Law Commons^™

Affirmative Action In Employment: The Legacy Of A Supreme Court Majority, Joel L. Selig

Indiana Law Journal

No abstract provided.

Abusing Standing: Furthering The Conservative Agenda, David A. Domansky

William & Mary Law Review

No abstract provided.

Hard-Core Pornography: A Proposal For A Per Se Rule, Bruce A. Taylor

University of Michigan Journal of Law Reform

Part I of this Article discusses the history and pervasiveness of the pornography problem. Part II explains the current legal test for obscenity, as evolved from Miller v. California, with an emphasis on terms commonly used in the definition of obscenity. Part III examines the problems in applying Miller that suggest that the application of a per se hard-core pornography rule may be appropriate. Finally, Part IV presents a proposal for a per se hard-core pornography rule, similar to child pornography laws existing in many jurisdictions and upheld by the Supreme Court in New York v. Ferber. This Article concludes …

Investigative Detentions For Purposes Of Fingerprinting, David A. Schlueter

Faculty Articles

This article focuses on constitutional issues associated with fingerprinting suspects in investigative detention. Following a series of barracks larcenies, Naval Investigative Service (NIS) investigators fingerprinted approximately 100 servicemembers. All those ordered to report to the NIS office for fingerprinting had been present in the unit at the time of the offenses, and among those was the accused, who was later linked to the crime through his fingerprints. Before the accused reported to the NIS office there was no probable cause or reasonable suspicion to believe that he was in any way involved in the crimes. Were the fingerprints admissible?

United …

Litigation, J. Wheaton

California Regulatory Law Reporter

No abstract provided.

The Right To Speak, The Right To Hear, And The Right Not To Hear: The Technological Resolution To The Cable/Pornography Debate, Michael I. Meyerson

University of Michigan Journal of Law Reform

This Article concludes that the power of government to regulate cable pornography is limited to that which is legally obscene. Part I reviews Supreme Court cases delineating the relationship between the rights of privacy in the home and of freedom of speech. Part II demonstrates that the technology of cable television provides the solution to the pornography dilemma. Cable television preserves both privacy and speech interests because individual subscribers can be given the physical means to block out programming they find personally offensive without affecting the ability of others to receive that programming. Where such accommodation of interests is permissible, …

When Soldiers Are Defendants, David A. Schlueter

Faculty Articles

In O’Callahan v. Parker, the U.S. Supreme Court adopted a “service connection” requirement for court-martial subject matter jurisdiction. For almost two decades that requirement caused numerous problems of interpretation and application. In Solorio v. United States, the Court overruled its decision in O’Callahan. While assigned to a Coast Guard unit in Juneau, Alaska, the accused committed numerous acts of sexual abuse against two minor daughters of other Coast Guard members. The crimes were not discovered, however, until after he had been transferred to Governors Island, New York, where he committed additional acts of sexual abuse on other daughters of Coast …

Schiavone: An Un-Fortune-Ate Illustration Of The Supreme Court's Role As Interpreter Of The Federal Rules Of Civil Procedure, Joseph P. Bauer

Journal Articles

Let me identify the two basic theses of this paper. First, I believe that in the recent Schiavone v. Fortune case, the Supreme Court gave the Federal Rule of Civil Procedure under consideration there, Rule 15(c), an unduly restrictive reading. In this, the fiftieth year of the effective date of the Rules, it is particularly unfortunate to see any of the Rules given an unnecessarily grudging interpretation. My second assertion is that as a general matter, in interpreting the Federal Rules, courts should recognize that their role is different from the one they play in interpreting statutes or in applying …

State-Interest Analysis In Fourteenth-Amendment "Privacy" Law: An Essay On The Constitutionalization Of Social Issues, Carl E. Schneider

Articles

Asked to resolve a social issue, Americans today turn readily to rights and to the Constitution that is understood to embody them. Many "vice" issues have long been thought particularly apt for a rights analysis. A constitutional resolution of vice issues is therefore inevitably a possibility, and its wisdom is inevitably a question. In this essay, I want to address that question by investigating an area of the law that has been recently constitutionalized family law. Family law is an example worth studying because rights thinking has won a considerable prominence in it: The Constitution has been used to transform …

Making Uncle Sam Pay: A Review Of Equal Access To Justice Act Cases In The Sixth Circuit, 1983-1987, Martin Geer, Paul D. Reingold

Articles

Despite the recent admonition of the Supreme Court that a "request for attorneys' fees should not result in a second major litigation,"12 the courts have been frequently called on to interpret the often ambiguous language of the EAJA. The U.S. Court of Appeals for the Sixth Circuit has not been spared this difficult chore. While the 1985 amendments have clarified some provisions of the Act and affected some major decisions in the Sixth Circuit, the recent changes have also left other previously settled areas in a state of flux. This article will review the Sixth Circuit's EAJA decisions from 1983-1987, …

Prevention Of Antiunion Discrimination In The United States, Theodore J. St. Antoine

Articles

Nearly all rank-and-file employees in private businesses of any substantial size in the United States are protected by federal law against antiunion discrimination. The Railway Labor Act applies to the railroad and airline industries. The National Labor Relations Act (NLRA) applies to all other businesses whose operations "affect [interstate] commerce" in almost any way. Supervisory and managerial personnel, domestic servants, and agricultural workers are excluded from this federal scheme. Separate federal law covers the employees of the federal government. About thirty of the fifty states have statutes ensuring the right to organize on the part of some or most of …

Deferral To Arbitration And Use Of External Law In Arbitration, Theodore J. St. Antoine

Articles

proper definition of the appropriate roles of arbitrators, administrative agencies and the courts depends in great part on the notion that, generally speaking, in labor relations, the interpretation and application of contracts is for arbitrators, and the interpretation and application of statutes is for the administrative agencies and the courts. Arbitrators deal primarily with contract rights and administrative agencies, like the NLRB and the courts, deal primarily with statutory rights. If that distinction is maintained, the problems of deferral to arbitration and the use of external law in arbitration can be more easily resolved.

Federal Funds To Religious Groups: Where Are The First Amendment Boundaries?, Neal Devins

Faculty Publications

No abstract provided.

The Role Of The Legislative And Executive Branches In Interpreting The Constitution, Robert Nagel

Publications

No abstract provided.

Civil Rule 52(A): Rationing And Rationalizing The Resources Of Appellate Review, Edward H. Cooper

Articles

My text is a single and rather simple sentence from Rule 52(a) of the Federal Rules of Civil Procedure: Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. My theme is equally simple.. Rule 52(a) serves a vital institutional role in allocating the responsibility and the power of decision between district courts and the courts of appeals. The "dearly erroneous" standard of appellate review established by the Rule is a …

Civil Rights In Transition: Sections 1981 And 1982 Cover Discrimination On The Basis Of Ancestry And Ethnicity, Eileen Kaufman, Martin A. Schwartz

Touro Law Review

No abstract provided.

The 1986 And 1987 Affirmative Action Cases: It's All Over But The Shouting, Herman Schwartz

Michigan Law Review

For the moment, the affirmative action wars are over. In a ten-year set of decisions, culminating in five during the last two terms, the Court has now legitimated almost all types of race and gender preferences, even if they benefit nonvictims, including voluntarily adopted preferences in hiring, promotion, university admissions, and government contracting; hiring and promotion preferences in consent decrees; and court-ordered hiring and promotions. It has approved preferences by both public and private bodies, and for both racial-ethnic minorities and women. It has barred only layoffs of white (and presumably male) employees who have more seniority than employees hired …

'Comparative Reprehensibility' And The Fourth Amendment Exclusionary Rule, Yale Kamisar

Articles

It is not . . . easy to see what the shock-the-conscience test adds, or should be allowed to add, to the deterrent function of exclusionary rules. Where no deterrence of unconstitutional police behavior is possible, a decision to exclude probative evidence with the result that a criminal goes free to prey upon the public should shock the judicial conscience even more than admitting the evidence. So spoke Judge Robert H. Bork, concurring in a ruling that the fourth amendment exclusionary rule does not apply to foreign searches conducted exclusively by foreign officials. A short time thereafter, when an interviewer …

Dormant Commerce Clause Claims Under 42 U.S.C. § 1983: Protecting The Right To Be Free Of Protectionist State Action, Gregory A. Kalscheur

Michigan Law Review

This Note will attempt to show that some commerce clause violations should give rise to cognizable section 1983 claims. Two fundamental questions will be addressed: Is the commerce clause the source of any "rights, privileges, or immunities secured by the Constitution?" and if so, Does section 1983 protect whatever "rights, privileges, or immunities" grow out of the commerce clause? Part I will describe the present status of authority on this issue and argue that none of the conflicting opinions have adequately addressed the fundamental questions involved. Part II will demonstrate that the commerce clause does indeed protect a "right[], privilege[ …

Law Dean Opposes Bork's Bid

Bryant Garth (1986-1987 Acting; 1987-1990)

No abstract provided.

Hawaii And The United States Supreme Court: Three Cases On Law, History, And The United States Constitution, William E. H. Tagupa

Pacific Studies

No abstract provided.

Disorder In The Court: The Death Penalty And The Constitution, Robert A. Burt

Michigan Law Review

This article has two purposes. Its first aim is to trace the significance of these shifting characterizations of American society in the Justices' successive approaches to the death penalty by retelling the story of the Court's capital punishment jurisprudence. Its second purpose is to suggest that belief in implacable social hostility destroys the coherence of the judicial role in constitutional adjudication. America may indeed be an irreconcilably polarized society; I cannot dispositively prove or disprove the proposition. I mean only to claim that in constitutional adjudication a judge is obliged to act as if this proposition were false; and, moreover, …

The Excessive History Of Federal Rule 15(C) And Its Lessons For Civil Rules Revision, Harold S. Lewis Jr.

Michigan Law Review

This case study of one Federal Rule of Civil Procedure is designed to suggest affirmative answers to these questions. My focus is on the surprisingly extensive body of case law, culminating in the Supreme Court's 1986 decision in Schiavone v. Fortune, that parses the second sentence of Federal Rule 15(c). Added in 1966, that sentence attempts to set standards for the relation back of party-changing amendments to pleadings. A more prototypically pedestrian, less prepossessing topic of the traditionalist type could scarcely be imagined. Yet a review of its history brings larger points into sharp relief: something is seriously amiss in …

Restricting Adult Access To Material Obscene As To Juveniles, Ann H. Coulter

Michigan Law Review

This Note considers whether state regulations that restrict juvenile access to material that is obscene as to minors unconstitutionally encroach upon the first amendment rights of adults. Part I briefly describes the Court's opinion in Ginsberg. Part II introduces the "O'Brien analysis" and discusses the aspects of juvenile access restrictions that tend to make O'Brien scrutiny applicable. In this context the frequently relaxed judicial review of governmental restrictions on sexually related material will be discussed. Having concluded that the O'Brien analysis is applicable to access restrictions, Part III applies the test and ultimately concludes that juvenile access restrictions survive …

Legality And Empathy, Lynne N. Henderson

Michigan Law Review

This article rejects the assumption that legality - by which I mean the dominant belief system about the Rule and role of Law - and empathy are mutually exclusive concepts. Failure to recognize the phenomenon of empathy explicitly in legal decisions more generally may result from a fear of the emotional realm as irrational, rather than a rational. It may stem from a belief that the divide between "subject" and "object" is uncrossable. The resistance to empathy may be attributable to the adversarial ideology acquired during law school understanding the adversary is not important unless it serves one's instrumental …

Litigation, J. Wheaton

California Regulatory Law Reporter

No abstract provided.

The Hermeneutics Of Indian Law, Robert A. Williams Jr.

Michigan Law Review

A Review of American Indians, Time, and the Law: Native Societies in a Modern Constitutional Democracy by Charles F. Wilkinson

The Rise Of Modern Judicial Review: From Constitutional Interpretation To Judge-Made Law, Ward A. Greenberg

Michigan Law Review

A Review of The Rise of Modern Judicial Review: From Constitutional Interpretation to Judge-Made Law by Christopher Wolfe

Storm Center: The Supreme Court In American Politics, Nelson P. Miller

Michigan Law Review

A Review of Storm Center: The Supreme Court in American Politics by David M. O'Brien

Psychiatric Assistance For Indigent Defendants Pleading Insanity: The Michigan Experience, Paul Zisla

University of Michigan Journal of Law Reform

The federal government and many states already provide psychiatric assistance to indigent defendants pleading insanity. Michigan's statutory scheme for delivering this service presents an opportunity to evaluate an approach that generally favors defendant interests in areas left unresolved by Ake. This Note undertakes that evaluation. Part I summarizes the Ake decision, key problem areas, and the research methodology. Part II describes the Michigan statutory system. Part III evaluates that system using data from interviews with legal and psychiatric practitioners and considers the consequences of Michigan's approach to the issues posed by Ake. The evaluation shows that Michigan's system …