Courts Commons^™

Response To "Snyder V. Louisiana: Continuing The Historical Trend Towards Increased Scrutiny Of Peremptory Challenges", Bidish J. Sarma

Michigan Law Review First Impressions

John P. Bringewatt's recent note makes several important observations about the Supreme Court's opinion in Snyder v. Louisiana. Although he provides reasonable support for the claim that Snyder represents a sea change in Batson jurisprudence, the US Supreme Court's fresh opinion in Thaler v. Haynes (rendered on February 22, 2010) reads the Snyder majority opinion narrowly and suggests the possibility that Snyder is not as potent as it should be. The Haynes per curiam's guarded reading of Snyder signals the need for courts to continue to conduct the bird's-eye cumulative analysis that the Court performed in Miller-El v. Dretke[hereinafter Miller-El …

Presumed Guilty Until Proven Innocent: The Burden Of Proof In Wrongful Conviction Claims Under State Compensation Statutes, Daniel S. Kahn

University of Michigan Journal of Law Reform

Despite significant efforts to uncover and prevent wrongful convictions, little attention has been paid to the compensation of wrongfully convicted individuals once they are released from prison. State compensation statutes offer the best path to redress because they do not require the claimant to prove that the state was at fault for the wrongful conviction and because they are not susceptible to the same political influences as other methods of compensation. However, even under compensation statutes, too many meritorious claims are dismissed, settled for far too little, or never brought in the first place. After examining the current statutory framework, …

Protecting Nominative Fair Use, Parody, And Other Speech-Interests By Reforming The Inconsistent Exemptions From Trademark Liability, Samuel M. Duncan

University of Michigan Journal of Law Reform

Federal trademark law exempts certain communicative uses of a trademark from liability so that the public can freely use a trademark to comment on the markowner or to describe its products. These exemptions for "speech-interests" are badly flawed because their scope is inconsistent between infringement and dilution law, and because the cost and difficulty of claiming their protection varies significantly from court to court. Many speech-interests remain vulnerable to the chilling threat of litigation even though they are "protected" by current law. This Note proposes a simple statutory reform that will remedy this inconsistency by creating an express safe harbor …

Insterstitial Exclusivities After Association For Molecular Pathology, Mary Mitchell, Dana A. Remus

Michigan Law Review First Impressions

The high profile cases Bilski v. Kappos and Association for Molecular Pathology v. United States Patent and Trademark Office have renewed public debate about the proper scope of patentable subject matter. The subject matter inquiry has traditionally been treated as a threshold inquiry in patent law, serving a gate-keeping function by defining the types of inventions that are eligible for patent protection. The Patent Office and courts have approached the subject matter inquiry both by determining whether an invention falls into a statutory category-processes, machines, manufactures, or compositions of matter-as well as by determining whether an invention falls into a …

The French Huissier As A Model For U.S. Civil Procedure Reform, Robert W. Emerson

University of Michigan Journal of Law Reform

Huissiers de justice serve multiple roles in the French legal system. One is that of a court officer who compiles dossiers (reports). In that role, the huissier is d'audiencier (literally translated as "hearing" or "assisting") and works directly for the court system itself.

The huissier's report remains alien to the American lawyer, who is steeped in notions of procedure and "testimonialism" and in principles of fairness which appear ancient, but are rather modern dissimulations of law and equity's rich history in the American tradition. An important aspect of most legal processes, the collection of data in preparation for litigation is …

Inferiorizing Judicial Review: Popular Constitutionalism In Trial Courts, Ori Aronson

University of Michigan Journal of Law Reform

The ongoing debates over the legitimacy of judicial review-the power of courts to strike down unconstitutional statutes-as well as the evolving school of thought called "popular constitutionalism, " are characterized by a preoccupation with the Supreme Court as the embodiment of judicial power This is a striking shortcoming in prevailing constitutional theory, given the fact that in the United States, inferior courts engage in constitutional adjudication and in acts of judicial review on a daily basis, in ways that are importantly different from the familiar practices of the Supreme Court. The Article breaks down this monolithic concept of "the courts" …

The Federal Sentencing Guidelines: A Misplaced Trust In Mechanical Justice, Evangeline A. Zimmerman

University of Michigan Journal of Law Reform

In 1984 the Sentencing Reform Act was passed, ending fully discretionary sentencing by judges and allowing for the creation of the Federal Sentencing Guidelines ("FSG" or "Guidelines"). This Note proposes that the Guidelines failed not only because they ran afoul of the Sixth Amendment, as determined by the Supreme Court in 2005, but also because they lacked a clear underlying purpose, had a misplaced trust in uniformity, and were born of political compromise. Moreover, the effect of the FSG was to blindly shunt discretionary decisions from judges, who are supposed to be neutral parties, to prosecutors, who are necessarily partisan. …

The Impact Of Civilian Aggravating Factors On The Military Death Penalty (1984-2005): Another Chapter In The Resistance Of The Armed Forces To The Civilianization Of Military Justice, Catherine M. Grosso, David C. Baldus, George Woodworth

University of Michigan Journal of Law Reform

In 1984, the U.S. Armed Forces amended its capital punishment system for death eligible murder to bring it into compliance with Furman v. Georgia. Those amendments were modeled after death penalty legislation prevailing in over thirty states. After a brief period between 1986 and 1990, the charging decisions of commanders and the conviction and sentencing decisions of court martial members (jurors) transformed the military death penalty system into a dual system that treats two classes of death eligible murder quite differently. Since 1990, a member of the armed forces accused of a killing a commissioned officer or murder with a …

Xilinx Revisited, Reuven S. Avi-Yonah

Articles

On March 22 the Ninth Circuit released its new opinion in Xilinx v. Commissioner, Doc 2010-6163, 2010 WTD 55-42. 1 As has been expected since the panel withdrew its original opinion, it reversed itself and in a 2-1 opinion held for the taxpayer. The opinion makes it pretty clear why the reversal occurred. It was the result of concentrated pressure by the international tax community and the fact that the government was unwilling to defend the theory on which the panel originally decided the case: that the arm’s-length standard of the section 482 regulations does not apply to cost sharing. …

The Tax Injunction Act And Federal Jurisdiction: Reasoning From The Underlying Goals Of Federalism And Comity, David Fautsch

Michigan Law Review

States routinely contest federal jurisdiction when a state tax is challenged in federal district court on federal constitutional grounds. States argue that the Tax Injunction Act, 28 U.S.C. § 1341 (2006), bars jurisdiction and, even if the Tax Injunction Act does not apply, the principals of federalism and comity require abstention. The United States Supreme Court has not squarely addressed the scope of federalism and comity in relation to the Tax Injunction Act, and federal courts of appeal are split. In the Fourth and Tenth Circuits, federalism and comity require federal district courts to abstain even where the Tax Injunction …

Pioneers Versus Improvers: Enabling Optimal Patent Claim Scope, Timothy Chen Saulsbury

Michigan Telecommunications & Technology Law Review

Arising most commonly as a defense to an infringement claim, enablement requires a patent to describe the claimed invention in sufficient detail to permit a person having ordinary skill in the relevant field to replicate and use the invention without needing to engage in "undue experimentation." If a patent claim is not "enabled"--i.e., if a person having ordinary skill in the art (PHOSITA) who studied the patent cannot make or use the invention without undue experimentation--the claim is invalid and can no longer be asserted. This penalty deters patent applicants from claiming more than they invented and allows others to …

Redemption Song: Graham V. Florida And The Evolving Eighth Amendment Jurisprudence, Robert Smith, G. Ben Choen

Michigan Law Review First Impressions

In Graham v. Florida, the Supreme Court held that the Eighth Amendment prohibits a sentence of life without parole ("LWOP") for a juvenile under eighteen who commits a non-homicide offense. For Terrance Graham, who committed home-invasion robbery at seventeen, the decision does not mean necessarily that he someday will leave the brick walls of Florida's Taylor Annex Correctional Institution. Unlike previous Eighth Amendment decisions, such as Roper v. Simmons, where the Court barred the death penalty for juveniles, this new categorical rule does not translate into automatic relief for members of the exempted class: "A State need not guarantee the …

Lorain, Aspen, And The Future Of Section 2 Enforcement, Xiao Jeff Liu

Michigan Telecommunications & Technology Law Review

The Sherman Antitrust Act § 2 makes monopolizing or attempting to monopolize a particular trade or aspects of a trade a federal felony. More specifically, Section 2 of the Act addresses a firm's unilateral conduct. Under the administration of former President George W. Bush, a comprehensive guideline titled Competition and Monopoly: Single-Firm Conduct under Section 2 of the Sherman Act ("Bush Guidelines") was adopted in September of 2008 for enforcing Section 2 violations. Under President Barack Obama's administration, however, the enforcement of antitrust laws is expected to undergo a radical transformation. On May 11, 2009, Christine A. Varney, the Assistant …

Not So Technical: An Analysis Of Federal Circuit Patent Decisions Appealed From The Itc, Holly Lance

Michigan Telecommunications & Technology Law Review

A widespread perception among the patent law community is that the patent system would be more effective if judges with technical backgrounds and patent law experience decided patent disputes. Proponents believe that if judges all had similar baseline knowledge of technological analysis, there would be more consistency in decision-making, leading to more predictability for parties. Some district courts have unofficially become semi-specialized in patent law disputes, and Congress is debating whether to institute a more formalized Patent Pilot Program in which district court judges specialize in patent law cases. This Note joins the debate and examines patent law cases at …

Rawls And Reparations, Martin D. Carcieri

Michigan Journal of Race and Law

In the past two years, four related events have sharpened debates on race in the U.S.: President Obama's election, the nomination of Judge Sonia Sotomayor to the Supreme Court, that Court's ruling in Ricci v. DeStefano, and the arrest of Obama's friend, Harvard professor Henry Gates. The President has spoken of a "teaching moment" arising from these events. Moreover, his writings, speeches and lawmaking efforts illustrate the contractual nature of Obama's thinking. The President (and all concerned citizens) should thus find useful an analysis of racial policy and justice in light of the work of John Rauls. Rawls may …

Identity, Effectiveness, And Newness In Transjudicialism's Coming Of Age, Mark Toufayan

Michigan Journal of International Law

This Article attempts to expose and problematize the ideological connections and normative commitments between these theoretical explanations of effectiveness and the pragmatic process-oriented proposals made in the 1990s when the United Nations was searching for ways to renew the discipline of international human rights law while avoiding the dual risks of politicization and Third World normative fragmentation. The liberal theory of effective supranational adjudication was the culmination of decade-long efforts by American liberal internationalists to provide a theoretical basis for and programmatic proposals towards achieving a more "effective" international human rights regime. Their theory aims at structuring the interface between …

Judicial Independence And Company Law In The Shanghai People's Courts, 1992-2008, Nicholas C. Howson

Book Chapters

This chapter draws on a detailed study of corporate law adjudication in Shanghai from 1992 to 2008. The purpose of the study was to better understand the demonstrated technical competence, institutional autonomy, and political independence of one court system in the People's Republic of China ("PRC") in a sector outside of the criminal law. The study consisted of a detailed examination and comparison of full-length corporate law opinions for more than 200 reported cases, a 2003 Shanghai High Court opinion on the 1994 Company Law (describing a decade of corporate case outcomes), a 2007 report on cases implementing the Company …

The Inherent Jurisdiction Of Wto Tribunals: The Select Application Of Public International Law Required By The Judicial Function, Andrew D. Mitchell, David Heaton

Michigan Journal of International Law

This Article explores whether World Trade Organization (WTO) panels and the Appellate Body (WTO Tribunals) have the power to apply certain rules of public international law by reason of their judicial character, and because the application of these rules is necessary for the proper exercise of their judicial function. In other words, it seeks to answer the following questions: Do WTO Tribunals have inherent jurisdiction? And, if so, what are some of the rules applicable under and limitations on this jurisdiction?

International Adjudication: A Response To Paulus--Courts, Custom, Treaties, Regimes, And The Wto, Donald H. Regan

Book Chapters

I am pleased to have the opportunity to respond to Andreas Paulus’s very interesting contribution, and to elaborate on some of the matters he raises. As will be all too obvious, I am not an expert on general public international law. I undertook this assignment in the hope that I would learn something (as I have), and that I would eventually think of something useful to say (less clear). Happily, the one area of international law where I do have some expertise is the law of the World Trade Organization (WTO). The WTO is often used as an example in …

Balancing Judicial Cognizance And Caution: Whether Transnational Corporations Are Liable For Foreign Bribery Under The Alien Tort Statute, Matt A. Vega

Michigan Journal of International Law

In the process of applying the ATS to foreign bribery, this Article will examine several unresolved issues surrounding this statutory grant. It will seek to (1) determine what constitutes a "violation of the law of nations," (2) refute the proposition that private defendants may be prosecuted under the ATS for only the most shocking and egregious jus cogens violations, (3) determine when and to what extent state action is required in ATS litigation, and (4) examine the limitations of the fundamental principles of international law on ATS litigation.

The Use Of Article 31(3)(C) Of The Vclt In The Case Law Of The Ecthr: An Effective Anti-Fragmentation Tool Or A Selective Loophole For The Reinforcement Of Human Rights Teleology?, Vassilis P. Tzevelekos

Michigan Journal of International Law

In Part I the Article will briefly introduce the question of the fragmentation of international law, and will more extensively delineate the role that the ILC attributed to Article 31(3)(c) and the ILC's expectations regarding its success in this role. Next, Part II will give an overview of the special elements of the ECHR socio-normative environment, which gave rise to the case law into which Article 31(3)(c) came into force. The Article will argue that, in addition to benefiting from the very special nature of the ECHR, the Strasbourg Court also has a significant number of interpretative tools that allow …

Corporate Law In The Shanghai People's Courts, 1992-2008: Judicial Autonomy In A Contemporary Authoritarian State, Nicholas C. Howson

Articles

In late 2005 China adopted a largely rewritten Company Law that radically increased the role of courts. This study, based on a review of more than 1000 Company Law-related disputes reported between 1992 and 2008 and extensive interactions with PRC officials and sitting judges, evaluates how the Shanghai People's Court system has fared over 15 years in corporate law adjudication. Although the Shanghai People's Courts show generally increasing technical competence and even intimations of political independence, their path toward institutional autonomy is inconsistent. Through 2006, the Shanghai Court system demonstrated significantly increased autonomy. After 2006 and enactment of the new …

When A Company Confesses, Christopher Jackson

Michigan Law Review

Under the Federal Rules of Criminal Procedure, a defendant is normally obligated to attend all of the proceedings against her. However Rule 43(b)(2) carves out an exception for organizational defendants, stating that they "need not be present" if represented by an attorney. But on its face, the language of 43(b)(2) is ambiguous: is it the defendant or the judge who has the discretion to decide whether the defendant appears? That is, may a judge compel the presence of an organizational defendant? This Note addresses the ambiguity in the context of the plea colloquy, considering the text of several of the …

Pleading With Congress To Resist The Urge To Overrule Twombly And Iqbal, Michael R. Huston

Michigan Law Review

In Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the Supreme Court changed the rhetoric of the federal pleading system. Those decisions have been decried by members of the bar, scholars, and legislators as judicial activism and a rewriting of the Federal Rules of Civil Procedure. Such criticism has led members of both houses of Congress to introduce legislation to overrule the decisions and return to some variation of the "notice pleading" regime that existed before Twombly. This Note argues that both of the current proposals to overrule Twombly and Iqbal should be rejected. Although the bills take different …

Structure And Precedent, Jeffrey C. Dobbins

Michigan Law Review

The standard model of vertical precedent is part of the deep structure of our legal system. Under this model, we rarely struggle with whether a given decision of a court within a particular hierarchy is potentially binding at all. When Congress or the courts alter the standard structure and process offederal appellate review, however, that standard model of precedent breaks down. This Article examines several of these unusual appellate structures and highlights the difficulties associated with evaluating the precedential effect of decisions issued within them. For instance, when Congress consolidates challenges to agency decision making in a single federal circuit, …

A Review Of Richard A. Posner, How Judges Think (2008), Jeffrey S. Sutton

Michigan Law Review

I was eager to enter the judiciary. I liked the title: federal judge. I liked the job security: life tenure. And I could tolerate the pay: the same as Richard Posner's. That, indeed, may have been the most flattering part of the opportunity-that I could hold the same title and have the same pay grade as one of America's most stunning legal minds. Don't think I didn't mention it when I had the chance. There is so much to admire about Judge Posner-his lively pen, his curiosity, his energy, his apparent understanding of: everything. He has written 53 books, more …

The Functions Of Ethical Originalism, Richard A. Primus

Articles

Supreme Court Justices frequently divide on questions of original meaning, and the divisions have a way of mapping what we might suspect are the Justices’ leanings about the merits of cases irrespective of originalist considerations. The same is true for law professors and other participants in constitutional discourse: people’s views of original constitutional meaning tend to align well with their (nonoriginalist) preferences for how present constitutional controversies should be resolved. To be sure, there are exceptions. Some people are better than others at suspending presentist considerations when examining historical materials, and some people are better than others at recognizing when …

China's Judicial System And Judicial Reform, Nicholas C. Howson

Other Publications

The following is an extract from the statement delivered by Michigan Law School Professor Nicholas Howson at the inaugural “China-U.S. Rule of Law Dialogue” held at Beijing’s Tsinghua University July 29-30, 2010, and convened by Tsinghua Law Dean Wang Zhenmin and Harvard Law School Professor and East Asian Legal Studies Director William Alford, and with the support of the China-United States Exchange Foundation chaired by C.H. Tung, first chief executive and president of the Executive Council of the Hong Kong Special Administrative Region. The dialogue was organized as a private meeting between senior PRC law professors and U.S.-based Chinese law …

Reply To Richard A. Leo And Jon B. Gould, Samuel R. Gross, Barbara O'Brien

Articles

The following is a letter to the Ohio State Journal of Criminal Law received from Professors Samuel Gross and Barbara O'Brien, responding to an article published in the Journal in Fall 2009 by Professors Richard Leo and Jon Gould. This letter is followed by a reply from Professors Leo and Gould. Professors Gross and O'Brien did not see the reply prior to the Journal going to press. As we have indicated before, we welcome letters to the Journal from readers on any topic covered in a prior issue. - Editors

Does Monopoly Broth Make Bad Soup?, Daniel A. Crane

Articles

There is an oft-repeated maxim in U.S. antitrust law that a monopolist's conduct must be examined in its totality in order to determine its legality. Judges admonish that plaintiffs "should be given the full benefit of their proof without tightly compartmentalizating the various factual components and wiping the slate clean after scrutiny of each." As the U.S. Court of Appeals for the Seventh Circuit stated in much-quoted language, "It is the mix of various ingredients ... in a monopoly broth that produces the unsavory flavor."' In this article, I examine the use and misuse of monopoly broth theories. Reflecting a …