Law Commons^™

The Limits Of Deliberation About The Public's Values, Mark Seidenfeld

Michigan Law Review

A Review of The Public's Law: Origins and Architecture of Progressive Democracy by Blake Emerson.

The Democracy Principle In State Constitutions, Jessica Bulman-Pozen, Miriam Seifter

Michigan Law Review

In recent years, antidemocratic behavior has rippled across the nation. Lame-duck state legislatures have stripped popularly elected governors of their powers; extreme partisan gerrymanders have warped representative institutions; state officials have nullified popularly adopted initiatives. The federal Constitution offers few resources to address these problems, and ballot-box solutions cannot work when antidemocratic actions undermine elections themselves. Commentators increasingly decry the rule of the many by the few.

This Article argues that a vital response has been neglected. State constitutions embody a deep commitment to democracy. Unlike the federal Constitution, they were drafted—and have been repeatedly rewritten and amended— to empower …

The Values Of The Administrative State: A Reply To Seidenfeld, Blake Emerson

Michigan Law Review Online

I appreciate the opportunity to continue the conversation on democracy in the administrative state that I hoped The Public’s Law would inspire. In his review, Mark Seidenfeld critiques some of the book’s legal reform proposals. He argues that I am too optimistic about the general public’s ability to participate in the administrative process, about administrators’ competence to reason about social values, and about courts’ capacity to police such reasoning.

The aspects of my argument Seidenfeld criticizes come at the conclusion of the book’s broader study of the intellectual and institutional history of the administrative state. This history is meant to …

The Wolf We Feed: Democracy, Caste, And Legitimacy, Benjamin Justice, Tracey L. Meares

Michigan Law Review Online

Procedure is central to American public legal discourse. From the soaring rhetoric of the Declaration of Independence to the Due Process Clause of the Fourteenth Amendment, the American legal tradition rests on the principle that law must be both derived and applied according to fair process. Consider that in the 2020 election the Trump Administration resorted to fervent and false allegations of widespread voter fraud—that the election process was fundamentally unfair—in order to weaponize Republican voters’ ostensible commitments to fairness against what was, objectively, one of the least procedurally unfair elections in history. Yet the four-year period of the Trump …

Making And Unmaking Citizens: Law And The Shaping Of Civic Capacity, Tabatha Abu El-Haj

University of Michigan Journal of Law Reform

American democracy is more fragile today than in recent memory. As evidence of stubborn imbalances in political influence grow, so too does public skepticism concerning the relative benefits of our democratic institutions. Scholars have taken note, and two dominant camps have emerged to offer proposals for restoring democratic accountability and responsiveness. The first, like the public, identifies the flood of money into electoral politics as the primary source of our troubles, whereas the second points to political parties as the root of the crisis. More recently, however, a nascent third approach has emerged. Looking beyond the usual suspects—money in politics …

The Republic In Long-Term Perspective, Richard Primus

Michigan Law Review Online

Every system of government eventually passes away. That's a feature of the human condition. The United States has been an unusually stable polity by the standards of world civilizations, and for that stability Americans should be deeply grateful. But no nation is exempt from the basic forces of history. It is not reasonable to think that the constitutional republic we know will last forever. The question is when it will meet its end-in our lifetimes, or in our grandchildren's, or centuries later. Given the stable conditions that living Americans were socialized to expect, the dominant intuition is probably something like …

Shock Therapy, Social Engineering, And Financial Discipline: What Does An Increasingly Financialized World Mean For Democratic Participation?, Layan Charara

Michigan Business & Entrepreneurial Law Review

Over the last several decades, the Bretton Woods Institutions have come to be drivers of policy in the realms of economic liberalization and development, exceeding their original mandates of fostering monetary cooperation and facilitating post-war reconstruction. The structural adjustment programs of the World Bank and the International Monetary Fund have engendered mixed results–delivering some countries from financial crises, while inciting riots and compounding state failure in others. Such varied experiences suggest there is some disconnect between the conditions to lending promulgated by these institutions and the realities on the ground. This Note will trace the evolution of high conditionality lending …

Reassessing American Democracy: The Enduring Challenge Of Racial Exclusion, Johanna Kalb, Didi Kuo

Michigan Law Review Online

American democracy is in trouble. Since the 2016 election, a sizable literature has developed that focuses on diagnosing and assessing the state of American democracy, most of which concludes that our system of government is in decline.[2] These authors point to the rise in party polarization, the increasingly bipartisan abandonment of the norms of the democratic process, the rise of populism, the degradation of the public sphere, and the proliferation of gerrymandered districts and voting restrictions to illustrate the breakdown. And while attributing varying levels of significance to these factors, a common theme is that American democracy, once stable, is …

Reconceptualizing States Of Emergency Under International Human Rights Law: Theory, Legal Doctrine, And Politics, Scott P. Sheeran

Michigan Journal of International Law

States of emergency are today one of the most serious challenges to the implementation of international human rights law (IHRL). They have become common practice and are associated with severe human rights violations as evidenced by the Arab Spring. The international jurisprudence on states of emergency is inconsistent and divergent, and what now constitutes a public emergency is ubiquitous. This trend is underpinned by excessive judicial deference and abdication of the legal review of states' often dubious claims of a state of emergency. The legal regime, as positively expressed in international human rights treaties, does not adequately reflect the underlying …

Facades Of Justice, Norman W. Spaulding

Michigan Law Review

Representing Justice is a book of encyclopedic proportions on the iconography of justice and the organization of space in which adjudication occurs. Professors Judith Resnik and Dennis Curtis have gathered a provocative array of images, ranging from the scales of the Babylonian god Shamash-"judge of heaven and earth"-on a 4,200-year-old seal (pp. 18- 19 & fig. 23), and a 600-year-old painting of Saint Michael weighing the souls at the Last Judgment with sword and scales in hand (p. 23 fig. 25) to the tiny Cook County Courthouse in Grand Marais, Minnesota, 110 miles north of Duluth (p. 372 fig. 226), …

The People's Trade Secrets, David S. Levine

Michigan Telecommunications & Technology Law Review

The content of administered public school exams, modifications made by a government to its voting machines, and the business strategies of government corporations should be of interest to the public. At a minimum, they are the kinds of information that a government should allow its citizens to see and examine. After all, the public might have some legitimate questions for its government: Is that public school examination fair and accurate? Is that voting machine working so that my vote gets counted? To whom or what is that government agency marketing and are kickbacks involved? One would think that the government …

Keynote Address, Jeffrey H. Smith

Michigan Journal of International Law

This afternoon, I want to touch briefly on a number of issues rather than discuss one or two to death. I chose this approach because it seemed an appropriate way to open a conference. I also chose it because I hope I can convince you that intelligence and international law interact in a way that simultaneously strengthens the law and improves intelligence; that law matters, especially in time of war; and that both good intelligence and good law have one common core value: integrity. So that you will have a sense of the perspective that I bring to this, I …

Towards A Right To Privacy In Transnational Intelligence Networks, Francesca Bignami

Michigan Journal of International Law

Privacy is one of the most critical liberal rights to come under pressure from transnational intelligence gathering. This Article explores the many ways in which transnational intelligence networks intrude upon privacy and considers some of the possible forms of legal redress. Part II lays bare the different types of transnational intelligence networks that exist today. Part III begins the analysis of the privacy problem by examining the national level, where, over the past forty years, a legal framework has been developed to promote the right to privacy in domestic intelligence gathering. Part IV turns to the privacy problem transnationally, when …

How Qui Tam Actions Could Fight Public Corruption, Aaron R. Petty

University of Michigan Journal of Law Reform

This Note argues that public corruption at the state and local levels is a serious problem throughout the United States. Because public corruption decreases confidence in the democratic system at all levels of government, a strong response is necessary. Due to difficulties inherent in the deterrence, detection, and prosecution of state and local corruption, innovative methods to respond to this problem are needed. The author argues that amending the federal criminal statutes most commonly used to prosecute state and local public corruption, to allow a private citizen to bring a qui tam civil action against the public official for violations …

The Political Economy Of Rule Of Law Reform In Developing Countries, Ronald J. Daniels, Michael Trebilcock

Michigan Journal of International Law

In this paper, the authors briefly review the recent experience with rule of law reform initiatives in Latin America, Africa, and Central and Eastern Europe, drawing on more detailed case studies by the authors. The authors are currently working on a similar case study on rule of law reform experiences in Asia.

Global Government Networks, Global Information Agencies, And Disaggregated Democracy, Anne-Marie Slaughter

Michigan Journal of International Law

This essay seeks to broaden our understanding of government networks by placing them in more historical context and by elaborating different types of government networks within and without traditional international institutions. After a brief overview of the literature on transgovernmentalism since the 1970s in Part I, Part H sets forth a typology of three different categories of government networks. Part III then seeks to pinpoint the specific accountability concerns associated with each type. Part IV offers one approach to answering some current accountability concerns by adapting the concept of "information agencies" from the European Union to the global level. This …

Articulating The Right To Democratic Governance In Africa, Nsongurua J. Udombana

Michigan Journal of International Law

This Article articulates the right to democratic governance in Africa, arguing that democratic entitlement ought to acquire, if indeed it already has not acquired, a degree of legitimacy in the continent. If democratic governance is a fundamental human right, which this Article asserts it is, it follows that any African State that denies its citizens the right to any of the elements of democratic entitlement-such as free and open elections-is violating a fundamental right, which should attract responsibility. The Article begins with an examination of the patrimonial State structure in Africa and its negative impact on governance. It is a …

Difficulties In Achieving Coherent State And Local Fiscal Policy At The Intersection Of Direct Democracy And Republicanism: The Property Tax As A Case In Point, Mildred Wigfall Robinson

University of Michigan Journal of Law Reform

Professor Robinson explores the uneasiness present when acts of "direct democracy" through means of voter referenda and ballot initiatives conflict with the ideals of representative government, using fiscal matters, such as the property tax, as an example.

Part I explores the changes that have taken place in the last two decades in voter strategy and in patterns of judicial interpretation, briefly reviewing the history of the property tax focusing on taxpayer reaction to long overdue attempts at administrative reform, and showing how that effort indirectly contributed to the "taxpayer revolt. "It further examines how and why broad-scale attempts to utilize …

Federalism Or Federationism, William E. Butler

Michigan Law Review

When I took up my appointment in October 1970 as Reader in Comparative Law in the University of London, I was invited to collaborate in teaching the LL.M.' course in Soviet Law offered within the University on an intercollegiate basis. The course had been introduced two years previously, the first of its kind within the realm. Originally it was offered by a team of three, regrettably all now deceased: Edward Johnson, Ivo Lapenna, and Albert K. R Kiralfy. I had come to England to replace the late Edward Johnson, whose untimely death had left vacant the Readership in Soviet Law, …

The Bar In America: The Role Of Elitism In A Liberal Democracy, Philip S. Stamatakos

University of Michigan Journal of Law Reform

Part I of this Note argues that liberal democracy, the free market, and science have contributed to the increasing atomization of American society. When each person and her views are glorified, universal standards of good become undermined, values become relative, and a sense of community becomes evanescent. Part II argues that individualism is incapable of accounting for the commonweal and therefore is inherently amoral because morality is concerned largely with determining when an individual's will should be subservient to the will of others. Part III considers the nature of elitism and equality and attributes the demise of elitist institutions in …

Dialogue And Judicial Review, Barry Friedman

Michigan Law Review

This article argues that most normative legal scholarship regarding the role of judicial review rests upon a descriptively inaccurate foundation. The goal of this article is to redescribe the landscape of American constitutionalism in a manner vastly different than most normative scholarship. At times this article slips across the line into prescription, but by and large the task is descriptive. The idea is to clear the way so that later normative work can proceed against the backdrop of a far more accurate understanding of the system of American constitutionalism.

This article proceeds in three separate parts. Parts I and II …

Justifiably Punishing The Justified, Heidi M. Hurd

Michigan Law Review

Contemporary moral philosophy, political theory, and jurisprudence have converged to create a quite baffling dilemma. This dilemma is generated by the apparent incompatibility of three principles, each of which grounds features of our system of law and government, and each of which carries substantial normative weight. The first I shall call the punishment principle - a moral principle, doctrinally entrenched in American criminal and civil law, which holds that individuals who are morally justified in their actions ought not to be blamed or punished for those actions. The second is the principle of the rule of law - a complex …

Foreign Affairs Law And Democracy, Phillip R. Trimble

Michigan Law Review

A Review of Constitutionalism, Democracy, and Foreign Affairs by Louis Henkin

Population Changes And Constitutional Amendments: Federalism Versus Democracy, Peter Suber

University of Michigan Journal of Law Reform

To amend the federal Constitution, we need the assent of two-thirds of each house of Congress and three-fourths of the states. This Article focuses on the three-fourths requirement for the states. This threshold is particularly high, and it suggests that constitutional amendment is very difficult. In fact, amendment is difficult in different degrees for different constituencies, depending not on their numbers but on where they live.

Terrorism And The Democratic State, Alona E. Evans

Michigan Law Review

A Review of A Time of Terror: How Democratic Societies Respond to Revolutionary Violence by J. Bowyer Bell

Devising Procedures That Are Civil To Promote Justice That Is Civilized, Maurice Rosenberg

Michigan Law Review

In a democracy, process is king to a very large extent, and this is especially so in the judicial branch. Even though substantive laws command attention, procedural rules ensure respect. Why is this true? One powerful reason is that when people end up in court, their case typically is not a matter of right against wrong, but of right against right. Decent process makes the painful task of deciding which party will prevail bearable and helps make the decision itself acceptable.

To put my position plainly, I believe that the road to court-made justice is paved with good procedures. Later …

Political Crimes Defined, Theodore Schroeder

Michigan Law Review

Continental Europe is in the midst of revolutions. The immediate antecedents are such as to suggest the probable accompaniment of more widespread and perhaps even more intense passions of various sort, than have ever before been brought into being with a revolution. This in turn suggests the likelihood that there will follow more political plots and counter-revolutions than is usual in such cases. From such causes it is highly probable that the juridical meaning of the statutory words "an offense of a political character" will be a matter of frequent controversy, as successive crops of exiles claim the right of …

Theory Of Popular Sovereignty, Harold J. Laski

Michigan Law Review

Alexis de Tocqueville has wisely insisted upon the natural tendency of men to confound institutions that are necessary with institutions to which they have grown accustomed.' It is a truth more general in its application than he perhaps imagined. Certainly the student of political and legal ideas will in each age be compelled to examine theories which are called essential even when their original substance has, under pressure of new circumstance, passed into some allotropic form. Anyone, for instance, who analyses the modern theory of consideration will be convinced that, while judges do homage to an ancient content, they do …