Courts Commons^™

Punishment But Not A Penalty? Punitive Damages Are Impermissible Under Foreign Substantive Law, Paul A. Hoversten

Michigan Law Review

It is a well-established principle that no court applies the penal laws of another sovereign. But what exactly is a penal law? According to Judge Cardozo, a penal law effects “vindication of the public justice” rather than “reparation to one aggrieved.” Although courts have historically treated punitive damages as a purely civil remedy, that attitude has shifted over time. Modern American punitive damages serve not to compensate the plaintiff but to punish the defendant on behalf of the whole community. Therefore, when courts rely on foreign substantive law to impose punitive damages, they arguably violate the well-established principle that no …

The Lottery Docket, Daniel Epps, William Ortman

Michigan Law Review

We propose supplementing the Supreme Court’s caseload with a “lottery docket” of cases selected at random from final judgments of the circuit courts. The Court currently possesses almost unfettered authority to set its own agenda through its certiorari jurisdiction. By rule and custom, the Court exercises that discretion by selecting cases that it sees as important, in a narrow sense of that term. The Court’s free hand in agenda setting has obvious benefits, but it has drawbacks as well. It deprives the Court of critical information about how the law operates in ordinary cases. It signals to circuit courts that …

High-Stakes Interpretation, Ryan D. Doerfler

Michigan Law Review

Courts look at text differently in high-stakes cases. Statutory language that would otherwise be “unambiguous” suddenly becomes “less than clear.” This, in turn, frees up courts to sidestep constitutional conflicts, avoid dramatic policy changes, and, more generally, get around undesirable outcomes. The standard account of this behavior is that courts’ failure to recognize “clear” or “unambiguous” meanings in such cases is motivated or disingenuous, and, at best, justified on instrumentalist grounds.

This Article challenges that account. It argues instead that, as a purely epistemic matter, it is more difficult to “know” what a text means—and, hence, more difficult to regard …

Expanding The Search For America's Missing Jury, Richard Lorren Jolly

Michigan Law Review

A review of Suja A. Thomas, The Missing American Jury: Restoring the Fundamental Constitutional Role of the Criminal, Civil, and Grand Juries.

The "Broadest Reasonable Interpretation" And Applying Issue Preclusion To Administrative Patent Claim Construction, Jonathan I. Tietz

Michigan Law Review

Inventions are tangible. Yet patents comprise words, and words are imprecise. Thus, disputes over patents involve a process known as “claim construction,” which formally clarifies the meaning of a patent claim’s words and, therefore, the scope of the underlying property right. Adversarial claim construction commonly occurs in various Article III and Article I settings, such as district courts or the Patent Trial and Appeal Board (PTAB). When these proceedings ignore each other’s claim constructions, a patent’s scope can become inconsistent and unpredictable. The doctrine of issue preclusion could help with this problem. The Supreme Court recently reemphasized in B & …

Neither Limited Nor Simplified: A Proposal For Reform Of Illinois Supreme Court Rule 222(B), Michael S. Smith

Michigan Law Review

A limited and simplified discovery system should broaden access to courts, resolve disputes quickly, and expedite relief to injured parties. It should not incentivize procedural gamesmanship or increase the system’s complexity. Regrettably, Illinois’s “limited and simplified” discovery system does both. The initiation procedure for the simplified system, Rule 222(b), creates procedural traps and perverse incentives for both plaintiffs and defendants, and conflicting appellate interpretations of the Rule intensify the problem. This Note examines the flaws underlying the current simplified discovery scheme and argues for reform. It examines simplified discovery schemes in other states to recommend a new system for initiating …

Corpus Linguistics: Misfire Or More Ammo For The Ordinary - Meaning Canon?, John D. Ramer

Michigan Law Review

Scholars and judges have heralded corpus linguistics—the study of language through collections of spoken or written texts—as a novel tool for statutory interpretation that will help provide an answer in the occasionally ambiguous search for “ordinary meaning” using dictionaries. In the spring of 2016, the Michigan Supreme Court became the first to use corpus linguistics in a majority opinion. The dissent also used it, however, and the two opinions reached different conclusions. In the first true test for corpus linguistics, the answer seemed to be just as ambiguous as before.

This result calls into question the utility of corpus linguistics. …

Chevron In The Circuit Courts, Kent Barnett, Christopher J. Walker

Michigan Law Review

This Article presents findings from the most comprehensive empirical study to date on how the federal courts of appeals have applied Chevrondeference— the doctrine under which courts defer to a federal agency’s reasonable interpretation of an ambiguous statute that it administers. Based on 1,558 agency interpretations the circuit courts reviewed from 2003 through 2013 (where they cited Chevron), we found that the circuit courts overall upheld 71% of interpretations and applied Chevrondeference 77% of the time. But there was nearly a twenty-five-percentage-point difference in agency-win rates when the circuit courts applied Chevrondeference than when they did …

Internal Administrative Law, Gillian E. Metzger, Kevin M. Stack

Michigan Law Review

For years, administrative law has been identified as the external review of agency action, primarily by courts. Following in the footsteps of pioneering administrative law scholars, a growing body of recent scholarship has begun to attend to the role of internal norms and structures in controlling agency action. This Article offers a conceptual and historical account of these internal forces as internal administrative law. Internal administrative law consists of the internal directives, guidance, and organizational forms through which agencies structure the discretion of their employees and presidents control the workings of the executive branch. It is the critical means for …

Making Treaty Implementation More Like Statutory Implementation, Jean Galbraith

Michigan Law Review

Both statutes and treaties are the “supreme law of the land,” and yet quite different practices have developed with respect to their implementation. For statutes, all three branches have embraced the development of administrative law, which allows the executive branch to translate broad statutory directives into enforceable obligations. But for treaties, there is a far more cumbersome process. Unless a treaty provision contains language that courts interpret to be directly enforceable, they will deem it to require implementing legislation from Congress. This Article explores and challenges the perplexing disparity between the administration of statutes and treaties. It shows that the …

Proposing A One-Year Time Bar For 8 U.S.C. § 1226(C), Jenna Neumann

Michigan Law Review

Section 1226(c) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) requires federal detention of certain deportable noncitizens when those noncitizens leave criminal custody. This section applies only to noncitizens with a criminal record (“criminal noncitizens”). Under section 1226(c), the Attorney General must detain for the entire course of his or her removal proceedings any noncitizen who has committed a qualifying offense “when the alien is released” from criminal custody. Courts construe this phrase in vastly different ways when determining whether a criminal noncitizen will be detained. The Board of Immigration Appeals (BIA) and the Fourth Circuit read “when …

The Effect Of Legislation On Fourth Amendment Protection, Orin S. Kerr

Michigan Law Review

When judges interpret the Fourth Amendment, and privacy legislation regulates the government’s conduct, should the legislation have an effect on the Fourth Amendment? Courts are split three ways. Some courts argue that legislation provides the informed judgment of a coequal branch that should influence the Fourth Amendment. Some courts contend that the presence of legislation should displace Fourth Amendment protection to prevent constitutional rules from interfering with the legislature’s handiwork. Finally, some courts treat legislation and the Fourth Amendment as independent and contend that the legislation should have no effect. This Article argues that courts should favor interpreting the Fourth …

The Fmla And Psychological Support: Courts Care About "Care" (And Employers Should, Too), Katherine Stallings Bailey

Michigan Law Review

The Family and Medical Leave Act (“FMLA”) recognizes an employee’s right to take leave to care for a qualifying family member. In light of the Act’s remedial nature, the intended scope of the care provision is broad, but its definitional details are sparse. As a result of the attendant interpretive discretion afforded to courts, the Seventh Circuit announced its rejection of the requirement—first articulated by the Ninth Circuit—that care provided during travel be related to continuing medical treatment. A facial analysis of the resulting circuit split fails to appreciate the fundamental difference between the Seventh and Ninth Circuits’ considerations: the …

Federal Review Of State Criminal Convictions: A Structural Approach To Adequacy Doctrine, Eve Brensike Primus

Michigan Law Review

Modern state postconviction review systems feature procedural labyrinths so complicated and confusing that indigent defendants have no realistic prospect of complying with the rules. When defendants predictably fail to navigate these mazes, state and federal courts deem their claims procedurally defaulted and refuse to consider those claims on their merits. As a result, systemic violations of criminal procedure rights—like the right to effective counsel—persist without judicial correction.

But the law contains a tool that, if properly adapted, could bring these systemic problems to the attention of federal courts: procedural adequacy. Procedural adequacy doctrine gives federal courts the power to ignore …

Private Actors And Public Corruption: Why Courts Should Adopt A Broad Interpretation Of The Hobbs Act, Megan Demarco

Michigan Law Review

Federal prosecutors routinely charge public officials with “extortion under color of official right” under a public-corruption statute called the Hobbs Act. To be prosecuted under the Hobbs Act, a public official must promise official action in return for a bribe or kickback. The public official, however, does not need to have actual authority over that official action. As long as the victim reasonably believed that the public official could deliver or influence government action, the public official violated the Hobbs Act. Private citizens also solicit bribes in return for influencing official action. Yet most courts do not think the Hobbs …

A Day In Court For Data Breach Plaintiffs: Preserving Standing Based On Increased Risk Of Identity Theft After Clapper V. Amnesty International Usa, Thomas Martecchini

Michigan Law Review

Following a data breach, consumers suffer an increased risk of identity theft because of the exposure of their personal information. Limited protection by data-breach statutes has made it difficult for consumers to seek compensation for these injuries and penalize the companies that fail to protect their information, leading consumers to bring common law claims in court. Yet courts have disagreed about whether an increased risk of identity theft qualifies as an injury-in-fact under Article III standing principles: the Seventh and Ninth Circuits have approved of increased risk standing, while the Third Circuit has rejected it. The Supreme Court has further …

Face-To-Face With Facial Recognition Evidence: Admissibility Under The Post-Crawford Confrontation Clause, Joseph Clarke Celentino

Michigan Law Review

In Crawford v. Washington, the Supreme Court announced a major change in Confrontation Clause doctrine, abandoning a decades-old framework that focused on the common law principles of hearsay analysis: necessity and reliability. The new doctrine, grounded in an originalist interpretation of the Sixth Amendment, requires courts to determine whether a particular statement is testimonial. But the Court has struggled to present a coherent definition of the term testimonial. In its subsequent decisions, the Court illustrated that its new Confrontation Clause doctrine could be used to bar forensic evidence, including laboratory test results, if the government failed to produce the …

Confessions In An International Age: Re-Examining Admissibility Through The Lens Of Foreign Interrogations, Julie Tanaka Siegel

Michigan Law Review

In Colorado v. Connelly the Supreme Court held that police misconduct is necessary for an inadmissible confession. Since the Connelly decision, courts and scholars have framed the admissibility of a confession in terms of whether it successfully deters future police misconduct. As a result, the admissibility of a confession turns largely on whether U.S. police acted poorly, and only after overcoming this threshold have courts considered factors pointing to the reliability and voluntariness of the confession. In the international context, this translates into the routine and almost mechanic admission of confessions— even when there is clear indication that the confession …

The Supreme Assimilation Of Patent Law, Peter Lee

Michigan Law Review

Although tensions between universality and exceptionalism apply throughout law, they are particularly pronounced in patent law, a field that deals with highly technical subject matter. This Article explores these tensions by investigating an underappreciated descriptive theory of Supreme Court patent jurisprudence. Significantly extending previous scholarship, it argues that the Court’s recent decisions reflect a project of eliminating “patent exceptionalism” and assimilating patent doctrine to general legal principles (or, more precisely, to what the Court frames as general legal principles). Among other motivations, this trend responds to rather exceptional patent doctrine emanating from the Federal Circuit in areas as varied as …

Why Enumeration Matters, Richard A. Primus

Michigan Law Review

The maxim that the federal government is a government of enumerated powers can be understood as a “continuity tender”: not a principle with practical consequences for governance, but a ritual statement with which practitioners identify themselves with a history from which they descend. This interpretation makes sense of the longstanding paradox whereby courts recite the enumeration principle but give it virtually no practical effect. On this understanding, the enumerated-powers maxim is analogous to the clause that Parliament still uses to open enacted statutes: “Be it enacted by the Queen’s most Excellent Majesty.” That text might imply that the Queen is …

More Than Just A Potted Plant: A Court's Authority To Review Deferred Prosecution Agreements Under The Speedy Trial Act And Under Its Inherent Supervisory Power, Mary Miller

Michigan Law Review

In the last decade, the Department of Justice has increasingly relied on pretrial diversion agreements as a means of resolving corporate criminal cases short of prosecution. These pretrial diversion agreements—non-prosecution and deferred prosecution agreements—include substantive terms that a company must abide by for the duration of the agreement in order to avoid prosecution. When entering a deferred prosecution agreement, the Department of Justice files charges against the defendant corporation as well as an agreement outlining the variety of terms with which the company must comply. This delay in prosecution is permitted under the Speedy Trial Act, which provides an exception …

Congress And The Reconstruction Of Foreign Affairs Federalism, Ryan Baasch, Saikrishna Bangalore Prakash

Michigan Law Review

Though the Constitution conspicuously bars some state involvement in foreign affairs, the states clearly retain some authority in foreign affairs. Correctly supposing that state participation may unnecessarily complicate or embarrass our nation’s foreign relations, the Supreme Court has embraced aggressive preemption doctrines that sporadically oust the states from discrete areas in foreign affairs. These doctrines are unprincipled, supply little guidance, and generate capricious results. Fortunately, there is a better way. While the Constitution permits the states a limited and continuing role, it never goes so far as guaranteeing them any foreign affairs authority. Furthermore, the Constitution authorizes Congress to enact …

Standing In The Way Of The Ftaia: Exceptional Applications Of Illinois Brick, Jennifer Fischell

Michigan Law Review

In 1982, Congress enacted the Foreign Antitrust Trade Improvements Act (FTAIA) to resolve uncertainties about the international reach and effect of U.S. antitrust laws. Unfortunately, the FTAIA has provided more questions than answers. It has been ten years since the Supreme Court most recently interpreted the FTAIA, and crucial questions and circuit splits abound. One of these questions is how to understand the convergence of the direct purchaser rule (frequently referred to as the Illinois Brick doctrine) and the FTAIA. Under the direct purchaser rule, only those who purchase directly from antitrust violators are typically permitted to sue under section …

Holding On To Clarity: Reconciling The Federal Kidnapping Statute With The Trafficking Victims Protection Act, Benjamin Reese

Michigan Law Review

In recent decades, the international community has come to recognize human trafficking as a problem of epidemic proportions. Congress responded to this global crisis in 2000 by passing the Trafficking Victims Protection Act (TVPA) and has since supplemented that comprehensive enactment. But, in light of the widespread use of psychological rather than physical coercion in trafficking cases, a long-standing split among federal courts regarding the scope of the federal kidnapping statute raises significant concerns about the United States’ efforts to combat traffickers. In particular, the broad interpretation adopted by several circuits threatens effective enforcement of statutes designed to prosecute traffickers, …

Pinholster's Hostility To Victims Of Ineffective State Habeas Counsel, Jennifer Utrecht

Michigan Law Review

Cullen v. Pinholster foreclosed federal courts from considering new evidence when reviewing 28 U.S.C. § 2254(d) petitions for claims previously adjudicated on the merits in state court. This decision has a particularly adverse effect on petitioners whose state habeas counsel left an incomplete or undeveloped record. This Note discusses strategies for victims of ineffective state habeas counsel to avoid the hostile mandate of Pinholster. It argues that, in light of Martinez v. Ryan’s recognition of the importance of counsel in initialreview collateral proceedings, courts should be wary of dismissing claims left un- or underdeveloped by ineffective state habeas counsel. It …

Disentangling Michigan Court Rule 6.502(G)(2): The "New Evidence" Exception To The Ban On Successive Motions For Relief From Judgment Does Not Contain A Discoverability Requirement, Claire V. Madill

Michigan Law Review

Michigan courts are engaging in a costly interpretative mistake. Confused by the relationship between two distinct legal doctrines, Michigan courts are conflating laws in a manner that precludes convicted defendants from raising their constitutional claims in postconviction proceedings. In Michigan, a convicted defendant who wishes to collaterally attack her conviction must file a 6.500 motion. The Michigan Court Rules generally prohibit “second or subsequent” motions. Nonetheless, section 6.502(G)(2) permits a petitioner to avoid this successive motion ban if her claim relies on “new evidence that was not discovered” before her original postconviction motion. Misguided by the similarity between the language …

Eliminating Financiers From The Equation: A Call For Court-Mandated Fee Shifting In Divorces, Bibeane Metsch-Garcia

Michigan Law Review

Divorce can be prohibitively costly. Many struggle or simply cannot afford to pay divorce attorneys’ fees, and the economic effects of divorce on women are particularly acute. In the past few years, financing firms have emerged to fund nonmonied spouses, mostly women, who cannot afford to litigate divorces from their wealthy spouses. The services provided come with a hefty price tag: firms take large fees, and their involvement may lead to unethical and potentially damaging practices. This Note explains what third-party divorce finance firms are and why the use of firms is problematic, and offers an alternative, more equitable method …

The Demise Of Habeas Corpus And The Rise Of Qualified Immunity: The Court's Ever Increasing Limitations On The Development And Enforcement Of Constitutional Rights And Some Particularly Unfortunate Consequences, Stephen R. Reinhardt

Michigan Law Review

The collapse of habeas corpus as a remedy for even the most glaring of constitutional violations ranks among the greater wrongs of our legal era. Once hailed as the Great Writ, and still feted with all the standard rhetorical flourishes, habeas corpus has been transformed over the past two decades from a vital guarantor of liberty into an instrument for ratifying the power of state courts to disregard the protections of the Constitution. Along with so many other judicial tools meant to safeguard the powerless, enforce constitutional rights, and hold the government accountable, habeas has been slowly eroded by a …

Proving Personal Use: The Admissibility Of Evidence Negating Intent To Distribute Marijuana, Stephen Mayer

Michigan Law Review

Against the backdrop of escalating state efforts to decriminalize marijuana, U.S. Attorneys’ Offices continue to bring drug-trafficking prosecutions against defendants carrying small amounts of marijuana that are permitted under state law. Federal district courts have repeatedly barred defendants from introducing evidence that they possessed this marijuana for their own personal use. This Note argues that district courts should not exclude three increasingly common kinds of “personal use evidence” under Federal Rules of Evidence 402 and 403 when that evidence is offered to negate intent to distribute marijuana. Three types of personal use evidence are discussed in this Note: (1) a …

Judge Posner's Simple Law, Mitchell N. Berman

Michigan Law Review

The world is complex, Richard Posner observes in his most recent book, Reflections on Judging. It follows that, for judges to achieve “sensible” resolutions of real-world disputes—by which Judge Posner means “in a way that can be explained in ordinary language and justified as consistent with the expectations of normal people” (p. 354)—they must be able to navigate the world’s complexity successfully. To apply legal rules correctly and (where judicial lawmaking is called for) to formulate legal rules prudently, judges must understand the causal mechanisms and processes that undergird complex systems, and they must be able to draw sound factual …