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2001

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Articles 31 - 60 of 103

Full-Text Articles in Supreme Court of the United States

Cost-Benefit Default Principles, Cass R. Sunstein Jun 2001

Cost-Benefit Default Principles, Cass R. Sunstein

Michigan Law Review

Courts should be reluctant to apply the literal terms of a statute to mandate pointless expenditures of effort. . .. Unless Congress has been extraordinarily rigid, there is likely a basis for an implication of de minimis authority to provide exemption when the burdens of regulation yield a gain of trivial or no value. It seems bizarre that a statute intended to improve human health would .. . lock the agency into looking at only one half of a substance's health effects in determining the maximum level for that substance. [I]t is only where there is "clear congressional intent to …


Structural Review, Pseudo-Second-Look Decision Making, And The Risk Of Diluting Constitutional Liberty, Dan T. Coenen May 2001

Structural Review, Pseudo-Second-Look Decision Making, And The Risk Of Diluting Constitutional Liberty, Dan T. Coenen

William & Mary Law Review

No abstract provided.


Subconsitutional Constitutional Law: Supplement, Sham, Or Substitute?, Mark Tushnet May 2001

Subconsitutional Constitutional Law: Supplement, Sham, Or Substitute?, Mark Tushnet

William & Mary Law Review

No abstract provided.


A Constitution Of Collaboration: Protecting Fundamental Values With Second-Look Rules Of Interbranch Dialogue, Dan T. Coenen May 2001

A Constitution Of Collaboration: Protecting Fundamental Values With Second-Look Rules Of Interbranch Dialogue, Dan T. Coenen

William & Mary Law Review

No abstract provided.


Making The Familiar Conventional Again, Steven L. Winter May 2001

Making The Familiar Conventional Again, Steven L. Winter

Michigan Law Review

In 1984, Gerald López published his groundbreaking and still remarkable Lay Lawyering, employing then-recent developments in cognitive science to reexamine and reconfigure basic questions of law and legal reasoning. Three years later, Charles Lawrence's The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism used insights from cognitive and Freudian psychology to probe the problem of racism and the inadequacy of the law's response. George Lakoff's Women, Fire, and Dangerous Things appeared that same year. It was followed by a series of articles in which I examined a range of legal and theoretical issues in light of the new …


The 2000 Presidential Election: Archetype Or Exception?, Michael C. Dorf May 2001

The 2000 Presidential Election: Archetype Or Exception?, Michael C. Dorf

Michigan Law Review

The day after the Supreme Court's decision in Bush v. Gore, a colleague who specializes in tax law approached me with mock sympathy. "It must be very discouraging trying to teach constitutional law," he said, "when it's so obviously made up." This view of the Court's decision remains widely held, at least within the academy and among those who did not vote for President Bush. Unlike many of my fellow Democrats and academic colleagues, however, I see no reason to question the motives of the majority (or dissenting) Justices in Bush v. Gore. I certainly do not think that the …


Morgan Kousser's Noble Dream, Heather K. Gerken May 2001

Morgan Kousser's Noble Dream, Heather K. Gerken

Michigan Law Review

J. Morgan Kousser, professor of history and social science at the California Institute of Technology, is an unusual academic. He enjoys the respect of two quite different groups - historians and civil rights litigators. As a historian, Kousser has written a number of important works on the American South in the tradition of his mentor, C. Vann Woodward, including a foundational book on southern political history, The Shaping of Southern Politics: Suffrage Restriction and the Establishment of the One-Party South, 1880-1910. Many of his writings have become seminal texts among election law scholars. Kousser has also used his historical skills …


Finding Gold In The Rainbow Rights Movement, Shayna S. Cook May 2001

Finding Gold In The Rainbow Rights Movement, Shayna S. Cook

Michigan Law Review

In her history of the past fifty years of the gay and lesbian civil rights movement, Patricia Cain recounts the litigation successes and failures that contributed to the legal status of gays and lesbians in the Untied States today. Clearly an insider who has marched with the movement every step of the way, Cain provides a comprehensive account of all fronts of the battle in state and federal courts since 1950. But while Rainbow Rights serves as a good primer on the legal challenges and the key themes uniting them, the book reads like an account of a struggle ending …


Are We Protecting The Wrong Rights?, Jennifer L. Saulino May 2001

Are We Protecting The Wrong Rights?, Jennifer L. Saulino

Michigan Law Review

Elizabeth Bartholet, in her book Nobody's Children, takes a strong step toward beginning a new kind of dialogue about abused and neglected children. She positions herself as a liberal who has come to terms with the fact that traditional liberal ideals are in conflict with the needs of abused and neglected children (p. 5). In doing so, she tries to convince her readers that, regardless of ideology, we all should have a different focus in the area of child abuse and neglect law. She uses Sabrina as one of several examples of how programs for abused and neglected children that …


The Unsettling Of The West: How Indians Got The Best Water Rights, David H. Getches May 2001

The Unsettling Of The West: How Indians Got The Best Water Rights, David H. Getches

Michigan Law Review

A single, century-old court decision affects the water rights of nearly everyone in the West. The Supreme Court's two-page opinion in Winters v. United States sent out shock waves that reverberate today. By formulating the doctrine of reserved water rights, the Court put Indian tribes first in line for water in an arid region. Priority is everything where water law typically dictates that the senior water rights holder is satisfied first, even if it means taking all the water and leaving none for anyone else. In the West, water rights belong to "prior appropriators." The earliest users of water secure …


Miranda, The Constitution, And Congress, David A. Strauss Mar 2001

Miranda, The Constitution, And Congress, David A. Strauss

Michigan Law Review

Are Miranda warnings required by the Constitution, or not? If they are, why has the Supreme Court repeatedly said that the rights created by Miranda are "not themselves rights protected by the Constitution"? If not, why can't an Act of Congress, such as 18 U.S.C. 3501, declare them to be unnecessary? These were the central questions posed by United States v. Dickerson. It is not clear that the majority opinion ever really answered them. The majority said that "Miranda is constitutionally based," that Miranda has "constitutional underpinnings," that Miranda is "a constitutional decision," and that Miranda "announced a constitutional rule." …


Miranda'S Mistake, William J. Stuntz Mar 2001

Miranda'S Mistake, William J. Stuntz

Michigan Law Review

The oddest thing about Miranda is its politics - a point reinforced by the decision in, and the reaction to, Dickerson v. United States. In Dickerson, the Supreme Court faced the question whether Miranda ought to be overturned, either directly or by permitting legislative overrides. The lawyers, the literature, and the Court split along right-left - or, in the Court's case, right-center - lines, with the right seeking to do away with Miranda's restrictions on police questioning, and the left (or center) seeking to maintain them. The split is familiar. Reactions to Miranda have always divided along ideological lines, with …


Separated At Birth But Siblings Nonetheless: Miranda And The Due Process Notice Cases, George C. Thomas Iii Mar 2001

Separated At Birth But Siblings Nonetheless: Miranda And The Due Process Notice Cases, George C. Thomas Iii

Michigan Law Review

Paraphrasing Justice Holmes, law is less about logic than experience. Courts and scholars have now had thirty-four years of experience with Miranda v. Arizona, including the Court's recent endorsement in Dickerson v. United States last Term. Looking back over this experience, it is plain that the Court has created a Miranda doctrine quite different from what it has said it was creating. I think the analytic structure in Dickerson supports this rethinking of Miranda. To connect the dots, I offer a new explanation for Miranda that permits us to reconcile Dickerson and the rest of the post-Miranda doctrine with the …


Identifying And (Re)Formulating Prophylactic Rules, Safe Harbors, And Incidental Rights In Constitutional Criminal Procedure, Susan R. Klein Mar 2001

Identifying And (Re)Formulating Prophylactic Rules, Safe Harbors, And Incidental Rights In Constitutional Criminal Procedure, Susan R. Klein

Michigan Law Review

The Miranda conundrum runs something like this. If the Miranda decision represents true constitutional interpretation, and all unwarned statements taken during custodial interrogation are "compelled" within the meaning of the Self-Incrimination Clause, the impeachment and "fruits" exceptions to Miranda should fall. If it is not true constitutional interpretation, than the Court has no business reversing state criminal convictions for its violation. I offer here what I hope is a satisfying answer to this conundrum, on both descriptive and normative levels, that justifies not only Miranda but a host of similar Warren, Burger, and Rehnquist Court decisions as well. In Part …


Deceptive Police Interrogation Practices: How Far Is Too Far?, Laurie Magid Mar 2001

Deceptive Police Interrogation Practices: How Far Is Too Far?, Laurie Magid

Michigan Law Review

Virtually all interrogations - or at least virtually all successful interrogations - involve some deception. As the United States Supreme Court has placed few limits on the use of deception, the variety of deceptive techniques is limited chiefly by the ingenuity of the interrogator. Interrogators still rely on the classic "Mutt and Jeff," or "good cop, bad cop," routine. Interrogators tell suspects that nonexistent eyewitnesses have identified them, or that still at-large accomplices have given statements against them. Interrogators have been known to put an unsophisticated suspect's hand on a fancy, new photocopy machine and tell him that the "Truth …


Religion And The First Amendment: Some Causes Of The Recent Confusion, Carl H. Esbeck Mar 2001

Religion And The First Amendment: Some Causes Of The Recent Confusion, Carl H. Esbeck

William & Mary Law Review

No abstract provided.


Social Meaning And School Vouchers, Neal Devins Mar 2001

Social Meaning And School Vouchers, Neal Devins

William & Mary Law Review

No abstract provided.


The Paths Not Taken: The Supreme Court's Failures In Dickerson, Paul G. Cassell Mar 2001

The Paths Not Taken: The Supreme Court's Failures In Dickerson, Paul G. Cassell

Michigan Law Review

Where's the rest of the opinion? That was my immediate reaction to reading the Supreme Court's terse decision in Dickerson, delivered to me via email from the clerk's office a few minutes after its release. Surely, I thought, some glitch in the transmission had eliminated the pages of discussion on the critical issues in the case. Yet, as it became clear that I had received all of the Court's opinion, my incredulity grew.


Miranda, Dickerson, And The Puzzling Persistence Of Fifth Amendment Exceptionalism, Stephen J. Schulhofer Mar 2001

Miranda, Dickerson, And The Puzzling Persistence Of Fifth Amendment Exceptionalism, Stephen J. Schulhofer

Michigan Law Review

Dickerson v. United States preserves the status quo regime for judicial oversight of police interrogation. That result could be seen, in the present climate, as a victory for due process values, but there remain many reasons for concern that existing safeguards are flawed - that they are either too restrictive or not restrictive enough. Such concerns are partly empirical, of course. They depend on factual assessments of how much the Miranda rules do restrict the police. But such concerns also reflect a crucial, though often unstated, normative premise; they presuppose a certain view of how much the police should be …


Questioning The Relevance Of Miranda In The Twenty-First Century, Richard A. Leo Mar 2001

Questioning The Relevance Of Miranda In The Twenty-First Century, Richard A. Leo

Michigan Law Review

Miranda v. Arizona is the most well-known criminal justice decision - arguably the most well-known legal decision - in American history. Since it was decided in 1966, the Miranda decision has spawned voluminous newspaper coverage, political and legal debate, and academic commentary. The Miranda warnings themselves have become so well-known through the media of television that most people recognize them immediately. As Patrick Malone has pointed out, the Miranda decision has added its own lexicon of words and phrases to the American language. Perhaps with this understanding in mind, George Thomas recently suggested that the Miranda warnings are more well-known …


In The Stationhouse After Dickerson, Charles D. Weisselberg Mar 2001

In The Stationhouse After Dickerson, Charles D. Weisselberg

Michigan Law Review

Miranda v. Arizona established the high water mark of the protections afforded an accused during a custodial interrogation. During the decades that followed, the United States Supreme Court allowed Miranda's foundation to erode, inviting a direct challenge to the landmark ruling. In Dickerson v. United States, the Court turned back such a challenge and placed Miranda upon a more secure, constitutional footing. This Article explores the impact of Dickerson in the place where Miranda was meant to matter most: the stationhouse. As I have described elsewhere, Supreme Court decisions have influenced a number of California law enforcement agencies to instruct …


Miranda'S Failure To Restrain Pernicious Interrogation Practices, Welsh S. White Mar 2001

Miranda'S Failure To Restrain Pernicious Interrogation Practices, Welsh S. White

Michigan Law Review

As Yale Kamisar's writings on police interrogation demonstrate, our simultaneous commitments to promoting law enforcement's interest in obtaining confessions and to protecting individuals from overreaching interrogation practices have created a nearly irreconcilable tension. If the police must be granted authority to engage in effective questioning of suspects, it will obviously be difficult to insure that "the terrible engine of the criminal law . . . not . . . be used to overreach individuals who stand helpless against it." If we are committed to accommodating these conflicting interests, however, some means must be found to impose appropriate restraints on the …


Who Speaks For The State?: Religious Speakers On Government Platforms And The Role Of Disclaiming Endorsement, Steven H. Aden Feb 2001

Who Speaks For The State?: Religious Speakers On Government Platforms And The Role Of Disclaiming Endorsement, Steven H. Aden

William & Mary Bill of Rights Journal

The recent Supreme Court decision in Santa Fe Independent School District v. Doe prohibits prayer at school-sponsored events. In this Article the author analyzes the development of Supreme Court jurisprudence in the area of religion in public schools. Noting the tension between the Establishment and Free Speech Clauses, the author proposes the use of disclaimers to allow student expression at school events to avoid violating the Establishment Clause.


Laws As Treaties?: The Constitutionality Of Congressional-Executive Agreements, John C. Yoo Feb 2001

Laws As Treaties?: The Constitutionality Of Congressional-Executive Agreements, John C. Yoo

Michigan Law Review

Only twice in the last century, in 1919 with the Treaty of Versailles, and two years ago with the comprehensive Nuclear Test-Ban Treaty, has the Senate rejected a significant treaty sought by the President. In both cases, the international agreement received support from a majority of the Senators, but failed to reach the two-thirds supermajority required by Article II, Section 2, of the Constitution. The failure of the Versailles Treaty resulted in a shattering defeat for President Wilson's vision of a new world order, based on collective security and led by the United States. Rejection of the Test-Ban Treaty amounted …


Professionalism, Oversight, And Institution-Balancing: The Supreme Court's "Second Best" Plan For Political Debate On Television, Lili Levi Jan 2001

Professionalism, Oversight, And Institution-Balancing: The Supreme Court's "Second Best" Plan For Political Debate On Television, Lili Levi

Articles

Televised political debates have become a staple of modern elections. Proponents of open access to such debates argue that third party participation is a democratic necessity. They see as catastrophic the Supreme Court's decision in Arkansas Educational Television Commission v. Forbes, in which a state broadcaster was given the discretion to exclude a minor party candidate from a televised debate so long as the decision was viewpoint-neutral. This Article reads the Court's decision as a functional, "second best" solution that seeks to mediate the expressive and democratic values implicated in both open and closed access models. More generally, the …


Case Comment: Ins V. St. Cyr, Kevin C. Walsh Jan 2001

Case Comment: Ins V. St. Cyr, Kevin C. Walsh

Scholarly Articles

No abstract provided.


The Commercial Activity Exception Under The Fsia, Personhood Under The Fifth Amendment And Jurisdiction Over Foreign States: A Partial Roadmap For The Supreme Court In The New Millennium, Stephen J. Leacock Jan 2001

The Commercial Activity Exception Under The Fsia, Personhood Under The Fifth Amendment And Jurisdiction Over Foreign States: A Partial Roadmap For The Supreme Court In The New Millennium, Stephen J. Leacock

Faculty Scholarship

No abstract provided.


Note, Kdm Ex Rel. Wjm V. Reedsport School District, Kevin C. Walsh Jan 2001

Note, Kdm Ex Rel. Wjm V. Reedsport School District, Kevin C. Walsh

Scholarly Articles

No abstract provided.


Section 1983, The First Amendment, And Public Employee Speech: Shaping The Right To Fit The Remedy (And Vice Versa), Michael L. Wells Jan 2001

Section 1983, The First Amendment, And Public Employee Speech: Shaping The Right To Fit The Remedy (And Vice Versa), Michael L. Wells

Georgia Law Review

Constitutional rights have little value in the absence of effective remedies for their violation, includingsuitsfor damages to redress past constitutional wrongs and for injunctive relief to prevent continuing and future violations. Recognizing this, the Supreme Court has, especially over the past forty years, constructed an elaborate body of remedial doctrine. The Court has often acted on the premise that the remedial law should be more or less the same across the whole range of constitutional rights. The problem with this approach is that, from a remedial perspective, there are differences among the real world contexts in which constitutional violations occur. …


Direct Measures: An Alternative Form Of Affirmative Action, Daria Roithmayr Jan 2001

Direct Measures: An Alternative Form Of Affirmative Action, Daria Roithmayr

Michigan Journal of Race and Law

Part I of this essay sets out in detail the direct measures affirmative action program. This section also compares the program to other alternative affirmative action program experiments undertaken by various educational institutions. Parts II and III discuss the constitutionality of a direct measures program.