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2000

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Articles 31 - 60 of 96

Full-Text Articles in Supreme Court of the United States

Who "Owns" A Cultural Treasure?, Jason Y. Hall May 2000

Who "Owns" A Cultural Treasure?, Jason Y. Hall

Michigan Law Review

Because of the thoughtfulness of its arguments, the range and depth of its presentation of specific cases, and the fairness with which it reveals, thinks through, and allows some validity to opposing points of view, Playing Darts with a Rembrandt is a valuable contribution to understanding which parties have, and should have, rights in key objects that comprise our collective heritage. That I am not persuaded by some of the specific arguments in the book in no way reduces my admiration for what it accomplishes.

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Healing The Blind Goddess: Race And Criminal Justice, Mark D. Rosenbaum, Daniel P. Tokaji May 2000

Healing The Blind Goddess: Race And Criminal Justice, Mark D. Rosenbaum, Daniel P. Tokaji

Michigan Law Review

Once again, issues of race, ethnicity, and class within our criminal justice system have been thrust into the public spotlight. On both sides of the country, in our nation's two largest cities, police are being called to account for acts of violence directed toward poor people of color. In New York City, a West African immigrant named Amadou Diallo was killed by four white police officers, who fired forty-one bullets at the unarmed man as he stood in the vestibule of his apartment building in a poor section of the Bronx. Did race influence the officers' decisions to fire the …

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Miranda'S Fall?, Kenji Yoshino May 2000

Miranda'S Fall?, Kenji Yoshino

Michigan Law Review

If one wishes to revisit a classic, Albert Crunus's The Fall is a riskier choice than Harper Lee's To Kill a Mockingbird, which Steven Lubet eloquently discussed last year in these pages. It is not only that Camus's work will be less familiar to legal audiences than Lee's, despite the fact that The Fall is becoming recognized through critical "revisitation" as perhaps Crunus's greatest novel. It is also that the legal protagonist of The Fall, Jean-Baptiste Clamence, does not have Atticus Finch's immediate appeal. Finch is idealistic, Clamence is existential; Finch is pious, Clamence is debauched; Finch is hopeful, Clamence …

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Losing Faith: America Without Judicial Review?, Erwin Chemerinsky May 2000

Losing Faith: America Without Judicial Review?, Erwin Chemerinsky

Michigan Law Review

In the last decade, it has become increasingly trendy to question whether the Supreme Court and constitutional judicial review really can make a difference. Gerald Rosenberg, for example, in The Hollow Hope, expressly questions whether judicial review achieves effective social change. Similarly, Michael Klarman explores whether the Supreme Court's desegregation decisions were effective, except insofar as they produced a right-wing backlash that induced action to desegregate. In Taking the Constitution Away from the Courts, Mark Tushnet approvingly invokes these arguments (pp. 137, 145), but he goes much further. Professor Tushnet contends that, on balance, constitutional judicial review is harmful. He …

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Supreme Court's 1998-1999 Term: Fourth Amendment Decisions, Kathryn R. Urbonya Apr 2000

Supreme Court's 1998-1999 Term: Fourth Amendment Decisions, Kathryn R. Urbonya

Faculty Publications

No abstract provided.

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Sentencing Equality For Deportable Aliens: Departures From The Sentencing Guidelines On The Basis Of Alienage, Jason Bent Mar 2000

Sentencing Equality For Deportable Aliens: Departures From The Sentencing Guidelines On The Basis Of Alienage, Jason Bent

Michigan Law Review

Peter Bakeas, a thirty-three-year-old Greek citizen living in West Lynn, Massachusetts and working in an entry-level position at the First National Bank of Greece in Massachusetts, developed a cocaine habit he could not afford. Mounting debt from his cocaine habit pressured him to find alternative means for obtaining income. Bakeas, using his position at First National Bank of Greece, began to embezzle money from the accounts of a distant relative and some family friends. When his scheme was discovered, he confessed and made arrangements to repay the money he had taken. Bakeas pled guilty to embezzlement by a bank officer, …

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Treaty-Making And The Nation: The Historical Foundations Of The Nationalist Conception Of The Treaty Power, David M. Golove Mar 2000

Treaty-Making And The Nation: The Historical Foundations Of The Nationalist Conception Of The Treaty Power, David M. Golove

Michigan Law Review

Characteristic of the most enduring constitutional controversies is a clash between fundamental but ultimately irreconcilable principles. Unable to synthesize opposing precepts, we visit and revisit certain issues in an endless cycle. Each generation marches forward heedless, and sometimes only dimly aware, of how many times the battle has already been fought. Even the peace of exhaustion achieves only a temporary respite. The abiding controversy over the relationship between the treaty power of the national government and the legislative powers of the states is paradigmatic in this respect. Beginning as early as in the first debate over ratification of the Articles …

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Judicial Abuse Of "Process": Examining The Applicability Of Section 2f1.1(B)(4)(B) Of The Federal Sentencing Guidelines To Bankruptcy Fraud, Hideaki Sano Feb 2000

Judicial Abuse Of "Process": Examining The Applicability Of Section 2f1.1(B)(4)(B) Of The Federal Sentencing Guidelines To Bankruptcy Fraud, Hideaki Sano

Michigan Law Review

The proliferation of bankruptcy filings over the past decade has coincided with a comparable increase in the incidence of bankruptcy fraud. In response to this growing problem, the United States Department of Justice has placed greater emphasis on federal prosecution of bankruptcy fraud. As a result, federal judges are increasingly applying the Federal Sentencing Guidelines ("Guidelines") to bankruptcy fraud and have begun to implement uniform standards for sentencing defendants convicted of this crime. Congress enacted the Guidelines pursuant to the Sentencing Reform Act of 1984. In instituting the Guidelines, Congress sought honesty, reasonable uniformity, and proportionality in sentencing. Congress attempted …

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Judicial Review & The Policy Of Federal Abstention: A Juvenile's Right To Ensure The Existence Of A "Substantial Federal Interest", Matthew Drexler Feb 2000

Judicial Review & The Policy Of Federal Abstention: A Juvenile's Right To Ensure The Existence Of A "Substantial Federal Interest", Matthew Drexler

Michigan Law Review

The problem of juvenile delinquency must be dealt with in an effective and meaningful manner if we are to reduce the ever increasing levels of crime and improve the quality of life in America. With these words, the United States Senate opened its report in support of the first major federal juvenile delinquency statute in almost forty years. The goal of the statute and of federal involvement in juvenile delinquency proceedings was to give the highest attention to preventing juvenile crime and to minimizing the involvement of juveniles in the juvenile and criminal justice systems. Until 1974, the federal government …

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The "Persuasion Route" Of The Law: Advertising And Legal Persuasion, Sarah C. Haan Jan 2000

The "Persuasion Route" Of The Law: Advertising And Legal Persuasion, Sarah C. Haan

Scholarly Articles

Persuasive commercial messages--advertisements--dominate our experience of persuasion in contemporary American life. In the past quarter century, the commercial landscape has witnessed significant change in the volume, styles, and strategies of advertising. In particular, this Note argues that modern advertising contains little information about products and services, and that rational processing of information has become less important to consumer decisionmaking. At the same time, advertising research shows that consumers do not seek out or use product information contained in advertisements, and that less-informative advertising may actually be more persuasive than advertising containing a lot of information. This Note argues that changes …

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Review Of Leaving The Bench: Supreme Court Justices At The End, By D. N. Atkinson, Richard D. Friedman Jan 2000

Review Of Leaving The Bench: Supreme Court Justices At The End, By D. N. Atkinson, Richard D. Friedman

Reviews

David Atkinson points out an interesting anomaly near the beginning of his book, Leaving the Bench: scholars have spent an enormous amount of energy studying entrance to the Supreme Court-how justices are chosen-but much less studying exit. It is indeed an important issue. Do justices stay too long (or perhaps leave too early)? What mechanisms are in place to induce them to leave the Court when the time has come, and passed? Are further mechanisms needed?

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Chief Justice John Marshall And The Course Of American Constitutional History, 33 J. Marshall L. Rev. 743 (2000), Samuel R. Olken Jan 2000

Chief Justice John Marshall And The Course Of American Constitutional History, 33 J. Marshall L. Rev. 743 (2000), Samuel R. Olken

UIC Law Review

No abstract provided.

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Judicial Lobbying At The Wto: The Debate Over The Use Of Amicus Curiae Briefs And The U.S. Experience, Padideh Ala'i Jan 2000

Judicial Lobbying At The Wto: The Debate Over The Use Of Amicus Curiae Briefs And The U.S. Experience, Padideh Ala'i

Scholarly Articles in Law Reviews & Journals

The continuing debate over the use of amicus curiae briefs at the World Trade Organization (“WTO”) raises interesting questions about the influence of the U.S. legal system on the WTO dispute settlement process. Specifically, it brings to the surface differences between legal cultures and the fact that the U.S. legal culture with its emphasis on procedure is not readily transferable to the WTO. Comparing the controversy regarding the use of amicus curiae briefs before WTO Panels and the Appellate Body with the history and evolution of the institution of amicus curiae before the U.S. Supreme Court may help explain the …

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The Reconceptualization Of Legislative History In The Supreme Court, Charles Tiefer Jan 2000

The Reconceptualization Of Legislative History In The Supreme Court, Charles Tiefer

All Faculty Scholarship

In 1995, the Supreme Court began to embrace a approach to interpreting Congressional intent. From that year forward, the Breyers-Stevens model of legislative history, or "institutional legislative history," has seen significant success, emerging in the shadows of the success Justice Scalia's enjoyed while promoting his brand of textualism in the early 1990s. In developing a new way to view Congressional intent, Justices Breyers and Stevens synthesize information gathered from congressional report details, preferably attached to bill drafting choices, thereby renouncing Scalia's reliance on the purposes espoused by the Congressional majority. This new approach, the author contends, rejuvenated the court's approach …

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Making Biomedical Policy Through Constitutional Adjudication:The Example Of Physician-Assisted Suicide, Carl E. Scheider Jan 2000

Making Biomedical Policy Through Constitutional Adjudication:The Example Of Physician-Assisted Suicide, Carl E. Scheider

Book Chapters

Throughout most of American history no one would have supposed biomedical policy could or should be made through constitutional adjudication. No one would have thought that the Constitution spoke to biomedical issues, that those issues were questions of federal policy, or that judges were competent to handle them. Today, however, the resurgence of substantive due process has swollen the scope of the Fourteenth Amendment, the distinction between federal and state spheres is tattered, and few statutes escape judicial vetting. Furthermore, Abraham Lincoln's wish that the Constitution should "become the political religion of the nation" has been granted. "We now reverently …

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The Road To Glucksberg, Carl E. Scheider Jan 2000

The Road To Glucksberg, Carl E. Scheider

Book Chapters

No abstract provided.

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Supreme Court's Iolta Decision: Of Dogs, Mangers, And The Ghost Of Mrs. Frothingham, 30 Seton Hall L. Rev. 846 (2000), Donald L. Beschle Jan 2000

Supreme Court's Iolta Decision: Of Dogs, Mangers, And The Ghost Of Mrs. Frothingham, 30 Seton Hall L. Rev. 846 (2000), Donald L. Beschle

UIC Law Open Access Faculty Scholarship

No abstract provided.

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The Origins And Application Of The Military Deference Doctrine, John F. O'Connor Jan 2000

The Origins And Application Of The Military Deference Doctrine, John F. O'Connor

Georgia Law Review

Although the military deference doctrine is often thought to have originated in Supreme Court decisions in the nineteenth century, the doctrine actually is of fairly recent vintage, being traceable to four decisions issued by the Burger Court between 1974 and 1976. The military deference doctrine is (and should be) limited to constitutional issues where courts weigh the extent of the government's interest in determining the constitutionality of the practice at issue. In addition,although the doctrine is oft- criticized by legal scholars,it remains a viable and robust part of the Supreme Court's constitutional jurisprudence

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A Right To Confrontation Or Insinuation? The Supreme Court's Holding In Portuondo V. Agard, J. Fielding Douthat Jr. Jan 2000

A Right To Confrontation Or Insinuation? The Supreme Court's Holding In Portuondo V. Agard, J. Fielding Douthat Jr.

University of Richmond Law Review

Imagine that you are charged with a crime that you did not commit. Forced to attend your own trial, you choose to testify on your own behalf. The prosecutor conducts his best spin to discredit you, but his attempts are largely unsuccessful. Not only is your story consistent with that of other witnesses, but it is a plausible accounting of the disputed facts. The reason: your story is the truth. Nevertheless, in summation, the prosecutor attacks your credibility. His argument, however, addresses no inconsistencies, no physical evidence, and no concrete reason to cast doubt on your story. Instead, he argues …

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Lowering The Preclearance Hurdle Reno V. Bossier Parish School Board, 120 S. Ct. 866 (2000), Alaina C. Beverly Jan 2000

Lowering The Preclearance Hurdle Reno V. Bossier Parish School Board, 120 S. Ct. 866 (2000), Alaina C. Beverly

Michigan Journal of Race and Law

This Case Note examines a recent Supreme Court decision that collapses the purpose and effect prongs of Section 5, effectively lowering the barrier to preclearance for covered jurisdictions. In Reno v. Bossier Parish School Board II the Court determined that Section 5 disallows only voting plans that are enacted with a retrogressive purpose (i.e., with the purpose to "worsen" the position of minority voters). The Court held that Section 5 does not prohibit preclearance of a plan enacted with a discriminatory purpose but without a retrogressive effect. Evidence of a Section 2 violation alone will not be enough to prove …

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The Adversity Of Race And Place: Fourth Amendment Jurisprudence In Illinois V. Wardlow, 528 S. Ct. 673 (2000), Adam B. Wolf Jan 2000

The Adversity Of Race And Place: Fourth Amendment Jurisprudence In Illinois V. Wardlow, 528 S. Ct. 673 (2000), Adam B. Wolf

Michigan Journal of Race and Law

This Case Note lays out Wardlow's pertinent facts, describes the decisions of the Court and lower courts, and then analyzes the ramifications of the Court's holding. In particular, this Case Note argues that the Court's ruling recognizes substantially less Fourth Amendment protections for people of color and indigent citizens than for wealthy Caucasians. This perpetuates a cycle of humiliating experiences, as well as fear and mistrust of the police by many poor people of color.

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California Dental Association: Not The Quick Look But Not The Full Monty, Stephen Calkins Jan 2000

California Dental Association: Not The Quick Look But Not The Full Monty, Stephen Calkins

Law Faculty Research Publications

No abstract provided.

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On The Meaning And Impact Of The Physician-Assisted Suicide Cases, Yale Kamisar Jan 2000

On The Meaning And Impact Of The Physician-Assisted Suicide Cases, Yale Kamisar

Book Chapters

I read every newspaper article I could find on the meaning and impact of the U.S. Supreme Court's June 1997 decisions in Washington v Glucksberg and Vacco v Quill. I came away with the impression that some proponents of physician-assisted suicide (PAS) were unable or unwilling publicly to recognize the magnitude of the setback they suffered when the Court handed down its rulings in the PAS cases.

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Contract Reading' In Labor Arbitration, Theodore J. St. Antoine Jan 2000

Contract Reading' In Labor Arbitration, Theodore J. St. Antoine

Articles

A quarter century ago, I used the phrase "contract reader" to characterize the role an arbitrator plays in construing a collective bargaining agreement. This phrase has almost invariable been misunderstood to refer to reading or interpreting the contract. When I spoke of the "contract reader," it was in the context of judicial review of an award. My point was this: When a court has before it an arbitrator's award applying a collective bargaining agreement, it is as if the employer and the union had signed a stipulation stating: "What the arbitrator says this contract means is exactly what we meant …

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Refugee Rights Are Not Negotiable, James C. Hathaway, Anne K. Cusick Jan 2000

Refugee Rights Are Not Negotiable, James C. Hathaway, Anne K. Cusick

Articles

America's troubled relationship with international law, in particular human rights law, is well documented. In many cases, the United States simply will not agree to be bound by international human rights treaties. For example, the United States has yet to ratify even such fundamental agreements as the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of all Forms of Discrimination Against Women, and the Convention on the Rights of the Child. When the United States does agree to become a party to an international human rights treaty, it has often sought to condition its acceptance …

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Joe Grano: The 'Kid From South Philly' Who Educated Us All (In Tribute To Joseph D. Grano), Yale Kamisar Jan 2000

Joe Grano: The 'Kid From South Philly' Who Educated Us All (In Tribute To Joseph D. Grano), Yale Kamisar

Articles

No serious student of police interrogation and confessions can write on the subject without building on Professor Joseph D. Grano's work or explaining why he or she disagrees with him (and doing so with considerable care). Nor is that all.

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"Can (Did) Congress 'Overrule' Miranda?, Yale Kamisar Jan 2000

"Can (Did) Congress 'Overrule' Miranda?, Yale Kamisar

Articles

I think the great majority of judges, lawyers, and law professors would have concurred in Judge Friendly's remarks when he made them thirty-three years ago. To put it another way, I believe few would have had much confidence in the constitutionality of an anti-Miranda provision, usually known as § 3501 because of its designation under Title 18 of the United States Code, a provision of Title II of the Omnibus Crime Control and Safe Streets Act of 1968 (hereinafter referred to as the Crime Act or the Crime Bill), when that legislation was signed by the president on June 19, …

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An Essay On Texas V. Lesage, Christina B. Whitman Jan 2000

An Essay On Texas V. Lesage, Christina B. Whitman

Articles

When I was invited to participate in this symposium, I was asked to discuss whether the causation defense developed in Mt. Healthy City School District Board of Education v. Doyle applied to cases challenging state action under the Equal Protection Clause of the Fourteenth Amendment. As I argue below, it seems clear that Mt. Healthy does apply to equal protection cases. The Supreme Court explicitly so held last November in Texas v. Lesage. But the implications of Lesage go beyond questions of causation. The opinion suggests that the Court may be rethinking (or ignoring) its promise in Carey v. Piphus …

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Constitutional Federalism, Individual Liberty, And The Securities Litigation Uniform Standards Act Of 1998, Adam C. Pritchard Jan 2000

Constitutional Federalism, Individual Liberty, And The Securities Litigation Uniform Standards Act Of 1998, Adam C. Pritchard

Articles

This Article proceeds in four parts. Part I provides background on the historical development of constitutional federalism, the Supreme Court's decisions in this area, and the apparent demise of constitutional limits on federal power. Part II then reviews the Court's revival of constitutional federalism over the last decade. Based on this review, I argue that the Supreme Court's current federalism doctrine can be understood as a "constrained libertarianism" that attempts to use constitutional structure as a check on government interference with individual liberty. In this model, states are respected in our constitutional system because of the counterbalance that they provide …

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Lilly V. Virginia Glimmers Of Hope For The Confrontation Clause?, Richard D. Friedman Jan 2000

Lilly V. Virginia Glimmers Of Hope For The Confrontation Clause?, Richard D. Friedman

Articles

In 1662, in The Case of Thomas Tong and Others, which involved charges of treason against several defendants, the judges of the King's Bench conferred on a crucial set of points of procedure. As reported by one of the judges, Sir John Kelyng, the judges agreed unanimously that a pretrial confession made to the authorities was evidence against the Party himself who made the Confession, and indeed, if adequately proved could support a conviction of that party without additional witnesses to the treason itself. But -- again unanimously, and quite definitively -- the judges also agreed that the confession cannot …

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