Law Commons^™

Case Selection In The United States Supreme Court, Michigan Law Review

Michigan Law Review

A Review of Case Selection in the United States Supreme Court by Doris Marie Provine

The Role Of Law, Theodore J. St. Antoine

Book Chapters

In the early New Deal days, workers' placards in the coal fields proudly proclaimed, "President Roosevelt wants you to join the union." If not literally true, that boast was well within the bounds of poetic license. After the brief interval of federal laissez-faire treatment of labor relations ushered in by the Norris-La Guardia Act of 1932, the National Labor Relations (Wagner) Act of 1935 declared the policy of the United States to be one of "encouraging the practice and procedure of collective bargaining." Employers, but not unions, were forbidden to coerce or discriminate against employees because of their organizational activities. …

Rule 3, The Enabling Act, And Statutes Of Limitations, David A. Dittfurth

Faculty Articles

Rule 3 of the Federal Rules of Civil Procedure appears to be a model of simplicity and clarity. It describes the process for commencement of a civil action, and in defining “commencement” appears to provide guidance on how to begin an action which complies with a statute of limitations.

As a result of the decision in Walker v. Armco Steel Corp., that appearance is misleading regarding state statutes of limitations applicable in federal court actions brought on the basis of diversity of citizenship jurisdiction. There, the Court made reference only to state statutes of limitations, and expressly avoided deciding the …

Potter Stewart, Terrance Sandalow

Articles

In the spring of 958, Justice Harold Burton informed President Eisenhower of his decision to retire at the end of the Term, but, at the President's request, withheld public announcement until the latter was ready to name a successor. In September, Eisenhower appointed Potter Stewart, who became, at age forty-three, the second youngest person to serve on the Supreme Court since the Civil War.

Constitutional Interpretation, Terrance Sandalow

Articles

"[We] must never forget," Chief Justice Marshall admonished us in a statement pregnant with more than one meaning, "that it is a constitution we are expounding."' Marshall meant that the Constitution should be read as a document "intended to endure for ages.to come, and, consequently, to be adapted to the various crises of human affairs."'2 But he meant also that the construction placed upon the document must have regard for its "great outlines" and "important objects."'3 Limits are implied by the very nature of the task. There is not the same freedom in construing the Constitution as in constructing a …

A Comment On The Burger Court And "Judicial Activism", Robert F. Nagel

Publications

No abstract provided.

Stock Redemptions: The Standards For Qualifying As A Purchase Under Section 302(B)., Douglas A. Kahn

Articles

This Article discusses the requirements of section 302(b) for characterizing a stock redemption as a purchase rather than as a dividend equivalent. The focus is primarily on two issues: (1) whether the election authorized by section 302(c)(2) to waive family attribution rules should be available to an entity such as a trust or estate; and (2) the determination of the standards to be applied in resolving whether a redemption is "not essentially equivalent to a dividend" so that section 302(b)(1) is applicable.

The Distrust Of Politics, Terrance Sandalow

Articles

In this Article, Dean Sandalow considers the justifications advanced by those who favor the removal of certain political issues from the political process by extending the reach of judicial review. He begins by examining the distrust of politics in a different context, discussing the proposals made by the Progressives for reforming municipal government, as a vehicle to expose the assumptions underlying the current debate. His comparison of the two historical settings reveals many similarities between the Progressives' reform proposals and the contemporary justiflcations.[or the displacement of politics with constitutional law. Dean Sandalow concludes that the distrust of politics rests not …

The Supreme Court And Press Fashions, Robert Mason

William & Mary Law Review

No abstract provided.

State Income Taxation Of Multijurisdictional Corporations: Reflections On Mobil, Exxon, And H.R. 5076, Walter Hellerstein

Michigan Law Review

The purpose of this Article is twofold: first, to analyze the Mobil and Exxon decisions; second, to consider the congressional reaction they may engender. Because the terrain that this Article covers may be unfamiliar to some readers, a few further words of introduction may be appropriate.

Taken together, the Mobil and Exxon decisions dealt with the three methods of dividing a multijurisdictional corporation's income among the states - specific allocation, separate accounting and apportionment by formula. Each method provides a different solution to the problem of determining the portion of the income of multistate businesses that should be taxable by …

Constitutional Torts, Christina B. Whitman

Articles

In this Article, I analyze the significance of the overlap between state tort law remedies and remedies under section 1983. I conclude that the dissatisfaction with section 1983 cannot fairly be attributed to the fact that it has been read to provide a remedy that "supplements" state law. I argue that most of the anxiety over constitutional damage actions under section 1983 can be understood - and resolved - only by focusing on two other questions. The first of these concerns the appropriate reach of the Constitution. Ambivalence about section 1983 reflects, in part, a fear that the federal Constitution …

The Involuntary Public Figure Class Of Gertz V. Robert Welch: Dead Or Merely Dormant?, Dale K. Nichols

University of Michigan Journal of Law Reform

This article does not resolve the debate over involuntary public figures but argues instead that in light of the Court's pronouncements in Firestone, Hutchinson and Walston, the involuntary class should be abolished. Part I briefly traces the evolution and significance of public figure status in defamation law, and reviews various interpretations of the involuntary public figure references in Gertz. Part II examines the status of the involuntary class after Firestone, Hutchinson and Walston, and discusses the extent to which future use of the class remains logically consistent with those decisions. Finally, the article considers the merits of …

Incapacitating The Habitual Criminal: The English Experience, Sir Leon Radzinowicz, Roger Hood

Michigan Law Review

In this Article, Sir Leon Radzinowicz and .Dr. Roger Hood trace 150 years of unsuccessful English efforts to identify, sentence, and reform habitual criminal offenders. The Supreme Court's recent decision in Rummel v. Estelle has publicized habitual offender statutes in the United States. But Rummel primarily addressed the constitutionality, rather than the desirability, of a state habitual offender statute. This Article examines the broader policy questions common to habitual offender programs in both the United Stales and Great Britain. It describes the tension between liberal tradition and the state's desire to incapacitate those who repeatedly threaten life or property.

Preserving The Progressive Spirit In A Conservative Time: The Joint Reform Efforts Of Justice Brandeis And Professor Frankfurter, 1916-1933, David W. Levy, Bruce Allen Murphy

Michigan Law Review

On January 28, 1916, President Wilson sent the name of Louis D. Brandeis to the Senate for confirmation as a Justice of the United States Supreme Court. Wilson's act surprised many Americans and sparked one of the bitterest confirmation struggles in the history of the Republic. The nomination and the confirmation that followed also created a painful and highly personal dilemma for the new Justice. This dilemma led Brandeis to a private arrangement that opened an unusual and revealing chapter in the story of the extra judicial activities of American justices. Even more important, the arrangement constitutes a noteworthy episode …

The Fifth Amendment And The Inference Of Guilt From Silence: Griffin V. California After Fifteen Years, Donald B. Ayer

Michigan Law Review

This Article will begin with an examination of the historic (and present) purposes underlying the fifth amendment privilege against self-incrimination, upon which any justification of the no-comment rule must ultimately rest. It will explore the danger that these purposes may be thwarted not only when defendants are actually compelled to be witnesses against themselves, but also when significant burdens are placed on defendants who choose not to testify. In Griffin, the Court reasoned that comment on the defendant's silence amounted to such an impermissible burden. But the Court failed to examine the weight of this burden. This failure makes …

Personal Jurisdiction And Choice Of Law, James Martin

Michigan Law Review

The time has come for the Supreme Court to declare that a state may not apply its own law to a case unless it has the "minimum contacts" required by International Shoe for the exercise of specific personal jurisdiction over the defendant. Although the present state of the law is less than certain, the Supreme Court has not yet required that a state show it has minimum contacts with a defendant before applying its law. As a result, in some cases where a state has obtained personal jurisdiction because of a defendant's contacts unrelated to the case - contacts such …

Collateral Estoppel And Supreme Court Disposition Of Moot Cases, Michigan Law Review

Michigan Law Review

In response to the Government's novel proposal in Velsicol, this Note reconsiders the procedures by which the Supreme Court could dispose of moot cases. Section I examines the collateral estoppel effects of the Supreme Court's present procedure and the Government's proposal in Velsicol. Section II concludes that both procedures afford excessive protection from collateral estoppel because they misconceive the purpose of Supreme Court review. The Note suggests that, when faced with a moot federal petition for certiorari, the Supreme Court should either deny the petition or, if certiorari has already been granted, dismiss the case.

The Supreme Court: Myth And Reality, Michigan Law Review

Michigan Law Review

A Book Notice about The Supreme Court: Myth and Reality by Arthur Selwyn

From Brown To Bakke: The Supreme Court And School Integration: 1954-1978, Michigan Law Review

Michigan Law Review

A Book Notice about From Brown to Bakke: The Supreme Court and School Integration: 1954-1978 by J. Harvie Wilkinson III

The Jury As A Source Of Reasonable Search And Seizure Law, Ronald J. Bacigal

Law Faculty Publications

The definition of a reasonable search has bedeviled the United States Supreme Court for some ninety years. Formal logic or legal reasoning assists the Court in tracing premise to conclusion, but does not alone suggest the initial premise. The Court's difficulty in fourth amendment cases, in general, lies in identifying the premise-the fundamental value which is embodied in this constitutional guarantee. The Court has recognized that this fundamental value, whatever it is, has an origin outside the language of the amendment, and the Court has considered sources such as history, popular consensus, natural law, and utilitarian balancing to find this …

Search And Seizure: A Treatise On The Fourth Amendment, William H. Erickson

Michigan Law Review

A Review of Search and Seizure: A Treatise on the Fourth Amendment by Wayne R. LaFave

Federalism And Social Change, Terrance Sandalow

Articles

A familiar passage in Professors Hart and Wechsler's casebook likens the relationship between federal and state law to that which exists between statutes and the common law. The underlying idea is that federal law rests upon a substructure of state law. "It builds upon legal relationships established by the states, altering or supplanting them only so far as necessary for [its] special purpose."' A similar relationship exists between state and federal judicial systems. State courts are courts of general jurisdiction, assumed to have authority to adjudicate controversies unless Congress has displaced them by conferring exclusive jurisdiction on federal courts. Federal …

The Supreme Court, Tribal Sovereignty, And Continuing Problems Of State Encroachment Into Indian Country, Clifford M. Lytle

American Indian Law Review

No abstract provided.

Rights Of Ex-Patients In The Community: The Next Frontier?, Michael L. Perlin

Articles & Chapters

No abstract provided.

State Control Over The Reclamation Waterhole: Reality Or Mirage, Michigan Law Review

Michigan Law Review

This Note assesses how much state law section 8 saves from preemption. Section I reviews the interplay of state and federal water law in the West. It begins with a brief description of appropriation, the system of water rights found in the Western states, outlines the Reclamation Act of 1902, and then traces the Supreme Court's evolving construction of the Act. It culminates in a discussion of California v. United States, the Court's latest gloss on section 8. Section II expands the analysis of the California decision, integrating it with traditional preemption doctrine. It shows that section 8 respects …

Disposition Of A Federal Criminal Case When Defendant Dies Pending Appeal, Lori R. Dickerman

University of Michigan Journal of Law Reform

This article discusses the way in which courts historically have disposed of such cases and the apparent change recently introduced by the United States Supreme Court. After an examination of the ramifications of the new and old rules, certain changes in current practice are recommended which will better serve the interests of the deceased, his survivors, and society as a whole.

The Shrinking Forum: The Supreme Court's Limitation Of Jurisdiction - An Argument For A Federal Forum In Multi-Party, Multi-State Litigation, Allen R. Kamp

William & Mary Law Review

No abstract provided.

The Burger Court, 1969-1979: Continuity And Contras, William F. Swindler

Faculty Publications

No abstract provided.

Fourth Amendment Standing And Expectations Of Privacy: Rakas V. Illinois And New Directions For Some Old Concepts, Richard A. Williamson

Faculty Publications

No abstract provided.

Roe V. Wade And The Lesson Of The Pre-Roe Case Law, Richard Gregory Morgan

Michigan Law Review

The politically unsettled and judicially confused law of abortion in 1971 and 1972, when the Court twice heard arguments and deliberated Roe, should have warned it not to decide the case. By doing so; the Court thrust itself into a political debate and stunted the development of a thoughtful lower-court case law. If the Court did perceive the warnings but continued toward a decision anyway, perhaps trusting that its own considerable wits would devise an answer the lower courts had not, the result suggests that the judicial system's axioms deserve more respect than they received. This Article, by showing …