Law Commons^™

The Passion Of John Paul Stevens, Linda Greenhouse

Michigan Law Review

Review of John Paul Stevens' The Making of a Justice: Reflections on My First 94 Years.

Translating The Constitution, Jack M. Balkin

Michigan Law Review

Review of Lawrence Lessig's Fidelity and Constraint: How the Supreme Court Has Read the American Constitution.

What Is Remembered, Alice Ristroph

Michigan Law Review

Review of Sarah A. Seo's Policing the Open Road: How Cars Transformed American Freedom.

Bucklew V. Precythe'S Return To The Original Meaning Of "Unusual": Prohibiting Extensive Delays On Death Row, Jacob Leon

Cleveland State Law Review

The Supreme Court, in Bucklew v. Precythe, provided an originalist interpretation of the term “unusual” in the Eighth Amendment of the United States Constitution. This originalist interpretation asserted that the word “unusual” proscribes punishments that have “long fallen out of use.” To support its interpretation, the Supreme Court cited John Stinneford’s well-known law review article The Original Meaning of “Unusual”: The Eighth Amendment as a Bar to Cruel Innovation. This Article, as Bucklew did, accepts Stinneford’s interpretation of the word “unusual” as correct. Under Stinneford’s interpretation, the term “unusual” is a legal term of art derived from eighteenth-century …

Decoding Judicial Reasoning In China: A Comparative Empirical Analysis Of Guiding Cases, Runhua Wang

Cleveland State Law Review

The judicial system in China recently started using legal precedents—known as guiding cases—as a new legal source to eliminate adjudicative inconsistency. Guiding cases (“GCs”) present the current judicial reasoning to some extent and can be used to predict the future of judicial reasoning in China. What are GCs? What legal issues do GCs address? How do they address legal issues? How do GCs affect the legal system and adjudication in China? This Article answers these questions with empirical evidence and comparisons to judicial reasoning in the United States. It is the first empirical research providing a systematic review of all …

The Nfl Player, The Schoolchild, And The Entertainer: When The Term "Free Speech" Is Too Freely Spoken, Exactly "Who's On First?", Christian Ketter

Cleveland State Law Review

As America’s media and politicians continue to debate the free speech rights of NFL players, schoolchildren, and entertainers, the dialogue has confused many Americans as to what exactly the First Amendment protects. Chief Justice John G. Roberts ultimately assumes the role of an umpire in many of these issues, guiding the United States Supreme Court to incrementally “call balls and strikes.” In recent years, the Court has umpired employment rights and state action cases, and Roberts’s calls will likely further distance the Court that decided Morse v. Frederick from the one that decided Tinker v. Des Moines. Amid a …

Fmc Corp. V. Shoshone-Bannock Tribes, Seth T. Bonilla

Public Land & Resources Law Review

In 1998, FMC Corporation agreed to submit to the Shoshone-Bannock Tribes’ permitting processes, including the payment of fees, for clean-up work required as part of consent decree negotiations with the Environmental Protection Agency. Then, in 2002, FMC refused to pay the Tribes under a permitting agreement entered into by both parties, even though the company continued to store hazardous waste on land within the Shoshone-Bannock Fort Hall Reservation in Idaho. FMC challenged the Tribes’ authority to enforce the $1.5 million permitting fees first in tribal court and later challenged the Tribes’ authority to exercise civil regulatory and adjudicatory jurisdiction over …

Rodriguez, Tucker, And The Dangers Of Textualism, Reuven S. Avi-Yonah

Articles

The Supreme Court is increasingly turning toward textualism in interpreting statutes. This is part of its general hostility toward judge-made law, as evidenced by its recent unanimous decision in Rodriguez that there should be no federal common law except in extraordinary circumstances. Textualism poses a particular danger in the tax context because the Internal Revenue Code is so complicated and lends itself to manipulation so that courts have since the 1930s used a variety of judge-made legal doctrines to prevent such results. The classic Gregory decision from 1935 involved just such a case: The literal application of the code resulted …

Waiving Federal Sovereign Immunity In Original Actions Between States, Sandra B. Zellmer

University of Michigan Journal of Law Reform

There are tremendous disparities between high stakes original actions between states before the U.S. Supreme Court, where there is no waiver of federal sovereign immunity, and other types of cases in the lower courts, where a plethora of immunity waivers allow states and other parties to seek relief from the federal government for Fifth Amendment takings, unlawful agency action, and tort claims. Federal actions or omissions are often at the heart of the dispute, and federal involvement may be crucial for purposes of providing an equitable remedy to the state parties, but there is no reliable mechanism for bringing the …

For Cause: Rethinking Racial Exclusion And The American Jury, Thomas Ward Frampton

Michigan Law Review

Peremptory strikes, and criticism of the permissive constitutional framework regulating them, have dominated the scholarship on race and the jury for the past several decades. But we have overlooked another important way in which the American jury reflects and reproduces racial hierarchies: massive racial disparities also pervade the use of challenges for cause. This Article examines challenges for cause and race in nearly 400 trials and, based on original archival research, presents a revisionist account of the Supreme Court’s three most recent Batson cases. It establishes that challenges for cause, no less than peremptory strikes, are an important—and unrecognized—vehicle of …

Communication Breakdown: How Courts Do - And Don't - Respond To Statutory Overrides, Deborah A. Widiss

Articles by Maurer Faculty

Earlier commentators, including many well-respected judges, have offered thoughtful suggestions for facilitating communication from courts to Congress about problems in statutes that Congress might want to address. My research explores the opposite question. How effective is communication from Congress back to courts? The answer is: Not very. Even when Congress enacts overrides, courts frequently continue to follow the prior judicial precedent. This is likely due more to information failure than willful disregard of controlling law. Nonetheless, a key aspect of the separation of powers is broken.

My research shows that when the Supreme Court overrules a prior decision, lower courts …

The Dormant Commerce Clause And State Clean Energy Legislation, Kevin Todd

Michigan Journal of Environmental & Administrative Law

This Note analyzes recent litigation concerning the constitutionality of state renewable portfolio standards (RPSs) and similar environmental legislation designed to promote clean energy. It begins with a discussion of the current state of both federal and state responses to climate change. From there, it analyzes several legal challenges to state RPSs and other climate-related laws that focus on potential violations of the dormant Commerce Clause. It concludes with a brief exploration of how these cases fit the history and purpose of the dormant Commerce Clause. The Note argues that a narrow view of the doctrine is consistent with the purpose …

A Suspended Death Sentence: Habeas Review Of Expedited Removal Decisions, Lauren Schusterman

Michigan Law Review

Expedited removal allows low-level immigration officers to summarily order the deportation of certain noncitizens, frequently with little to no judicial oversight. Noncitizens with legitimate asylum claims should not find themselves in expedited removal. When picked up by immigration authorities, they should be referred for a credible fear interview and then for more thorough proceedings.

Although there is clear congressional intent that asylum seekers not be subjected to expedited removal, mounting evidence suggests that expedited removal fails to identify bona fide asylum seekers. Consequently, many of them are sent back to persecution. Such decisions have weighty consequences, but they have remained …

Making A Reasonable Calculation: A Strategic Amendment To The Idea, Hetali M. Lodaya

University of Michigan Journal of Law Reform

The Individuals with Disabilities Education Act (IDEA) lays out a powerful set of protections and procedural safeguards for students with disabilities in public schools. Nevertheless, there is a persistent debate as to how far schools must go to fulfill their mandate under the IDEA. The Supreme Court recently addressed this question with its decision in Endrew F. v. Douglas Cty. School District Re-1, holding that an educational program for a student with a disability must be “reasonably calculated” to enable a child’s progress in light of their circumstances. Currently, the Act’s statutory language mandates Individual Education Program (IEP) teams …

Eighteen Is Not A Magic Number: Why The Eighth Amendment Requires Protection For Youth Aged Eighteen To Twenty-Five, Tirza A. Mullin

University of Michigan Journal of Law Reform

The Eighth Amendment protects a criminal defendant’s right to be free from cruel and unusual punishment. This Note argues that any punishment of eighteen- to twenty-five-year-olds is cruel and unusual without considering their youthfulness at every stage of the criminal process, and that it is unconstitutional under the Eighth Amendment for these youths to be automatically treated as fully-developed adults. This Note will explore in depth how juveniles differ from adults, both socially and scientifically, and how the criminal justice system fails every youth aged eighteen- to twenty-five by subjecting them to criminal, rather than juvenile, court without considering their …

Ratification Of The Equal Rights Amendment: Lessons From Special Elections To The House Of Representatives In 1837, John Vlahoplus

Indiana Law Journal

In 1837 the House of Representatives considered a governor’s attempt to include a limitation in a writ issued to fill a vacancy in representation pursuant to Article I, Section 2 of the Constitution. The Representatives agreed almost unanimously that the limitation was unconstitutional and should be disregarded as mere surplusage rather than invalidating the writ and the election. This Article suggests that the similar Article V gives Congress only the power to propose amendments, without any limitation, and States the power to ratify amendments or not, without any power to rescind. Consequently, the time limit that Congress purported to impose …

Confession Obsession: How To Protect Minors In Interrogations, Cindy Chau

Journal of Race, Gender, and Ethnicity

No abstract provided.

The Empty Chair: Reflections On An Absent Justice, Jennifer L. Behrens

Faculty Scholarship

This article examines a January 1888 letter to U.S. Supreme Court Chief Justice Morrison Waite from Associate Justice Stanley Matthews. Justice Matthews requested time away from the notoriously overworked Court’s session in order to attend the funeral of Dr. Peter Parker, renowned medical missionary and diplomat. The piece presents biographical sketches of Justice Matthews and Dr. Parker, and considers the historical context of the potential absence on the late nineteenth-century Court’s operations.

Empty Chairs, Jennifer L. Behrens

Faculty Scholarship

No abstract provided.

Procedural Law, The Supreme Court, And The Erosion Of Private Rights Enforcement, Suzette M. Malveaux

Publications

No abstract provided.

The Central Park Five As “Discrete And Insular” Minorities Under The Equal Protection Clause: The Evolution Of The Right To Counsel For Wrongfully Convicted Minors, Todd K. Beharry

Journal of Race, Gender, and Ethnicity

No abstract provided.

Muted Justice, Leah Litman

Articles

The Chief Justice of the United States possesses significant power. His position as the senior most Justice on the U.S. Supreme Court allows him to assign opinions to other Justices and to coordinate scheduling the Court’s cases for argument. And after Justice Kennedy retired in June 2018, Chief Justice Roberts was the median Justice on the Court, whose vote often determined the outcome in a case. Even after Justice Barrett’s confirmation changed that state of affairs, the Chief remains an important Justice to watch.

Hernandez, Bivens, And The Supreme Court’S Expanding Theory Of Judicial Abdication, William J. Aceves

Michigan Law Review Online

This Essay examines the Hernandez decision and critiques the Court’s expanding theory of judicial abdication, an approach with profound implications for civil rights and the future of the judiciary. While Hernandezinvolved a cross-border shooting, the Court’s reasoning extends to all facets of civil litigation. Accordingly, this Essay proposes a new theory of judicial engagement that would empower federal courts to grant relief for constitutional claims against federal officials. It is a theory founded in extant constitutional jurisprudence that the Court has used for over a century to apply the Bill of Rights to state and local governments—an approach that …

The Failure Of The Criminal Procedure Revolution, William T. Pizzi

Publications

No abstract provided.

Reproductive Health Care Exceptionalism And The Pandemic, Helen Norton

Publications

No abstract provided.

Justice Sonia Sotomayor: The Court’S Premier Defender Of The Fourth Amendment, David L. Hudson Jr.

Law Faculty Scholarship

This essay posits that Justice Sonia Sotomayor is the Supreme Court’s chief defender of the Fourth Amendment and the cherished values it protects. She has consistently defended Fourth Amendment freedoms—in majority, concurring, and especially in dissenting opinions. Part I recounts a few of her majority opinions in Fourth Amendment cases. Part II examines her concurring opinion in United States v. Jones. Part III examines several of her dissenting opinions in Fourth Amendment cases. A review of these opinions demonstrates what should be clear to any observer of the Supreme Court: Justice Sotomayor consistently defends Fourth Amendment principles and values.

Fixed Stars: Famous First Amendment Phrases And Their Indelible Impact, David L. Hudson Jr., Jacob David Glenn

Law Faculty Scholarship

Some passages in First Amendment law have taken on a life and legend of their own, entering our cultural lexicon for their particular power, precision or passion. Some phrases are just so beautifully written that they cannot escape notice. Others aptly capture the essence of a key concept in a memorable way. Still others seemingly have grown in importance simply by the frequency for which they are cited in later court decisions. This article analyzes ten phrases from U.S. Supreme Court First Amendment decisions that qualify as some of the most enduring passages in First Amendment jurisprudence.

Spoiler Alert: When The Supreme Court Ruins Your Brief Problem Mid-Semester, Margaret Hannon

Articles

Partway through the winter 2019 semester,1 the Supreme Court ruined my favorite summary judgment brief problem while my students were working on it. I had decided to use the problem despite the Court granting cert and knowing it was just a matter of time before the Court issued its decision. In this Article, I share some of the lessons that I learned about the risks involved in using a brief problem based on a pending Supreme Court case. I conclude that, while I have not typically set out to base a problem on a pending Supreme Court case, doing so …

Slip Slidin' Away: The Erosion Of Apa Adjudication, William Funk

Journal of the National Association of Administrative Law Judiciary

Although the enactment of the Administrative Procedure Act (APA) was intended to establish a uniform set of procedures applicable to adjudications "required by statute to be determined on the record after opportunity for an agency hearing," agencies have long sought to avoid those procedures, and, in particular, Administrative Law Judges, by substituting informal, non-APA adjudications. Over time, the courts have accelerated this substitution through a misapplication of three Supreme Court opinions. This article describes the original understanding of the APA and how that original understanding has been eroded over the years. The article then asks whether this is a problem …

Chevron Deference In The States: Lessons From Three States, Carrie Townsend Ingram

Journal of the National Association of Administrative Law Judiciary

The appointment of Justice Neil Gorsuch to the Supreme Court of the United States has left many wondering if a change to the Chevron doctrine is impending. Justice Gorsuch’s colleague on the Court, Justice Clarence Thomas, shares similar views on Chevron. This article will compare the federal rule to three different states: Indiana, Delaware, and Arizona. Each state has taken a different path in determining that the judiciary should not give deference to an agency’s interpretation of the statutes that it is charged with enforcing. Delaware has affirmatively declared that the Chevron doctrine is not applicable in its state. A …