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Articles 361 - 390 of 488
Full-Text Articles in Courts
The New East European Constitutional Courts, Herman Schwartz
The New East European Constitutional Courts, Herman Schwartz
Michigan Journal of International Law
This article will describe some aspects of the different tribunals in Russia, Hungary, Poland, Czechoslovakia, Bulgaria, and Romania, and will compare them with each other and with the U.S. Supreme Court. The first part will begin by explaining a few basic differences between the American and Continental systems of judicial review, and will then describe the functions of the new East European constitutional courts. The second part will use the decisions of the new Russian Constitutional Court to illustrate the new courts' exercise of authority, and will summarize the recent activities of a few other new constitutional courts.
Book Review Of Clement Haynsworth, The Senate, And The Supreme Court, Davison M. Douglas
Book Review Of Clement Haynsworth, The Senate, And The Supreme Court, Davison M. Douglas
Faculty Publications
No abstract provided.
The Enduring Example Of John Marshall Harlan: "Virtue As Practice" In The Supreme Court, William W. Van Alstyne
The Enduring Example Of John Marshall Harlan: "Virtue As Practice" In The Supreme Court, William W. Van Alstyne
Faculty Publications
No abstract provided.
Gender Based Peremptory Challenges And The New York State Constitution, Frederick T. Kelsey
Gender Based Peremptory Challenges And The New York State Constitution, Frederick T. Kelsey
Touro Law Review
No abstract provided.
Review Of Cardozo: A Study In Reputation, By R. Posner, Richard D. Friedman
Review Of Cardozo: A Study In Reputation, By R. Posner, Richard D. Friedman
Reviews
Judge Richard Posner has written a genial book about one of our greatest judicial icons, Benjamin N. Cardozo.1 He seeks not only to assess the merits of Cardozo's writings, both on and off the bench, but also to measure, and determine the causes of, Cardozo's reputation. The book is an outgrowth of a lecture series,2 and it reveals its origins in at least two ways. First, the book attempts to reach a mixed audience, composed of both lawyers and laypeople, and in this aspect it is very successful. Nonlawyers, I believe, will have little difficulty following Judge Posner's essential arguments, …
Recent Supreme Court Employment Law Decisions, 1990-91, Terry A. Bethel
Recent Supreme Court Employment Law Decisions, 1990-91, Terry A. Bethel
Articles by Maurer Faculty
No abstract provided.
When Is There A Constitutional 'Right To Die'? When Is There No Constitutional 'Right To Live'?, Yale Kamisar
When Is There A Constitutional 'Right To Die'? When Is There No Constitutional 'Right To Live'?, Yale Kamisar
Articles
When I am invited to participate in conferences on the "right to die," I suspect that the organizers of such gatherings expect me to fill what might be called the " 'slippery slope' slot" on the program or, more generally, to articulate the "conservative" position on this controversial matter. These expectations are hardly surprising. The "right to die" is a euphemism for what almost everybody used to call a form of euthanasia-" passive" or "negative" or "indirect" euthanasia-and some thirty years ago, in the course of raising various objections to proposed euthanasia legislation, I advanced the "thin edge of the …
To Tell What We Know Or Wait For Godot?, Phoebe C. Ellsworth
To Tell What We Know Or Wait For Godot?, Phoebe C. Ellsworth
Articles
Professor Elliott raises two questions about the American Psychological Association's practice of submitting amicus briefs to the courts. First, are our data sufficiently valid, consistent, and generalizable to be applicable to the real world issues? Second, are amicus briefs adequate to communicate scientific findings? The first of these is not a general question, but must be addressed anew each time the Association considers a new issue. An evaluation of the quality and sufficiency of scientific knowledge about racial discrimination, for example, tells us nothing at all about the quality and sufficiency of scientific knowledge about sexual abuse. "Are the data …
Absolute Priority And New Value, James J. White
Absolute Priority And New Value, James J. White
Articles
This paper is based on a lecture given on December 6, 1990 ast the Second Annual Robert E. Krinock Lecture. The absolute priority rule is a specific application of the broader doctrine that reorganization plans must be "fair and equitable." Both have their origins in the railroad reorganization cases of the early 20th century. The general doctrine is now codified in section 1129(b)(2) of the Bankruptcy Code and the rule is codified in subsection 1129(b)(2)(B)(ii) which provides that the debtor must pay a nonconsenting class of unsecured creditors in full or "the holder of any claim or interest that is …
Errors In Good Faith: The Leon Exception Six Years Later, David Clark Esseks
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 …
Form And Function In The Administration Of Justice: The Bill Of Rights And Federal Habeas Corpus, Larry W. Yackle
Form And Function In The Administration Of Justice: The Bill Of Rights And Federal Habeas Corpus, Larry W. Yackle
University of Michigan Journal of Law Reform
Part I critiques the Report's insistence that accurate fact finding exhausts, or nearly exhausts, the objectives of criminal justice, identifies the fundamental role of the Bill of Rights in the American political order, and situates federal habeas corpus within that framework. Part II traces the Report's historical review of the federal habeas jurisdiction and critiques the Report's too-convenient reliance on selected materials that, on examination, fail to undermine conventional understandings of the writ's development as a postconviction remedy. Part III responds to the Report's complaints regarding current habeas corpus practice and refutes contentions that the habeas jurisdiction overburdens federal dockets …
A Plea For Help: Pleading Problems In Section 1983 Municipal Liability Claims, Evan S. Schwartz
A Plea For Help: Pleading Problems In Section 1983 Municipal Liability Claims, Evan S. Schwartz
Touro Law Review
No abstract provided.
Gideon V. Wainwright A Quarter-Century Later, Yale Kamisar
Gideon V. Wainwright A Quarter-Century Later, Yale Kamisar
Articles
In a brief working paper sent to all conference participants, Professor Burt Neuborne suggested that we might consider several themes, among them "Gideon Celebrated," "Gideon Fulfilled," and "Gideon Betrayed." I think these are useful headings.
Judging The Judges: Three Opinions, James Boyd White
Judging The Judges: Three Opinions, James Boyd White
Articles
For some time I have been working on the problem of judicial criticism, focusing especially on the question: What is it in the work of a judge that leads us to admire a judicial opinion with the result of which we disagree, or to condemn an opinion that "comes out" the way we would do if we were charged with the responsibility of decision? The response I have been making is that this kind of judicial excellence (and its opposite too) lies in the sort of social and intellectual action in which the opinion engages: in the character the court …
The Judiciary's Use Of Supervisory Power To Control Federal Law Enforcement Activity, Department Of Justice Office Of Legal Policy
The Judiciary's Use Of Supervisory Power To Control Federal Law Enforcement Activity, Department Of Justice Office Of Legal Policy
University of Michigan Journal of Law Reform
In McNabb v. United States, the Supreme Court claimed- for the first time in its history-the prerogative of "establishing and maintaining civilized standards of procedure and evidence" in the exercise of "supervisory authority over the administration of criminal justice in the federal courts." Since then, the Court has used this self-declared oversight power on numerous occasions and for a wide variety of purposes, but it has never adequately explained either the provenance or the scope of this type of judicial authority. Lower federal courts have followed suit, on the largely unexamined assumption that they too are endowed with supervisory …
Adverse Inferences From Silence, Department Of Justice Office Of Legal Policy
Adverse Inferences From Silence, Department Of Justice Office Of Legal Policy
University of Michigan Journal of Law Reform
This Report, the eighth in the Truth in Criminal Justice series, assesses the rules relating to the evidentiary consideration of the defendant's silence. Its general conclusion is that the existing restrictive rules in this area are unjustified impediments to the search for truth. The notion that the fifth amendment's prohibition of compelling a person in a criminal case to be a witness against himself bars drawing adverse inferences from the defendant's silence is not well-founded. In practical effect, these rules impede the conviction of the guilty by barring consideration of an aspect of the defendant's conduct-his failure to respond to …
Federal Habeas Corpus Review Of State Judgments, Department Of Justice Office Of Legal Policy
Federal Habeas Corpus Review Of State Judgments, Department Of Justice Office Of Legal Policy
University of Michigan Journal of Law Reform
This Report carries out a review of the historical development of the federal habeas corpus jurisdiction; examines its contemporary character and operation; and discusses relevant policy considerations. The Report concludes that federal habeas corpus as a post-conviction remedy for state prisoners should be abolished or limited as far as possible. The limited reform proposals that were passed by the Senate in 1984 and that are currently before Congress as Title II of the proposed Criminal Justice Reform Act provide the best immediate prospect for improvement.
Siskel And Ebert At The Supreme Court, Thomas E. Baker
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
Arizona V. Youngblood: Does The Criminal Defendant Lose His Right To Due Process When The State Loses Exculpatory Evidence?, Willis C. Moore
Arizona V. Youngblood: Does The Criminal Defendant Lose His Right To Due Process When The State Loses Exculpatory Evidence?, Willis C. Moore
Touro Law Review
No abstract provided.
The Supreme Court's New Vision Of Federal Habeas Corpus For State Prisoners, Joseph L. Hoffmann
The Supreme Court's New Vision Of Federal Habeas Corpus For State Prisoners, Joseph L. Hoffmann
Articles by Maurer Faculty
No abstract provided.
Scholars' Reply To Professor Fried, Yale Kamisar, Lee C. Bollinger, Judith C. Areen, Barbara A. Black
Scholars' Reply To Professor Fried, Yale Kamisar, Lee C. Bollinger, Judith C. Areen, Barbara A. Black
Articles
As Solicitor General of the United States, Charles Fried, like any good advocate, was often in the position of attempting to generate broad holdings from relatively narrow and particularistic Supreme Court decisions. This was especially true in affirmative action cases. There, the Department of Justice argued that cautious precedents actually stood for the broad proposition that measures designed to put members of disadvantaged groups on a plane of equality should, for constitutional purposes, be treated the same as measures intended to stigmatize or subordinate them. The Supreme Court, however, has consistently rejected this reading of its precedents and the broad …
Duckworth V. Eagan: A Little-Noticed Miranda Case That May Cause Much Mischief, Yale Kamisar
Duckworth V. Eagan: A Little-Noticed Miranda Case That May Cause Much Mischief, Yale Kamisar
Articles
Professor Yale Kamisar, the country's foremost scholar of Miranda and police interrogation, presents an analysis and critique of the Supreme Court's latest interpretation of Miranda. In Duckworth, a 5-4 Court upheld the "if and when" language systematically used by the Hammond, Indiana, Police Department: "We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court." The real issue was whether the police effectively conveyed the substance of a vital part of Miranda: the right to have a lawyer appointed prior to any questioning. Professor Kamisar …
Commentary On 'Multiemployer Bargaining Rules': The Limitations Of A Strictly Economic Analysis, Theodore J. St. Antoine
Commentary On 'Multiemployer Bargaining Rules': The Limitations Of A Strictly Economic Analysis, Theodore J. St. Antoine
Articles
Labor law bulks large on the docket of the United States Supreme Court. Yet never would I have included Charles D. Bonanno Linen Service, Inc. v. NLRB, dealing with the seemingly mundane issue of an employer's right to withdraw from multiemployer bargaining, in the select company of cases addressing such pulse-quickening subjects as affirmative action, picketing as free speech, and union antitrust liability. Professor Douglas Leslie's elegant and provocative article shows just how wrong I was--or at least just how far imaginative analysis can go toward seeing a world in a grain of sand. I lay no claim to expertise …
Federal Court Review Of Arbitrary State Court Decisions, David T. Azrin
Federal Court Review Of Arbitrary State Court Decisions, David T. Azrin
Michigan Law Review
Part I of this Note argues that the Thompson, Logan, and Hicks cases can be read narrowly to deal primarily with concern about protecting specific constitutional guarantees such as criminal procedural protections, equal protection guarantees, and first amendment freedoms. Arguably, in order to avoid dealing explicitly with the broader constitutional questions raised by the state decisions, the Court reversed the state decisions as arbitrary interpretations of state law. Part II argues that the rule against arbitrary state decisions suggested by Thompson, Logan, and Hicks is incompatible with federalism because it interferes with states' ability to develop law over state …
Clarifying A "Pattern" Of Confusion: A Multi-Factor Approach To Civil Rico's Pattern Requirement, Ethan M. Posner
Clarifying A "Pattern" Of Confusion: A Multi-Factor Approach To Civil Rico's Pattern Requirement, Ethan M. Posner
Michigan Law Review
In an attempt to provide some needed definitional clarity and redirect civil RICO toward its intended focus, this Note argues that the federal judiciary should interpret the pattern requirement narrowly, focusing on four basic factors that best demonstrate a prolonged, continuing example of criminal activity. By emphasizing (1) the presence of multiple victims, (2) the duration of the RICO defendant's criminal activity, (3) the number of illicit commercial transactions, and (4) the existence of independent criminal decisions, courts could consistently limit civil RICO to the most pernicious offenders. Part I of this Note will examine judicial interpretations of RICO and …
Civil Rights In Transition: Sections 1981 And 1982 Cover Discrimination On The Basis Of Ancestry And Ethnicity, Eileen Kaufman, Martin A. Schwartz
Civil Rights In Transition: Sections 1981 And 1982 Cover Discrimination On The Basis Of Ancestry And Ethnicity, Eileen Kaufman, Martin A. Schwartz
Touro Law Review
No abstract provided.
Making Uncle Sam Pay: A Review Of Equal Access To Justice Act Cases In The Sixth Circuit, 1983-1987, Martin Geer, Paul D. Reingold
Making Uncle Sam Pay: A Review Of Equal Access To Justice Act Cases In The Sixth Circuit, 1983-1987, Martin Geer, Paul D. Reingold
Articles
Despite the recent admonition of the Supreme Court that a "request for attorneys' fees should not result in a second major litigation,"12 the courts have been frequently called on to interpret the often ambiguous language of the EAJA. The U.S. Court of Appeals for the Sixth Circuit has not been spared this difficult chore. While the 1985 amendments have clarified some provisions of the Act and affected some major decisions in the Sixth Circuit, the recent changes have also left other previously settled areas in a state of flux. This article will review the Sixth Circuit's EAJA decisions from 1983-1987, …
Restricting Adult Access To Material Obscene As To Juveniles, Ann H. Coulter
Restricting Adult Access To Material Obscene As To Juveniles, Ann H. Coulter
Michigan Law Review
This Note considers whether state regulations that restrict juvenile access to material that is obscene as to minors unconstitutionally encroach upon the first amendment rights of adults. Part I briefly describes the Court's opinion in Ginsberg. Part II introduces the "O'Brien analysis" and discusses the aspects of juvenile access restrictions that tend to make O'Brien scrutiny applicable. In this context the frequently relaxed judicial review of governmental restrictions on sexually related material will be discussed. Having concluded that the O'Brien analysis is applicable to access restrictions, Part III applies the test and ultimately concludes that juvenile access restrictions survive …
Psychiatric Assistance For Indigent Defendants Pleading Insanity: The Michigan Experience, Paul Zisla
Psychiatric Assistance For Indigent Defendants Pleading Insanity: The Michigan Experience, Paul Zisla
University of Michigan Journal of Law Reform
The federal government and many states already provide psychiatric assistance to indigent defendants pleading insanity. Michigan's statutory scheme for delivering this service presents an opportunity to evaluate an approach that generally favors defendant interests in areas left unresolved by Ake. This Note undertakes that evaluation. Part I summarizes the Ake decision, key problem areas, and the research methodology. Part II describes the Michigan statutory system. Part III evaluates that system using data from interviews with legal and psychiatric practitioners and considers the consequences of Michigan's approach to the issues posed by Ake. The evaluation shows that Michigan's system …