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Articles 1 - 20 of 20
Full-Text Articles in Law
Two Constitutional Rights, Two Constitutional Controversies, Michael J. Perry
Two Constitutional Rights, Two Constitutional Controversies, Michael J. Perry
Faculty Articles
My overarching aim in the Article is to defend a particular understanding of two constitutional rights and, relatedly, a particular resolution of two constitutional controversies. The two rights I discuss are among the most important rights protected by the constitutional law of the United States: the right to equal protection and the right of privacy. As I explain in the Article, the constitutional right to equal protection is, at its core, the human right to moral equality, and the constitutional right to privacy is best understood as a version of the human right to moral freedom. The two controversies I …
A Textual-Historical Theory Of The Ninth Amendment, Kurt T. Lash
A Textual-Historical Theory Of The Ninth Amendment, Kurt T. Lash
Law Faculty Publications
Despite the lavish attention paid to the Ninth Amendment as supporting judicial enforcement of unenumerated rights, surprisingly little attention has been paid to the Amendment's actual text. Doing so reveals a number of interpretive conundrums. For example, although often cited in support of broad readings of the Fourteenth Amendment, the text of the Ninth says nothing about how to interpret enumerated rights such as those contained in the Fourteenth. The Ninth merely demands that such enumerated rights not be construed to deny or disparage other nonenumerated rights retained by the people. The standard use of the Ninth Amendment, in other …
The Majoritarian Difficulty: Affirmative Action, Sodomy, And Supreme Court Politics, Darren L. Hutchinson
The Majoritarian Difficulty: Affirmative Action, Sodomy, And Supreme Court Politics, Darren L. Hutchinson
Faculty Articles
This Article challenges liberal and conservative assessments of Lawrence, Gratz, and Grutter. Although the outcome of these cases might indeed prove helpful to the agendas of social movements for racial and sexual justice, progressive scholars and activists should not receive these cases with elation. Instead, the research of constitutional theorists, critical legal scholars, and political scientists allows for a more contextualized and guarded account of and reaction to these decisions. Instead of representing extraordinary victories for oppressed classes, these cases reflect majoritarian and moderate views concerning civil rights, and the opinions contain many doctrinal elements that reinforce, …
Section Five Overbreadth: The Facial Approach To Adjudicating Challenges Under Section Five Of The Fourteenth Amendment, Catherine Carroll
Section Five Overbreadth: The Facial Approach To Adjudicating Challenges Under Section Five Of The Fourteenth Amendment, Catherine Carroll
Michigan Law Review
In February 1996, the New York State Department of Transportation fired Joseph Kilcullen from his position as a snowplow driver in the Department's Highway Maintenance training program. Alleging that the state discharged him because of his epilepsy and learning disability, Kilcullen sued his former employer under the Americans with Disabilities Act ("ADA"), which abrogated states' sovereign immunity and permitted private suits for damages against states in a federal court. Kilcullen asserted only that he was not treated the same as similarly situated non-disabled employees; his claim did not implicate the ADA's requirement that employers provide "reasonable accommodation" to disabled employees. …
Reinforcing Representation: Enforcing The Fourteenth And Fifteenth Amendments In The Rehnquist And Waite Courts, Ellen D. Katz
Reinforcing Representation: Enforcing The Fourteenth And Fifteenth Amendments In The Rehnquist And Waite Courts, Ellen D. Katz
Articles
A large body of academic scholarship accuses the Rehnquist Court of "undoing the Second Reconstruction," just as the Waite Court has long been blamed for facilitating the end of the First. This critique captures much of what is meant by those generally charging the Rehnquist Court with "conservative judicial activism." It posits that the present Court wants to dismantle decades' worth of federal antidiscrimination measures that are aimed at the "reconstruction" of public and private relationships at the local level. It sees the Waite Court as having similarly nullified the civil-rights initiatives enacted by Congress following the Civil War to …
Conflating Scope Of Right With Standard Of Review: The Supreme Court's Strict Scrutiny Of Congressional Efforts To Enforce The Fourteenth Amendment, Melissa Hart
Publications
No abstract provided.
Writing Off Race, Girardeau A. Spann
Writing Off Race, Girardeau A. Spann
Georgetown Law Faculty Publications and Other Works
The constitutionality of affirmative action has now become one of the central topics in the politics of race. Ironically, the United States Constitution says absolutely nothing about affirmative action. The text never mentions the term, and the equal protection language in the Fourteenth Amendment simply begs the question of whether equality requires or precludes the use of affirmative action. The intent of the Framers is similarly unhelpful. We know that the drafters of the Fifth Amendment owned slaves, and the drafters of the Fourteenth Amendment envisioned a racially stratified society. But the Fourteenth Amendment was itself an affirmative action measure, …
Pure Politics, Girardeau A. Spann
Pure Politics, Girardeau A. Spann
Michigan Law Review
Part I of this article considers the impact that judicial discretion has on the traditional model of judicial review, and that model's reliance on the Supreme Court as the primary guardian of minority interests. Part II argues that the interests of racial minorities can be better advanced through the ordinary political process than through the process of Supreme Court adjudication. Part Ill emphasizes that minority participation in Supreme Court proceedings cannot ultimately be avoided and, accordingly, suggests a political model of the Court that minorities can use in an effort to neutralize the Court's distortion of the political process. Part …
Log-Rolling And Judicial Review, Michael J. Waggoner
Log-Rolling And Judicial Review, Michael J. Waggoner
Publications
No abstract provided.
Judicial Review Of Private Hospital Activities, Michigan Law Review
Judicial Review Of Private Hospital Activities, Michigan Law Review
Michigan Law Review
This Note will examine the judicial review of hospitals under state law and the fourteenth amendment and will suggest that unless certain clear requirements for "publicness" are met, judicial restraint based on the failure of legislative institutions to mandate judicial interference is the better course.
Judicial Review In Local Government Law: A Reappraisal, Harold H. Bruff
Judicial Review In Local Government Law: A Reappraisal, Harold H. Bruff
Publications
No abstract provided.
Racial Preferences In Higher Education: Political Responsibility And The Judicial Role, Terrance Sandalow
Racial Preferences In Higher Education: Political Responsibility And The Judicial Role, Terrance Sandalow
Articles
Controversy continues unabated over the question left unresolved by DeFunis v. Odegaard: whether in its admissions process a state law school may accord preferential treatment to certain racial and ethnic minorities. In the pages of two journals published by the University of Chicago, Professors John Hart Ely and Richard Posner have established diametrically opposed positions in the debate. Their contributions are of special interest because each undertakes to answer the question within the framework of a theory concerning the proper distribution of authority between the judiciary and the other institutions of government. Neither position, in my judgment, adequately confronts the …
Legislative Purpose, Rationality, And Equal Protection, Robert F. Nagel
Legislative Purpose, Rationality, And Equal Protection, Robert F. Nagel
Publications
No abstract provided.
Constitutional And Statutory Bases Of Governors' Emergency Powers, F. David Trickey
Constitutional And Statutory Bases Of Governors' Emergency Powers, F. David Trickey
Michigan Law Review
The primary source of executive emergency power is the state constitution, although statutes often codify the constitutional executive emergency authority and occasionally delegate additional legislative police powers to the governor. Most governors are authorized to respond to public emergencies with a variety of extraordinary emergency measures. This study of state constitutional and statutory emergency power provisions has been undertaken in an attempt to evaluate the sources and scope of governors' emergency powers, as well as the limitations upon those powers. Its primary focus will be upon the extreme breadth of executive emergency authority and, in particular, upon the power to …
Reapportionment In The Supreme Court And Congress: Constitutional Struggle For Fair Representation, Robert G. Dixon Jr.
Reapportionment In The Supreme Court And Congress: Constitutional Struggle For Fair Representation, Robert G. Dixon Jr.
Michigan Law Review
Fair representation is the ultimate goal. At the time of the Reapportionment Decisions, much change was overdue in some states, and at least some change was overdue in most states. We are a democratic people and our institutions presuppose according population a dominant role in formulas of representation. However, by its exclusive focus on bare numbers, the Court may have transformed one of the most intricate, fascinating, and elusive problems of democracy into a simple exercise of applying elementary arithmetic to census data. In so doing, the Court may have disabled itself from effectively considering the more subtle issues …
Some Comments On The Reapportionment Cases, Paul G. Kauper
Some Comments On The Reapportionment Cases, Paul G. Kauper
Michigan Law Review
Any appraisal of the Supreme Court's decisions in the legislative reapportionment cases must necessarily distinguish between the basic policy ingredients and social consequences of the decisions on the one hand, and the question whether the results were reached by a proper exercise of judicial power on the other. Respecting the first of these considerations, I have no difficulty identifying the social advantages accruing from these decisions. Because of the stress on the population principle, the decisions will afford a greater voice to urban interests, will make the legislative process more responsive to current needs of particular concern to urban dwellers, …
Corwin: Liberty Against Government, Michigan Law Review
Corwin: Liberty Against Government, Michigan Law Review
Michigan Law Review
A Review of LIBERTY AGAINST GOVERNMENT. By Edward S, Corwin .
Constitutional Law - Requirements Of Due Process In State Procedure
Constitutional Law - Requirements Of Due Process In State Procedure
Michigan Law Review
In American Surety Company v. Baldwin the Surety Company complained that the procedure in Idaho deprived it of a hearing upon its liability on a supersedeas bond. After judgment was given on the bond the Surety Company moved to vacate the order and the motion was granted. Baldwin took an appeal from this order to the Supreme Court of Idaho which reversed the trial court. The sole question raised by the motion was whether the trial court had jurisdiction to give judgment. Under the Idaho practice an appeal from the judgment of the court was the proper method to review …
Social And Economic Interpretation Of The Fourteenth Amendment, Robert Eugene Cushman
Social And Economic Interpretation Of The Fourteenth Amendment, Robert Eugene Cushman
Michigan Law Review
For those who love precision and definiteness the question of the application of the Fourteenth Amendment to social and economic problems remains an irritating enigma. The judicial construction of due process of law and the equal protection of the law has from the first discouraged systematic analysis and defied synthesis. More than one writer has emerged from the study of the problem with a neat and compact set of fundamental principles, only to have the Supreme Court discourteously ignore them in its next case. But paradoxical as it may seem, those who long for a wise and forward-looking solution of …