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University of Michigan Law School

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Articles 1141 - 1170 of 2298

Full-Text Articles in Constitutional Law

Revocation Of Conditional Liberty For The Commission Of A Crime: Double Jeopardy And Self-Incrimination Limitations, Michigan Law Review Jan 1976

Revocation Of Conditional Liberty For The Commission Of A Crime: Double Jeopardy And Self-Incrimination Limitations, Michigan Law Review

Michigan Law Review

Persons on deferred sentence, probation, or parole who arguably violate the criminal law may face two proceedings: a hearing to revoke their conditional liberty and a criminal trial. The possibility of two proceedings raises at least two major constitutional questions. First, are the defendant's rights under the double jeopardy or due process clauses violated if the state holds two inquiries into the alleged criminal act? Second, is the defendant's privilege against self-incrimination abridged if the revocation hearing is held before the criminal trial?

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Congressional Control Of Agency Privilege, Mark A. Luscombe Jan 1976

Congressional Control Of Agency Privilege, Mark A. Luscombe

University of Michigan Journal of Law Reform

This note seeks to provide an introductory and largely historical analysis of "agency privilege:" the refusal of federal executive officials to furnish information and documents to congressional bodies absent the invocation of a claim of privilege by the President. After a brief survey of the origins of agency privilege in part I, the history and nature of the competing interests of congressional investigations and autonomy of executive departments and agencies will be discussed in part II. Part III explores the constitutional basis of the claim and analyzes other justifications proffered in specific circumstances. Part IV weighs the merits of various …

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Compulsory Process Ii, Peter Westen Dec 1975

Compulsory Process Ii, Peter Westen

Michigan Law Review

This Article examines the validity of the conventional wisdom. It draws support for its analysis from the constitutional principles of compulsory process, and, in their absence, from related doctrine in the areas of a defendant's right to confront witnesses against him and his right to a fair trial. Part I of the article defines the constitutional standard that governs the simple case of a nonindigent defendant who makes a timely application to produce a witness from within the territory of the jurisdiction. Parts II through IV, in turn, examine that standard in the light of complicating factors such as the …

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Preferential Remedies For Employment Discrimination, Harry T. Edwards, Barry L. Zaretsky Nov 1975

Preferential Remedies For Employment Discrimination, Harry T. Edwards, Barry L. Zaretsky

Michigan Law Review

A basic thesis of this article is that much of the current concern about alleged "reverse discrimination" in employment ignores the reality of the situation. In Part I it will be contended that although color blindness is a laudable long-run objective, it alone will not end discrimination; thus, it will be argued that some form of "color conscious" affirmative action must be employed in order to achieve equal employment opportunity for minorities and women. The most effective form of affirmative action is temporary preferential treatment, and it will be asserted in Part II that such relief can be justified under …

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Ex Post Facto Limitations On Legislative Power, Michigan Law Review Aug 1975

Ex Post Facto Limitations On Legislative Power, Michigan Law Review

Michigan Law Review

This Note explores the rationale underlying the prohibition of ex post facto laws and formulates an analytic framework for a more principled application .of the prohibition. This analytic framework is then used, first, to critique the present strict application of the prohibition to changes in criminal "punishments" and determine whether the prohibition should be applied to sanctions imposed outside the criminal context, and, second, to determine the degree to which the prohibition should be applied to procedural changes.

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Constitutional Restraints On The Exclusion Of Evidence In The Defendant's Favor: The Implications Of Davis V. Alaska, Michigan Law Review Aug 1975

Constitutional Restraints On The Exclusion Of Evidence In The Defendant's Favor: The Implications Of Davis V. Alaska, Michigan Law Review

Michigan Law Review

This Note, first, examines the Davis methodology for determining whether a foreclosed line of cross-examination warrants protection by the confrontation clause, and suggests a test employable by reviewing courts for making that determination. Then, the Note sketches the contours of the clash, prefigured by Davis, between the right of confrontation and the limitations on cross-examination that result from both the assertion of testimonial privileges and trial court relevance rulings.

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The Compulsory Process Clause, Peter Westen Nov 1974

The Compulsory Process Clause, Peter Westen

Michigan Law Review

Part I of this article traces the history of compulsory process, from its origin in the English transition from an inquisitional to an adversary system of procedure to its eventual adoption in the American Bill of Rights. Part II examines the Supreme Court's seminal decision in Washington v. Texas, which recognized after a century and a half of silence that the compulsory process clause was designed to enable the defendant not only to produce witnesses, but to put them on the stand and have them heard. Part III studies the implications of compulsory process for the defendant's case, from the …

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Kauper's 'Judicial Examination Of The Accused' Forty Years Later—Some Comments On A Remarkable Article, Yale Kamisar Nov 1974

Kauper's 'Judicial Examination Of The Accused' Forty Years Later—Some Comments On A Remarkable Article, Yale Kamisar

Articles

For a long time before Professor Paul Kauper wrote "Judicial Examination of the Accused" in 1932, and for a long time thereafter, the "legal mind" shut out the de facto inquisitorial system that characterized American criminal procedure. Paul Kauper could not look away. He recognized the "naked, ugly facts" (p. 1224) and was determined to do something about them -more than thirty years before Escobedo v. Illinois' or Miranda v. Arizona.2

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A Sixth Amendment Right To Counsel Under Article 15 Of The Uniform Code Of Military Justice, Michigan Law Review Jun 1974

A Sixth Amendment Right To Counsel Under Article 15 Of The Uniform Code Of Military Justice, Michigan Law Review

Michigan Law Review

Article 15 of the Uniform Code of Military Justice (UCMJ) enables a commanding officer to sentence a service member who has committed a minor infraction to thirty days of correctional custody. The article 15 proceeding offers few procedural safeguards; among the protections lacking is the right to counsel. This Note will consider whether the failure of the military to provide counsel at an article 15 proceeding is consistent with the sixth amendment, which provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." The Note first will discuss …

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The Conclusive Presumption Doctrine: Equal Process Or Due Protection?, Michigan Law Review Mar 1974

The Conclusive Presumption Doctrine: Equal Process Or Due Protection?, Michigan Law Review

Michigan Law Review

In Vlandis v. Kline and United States Department of Agriculture v. Murry, decided during its past term, the Supreme Court invoked the conclusive presumption doctrine to invalidate statutory provisions, that restricted access to certain state and federal government benefits. This term, in Cleveland Board of Education v. LaFleur, the Court used the same rationale to strike down school board rules requiring teachers to take maternity leaves without pay. The essence of the doctrine is as follows: When a statutory provision imposes a burden upon a class of individuals for a particular purpose and certain individuals within the burdened class …

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Kirby, Biggers, And Ash: Do Any Constitutional Safeguards Remain Against The Danger Of Convicting The Innocent?, Joseph D. Grano Mar 1974

Kirby, Biggers, And Ash: Do Any Constitutional Safeguards Remain Against The Danger Of Convicting The Innocent?, Joseph D. Grano

Michigan Law Review

Even recognizing the danger of misidentification, procedural safeguards, especially constitutional ones, are not readily apparent. Some judges, such as Justice Stewart, find less need for counsel at photographic displays than at lineups; others find an equivalent or even greater need for counsel. Some judges, in approving on-the-scene identifications without counsel, find a guarantee of accuracy in the short interval between the crime and the identification; other judges decry such procedures and find them inherently suggestive. The problem stems directly from the lack of scientific knowledge and inquiry. Therefore, in analyzing the recent identification cases, this Article will draw upon experimental …

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The Constitutional Framework Of Environmental Law, Philip Soper Jan 1974

The Constitutional Framework Of Environmental Law, Philip Soper

Book Chapters

For federal and state legislators .seeking legal solutions to environmental problems, "constitutional law" is a part of "environmental law" only in the indirect sense of providing the basic legal framework with which substantive environmental standards-like all legislative standards-must ultimately comport. When Congress, for example, enacts legislation to control pollution or to protect endangered species, the constitutional issue theoretically presented is whether such legislation exceeds limits placed by the Framers on federal legislative authority. These limits may result either from the lack of federal power to deal with the problem or from conflict between a federal regulatory scheme and the constitutional …

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Boraas V. Village Of Belle Terre: The New, New Equal Protection, Michigan Law Review Jan 1974

Boraas V. Village Of Belle Terre: The New, New Equal Protection, Michigan Law Review

Michigan Law Review

In Boraas v. Village of Belle Terre a group of unrelated college students who rented a home in Belle Terre challenged a zoning ordinance that limited home occupancy to persons related by blood, marriage, or adoption. The Court of Appeals for the Second Circuit, finding for the students, decided the case using a novel equal protection theory, and the Supreme Court reversed. This Note deals with the theory adopted by the Second Circuit, its sources, and its future in light of the subsequent Supreme Court opinion in San Antonio Independent School District v. Rodriguez and the Supreme Court's analysis of …

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The Use Of In Camera Hearings In Ruling On The Informer Privilege, Ronald E. Levine Jan 1974

The Use Of In Camera Hearings In Ruling On The Informer Privilege, Ronald E. Levine

University of Michigan Journal of Law Reform

The thesis of this article is that most of the problems of defining the scope of the privilege in a particular case are due to the paucity of information available to the trial judge who must rule on the issue. Furthermore, many of the formulas presently used are conceptually and functionally inadequate. Both of these problems can be solved by the use of in camera hearings, for such proceedings not only will provide the trial judge with sufficient information to make a fair and rational decision, but will also alleviate the present necessity to rule only on the basis of …

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Elevation Of Entrapment To A Constitutional Defense, Robert H. Thomson Iii Jan 1974

Elevation Of Entrapment To A Constitutional Defense, Robert H. Thomson Iii

University of Michigan Journal of Law Reform

The issue of entrapment arises initially as a defense when a person is accused of committing a criminal act in which government agents solicited, and perhaps actively participated in, the conduct for which the defendant stands accused. Classic entrapment situations occur when law enforcement officers, through agents or informers, solicit an illegal transaction, such as the sale of contraband. The evidence thereby obtained is used to support the prosecution of the individual accepting the solicitation. Solicitation is an important technique of law enforcement because evidence of illegal transactions is often impossible to obtain by other methods. Certain uses of solicitation …

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The Fourth Amendment As A Way Of Talking About People: A Study Of Robinson And Matlock, James Boyd White Jan 1974

The Fourth Amendment As A Way Of Talking About People: A Study Of Robinson And Matlock, James Boyd White

Articles

One way to regard what the Supreme Court has done in the cases it has decided under the Fourth Amendment is to say that it has created a specialized discourse of adjudication, a language in which it can talk about and dispose of the repeated conflicts that arise between an officer engaged in the process of crime control and a citizen upon whose freedom or security he intrudes. The events which bring these two figures together are bewildering in their variety and complexity, and the claims on each side are deeply felt and strenuously made. It has not been easy …

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The National Court Of Appeals: A Constitutional "Inferior Court"?, Michigan Law Review Dec 1973

The National Court Of Appeals: A Constitutional "Inferior Court"?, Michigan Law Review

Michigan Law Review

Objections have been raised to the necessity for and the practicality of such a court. These objections are, however, tangential to the subject of this Note and are fully discussed elsewhere. An additional question has been raised regarding the constitutionality of the proposed court. Article III, section 1, of the Constitution provides: "The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Several commentators have challenged the proposed court as violative of the provision for "one supreme Court." There is, …

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Limited Government And Judicial Review, Paul G. Kauper Nov 1973

Limited Government And Judicial Review, Paul G. Kauper

Michigan Law Review

A Book Review of Limited Government and Judicial Review by Durga Das Basu

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Self-Incrimination: Privilege, Immunity, And Comment In Bar Disciplinary Proceedings, Michigan Law Review Nov 1973

Self-Incrimination: Privilege, Immunity, And Comment In Bar Disciplinary Proceedings, Michigan Law Review

Michigan Law Review

The questions of the extent of an attorney's right to claim the privilege against self-incrimination during bar disciplinary proceedings and of the consequences of the exercise of the privilege has created a sharp division of opinion. The privilege against self-incrimination necessarily involves a conflict between the public's interest in disclosure and the individual's interest in privacy and nondisclosure. However, the conflict is exacerbated when the individual claiming the privilege is entrusted with important public responsibilities.

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The Submerged Constitutional Right To An Absentee Ballot, Michigan Law Review Nov 1973

The Submerged Constitutional Right To An Absentee Ballot, Michigan Law Review

Michigan Law Review

In an attempt to accommodate the growing number of people who cannot be present at the polls on election day, many states and the federal government have enacted statutes that allow voters to cast their ballots in advance of the election either by mail or in person. Eligibility for these absentee ballots is, however, restricted to those voters who fall within the classifications set up by the statute, and occasionally the option is open only to those who wish to vote in general elections. The few court decisions that have reviewed state absentee-ballot legislation, or the lack of such legislation, …

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Immunity Under The Speech Or Debate Clause For Republican And From Questioning About Sources, Michigan Law Review May 1973

Immunity Under The Speech Or Debate Clause For Republican And From Questioning About Sources, Michigan Law Review

Michigan Law Review

Gravel v. United States, which arose out of Senator Mike Gravel's attempt to publicize the Pentagon Papers, concerned the scope of the immunity conferred upon a legislator and his aide under article I, section 6, of the United States Constitution. This provision, commonly called the "speech or debate clause," provides that "for any Speech or Debate in either House, [United States Senators or Representatives] shall not be questioned in any other Place." Gravel is one of the few Supreme Court interpretations of this clause.

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The Constitutionality Of State Residency Requirements For Admission To The Bar, Michigan Law Review Mar 1973

The Constitutionality Of State Residency Requirements For Admission To The Bar, Michigan Law Review

Michigan Law Review

There has been controversy in the lower federal courts concerning durational residency requirements and one recent state court challenge of a simple residency requirement. This Note will discuss the constitutional validity of these requirements in the face of equal protection attacks, concentrating on the extent to which such requirements are justified by the interests of state courts in maintaining the integrity of their legal systems.

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The Confrontation Clause And The Scope Of The Unavailability Requirement, Jerry J. Phillips Jan 1973

The Confrontation Clause And The Scope Of The Unavailability Requirement, Jerry J. Phillips

University of Michigan Journal of Law Reform

The confrontation clause is that language of the sixth amendment to the United States Constitution which provides, "[I]n all criminal prosecutions, the accused shall enjoy the right… to be confronted with the witnesses against him." Despite the seemingly absolute language of the confrontation clause, which would suggest that no hearsay evidence may be admitted against an accused in a criminal proceeding, its guarantee has been subject to exception. For example, when either a witness to an event or his testimony is shown to be unavailable, others will be allowed to testify as to the information which the declarant-witness has related …

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Separation Of Powers: Congrssional Riders And The Veto Power, Richard A. Riggs Jan 1973

Separation Of Powers: Congrssional Riders And The Veto Power, Richard A. Riggs

University of Michigan Journal of Law Reform

It has been suggested that in order to avoid this potential crisis statutory authority to veto nongermane riders be granted to the President. One author has contended that no such statute is needed, that the President presently has such power under Article I, Section 7 of the Constitution. On the other hand, bills have been introduced in both houses of Congress which might have specifically denied that power to the President. This article examines whether there is any constitutional ground on which the President could take the unprecedented action of separately vetoing congressional riders.

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Article V: Changing Dimensions In Constitutional Change, Francis H. Heller Jan 1973

Article V: Changing Dimensions In Constitutional Change, Francis H. Heller

University of Michigan Journal of Law Reform

To anyone raised under the Constitution of the United States, that document's declaration that it is "the supreme law of the land" may appear as a commonplace assertion. In some other nations the constitution is not viewed as law, but is seen as a primarily political document. In fact, some foreign constitutions are formally proclaimed to be "political constitutions." The writers of the American Constitution were well aware that they were engaged in fashioning an arrangement for the exercise of political functions and the peaceful adjustment of political conflict. And, however much validity there continues to be to de Tocqueville's …

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The Abolition Of Self-Help Repossession: The Poor Pay Even More, James J. White Jan 1973

The Abolition Of Self-Help Repossession: The Poor Pay Even More, James J. White

Articles

In this paper I propose to identify possible ways in which a court could uphold the constitutionality of section 9-503 without an explicit rejection of Fuentes v. Shevin. It is my thesis that Fuentes v. Shevin is probably an undesirable outcome, and that the application of the same doctrine to self-help repossession is certainly undesirable and would constitute due process gone berserk. My arguments will not be novel; each has been suggested by the courts that have considered this matter, or by the briefs of the lawyers who have argued these cases. I cannot even claim to have collected the …

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The Reincarnation Of The Death Penalty: Is It Possible?, Yale Kamisar Jan 1973

The Reincarnation Of The Death Penalty: Is It Possible?, Yale Kamisar

Articles

Fifty years ago Clarence Darrow, probably the greatest criminal defense lawyer in American history and a leading opponent of capital punishment, observed: The question of capital punishment has been the subject of endless discussion and will probably never be settled so long as men believe in punishment. Some states have abolished and then reinstated it; some have enjoyed capital punishment for long periods of time and finally prohibited the use of it. The reasons why it cannot be settled are plain. There is first of all no agreement as to the objects of punishment. Next there is no way to …

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Judicial Supremacy Re-Examined: A Proposed Alternative, G. Sidney Buchanan Jun 1972

Judicial Supremacy Re-Examined: A Proposed Alternative, G. Sidney Buchanan

Michigan Law Review

A citizen critic recently expressed to me his bitter opposition to the Warren Court's decisions on school prayer and school desegregation. If this critic were elected governor of a state or placed in some other position of governmental authority, he would almost certainly use his power to block public school desegregation and to encourage prayer reading in the public schools. Conceding that our critic would be acting controversially in so using his power, would he be acting unconstitutionally? This is the question which this Article will attempt to answer. More generally, this Article will consider the extent to which a …

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Educational Financing, Equal Protection Of The Laws, And The Supreme Court, Michigan Law Review Jun 1972

Educational Financing, Equal Protection Of The Laws, And The Supreme Court, Michigan Law Review

Michigan Law Review

Recently, state systems of financing public education have been overturned or seriously threatened by several state and federal court cases based on the equal protection clause of the fourteenth amendment. Rodriguez v. San Antonio Independent School District, which invalidated the Texas system of educational financing, will be argued before the Supreme Court next term. This Comment will examine the doctrinal and policy problems that the Court will confront and the alternative solutions that are available to the Court when it considers the constitutionality of the Texas system, which is typical of the educational financing programs that have generated so …

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County Home Rule: An Approach To Metropolitan Problems In Michigan, Stephen M. Silverman Jan 1972

County Home Rule: An Approach To Metropolitan Problems In Michigan, Stephen M. Silverman

University of Michigan Journal of Law Reform

This note examines what seems to be the most viable solution for metropolitan problems in Michigan: county home rule, as authorized by the 1963 state constitution. Since the primary obstacle to the use of county- home rule as a vehicle for metropolitan reform appears to lie in the present statutory authority, the Michigan County Home Rule Act of 1966 (Act), considerable attention is given to the Act and to recent legislation proposed to amend the Act, Michigan House Bill 5464, introduced into the Michigan Legislature on June 21, 1971, and currently pending before the Michigan House Committee on Towns and …

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