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Articles 1 - 16 of 16
Full-Text Articles in Law
A Perfectly Empty Gift, Christina D. Ponsa-Kraus
A Perfectly Empty Gift, Christina D. Ponsa-Kraus
Michigan Law Review
A Review of Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire. by Sam Erman.
"Constructing Countervailing Power: Law And Organizing In An Era Of Political Inequality", Kate Andrias, Benjamin I. Sachs
"Constructing Countervailing Power: Law And Organizing In An Era Of Political Inequality", Kate Andrias, Benjamin I. Sachs
Articles
This Article proposes an innovative approach to remedying the crisis of political inequality: using law to facilitate organizing by the poor and working class, not only as workers, but also as tenants, debtors, welfare beneficiaries, and others. The piece draws on the social-movements literature, and the successes and failures of labor law, to show how law can supplement the deficient regimes of campaign finance and lobbying reform and enable lower-income groups to build organizations capable of countervailing the political power of the wealthy. As such, the Article offers a new direction forward for the public-law literature on political power and …
Facts, Values, Justification, Democracy, Don Herzog
Facts, Values, Justification, Democracy, Don Herzog
Reviews
Equality, you might think, is the more or less universally shared value of the modern world, or the West, or anyway these United States. “We strive to ensure that the values upon which our country was built, including our belief that all people are created equal, are reflected in everything our nation does.” That’s from the 2016 Democratic Party platform. And look! “We continue to encourage equality for all citizens and access to the American Dream.” That’s from the 2016 GOP Platform. Of course, the parties disagree deeply on the demands of equality. If they share an abstract concept, as …
Outing The Majority: Gay Rights, Public Debate, And Polarization After Doe V. Reed, Marc Allen
Outing The Majority: Gay Rights, Public Debate, And Polarization After Doe V. Reed, Marc Allen
Michigan Journal of Gender & Law
In 2010, the United States Supreme Court ruled in Doe v. Reed that Washington citizens who signed a petition to eliminate legal rights for LGBT couples did not have a right to keep their names secret. A year later, in ProtectMarriage.com v. Bowen, a district court in California partially relied on Reed to reject a similar request from groups who lobbied for California Proposition 8-a constitutional amendment that overturned the California Supreme Court's landmark 2008 gay marriage decision. These holdings are important to election law, feminist, and first amendment scholars for a number of reasons. First, they flip the traditional …
Ely At The Altar: Political Process Theory Through The Lens Of The Marriage Debate, Jane S. Schacter
Ely At The Altar: Political Process Theory Through The Lens Of The Marriage Debate, Jane S. Schacter
Michigan Law Review
Political process theory, closely associated with the work of John Hart Ely and footnote four in United States v. Carolene Products, has long been a staple of constitutional law and theory. It is best known for the idea that courts may legitimately reject the decisions of a majority when the democratic process that produced the decision was unfair to a disadvantaged social group. This Article analyzes political process theory through the lens of the contemporary debate over same-sex marriage. Its analysis is grounded in state supreme court decisions on the constitutionality of barring same-sex marriage, as well as the high-profile, …
Constitutional Expectations, Richard A. Primus
Constitutional Expectations, Richard A. Primus
Articles
The inauguration of Barack Obama was marred by one of the smallest constitutional crises in American history. As we all remember, the President did not quite recite his oath as it appears in the Constitution. The error bothered enough people that the White House redid the ceremony a day later, taking care to get the constitutional text exactly right. Or that, at least, is what everyone thinks happened. What actually happened is more interesting. The second time through, the President again departed from the Constitution's text. But the second time, nobody minded. Or even noticed. In that unremarked feature of …
Equal Voice By Half Measures, John Mark Hansen
Equal Voice By Half Measures, John Mark Hansen
Michigan Law Review First Impressions
In democratic theory, the ballot is the most perfect expression of the democratic commitment to the moral equality of persons. Every citizen, whether old or young, rich or poor, sophisticated or simple, enjoys the same endowment in an election: a single vote. The ballot not only gives citizens their voice in government, it also makes their voices equal. In practice, however, democracies have erected all sorts of impediments to the ideal of equal voice, such as restrictions on suffrage, legislative malapportionments, and discriminatory gerrymanders. Among the most egregious impediments, however, are surely the systems of indirect election purported to filter …
Reforming The Electorial College One State At A Time, Thomas W. Hiltachk
Reforming The Electorial College One State At A Time, Thomas W. Hiltachk
Michigan Law Review First Impressions
The genius of our United States Constitution is the delicate balance our Founding Fathers struck between empowering a national government and preserving the inherent sovereignty of individual states. Any proposed governmental reform that would interfere with that balance should be looked upon skeptically. Recent proposals to do away with the Electoral College in favor of a national popular vote for President deserve such careful examination. But that does not mean that reform is out of reach. We have only to look to the Constitution itself to find that the answer lies in the self-interest of each state. I am an …
Awarding Presidential Electors By Congressional District: Wrong For California, Wrong For The Nation, Sam Hirsch
Awarding Presidential Electors By Congressional District: Wrong For California, Wrong For The Nation, Sam Hirsch
Michigan Law Review First Impressions
The unfairness of the proposed California Presidential Election Reform Act is obvious: in a close election, the Act virtually assures that California’s fifty-five electoral votes, which would be expected to go entirely to the Democratic presidential candidate under the traditional statewide-winner-takeall system, will instead be split, with more than a third of them going to the Republican candidate. Implementing this “reform” in the nation’s largest Democratic state, but not in any of the large Republican states (like Texas), is roughly the equivalent of handing over to the Republicans the state of Illinois. What is less obvious is that the Act …
Ideological Endowment: The Staying Power Of The Electoral College And The Weaknesses Of The National Popular Vote Interstate Compact, Daniel P. Rathbun
Ideological Endowment: The Staying Power Of The Electoral College And The Weaknesses Of The National Popular Vote Interstate Compact, Daniel P. Rathbun
Michigan Law Review First Impressions
The National Popular Vote (“NPV”) movement is designed to eliminate the federalist impact of the Electoral College without amending the Constitution. By fashioning an interstate compact to grant participating states’ electoral votes to the winner of the national popular vote, NPV proponents suppose they can induce states to forfeit their electoral “weights” and replace the current, federalist election process with a fully majoritarian one. But by leaving the Electoral College in place, the NPV movement is setting itself up for a double pushback: first, in the form of immediate legal resistance, and second, through states’ long-term involvement in a meaningfully …
Democratic Principle And Electoral College Reform, Ethan J. Leib, Eli J. Mark
Democratic Principle And Electoral College Reform, Ethan J. Leib, Eli J. Mark
Michigan Law Review First Impressions
The Electoral College is a relic from another time and is in tension with the modern constitutional command of “one person, one vote.” But the Electoral College is, nevertheless, ensconced in our Constitution—and, as a result, we would need to amend the document to alter or abolish it from our political fabric. Still, some states are toying with state-based Electoral College reforms. Thus, irrespective of whether voters in those states favor the abolition of the Electoral College through a federal constitutional amendment, they must critically examine the democratic merits of these statebased reform options. Categorically rejecting all state-based reform is …
A Ghost Is Haunting Europe, Maria Grahn-Farley
A Ghost Is Haunting Europe, Maria Grahn-Farley
Michigan Journal of International Law
Review of Responsible Selves: Women in the Nordic Legal Cultures (Kevät Nousiainen, Åsa Gunnarsson, Karin Lundström, & Johanna Niemi-Kiesiläinen eds.)
Review Of The Dark Side Of The Left: Illiberal Egalitarianism In America, Donald J. Herzog
Review Of The Dark Side Of The Left: Illiberal Egalitarianism In America, Donald J. Herzog
Reviews
In this elegantly written, provocative, and sometimes just plain provoking book, punctuated by bits of anguish and rather more pique, Richard Ellis worries that the American Left has been so passionate about equality that it has run roughshod over liberty. So put, the thesis is not exactly news. It has been the recurrent lament of conservative indictments- Tocqueville's is the canonical statement, but he has plenty of precursors and followers. And it has its scholarly variations, too, such as Arthur Lipow, Authoritarian Socialism in America: Edward Bellamy and the Nationalist Movement (1982). No profound surprises are on offer here.
U.S. Ratification Of The Convention On The Elimination Of All Forms Of Discrimination Against Women, Julia Ernst
U.S. Ratification Of The Convention On The Elimination Of All Forms Of Discrimination Against Women, Julia Ernst
Michigan Journal of Gender & Law
The purpose of this article is to highlight the need for ratification of the Convention by the United States, and to address arguments against ratification. Various concerns have been raised with respect to CEAFDAW, both specific to the United States and more international in scope. Some problems pertain to United States ratification generally, other issues concern potential conflicts between specific articles of the Convention and U.S. law, and broader problems have been raised with respect to international implementation. Most of these issues are not uncommon in international agreements, and may therefore be remedied through conventional mechanisms, including implementing legislation, reservations, …
The Empitness Of Majority Rule, Luis Fuentes-Rohwer
The Empitness Of Majority Rule, Luis Fuentes-Rohwer
Michigan Journal of Race and Law
In this Note, the author steers away from the current substantive debates surrounding the Voting Rights Act, its various amendments, and the "correct" way of interpreting its intended benefits and constitutionally accepted mandates. Instead, indirectly joins the many "radical" voices advocating for a departure from the majoritarian stranglehold-the decision-making process where fifty percent plus one of the voting population carry the election. The author does so not by suggesting yet another mechanism by which representatives may be elected, but by critiquing the perceived underpinnings of our democratic system of government. The author does not profess to delineate a definitive interpretation …
Democratic Credentials, Donald J. Herzog
Democratic Credentials, Donald J. Herzog
Articles
We've made a mistake, urges Bruce Ackerman. We've failed to notice, or have forgotten, that ours is a dualist democracy: ordinary representatives passing their statutes are in fact the democratic inferiors of We the People, who at rare junctures appear on the scene and affirm new constitutional principles. (Actually, he claims in passing that we have a three-track democracy.)' Dwelling lovingly on dualism, Ackerman doesn't quite forget to discuss democracy, but he comes close. I want to raise some questions about the democratic credentials of Ackerman's view. Not, perhaps, the ones he anticipates. So I don't mean to argue that …