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University of Michigan Law School

Due process

Legal History

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From Grace To Grids: Rethinking Due Process Protections For Parole., Kimberly A. Thomas, Paul D. Reingold May 2017

From Grace To Grids: Rethinking Due Process Protections For Parole., Kimberly A. Thomas, Paul D. Reingold

Articles

Current due process law gives little protection to prisoners at the point of parole, even though the parole decision, like sentencing, determines whether or not a person will serve more time or will go free. The doctrine regarding parole, which developed mostly in the late 1970s, was based on a judicial understanding of parole as an experimental, subjective, and largely standardless art—rooted in assessing the individual “character” of the potential parolee. In this Article we examine the foundations of the doctrine, and conclude that the due process inquiry at the point of parole should take into account the stark ...


Gideon V. Wainwright--From A 1963 Perspective, Jerold H. Israel Jul 2014

Gideon V. Wainwright--From A 1963 Perspective, Jerold H. Israel

Articles

Gideon v. Wainwright is more than a “landmark” Supreme Court ruling in the field of constitutional criminal procedure. As evidenced by the range of celebrators of Gideon’s Fiftieth Anniversary (extending far beyond the legal academy) and Gideon’s inclusion in the basic coverage of high school government courses, Gideon today is an icon of the American justice system. I have no quarrel with that iconic status, but I certainly did not see any such potential in Gideon when I analyzed the Court’s ruling shortly after it was announced in March of 1963. I had previously agreed to write ...


Scrutiny Land, Randy E. Barnett Jan 2008

Scrutiny Land, Randy E. Barnett

Michigan Law Review

Scrutiny Land is the place where government needs to justify to a court its restrictions on the liberties of the people. In the 1930s, the Supreme Court began limiting access to Scrutiny Land. While the New Deal Court merely shifted the burden to those challenging a law to show that a restriction of liberty is irrational, the Warren Court made the presumption of constitutionality effectively irrebuttable. After this, only one road to Scrutiny Land remained: showing that the liberty being restricted was a fundamental right. The Glucksberg Two-Step, however, limited the doctrine of fundamental rights to those (1) narrowly defined ...


On The Fortieth Anniversary Of The Miranda Case: Why We Needed It, How We Got It--And What Happened To It, Yale Kamisar Jan 2007

On The Fortieth Anniversary Of The Miranda Case: Why We Needed It, How We Got It--And What Happened To It, Yale Kamisar

Articles

Last year (the year I gave the talk on which this article is based) marked the fortieth anniversary of Miranda v. Arizona,' one of the most praised, most maligned-and probably one of the most misunderstood-Supreme Court cases in American history. It is difficult, if not impossible, to evaluate Miranda without looking back at the test for the admissibility of confessions that preceded it.


Free-Standing Due Process And Criminal Procedure: The Supreme Court's Search For Interpretive Guidelines, Jerold H. Israel Jan 2001

Free-Standing Due Process And Criminal Procedure: The Supreme Court's Search For Interpretive Guidelines, Jerold H. Israel

Articles

When I was first introduced to the constitutional regulation of criminal procedure in the mid-1950s, a single issue dominated the field: To what extent did the due process clause of the Fourteenth Amendment impose upon states the same constitutional restraints that the Fourth, Fifth, Sixth and Eighth Amendments imposed upon the federal government? While those Bill of Rights provisions, as even then construed, imposed a broad range of constitutional restraints upon the federal criminal justice system, the federal system was (and still is) minuscule as compared to the combined systems of the fifty states. With the Bill of Rights provisions ...


"Can (Did) Congress 'Overrule' Miranda?, Yale Kamisar Jan 2000

"Can (Did) Congress 'Overrule' Miranda?, Yale Kamisar

Articles

I think the great majority of judges, lawyers, and law professors would have concurred in Judge Friendly's remarks when he made them thirty-three years ago. To put it another way, I believe few would have had much confidence in the constitutionality of an anti-Miranda provision, usually known as § 3501 because of its designation under Title 18 of the United States Code, a provision of Title II of the Omnibus Crime Control and Safe Streets Act of 1968 (hereinafter referred to as the Crime Act or the Crime Bill), when that legislation was signed by the president on June 19 ...


History's Stories, Stephan Landsman May 1995

History's Stories, Stephan Landsman

Michigan Law Review

A Review of Stories of Scottsboro by James Goodman


Kauper's 'Judicial Examination Of The Accused' Forty Years Later—Some Comments On A Remarkable Article, Yale Kamisar Nov 1974

Kauper's 'Judicial Examination Of The Accused' Forty Years Later—Some Comments On A Remarkable Article, Yale Kamisar

Articles

For a long time before Professor Paul Kauper wrote "Judicial Examination of the Accused" in 1932, and for a long time thereafter, the "legal mind" shut out the de facto inquisitorial system that characterized American criminal procedure. Paul Kauper could not look away. He recognized the "naked, ugly facts" (p. 1224) and was determined to do something about them -more than thirty years before Escobedo v. Illinois' or Miranda v. Arizona.2


The Fourteenth Amendment Reconsidered, The Segregation Question, Alfred H. Kelly Jun 1956

The Fourteenth Amendment Reconsidered, The Segregation Question, Alfred H. Kelly

Michigan Law Review

Some sixty years ago in Plessy v. Ferguson the Supreme Court of the United States adopted the now celebrated "separate but equal" doctrine as a constitutional guidepost for state segregation statutes. Justice Brown's opinion declared that state statutes imposing racial segregation did not violate the Fourteenth Amendment, provided only that the statute in question guaranteed equal facilities for the two races. Brown's argument rested on a historical theory of the intent, although he offered no evidence to support it. "The object of the amendment," he said, "was undoubtedly to enforce the absolute equality of the two races before ...


Michigan Title Examinations And The 1954 Revenue Code's New General Lien Provisions, L. Hart Wright Jan 1955

Michigan Title Examinations And The 1954 Revenue Code's New General Lien Provisions, L. Hart Wright

Michigan Law Review

Title examiners, and more particularly their clients, have long suffered from a controversy-limited almost exclusively to Michigan- involving the methods by which the United States Treasury Department could perfect general federal tax liens. The December 1952 issue of the Michigan Law Review carried an article by the present writer pointing up the irreconcilable difference which has existed for a quarter of a century between the type of record notice which the Treasury was willing to provide prospective bona fide purchasers et al., and the quite different and more demanding type which the Michigan Legislature insisted upon if the local offices ...


Power Of Governor-General To Expel Resident Aliens From Insular Territory Of The United States, Horace Lafayette Wilgus Jan 1911

Power Of Governor-General To Expel Resident Aliens From Insular Territory Of The United States, Horace Lafayette Wilgus

Articles

In the case of Forbes et al. v. Chuoco Tiaco, decided by the Supreme Court of the Philippine Islands July 30, 1910, 8 Off. Gaz., p. 1778, some of the most interesting, important, and fundamental questions were presented and determined for the time being, but not settled, it is reasonably safe to say until passed upon by the Supreme Court of the United States. The questions involved were whether the Governor General of the Philippine Islands has the power to expel resident Chinese aliens without a hearing or an opportunity to be heard, and whether the Governor, if he exceeded ...