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Articles 1 - 8 of 8
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Party On: The Right To Voluntary Blanket Primaries, Margaret P. Aisenbrey
Party On: The Right To Voluntary Blanket Primaries, Margaret P. Aisenbrey
Michigan Law Review
Political parties have unique associational rights. In party primaries, party members associate to further their common political beliefs, and more importantly, to nominate candidates. These candidate are the "standard bearer[s]" for the political party-the people who "best represent[ ] the party's ideologies and preferences." The primary represents a "crucial juncture at which the appeal to common principles may be translated into concerted action, and hence to political power in the community." Because the primary is such a critical moment for the political party, the party's asso-ciational rights are most important at this time.
The Glucksberg Renaissance: Substantive Due Process Since Lawrence V. Texas, Brian Hawkins
The Glucksberg Renaissance: Substantive Due Process Since Lawrence V. Texas, Brian Hawkins
Michigan Law Review
On their faces, Washington v. Glucksberg and Lawrence v. Texas seem to have little in common. In Glucksberg, the Supreme Court upheld a law prohibiting assisted suicide and rejected a claim that the Constitution protects a "right to die"; in Lawrence, the Court struck down a law prohibiting homosexual sodomy and embraced a claim that the Constitution protects homosexual persons' choices to engage in intimate relationships. Thus, in both subject matter and result, Lawrence and Glucksberg appear far apart. The Lawrence Court, however, faced a peculiar challenge in reaching its decision, and its response to that challenge brings …
Burkean Minimalism, Cass R. Sunstein
Burkean Minimalism, Cass R. Sunstein
Michigan Law Review
Burkean minimalism has long played an important role in constitutional law. Like other judicial minimalists, Burkeans believe in rulings that are at once narrow and theoretically unambitious; what Burkeans add is an insistence on respect for traditional practices and an intense distrust of those who would renovate social practices by reference to moral or political reasoning of their own. An understanding of the uses and limits of Burkean minimalism helps to illuminate a number of current debates, including those involving substantive due process, the Establishment Clause, and the power of the president to protect national security. Burkean minimalists oppose, and …
The Neglected Political Economy Of Eminent Domain, Nicole Stelle Garnett
The Neglected Political Economy Of Eminent Domain, Nicole Stelle Garnett
Michigan Law Review
This Article challenges a foundational assumption about eminent domain- namely, that owners are systematically undercompensated because they receive only fair market value for their property. In fact, scholars may have overstated the undercompensation problem because they have focused on the compensation required by the Constitution, rather than on the actual mechanics of the eminent domain process. The Article examines three ways that "Takers" (i.e., nonjudicial actors in the eminent domain process) minimize undercompensation. First, Takers may avoid taking high subjective value properties. (By way of illustration, Professor Garnett discusses evidence that Chicago's freeways were rerouted in the 1950s to avoid …
Concurring In Part & Concurring In The Confusion, Sonja R. West
Concurring In Part & Concurring In The Confusion, Sonja R. West
Michigan Law Review
When a federal appellate court decided last year that two reporters must either reveal their confidential sources to a grand jury or face jail time, the court did not hesitate in relying on the majority opinion in the Supreme Court's sole comment on the reporter's privilege-Branzburg v. Hayes. "The Highest Court has spoken and never revisited the question. Without doubt, that is the end of the matter," Judge Sentelle wrote for the three-judge panel of the Circuit Court of Appeals for the District of Columbia. By this declaration, the court dismissed with a wave of its judicial hand the arguments …
The Current Landscape Of Race: Old Targets, New Opportunities, Richard Delgado
The Current Landscape Of Race: Old Targets, New Opportunities, Richard Delgado
Michigan Law Review
It is difficult enough identifying areas within a current field of scholarship that are underdeveloped and in need of further attention. In science, one thinks of missing elements in the periodic table or planets in a solar system that our calculations tell us must be there but that our telescopes have not yet spotted. In civil-rights law, one thinks of such areas as women's sports or the problems of intersectional groups, such as women of color or gay black men. One also thinks of issues that current events are constantly thrusting forward, such as discrimination against Arabs or execution of …
American Indians, Crime, And The Law, Kevin K. Washburn
American Indians, Crime, And The Law, Kevin K. Washburn
Michigan Law Review
This Article evaluates the federal Indian country criminal justice regime, not against norms of Indian law and policy, but against those of criminal law and policy. Specifically, this Article evaluates the federal constitutional norms that lie at the heart of American criminal justice and that are designed to ensure the legitimacy of federal criminal trials. Toward that end, Part I presents a critical description of key facets of the federal Indian country criminal justice system. Part II begins the critical evaluation by evaluating a key institutional player in the federal system, the federal prosecutor. It highlights the handicaps faced by …
Evolving Objective Standards: A Developmental Approach To Constitutional Review Of Morals Legislation, Christian J. Grostic
Evolving Objective Standards: A Developmental Approach To Constitutional Review Of Morals Legislation, Christian J. Grostic
Michigan Law Review
This Note argues that the Supreme Court's recent jurisprudence regarding morals legislation mirrors the findings of empirical research on moral and psychological development. Specifically, the Supreme Court upholds morals legislation only if it is justified by stage five reasoning. Part I examines significant Supreme Court cases related to morals legislation over the last 50 years and argues that the Supreme Court has consistently upheld morals legislation that is justified by stage five reasoning, while consistently striking down as unconstitutional morals legislation that is not. Part II argues that a developmental approach to constitutional review of morals legislation, while consistent with …