Supreme Court of the United States Commons^™

Counter-Revolution In Constitutional Criminal Procedure? Two Audiences, Two Answers, Carol S. Steiker

Michigan Law Review

For the purposes of my argument, I adapt Professor Meir Dan-Cohen's distinction (which he in turn borrowed from Jeremy Bentham) between "conduct" rules and "decision" rules. Bentham and Dan-Cohen make this distinction in the context of substantive criminal law; for their purposes, "conduct" rules are addressed to the general public in order to guide its behavior (for example, "Let no person steal") and "decision" rules are addressed to public officials in order to guide their decisionmaking about the consequences of violating conduct rules (for example, "Let the judge cause whoever is convicted of stealing to be hanged"). But as any …

Computers, Urinals, And The Fourth Amendment: Confessions Of A Patron Saint, Wayne R. Lafave

Michigan Law Review

At least the title indicates that the article is somehow concerned with "the Fourth Amendment," though for anyone who knows me or is at all familiar with my work, that piece of information hardly would come as a revelation. The fact of the matter is that I almost always write about the Fourth Amendment; I am in an academic rut so deep as to deserve recognition in the Guinness Book World of Records. Search and seizure has been my cheval de bataille during my entire time as a law professor and even when I was a mere law student. …

Loss Of Protection As Injury In Fact: An Approach To Establishing Standing To Challenge Environmental Planning Decisions, Miles A. Yanick

University of Michigan Journal of Law Reform

As currently interpreted by the United States Supreme Court, Article III of the Constitution creates a significant hurdle for plaintiff citizen groups seeking standing to challenge environmental planning or management decisions. In particular, plaintiffs have had difficulty in making the required showing of an 'injury in fact" where an agency has not yet approved a site-specific action but has approved only a general plan for an area to govern future site-specific actions. The Supreme Court has not articulated a clear rule for standing to challenge the latter type of agency decision making, and the courts of appeals for the various …

Reconsidering Strict Scrutiny Of Affirmative Action, Brent E. Simmons

Michigan Journal of Race and Law

Under the artificial constraints of strict scrutiny, however, the courts are free to veto the government's choice of more effective, race-conscious means. The Supreme Court's unfortunate and ill-conceived adoption of strict scrutiny as the constitutional standard for reviewing race-conscious affirmative action should be reconsidered for several reasons. This Article examines those reasons.

Conquering The Cultural Frontier: The New Subjectivism Of The Supreme Court In Indian Law, David H. Getches

Publications

For a century and a half, the Supreme Court was faithful to a set of foundation principles respecting Indian tribal sovereignty. Though the United States can abrogate tribal powers and rights, it can only do so by legislation. Accordingly, the Court has protected reservations as enclaves for Indian self-government, preventing states from enforcing their laws and taxes, and holding that even federal laws could not be applied to Indians without congressional permission. Recently, however, the Court has assumed the job it formerly conceded to Congress, considering and weighing cases to reach results comporting with the Justices' subjective notions of what …

Legislative History And Statutory Interpretation: The Supreme Court And The Tenth Circuit, Fritz Snyder

Oklahoma Law Review

No abstract provided.

Hiding The Ball, Pierre Schlag

Publications

No abstract provided.

Progress And Constitutionalism, Robert F. Nagel

Publications

No abstract provided.

The Most Dangerous Justice: The Supreme Court At The Bar Of Mathematics, Paul H. Edelman, Jim Chen

Vanderbilt Law School Faculty Publications

We analyze the relative voting power of the Justices based upon Supreme Court decisions during October Term 1994 and October Term 1995. We take two approaches, both based on ideas derived from cooperative game theory. One of the measures we use has been used in connection with voting rights cases. After naming the Most Dangerous Justice, we conclude by identifying and explaining the inverse relationship between seniority and voting power.

Back To The Briarpatch: An Argument In Favor Of Constitutional Meta-Analysis In State Action Determinations, Ronald J. Krotoszynski Jr.

Michigan Law Review

Brer Rabbit, after claiming repeatedly that he would prefer almost anything to being thrown into the briarpatch, expressed glee once tossed there. In fact, Brer Rabbit wanted to be in the briarpatch because, like most rabbits, he could navigate the briarpatch with relative ease: the briarpatch was home.

Over the course of a century, the Supreme Court has developed a great degree of familiarity with the state action doctrine, a doctrinal briar patch. Like Brer Rabbit, the Court has disclaimed repeatedly any interest in being there.

In this article, I argue that the existing tests for establishing the presence of …

William Gardiner Hammond And The Lieber Revival, Paul D. Carrington

Cardozo Law Review

Francis Lieber's Legal and Political Hermeneutics was first published in serial form in 1837. Jacksonian populism was then at high water and American judges and lawyers were acknowledged as politicians. Interpretation of legal texts was seen as a political activity. His work was so well received that a hard cover edition was published in 1839.

The edition presented in this issue was prepared by William Gardiner Hammond in 1880. Jacksonian politics were then in retreat before a rising tide of technocratic professionalism. Many lawyers and judges were disowning the political mission of American law and aspiring to be technocrats. To …

Forty Years In The Desert, Paul F. Campos

Publications

The author uses Brown v. Board of Education and the volumes of commentary it has provoked to illustrate that coherent constitutional interpretation is a useless exercise. He argues that the decision should be accepted as political reality and moral necessity and that we should cease debating its merit as constitutional interpretation.

Book Review Of The Constitution Besieged, By Howard Gillman, Edward A. Purcell Jr.

Other Publications

No abstract provided.

A Heterodox Catechism, Paul Campos

Publications

No abstract provided.

Rethinking The New Deal Court, Barry Cushman

Journal Articles

The story of the "switch in time" is among the most enduring chapters of our constitutional history. It is repeated every year in countless courses in government, history, and constitutional law at the high school, college, and graduate level. One of the great morality plays of American civics, it is a tale both celebratory and cautionary. Its plot is simple, there are good guys and bad guys, and the good guys prevail in the end. Although no comprehensive monograph has been devoted to the subject exclusively, the literature recounting the story is vast and remarkably homogenous-indeed, repetitive. In truncated, composite, …

On The Strength Of Its Human Dignity: The Pro-Life 1993 Decision Of The German Constitutional Court, Richard Stith

Law Faculty Publications

No abstract provided.

Equal Protection

Touro Law Review

No abstract provided.

A Note To Our Readers, The Editors

Touro Law Review

No abstract provided.

Legislative Powers

Touro Law Review

No abstract provided.

Trial By Jury

Touro Law Review

No abstract provided.

The Supreme Court As The Cheshire Cat: Escaping The Section 1983 Wonderland, Jose R. "Beto" Juarez

Faculty Scholarship

No abstract provided.

Right To Confrontation

Touro Law Review

No abstract provided.

Trial By Jury

Touro Law Review

No abstract provided.

Trial By Jury

Touro Law Review

No abstract provided.

Disagreement And Interpretation, Robert F. Nagel

Publications

No abstract provided.

Double Jeopardy

Touro Law Review

No abstract provided.

Advocacy And Scholarship, Paul F. Campos

Publications

The apex of American legal thought is embodied in two types of writings: the federal appellate opinion and the law review article. In this Article, the author criticizes the whole enterprise of doctrinal constitutional law scholarship, using a recent U.S. Supreme Court case and a Harvard Law Review article as quintessential examples of the dominant genre. In a rhetorical tour de force, the author argues that most of modern constitutional scholarship is really advocacy in the guise of scholarship. Such an approach to legal scholarship may have some merit as a strategic move towards a political end; however, it has …

The Breadth Of Context And The Depth Of Myth: Completing The Feminist Paradigm, Emily Calhoun

Publications

No abstract provided.

Silence And The Word, Paul Campos

Publications

No abstract provided.

What Is A Postmodern Constitutionalism?, J. M. Balkin

Michigan Law Review

I begin with a puzzle. It must certainly strike one as odd that the subject of postmodern constitutional law arises at a time when the actual arbiters of the Constitution - the federal judiciary and in particular the Supreme Court of the United States - appear to be more conservative than they have been for many years, and indeed, are likely to remain so for the foreseeable future. Postmodernism is often associated with what is new, innovative, and on the cutting edge of cultural development. Yet if we were to define the elements of a postmodern constitutional culture, it would …