Law Commons^™

When Big Brother Becomes “Big Father”: Examining The Continued Use Of Parens Patriae In State Juvenile Delinquency Proceedings, Emily R. Mowry

Dickinson Law Review (2017-Present)

The U.S. Constitution grants American citizens numerous Due Process rights; but, historically, the Supreme Court declined to extend these Due Process rights to children. Initially, common-law courts treated child offenders over the age of seven in the same manner as adult criminals. At the start of the 20th century, though, juvenile reformers assisted in creating unique juvenile courts that used the parens patriae doctrine and viewed children as delinquent youths in need of judicial parental guidance rather than punishment. Later, starting in 1967, the Supreme Court released multiple opinions extending certain constitutional Due Process rights to children in juvenile delinquency …

Deterrence, David Crump

St. Mary's Law Journal

Abstract forthcoming

Punishment Without Purpose: The Retributive And Utilitarian Failures Of The Child Pornography Non-Production Sentencing Guidelines, Brittany Lowe

Cleveland State Law Review

Pursuant to the Sentencing Reform Act of 1984, Congress established the U.S. Sentencing Commission to formulate an empirical set of federal sentencing Guidelines. With the U.S. Sentencing Guidelines, Congress intended to further the basic purposes of criminal punishment—deterrence, incapacitation, just punishment, and rehabilitation. Nevertheless, the Guidelines were instantaneously met with disapproval. Asserting that the mandatory Guidelines violated the Constitution, scholars and judges argued that the Commission usurped Congress’s role by prescribing punishments that were essentially binding law. In 2005, the Supreme Court held that the Guidelines were discretionary in United States v. Booker.

While this decision resolved many of …

It Is Time For Washington State To Take A Stand Against Holmes's Bad Man: The Value Of Punitive Damages In Deterring Big Business And International Tortfeasors, Jackson Pahlke

University of Michigan Journal of Law Reform

In Washington State, tortfeasors get a break when they commit intentional torts. Instead of receiving more punishment for their planned bad act, intentional tortfeasors are punished as if they committed a mere accident. The trend does not stop in Washington State—nationwide, punitive damage legislation inadequately deters intentional wrongdoers through caps and outright bans on punitive damages. Despite Washington State’s one hundred and twenty-five year ban on punitive damages, it is in a unique and powerful position to change the way courts across the country deal with intentional tortfeasors. Since Washington has never had a comprehensive punitive damages framework, and has …

The Death Knell For The Death Penalty: Judge Carney's Order To Kill Capital Punishment Rings Loud Enough To Reach The Supreme Court, Alyssa Hughes

Loyola of Los Angeles Law Review

No abstract provided.

Standing In The Way Of The Ftaia: Exceptional Applications Of Illinois Brick, Jennifer Fischell

Michigan Law Review

In 1982, Congress enacted the Foreign Antitrust Trade Improvements Act (FTAIA) to resolve uncertainties about the international reach and effect of U.S. antitrust laws. Unfortunately, the FTAIA has provided more questions than answers. It has been ten years since the Supreme Court most recently interpreted the FTAIA, and crucial questions and circuit splits abound. One of these questions is how to understand the convergence of the direct purchaser rule (frequently referred to as the Illinois Brick doctrine) and the FTAIA. Under the direct purchaser rule, only those who purchase directly from antitrust violators are typically permitted to sue under section …

Dismissing Deterrence, Ellen D. Katz

Articles

The proposed Voting Rights Amendment Act of 20144 (VRAA)[...]’s new criteria defining when jurisdictions become subject to preclearance are acutely responsive to the concerns articulated in Shelby County[ v. Holder]. The result is a preclearance regime that, if enacted, would operate in fewer places and demand less from those it regulates. This new regime, however, would not only be more targeted and less powerful, but, curiously, more vulnerable to challenge. In fact, the regime would be more vulnerable precisely because it is so responsive to Shelby County. Some background will help us see why.

South Carolina's 'Evolutionary Process', Ellen D. Katz

Articles

When Congress first enacted the Voting Rights Act (VRA) in 1965, public officials in South Carolina led the charge to scrap the new statute. Their brief to the Supreme Court of the United States described the VRA as an “unjustified” and “arbitrary” affront to the “Equality of Statehood” principle, and a “usurp[ation]” of the State’s legislative and executive functions. Not surprisingly, the Warren Court was unpersuaded and opted instead to endorse broad congressional power to craft “inventive” remedies to address systematic racial discrimination and to “shift the advantage of time and inertia from the perpetrators of evil to its victims.” …

Shelby County V. Holder: Why Section 2 Matters, Ellen D. Katz

Articles

Editor’s Note: Professor Ellen D. Katz writes and teaches about election law, civil rights and remedies, and equal protection. She and the Voting Rights Initiative at Michigan Law filed a brief as amicus curiae in Shelby County v. Holder, on which the U.S. Supreme Court heard oral arguments February 27. Here, she examines why Section 2 of the Voting Rights Act bears consideration in the case, which involves a challenge to Section 5 of the act.

A Cure Worse Than The Disease?, Ellen D. Katz

Articles

The pending challenge to section 5 of the Voting Rights Act insists the statute is no longer necessary. Should the Supreme Court agree, its ruling is likely to reflect the belief that section 5 is not only obsolete but that its requirements do more harm today than the condition it was crafted to address. In this Essay, Professor Ellen D. Katz examines why the Court might liken section 5 to a destructive treatment and why reliance on that analogy in the pending case threatens to leave the underlying condition unaddressed and Congress without the power to address it.

A Financial Economic Theory Of Punitive Damages, Robert J. Rhee

Michigan Law Review

This Article provides a financial economic theory of punitive damages. The core problem, as the Supreme Court acknowledged in Exxon Shipping Co. v. Baker, is not the systemic amount of punitive damages in the tort system; rather it is the risk of outlier outcomes. Low frequency, high severity awards are unpredictable, cause financial distress, and beget social cost. By focusing only on offsetting escaped liability, the standard law and economics theory fails to account for the core problem of variance. This Article provides a risk arbitrage analysis of the relationship between variance, litigation valuation, and optimal deterrence. Starting with settlement …

Unfit For Prime Time: Why Cable Television Regulations Cannot Perform Trinko's 'Antitrust Function', Keith Klovers

Michigan Law Review

Until recently, regulation and antitrust law operated in tandem to safeguard competition in regulated industries. In three recent decisions-Trinko, Credit Suisse, and Linkline-the Supreme Court limited the operation of the antitrust laws when regulation "performs the antitrust function." This Note argues that cable programming regulations-which are in some respects factually similar to the telecommunications regulations at issue in Trinko and Linkline-do not perform the antitrust function because they cannot deter anticompetitive conduct. As a result, Trinko and its siblings should not foreclose antitrust claims for damages that arise out of certain cable programming disputes.

The Need To Overrule Mapp V. Ohio, William T. Pizzi

Publications

This Article argues that it is time to overrule Mapp v. Ohio. It contends that the exclusionary rule is outdated because a tough deterrent sanction is difficult to reconcile with a criminal justice system where victims are increasingly seen to have a stake in criminal cases. The rule is also increasingly outdated in its epistemological assumption which insists officers act on "reasons" that they can articulate and which disparages actions based on "hunches" or "feelings." This assumption runs counter to a large body of neuroscience research suggesting that humans often "feel" or "sense" danger, sometimes even at a subconscious …

Minority Practice, Majority's Burden: The Death Penalty Today, James S. Liebman, Peter Clarke

Faculty Scholarship

Although supported in principle by two-thirds of the public and even more of the States, capital punishment in the United States is a minority practice when the actual death-sentencing practices of the nation's 3000-plus counties and their populations are considered This feature of American capital punishment has been present for decades, has become more pronounced recently, and is especially clear when death sentences, which are merely infrequent, are distinguished from executions, which are exceedingly rare.

The first question this Article asks is what forces account for the death-proneness of a minority of American communities? The answer to that question – …

Stoneridge Investment Partners V. Scientific-Atlanta: The Political Economy Of Securities Class Action Reform, Adam C. Pritchard

Articles

I begin in Part II by explaining the wrong turn that the Court took in Basic. The Basic Court misunderstood the function of the reliance element and its relation to the question of damages. As a result, the securities class action regime established in Basic threatens draconian sanctions with limited deterrent benefit. Part III then summarizes the cases leading up to Stoneridge and analyzes the Court's reasoning in that case. In Stoneridge, like the decisions interpreting the reliance requirement of Rule 10b-5 that came before it, the Court emphasized policy implications. Sometimes policy implications are invoked to broaden the reach …

Awarding Attorney's Fees To Pro Se Litigants Under Rule 11, Jeremy D. Spector

Michigan Law Review

Among the myriad rules and statutes designed to curb litigation abuse, Rule 11 of the Federal Rules of Civil Procedure ("FRCP") is "the most widely used and most controversial of the sanctions rules." The increased use of Rule ll during the last fifteen years and the recent proliferation of fee-shifting provisions in federal statutes4 have led to an onslaught of motions for attorney's fees in the federal district courts. Simultaneously, these courts are seeing an increasing number of pro se litigants appear before them. The confluence of these two trends has produced the seemingly paradoxical result of pro se parties …

Evaluating The Fourth Amendment Exclusionary Rule: The Problem Of Police Compliance With The Law, William C. Heffernan, Richard W. Lovely

University of Michigan Journal of Law Reform

Part I of this article reviews background matters bearing on our research - in particular, we discuss the Court's framework for analyzing exclusion as a deterrent safeguard, the research questions that need to be raised within that framework, and the research strategy we adopted in light of the Court's approach to exclusion. Part II analyzes our findings on police knowledge of the rules of search and seizure. Part III analyzes our findings on officers' willingness to obey the law. Part IV evaluates our findings in light of policy questions concerning the exclusionary rule. We consider whether the Court should retain …

Unpleasant Facts: The Supreme Court's Response To Empirical Research On Capital Punishment, Phoebe C. Ellsworth

Book Chapters

Slowly at first, and then with accelerating frequency, the courts have begun to examine, consider, and sometimes even require empirical data. From 1960 to 1981, for example, use of the terms "statistics" and "statistical" in Federal District and Circuit Court opinions increased by almost 15 times.1 Of course, citation rates indicate only that a topic is considered worthy of mention, not that it is taken seriously, or even understood. Nonetheless, in a number of areas, such as jury composition and employment discrimination, the courts have come to rely on empirical data as a matter of course.

In the last 25 …

The Reincarnation Of The Death Penalty: Is It Possible?, Yale Kamisar

Articles

Fifty years ago Clarence Darrow, probably the greatest criminal defense lawyer in American history and a leading opponent of capital punishment, observed: The question of capital punishment has been the subject of endless discussion and will probably never be settled so long as men believe in punishment. Some states have abolished and then reinstated it; some have enjoyed capital punishment for long periods of time and finally prohibited the use of it. The reasons why it cannot be settled are plain. There is first of all no agreement as to the objects of punishment. Next there is no way to …