Law Commons^™

United/States: A Revolutionary History Of American Statehood, Craig Green

Michigan Law Review

Where did states come from? Almost everyone thinks that states descended immediately, originally, and directly from British colonies, while only afterward joining together as the United States. As a matter of legal history, that is incorrect. States and the United States were created by revolutionary independence, and they developed simultaneously in that context as improvised entities that were profoundly interdependent and mutually constitutive, rather than separate or sequential.

“States-first” histories have provided foundational support for past and present arguments favoring states’ rights and state sovereignty. This Article gathers preconstitutional evidence about state constitutions, American independence, and territorial boundaries to challenge …

Fundamental Rights, Federal States, And Sovereignty: Some Random Remarks, Donald H. Regan

Articles

I am not an EU lawyer. The days are long gone when I could know a substantial fraction of EU law just by knowing about the free movement of goods. I get a fleeting glimpse of where the EU is going every year at the Jean Monnet Seminar in Dubrovnik, but no more than a glimpse. Still, when the editors invited me to write this Editorial Note, I could not refuse. Looking for inspiration, I read or reread all the previous twelve Notes. This was an enjoyable and informative exercise in itself, but only a few of the essays suggested …

Predicate Offenses, Foreign Convictions, And Trusting Tribal Courts, Alexander S. Birkhold

Michigan Law Review Online

Concerns about the reliability of criminal justice systems in foreign countries have resulted in uneven treatment of foreign convictions in U.S. courts. Federal courts, however, have historically accepted tribal court convictions as predicate offenses under recidivist statutes. But the Ninth Circuit Court of Appeals recently rejected the uncounseled convictions obtained against Michael Bryant, Jr., a serial domestic abuser, in the Northern Cheyenne Tribal Court. The court dismissed a federal indictment that had been brought against Bryant under 18 U.S.C § 117, which makes it a felony to commit domestic violence against a spouse or partner in Indian country if the …

Reflections On Comity In The Law Of American Federalism, Gil Seinfeld

Articles

Comity is a nebulous concept familiar to us from the law of international relations. Roughly speaking, it describes a set of reciprocal norms among nations that call for one state to recognize, and sometimes defer to, the laws, judgments, or interests of another. Comity also features prominently in the law of American federalism, but in that context, it operates within limits that have received almost no attention from scholarly commentators. Specifically, although courts routinely describe duties that run from one state to another, or from the federal government to the states, as exercises in comity, they almost never rely on …

The Political Safeguards Of Horizontal Federalism, Heather K. Gerken, Ari Holtzblatt

Michigan Law Review

For decades, we have debated whether “political safeguards” preserve healthy relations between the states and the federal government and thus reduce or eliminate the need for judges to referee state–federal tussles. No one has made such an argument about relations among the states, however, and the few scholars to have considered the question insist that such safeguards don’t exist. This Article takes the opposite view and lays down the intellectual foundations for the political safeguards of horizontal federalism. If you want to know what unites the burgeoning work on horizontal federalism and illuminates the hidden logic of its doctrine, you …

Fish And Federalism: How The Asian Carp Litigation Highlights A Decifiency In The Federal Common Law Displacement Analysis, Molly M. Watters

Michigan Journal of Environmental & Administrative Law

In response to the growing threat posed by the progress of Asian carp up the Mississippi River toward the Great Lakes, and with increased frustration with the federal response to the imminent problem, in 2010, five Great Lakes states sued the Army Corps of Engineers and the Metropolitan Water Reclamation District of Greater Chicago to force a more desirable and potentially more effective strategy to prevent the Asian carp from infiltrating the Great Lakes: closing the Chicago locks. This Note examines the federal common law displacement analysis through the lens of the Asian carp litigation. Both the Federal District Court …

The Right To Counsel For Indians Accused Of Crime: A Tribal And Congressional Imperative, Barbara L. Creel

Michigan Journal of Race and Law

Native American Indians charged in tribal court criminal proceedings are not entitled to court appointed defense counsel. Under well-settled principles of tribal sovereignty, Indian tribes are not bound by Fifth Amendment due process guarantees or Sixth Amendment right to counsel. Instead, they are bound by the procedural protections established by Congress in the Indian Civil Rights Act of 1968. Under the Indian Civil Rights Act (ICRA), Indian defendants have the right to counsel at their own expense. This Article excavates the historical background of the lack of counsel in the tribal court arena and exposes the myriad problems that it …

Preemption And Choice-Of-Law Coordination, Erin O'Hara O'Connor, Larry E. Ribstein

Michigan Law Review

The doctrine treating federal preemption of state law has been plagued by uncertainty and confusion. Part of the problem is that courts purport to interpret congressional intent when often Congress has never considered the particular preemption question at issue. This Article suggests that courts deciding preemption cases should take seriously a commonly articulated rationale for the federalization of law: the need to coordinate applicable legal standards in order to facilitate a national market or to otherwise provide clear guidance to parties regarding the laws that apply to their conduct. In situations where federal law can serve a coordinating function but …

Uncounseled Tribal Court Guilty Pleas In State And Federal Courts: Individual Rights Versus Tribal Self-Governance, Christiana M. Martenson

Michigan Law Review

Indian tribes in the United States are separate sovereigns with inherent self-governing authority. As a result, the Bill of Rights does not directly bind the tribes, and criminal defendants in tribal courts do not enjoy the protection of the Sixth Amendment right to counsel. In United States v. Ant, a defendant - without the legal assistance that a state or federal court would have provided - pled guilty to criminal charges in tribal court. Subsequently, the defendant faced federal charges arising out of the same events that led to the tribal prosecution. The Ninth Circuit in Ant barred the federal …

The Vitality Of The American Sovereign, Todd E. Pettys

Michigan Law Review

The proposition that "the people" are the preeminent sovereign in the United States has long been a tenet of American public life. The authors of the Declaration of Independence characterized the American people's sovereignty as a "self-evident" truth when announcing the colonies' decision to sever their ties with Great Britain, the delegates to the Philadelphia Convention in 1787 invoked the people's sovereignty when framing the nation's Constitution, and Americans today exercise their sovereignty each time they cast their ballots on Election Day. Yet what prerogatives, precisely, does the people's sovereignty entail? In modern America, where neither a bloody revolution nor …

Connecting The Dots Between The Constitution, The Marshall Trilogy, And United States V. Lara: Notes Toward A Blueprint For The Next Legislative Restoration Of Tribal Sovereignty, Ann E. Tweedy

University of Michigan Journal of Law Reform

This law review Article examines: (1) the underpinnings of tribal sovereignty within the American system; (2) the need for restoration based on the Court's drastic incursions on tribal sovereignty over the past four decades and the grave circumstances, particularly tribal governments' inability to protect tribal interests on the reservation and unchecked violence in Indian Country, that result from the divestment of tribal sovereignty; (3) the concept of restoration as illuminated by United States v. Lara, and finally (4) some possible approaches to partial restoration.

The Article first evaluates the constitutional provisions relating to Indians and the earliest federal Indian law …

Limiting Federal Agency Preemption: Recommendations For A New Federalism Executive Order, William Funk, Thomas Mcgarity, Nina A. Mendelson, Sidney Shapiro, David Vladeck, Matthew Shudtz, James Goodwin

Other Publications

The structure of the U.S. Constitution reflects a profound respect for the principles of federalism and state sovereignty. These principles require the federal government to recognize and encourage opportunities for state and local governments to exercise their authority, especially in areas of traditional state concern such as the protection of the health, safety, and welfare of their citizens. However, over the last six years there has been a coordinated Executive Branch effortto use the regulatory process to shield certain product manufacturers from state tort liability. The Food and Drug Administration, National Highway Traffic Safety Administration, and Consumer Product Safety Commission, …

Saving The Constitution: Lincoln, Secession, And The Price Of Union, Craig S. Lerner

Michigan Law Review

The year is 1860. After failing to obtain, as he had expected, the Democratic Party nomination for President at its Charleston convention, Stephen Douglas abandons his candidacy. In the ensuing election, Democrat John C. Breckinridge of Kentucky edges Republican Abraham Lincoln. The official platform of the Democratic Party includes endorsement of the Dred Scott decision, slavery's expansion in the federal territories, rigorous enforcement of the Fugitive Slave Act, and elimination of the tariff. Abolitionists in New England are inconsolable. For several years, Henry Lloyd Garrison had advocated Northern secession, denouncing the Constitution as a "union with slaveholders," and "a covenant …

Not Because They Are Brown, But Because Of Ea*: Why The Good Guys Lost In Rice V. Cayetano, And Why They Didn't Have To Lose, Gavin Clarkson

Michigan Journal of Race and Law

Part II of this Article therefore reviews the history of Native Hawaiians in the broader context of the history of federal Indian law, focusing on the vacillating congressional policies regarding Indians and how those policies almost always treated Indian tribes as political entities rather than ethnic communities. Part III reviews and analyzes the procedural history of the Rice case and its resolution by the Supreme Court. Part IV concludes with the argument that constitutionally-permissible alternative methodologies exist for accomplishing the same objective of self-determination for Native Hawaiians

Law And Religion In Israel And Iran: How The Integration Of Secular And Spiritual Laws Affects Human Rights And The Potential For Violence, S. I. Strong

Michigan Journal of International Law

Part I of this article provides a brief sketch of the principles of the two majority religions at issue in this discussion and an overview of the history of both Israel and Iran. It explains why each nation has chosen to structure itself as it has and why the imposition of U.S.-style secularism would be an inappropriate method of dealing with the religio-legal conflict in the two societies. Part II compares the fundamental or constitutional laws of the two nations by analyzing the provisions, policies, and practices most influenced by religion. After identifying and analyzing the laws themselves in Part …

The Unification Of Germany And International Law, Frans G. Von Der Dunk, Peter H. Kooijmans

Michigan Journal of International Law

What role these rights and obligations could have played is the central theme of this article. However, in view of the enormous complexity of the problems involved, this article can do no more than provide a general overview. Sections II through VII will first sketch the outlines of the rights and obligations confronting the two German States before unification. Section VIII will compare those outlines to the actual political outcome of the unification process. The former six Sections will explore a number of different contexts in which legal rights and obligations could have been found.

National League Of Cities V. Usery: Its Implications For The Equal Pay Act And The Age Discrimination In Employment Act, Ellen B. Spellman

University of Michigan Journal of Law Reform

In National League of Cities v. Usery, the Supreme Court invalidated the application of the FLSA minimum wage and maximum hours provisions to certain essential state government activities as an unconstitutional intrusion on state sovereignty. This article will explore the implications of that decision with respect to the application of the EPA and the ADEA to state and local governments.

Part I contains a brief discussion of the Fair Labor Standards Act and Amendments. Part II discusses National League with reference to traditional commerce clause interpretation. Part III analyzes the difficulties of applying the decision, particularly the problem of …

Territorial Courts And Law: Unifying Factors In The Development Of American Legal Institutions-Pt.1-Establishment Of A Standardized Judicial System, William Wirt Blume, Elizabeth Gaspar Brown

Michigan Law Review

The United States first became a sovereign nation when individual states of the Confederation ceded to the states collectively their several interests in the lands west of the Appalachians which lay east of the Mississippi, north of Spanish Florida, and south of the Great Lakes. This area had been relinquished by Great Britain by the Treaty of 1783 and, with the exception of Kentucky, now became the property of the United States. It was the first area over which the states as a group had complete sovereignty, subject only to the claims of the various Indian tribes. Colonies fresh from …

Constitutional Law-Congressional Powers-Validity Of The 1953 Submerged Lands Act, William D. Keeler

Michigan Law Review

In 1947 and 1950 the Supreme Court held that the coastal states had no property interest in the submerged lands lying seaward from the low water mark, whether ownership of this land was held by the state prior to admission into the Union or not, and that the federal government had paramount rights in and power over this land, including the resources of the soil beneath it. In 1953 Congress passed, and the President signed, the Submerged Lands Act, which vested in the coastal states title to and proprietary power over this land. Alabama and Rhode Island petitioned the Court …

On Amending The Treaty-Making Power: A Comparative Study Of The Problem Of Self-Executing Treaties, Lawrence Preuss

Michigan Law Review

The current furor concerning the treaty-making power of the United States has been aroused by the apprehension that this country might become a party to certain multilateral treaties in the social and economic fields, and, notably, the draft Covenants on Human Rights, the Genocide Convention and the Convention on Political Rights of Women. The plethora of proposed constitutional amendments now before the Congress merely marks an intensification of the controversy, recurrent throughout our history, concerning the legal effect of Article VI, Section 2, of the Constitution of the United States. Problems concerning the relative authority of treaties and other international …

The Amending Of The Federal Constitution, Lester Bernhardt Orfield

Michigan Legal Studies Series

MOST treatises on constitutional law dispose of the federal amending clause in summary fashion. The commentators have thought fit to stress chiefly the division of authority between the federal government and the states. They have attached a high degree of significance to the dogma of separation of powers. A great deal of attention has been devoted to the doctrines of judicial review, the supremacy of the Federal Constitution, and the Bill of Rights. The taxation and the commerce clauses have come in for their full share of consideration. In recent years extensive studies have been made of the due process …

Constitutional Law-Eminent Domain-Michigan Constitutional Provision

Michigan Law Review

The necessity for the exercise of the power of eminent domain in a given case is a legislative question into which the courts cannot inquire, unless an abuse of legislative power is asserted. This results from the very nature of the power to take property for a public use, which power in itself is inherent in sovereignty. When the legislature determines to take a piece of property it is exercising the power in the normal manner. If the use is public, no further determination is necessary once the legislative decision is made. The real reason for the rule would seem …

Interpretation Of The Eleventh Amendment, Leroy G. Pilling

Michigan Law Review

The American Constitution may be compared to an organism with a high nervous development that enables it to adapt itself to changes. in its environment or even to new environments. As such an organism is the result of evolution, so is our Federal Constitution the product of centuries of human experience in the science of government. Probably most of the great political philosophers of all ages have donated their mite to the finished product. To MONTESQUIEU we owe in part, at least, our constitutional doctrine of the separation of powers.