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The 1986 And 1987 Affirmative Action Cases: It's All Over But The Shouting, Herman Schwartz
The 1986 And 1987 Affirmative Action Cases: It's All Over But The Shouting, Herman Schwartz
Michigan Law Review
For the moment, the affirmative action wars are over. In a ten-year set of decisions, culminating in five during the last two terms, the Court has now legitimated almost all types of race and gender preferences, even if they benefit nonvictims, including voluntarily adopted preferences in hiring, promotion, university admissions, and government contracting; hiring and promotion preferences in consent decrees; and court-ordered hiring and promotions. It has approved preferences by both public and private bodies, and for both racial-ethnic minorities and women. It has barred only layoffs of white (and presumably male) employees who have more seniority than employees hired …
Dormant Commerce Clause Claims Under 42 U.S.C. § 1983: Protecting The Right To Be Free Of Protectionist State Action, Gregory A. Kalscheur
Dormant Commerce Clause Claims Under 42 U.S.C. § 1983: Protecting The Right To Be Free Of Protectionist State Action, Gregory A. Kalscheur
Michigan Law Review
This Note will attempt to show that some commerce clause violations should give rise to cognizable section 1983 claims. Two fundamental questions will be addressed: Is the commerce clause the source of any "rights, privileges, or immunities secured by the Constitution?" and if so, Does section 1983 protect whatever "rights, privileges, or immunities" grow out of the commerce clause? Part I will describe the present status of authority on this issue and argue that none of the conflicting opinions have adequately addressed the fundamental questions involved. Part II will demonstrate that the commerce clause does indeed protect a "right[], privilege[ …
Disorder In The Court: The Death Penalty And The Constitution, Robert A. Burt
Disorder In The Court: The Death Penalty And The Constitution, Robert A. Burt
Michigan Law Review
This article has two purposes. Its first aim is to trace the significance of these shifting characterizations of American society in the Justices' successive approaches to the death penalty by retelling the story of the Court's capital punishment jurisprudence. Its second purpose is to suggest that belief in implacable social hostility destroys the coherence of the judicial role in constitutional adjudication. America may indeed be an irreconcilably polarized society; I cannot dispositively prove or disprove the proposition. I mean only to claim that in constitutional adjudication a judge is obliged to act as if this proposition were false; and, moreover, …
The Rise Of Modern Judicial Review: From Constitutional Interpretation To Judge-Made Law, Ward A. Greenberg
The Rise Of Modern Judicial Review: From Constitutional Interpretation To Judge-Made Law, Ward A. Greenberg
Michigan Law Review
A Review of The Rise of Modern Judicial Review: From Constitutional Interpretation to Judge-Made Law by Christopher Wolfe
Commerce Clause Restraints On State Taxation: Purposeful Economic Protectionism And Beyond, Walter Hellerstein
Commerce Clause Restraints On State Taxation: Purposeful Economic Protectionism And Beyond, Walter Hellerstein
Michigan Law Review
Few questions in recent years have spawned as much controversy and as little academic interest as the scope of commerce clause restraints on state tax power. The Supreme Court has handed down an extraordinary number of significant decisions addressed to the limitations the commerce clause imposes on state taxation. Yet these decisions have barely caught the eye of the nation's leading law reviews or constitutional scholars. Even those observers who have recognized the Court's renaissance of interest in the dormant commerce clause have largely confined their attention to state regulation, as distinguished from state taxation, of interstate commerce. If there …
A Reply To Gonzalez, Interpreting This Constitution: Another Response To Professor Van Alstyne, William W. Van Alstyne
A Reply To Gonzalez, Interpreting This Constitution: Another Response To Professor Van Alstyne, William W. Van Alstyne
Faculty Publications
No abstract provided.
Notes On A Bicentennial Constitution: Part Ii, Antinomial Choices And The Role Of The Supreme Court, William W. Van Alstyne
Notes On A Bicentennial Constitution: Part Ii, Antinomial Choices And The Role Of The Supreme Court, William W. Van Alstyne
Faculty Publications
Continuing the examination of judicial review conducted around the Constitution’s bicentennial, this article lays bare the inconsistencies in the expected tasks of the Supreme Court. Where some roles of the Court have traditionally been treated as indivisible, examining those same roles separate from one another produces an incoherent view of the Court that is difficult to compromise.
Associations' Freedom V. Freedom Of Association: Another Look At All-Male Clubs, Neal Devins
Associations' Freedom V. Freedom Of Association: Another Look At All-Male Clubs, Neal Devins
Faculty Publications
No abstract provided.
A Comment On Democratic Constitutionalism, Robert F. Nagel
A Comment On Democratic Constitutionalism, Robert F. Nagel
Publications
No abstract provided.
On The Constitutional Status Of The Administrative Agencies, Harold H. Bruff
On The Constitutional Status Of The Administrative Agencies, Harold H. Bruff
Publications
No abstract provided.
Scholarly Reflections On The Court And The Constitution, Michael Ashley Stein
Scholarly Reflections On The Court And The Constitution, Michael Ashley Stein
Faculty Publications
No abstract provided.
Siamese Essays: (I) Cts Corp. V. Dynamics Corp. Of America And Dormant Commerce Clause Doctrine; (Ii) Extraterritorial State Legislation, Donald H. Regan
Siamese Essays: (I) Cts Corp. V. Dynamics Corp. Of America And Dormant Commerce Clause Doctrine; (Ii) Extraterritorial State Legislation, Donald H. Regan
Articles
What follows is two essays, related as Siamese twins. Both essays developed from a single conception. They are distinct, but they remain connected by a shared subtopic. The first essay is about CTS Corp. v. Dynamics Corp. of America1 as a contribution to dormant commerce clause doctrine. The second essay is about the constitutional principle that states may not legislate extraterritorially, which I shall refer to as the "extraterritoriality principle." The shared subtopic is the extraterritoriality problem in CTS. (There is an extraterritoriality problem in CTS, even though the Court does not discuss it in those terms.) I could have …
Constructing A Constitution: 'Orginal Intention' In The Slave Cases, James Boyd White
Constructing A Constitution: 'Orginal Intention' In The Slave Cases, James Boyd White
Other Publications
The question how our Constitution is to be interpreted is a living one for us today, both in the scholarly and in the political domains. Professors argue about "interpretivism" and "originalism" in law journals, they study hermeneutics and deconstruction to determine whether or not interpretation is possible at all, and if so on what premises, and they struggle to create theories that will tell us both what we do in fact and what we ought to do. Politicians and public figures (including Attorney General Edwin Meese) talk in the newspapers and elsewhere about the authority of the "original intention of …