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Articles 1 - 30 of 55
Full-Text Articles in Law
Can We Calculate Fairness And Reasonableness? Determining What Satisfies The Fair Cross-Section Requirement Of The Sixth Amendment, Colleen P. Fitzharris
Can We Calculate Fairness And Reasonableness? Determining What Satisfies The Fair Cross-Section Requirement Of The Sixth Amendment, Colleen P. Fitzharris
Michigan Law Review
The Impartial Jury Clause of the Sixth Amendment requires that the venire from which the state and the defendant draw a twelve-person petit jury be a fair cross-section of the community. The Supreme Court announced a three-prong test in Duren v. Missouri to help courts determine whether there has been a Sixth Amendment violation: (1) whether a distinctive group in the community was excluded; (2) whether the venire was not a fair and reasonable representation of the county population as a whole; and (3) whether that underrepresentation was the result of systematic exclusion. When evaluating the second prong, courts routinely …
Constitutionally Tailoring Punishment, Richard A. Bierschbach, Stephanos Bibas
Constitutionally Tailoring Punishment, Richard A. Bierschbach, Stephanos Bibas
Michigan Law Review
Since the turn of the century, the Supreme Court has regulated noncapital sentencing under the Sixth Amendment in the Apprendi line of cases (requiring jury findings of fact to justify sentence enhancements) as well as under the Eighth Amendment in the Miller and Graham line of cases (forbidding mandatory life imprisonment for juvenile defendants). Although both lines of authority sound in individual rights, in fact they are fundamentally about the structures of criminal justice. These two seemingly disparate doctrines respond to structural imbalances in noncapital sentencing by promoting morally appropriate punishment judgments that are based on individualized input and that …
Legislative Diplomacy, Ryan M. Scoville
Legislative Diplomacy, Ryan M. Scoville
Michigan Law Review
A traditional view in legal scholarship holds that the U.S. Constitution assigns the president exclusive power to carry on official diplomatic communications with foreign governments. But in fact, Congress and its members routinely engage in communications of their own. Congress, for example, receives heads of state and maintains official contacts with foreign parliaments. And individual members of the House and Senate frequently travel overseas on congressional delegations (“CODELs”) to confer with foreign leaders, investigate problems that arise, promote the interests of the United States and constituents, and even represent the president. Moreover, many of these activities have occurred ever since …
The Legality Of Deliberate Miranda Violations: How Two-Step National Security Interrogations Undermine Miranda And Destabilize Fifth Amendment Protections, Lee Ross Crain
Michigan Law Review
As part of the global “War on Terror,” federal agents intentionally delay issuing Miranda warnings to terrorism suspects during custodial interrogations. They delay the warnings presuming that unwarned suspects will more freely offer vital national security intelligence. After a suspect offers the information he has, agents administer Miranda warnings and attempt to elicit confessions that prosecutors can use at the suspect’s trial. No court has ruled on the constitutionality of this two-step national security interrogation process to determine whether admitting the second, warned confession is allowed under Miranda v. Arizona and its progeny. A fragmented Supreme Court examined two-step interrogations …
Beyond The Battlefield, Beyond Al Qaeda: The Destabilizing Legal Architecture Of Counterterrorism, Robert M. Chesney
Beyond The Battlefield, Beyond Al Qaeda: The Destabilizing Legal Architecture Of Counterterrorism, Robert M. Chesney
Michigan Law Review
By the end of the first post-9/11 decade, the legal architecture associated with the U.S. government’s use of military detention and lethal force in the counterterrorism setting had come to seem relatively stable, supported by a remarkable degree of cross-branch and cross-party consensus (manifested by legislation, judicial decisions, and consistency of policy across two very different presidential administrations). That stability is certain to collapse during the second post-9/11 decade, however, thanks to the rapid erosion of two factors that have played a critical role in generating the recent appearance of consensus: the existence of an undisputed armed conflict in Afghanistan, …
Misplaced Misrepresentations: Why Misrepresentation-Of-Age Statutes Must Be Reinterpreted As They Apply To Children’S Online Contracts, Michelle A. Sargent
Misplaced Misrepresentations: Why Misrepresentation-Of-Age Statutes Must Be Reinterpreted As They Apply To Children’S Online Contracts, Michelle A. Sargent
Michigan Law Review
The information age revolutionized the relationship between individuals and the internet. Today, children are the targets of online advertisements that lure them into accepting terms of service, thus entering into online agreements. While children may feel comfortable navigating websites, they are psychologically predisposed to be unsophisticated and impulsive actors online. Children lack the digital literacy to understand the implications of accepting website terms of service. Meanwhile, several states have misrepresentation-of-age statutes that prevent children from using the infancy doctrine to disaffirm online contracts because, in accepting the terms of service, children often represent that they are old enough to enter …
An Implausible Standard For Affirmative Defenses, Stephen Mayer
An Implausible Standard For Affirmative Defenses, Stephen Mayer
Michigan Law Review
In the wake of Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the federal district courts split over whether to apply Twombly’s plausibility standard to the pleading of affirmative defenses. Initially, a majority of district courts extended Twombly to defense pleadings, but recently the courts that have declined to extend the plausibility standard have gained majority status. This Note provides a comprehensive analysis of each side of the plausibility split, identifying several hidden assumptions motivating the district courts’ decisions. Drawing from its analysis of the two opposing positions, this Note responds to the courts that have applied plausibility pleading …
Pro-Whistleblower Reform In The Post-Garcetti Era, Julian W. Kleinbrodt
Pro-Whistleblower Reform In The Post-Garcetti Era, Julian W. Kleinbrodt
Michigan Law Review
Whistleblowers who expose government ineptitude, inefficiency, and corruption are valuable assets to a well-functioning democracy. Until recently, the Connick–Pickering test governed public employee speech law; it gave First Amendment protection to government employees who spoke on matters of public concern—-such as whistleblowers-—so long as the government’s administrative concerns did not outweigh the employees’ free speech interests. The Supreme Court significantly curtailed the protection of such speech in its recent case, Garcetti v. Ceballos. This case created a categorical threshold requirement that afforded no protection to speech made as an employee rather than as a citizen. Garcetti’s problematic rule has forced …
A Capital Market, Corporate Law Approach To Creditor Conduct, Mark J. Roe, Frederico Cenzi Venezze
A Capital Market, Corporate Law Approach To Creditor Conduct, Mark J. Roe, Frederico Cenzi Venezze
Michigan Law Review
The problem of creditor conduct in a distressed firm—-for which policymakers ought to have the distressed firm’s economically sensible repositioning as a central goal—-has vexed courts for decades. Because courts have not come to coherent, stable doctrine to regulate creditor behavior and because they do not focus on building doctrinal structures that would facilitate the sensible repositioning of the distressed firm, social costs arise and those costs may be substantial. One can easily see why developing a good rule here has been hard to achieve: A rule that facilitates creditor intervention in the debtor’s operations beyond the creditor’s ordinary collection …
Preemption And Textualism, Daniel J. Meltzer
Preemption And Textualism, Daniel J. Meltzer
Michigan Law Review
In the critically important area of preemption, the Supreme Court’s approach to statutory interpretation differs from the approach it follows elsewhere. Whether in politically salient matters, like challenges to Arizona’s immigration laws, or in more conventional cases, such as those in which state tort liability overlaps with federal regulation, the Court’s preemption decisions reflect a highly purposive approach to reading statutes, most notably through the application of “obstacle preemption” analysis. Recently, however, Justice Thomas has objected to the Court’s failure in preemption cases to respect its more textualist approach to issues of statutory interpretation, and he has urged that obstacle …
The Constitutionality Of Using Eminent Domain To Condemn Underwater Mortgage Loans, Katharine Roller
The Constitutionality Of Using Eminent Domain To Condemn Underwater Mortgage Loans, Katharine Roller
Michigan Law Review
One of the most visible and devastating components of the financial crisis that began in 2007 and 2008 has been a nationwide foreclosure crisis. In the wake of ultimately ineffective attempts at federal policy intervention to address the foreclosure crisis, a private firm has proposed that counties and municipalities use their power of eminent domain to seize “underwater” mortgage loans—-mortgage loans in which the debt exceeds the value of the underlying property—-from the private securitization trusts that currently hold them. Having condemned the mortgage loans, the counties and municipalities would reduce the debt to a level below the value of …
Incomplete Wills, Adam J. Hirsch
Incomplete Wills, Adam J. Hirsch
Michigan Law Review
This Article explores the problems that arise when a will fails to dispose of an individual's entire estate, so that she dies partially testate and partially intestate. The questions then raised include (1) whether provisions contained in the will purporting to redefine the individual's intestate heirs should supersede the statutory designations of those heirs, (2) whether inter vivos gifts to heirs should qualify as advancements on the inheritances of those heirs under conditions of partial intestacy, and, most broadly, (3) whether courts should fill in the incomplete portion of an individual's estate plan by extrapolating from the distributive preferences set …
Statutory Interdependence In Severability Analysis, Rachel J. Ezzell
Statutory Interdependence In Severability Analysis, Rachel J. Ezzell
Michigan Law Review
According to conventional wisdom, when a court rules a statutory provision unconstitutional, it must sever that provision or strike down the entire statute. This understanding is incomplete. In practice, courts may engage in compound severance: invalidating additional, otherwise constitutional provisions of the statute without striking down the entire statute. They reason that the degree of interrelation between those provisions is so significant that severance of one compels severance of the other. As a result, a subset of the statute remains law. The power to craft such subsets raises constitutional concerns, and yet the jurisprudence concerning statutory interdependence is inconsistent and …
Defining Corruption And Constitutionalizing Democracy, Deborah Hellman
Defining Corruption And Constitutionalizing Democracy, Deborah Hellman
Michigan Law Review
The central front in the battle over campaign finance laws is the definition of corruption. The Supreme Court has allowed restrictions on the giving and spending of money in connection with elections only when they serve to avoid corruption or the appearance of corruption. The constitutionality of such laws, therefore, depends on how the Court defines corruption. Over the years, campaign finance cases have conceived of corruption in both broad and narrow terms, with the most recent cases defining it especially narrowly. While supporters and critics of campaign finance laws have argued for and against these different formulations, both sides …
Plea Bargaining And The Right To Counsel At Bail Hearings, Charlie Gerstein
Plea Bargaining And The Right To Counsel At Bail Hearings, Charlie Gerstein
Michigan Law Review
A couple million indigent defendants in this country face bail hearings each year and most of them do so without court-appointed lawyers. In two recent companion cases, Lafler v. Cooper and Missouri v. Frye, the Supreme Court held that the loss of a favorable plea bargain can satisfy the prejudice prong of an ineffective assistance of counsel claim. If the Constitution requires effective assistance of counsel to protect plea bargains, it requires the presence of counsel at proceedings that have the capacity to prejudice those bargains. Pretrial detention has the capacity to prejudice a plea bargain because a defendant held …
A Model For Fixing Identification Evidence After Perry V. New Hampshire, Robert Couch
A Model For Fixing Identification Evidence After Perry V. New Hampshire, Robert Couch
Michigan Law Review
Mistaken eyewitness identifications are the leading cause of wrongful convictions. In 1977, a time when the problems with eyewitness identifications had been acknowledged but were not yet completely understood, the Supreme Court announced a test designed to exclude unreliable eyewitness evidence. This standard has proven inadequate to protect against mistaken identifications. Despite voluminous scientific studies on the failings of eyewitness identification evidence and the growing number of DNA exonerations, the Supreme Court's outdated reliability test remains in place today. In 2012, in Perry v. New Hampshire, the Supreme Court commented on its standard for evaluating eyewitness evidence for the first …
Counsel's Control Over The Presentation Of Mitigating Evidence During Capital Sentencing, James Michael Blakemore
Counsel's Control Over The Presentation Of Mitigating Evidence During Capital Sentencing, James Michael Blakemore
Michigan Law Review
The Sixth Amendment gives a defendant the right to control his defense and the right to a lawyer's assistance. A lawyer's assistance, however, sometimes interferes with a defendant's control over his case. As a result, the Supreme Court, over time, has had to delineate the spheres of authority that pertain to counsel and defendant respectively. The Court has not yet decisively assigned control over mitigating evidence to either counsel or defendant. This Note argues that counsel should control the presentation of mitigating evidence during capital sentencing. First, and most importantly, decisions concerning the presentation of mitigating evidence are best characterized …
Rethinking Reporter's Privilege, Ronnell Andersen Jones
Rethinking Reporter's Privilege, Ronnell Andersen Jones
Michigan Law Review
Forty years ago, in Branzburg v. Hayes, the Supreme Court made its first and only inquiry into the constitutional protection of the relationship between a reporter and a confidential source. This case - decided at a moment in American history in which the role of an investigative press, and of information provided by confidential sources, was coming to the forefront of public consciousness in a new and significant way - produced a reporter-focused "privilege" that is now widely regarded to be both doctrinally questionable and deeply inconsistent in application. Although the post-Branzburg privilege has been recognized as flawed in a …
Standing's Expected Value, Jonathan Remy Nash
Standing's Expected Value, Jonathan Remy Nash
Michigan Law Review
This Article argues in favor of standing based on expected value of harm. Standing doctrine has been constructed in a way that is oblivious to the idea of expected value. If people have suffered a loss with a positive expected value, they have suffered an "injury in fact." The incorporation of expected value into standing doctrine casts doubt on many of the Supreme Court's decisions in which it denies standing because the relevant injury is too "speculative" or is not "likely" to be redressed by a decree in the plaintiff's favor. This Article addresses this shortcoming in standing jurisprudence by …
Law-Enforcement Officers And Self-Help Repossession: A State-Action Approach, Aaron Loterstein
Law-Enforcement Officers And Self-Help Repossession: A State-Action Approach, Aaron Loterstein
Michigan Law Review
Repossession of secured collateral is a fundamental component of the consumer credit industry. The Uniform Commercial Code authorizes a secured party to engage in self-help repossession of secured collateral under section 9-609, so long as the repossession takes place without "breach of the peace." While that term is undefined, several courts have adopted a counterintuitive rule, holding that a law-enforcement officer's presence during a self-help repossession - regardless of purpose or level of involvement - creates a breach of the peace. The Official Comments to the Code have seemingly endorsed this position as well. This Note rejects the primary justifications …
Neither Sad Nor Strange: Recovering The Logic Of Anticruelty Organizations In Gilded Age America, Bryn Resser Pallesen
Neither Sad Nor Strange: Recovering The Logic Of Anticruelty Organizations In Gilded Age America, Bryn Resser Pallesen
Michigan Law Review
In 1877, the American Humane Association ("AHA") incorporated as one of the first national organizations dedicated to the protection of animals. Nine years later, it amended its constitution to include the protection of children in its chartered mission. By 1908, there were 354 anticruelty organizations in the United States, 185 of which were, like the AHA, humane societies invested in the welfare of both animals and children (pp. 2-3). As primary source documents reveal, Gilded Age humanitarians viewed the joint pursuit of child and animal protection as entirely sensible (p. 5). One of the Illinois Humane Society's founding directors, for …
Constitutional Change, Courts, And Social Movements, Douglas Nejaime
Constitutional Change, Courts, And Social Movements, Douglas Nejaime
Michigan Law Review
In Constitutional Redemption: Political Faith in an Unjust World, Professor Jack Balkin furnishes a positive account of constitutional change, advances a normative vision of the relationship between popular mobilizations and evolving constitutional principles, and develops an interpretive theory aimed at fulfilling the Constitution's promise. Rather than take an internal perspective that asks how courts alter constitutional doctrine, Balkin decenters adjudication and instead views the role of courts in constitutional change through the lens of social movements. In doing so, he convincingly exposes the feedback loop between social movements and courts: courts respond to claims and visions crafted by movements, and …
Waylaid By A Metaphor: A Deeply Problematic Account Of Prison Growth, John F. Pfaff
Waylaid By A Metaphor: A Deeply Problematic Account Of Prison Growth, John F. Pfaff
Michigan Law Review
The incarceration rate in the United States has undergone an unprecedented surge since the 1970s. Between 1925 and 1975, the U.S. incarceration rate hovered around 100 per 100,000. Since then, that rate soared to 504 in 2009, dropping only slightly to 500 in 2010. In absolute numbers, the U.S. prison population grew from 241,000 in 1975 to 1.55 million in 2010. Not just exceptional by historical standards, this boom is unparalleled globally: the United States has the highest incarceration rate in the world. Despite having just 5 percent of the world's population, it houses nearly 25 percent of the world's …
Justice Brennan: Legacy Of A Champion, Dawn Johnsen
Justice Brennan: Legacy Of A Champion, Dawn Johnsen
Michigan Law Review
During the 1980s, when the Court's approval rating was relatively high, commentators from both ends of the ideological spectrum remarked on the importance of Justices' values and views, and bemoaned the public's utter lack of attention to the Court and judicial appointments. President Ronald Reagan's Department of Justice prefaced an extensive analysis of the momentous issues at stake for the Court and the Constitution with a call for attention to the "critical" yet "often overlooked" "values and philosophies" of federal judges. Professor Laurence Tribe similarly introduced a historical analysis of the Court's vital role by describing Justices' "powerful, if often …
A Native Vision Of Justice, Carole Goldberg
A Native Vision Of Justice, Carole Goldberg
Michigan Law Review
Although largely unheralded in its time, D'Arcy McNickle's The Surrounded has become a classic of Native American literature. When the University of New Mexico Press reissued the book in 1978, a year after McNickle's death, the director of Chicago's Newberry Library, Lawrence W. Towner, predicted (correctly) that it would "reach a far wider audience." Within The Surrounded are early stirrings of a literary movement that took flight several decades after the novel's first publication in the writings of N. Scott Momaday, Louise Erdrich, James Welch, Leslie Marmon Silko, and Gerald Vizenor, among others. All of these Native American authors share …
Oh, The Treatise!, Richard A. Danner
Oh, The Treatise!, Richard A. Danner
Michigan Law Review
In his foreword to the Michigan Law Review's 2009 Survey of Books Related to the Law, my former Duke colleague Erwin Chemerinsky posed the question: "[W]hy should law professors write?" In answering, Erwin took as a starting point the well-known criticisms of legal scholarship that Judge Harry Edwards published in this journal in 1992. Judge Edwards indicted legal scholars for failing to engage the practical problems facing lawyers and judges, writing instead for the benefit of scholars in law and other disciplines rather than for their professional audiences. He characterized "practical" legal scholarship as both prescriptive (aiming to instruct attorneys, …
Jack Balkin's Rich Historicism And Diet Originalism: Health Benefits And Risks For The Constitutional System, Neil S. Siegel
Jack Balkin's Rich Historicism And Diet Originalism: Health Benefits And Risks For The Constitutional System, Neil S. Siegel
Michigan Law Review
Jack Balkin's Living Originalism is a sweet read. It is beautifully written, illuminating, and provocative. It is conducive to deep reflection about foundational questions. In the book, Balkin reasons from two points of view - the perspective of the constitutional system as a whole and the perspective of the faithful participant in that system (p. 130). First, he provides a systemic account of constitutional change, which he calls "living constitutionalism." Second, he offers an approach to constitutional interpretation and construction, which he calls "framework originalism." These two components-living constitutionalism and framework originalism - together constitute his overall theory of "living …
Family History: Inside And Out, Kerry Abrams
Family History: Inside And Out, Kerry Abrams
Michigan Law Review
The twenty-first century has seen the dawn of a new era of the family, an era that has its roots in the twentieth. Many of the social and scientific phenomena of our time - same-sex couples, in vitro fertilization, single-parent families, international adoption - have inspired changes in the law. Legal change has encompassed both constitutional doctrine and statutory innovations, from landmark Supreme Court decisions articulating a right to procreate (or not), a liberty interest in the care, custody, and control of one's children, and even a right to marry, to state no-fault divorce statutes that have fundamentally changed the …
The Fight To Frame Privacy, Woodrow Hartzog
The Fight To Frame Privacy, Woodrow Hartzog
Michigan Law Review
In his important new book, Nothing to Hide: The False Tradeoff Between Privacy and Security, Daniel Solove argues that if we continue to view privacy and security as diametrically opposed to each other, privacy will always lose. Solove argues that the predetermined abandonment of privacy in security-related disputes means that the structure of the privacy-security debate is inherently flawed. Solove understands that privacy is far too vital to our freedom and democracy to accept its inevitable demise. The central thesis of this Review is that Solove's polemic is a strong and desperately needed collection of frames that counterbalances the "nothing …
Criminal Justice, Local Democracy, And Constitutional Rights, Stephen J. Schulhofer
Criminal Justice, Local Democracy, And Constitutional Rights, Stephen J. Schulhofer
Michigan Law Review
Universally admired, and viewed with great affection, even love, by all who knew him, Harvard law professor Bill Stuntz died in March 2011 at the age of fifty-two, after a long, courageous battle with debilitating back pain and then insurmountable cancer. In a career that deserved to be much longer, Stuntz produced dozens of major articles on criminal law and procedure. He was a leader in carrying forward the work of scholars who had analyzed criminal justice through the lens of economic analysis, and he added his own distinctive dimension by insisting on the importance of political incentives, with their …