Law Commons^™

Rewriting Roe V. Wade, Donald H. Regan

Articles

Roe v. Wade is one of the most controversial cases the Supreme Court has decided. The result in the case - the establishment of a constitutional right to abortion - was controversial enough. Beyond that, even people who approve of the result have been dissatisfied with the Court's opinion. Others before me have attempted to explain how a better opinion could have been written. It seems to me, however, that the most promising argument in support of the result of Roe has not yet been made. This essay contains my suggestions for "rewriting" Roe v. Wade

The Future Of Confrontation, Peter K. Westen

Michigan Law Review

The Supreme Court seems to be setting the stage for a long-awaited examination of the confrontation clause. It has been ten years since the Court endeavored in Dutton v. Evans to reconcile the evidentiary rules of hearsay with the constitutional commands of confrontation. Dutton came at the tail end of a string of confrontation cases that the Court had resolved without apparent difficulty. Not surprisingly, the Court approached Dutton in the evident belief that it could resolve the constitutional problems of hearsay once and for all. Instead, after oral argument in 1969 and a rehearing in 1970, the Court found …

Rationalizing Administrative Searches, Michigan Law Review

Michigan Law Review

At the outset, this Note examines the major decisions concerning administrative searches. Specifically, it traces the development of a warrant requirement and of the corresponding lower standard of probable cause announced in the Camara and See decisions. Subsequent modifications of that seemingly absolute rule are then analyzed. To develop a framework for evaluating administrative search cases, Section II groups those principal Supreme Court cases, along with pertinent lower court opinions, into three tiers of fourth amendment protection: administrative searches that require a warrant based on a traditional criminal standard of probable cause; administrative searches that require a warrant based on …

Untangling The Strands Of The Fourteenth Amendment, Ira C. Lupu

Michigan Law Review

This Article explores such trends in the context of several recent cases and in the broader context of established patterns of constitutional law. Section II shows how the different strains of fourteenth amendment activism over the past century have tangled the strands of the fourteenth amendment in a thick, almost impenetrable knot. Section ill studies the tangle's reflection in three cases raising fundamental rights problems - Maher v. Roe, Moore v. City of East Cleveland, and Zablocki v. Redhail. Finally, Section N offers what Sections II and III suggest is missing from fourteenth amendment case law- a theory, abstract …

Limitation Borrowing In Federal Courts, Michigan Law Review

Michigan Law Review

This Note studies limitations on federal actions in light of Occidental Life. Part I discusses the reasons for limiting actions and presents a short history ·of the limitation of actions. Part II analyzes the alternatives for the federal courts when no statute of limitations applies directly. Finally, the Note suggests a solution that will achieve a result most nearly consistent with both the reasons for limiting actions and the proper role of the judiciary. It suggests, notwithstanding Occidental Life, that in some situations courts should borrow specific federal statutes of limitations and that in the remainder they should …

The Younger Abstention: Primary State Jurisdiction Over Law Enforcement, David A. Dittfurth

Faculty Articles

The abstention doctrines have received much attention by the United States Supreme Court over the last decade. These doctrines are represented by judicial rules that require federal trial courts, in appropriate circumstances, to abstain from exercising subject matter jurisdiction although they clearly have the power to do so. As a result, the particular case is shunted back into a state judicial system for determination.

The most confusing of these doctrines is the one arising in major part from Younger v. Harris. In short, this case stands for the rule that, once a state criminal prosecution has been initiated, a federal …

The Burger Court, The Commerce Clause, And The Problem Of Differential Treatment, Earl M. Maltz

Indiana Law Journal

No abstract provided.

Presidential Power And Administrative Rulemaking, Harold H. Bruff

Publications

No abstract provided.

The Exclusionary Rule In Historical Perspective: The Struggle To Make The Fourth Amendment More Than 'An Empty Blessing', Yale Kamisar

Articles

In the 65 years since the Supreme Court adopted the exclusionary rule, few critics have attacked it with as much vigor and on as many fronts as did Judge Malcolm Wilkey in his recent Judicature article, "The exclusionary rule: why suppress valid evidence?" (November 1978).

A Defense Of The Exclusionary Rule, Yale Kamisar

Articles

The exclusionary rule is being flayed with increasing vigor by a number of unrelated sources and with a variety of arguments. Some critics find it unworkable and resort to empirically based arguments. Others see it as the product of a belated and unwarranted judicial interpretation. Still others, uncertain whether the rule works, are confident that in some fashion law enforcement's hands are tied. Professor Yale Kamisar, long a defender of the exclusionary rule, reviews the current attacks on the rule and offers a vigorous rebuttal. He finds it difficult to accept that there is a line for acceptable police conduct …

Implied Limitations On The Jurisdiction Of Indian Tribes, Richard B. Collins

Publications

No abstract provided.

Exclusionary Rule: Reasonable Remarks On Unreasonable Search And Seizure, Yale Kamisar

Articles

Can we live with the so-called exclusionary rule, which bars the use of illegally gained evidence in criminal trials? Can the Fourth Amendment live without it? A growing number of lawyers and judges, including Chief Justice Warren Burger, have called for abandonment of the rule, usually on the ground that it has not prevented illegal searches and seizures and on the ground that the rule has contributed significantly to the increase in crime. No one has convincingly demonstrated a causal link between the high rate of crime in America and the exclusionary rule, and I do not believe that any …

Forfeiture By Guilty Plea--A Reply, Peter Westen

Michigan Law Review

I will begin by describing what I think Professor Saltzburg and I both mean by a ''legal theory." I then apply that standard to test the validity of the two theories at issue here, first Professor Saltzburg's, then mine. I next discuss a third theory that is independent of both Professor Saltzburg's and mine, viz., that whether a constitutional claim survives a guilty plea depends on whether it is ''jurisdictional." Finally, I comment generally on the concept of forfeiture and its influence on the way one conceives of constitutional rights.

Pleas Of Guilty And The Loss Of Constitutional Rights: The Current Price Of Pleading Guilty, Stephen A. Saltzburg

Michigan Law Review

This Article proposes the same basic rule as Westen's to explain the Supreme Court's decisions, but for very different reasons which require several modifications of the Westen rule. I argue that all the guilty-plea cases, properly viewed, are consistent with, and therefore can be read as evidence of, a theory more easily applied than articulated by the Court: that some constitutional rights are largely premised on notions of litigation avoidance, that their "avoidance" rationales must be respected, and that these rights therefore prevent governments from establishing procedural rules that force criminal defendants to go to trial-to choose more rather than …

The Proposed Federal Rules Of Evidence: Of Privileges And The Division Of Rule-Making Power, Michigan Law Review

Michigan Law Review

This Note proposes that the lower federal courts accord the same binding authority to the Proposed Rules that they give those judicially promulgated procedural rules, such as the Federal Rules of Civil Procedure, that have been implicitly approved by Congress.

Part I of the Note analyzes the constitutional division of the rule-making power by examining both the policy considerations involved and the relevant constitutional language and doctrines. That examination indicates that the power to establish such rules is shared by Congress and the Supreme Court. To determine when that power is appropriately exercised by one branch rather than the other, …

The Eighteenth-Century Background Of John Marshall's Constitutional Jurisprudence, William E. Nelson

Michigan Law Review

This analysis of Marshall's constitutional jurisprudence avoids the pitfalls of previous theories. It does not see the Federalist political program as the source of Marshall's constitutional doctrines and thus does not need to explain how Marshall qualified his political principles or how he convinced non-Federalist judges to accept them. Instead, this essay argues that legal, not political, principles underlay Marshall's jurisprudence, but it attempts to understand those principles in a manner consistent with the unavoidable twentieth-century assumption that law is a body of flexible rules responsive to social reality rather than a series of immutable, unambiguous doctrines derived from a …

Prosecutorial Discretion, Plea Bargaining And The Supreme Court's Opinion In Bordenkircher V. Hayes, William T. Pizzi

Publications

No abstract provided.

Is The Exclusionary Rule An 'Illogical' Or 'Unnatural' Interpretation Of The Fourth Amendment?, Yale Kamisar

Articles

More than 50 years have passed since the Supreme Court decided the Weeks case, barring the use in federal prosecutions of evidence obtained in violation of the Fourth Amendment, and the Silverthorne case, invoking what has come to be known as the "fruit of the poisonous tree" doctrine. The justices who decided those cases would, I think, be quite surprised to learn that some day the value of the exclusionary rule would be measured by-and the very life of the rule might depend on-an empirical evaluation of its efficacy in deterring police misconduct. These justices were engaged in a less …

Brewer V. Williams, Massiah And Miranda: What Is 'Interrogation'? When Does It Matter?, Yale Kamisar

Articles

On Christmas Eve, 1968, a ten-year-old girl, Pamela Powers, disappeared while with her family in Des Moines, Iowa.2 Defendant Williams, an escapee from a mental institution and a deeply religious person, 3 was suspected of murdering her, and a warrant was issued for his arrest.4 Williams telephoned a Des Moines lawyer, McKnight, and on his advice surrendered himself to the Davenport, Iowa, police.5 Captain Learning and another Des Moines police officer arranged to drive the 160 miles to Davenport, pick up Williams, and return him directly to Des Moines. 6 Both the trial court 7 and the federal district court8 …

The Supreme Court, Warrantless Searches, And Exigent Circumstances, Richard A. Williamson

Faculty Publications

No abstract provided.

Bakke Revisited - What The Court's Decision Means - And Doesn't Mean, Douglas D. Scherer

Scholarly Works

No abstract provided.

The Nonpartisan Freedom Of Expression Of Public Employees, Michigan Law Review

Michigan Law Review

Governmental activities affect each of us in a myriad of ways. The government's role as employer may pale in comparison with the more glamorous activities of the government as national defender, law enforcer, and allocator of scarce resources. Yet the legal ramifications of public employment-where the public interest in efficient governmental operation often conflicts with the public employee's freedom-have a profound influence upon American society.

In 1968, the Supreme Court in Pickering v. Board of Education formulated a test designed to balance these interests in defining the scope of a public employee's freedom of expression. In examining the nonpartisan free …

The Restoration Of In Re Winship: A Comment On Burdens Of Persuasion In Criminal Cases After Patterson V. New York, Ronald J. Allen

Michigan Law Review

At the conclusion of its last term, the Supreme Court rendered what should have been a most unremarkable decision. In Patterson v. New York, the Court upheld New York's affirmative defense of extreme emotional disturbance, which requires a defendant who seeks to reduce his offense from murder to manslaughter to prove by a preponderance of the evidence that he acted under extreme emotional disturbance. Had the case come before the Court seven years earlier, it could have been swiftly dispatched with a brief opinion upholding the New York statute on the grounds that the issue of extreme emotional disturbance …

Reconsideration Of The Katz Expectation Of Privacy Test, Michigan Law Review

Michigan Law Review

This Note, by modifying certain aspects of the reasonable expectation of privacy test, offers a theory that attempts to identify the minimum content of the fourth amendment. In the first section, the Note examines the reasonable expectation of privacy test and considers whether it has been or can be applied in a manner that fails to protect the right to have certain minimum expectations of privacy. It analyzes both the "actual" and the "reasonable" expectation requirements, identifies weaknesses inherent in the current application of these requirements, and suggests certain ways in which they might be refined. In the second section, …

Memoriam: Justice Tom C. Clark (1976 Tazewell Taylor Visiting Professor), William F. Swindler

William & Mary Law Review

No abstract provided.

Book Review Of The Memoirs Of Earl Warren, William F. Swindler

William & Mary Law Review

No abstract provided.

Justice Under Law, William F. Swindler

Popular Media

No abstract provided.

State Taxation And The Supreme Court: Toward A More Unified Approach To Constitutional Adjudication?, Walter Hellerstein

Michigan Law Review

The first section of this Article examines three recent cases, each addressed to a different constitutional limitation on the scope of state tax power, that may be read as signifying a new approach: Michelin Tire Corp. v. Wages, which concerned the import-export clause; United States v. County of Fresno, which concerned the supremacy clause; and Complete Auto Transit, Inc. v. Brady, which concerned the commerce clause. Section II considers the implications of these decisions and explores -the possibility that they share an underlying doctrinal unity.

Criminal Procedure, The Burger Court, And The Legacy Of The Warren Court, Jerold H. Israel

Articles

I start in Section I of this Article with an examination of the first major theme of the criminal procedure decisions of the Warren Court, the selective incorporation of Bill of Rights' guarantees into the due process clause of the fourteenth amendment. My conclusion is that the selective incorporation principle, which provided the doctrinal basis for many of the "liberal" decisions of the Warren Court, remains firmly established today under the Burger Court. Section II of the Article then analyzes the theme of equality and the role it played in Warren Court decisions in the criminal procedure area. It is …

Judicial Review Of Labor Arbitration Awards: A Second Look At Enterprise Wheel And Its Progeny, Theodore J. St. Antoine

Articles

Logic, so the cliche goes, is not the life of the law. But logic is very much like the DNA of the law-the structural principle without which all is sprawl and muddle. In the last ten years a controversy has raged over the role of the labor arbitrator in issuing awards, and the role of the courts in reviewing and enforcing those awards. This controversy has largely taken the form of a continuing debate among scholars and practicing arbitrators at the annual meetings of the National Academy of Arbitrators. With due respect to the thoughtful and experienced persons who have …