The University of Memphis law review最新文献

{"title":"Martin Luther King Jr. And Pretext Stops (and Arrests): Reflections on How Far We Have Not Come Fifty Years Later","authors":"Tracey Maclin, M. Savarese","doi":"10.2139/SSRN.3200528","DOIUrl":"https://doi.org/10.2139/SSRN.3200528","url":null,"abstract":"By January, 1956, the Montgomery Bus boycott was in full-swing. Black citizens in Montgomery, Alabama were refusing to ride the city’s private buses to protest racially segregated seating. On the afternoon of January 26, 1956, twenty-seven-year-old Martin Luther King, Jr. had finished his day of work at the Dexter Avenue Baptist Church in Montgomery. On his drive home, King stopped his vehicle to offer a ride to a group of bus boycotters standing at a downtown car-pool location. After the boycotters entered King’s car, two motorcycle policemen pulled-in behind King’s vehicle. While everyone in King’s car tried to remain calm, the police continued to follow King’s car. At the next car-pool location, when some of King’s passengers began to exit, one of the policemen pulled next to King’s window, stating: “‘Get out, King. You’re under arrest for speeding thirty miles an hour in a twenty-five-mile zone.’” While stunned by the police action, King did not protest. He was arrested and taken to the Montgomery City Jail, where he was processed, fingerprinted and jailed with other black prisoners. \u0000 \u0000It has been nearly sixty years since Martin Luther King, Jr. was subjected to this arbitrary and discriminatory police practice. Surely, things have changed in America. After the demise of the Jim Crow system, the enactment of federal and civil rights legislation protecting blacks from discriminatory application of state and local laws, and several decades of Supreme Court rulings enforcing the rights of black citizens, it would seem that law enforcement officials can no longer perform this type of arbitrary and bigoted policing. Although much has changed in America, investigatory or pretext stops unfortunately remain ubiquitous. As in King’s case, these stops are not aimed at enforcing the traffic code. Rather, police who conduct investigatory stops are a fishing expedition to look for evidence of criminal conduct. Various types of law enforcement agencies utilize pretext stops; and high-ranking police officials endorse pretext stops as a crime control measure. Indeed, two decades ago, investigatory stops were given a major boost when the federal government actively encouraged state and local police departments to use traffic laws as a basis for stopping cars suspected of drug smuggling. \u0000 \u0000From one perspective, the use of pretext stops in the War on Drugs specifically, and to fight crime generally, raises no legal alarm. For most white Americans, modern application of this practice may seem annoying, but it is worth the cost in the fight against crime. A motorist is stopped by the police. The officer then questions the motorist about his or her travel plans (and if there are passengers, they are also questioned). Finally, a traffic summons or ticket may be issued. While bothersome, this practice, viewed in the aggregate, does not amount to a constitutional crisis. Moreover, on a rare occasion, criminality is exposed as a result of the stop. \u0000 \u0000Black American","PeriodicalId":87424,"journal":{"name":"The University of Memphis law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-06-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76334010","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Runaway Judge: John Grisham's Appearance in Judicial Opinions","authors":"Nicholas Mignanelli","doi":"10.2139/SSRN.3141316","DOIUrl":"https://doi.org/10.2139/SSRN.3141316","url":null,"abstract":"Each year, countless scholars publish articles in law reviews across the country hoping to have some impact on the way courts interpret and apply the law. To have one’s labors approvingly cited or discussed by a court is one of the highest compliments a legal scholar can receive. Thus, it is the height of irony that judges have discussed or alluded to the works of novelist John Grisham — an attorney who has never authored a law review article — in over two dozen opinions. This study of those opinions begins with an explanation of methodology and an annotated bibliography of the results. Next, the author discusses the various ways that courts have used Grisham’s works, categorizing each case according to its function. The author concludes with further speculation about why judges are drawn to Grisham’s novels.","PeriodicalId":87424,"journal":{"name":"The University of Memphis law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79004188","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Partisan Gerrymandering: Is There No Shame in It or Have Politicians Become Shameless?","authors":"Steven Semeraro","doi":"10.2139/SSRN.3024108","DOIUrl":"https://doi.org/10.2139/SSRN.3024108","url":null,"abstract":"Thirty years ago, the Supreme Court held that gerrymandering districts to favor one party discriminates against those who vote for the disadvantaged party and thus violates the Equal Protection Clause. But the justices have struggled to agree on a test. Although no one describes rigging a district map to give one party an unfair advantage as a good thing, some come close. And therein lies the rub. If partisan gerrymandering just isn’t that bad, it becomes hard to muster the political will to strike it down, even if virtually everyone agrees that some gerrymanders are unconstitutional. By granting certiorari in Gill v. Whitford – a case in which a three-judge district court struck down a state legislative district map as an unlawful partisan gerrymander – the Supreme Court may finally be ready to answer that question. \u0000Perhaps surprisingly, the fundamental question – how bad is partisan gerrymandering – has received little attention. This article shows that partisan gerrymanders are anathema to the ideal of American democracy. They produce precisely the type of unchecked decision-making that the Constitution sought to prevent. And they clash with the culture of American democracy that respects either (1) historical-boundary-based district voting or (2) proportionality between the percentage of voters who cast ballots for a party statewide and the percentage of representatives from that party in the legislature. A partisan gerrymander disrespects both of those legitimate goals. Accepting it as part and parcel of the political process would undermine the original understanding of a democratic republic embodied by the Constitution as well as the understandings of Americans throughout the nation’s history. \u0000This Article then looks to that history and culture to articulate a standard for assessing redistricting claims. Courts have struggled to draw the line separating permissible and impermissible partisan gerrymandering because no such line exists. District line drawing is not like the porridge in Goldilocks and the Three Bears – sometimes too hot or too cold, but somewhere in the middle is just right. The question is one of kind, not degree. Some types of district line-drawing accord with our heritage and some don’t. \u0000Legislators drawing a district map may take partisanship into account – just as they can take race into account – to further a legitimate objective of the democratic process. Our constitutional, legal, and democratic cultural history supports the two legitimate goals set out above – districts based on historical geographic boundaries or proportionality. A partisan advantage may legitimately arise from pursuing one of these goals, because the goal comports with our democratic heritage. \u0000By contrast, drawing lines that disrespect both historical geographic boundaries and the proportional will of all voters – as partisan gerrymandering does – has no rational basis in our shared history and thus fails to accord voters on the short end of th","PeriodicalId":87424,"journal":{"name":"The University of Memphis law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2017-08-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84014757","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Vacatur of Awards Under the Tennessee Uniform Arbitration Act: Substance, Procedure, and Strategies for Practitioners","authors":"Steven W. Feldman","doi":"10.2139/SSRN.2608985","DOIUrl":"https://doi.org/10.2139/SSRN.2608985","url":null,"abstract":"This article analyzes the Tennessee Uniform Arbitration Act (TUAA). One of the most challenging TUAA topics is the action for vacatur (annulment) of an arbitral award. Because actions for vacatur are often the most hotly-disputed matters between the arbitral parties, this article focuses on this subject to assist practitioners in developing strategies to advance their clients’ interests.","PeriodicalId":87424,"journal":{"name":"The University of Memphis law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2015-05-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75955280","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The First 48: Ending the Use of Categorically Unconstitutional Investigative Holds in Violation of County of Riverside v. McLaughlin","authors":"Daniel Horwitz","doi":"10.2139/ssrn.2563605","DOIUrl":"https://doi.org/10.2139/ssrn.2563605","url":null,"abstract":"This Article critiques the holding adopted by a growing number of courts that law enforcement may delay a warrantless arrestee’s constitutional right to receive a judicial determination of probable cause for up to forty-eight hours following an arrest as long as a judge or magistrate ultimately determines that the arrest itself was supported by probable cause. Although this issue has largely escaped review within academic literature, the practice of employing investigative detentions against warrantless arrestees is widespread among law enforcement. Of note, whether such investigative detentions comport with the Fourth Amendment has also generated a circuit split between the Eighth Circuit Court of Appeals and one of two irreconcilable lines of authority within the Seventh Circuit Court of Appeals. The issue has similarly divided the appellate courts of at least nine states. This Article rejects the notion that law enforcement may ever deliberately delay a warrantless arrestee’s constitutional right to receive a judicial determination of probable cause (known as a “Gerstein hearing”) in order to facilitate further investigation by law enforcement. Specifically, it argues that the conclusion reached by several courts that police may intentionally delay a warrantless arrestee’s Gerstein hearing for the purpose of further investigation as long as probable cause existed to justify the defendant’s arrest in the first place is inconsistent with the Fourth Amendment for five separate reasons. First, it confounds the essential distinction between a judicial determination of probable cause, which is a constitutional right, and a determination of probable cause that is made by law enforcement, which carries no constitutional significance. Second, it violates the “administrative purpose” requirement — initially established by the Supreme Court in Gerstein v. Pugh, and subsequently reaffirmed by the Supreme Court in County of Riverside v. McLaughlin — which permits law enforcement to delay a warrantless arrestee’s Gerstein hearing for administratively necessary reasons only. Third, this conclusion fails to grasp the crucial distinction between, on the one hand, delaying a warrantless arrestee’s Gerstein hearing for investigative reasons, and on the other, continuing an investigation while the administrative steps leading up to a warrantless arrestee’s Gerstein hearing are simultaneously being completed. Fourth, it renders McLaughlin’s express prohibition on “delays for the purpose of gathering additional evidence to justify [an] arrest” superfluous, because all arrests unsupported by probable cause are already prohibited by the Fourth Amendment. Fifth, it substantially diminishes the value of the check on law enforcement established by Gerstein by introducing hindsight bias into probable cause determinations and by allowing a substantial number of warrantless arrests to escape judicial review of any kind.","PeriodicalId":87424,"journal":{"name":"The University of Memphis law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2015-02-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80672894","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"It's the People's Constitution, Stupid: Two Liberals Pay Tribute to Antonin Scalia's Legacy","authors":"Adam Lamparello, Charles E. MacLean","doi":"10.2139/SSRN.2436952","DOIUrl":"https://doi.org/10.2139/SSRN.2436952","url":null,"abstract":"Living constitutionalism may achieve “good” results, but with each Roe v. Wade, and Bush v. Gore, the Constitution’s vision takes more shallow breaths, and democracy fades into elitism’s shadow. The debate over constitutional interpretation is, in many ways, reducible to this question: if a particular outcome is desirable, and the Constitution’s text is silent or ambiguous, should the United States Supreme Court (or any court) disregard constitutional constraints to achieve that outcome? If the answer is yes, nine unelected judges have the power to choose outcomes that are desirable. If the answer is no, then the focus must be on ensuring political and democratic equality. The Court’s jurisprudence should promote equal participation in the democratic process — and equal protection of the laws — because it enhances personal autonomy and provides citizens — particularly disenfranchised groups — a meaningful voice in self-governance. The authors present sixteen excerpts from Justice Scalia’s famous dissents and concurrences. Justice Scalia’s words embrace the democratic process — not the so-called living constitution — as a source for change. They argue that, within the Constitution’s written constraints, citizens in each state have the freedom to make laws and define unenumerated rights from the bottom up. Ironically, though, many seem to bristle at the idea of the people, not courts, defining “one’s own concept of existence . . . and the mystery of human life.” Why?","PeriodicalId":87424,"journal":{"name":"The University of Memphis law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2014-05-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81178051","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Kaleidoscopic Chaos: Understanding the Circuit Courts’ Various Interpretations of § 2255's Savings Clause","authors":"Jennifer L. Case","doi":"10.2139/SSRN.2375960","DOIUrl":"https://doi.org/10.2139/SSRN.2375960","url":null,"abstract":"More than 65 years ago, Congress enacted a short statute (codified at 28 U.S.C. § 2255) to even the habeas corpus workload among the federal courts. That statute included a “Savings Clause,” which allows prisoners to challenge their convictions and sentences in a federal habeas petition when § 2255 is “inadequate or ineffective” for the task. Since that time — and with increasing frequency — the U.S. Courts of Appeals have developed wildly varying tests to determine when and how § 2255’s Savings Clause applies to prisoners’ attempts to bring federal habeas petitions under 28 U.S.C. § 2241.In their attempts to understand the Savings Clause’s scope and meaning, the circuit courts have found a myriad ways to navigate the gap between § 2255 and § 2241 and find a path for a petitioner to bring her § 2241 petition. However, in undertaking their task, the circuit courts have created kaleidoscopic chaos that impairs the ability of prisoners, counsel, and the federal courts themselves to understand when and how a federal prisoner can pass through the Savings Clause and challenge his conviction and sentence in a § 2241 petition.This article reveals the patchwork of Savings Clause jurisprudence created by the circuit courts. Then, using several realistic hypotheticals, the article explores how geography, circuit precedent, and the nature and timing of intervening interpretations of criminal statutes determine whether and when prisoners who are serving sentences for acts that the law did not criminalize can bring a federal habeas petition and get out of prison. Through the use of these hypotheticals, the reader learns how the fates of federal prisoners (who appear to be similarly-situated) vary wildly depending on such things as where they were sentenced, where they are presently confined, and how and when the court system’s understanding of the underlying criminal statute changed.","PeriodicalId":87424,"journal":{"name":"The University of Memphis law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2014-01-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85429060","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Justice and Harsh Results: Beyond Individualism and Collectivism in Contracts","authors":"Kenneth K. Ching","doi":"10.2139/SSRN.2309546","DOIUrl":"https://doi.org/10.2139/SSRN.2309546","url":null,"abstract":"The strict enforcement of contract terms can have harsh results. Whether a court should enforce harsh contractual terms has generally been addressed from either an individualist perspective (i.e., Charles Fried, Randy Barnett), in which individual autonomy is given priority, or a collectivist perspective (i.e., P.S. Atiyah, Richard Posner), in which social values are given priority. Both individualism and collectivism are descriptively and normatively flawed approaches to the problems presented by harsh contractual terms. The individualist approach requires the enforcement of any terms upon which the parties agree, leading to a sacrifice of justice. But the collectivist approach disregards the will of the parties, leading to a sacrifice of the individual. A Thomist approach, however, combines the strengths and avoids the weaknesses of individualism and collectivism by holding that contracts are voluntary normative relationships, and emphasizing the necessity of promise-keeping as a means for promoting the common good.This article considers these issues in the context of the famous contracts case Jacob & Youngs v. Kent, in which Judge Benjamin Cardozo’s majority opinion represents the collectivist perspective and Judge Chester McLaughlin’s pointed dissent represents the individualist perspective. Jacob & Youngs has never been analyzed from a Thomist perspective, and this article demonstrates that such an approach yields an analysis superior to that of either an individualist or collectivist approach to the case.Also, this article demonstrates that Jacob & Youngs was wrongly decided on the basis of material misrepresentations of fact and law. This article corrects important misunderstandings about this canonical case, many of which have been perpetuated by prominent authors over the years.","PeriodicalId":87424,"journal":{"name":"The University of Memphis law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2013-08-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83833661","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Advocacy as a Race to the Bottom: Rethinking Limits on Lawyers’ Free Speech","authors":"Peter S. Margulies","doi":"10.2139/SSRN.2021409","DOIUrl":"https://doi.org/10.2139/SSRN.2021409","url":null,"abstract":"Attorneys looking for protection under the First Amendment have searched in vain for a consistent theory. Courts have not helped. In a high-water mark for robust interpretation of the First Amendment, the Supreme Court in Legal Services Corp. v. Velazquez struck down limits on government aid to lawyers who challenged welfare reform legislation. However, other cases send a mixed message. Courts limit lawyers’ public discussion of evidence in pending cases, while the Supreme Court’s decision in Garcetti provided no protection for internal dissent in prosecutors’ offices. A recent decision, Holder v. Humanitarian Law Project, has prompted fears that the Court is poised to bar legal representation of terrorist groups. Scholars have compounded the confusion. Some advance a managerial perspective, criticizing Velazquez by wrongly asserting that a court’s established power to punish frivolous legal claims should also allow Congress to choose the laws that government-funded attorneys can challenge. In contrast, absolutists contend that lawyers and other individuals have identical free speech rights, but tie their analysis to a dubious analogy between the town meeting and the courtroom. Managerialists demand too much deference to restrictions on speech; absolutists bridle at any limits at all. To ease the confusion, the paper outlines a new approach: structural signaling. Signaling can build trust when obtaining complete information is too costly, as when a lawyer’s opinion letter replaces a lender’s exhaustive investigation of a loan application. However, signaling can rapidly turn dystopian, triggering races to the bottom that destroy public goods such as the integrity of adjudication. Prejudicial pretrial publicity, in which the media becomes the jury, reflects this sort of ruinous competition, which I call a signaling spiral. The government can also trigger signaling spirals, as in the tacit signaling of prosecutorial nondisclosure that the Garcetti Court spurred by leaving internal debate unprotected. In each, signaling spirals have structural effects, imperiling courts’ role in democratic governance. To show how courts can respond with pivots from deference to free-speech protection, the paper cites examples from criminal justice, restrictions on access to legal representation, and lawyers’ marketing.","PeriodicalId":87424,"journal":{"name":"The University of Memphis law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2012-03-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90054877","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Personal Jurisdiction as a Mandatory Rule","authors":"Aaron R. Petty","doi":"10.2139/SSRN.1966731","DOIUrl":"https://doi.org/10.2139/SSRN.1966731","url":null,"abstract":"For the past decade, the Supreme Court has consistently admonished the bench and bar that rules delineating the scope of federal jurisdiction must not be confused with emphatic, but non-jurisdictional, bars to judicial review. Whether a particular rule falls on one side of the jurisdictional divide or the other has presented a difficult question. In a recent article, Scott Dodson proposes that there are a class of rules - \"mandatory rules\" - that while not jurisdictional in the strict sense now employed by the Supreme Court, nonetheless possess some jurisdictional characteristics. In this Essay, I suggest that personal jurisdiction is one such mandatory rule. That is, I suggest that under the logic now employed by the Supreme Court, personal jurisdiction is not \"jurisdiction\" at all. Limiting the jurisdictional label to subject-matter jurisdiction will facilitate terminological and conceptual clarity in what has become a confused field.","PeriodicalId":87424,"journal":{"name":"The University of Memphis law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2011-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80788640","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}