Supreme Court of the United States Commons^™

Just Compensation, Incentives, And Social Meanings, Hanoch Dagan

Michigan Law Review

In Takings and Distributive Justice, I proposed a progressive interpretation of the Compensation Clause. In his response, published in this issue, Professor Lunney challenges the plausibility and the desirability of my interpretation and proposes an alternative. This Essay compares our approaches. It concludes that Professor Lunney's careful examination of the public choice analysis of takings does refine my theory. Contrary to Professor Lunney's claims, however, these refinements reinforce - rather than undermine - the viability of a progressive takings doctrine. Parts I and II set the stage by summarizing the principal claims made, respectively, in my original Article and in …

Takings, Efficiency, And Distributive Justice: A Response To Professor Dagan, Glynn S. Lunney Jr.

Michigan Law Review

In A Critical Reexamination of the Takings Jurisprudence, I addressed an efficiency problem that arises when the government attempts to change property rights in a manner that burdens a very few for the benefit of the very many. Specifically, in the absence of compensation, the collective action advantage of the few in organizing to oppose the proposed measure will often give them a decided edge against the many. As a result of that advantage, the few will too often be able to persuade the legislature not to act, even when an objective evaluation of the proposal's costs and benefits would …

Casting Light On Cultural Property, John J. Costonis

Michigan Law Review

Theorists of private property invite comparison to theorists of light. For centuries, the latter have debated whether light is best understood as a wave or as a photon. The rivalry has been intense because each hypothesis explains some characteristics of light very well, but others very poorly. Wave theory outstrips photon theory in explaining such phenomena as light's frequencies and diffraction patterns. But photon theory, which reduces light to a succession of particles, more effectively explains such subatomic phenomena as changes in an atom's orbital shell produced by the interaction of photons and electrons. Property theorists too can be viewed …

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.

Uncoupling The Law Of Takings, Michael A. Heller, James E. Krier

Articles

The law of takings couples together matters that should be treated independently. The conventional view, shared by courts and commentators alike, has been that any takings case can be resolved in one of two ways: either there is a taking and compensation is due, or there is no taking and no compensation is due. These results are fine as long as one holding or the other serves the two central concerns of the Takings Clause - eficiency and justice. But a problem arises when the two purposes behind the law of takings come into cordhct, as they readily might. It …

The Boundaries Of Private Property, Michael A. Heller

Articles

If your house and fields are worth more separately, divide them; if you want to leave a ring to your child now and grandchild later, split the ownership in a trust. The American law of property encourages owners to subdivide resources freely. Hidden within the law, however, is a boundary principle that limits the right to subdivide private property into wasteful fragments. While people often create wealth when they break up and recombine property in novel ways, owners may make mistakes, or their self-interest may clash with social welfare. Property law responds with diverse doctrines that prevent and abolish excessive …

Making Something Out Of Nothing: The Law Of Takings And Phillips V. Washington Legal Foundation, Michael A. Heller, James E. Krier

Articles

Phillips v. Washington Legal Foundation held that interest on principal amounts deposited into IOLTA accounts is the property of the various clients who handed over the money but expressed no view as to whether the Texas IOLTA program worked a taking, or, if it did, whether any compensation was due. The debates among the justices about the meaning of private property, argued in terms of contextual and conceptual severance, are unlikely to prove fruitful. We elaborate a better approach in terms of the underlying purposes of just compensation. We conclude that efficiency and justice are best served by uncoupling matters …

Deterrence And Distribution In The Law Of Takings, Michael A. Heller, James E. Krier

Articles

Supreme Court decisions over the last three-quarters of a century have turned the words of the Takings Clause into a secret code that only a momentary majority of the Court is able to understand. The Justices faithfully moor their opinions to the particular terms of the Fifth Amendment, but only by stretching the text beyond recognition. A better approach is to consider the purposes of the Takings Clause, efficiency and justice, and go anew from there. Such a method reveals that in some cases there are good reasons to require payment by the government when it regulates property, but not …

Ultra Vires Takings, Matthew D. Zinn

Michigan Law Review

When does legislative or administrative regulatory action "go[] too far" and effectively amount to an .appropriation of private property for which the Fifth Amendment requires just compensation? This question has turned out to be one of the thorniest in American constitutional law. The Supreme Court has identified several circumstances in which one can expect to find a regulatory taking, but its numerous pronouncements on the subject give no clear rule to distinguish compensable takings from noncompensable interference with property rights. Notwithstanding its volume, the commentary on the Takings Clause by and large addresses only proper governmental action that rises to …

Oregon V. Elstad Revisited: Urging State Court Judges To Depart From The U.S. Supreme Court's Narrowing Of Miranda, Claudia R. Barbieri

University of the District of Columbia Law Review

Imagine an average young man on the threshold of adulthood, living in a medium-sized town in a middle-class family. Still in his early years, he gets into a little local trouble and one day finds the police at his door. They ask him questions about a burglary. He panics, and as he racks his brain for some scrap of legal knowledge that might get him out of this frightening situation, he admits that he knows about the crime, stating he was there. The police become more persistent, telling him they know about his involvement, asking him if he wants to …

A Tempered "Yes" To The "Exculpatory No", Scott D. Pomfret

Michigan Law Review

What circumstances trigger a person's duty to tell the truth? Immanuel Kant claimed without qualification that all circumstances require truthtelling, even when speaking the truth injures the speaker. John Henry Cardinal Newman made exceptions for lies that achieved some positive end. Hugo Grotius permitted lies to adversaries. The philosophy of twentieth-century common sense largely permits white lies. Perhaps surprisingly, some courts have found that Kant's absolute prohibition of falsehood more accurately characterizes a speaker's duty to tell the truth to the federal government under 18 U.S.C. § 1001 than these other, more relaxed standards. According to this view, the prohibition …

It Was A Very Good Year - For The Government: The Supreme Court's Major Criminal Rulings Of The 1995-1996 Term, William E. Hellerstein

Touro Law Review

No abstract provided.

Brief Of Lone Wolf, Principal Chief Of The Kiowas, To The Supreme Court Of The American Indian Nations, S. James Anaya

Publications

No abstract provided.

Determining Ripeness Of Substantive Due Process Claims Brought By Landowners Against Local Governments, David S. Mendel

Michigan Law Review

Landowners who sustain economic harm from arbitrary and capricious applications of land use regulations may sue the local government entities responsible for applying those regulations under 42 U.S.C. § 1983, alleging that the local government entities deprived them of substantive due process in violation of the Fourteenth Amendment. A landowner who brings this claim - an "as-applied arbitrary and capricious substantive due process" claim - may in appropriate cases seek declaratory and injunctive relief, damages, and attorney's fees. Despite controversy among courts and commentators over both the definition of property interests protected by the Due Process Clause and the standard …

A Peculiar Privilege In Historical Perspective: The Right To Remain Silent, Albert W. Alschuler

Michigan Law Review

Supreme Court decisions have vacillated between two incompatible readings of the Fifth Amendment guarantee that no person "shall be compelled in any criminal case to be a witness against himself." The Court sometimes sees this language as affording defendants and suspects a right to remain silent. This interpretation - a view that countless repetitions of the Miranda warnings have impressed upon the public - asserts that government officials have no legitimate claim to testimonial evidence tending to incriminate the person who possesses it. Although officials need not encourage a suspect to remain silent, they must remain at least neutral toward …

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 …

To Act Or Not? That Is The Question: Self-Incrimination And The Sole Proprietor, Raymond G. Keenan

Touro Law Review

No abstract provided.

The Public Safety Exception To Miranda: Analyzing Subjective Motivation, Marc Schuyler Reiner

Michigan Law Review

This Note argues, however, that the appropriate inquiry under Quarles is whether an actual and reasonable belief in an emergency motivated the interrogating officer. This Note proposes a two-prong test to facilitate this inquiry. The subjective motivation prong evaluates the officer's subjective motivation as revealed by objective factors: the. content of the officer's questions, when he asked them, and when the suspect received Miranda warnings. The objective reasonableness prong looks at the objective circumstances to determine the reasonableness of the officer's belief in an emergency.

Part I demonstrates that the Quarles opinion actually contemplates and requires analysis of the officer's …

Chopping Miranda Down To Size, Michael Chertoff

Michigan Law Review

A Review of Confessions, Truth, and the Law by Joseph D. Grano

On The 'Fruits' Of Miranda Violations, Coerced Confessions, And Compelled Testimony, Yale Kamisar

Articles

Professor Akhil Reed Amar and Ms. Renee B. Lettow have written a lively, provocative article that will keep many of us who teach constitutional-criminal procedure busy for years to come. They present a reconception of the "first principles" of the Fifth Amendment, and they suggest a dramatic reconstruction of criminal procedure. As a part of that reconstruction, they propose, inter alia, that at a pretrial hearing presided over by a judicial officer, the government should be empowered to compel a suspect, under penalty of contempt, to provide links in the chain of evidence needed to convict him.

Reply: Self-Incrimination And The Constitution: A Brief Rejoinder To Professor Kamisar, Akhil Reed Amar, Renée B. Lettow

Michigan Law Review

A Reply to Yale Kamisar's Response to the "Fifth Amendment Principles: The Self-Incrimination Clause"

Fifth Amendment First Principles: The Self-Incrimination Clause, Akhil Reed Amar, Renée B. Lettow

Michigan Law Review

In Part I of this article, we examine the global puzzle of the Self-Incrimination Clause and the local confusion or perversion lurking behind virtually every key word and phrase in the clause as now construed. In Part II we elaborate our reading of the clause and show how it clears up the local problems and solves the overall puzzle.

Supreme Court's Tilt To The Property Right: Procedural Due Process Protections Of Liberty And Property Interests, Jack M. Beermann, Barbara A. Melamed, Hugh F. Hall

Faculty Scholarship

The Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution provide important protections against government oppression. They provide that government may not deprive any person of "life, liberty or property" without due process of law. In recent decisions, the Supreme Court has appeared willing to strengthen its protection of traditional property interests yet weaken its protection of liberty interests.

It has long been accepted, albeit with controversy, that due process has both procedural and substantive elements. This essay concerns the procedural elements. Procedural due process analysis asks two questions: first, whether there exists a liberty …

Double Jeopardy

Touro Law Review

No abstract provided.

Right To Counsel

Touro Law Review

No abstract provided.

Waiver Of Rights In The Interrogation Room: The Court's Dilemma, William T. Pizzi

Publications

No abstract provided.

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 …

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.

Webster V. Doe, Lewis F. Powell, Jr.

Supreme Court Case Files

No abstract provided.

Economic Analysis Of Liberty And Property: A Critique, Peter N. Simon

Publications

No abstract provided.