following essay will focus attention on American legal scholarship concerning the admission of migrants. This topic is instructive and practical because of its impact on both municipal and global law. An eminent international jurist observed that greater foresight by scholars twenty-five years ago could have averted many current problems of migration. Today, these problems arise from such sources as the population explosion, periodic droughts, the pull factor of opportunities in advanced economies, and massive political unrest in the Horn of Africa, Afghanistan, Southeast Asia, Central America, and elsewhere. Migrants are knocking at the gates of sovereignty, even crashing some …

Political Asylum Under The 1980 Refugee Act: An Unfulfilled Promise, Arthur C. Helton

University of Michigan Journal of Law Reform

Part I of this Article reviews the history and development of asylum law in the United States which culminated in the passage of the Refugee Act of 1980. It analyzes the failure of the responsible administrative authorities to follow the dictates of the law - a circumstance which prompted the passage of the Act and which now threatens to subvert the right to asylum in the United States. Part II considers the impact on asylum seekers of new alien interdiction and detention programs, and the legality of those programs under domestic and international law. Finally, Part III makes specific recommendations, …

Reforming The Immigration And Nationality Act: Labor Certification, Adjustment Of Status, The Reach Of Deportation, And Entry By Fraud, Elwin Griffith

University of Michigan Journal of Law Reform

This Article will consider some of the controversial sections of the INA and the impact of the pending immigration legislation. Part I considers the labor certification requirement, a prerequisite for third and sixth preference immigrants. This Part concludes that clarification of the division of authority between the Attorney General and the Secretary of Labor, and of the intent of aliens to keep their certified jobs, would be desirable. Part II analyzes the requirements an alien must meet to adjust status to one, of the occupational preferences. The statutory refusal to adjust status of aliens who accept ''unauthorized employment" must be …

Resolving The Problem Of Undocumented Workers In American Society: A Model Guest Worker Statute, Marjorie E. Powell

University of Michigan Journal of Law Reform

This Note argues that a temporary foreign worker program is needed to alleviate the effects of illegal immigration. Part I describes the problems that illegal aliens present and discusses the interests of the groups affected by their presence in the United States. Part II discusses the inability of forced repatriation, amnesty, closing the border, or employer sanctions to satisfy these interests. Part II also discusses the undesirability of ignoring the problem of illegal aliens. Part III explains how a program for admission of temporary foreign workers best meets the interests of domestic employers, domestic and foreign workers, sending countries, and …

Political Asylum In The Federal Republic Of Germany And The Republic Of France: Lessons For The United States, T. Alexander Aleinikoff

University of Michigan Journal of Law Reform

The recent flood of asylum claims, and the concerns it engenders, are not peculiar to the United States. Western European nations have witnessed similar increases in asylum applications over the past decade, .and institutions charged with adjudicating claims have become severely overburdened. This Article will describe the experience of the Federal Republic of Germany and the Republic of France in coping with the explosion of asylum claims. A comparative analysis may provide perspective on the American situation and perhaps suggest - or rule out - proposals for change currently under consideration in the United States. To appreciate the saliency of …

The Propriety Of Denying Entry To Homosexual Aliens: Examining The Public Health Service's Authority Over Medical Exclusions, Robert Poznanski

University of Michigan Journal of Law Reform

This Note defends the position that the PHS has the authority to define homosexuality for the purpose of the section 212(a)(4) exclusion, and that the PHS definition is binding upon the INS. Therefore, the PHS's decision to refuse to examine aliens for homosexuality precludes the INS from excluding aliens on that basis. Part I of this Note traces the history of the policy of excluding homosexual aliens. Part II maintains that, regardless of the psychiatric profession's interpretation of ''psychopathic personality,'' Congress intended the expression to encompass homosexuality. Part III contends that Congress intended to empower the PHS to change its …

Is The Section 1983 Civil Rights Statute Overworked? Expanded Use Of Magistrates--An Alternative To Exhaustion, Brian P. Owensby

University of Michigan Journal of Law Reform

Part I of this Note discusses the history and purpose of section 1983 and identifies the danger unmanaged growth of 1983 suits poses to civil rights. Part II examines several judicial responses to the 1983 caseload problem and concludes that congressional action is more appropriate. Parts III and IV explore two areas of possible legislative action. Part III questions the efficacy of a legislatively imposed requirement that the claimant exhaust state administrative remedies as a prerequisite to a 1983 suit in federal court. Part IV proposes an alternative congressional response to the 1983 caseload problem: a carefully tailored use of …

Section 558( C ) Of The Administrative Procedure Act: Provision For Informal Agency Hearings Prior To License Revocation Or Suspension, Joan P. Snyder

University of Michigan Journal of Law Reform

This Note argues that section 558(c) should be interpreted to require an agency to provide a hearing prior to license suspension or revocation. Part I argues that all courts that have adjudicated whether section 558(c) requires a hearing have misconstrued the statute by failing to consider the general policies served by the APA. Part II examines section 558(c) in light of the major policies of the APA, uniformity and fairness in administrative procedure. It argues that these policies are best served by an interpretation that requires a hearing prior to suspension or revocation of any federal license. It does, however, …

Introduction--Reviewing Immigration Policy: The Select Commission, The Debate Over Simpson-Mazzoli, And Beyond, Lawrence H. Fuchs

University of Michigan Journal of Law Reform

Although the authors of the Articles which follow could not possibly touch on all aspects of reform, they have highlighted several that are important, giving further stimulus to a discussion which is certain to continue even if the Simpson-Mazzoli bill passes soon. Each of them constitutes an important contribution to that discussion, and Professor Aleinikoff's Article is arguably the single most challenging and constructive to appear on the subject of asylum claims adjudication. The University of Michigan Journal of Law Reform should be congratulated for its contributions to the ongoing debate on immigration reform.