Courts Commons^™

The Distrust Of Politics, Terrance Sandalow

Articles

In this Article, Dean Sandalow considers the justifications advanced by those who favor the removal of certain political issues from the political process by extending the reach of judicial review. He begins by examining the distrust of politics in a different context, discussing the proposals made by the Progressives for reforming municipal government, as a vehicle to expose the assumptions underlying the current debate. His comparison of the two historical settings reveals many similarities between the Progressives' reform proposals and the contemporary justiflcations.[or the displacement of politics with constitutional law. Dean Sandalow concludes that the distrust of politics rests not …

Constitutional Torts, Christina B. Whitman

Articles

In this Article, I analyze the significance of the overlap between state tort law remedies and remedies under section 1983. I conclude that the dissatisfaction with section 1983 cannot fairly be attributed to the fact that it has been read to provide a remedy that "supplements" state law. I argue that most of the anxiety over constitutional damage actions under section 1983 can be understood - and resolved - only by focusing on two other questions. The first of these concerns the appropriate reach of the Constitution. Ambivalence about section 1983 reflects, in part, a fear that the federal Constitution …

Personal Jurisdiction And Choice Of Law, James Martin

Michigan Law Review

The time has come for the Supreme Court to declare that a state may not apply its own law to a case unless it has the "minimum contacts" required by International Shoe for the exercise of specific personal jurisdiction over the defendant. Although the present state of the law is less than certain, the Supreme Court has not yet required that a state show it has minimum contacts with a defendant before applying its law. As a result, in some cases where a state has obtained personal jurisdiction because of a defendant's contacts unrelated to the case - contacts such …

Disposition Of A Federal Criminal Case When Defendant Dies Pending Appeal, Lori R. Dickerman

University of Michigan Journal of Law Reform

This article discusses the way in which courts historically have disposed of such cases and the apparent change recently introduced by the United States Supreme Court. After an examination of the ramifications of the new and old rules, certain changes in current practice are recommended which will better serve the interests of the deceased, his survivors, and society as a whole.

Rewriting Roe V. Wade, Donald H. Regan

Articles

Roe v. Wade is one of the most controversial cases the Supreme Court has decided. The result in the case - the establishment of a constitutional right to abortion - was controversial enough. Beyond that, even people who approve of the result have been dissatisfied with the Court's opinion. Others before me have attempted to explain how a better opinion could have been written. It seems to me, however, that the most promising argument in support of the result of Roe has not yet been made. This essay contains my suggestions for "rewriting" Roe v. Wade

Limitation Borrowing In Federal Courts, Michigan Law Review

Michigan Law Review

This Note studies limitations on federal actions in light of Occidental Life. Part I discusses the reasons for limiting actions and presents a short history ·of the limitation of actions. Part II analyzes the alternatives for the federal courts when no statute of limitations applies directly. Finally, the Note suggests a solution that will achieve a result most nearly consistent with both the reasons for limiting actions and the proper role of the judiciary. It suggests, notwithstanding Occidental Life, that in some situations courts should borrow specific federal statutes of limitations and that in the remainder they should …

A Defense Of The Exclusionary Rule, Yale Kamisar

Articles

The exclusionary rule is being flayed with increasing vigor by a number of unrelated sources and with a variety of arguments. Some critics find it unworkable and resort to empirically based arguments. Others see it as the product of a belated and unwarranted judicial interpretation. Still others, uncertain whether the rule works, are confident that in some fashion law enforcement's hands are tied. Professor Yale Kamisar, long a defender of the exclusionary rule, reviews the current attacks on the rule and offers a vigorous rebuttal. He finds it difficult to accept that there is a line for acceptable police conduct …

The Burger Court, The Commerce Clause, And The Problem Of Differential Treatment, Earl M. Maltz

Indiana Law Journal

No abstract provided.

Presidential Power And Administrative Rulemaking, Harold H. Bruff

Publications

No abstract provided.

Implied Limitations On The Jurisdiction Of Indian Tribes, Richard B. Collins

Publications

No abstract provided.

The Proposed Federal Rules Of Evidence: Of Privileges And The Division Of Rule-Making Power, Michigan Law Review

Michigan Law Review

This Note proposes that the lower federal courts accord the same binding authority to the Proposed Rules that they give those judicially promulgated procedural rules, such as the Federal Rules of Civil Procedure, that have been implicitly approved by Congress.

Part I of the Note analyzes the constitutional division of the rule-making power by examining both the policy considerations involved and the relevant constitutional language and doctrines. That examination indicates that the power to establish such rules is shared by Congress and the Supreme Court. To determine when that power is appropriately exercised by one branch rather than the other, …

Brewer V. Williams, Massiah And Miranda: What Is 'Interrogation'? When Does It Matter?, Yale Kamisar

Articles

On Christmas Eve, 1968, a ten-year-old girl, Pamela Powers, disappeared while with her family in Des Moines, Iowa.2 Defendant Williams, an escapee from a mental institution and a deeply religious person, 3 was suspected of murdering her, and a warrant was issued for his arrest.4 Williams telephoned a Des Moines lawyer, McKnight, and on his advice surrendered himself to the Davenport, Iowa, police.5 Captain Learning and another Des Moines police officer arranged to drive the 160 miles to Davenport, pick up Williams, and return him directly to Des Moines. 6 Both the trial court 7 and the federal district court8 …

Judicial Review Of Labor Arbitration Awards: A Second Look At Enterprise Wheel And Its Progeny, Theodore J. St. Antoine

Articles

Logic, so the cliche goes, is not the life of the law. But logic is very much like the DNA of the law-the structural principle without which all is sprawl and muddle. In the last ten years a controversy has raged over the role of the labor arbitrator in issuing awards, and the role of the courts in reviewing and enforcing those awards. This controversy has largely taken the form of a continuing debate among scholars and practicing arbitrators at the annual meetings of the National Academy of Arbitrators. With due respect to the thoughtful and experienced persons who have …

Connell: Antitrust Law At The Expense Of Labor Law, Theodore J. St. Antoine

Articles

From the outset, the difficulty in applying the antitrust concept to organized labor has been that the two are intrinsically incompatible. The antitrust laws are designed to promote competition, and unions, avowedly and unabashedly, are designed to limit it. According to classical trade union theory, the objective is the elimination of wage competition among all employees doing the same job in the same industry. Logically extended, the policy against restraint of trade must condemn the very existence of labor organizations, since their minimum aim has always been the suppression of any inclination on the part of working people to offer …

Attempts And Monopolization: A Mildly Expansionary Answer To The Prophylactic Riddle Of Section Two, Edward H. Cooper

Articles

The efforts of activist antitrust lawyers to redefine the contours of attempted monopolization under section 2 of the Sherman Act1 have again forced the courts to wrestle with the classic antitrust dilemma: How far must single-firm competitive behavior be restrained to make competition free? The answer given by the majority of current decisions is that, absent some other established offense, single-firm behavior should be prohibited as an attempt to monopolize only when there is a specific intent to monopolize and the firm has come dangerously near to unlawful monopolization. A contemporary challenge to this orthodox answer is rapidly gaining force. …

Book Review Of A Question Of Judgment: The Fortas Case And The Struggle For The Supreme Court, Richard A. Williamson

William & Mary Law Review

No abstract provided.

Congressional Discretion In Dealing With The Federal Rules Of Evidence, Stuart M. Lockman

University of Michigan Journal of Law Reform

On November 20, 1972, the Supreme Court, pursuant to statutory authority, adopted the Federal Rules of Evidence. The new rules of evidence were not to take effect, however, until ninety days after they had been submitted to Congress. The rules were officially submitted on February 5, 1973, but even before that date they had become the subject of extensive legislative debate. While some attorneys praise the codification of evidence rules as a progressive step, others maintain that certain of these promulgations will have an objectionable impact on the federal judicial system or that the Supreme Court has exceeded its authority …

Six-Member And Twelve-Member Juries: An Empirical Study Of Trial Results, Lawrence R. Mills

University of Michigan Journal of Law Reform

The most convincing basis for criticism of the Supreme Court's conclusion that there is "no discernible difference" between the results reached by the six-member juries and those reached by the twelve-member juries would be empirical data suggesting a contrary conclusion. A recent study by the Institute of Judicial Administration comparing twelve-member and six-member juries in over 650 civil cases in New Jersey courts disclosed less than a two percentage-point difference between the respective percentages of verdicts rendered for plaintiffs by the two different-sized juries. The same study seemed to indicate that the damage awards in twelve-member jury cases were higher …

An Empirical Study Of Six And Twelve-Member Jury Decision-Making Processes, Joan B. Kessler

University of Michigan Journal of Law Reform

This article employs the techniques of the social sciences in testing a legal proposition. After setting forth the hypotheses and methodology utilized by the experiment discussed herein, it presents the results obtained by examining the deliberations of different-sized juries concerning the same civil litigation. This article does not purport to be definitive; it does, however, attempt to indicate one methodology of interdisciplinary research which can be undertaken and the utility of this research to both the social sciences and the legal profession.

The Abolition Of Self-Help Repossession: The Poor Pay Even More, James J. White

Articles

In this paper I propose to identify possible ways in which a court could uphold the constitutionality of section 9-503 without an explicit rejection of Fuentes v. Shevin. It is my thesis that Fuentes v. Shevin is probably an undesirable outcome, and that the application of the same doctrine to self-help repossession is certainly undesirable and would constitute due process gone berserk. My arguments will not be novel; each has been suggested by the courts that have considered this matter, or by the briefs of the lawyers who have argued these cases. I cannot even claim to have collected the …

Book Review Of History Of The Supreme Court Of The United States Volumes I And Vi, William F. Swindler

William & Mary Law Review

No abstract provided.

Legislative Purpose, Rationality, And Equal Protection, Robert F. Nagel

Publications

No abstract provided.

Juvenile Courts--Juveniles In Delinquency Proceedings Are Not Constitutionally Entitled To The Right Of Trial By Jury--Mckeiver V. Pennsylvania, Michigan Law Review

Michigan Law Review

At a hearing in the juvenile court of Philadelphia in October 1968, Joseph McKeiver was declared a "delinquent child" and placed on probation by a juvenile court judge who determined that McKeiver had violated a Pennsylvania law. The juvenile court petition charged McKeiver, then sixteen years old, with robbery, larceny, and receiving stolen goods as the result of an incident in which McKeiver and twenty or thirty other youths took twenty-five cents from three teenagers. Despite the fact that the evidence against McKeiver consisted primarily of the weak and inconsistent testimony of two of the victims, the juvenile court judge, …

Book Review Of Court And Constitution In The Twentieth Century, Paul G. Kauper

William & Mary Law Review

No abstract provided.

The United States Supreme Court: A Creative Check Of Institutional Misdirection?, Fletcher N. Baldwin

Indiana Law Journal

In the Comment which follows Professor Baldwin presents a brief for an extremely creative Supreme Court. In contrast to those who suggest limiting the function of the Court, either by subject matter or by judicial restraint, the author would have it protect the compact upon which the community is based, by taking an active role to insure that the compensation implied in the compact flows in fact not only to the community but to the individual.

Massachusetts In The Federal Courts: The Constitutionality Of The Vietnam War, Anthony A. D'Amato

University of Michigan Journal of Law Reform

One of the most singular pieces of legislation in American constitutional history passed both houses of the Massachusetts legislature on April 1st, 1970, and was signed into law on the following day by Governor Francis W. Sargent. It provides that, except for an emergency, no inhabitant of Massachusetts inducted into or serving in the armed forces "shall be required to serve" abroad in an armed hostility that has not been declared a war by Congress under Article 1, Section 8, clause 11 of the United States Constitution. The bill further directs the state's attorney general to bring a suit testing …

Review Of Labor And The Legal Process, By H. H. Wellington, Theodore J. St. Antoine

Reviews

If there is a more acute intellect than that of Harry Wellington at work today in labor law, I am unaware of it. This makes his new book all the more troubling, for it reveals the limitations, or perhaps I should even say the deficiencies, of a highly rational approach to the regulation of industrial relations. Professor Wellington has two stated objectives (he disclaims any attempt at a comprehensive text on labor law). First, he wishes to appraise "the role of the legal process in moving collective bargaining to its present position at the center of national labor policy." Second, …

Review Of Concerning Dissent And Civil Disobedience, By A. Fortas, Terrance Sandalow

Reviews

Noah Chomsky has written of Justice Fortas' essay that it "is not serious enough for extended discussion." It would be a mistake to dismiss the essay so lightly. The prestige of Justice Fortas' office almost inevitably will gain for the essay an audience it would not otherwise have had, among whom will be those who will confuse the office with the argument. For some this confusion will insulate the argument from criticism. For others it will tarnish the office.

Book Review Of The Warren Court, William F. Swindler

William & Mary Law Review

No abstract provided.

Swift To Erie/York, Hanna And Beyond: Proposed Solutions For A Major Problem Of Diversity Jurisdiction, E. Blythe Stason Jr.

University of Michigan Journal of Law Reform

There are four purposes of this article: First, to expose more fully the nature and dimensions of the difficult problem of determining whether a particular rule is "substantive" or "procedural"; Second, to discuss the various judicial attempts to solve it; Third, to show the shortcomings of those attempts, as manifested in both established doctrine and current federal judicial opinions; and, Fourth, to propose some solutions. It should be made clear that we are involved here with a question of allocating power within our federal union. Diversity characterization functions as an unintended device allocating power between state …