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Articles 1 - 28 of 28
Full-Text Articles in Law
Recovering The Original Fourth Amendment, Thomas Y. Davies
Recovering The Original Fourth Amendment, Thomas Y. Davies
Michigan Law Review
Claims regarding the original or intended meaning of constitutional texts are commonplace in constitutional argument and analysis. All such claims are subject to an implicit validity criterion - only historically authentic assertions should matter. The rub is that the original meaning commonly attributed to a constitutional text may not be authentic. The historical Fourth Amendment is a case in point. If American judges, lawyers, or law teachers were asked what the Framers intended when they adopted the Fourth Amendment, they would likely answer that the Framers intended that all searches and seizures conducted by government officers must be reasonable given …
Is The Clean Air Act Unconstitutional?, Cass R. Sunstein
Is The Clean Air Act Unconstitutional?, Cass R. Sunstein
Michigan Law Review
This Article deals with two linked questions. The first involves the future of the Clean Air Act. The particular concern is how the Environmental Protection Agency ("EPA") might be encouraged, with help from reviewing courts, to issue better ambient air quality standards, and in the process to shift from some of the anachronisms of 1970s environmentalism to a more fruitful approach to environmental protection. The second question involves the role of the nondelegation doctrine in American public law, a doctrine that shows unmistakable signs of revival. I will suggest that improved performance by EPA and agencies in general, operating in …
Zoning Speech On The Internet: A Legal And Technical Model, Lawrence Lessig, Paul Resnick
Zoning Speech On The Internet: A Legal And Technical Model, Lawrence Lessig, Paul Resnick
Michigan Law Review
Speech, it is said, divides into three sorts - (1) speech that everyone has a right to (political speech, speech about public affairs); (2) speech that no one has a right to (obscene speech, child porn); and (3) speech that some have a right to but others do not (in the United States, Ginsberg speech, or speech that is "harmful to minors," to which adults have a right but kids do not). Speech-protective regimes, on this view, are those where category (1) speech predominates; speech-repressive regimes are those where categories (2) and (3) prevail. This divide has meaning for speech …
Winning The Battle, Losing The War?: Judicial Scrutiny Of Prisoners' Statutory Claims Under The Americans With Disabilities Act, Christopher J. Burke
Winning The Battle, Losing The War?: Judicial Scrutiny Of Prisoners' Statutory Claims Under The Americans With Disabilities Act, Christopher J. Burke
Michigan Law Review
When he was convicted in 1994 of drunken driving, escape, and resisting arrest, Ronald Yeskey was sentenced to serve 18 to 36 months in a Pennsylvania prison. In addition, the judge recommended that Yeskey be sent to a motivational boot camp operated by the state. Upon successful completion of the boot camp program, Yeskey's sentence would then be reduced to six months. Although he eagerly wanted to participate, the prison refused him entrance into the boot camp program because of his history of hypertension, and also denied him admission into an alternative program for the disabled. As a result, he …
Staking Out The Border Between Comandeering And Conditional Preemption: Is The Driver's Privacy Protection Act Constitutional Under The Tenth Amendment?, Rachel F. Preiser
Staking Out The Border Between Comandeering And Conditional Preemption: Is The Driver's Privacy Protection Act Constitutional Under The Tenth Amendment?, Rachel F. Preiser
Michigan Law Review
Congress passed the Driver's Privacy Protection Act of 1994 ("DPPA") in response to state sales of personal information contained in motor vehicle records to individuals and to direct marketing companies who use it to identify select groups of prospective customers for particular products. Thirty-four states sell their department of motor vehicles ("DMV") records to individual citizens and to direct marketers, essentially allowing their unregulated distribution to any party seeking them. This practice of selling and distributing personal information has serious implications for the privacy and safety of individual citizens. In considering the DPP A, Congress dwelt in particular on the …
Citizen Suits Under The Resource Conservation And Recovery Act: Plotting Abstention On A Map Of Federalism, Charlotte Gibson
Citizen Suits Under The Resource Conservation And Recovery Act: Plotting Abstention On A Map Of Federalism, Charlotte Gibson
Michigan Law Review
In the shadow of the Supreme Court's constitutional federalism doctrines, lower federal courts have developed doctrines of common law federalism through vehicles such as abstention. In the environmental law arena, courts have employed a number of abstention theories to dismiss citizen suits brought under federal statutes. The appearance of primary jurisdiction and Burford abstention in citizen suits brought under the Resource Conservation and Recovery Act ("RCRA") exemplifies this trend. In rejecting RCRA suits, some courts have relied on primary jurisdiction, a doctrine conceived as a mechanism to allocate responsibility for limited fact-finding between courts and agencies, to dismiss RCRA citizen …
Pinochet And International Human Rights Litigation, Curtis A. Bradley, Jack L. Goldsmith
Pinochet And International Human Rights Litigation, Curtis A. Bradley, Jack L. Goldsmith
Michigan Law Review
The British House of Lords recently considered whether Augusto Pinochet was subject to arrest and possible extradition to Spain for alleged acts of torture and other egregious conduct carried out during his reign as Chile's head of state. The Law Lords held that a large majority of the charges against Pinochet were not proper grounds for extradition under British law. They also held, however, that Pinochet could potentially be extradited for alleged acts of torture committed after Britain's 1988 ratifica· tion of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In reaching this latter conclusion, …
A Case-By-Case Approach To Pleading Scienter Under The Private Securities Litigation Reform Act Of 1995, Matthew Roskoski
A Case-By-Case Approach To Pleading Scienter Under The Private Securities Litigation Reform Act Of 1995, Matthew Roskoski
Michigan Law Review
Securities fraud litigation under Rule lOb-5 threatens all publicly traded companies: according to the Stanford Securities Class Action Clearinghouse, in 1998 a securities fraud lawsuit was filed for nearly every day that the stock markets were open. Some of these lawsuits appear to be frivolous, triggered by inevitable fluctuations in stock prices (so-called "fraud by hindsight" complaints), while others represent legitimate efforts at private enforcement of the securities laws. Disposition on the pleadings is a critical defense strategy for all securities lawsuits. Securities fraud lawsuits that withstand a 12(b)(6) motion almost always settle, regardless of the actual merits of the …
The Standing Of The United States: How Criminal Prosecutions Show That Standing Doctrine Is Looking For Answers In All The Wrong Places, Edward A. Hartnett
The Standing Of The United States: How Criminal Prosecutions Show That Standing Doctrine Is Looking For Answers In All The Wrong Places, Edward A. Hartnett
Michigan Law Review
The Supreme Court insists that Article III of the Constitution requires a litigant to have standing in order for her request for judicial intervention to constitute a "case" or "controversy" within the jurisdiction of a federal court; it also insists that the "irreducible constitutional minimum" of standing requires (1) that the litigant suffer an "injury in fact"; (2) that the person against whom the judicial intervention is sought have caused the injury; and (3) that the requested judicial intervention redress the injury. The requisite injury in fact, the Court repeatedly declares, must be "personal," "concrete and particularized," and "actual or …
Forgotten Constitutional History: The Production And Migration Of Meaning Within Constitutional Cultures, Gregory A. Mark
Forgotten Constitutional History: The Production And Migration Of Meaning Within Constitutional Cultures, Gregory A. Mark
Michigan Law Review
When was the last time you read a serious, recently published work of constitutional history that did not deal mainly with the work of the Supreme Court? When, even among those works, did the author look beyond the immediate litigants to give the reader a sense of an evolving constitutional culture - a culture in symbiosis with the larger political and social culture - its eddies and byways, as well as its mainstream? My strong hunch is that anyone who can triumphantly respond to the implicit condemnation of narrowness in these questions will do so in large measure having read …
Television In The Courtroom: Mightier Than The Pen?, Richard P. Matsch
Television In The Courtroom: Mightier Than The Pen?, Richard P. Matsch
Michigan Law Review
In his Introduction, author Ronald L. Goldfarb explains that his purpose is to address all the arguments advanced against televised trials, cover the points made by proponents of televised trials, and find a sensible solution to what he believes is the fundamental issue: "How can we best blend new media technologies with our traditional and revered commitment to democracy and justice?" (p. xxiv). He ends the book with this prospective paragraph: "I expect that all the courtrooms of the future - state and federal, trial and appellate - will be equipped with cameras. I suggest that all trials should be …
The Democracy-Forcing Constitution, Neal Devins
The Democracy-Forcing Constitution, Neal Devins
Michigan Law Review
During my freshman year in college, I was told not to judge a book by its cover. The book in question - Lolita; the cover suggested something quite salacious. My professor explained that a soldier, who had purchased Lolita to work out some of the kinks of military life, found himself tossing the book out, proclaiming in disgust "Literature!" Well, I cannot claim precisely the same reaction to Cass Sunstein's One Case at a Time (my expectations were lower than the soldier's). Nevertheless, for those expecting a lefty defense of judicial restraint, One Case at a Time is not your …
Punishing Hateful Motives: Old Wine In A New Bottle Revives Calls For Prohibition, Carol S. Steiker
Punishing Hateful Motives: Old Wine In A New Bottle Revives Calls For Prohibition, Carol S. Steiker
Michigan Law Review
Hate crimes are nothing new: crimes in which the victim is selected because of the victim's membership in some distinctive group (be it racial, ethnic, religious, or other) have been with us as long as such groups have coexisted within legal systems. What is relatively new is their recognition and designation as a discrete phenomenon. But as appellations like "sexual harassment" and "community policing" have begun to teach us, words are only the beginning of the life cycle of a new socio-legal concept. What follows are debates about whether the new category is really a coherent one, what activities should …
The Qualities Of Completeness: More? Or Less?, Mark R. Killenbeck
The Qualities Of Completeness: More? Or Less?, Mark R. Killenbeck
Michigan Law Review
On January 14, 1983, Chief Judge W. Brevard Hand announced what he knew would be widely regarded as a rather startling proposition. Believing that "[t]he first amendment in large part was a guarantee to the states which insured that the states would be able to continue whatever church-state relationship existed in 1791," Judge Hand held that the people of Alabama were perfectly free to "establish[] a religion," in this instance by allowing public school teachers to begin the school day with prayer. The ruling reversed an earlier decision in the same case, which characterized the statutory provision at issue as …
Constitutional Fact And Theory: A Response To Chief Judge Posner, Deborah Jones Merritt
Constitutional Fact And Theory: A Response To Chief Judge Posner, Deborah Jones Merritt
Michigan Law Review
In his James Madison Lecture on Constitutional Law, Chief Judge Richard Posner chides both professors and judges for devoting too much attention to constitutional theory and too little time to empiricism. Although I agree with Judge Posner's endorsement of empiricism, I dispute the roles he assigns empiricism and theory. Social science matters when interpreting the Constitution, but not in the way Posner posits. Facts cannot replace constitutional theories, nor can they mechanically resolve questions posed by theory. Instead, empirical knowledge is most useful in unmasking the theoretical assumptions that undergird constitutional law, in focusing those theories, and in contributing to …
Dissecting The State: The Use Of Federal Law To Free State And Local Officials From State Legislatures' Control, Roderick M. Hills Jr.
Dissecting The State: The Use Of Federal Law To Free State And Local Officials From State Legislatures' Control, Roderick M. Hills Jr.
Michigan Law Review
In discussions about American federalism, it is common to speak of a "state government" as if it were a black box, an individual speaking with a single voice. State governments are, of course, no such thing. Rather, a "state" actually incorporates a bundle of different subdivisions, branches, and agencies controlled by politicians who often compete with each other for electoral success and governmental power. In particular, these institutions compete with each other for the power to control federal funds and implement federal programs. This article explores one aspect of this intrastate competition - the extent to which federal law can …
Reconceiving The Right To Present Witnesses, Richard A. Nagareda
Reconceiving The Right To Present Witnesses, Richard A. Nagareda
Michigan Law Review
Modem American law is, in a sense, a system of compartments. For understandable curricular reasons, legal education sharply distinguishes the law of evidence from both constitutional law and criminal procedure. In fact, the lines of demarcation between these three subjects extend well beyond law school to the organization of the leading treatises and case headnotes to which practicing lawyers routinely refer in their trade. Many of the most interesting questions in the law, however, do not rest squarely within a single compartment; instead, they concern the content and legitimacy of the lines of demarcation themselves. This article explores a significant, …
Race, Class, Caste…? Rethinking Affirmative Action, Clark D. Cunningham, N.R. Madhava Menon
Race, Class, Caste…? Rethinking Affirmative Action, Clark D. Cunningham, N.R. Madhava Menon
Michigan Law Review
Many who oppose affirmative action programs in the United States because they use "racial" categories such as black, African American, or Latino, claim that equally effective and more equitable programs can be developed using only class categories, such as "low income." A key test case for the "race v. class" debate is admission to law schools, made urgent by recent legal prohibitions on the use of "race" in the admission procedures to state universities in California, Washington, and Texas. An empirical study by Linda Wightman, the former director of research for the Law School Admissions Council (LSAC), has shown that …
Affirmative Action, Caste, And Cultural Comparisons, Cass R. Sunstein
Affirmative Action, Caste, And Cultural Comparisons, Cass R. Sunstein
Michigan Law Review
What is permitted, and what is prohibited, by the equality principle of a liberal democracy? Does affirmative action run afoul of that principle? And where should we look to answer these questions? Many critics of affirmative action take it as axiomatic that affirmative action violates the equality principle. But this is far from clear. Every law classifies. The current law of equality itself classifies by, for example, treating discrimination on the basis of race differently from discrimination on the basis of age. No one thinks that the law of equality is, for this reason, inconsistent with the Equal Protection Clause. …
The Quality Of Mercy Is Not Strained: Interpreting The Notice Requirement Of The Federal Tort Claims Act, Ann Mcguire
The Quality Of Mercy Is Not Strained: Interpreting The Notice Requirement Of The Federal Tort Claims Act, Ann Mcguire
Michigan Law Review
Under the Federal Tort Claims Act of 1946 {FfCA), the United States is liable for tort claims "in the same manner and to the same extent as a private individual under like circumstances." This limited waiver of sovereign immunity, subject to certain exceptions, grants federal district courts exclusive jurisdiction over civil tort actions against the United States for money damages. The Act requires a claimant suing the United States to file her claim first with the appropriate administrative agency. If the agency denies the claim, it mails a notice of final denial, and the claimant then has six months to …
Caste, Class, And Equal Citizenship, William E. Forbath
Caste, Class, And Equal Citizenship, William E. Forbath
Michigan Law Review
There is a familiar egalitarian constitutional tradition and another we have largely forgotten. The familiar one springs from Brown v. Board of Education; its roots lie in the Reconstruction era. Court-centered and countermajoritarian, it takes aim at caste and racial subordination. The forgotten one also originated with Reconstruction, but it was a majoritarian tradition, addressing its arguments to lawmakers and citizens, not to courts. Aimed against harsh class inequalities, it centered on decent work and livelihoods, social provision, and a measure of economic independence and democracy. Borrowing a phrase from its Progressive Era proponents, I will call it the social …
The Courage Of Our Convictions, Sherman J. Clark
The Courage Of Our Convictions, Sherman J. Clark
Michigan Law Review
This article argues that criminal trial juries perform an important but inadequately appreciated social function. I suggest that jury trials serve as a means through which we as a community take responsibility for - own up to - inherently problematic judgments regarding the blameworthiness or culpability of our fellow citizens. This is distinct from saying that jury trials are a method of making judgments about culpability. They are that; but they are also a means through which we confront our own agency in those judgments. The jury is an institution through which we as individuals take a turn acknowledging and …
The Myth Of Choice Of Law: Rethinking Conflicts, Kermit Roosevelt Iii
The Myth Of Choice Of Law: Rethinking Conflicts, Kermit Roosevelt Iii
Michigan Law Review
Choice of law is a mess. That much has become a truism. It is a "dismal swamp," a morass of confusion, a body of doctrine "killed by a realism intended to save it," and now "universally said to be a disaster." One way to demonstrate its tribulations would be to look at the academic dissensus and the hopelessly underdeterminative Restatement (Second) of Conflict of Laws. Another would be to examine the Supreme Court's abdication of the task of articulating constitutional constraints on state choice-of-law rules. This article will do both. At the outset, though, I want to suggest that one …
Law's Territory (A History Of Jurisdiction), Richard T. Ford
Law's Territory (A History Of Jurisdiction), Richard T. Ford
Michigan Law Review
Pop quiz: New York City. The United Kingdom. The East Bay Area Municipal Utilities District. Kwazulu, South Africa. The Cathedral of Notre Dame. The State of California. Vatican City. Switzerland. The American Embassy in the U.S.S.R. What do the foregoing items have in common? Answer: they are, or were, all territorial jurisdictions. A thesis of this Article is that territorial jurisdictions - the rigidly mapped territories within which formally defined legal powers are exercised by formally organized governmental institutions - are relatively new and intuitively surprising technological developments. New, because until the development of modern cartography, legal authority generally followed …
Making The Law Safe For Democracy: A Review Of "The Law Of Democracy Etc.", Burt Neuborne
Making The Law Safe For Democracy: A Review Of "The Law Of Democracy Etc.", Burt Neuborne
Michigan Law Review
Henry Hart began his 1964 Holmes Lectures by asking what a "single" would be without baseball. We rolled our eyes at that one, reveling in the maestro's penchant for the occult. As usual, though, Professor Hart was trying to tell us groundlings something precious. He was warning us that conventional legal thinking, by stressing rigorous deconstructive analysis, can obscure an important unity in favor of components that should be analyzed, not solely as freestanding phenomena, but as part of the unity. Without recognition of the unity, analysis of the components risks being carried on in a normative vacuum that will …
Civics 2000: Process Constitutionalism At Yale, Daniel J. Hulsebosch
Civics 2000: Process Constitutionalism At Yale, Daniel J. Hulsebosch
Michigan Law Review
One or another form of historical fidelity has long been in the repetoire of constitutional interpretation, and during the last two decades conservative jurists have searched for the "original intent" of various clauses. Increasingly, however, it is liberal law professors who are turning to history to make sense of American constitutionalism. What they find there is not a document listing eternal rights or duties but rather a multidimensional structure of government, captured as much in practice as on paper, that has metamorphosed over time. It seems we have, in that familiar phrase, a living Constitution. But interest is shifting from …
Open Chambers?, Richard W. Painter
Open Chambers?, Richard W. Painter
Michigan Law Review
Edward Lazarus has written the latest account of what goes on behind the marble walls of the Supreme Court. His book is not the first to selectively reveal confidential communications between the Justices and their law clerks. Another book, Bob Woodward and Scott Armstrong's The Brethren2 achieved that distinction in 1979. Closed Chambers: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court, however, adds a new twist. Whereas The Brethren was written by journalists who persuaded former law clerks to breach the confidences of the Justices, Lazarus was himself a law clerk to Justice Harry Blackmun. Closed …
The Distributive Foundation Of Corrective Justice, Hanoch Dagan
The Distributive Foundation Of Corrective Justice, Hanoch Dagan
Michigan Law Review
There are two, apparently conflicting, approaches to private law theorizing. One approach - by now, dare I say, the prevailing approach - analyzes private law through the lens of its social, economic, cultural, or political meanings and ramifications. For the purposes of this Article, we may call the proponents of this approach the "social values school." Other theorists, those who take a corrective justice approach, insist that the adjective "private" is significant and should be the starting point for any understanding of "private law." They claim that this starting point inevitably generates a radically different understanding of private law. Organized …