Digital Commons Network^™

Shortened Judicial Term May Prove To Be Lucky, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

Untangling The Market-Participant Exemption To The Dormant Commerce Clause, Dan T. Coenen

Scholarly Works

This article focuses on an important vehicle through which the modern Court has moved to protect local prerogatives: the market-participant exemption to the dormant commerce clause. The core of the Court's dormant commerce clause jurisprudence is well-settled: "The commerce clause, by its own force, prohibits discrimination against interstate commerce, whatever its form or method...” Over the past two decades, however, the Court has lifted this prohibition when states act as "market participants" rather than as "market regulators." Invoking this distinction, the Court has shielded from commerce clause attack blatant favoritism of local interests when a state or municipality buys printing …

Untangling The Market-Participant Exemption To The Dormant Commerce Clause, Dan T. Coenen

Scholarly Works

There is no theme more familiar to constitutional law than the clash between federal power and state autonomy. The history of that struggle reveals, by and large, a long losing battle by the states. Over the years, the Supreme Court has recognized far-reaching congressional powers, rebuffed efforts to rein them in through use of the tenth amendment, and saddled the states with every significant restraint imposed by the Bill of Rights. From time to time, however, the currents of constitutional doctrine run in favor of local control. In recent years, for example, the Court has stemmed the tide toward constitutionalizing …

Untangling The Market-Participant Exemption To The Dormant Commerce Clause, Dan T. Coenen

Michigan Law Review

This article explores the market-participant rule. Part I traces the rule's evolution and shows how it has proven less rigid than some initially feared. Part II probes the roots of the rule by challenging justifications for it suggested by other observers. Part III offers an alternative theory of the market-participant doctrine, arguing in particular that it rests on a cluster of rationales that properly have led· the Court to uphold marketplace preferences as the "general rule." Part IV builds on Part III to advance a new, four-part framework for evaluating market-participant issues. Part V then uses that framework to apply …

The Twenty-Three Lawyer-Delegates To The Constitutional Convention, Charles K. Wiggins

Selected Articles on Washington State Constitution History

Twenty-three of the delegates to the Washington Constitutional Convention of 1889 were lawyers. Who were these met; how did their talents serve them in convention; and what forces shaped their debates and votes?

Standing To Sue For Unrecognized Foreign Governments: National Petrochemical Company Of Iran V. Mit Stolt Sheaf, Reid W. Lambert

BYU Law Review

No abstract provided.

The Right To Evidence, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Although its theoretical basis may be disputed, nobody questions the proposition that a person charged with a crime has a constitutional right to present a defense. Presenting a defense naturally requires access to proof. Access includes not only the availability of evidence, but also its permissible use. Consider some examples: A defendant wants to testify, but his lawyer's threats drive him off the stand. A witness who might be expected to give favorable testimony for the defense appears at trial but refuses to testify. A defense witness wants to testify, but because the defendant failed to notify the prosecutor about …

"Let Congress Do It": The Case For An Absolute Rule Of Statutory Stare Decisis, Lawrence C. Marshall

Michigan Law Review

The sporadic way that various members of the Supreme Court and the legal community treat the principle of stare decisis is increasingly striking. At times, the rule of stare decisis appears to be trotted out in defense of decisions that were actually reached on quite independent grounds. At other times, the dictates of the rule appear to be casually ignored when other factors call for the overruling of a precedent. It is tempting, therefore, to dismiss the rule of stare decisis as a mere rhetorical device, much like the question of whether a Supreme Court nominee's judicial philosophy is an …

The Constitution's Accommodation Of Social Change, Philip A. Hamburger

Michigan Law Review

Did the framers and ratifiers of the United States Constitution think that changes in American society would require changes in the text or interpretation of the Constitution? If those who created the Constitution understood or even anticipated the possibility of major social alterations, how did they expect constitutional law - text and interpretation - to accommodate such developments?

The effect of social change upon constitutional law was an issue the framers and ratifiers frequently discussed. For example, when AntiFederalists complained of the Constitution's failure to protect the jury trial in civil cases, Federalists responded that a change of circumstances might, …

Shutting Down The Government, Alan L. Feld

Faculty Scholarship

Actions of the federal government cost money. Legislative processes that specify the amounts and purposes of governmental expenditures control the scope and content of government actions.¹ To paraphrase Chief Justice Marshall, the power to withhold spending involves the power to destroy.²

Those involved in the legislative process ordinarily do not engage in wholesale or sudden dismantling of government activities through unheralded failures to provide funds. While disputes over funding constitute a regular part of the nation's political activity, these controversies usually concern adjustments in the level of spending and of agency operations. A decision to terminate an agency …

The Continued Importance Of The Maryland Declaration Of Rights, William L. Reynolds

Faculty Scholarship

An analysis of the origins and development of Maryland's 'Declaration of Rights.'

Toward A Rational Scheme Of Interstate Water Compact Adjudication, Joseph W. Girardot

University of Michigan Journal of Law Reform

This Note argues that the current method of resolving interstate water compact disputes is seriously flawed and that the current practice of invoking the Supreme Court's original jurisdiction to resolve these cases should be altered. This Note contends that the compact itself should contain structural dispute resolution procedures insisted upon by Congress before any grant of approval is given to the agreement. Part I of this Note examines the history of the compact clause of the Constitution and its application in interstate relations. Part II explores how a poorly drafted, yet fairly representative, water allocation compact led two states to …

The First Amendment And The Flag, Bruce Berner

Law Faculty Publications

No abstract provided.

A Political-Choice Approach To Limiting Prejudicial Evidence, J. Alexander Tanford

Indiana Law Journal

No abstract provided.

Law And Disorder, Robert W. Gordon

Indiana Law Journal

No abstract provided.

Toward An Expanded View Of The Due Process Claim In Entrapment Cases, Paul Marcus

Faculty Publications

No abstract provided.

On Amending The Constitution: A Plea For Patience, Ruth Bader Ginsburg

University of Arkansas at Little Rock Law Review

No abstract provided.

Constitutional Law—Civil Rights—State's Failure To Protect Child From Known Abuse Does Not Trigger Liability Under Section 1983. Deshaney V. Winnebago County Department Of Social Services, 109 S. Ct. 998 (1989)., Sarah J. Hefley

University of Arkansas at Little Rock Law Review

No abstract provided.

The Politics Of The Imagination: A Life Of F.R. Scott, J King Gordon

Dalhousie Law Journal

The task of a biographer is a challenging one at best. And when the subject is one who has achieved distinction in many fields the difficulties are magnified many times. Better, perhaps, to settle for a Festschift where colleagues and friends in fields in which the subject has excelled join together to pay their separate tributes. So in the case of Frank Scott and his biographer, Sandra Djwa. She is a professor of literature and has achieved recognition for the work she has done on the writings and life of E.J. Pratt. It was undoubtedly Frank Scott, the distinguished Canadian …

Murray V. United States: The Bell Tolls For The Search Warrant Requirement, Craig M. Bradley

Indiana Law Journal

No abstract provided.

The Annenberg Libel Reform Proposal: The Case For Enactment, Rodney A. Smolla, Michael J. Gaertner

William & Mary Law Review

No abstract provided.

The Charter Of Rights And The Legalization Of Politics In Canada, H Archibald Kaiser

Dalhousie Law Journal

Prospective readers would be forgiven were they to react in a dismissive manner to yet another book about the Charter. For any contribution in this now over-cultivated field, the question must immediately be asked: "Has the author brought a new vision, a fresh insight to his or her inquiries?" The answer in the case of The Charter of Rights and the Legalization of Politics in Canada is an unhesitant "Yes".

The Second-Best First Amendment, Frederick Schauer

William & Mary Law Review

No abstract provided.

Principles, Politics, And Constitutional Law, Mark Tushnet

Michigan Law Review

The contrast in Senator Thurmond's performance in hearings concerning Judge Bork, whose nomination he supported, and Justice Marshall, whose nomination he opposed, suggests the apparently cynical view that one's position on the proper scope of senatorial inquiry during a nomination depends upon one's position on the merits of the nomination. Much has been written, usually provoked by controversial nominations, about the proper scope of senatorial inquiry. The press of immediate controversy, however, diverts attention from more fundamental issues about the nature of constitutional government, to which I devote this essay.

Compensation For Constitutional Torts: Reflections On The Significance Of Fault, John C. Jeffries Jr.

Michigan Law Review

This essay is about a neglected aspect of the problem of redressing constitutional violations. Most discussions focus on incentive effects. Unconstitutional conduct can be discouraged by the "hands-on" mechanism of reform by injunction or, more commonly, through the indirection of deterrence. Deterrence issues include selection of the penalties needed to deter official misconduct; the risk that they may also inhibit legitimate government activity; the recruitment of private attorneys general to augment enforcement; and various costs of administration. These and other aspects of deterrence pervade discussions in the Supreme Court. They are also debated in a rich and sophisticated secondary literature. …

Habeas Corpus Committee - Press Briefing, Lewis F. Powell Jr

Habeas Corpus Committee

No abstract provided.

Stanford V. Kentucky: Upholding Juvenile Capital Punishment--A Confirmation Of Society's Evolving Standards Of Decency, Jeffery L. Robinette

West Virginia Law Review

No abstract provided.

History, Judicial Revisionism And J.M. Balkin, Raoul Berger

BYU Law Review

No abstract provided.

Just Compensation And The Condemnation Of Future Interests: Empirical Evidence Of The Failure Of Fair Market Value, Laura H. Burney

BYU Law Review

No abstract provided.

Eminent Domain, Police Power, And Business Regulation: Economic Liberty And The Constitution, Philip P. Houle

West Virginia Law Review

No abstract provided.