Law Commons^™

The Meaning Of "Under Color Of" Law, Steven L. Winter

Michigan Law Review

The argument proceeds as follows. In Part I, I examine why the conceptual problem of who or what is "the State" is so intractable. In Part II, I present the historical evidence that establishes beyond doubt the pedigree and meaning of the phrase under color of law. I explain why Frankfurter would have indulged in such an obvious historical error to take the position he did. I suggest that, as was the case with the invention of modem standing doctrine, Frankfurter was here engaged in a stealthy, anachronistic campaign against the jurisprudence of the Lochner era - attempting to …

Florida V. Bostick: Abandonment Of Reason In Fourth Amendment Reasonable Person Analysis, James F. Heuerman

Northern Illinois University Law Review

This note examines the United States Supreme Court's decision which addressed the constitutionality of "bus sweeps" -- random suspicionless police questioning of interstate bus travelers. The Court concluded that a reasonable bus passenger could feel free to disregard police questioning, and accordingly found that not all such encounters are entitled to Fourth Amendment scrutiny. The author explores the Court's decision and contends that only by severely underestimating the inherent coercion in such encounters was the Court able to avoid the intuitive conclusion that passengers are "seized" during such questioning.

What's Standing After Lujan? Of Citizen Suits, "Injuries," And Article Iii, Cass R. Sunstein

Michigan Law Review

In this article, I have two principal goals. The first is to explain why Lujan's invalidation of a congressional grant of standing is a misinterpretation of the Constitution. It is now apparently the law that Article III forbids Congress from granting standing to "citizens" to bring suit. But this view, building on an unfortunate innovation in standing law by Justice William 0. Douglas, is surprisingly novel. It has no support in the text or history of Article III. It is essentially an invention of federal judges, and recent ones at that. Certainly it should not be accepted by judges …

Litigation, E. D'Angelo

California Regulatory Law Reporter

No abstract provided.

Controlling The Competitor Plaintiff In Antitrust Litigation, William H. Page, Roger D. Blair

Michigan Law Review

In Misuse of the Antitrust Laws: The Competitor Plaintiff, Edward Snyder and Thomas Kauper survey a sample of private antitrust cases from the period 1973-1983 and review critically the recent economic literature on raising rivals' costs as an exclusionary practice.

Much in Snyder and Kauper's study is worthy of comment. They have given us a useful picture of private antitrust litigation during the period covered by the sample, one that may be more accurate than a reading of reported cases from that period would suggest. Moreover, their generally critical treatment of the literature on raising rivals' costs is clear …

Section 4: Moot Court: Church Of The Lukumi Babulu Aye V. City Of Hialeah, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 5: Plenary Review: Press Coverage Of The Judiciary, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 1: Moot Court: Nixon V. United States, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 3: Preview Of The Court's Docket, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 2: Town Meeting: Direction Of The Court, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Legal Interpretation And A Constitutional Case: Home Building & Loan Association V. Blaisdell, Charles A. Bieneman

Michigan Law Review

The approaches of Hughes and Sutherland are but two extremes in constitutional interpretation. Though only two results were possible in the case - either the Act was constitutional or it was not - there are more than two methods by which an interpreter could reach those results. This Note explores possible ways of deciding Blaisdell, using the case as a vehicle for delimiting the boundaries of a positive constitutional command. As a sort of empirical investigation of legal philosophy, the Note examines how various interpretive theories affect an interpreter's approach to the case, and the results these theories might …

Injunctive Relief For Constitutional Violations: Does The Civil Service Reform Act Preclude Equitable Remedies?, Elizabeth A. Wells

Michigan Law Review

This Note argues that the federal courts retain power to furnish equitable relief for constitutional violations to ensure adequate protection of federal employees' rights. Statutory procedures and remedies available under the Civil Service Reform Act of 1978 (CSRA) and related legislation should preempt judicially created equitable relief only where the government or federal agency affirmatively demonstrates that these procedures are constitutionally sufficient. Part I canvasses the current lower court response to the question of preclusion and notes the various routes taken by the courts in inferring congressional intent to preempt. This Part discusses varying interpretations of the Civil Service Reform …

Litigation, E. D'Angelo

California Regulatory Law Reporter

No abstract provided.

Polarized Voting And The Political Process: The Transformation Of Voting Rights Jurisprudence, Samuel Issacharoff

Michigan Law Review

This article attempts to provide an analytic framework for the evolved voting rights law as it confronts the persistent effects of racial factionalism in the electoral arena. Insight into the corrosiveness of racially polarized voting and its frustration of minority electoral opportunity has organized and guided the new voting rights jurisprudence. This article will argue that the combination of process distortions from majority domination of electoral outcomes and substantive deprivation from minority exclusion defines this area of law and protects it against challenge from currently fashionable academic currents. The central insights gathered from the focus on polarized voting, I will …

What Is A Postmodern Constitutionalism?, J. M. Balkin

Michigan Law Review

I begin with a puzzle. It must certainly strike one as odd that the subject of postmodern constitutional law arises at a time when the actual arbiters of the Constitution - the federal judiciary and in particular the Supreme Court of the United States - appear to be more conservative than they have been for many years, and indeed, are likely to remain so for the foreseeable future. Postmodernism is often associated with what is new, innovative, and on the cutting edge of cultural development. Yet if we were to define the elements of a postmodern constitutional culture, it would …

Retroactive Application Of The Civil Rights Act Of 1991 To Pending Cases, Michele A. Estrin

Michigan Law Review

This Note addresses the applicability of the Civil Rights Act of 1991 to cases pending on the Act's date of enactment. Part I discusses current Supreme Court doctrine on the issue. This Part finds that the Court has endorsed two conflicting views on retroactively applying statutes to pending cases and that the lower federal courts consequently lack a principled framework for dealing with retroactivity issues in the 1991 Act. Part II describes the battle over the Civil Rights Acts of 1990 and 1991 and the subsequent confusion over the enacted statute's reach. This Part finds that Congress provided conflicting textual …

Visions Of A Labor Lawyer: The Legacy Of Justice Brennan, B. Glenn George

William & Mary Law Review

No abstract provided.

Do Courts Matter?, Stephen L. Carter

Michigan Law Review

A Review of The Hollow Hope: Ca Courts Bring About Social Change? by Gerald N. Rosenberg

The Supreme Court As Constitutional Interpreter: Chronology Without History, Herbert Hovenkamp

Michigan Law Review

A Review of The Constitution in the Supreme Court: The Second Century, 1888-1986 by David P. Currie

Black Hills/White Justice: The Sioux Nation Versus The United States, Martin J. Lalonde

Michigan Law Review

A Review of Black Hills/White Justice: The Sioux Nation Versus the United States by Edward Lazarus

Legislative Inputs And Gender-Based Discrimination In The Burger Court, Earl M. Maltz

Michigan Law Review

In An Interpretive History of Modem Equal Protection, Michael Klarman poses a powerful challenge to the conventional wisdom regarding the structure of Burger Court jurisprudence. Most commentators have concluded that during the Burger era the Court lacked a coherent vision of constitutional law, and was given to a "rootless" activism or a "pragmatic" approach to constitutional analysis. Klarman argues that, at least in the area of equal protection analysis, the Burger Court's approach did reflect a unifying theme, which he describes as a focus on "legislative inputs." According to Klarman, this approach "directs judicial review towards purging legislative decision-making of …

Balancing Commerce, History, And Geography: Defining The Navigable Waters Of The United States, John F. Baughman

Michigan Law Review

This Note develops a simple set of principles useful for defining navigable waters in a contemporary context. Part I considers why federal admiralty jurisdiction exists, and traces the evolution of the phrase navigable waters as a term of art. Part II analyzes the conflicting contemporary definitions of navigable waters. Part III resolves the conflict by proposing guidelines that address the major concerns of all competing definitions. The system advocated is consistent with the goals of admiralty, constitutionally sound, easy to apply, and focuses attention on the nexus test to resolve the issue of whether particular cases "belong" in admiralty.

Section 1983 And Implied Rights Of Action: Rights, Remedies, And Realism, Michael A. Mazzuchi

Michigan Law Review

This Note criticizes the Court's current reconciliation of the implied right of action and section 1983 inquiries, and argues that the availability of lawsuits under section 1983 should be the same as under an implied right of action test. Part I, by offering a working definition of rights, suggests an approach to identifying statutorily created rights. Part II discusses the evolution of the Court's implied right of action ' jurisprudence, and explores several explanations for the Court's hesitancy to create implied rights of action. Part III examines the influence of the Court's implied right of action test on its jurisprudence …

The Supreme Judicial Court In Its Fourth Century: Meeting The Challenge Of The "New Constitutional Revolution", Charles Baron

Charles H. Baron

In the mid-19th century, when the United States was confronted with daunting changes wrought by its expanding frontiers and the advent of the industrial revolution, its state supreme courts developed the principles of law which facilitated the nation's growth into the great continental power it became. First in influence among these state supreme courts was the Supreme Judicial Court of Massachusetts-whose chief justice, Lemuel Shaw, came widely to be known as "America's greatest magistrate." It is this tradition that the court brings with it as it develops its place in the "new constitutional revolution" presently sweeping our state supreme courts. …

The Failed Discourse Of State Constitutionalism, James A. Gardner

Michigan Law Review

In this article, I approach these questions in two steps. First, I examine the status of state constitutional law as it is practiced today. I conclude that, contrary to the claims of New Federalism, state constitutional law today is a vast wasteland of confusing, conflicting, and essentially unintelligible pronouncements. I argue that the fundamental defect responsible for this state of affairs is the failure of state courts to develop a coherent discourse of state constitutional law that is, a language in which it is possible for participants in the legal system to make intelligible claims about the meaning of state …

Correspondence: The Stuff Of Constitutional Law, Neal Devins

Faculty Publications

No abstract provided.

Litigation, E. D'Angelo

California Regulatory Law Reporter

No abstract provided.

Germany's Legal Protection For Women Workers Vis-À-Vis Illegal Employment Discrimination In The United States: A Comparative Perspective In Light Of Johnson Controls, Carol D. Rasnic

Michigan Journal of International Law

This article will review the major German laws affecting women in the workplace, including clarification of the rationales of the German Bundestag (parliament). Comparative remarks regarding U.S. law and an analysis of Johnson Controls will place the two bodies of law in juxtaposition. Finally, an explanatory historical overview will allow the reader to draw his or her own conclusions as to the preferred view of the legal status of the working woman.

Up In Smoke: Fourth Amendment Rights And The Burger Court, Gerald S. Reamey

Faculty Articles

When Warren Burger was appointed Chief Justice in 1969, he was expected to lead the Supreme Court away from its liberal, value-laden approach to constitutional adjudication. Indeed, a retrospective of the court’s work during the seventeen years Warren Burger served as Chief Justice reveals the expected conservative trend of the Chief Justice himself, as well as the Supreme Court generally. It does not, however, reflect wholesale rejection of the most controversial civil liberties decisions rendered by the Warren Court. It is also unclear that Chief Justice Burger was responsible for the Court’s retrenchment on civil liberties where it did occur. …

A Mirror For The Magistrate, Paul Campos

Publications

No abstract provided.