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Globally Speaking—Honoring The Victims' Stories: Matsuda's Human Rights Praxis, Berta Esperanza Hernández-Truyol Apr 2014

Globally Speaking—Honoring The Victims' Stories: Matsuda's Human Rights Praxis, Berta Esperanza Hernández-Truyol

Michigan Law Review First Impressions

Globally speaking, international law and the vast majority of domestic legal systems strive to protect the right to freedom of expression. The United States' First Amendment provides an early historical protection of speech-a safeguard now embraced around the world. The extent of this protection, however, varies among states. The United States stands alone in excluding countervailing considerations of equality, dignitary, or privacy interests that would favor restrictions on speech. The gravamen of the argument supporting such American exceptionalism is that free expression is necessary in a democracy. Totalitarianism, the libertarian narrative goes, thrives on government control of information to the ...


Toward A Multiple Consciousness Of Language: A Tribute To Professor Mari Matsuda, Shannon Gilreath Mar 2014

Toward A Multiple Consciousness Of Language: A Tribute To Professor Mari Matsuda, Shannon Gilreath

Michigan Law Review First Impressions

I am thrilled to be part of this commemoration of the twenty-fifth anniversary of Professor Matsuda's influential article Public Response to Racist Speech: Considering the Victim's Story. I first read Matsuda's essay as a law student when, I must confess, the mind-numbing one-dimensionality of the law-as one must learn it in the prevailing method-drove me a little crazy. Law school is an environment where the Socratic method reduces people's stories-the stuff of which law is made-to something lawyers like to call "the facts," and where real-life people, in whom I saw so much of myself-people like ...


Freedom And Equality On The Installment Plan, Michael Halley Jan 2010

Freedom And Equality On The Installment Plan, Michael Halley

Michigan Law Review First Impressions

A response to Nelson Tebbe & Robert L. Tsai, Constitutional Borrowing, 108 Mich. L. Rev. 462 (2010). Crediting the perception that the Constitution is a poorly cut puzzle whose variously configured pieces don't match, Nelson Tebbe and Robert Tsai propose that the stand-alone parts of freedom and equality can be merged and mutually enlarged through the act of borrowing. They are mistaken. While Thomas Jefferson wrote that ideas may be appropriated without being diminished and so "freely spread from one to another over the globe," the equality and freedom the Constitution addresses as actualities are constrained by a basic, familiar, and inescapable rule of financial accounting. Just as assets and liabilities must be in balance, freedoms are only acquired at the exacting expense of equality; no amount of borrowing can alter the equation. While as a matter of principle we are all equally entitled to be "let alone," this "most comprehensive right . . . the right most valued by civilized men," is not a one-size-fits-all proposition. While "the poorest man in his cottage" and the richest man in his mansion may both "bid defiance to all the forces of the Crown," the amount of privacy they enjoy as a matter of fact is incomparable. The privacy enjoyed by those unable to afford lodgings of any kind and forced to take refuge in ...


An Agenda For The Obama Administration On Gender Equality: Lessons From Abroad, Adrien K. Wing, Samuel P. Nielson Jan 2009

An Agenda For The Obama Administration On Gender Equality: Lessons From Abroad, Adrien K. Wing, Samuel P. Nielson

Michigan Law Review First Impressions

President Barack Obama came into office with a wealth of good will after winning the historic 2008 presidential election to become the first African-American commander-in-chief. Among the many daunting issues we hope he will tackle is one that Abigail Adams mentioned to her husband John in 1776: remember the ladies. How should our President and his new administration affect social justice for women?


The Developing Equality Jurisprudence In South Africa, Karthy Govender Jan 2009

The Developing Equality Jurisprudence In South Africa, Karthy Govender

Michigan Law Review First Impressions

Apartheid was technically about separateness, but it was fundamentally about inequality. The founding premise of the ideology was to preserve the total hegemony of white South Africans. The liberation organizations opposing the apartheid regime sought to affirm that the country belonged to all those that lived in it. Thus, it is unsurprising that the commitment to equality is one of the founding values of the Constitution and an indelible thread woven throughout the fabric of the Bill of Rights. After some misstatements about certain rights being more important than others, courts have interpreted rights in the Bill of Rights to ...


Substantive Equality In The European Court Of Human Rights?, Dr. Rory O'Connell Jan 2009

Substantive Equality In The European Court Of Human Rights?, Dr. Rory O'Connell

Michigan Law Review First Impressions

The European Court of Human Rights ("ECtHR") has a distinguished track record. Established under the European Convention on Human Rights 1950 ("ECHR"), it was the world's first international human rights court. It decides thousands of cases every year, and its opinions are cited world-wide. For most of its history, the Court's jurisprudence on equality was uninspiring, as it was based on a formal conception of equality. In recent years, however, the ECtHR has begun to give equality more substantive content.


Can Equality Survive Exceptions?, Daphne Barak-Erez Jan 2009

Can Equality Survive Exceptions?, Daphne Barak-Erez

Michigan Law Review First Impressions

The meaning of the exception vis-à-vis the general rule is primarily discussed in the context of emergency powers (following Cart Schmitt and Giorgio Agamben). But the complicated relationship between the norm and its exceptions is also relevant to other legal contexts. This Commentary is dedicated to the following question: What are the implications of considering equality a fundamental legal principle while recognizing exceptions to its application? More concretely, how does the existence of exceptions influence the understanding and viability of equality as the norm?


Recognition Of Group Rights As Requisite To Substantive Equality Goals, Kathrina Szymborski Jan 2009

Recognition Of Group Rights As Requisite To Substantive Equality Goals, Kathrina Szymborski

Michigan Law Review First Impressions

Courts, legislatures, and scholars are increasingly turning away from traditional Aristotelian thinking in favor of a substantive, pro-active approach to equality. Under the substantive approach, the identification and eradication of systematic discrimination replace an adherence to neutral principles. This Comment argues that while a substantive approach is the most effective way to bring about true equality, it will not succeed unless it centers on protecting group rights. State decision-makers and international human rights advocates must focus on group experiences in order to create societies where no one is favored based on immutable characteristics.


Ideological Endowment: The Staying Power Of The Electoral College And The Weaknesses Of The National Popular Vote Interstate Compact, Daniel P. Rathbun Jan 2008

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 ...


Equal Voice By Half Measures, John Mark Hansen Jan 2008

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 ...


Awarding Presidential Electors By Congressional District: Wrong For California, Wrong For The Nation, Sam Hirsch Jan 2008

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 ...


Reforming The Electorial College One State At A Time, Thomas W. Hiltachk Jan 2008

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 ...


Democratic Principle And Electoral College Reform, Ethan J. Leib, Eli J. Mark Jan 2008

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 ...