Courts Commons^™

Statutory Interpretation And The Idea Of Progress, Daniel A. Farber

Michigan Law Review

A Review of William N. Eskridge, Dynamic Statutory Interpretation

Structuring Multiclaim Litigation: Should Rule 23 Be Revised?, William W. Schwarzer

Michigan Law Review

The question whether Rule 23 should be revised therefore is not susceptible to a global answer unless revision is stylistic only, limited to making the text more elegant - and even stylistic revision is likely to have some substantive impact, even if unintended. But if the argument for revision is that the Rule is in some respect deficient and should be made to work better, one must begin by answering the question how it should work. That in tum depends on defining the Rule's purpose - what it is intended to accomplish.This paper examines briefly the purposes for which the …

The Case For Appellate Court Revision, Joseph F. Weis Jr.

Michigan Law Review

A Review of Rationing Justice on Appeal: The Problems of the U.S. Courts of Appeals by Thomas E. Baker

The Jury: Trial And Error In The American Courtroom, John C. Blattner

Michigan Law Review

A Review of The Jury: Trial and Error in the American Courtroom by Stephen J. Adler

Transfer And Choice Of Federal Law: The Appellate Model, Robert A. Ragazzo

Michigan Law Review

In light of recent developments, a reexamination of the position that transferee federal law applies regardless of the context is in order. This article argues that the consensus that existed prior to the Marcus article and the Korean Air Lines case, although not based upon the most thorough analysis, comprises the better view: transferee federal law should apply after permanent but not MDL transfers.

Congressional Commentary On Judicial Interpretations Of Statutes: Idle Chatter Or Telling Response?, James J. Brudney

Michigan Law Review

There are two principal aspects of my thesis. First, it is desirable to consider seriously these legislative signals of approval and disapproval, because a blanket rejection, or even systematic hostility, imposes significant opportunity costs on Congress. If the judiciary refuses to consider these signals, Congress will have to expend extra resources to achieve the same ends. That expense will diminish the institution's ability to enact other laws and in some cases will alter the character of the other laws that it is able to enact. The consequent diminution or depletion of Congress's legislative authority is unhealthy from a democratic perspective …

The Equal Access To Justice Act--Are The Bankruptcy Courts Less Equal Than Others?, Matthew J. Fischer

Michigan Law Review

This Note argues that the bankruptcy courts have authority under the BAJA to shift fees against the federal government. Part I discusses the relevant caselaw and examines the basis of the current controversy. Part II examines the statutory language, the legislative history, and the stated purposes of the BAJA and concludes that each of these aspects of the statute demonstrates a congressional intent to grant fee-shifting authority to the bankruptcy courts. Part III considers alternatives to finding bankruptcy court jurisdiction over BAJA disputes, rejecting each as inefficient and unnecessary. This Note concludes that courts should construe the BAJA consistently with …

Litigation And Inequality: Federal Diversity Jurisdiction In Industrial America, David A. Luigs

Michigan Law Review

A Review of Litigation and Inequality: Federal Diversity Jurisdiction in Industrial America by Edward A. Purcell, Jr.

Beyond The Reasons Stated In Judgments, Giorgio Gaja

Michigan Law Review

A Review of The Legal Reasoning of the European Court of Justice: Towards a European Jurisprudence by Joxerramon Bengoetxea

Incorporating The Suspension Clause: Is There A Constitutional Right To Federal Habeas Corpus For State Prisoners?, Jordan Steiker

Michigan Law Review

In the early 1960s, the Supreme Court adopted generous standards governing federal habeas petitions by state prisoners. At that time, the Court suggested, rather surprisingly, that its solicitude toward such petitions might be constitutionally mandated by the Suspension Clause, the only provision in the Constitution that explicitly refers to the "Writ of Habeas Corpus." Now, thirty years later, the Court has essentially overruled those expansive rulings, and Congress has considered, though not yet enacted, further limitations on the availability of the writ. Despite these significant assaults on the habeas forum, the constitutional argument appears to have been entirely abandoned. The …

Removal And The Eleventh Amendment: The Case For District Court Remand Discretion To Avoid A Bifurcated Suit, Mitchell N. Berman

Michigan Law Review

This Note concludes that the Sixth Circuit was half right: when a civil action names both state and private defendants - what this Note terms a "mixed case" - and when the claims against private defendants arise under federal law, the district court must grant removal of the case8 and must remand the claims against the state defendant. However, this Note also observes that the Fifth Circuit probably achieved the better result. After defendants have removed a mixed case to federal court and the district court has remanded the barred claims, the dual court systems and the parties will usually …

Article Ii Revisionism, Cass R. Sunstein

Michigan Law Review

One of the most striking developments of the last decade has been the new use of Article II in public law adjudication. Article II is a prominent feature not only of cases involving the creation of federal institutions that are independent of the President, but also of new disputes involving reviewability, scope of review, and standing.

Professor Krent and Mr. Shenkman have performed a valuable service in spelling out the argument that Article II, rather than Article III, justifies constitutional limits on legislative grants of standing. Indeed, on several important matters, we are very much in agreement. In this brief …

Postconviction Review Of Jury Discrimination: Measuring The Effects Of Juror Race On Jury Decisions, Nancy J. King

Michigan Law Review

In Part I, I review the empirical evidence concerning the effect of jury discrimination on jury decisions. Using the work of social and cognitive psychologists, I argue that the influence of jury discrimination on jury decisions is real and can be measured by judges in certain circumstances. The empirical studies suggest criteria that courts could use to identify the cases in which jury discrimination is most likely to affect the verdict. I also refute the argument that white judges can never predict the behavior of jurors of racial backgrounds different than their own and conclude that judicial estimates of the …

Dialogue And Judicial Review, Barry Friedman

Michigan Law Review

This article argues that most normative legal scholarship regarding the role of judicial review rests upon a descriptively inaccurate foundation. The goal of this article is to redescribe the landscape of American constitutionalism in a manner vastly different than most normative scholarship. At times this article slips across the line into prescription, but by and large the task is descriptive. The idea is to clear the way so that later normative work can proceed against the backdrop of a far more accurate understanding of the system of American constitutionalism.

This article proceeds in three separate parts. Parts I and II …

Retroactive Application Of The Civil Rights Act Of 1991 To Pending Cases, Michele A. Estrin

Michigan Law Review

This Note addresses the applicability of the Civil Rights Act of 1991 to cases pending on the Act's date of enactment. Part I discusses current Supreme Court doctrine on the issue. This Part finds that the Court has endorsed two conflicting views on retroactively applying statutes to pending cases and that the lower federal courts consequently lack a principled framework for dealing with retroactivity issues in the 1991 Act. Part II describes the battle over the Civil Rights Acts of 1990 and 1991 and the subsequent confusion over the enacted statute's reach. This Part finds that Congress provided conflicting textual …

Do Courts Matter?, Stephen L. Carter

Michigan Law Review

A Review of The Hollow Hope: Ca Courts Bring About Social Change? by Gerald N. Rosenberg

The Federal Courts In The Political Order: Judicial Jurisdiction And American Political Theory, James Hopenfeld

Michigan Law Review

A Review of The Federal Courts in the Political Order: Judicial Jurisdiction and American Political Theory by Martin H. Redish

Read My Lips: Examining The Legal Implications Of Knowingly False Campaign Promises, Stephen D. Sencer

Michigan Law Review

This Note does not argue that campaign speech should always be held to the same standards of accuracy to which other forms of speech are held. Campaign speech is unique in form, with its own idioms and rhetorical devices, and serves unique purposes.

Part I discusses the ways false campaign promises damage the political process and suggests that attaching legal liability to knowingly false campaign promises could serve important public policy interests. Part II applies common law contract doctrine to a hypothetical broken campaign promise, finding all the elements of a breach of contract claim. Part II concludes, however, that …

Interpreting Codes, Bruce W. Frier

Michigan Law Review

Large systematically codified bodies of law, such as the European codes or the UCC, gradually effect, or at least encourage, a different kind of legal culture, in which, as such codes are integrated within a national legal heritage, general clauses and principles become more salient within an expanded interpretive community. Because of the open texture of their rules, codes foster an altered legal posture; ancient judicial vigilance against the intrusive legislation may give way to a new ethos of cooperation in the development of law. To be sure, it remains uncertain whether the resulting law will be, in fact, "better," …

Bright Lines, Dark Deeds: Counting Convictions Under The Armed Career Criminal Act, James E. Hooper

Michigan Law Review

The Armed Career Criminal Act of 1984 (ACCA) enables the federal government to help state authorities more effectively prosecute "career criminals.'' The ACCA imposes a mandatory sentence of at least fifteen years, and up to life imprisonment, for illegal possession of a firearm by anyone who has three prior convictions for violent felonies or serious drug offenses "committed on occasions different from one another."

To apply the ACCA, judges must determine first whether the defendant's prior convictions meet the definitions of "violent felony or serious drug offense," and secondly whether the offenses were committed on different occasions so that they …

Employer Recapture Of Erisa Contributions Made By Mistake: A Federal Common Law Remedy To Prevent Unjust Enrichment, J. Daniel Plants

Michigan Law Review

This Note investigates more fully the policies animating ERISA in order to ascribe an appropriate construction to the mistaken contribution section. Part I analyzes the Ninth Circuit's anomalous implied cause of action theory. Searching the legislative history as well as ERISA's language and structure, this Part finds lacking the requisite expression of congressional intent to support a statutorily implied remedy. As an alternative, Part II explores the appropriateness of common law relief. Part II defends the creation of common law relief by the federal courts as consistent with the direct and indirect evidence suggesting that Congress envisioned judicial supplementation of …

Treatise Writing And Federal Jurisdiction Scholarship: Does Doctrine Matter When Law Is Politics?, Richard A. Matasar

Michigan Law Review

A Review of Federal Jurisdiction by Erwin Chemerinsky and Federal Jurisdiction 1990 Supplement by Erwin Chemerinsky

Criminal Justice In The Lower Courts: A Study In Continuity, Gerald Caplan

Michigan Law Review

A Review of The Transformation of Criminal Justice: Philadelphia, 1800-1880 by Allen Steinberg

Errors In Good Faith: The Leon Exception Six Years Later, David Clark Esseks

Michigan Law Review

Given this vast literature on the good faith exception, little room appears to exist for additional commentary on the propriety of the decision, its theoretical weaknesses or strengths, or what further changes in constitutional criminal procedure it forebodes. This Note will not add to the many voices complaining of the Court's misconstrual of the grounding of the exclusionary rule, nor of its crabbed notion of deterrence. Instead, it accepts, arguendo, the propriety of the exception and its underlying purpose, and then examines the six-year experience with the revised rule. The proliferation of reported applications of the good faith exception …

The First Word: The President's Place In "Legislative History", Kathryn Marie Dessayer

Michigan Law Review

This Note examines the extent to which courts interpreting statutes should consider presidential participation in the legislative process. Part I concludes that courts should afford presidential input greater weight in statutory interpretation given the constitutional foundations and the empirical reality of the President's involvement in the lawmaking process. This conclusion follows from an examination of the President's authority to propose legislation and his power to review legislation via the presentment clause. To demonstrate the advantages of using presidential documents, Part II considers a series of cases in which courts used executive documents in the statutory interpretation process. Although federal courts …

Selecting Law Clerks, Patricia M. Wald

Michigan Law Review

April may indeed have been "the cruellest month" this year for federal judges and their prospective clerks. For a decade now, federal judges have been trying - largely without success - to conduct a dignified, collegial, efficient law clerk selection process. Because each federal judge has only to choose two to three clerks each year, and there is a large universe of qualified applicants graduating each year from our law schools, this would not seem an insurmountable task. And because each federal judge has choice first-year positions to offer and has no need or ability to dicker on salary or …

Ultra-Wrong About The "Ultra-Right", Terry Eastland

Michigan Law Review

A Review of Packing the Courts: The Conservative Campaign to Rewrite the Constitution by Herman Schwartz

Siskel And Ebert At The Supreme Court, Thomas E. Baker

Michigan Law Review

A Review of Redefining the Supreme Court's Role: A Theory of Managing the Federal Judicial Process by Samuel Estreicher and John Sexton

What Process Is Due? Courts And Science-Policy Disputes, Gregory B. Heller

Michigan Law Review

A Review of What Process is Due? Courts and Science-Policy Disputes by David M. O'Brien

Judicial Review And American Democracy, Stanley S. Sokul

Michigan Law Review

A Review of Judicial Review and American Democracy by Albert P. Melone and George Mace