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Articles 421 - 450 of 1724

Full-Text Articles in Courts

Parens Patriae Run Amuck: The Child Welfare System's Disregard For The Constitutional Rights Of Non-Offending Parents, Vivek Sankaran Jan 2009

Parens Patriae Run Amuck: The Child Welfare System's Disregard For The Constitutional Rights Of Non-Offending Parents, Vivek Sankaran

Articles

Over the past hundred years, a consensus has emerged recognizing a parent's ability to raise his or her child as a fundamental, sacrosanct right protected by the Constitution. Federal courts have repeatedly rejected the parens patriae summary mode of decision making that predominated juvenile courts at the turn of the twentieth century and have instead held that juvenile courts must afford basic due process to parents prior to depriving them of custodial rights to their children. This recognition has led to the strengthening of procedural protections for parents accused of child abuse or neglect in civil child protection proceedings. Yet, …

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Pangloss Responds, Daniel A. Crane Jan 2009

Pangloss Responds, Daniel A. Crane

Articles

I am afraid that William Shieber and I are speaking past each other. I agree wholeheartedly with his assertion that anyone who believes that political appointees do not exert a considerable influence over the antitrust agencies is naïve. However, Technocracy and Antitrust does not advance the Panglossian view that the antitrust agencies are apolitical, if by that we mean that robotic machines devoid of human perspective or ideological commitment churn out scientifically predetermined antitrust results.

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Incorporating A 'Best Interests Of The Child' Approach Into Immigration Law And Procedure, Bridgette A. Carr Jan 2009

Incorporating A 'Best Interests Of The Child' Approach Into Immigration Law And Procedure, Bridgette A. Carr

Articles

United States immigration law and procedure frequently ignore the plight of children directly affected by immigration proceedings. This ignorance means decision-makers often lack the discretion to protect a child from persecution by halting the deportation of a parent, while parents must choose between abandoning their children in a foreign land and risking the torture of their children. United States immigration law systematically fails to consider the best interests of children directly affected by immigration proceedings. This failure has resulted in a split among the federal circuit courts of appeals regarding whether the persecution a child faces may be used to …

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Procedural Obstacles To Reviewing Ineffective Assistance Of Trial Counsel Claims In State And Federal Postconviction Proceedings., Eve Brensike Primus Jan 2009

Procedural Obstacles To Reviewing Ineffective Assistance Of Trial Counsel Claims In State And Federal Postconviction Proceedings., Eve Brensike Primus

Articles

Ineffective assistance of trial counsel is one of the most frequently raised claims in state and federal postconviction petitions. This is hardly surprising given reports of trial attorneys who refuse to investigate their cases before trial, never meet with their clients before the day of trial, and fail to file any motions or object to inadmissible evidence offered at trial. Unfortunately, the current structure of indigent defense funding makes it impossible for many public defenders to provide effective representation to their clients.

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From Bush V. Gore To Namudno: A Response To Professor Amar, Ellen D. Katz Jan 2009

From Bush V. Gore To Namudno: A Response To Professor Amar, Ellen D. Katz

Articles

In his Dunwody Lecture, Professor Akhil Amar invites us to revisit the Bush v. Gore controversy and consider what went wrong. This short essay responds to Professor Amar by taking up his invitation and looking at the decision through a seemingly improbable lens, the U.S. Supreme Court’s decision last June in Northwest Austin Municipal Utility District No. One (NAMUDNO) v. Holder. Among its many surprises, NAMUDNO helps illuminate the Court’s fundamental error nine years ago. Professor Amar forcefully argues that the mistrust with which the Justices in the Bush v. Gore majority viewed the Florida Supreme Court was both unjustified …

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Withdrawal: The Roberts Court And The Retreat From Election Law, Ellen D. Katz Jan 2009

Withdrawal: The Roberts Court And The Retreat From Election Law, Ellen D. Katz

Articles

Last Term the Supreme Court handed down four decisions that upheld diverse efforts by state governments to regulate the electoral process. The Court turned back challenges to New York’s method for nominating judicial candidates, Washington’s modified blanket primary system, Indiana’s voter identification requirement, and Alabama’s use of gubernatorial appointment to fill county commission vacancies in Mobile County. Unlike other recent election decisions, these were not close cases. All nine Justices supported the New York holding, while supermajorities voted in favor of the result in the others. This consensus, moreover, emerged even as the Court voted to reverse unanimous decisions by …

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The Federal Courts As A Franchise: Rethinking The Justifications For Federal Question Jurisdiction, Gil Seinfeld Jan 2009

The Federal Courts As A Franchise: Rethinking The Justifications For Federal Question Jurisdiction, Gil Seinfeld

Articles

The components of the Federal Franchise model-procedural homogeneity, cultural conformity, and technical competence-should be familiar. The federal courts' capacity to provide these benefits has not escaped commentators' notice; indeed, there are points of connection between these features of federal court adjudication and the individual fragments of the conventional account.l0 But prior scholarly discussion of these themes has been unsystematic, treating them as (at best) secondary considerations when it comes to the allocation of federal question cases between the state and federal courts. This Article attempts to weave together these previously disconnected strands of thinking about federal court adjudication and to …

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Performing Discretion Or Performing Discrimination: Race, Ritual, And Peremptory Challenges In Capital Jury Selection, Melynda J. Price Jan 2009

Performing Discretion Or Performing Discrimination: Race, Ritual, And Peremptory Challenges In Capital Jury Selection, Melynda J. Price

Michigan Journal of Race and Law

Research shows the mere presence of Blacks on capital juries-- on the rare occasions they are seated--can mean the difference between life and death. Peremptory challenges are the primary method to remove these pivotal participants. Batson v. Kentucky developed hearings as an immediate remedy for the unconstitutional removal of jurors through racially motivated peremptory challenges. These proceedings have become rituals that sanction continued bias in the jury selection process and ultimately affect the outcome of capital trials. This Article deconstructs the role of the Batson ritual in legitimating the removal of African American jurors. These perfunctory hearings fail to meaningfully …

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Where Equity Meets Expertise: Re-Thinking Appellate Review In Complex Litigation, Michael J. Hays Dec 2008

Where Equity Meets Expertise: Re-Thinking Appellate Review In Complex Litigation, Michael J. Hays

University of Michigan Journal of Law Reform

The field of complex litigation continues to grow as both an academic study and a popular phenomenon. One cannot escape news accounts of major class action litigation, and lawyers continue to find new ways to push the outer bounds of civil litigation practices to accommodate large-scale disputes involving multiple claims or parties. Many question whether traditional procedures can or should apply to these cases. Drawing on this well-recognized procedural tension, this Article explores the relationship between trial and appellate courts in complex litigation and argues for a revised standard of appellate review for trial court decisions affecting the party structure …

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Practice Makes Perfect? An Empirical Study Of Claim Construction Reversal Rates In Patent Cases, David L. Schwartz Nov 2008

Practice Makes Perfect? An Empirical Study Of Claim Construction Reversal Rates In Patent Cases, David L. Schwartz

Michigan Law Review

This Article examines whether U.S. district court judges improve their skills at patent claim construction with experience, including the experience of having their own cases reviewed by the Court of Appeals for the Federal Circuit. In theory, higher courts teach doctrine to lower courts via judicial decisions, and lower courts learn from these decisions. This Article tests the teaching-and-learning premise on the issue of claim construction in the realities of patent litigation. While others have shown that the Federal Circuit reverses a large percentage of lower court claim constructions, no one has analyzed whether judges with more claim construction appeal …

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Categorizing Categories: Property Of The Estate And Fraudulent Transfers In Bankruptcy, Michael R. Cedillos May 2008

Categorizing Categories: Property Of The Estate And Fraudulent Transfers In Bankruptcy, Michael R. Cedillos

Michigan Law Review

11 U.S.C. § 541 defines "property of the estate" in bankruptcy, but courts have not interpreted that section uniformly. The Fifth Circuit has read the term broadly to include both interests in property that the trustee recovers under § 541(a)(3) and legal or equitable interests under § 541(a)(1) that have purportedly been fraudulently transferred but which the trustee has not yet recovered. The Second Circuit, however, has taken a more restrained approach, holding that fraudulently transferred property that the trustee has not yet recovered does not constitute property of the estate. This Note argues that courts should adopt the Second …

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War Tales And War Trials, Patricia M. Wald Apr 2008

War Tales And War Trials, Patricia M. Wald

Michigan Law Review

In this foreword, I will compare my experiences as a judge on the International Criminal Tribunal for the former Yugoslavia, and the work of war crimes tribunals generally, with a few of the recurrent themes in epic tales of war. Books and trials strive to educate and to persuade their audiences of the barbarity of war and its antipathy to the most fundamental norms of a humane society.3 War crimes tribunals began with Nuremberg and have proliferated in the past fifteen years. These tribunals were established to try and to punish individuals for violations of international humanitarian law ("IHL")-the so-called …

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Deconstructing International Criminal Law, Kevin Jon Heller Apr 2008

Deconstructing International Criminal Law, Kevin Jon Heller

Michigan Law Review

After nearly fifty years of post-Nuremberg hibernation, international criminal tribunals have returned to the world stage with a vengeance. The Security Council created the International Criminal Tribunal for the former Yugoslavia ("ICTY") in 1993 and the International Criminal Tribunal for Rwanda ("ICTR") in 1994. Hybrid domestic-international tribunals have been established in Sierra Leone (2000), East Timor (2000), Kosovo (2000), Cambodia (2003), Bosnia (2005), and Lebanon (2007). And, of course, the international community's dream of a permanent tribunal was finally realized in 2002, when the Rome Statute of the International Criminal Court ("ICC") entered into force. This unprecedented proliferation of international …

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The Justiciability Of Eligibility: May Courts Decide Who Can Be President?, Daniel P. Tokaji Jan 2008

The Justiciability Of Eligibility: May Courts Decide Who Can Be President?, Daniel P. Tokaji

Michigan Law Review First Impressions

The 2008 election cycle has been a busy one for legal disputes over the qualifications of presidential candidates, with federal cases having been filed to challenge both major candidates’ eligibility under the “natural born Citizen” clause. These cases unquestionably present vital questions of constitutional law, touching on matters of self-evident national importance. It is doubtful, however, that they are justiciable in lower federal courts. Standing requirements and the political question doctrine make it unlikely that a federal court will reach the merits in cases of the type filed to date.

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Why John Mccain Was A Citizen At Birth, Stephen E. Sachs Jan 2008

Why John Mccain Was A Citizen At Birth, Stephen E. Sachs

Michigan Law Review First Impressions

Senator John McCain was born a citizen in 1936. Professor Gabriel J. Chin challenges this view in this Symposium, arguing that McCain’s birth in the Panama Canal Zone (while his father was stationed there by the Navy) fell into a loophole in the governing statute. The best historical evidence, however, suggests that this loophole is an illusion and that McCain is a “natural born Citizen” eligible to be president.

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Mccain’S Citizenship And Constitutional Method, Peter J. Spiro Jan 2008

Mccain’S Citizenship And Constitutional Method, Peter J. Spiro

Michigan Law Review First Impressions

Many things may obstruct John McCain’s path to the White House, but his citizenship status is not among them. The question of his eligibility, given the circumstances of his birth, has already been resolved. That outcome has been produced by actors outside the courts. . . . If non-judicial actors—including Congress, editorialists, leading members of the bar, and the People themselves—manage to generate a constitutional consensus, there isn’t much that the courts can do about it. In cases such as this one, at least, that seems to be an acceptable method of constitutional determination.

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Originalism And The Natural Born Citizen Clause, Lawrence B. Solum Jan 2008

Originalism And The Natural Born Citizen Clause, Lawrence B. Solum

Michigan Law Review First Impressions

The enigmatic phrase “natural born citizen” poses a series of problems for contemporary originalism. New Originalists, like Justice Scalia, focus on the original public meaning of the constitutional text. The notion of a “natural born citizen” was likely a term of art derived from the idea of a “natural born subject” in English law—a category that most likely did not extend to persons, like Senator McCain, who were born outside sovereign territory. But the Constitution speaks of “citizens” and not “subjects,” introducing uncertainties and ambiguities that might (or might not) make McCain eligible for the presidency.

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Why Senator John Mccain Cannot Be President: Eleven Months And A Hundred Yards Short Of Citizenship, Gabriel Chin Jan 2008

Why Senator John Mccain Cannot Be President: Eleven Months And A Hundred Yards Short Of Citizenship, Gabriel Chin

Michigan Law Review First Impressions

Article II, section 1 of the Constitution provides that “No Person except a natural born Citizen . . . shall be eligible to the Office of President . . . .” A person must be a citizen at birth to be a natural born citizen. Senator McCain was born in the Canal Zone in 1936. Although he is now a U.S. citizen, the law in effect in 1936 did not grant him citizenship at birth. Because he was not born a citizen, he is not eligible to the office of president.

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Research Tool Patents After Integra V. Merck - Have They Reached A Safe Harbor, Wolrad Prinz Jan 2008

Research Tool Patents After Integra V. Merck - Have They Reached A Safe Harbor, Wolrad Prinz

Michigan Telecommunications & Technology Law Review

The saga surrounding the Integra v. Merck cases has rekindled a heated debate about the proper scope of both common law exemption and the safe harbor provision, causing significant concern for owners of research tool patents. This Article will argue that the next judicial decision addressing the question of research tool patents should clarify that they are in a safe harbor because none of the two exemptions from infringement referenced above extends to the use of research tools in experiments in order to preserve the necessary incentives for their creation in the first place. Allowing access to research tools under …

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The Claim Construction Effect, Lee Petherbridge Jan 2008

The Claim Construction Effect, Lee Petherbridge

Michigan Telecommunications & Technology Law Review

Claim construction refers to the task of construing, or interpreting, the words of patents' claims to establish the metes and bounds of a patent. Theoretically, the task of claim construction serves to operationalize the concept of "invention," which lies at the heart of the U.S. patent system.[...] Rather than focusing on the set of cases in which the Federal Circuit addresses claim construction, this study focuses on a set of cases defined by a different patent doctrine. The basic idea is to explore the impact of claim construction on other areas of patent law.[...] The hypothesis of the claim construction …

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Cameras Should Not Be Allowed In The Supreme Court, Christina B. Whitman Jan 2008

Cameras Should Not Be Allowed In The Supreme Court, Christina B. Whitman

Book Chapters

There are understandable reasons for televising U.S. Supreme Court arguments. It is reasonable for the American public to want to understand the thinking behind so many important decisions, and other governmental branches have allowed electronic media access, as have lower courts. Such access, however, would be misleading, as oral arguments would receive attention that is disproportionate to their significance. For many justices, oral arguments play an insignificant role in their decision making, and the remarks they make during such arguments may not be indicative of their actual stances. Televising the Court's oral arguments, may result in undue attention for those …

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The Quest For Creative Jurisdiction: The Evolution Of Personal Jurisdiction Doctrine Of Israeli Courts Toward The Palestinian Territories, Michael M. Karayanni Jan 2008

The Quest For Creative Jurisdiction: The Evolution Of Personal Jurisdiction Doctrine Of Israeli Courts Toward The Palestinian Territories, Michael M. Karayanni

Michigan Journal of International Law

The thesis offered in this Article, marking three different stages in the development of the personal jurisdiction doctrine of Israeli courts toward the PT of the West Bank and the Gaza Strip, has two additional attributes. One concerns the doctrinal innovation in the general personal jurisdiction doctrine of Israeli courts that also took place as these different stages unfolded. The evolving status of the West Bank and the Gaza Strip over the years, together with the need of courts to reach conclusive results in the cases brought before them, made it necessary for courts to be creative in adjusting the …

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The Victims Of Victim Participation In International Criminal Proceedings, Charles P. Trumbull Iv Jan 2008

The Victims Of Victim Participation In International Criminal Proceedings, Charles P. Trumbull Iv

Michigan Journal of International Law

This Article proceeds as follows. Part I discusses the emerging norms regarding victims' rights in international law and the factors that influenced the victim participation scheme in the Rome Statute. Section A focuses on the victims' rights movement in domestic and international law; Section B examines the case law on victim participation from several treaty-based international human rights tribunals; and Section C explains how criticisms of the ICTY and the ICTR resulted in extensive rights for victims in the ICC. Next, Part II explains the statutory framework that governs the victims' role in ICC proceedings. It then discusses the emerging …

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Death, Dying, And Domination, Marc Spindelman Jan 2008

Death, Dying, And Domination, Marc Spindelman

Michigan Law Review

This Article critiques conventional liberal arguments for the right to die on liberal grounds. It contends that these arguments do not go far enough to recognize and address private, and in particular structural, forms of domination. It presents an alternative that does, which is thus more respectful of true freedom in the context of death and dying, and also more consistent with liberalism. After discussing obstacles to the achievement of a right to die that encompasses freedom from both public and private domination, the Article closes with a significant reform project within bioethics that might help bring it about.

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Scrutiny Land, Randy E. Barnett Jan 2008

Scrutiny Land, Randy E. Barnett

Michigan Law Review

Scrutiny Land is the place where government needs to justify to a court its restrictions on the liberties of the people. In the 1930s, the Supreme Court began limiting access to Scrutiny Land. While the New Deal Court merely shifted the burden to those challenging a law to show that a restriction of liberty is irrational, the Warren Court made the presumption of constitutionality effectively irrebuttable. After this, only one road to Scrutiny Land remained: showing that the liberty being restricted was a fundamental right. The Glucksberg Two-Step, however, limited the doctrine of fundamental rights to those (1) narrowly defined …

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Judicial Compensation And The Definition Of Judicial Power In The Early Republic, James E. Pfander Jan 2008

Judicial Compensation And The Definition Of Judicial Power In The Early Republic, James E. Pfander

Michigan Law Review

Article III's provision for the compensation of federal judges has been much celebrated for the no-diminution provision that forecloses judicial pay cuts. But other features of Article Ill's compensation provision have largely escaped notice. In particular, little attention has been paid to the framers' apparent expectation that Congress would compensate federal judges with salaries alone, payable from the treasury at stated times. Article III's presumption in favor of salary-based compensation may rule out fee-based compensation, which was a common form of judicial compensation in England and the colonies but had grown controversial by the time of the framing. Among other …

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A Call For The End Of The Doctrine Of Realignment, Jacob S. Sherkow Jan 2008

A Call For The End Of The Doctrine Of Realignment, Jacob S. Sherkow

Michigan Law Review

In Indianapolis v. Chase National Bank, 1941, the Supreme Court established the doctrine of realignment, requiring federal courts to examine the issues in dispute and realign each party as plaintiff or defendant if necessary. Due to the complete diversity requirement, realignment gave the federal courts the ability to both create and destroy diversity jurisdiction. Since 1941, the federal courts have struggled to interpret the central holding in Indianapolis, and have created several competing "tests" for realignment. This confusion has made the doctrine of realignment unworkable. Realignment along with each of the present tests-encourages jurisdictional abuses by forcing the federal …

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Patients As Consumers: Courts, Contracts, And The New Medical Marketplace, Mark A. Hall, Carl E. Schneider Jan 2008

Patients As Consumers: Courts, Contracts, And The New Medical Marketplace, Mark A. Hall, Carl E. Schneider

Michigan Law Review

The persistent riddle of health-care policy is how to control the costs while improving the quality of care. The riddle's oncepromising answer-managed care-has been politically ravaged, and consumerist solutions are now winning favor This Article examines the legal condition of the patient-as-consumer in today's health-care market. It finds that insurers bargain with some success for rates for the people they insure. The uninsured, however, must contract to pay whatever a provider charges and then are regularly charged prices that are several times insurers'pricesa nd providers' actual costs. Perhaps because they do not understand the healthcare market, courts generally enforce these …

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Is A Forensic Laboratory Report Identifying A Substance As A Narcotic 'Testimonial'?, Richard D. Friedman Jan 2008

Is A Forensic Laboratory Report Identifying A Substance As A Narcotic 'Testimonial'?, Richard D. Friedman

Articles

Is a state forensic analyst's laboratory report, prepared for use in a criminal proceeding and identifying a substance as cocaine, "testimonial" evidence and so subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004)?

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Does An Accused Forfeit The Confrontation Right By Murdering A Witness, Absent A Purpose To Render Her Unavailable?, Richard D. Friedman Jan 2008

Does An Accused Forfeit The Confrontation Right By Murdering A Witness, Absent A Purpose To Render Her Unavailable?, Richard D. Friedman

Articles

If an accused murdered a witness, should he be deemed to have forfeited the right under the Sixth Amendment "to be confronted with" the witness, absent proof that the accused committed the murder for the purpose of rendering her unavailable as a witness?

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