Law Commons^™

The New East European Constitutional Courts, Herman Schwartz

Michigan Journal of International Law

This article will describe some aspects of the different tribunals in Russia, Hungary, Poland, Czechoslovakia, Bulgaria, and Romania, and will compare them with each other and with the U.S. Supreme Court. The first part will begin by explaining a few basic differences between the American and Continental systems of judicial review, and will then describe the functions of the new East European constitutional courts. The second part will use the decisions of the new Russian Constitutional Court to illustrate the new courts' exercise of authority, and will summarize the recent activities of a few other new constitutional courts.

Erisa And The Bankruptcy Code: Stepping Into Quicksand Or Something Else, Post Mackey, Maria A. Di Pippo, Gerald P. Wolf

Touro Law Review

No abstract provided.

Compensatory And Punitive Damages For A Personal Injury: To Tax Or Not To Tax, Douglas A. Kahn

Articles

Since the adoption in 1919 of the Revenue Act of 1918, damages received on account of personal injuries or sickness have been excluded by statute from gross income.1 This exclusion, which does not apply to reimbursements for medical expenses for which the taxpayer was previously allowed a tax deduction,2 is presently set forth in section 104(a)(2). One might expect that a provision having recently attained the ripe age of 75 years without change in its basic language would have a settled meaning. However, recent litigation under section 104(a)(2) bristles with unsettled issues. Does the exclusion apply to punitive damages? To …

An Asymmetrical Approach To The Problem Of Peremptories?, Richard D. Friedman

Articles

The Supreme Court's decision in Batson v. Kentucky, and the extension of Batson to parties other than prosecutors, may be expected to put pressure on the institution of peremptory challenges. After a brief review of the history of peremptories, this article contends that peremptories for criminal defendants serve important values of our criminal justice system. It then argues that peremptories for prosecutors are not as important, and that it may no longer be worthwhile to maintain them in light of the administrative complexities inevitable in a system of peremptories consistent with Batson. The article concludes that the asymmetry of allowing …

Divided Justice: A Commentary On The Nomination And Confirmation Of Justice Thomas, Michael J. Gerhardt

Faculty Publications

No abstract provided.

A Mirror For The Magistrate, Paul Campos

Publications

No abstract provided.

Correspondence: The Stuff Of Constitutional Law, Neal Devins

Faculty Publications

No abstract provided.

Supreme Court Philosophy On Labor And Employment Issues, Theodore J. St. Antoine

Other Publications

It would not take a confirmed cynic to suggest that the title of this paper amounts to an oxymoron. That soft-hearted but tough-minded commentator, Florian Bartosic, and his collaborator, Gary Minda, came close to putting it in so many words: " [T]he Supreme Court lacks a consistent and coherent theory of labor law" (1982). My own view is somewhat different. First, lack of a consistent judicial philosophy is not all bad; at least it is better than a consistently wrong philosophy. Second, the vacillating theories of the Supreme Court tend to reflect the divergent attitudes of American society toward labor …

Exit: Power And The Idea Of Leaving In Love, Work, And The Confirmation Hearings, Martha R. Mahoney

Articles

No abstract provided.

Guilt: Henry Friendly Meets The Maharal Of Prague, Irene Merker Rosenberg, Yale L. Rosenberg

Michigan Law Review

So while the overnight deliberation rule is at least partially bound up with the question of reliability and relates to the judicial process itself, the broader and more fundamental issue raised by this law is whether we should free the guilty to preserve a value that we deem necessary to proper working of the criminal justice process, regardless of the culpability of individual defendants. To this Judge Friendly's answer is generally no, 113 and the MaHaRaL's is yes.

Misuse Of The Antitrust Laws: The Competitor Plaintiff, Edward A. Snyder, Thomas E. Kauper

Michigan Law Review

In this article we ask (1) under what circumstances are competitor suits meritorious, and (2) do existing rules, such as those requiring proof of market power or other so-called filters and the requirement that plaintiffs suffer "antitrust injury," afford a reasonable prospect of eliminating anticompetitive misuses of the remedy by competitor plaintiffs? We evaluate a sample of seventy-four cases in which plaintiffs sued their rivals to learn how competitor plaintiffs use the private antitrust remedy. And because many of these cases allege anticompetitive exclusionary practices, we consider how recent theories of exclusionary practices may be used to support competitor claims. …

The Breath Of The Unfee'd Lawyer: Statutory Fee Limitations And Ineffective Assistance Of Counsel In Capital Litigation, Albert L. Vreeland Ii

Michigan Law Review

This Note argues that fee limitations deprive indigent defendants of their right to effective assistance of counsel. Part I of this Note reviews state court decisions that address Sixth Amendment challenges to fee limitations, yet fail to address the broader concerns about the appointed counsel system. Part II considers the inherent disincentives and burdens fee limitations impose on attorneys and suggests that the limits threaten the indigent accused's right to effective assistance of counsel. A comparison of the fee limitations and the time required to prepare and try a capital case reveals the gross inadequacy of statutory fee provisions. In …

An Interpretive History Of Modern Equal Protection, Michael Klarman

Michigan Law Review

My enterprise here is to write a limited history of modem equal protection - one that will facilitate understanding of the important conceptual shifts that have occurred over time. By "modem" I mean the period following the switch-in-time in 1937 that signaled the demise of the Lochner era. By "limited" I mean an account that falls substantially short of a full-scale history of equal protection, which would, for example, necessarily encompass a good deal of political and social history. My aim here, rather, is to tell a story about the evolution of equal protection as a legal concept; I shall, …

Litigation, E. D'Angelo

California Regulatory Law Reporter

No abstract provided.

Paradox And Pandora's Box: The Tragedy Of Current Right-To-Die Jurisprudence, Cathaleen A. Roach

University of Michigan Journal of Law Reform

Part I of this Article examines the trilogy of recent right-to-die cases and contrasts the results of those cases with recent national opinion polls and statistical surveys of the issue. Part II examines federal and state legislative responses to the debate. It suggests that both the courts and legislatures are out of sync with an emerging national consensus on the death-with- dignity debate. In fact, the federal legislative response may only exacerbate the problem. Instead of creating new rights, it feeds individuals into the existing state network, which is a quagmire of confusing and inequitable statutory provisions. Part III examines …

Litigation, E. D'Angelo, R. Fellmeth, V. Rabago

California Regulatory Law Reporter

No abstract provided.

A Rule Unvanquished: The New Value Exception To The Absolute Priority Rule, Clifford S. Harris

Michigan Law Review

This Note examines whether the new value exception remains part of the revised Bankruptcy Code. Part I discusses the background of the new value exception. Part II traces the development of the conflict concerning the survival of the new value exception subsequent to the adoption of the Code. It then discusses the Supreme Court's opinions in Mid/antic National Bank v. New Jersey Department of Environmental Protection and its progeny, which established the methodology for determining the impact of the revised Bankruptcy Code on preexisting bankruptcy law. Based on an analysis of the Midlantic doctrine, Part II concludes that Congress did …

Rutan V. Republican Party Of Illinois And Patronage Employment Practices: Clarification Or Confusion?, David Herman

Northern Illinois University Law Review

This recent United States Supreme Court decision determined that hiring, rehiring after layoffs, promotions, and transfers based on political affiliation or support, were impermissible infringements on a public employees' first amendment rights. This note examines the conflicting cases prior to Rutan, the Rutan decision, and the implications the decision will have in the area of political patronage employment practices. The author concludes that Rutan clarifies the scope of the First Amendment protection given employees from patronage practices but fails to clarify who is to receive the protection and suggests that the traditional "confidential or policymaking" test be modified.

Litigation, E. Angelo, J. Miller, V. Rabago

California Regulatory Law Reporter

No abstract provided.

Actual Malice: Twenty-Five Years After Times V. Sullivan, David G. Wille

Michigan Law Review

A Review of Actual Malice: Twenty-Five Years After Times v. Sullivan. by W. Wat Hopkins

Abe Fortas: A Biography, Michael F. Colosi

Michigan Law Review

A Review of Abe Fortas: A Biography by Laura Kalman

Judicial Power And Reform Politics: The Anatomy Of Lochner V. New York, Charles A. Beineman

Michigan Law Review

A Review of Judicial Power and Reform Politics: The Anatomy of Lochner v. New York. By Paul Kens

The Enduring Example Of John Marshall Harlan: "Virtue As Practice" In The Supreme Court, William W. Van Alstyne

Faculty Publications

No abstract provided.

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 …

Banning The Buttons: Employer Interference With The Right To Wear Union Insignia In The Workplace, John W. Teeter Jr

Faculty Articles

The right for workers to wear union insignia without fear of retaliation in the workplace has been constricted, undermined, and jeopardized by judicial and National Labor Relations Board (“Board”) decisions. As a consequence, at least three problems arise: (1) litigation over this issue increases as the law becomes increasingly opaque; (2) workers are wrongfully denied the opportunity to proclaim their union sympathies; and (3) the Board and courts send an implicit message that the freedom to express union support is a second-class right that employers may override by offering a pretextual justification. This subordination of the right to wear union …

Teaching Transformative Jurisprudence (Film Review), Vincent R. Johnson

Faculty Articles

The Road to Brown is a film that deals with the transformative judicial ruling of Brown v. Board of Education. Many regard this case as the most important holding ever made by a United States court. The Road to Brown offers law professors a superb vehicle for bringing to the classroom the attention to persons, sense of history, and focus on litigation strategy that a great decision demands.

The Road to Brown provides a rich socio-legal-historical perspective on the events that culminated in the 1945 Supreme Court ruling barring racial segregation in public elementary schools. The program blends together photographs, …

To Tell What We Know Or Wait For Godot?, Phoebe C. Ellsworth

Articles

Professor Elliott raises two questions about the American Psychological Association's practice of submitting amicus briefs to the courts. First, are our data sufficiently valid, consistent, and generalizable to be applicable to the real world issues? Second, are amicus briefs adequate to communicate scientific findings? The first of these is not a general question, but must be addressed anew each time the Association considers a new issue. An evaluation of the quality and sufficiency of scientific knowledge about racial discrimination, for example, tells us nothing at all about the quality and sufficiency of scientific knowledge about sexual abuse. "Are the data …

Ex Proprio Vigore, James J. White

Articles

The National Conference of the Commissioners on Uniform State Laws (NCCUSL) is a legislature in every way but one. It drafts uniform acts, debates them, passes them, and promulgates them, but that passage and promulgation do not make these uniform acts law over any citizen of any state. These acts become the law of the various states only ex proprio vigore - only if their own vitality influences the legislators of the various states to pass them.

Gender Based Peremptory Challenges And The New York State Constitution, Frederick T. Kelsey

Touro Law Review

No abstract provided.

On The Road Of Good Intentions: Justice Brennan And The Religion Clauses, Michael S. Ariens

Faculty Articles

Associate Supreme Court Justice William J. Brennan took the oath of office on October 16, 1956. At the time of Justice Brennan’s appointment to the Supreme Court, the Court had decided only a few cases involving the religion clauses of the first amendment, and judicial interpretation of the religion clauses had been sparing.

In the thirty-four years of Justice Brennan’s tenure, the Court worked several revolutions in religion clause jurisprudence—revolutions guided by a sense of the needs of a changing society. Justice Brennan was one of several architects of a new order in establishment clause interpretation, and was the architect …