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Articles 1 - 15 of 15

Full-Text Articles in Law

Contractualism In The Law Of Treaties, Omar M. Dajani Sep 2012

Contractualism In The Law Of Treaties, Omar M. Dajani

Michigan Journal of International Law

When Henry Sumner Maine famously observed that "the movement of the progressive societies has hitherto been a movement from Status to Contract," he was invoking contract not as a device for binding parties to their commitments but, rather, as a metaphor for freedom. That metaphor lies at the heart of what legal scholars have come to call contractualism (or, sometimes, contractarianism)-the idea that people should be free to decide with whom, for what, and on which terms they enter agreements and that the law should minimize the constraints it places on these decisions. It is a proposition rooted in ...


Revisiting Extraterritoriality After Al-Skeini: The Echr And Its Lessons, Barbara Miltner Jun 2012

Revisiting Extraterritoriality After Al-Skeini: The Echr And Its Lessons, Barbara Miltner

Michigan Journal of International Law

On July 7, 2011, the European Court of Human Rights, sitting as a Grand Chamber, handed down two long-awaited judgments on the subject of the extraterritorial reach and scope of the European Convention on Human Rights (ECHR). In both Al-Skeini v. United Kingdom and Al-Jedda v. United Kingdom, the underlying issue was whether or not the United Kingdom was bound by its treaty obligations under the ECHR with regard to its military presence in Iraq. Al-Skeini involved the joined claims of six Iraqi nationals whose relatives were killed while allegedly under U.K. jurisdiction in Iraq; they claimed a lack ...


Restoring Restitution To The Canon, Douglas Laycock Apr 2012

Restoring Restitution To The Canon, Douglas Laycock

Michigan Law Review

The Restatement (Third) of Restitution and Unjust Enrichment brings clarity and light to an area of law long shrouded in fogs that linger from an earlier era of the legal system. It makes an important body of law once again accessible to lawyers and judges. This new Restatement should be on every litigator's bookshelf, and a broad set of transactional lawyers and legal academics would also do well to become familiar with it. Credit for this Restatement goes to its Reporter, Professor Andrew Kull. Of course his work benefited from the elaborate processes of the American Law Institute, with ...


Theorizing American Freedom, Anthony O'Rourke Apr 2012

Theorizing American Freedom, Anthony O'Rourke

Michigan Law Review

Some intellectual concepts once central to America's constitutional discourse are, for better and worse, no longer part of our political language. These concepts may be so alien to us that they would remain invisible without carefully reexamining the past to challenge the received narratives of America's constitutional development. Should constitutional theorists undertake this kind of historical reexamination? If so, to what extent should they be willing to stray from the disciplinary norms that govern intellectual history? And what normative aims can they reasonably expect to achieve by exploring ideas in our past that are no longer reflected in ...


Yick Wo At 125: Four Simple Lessons For The Contemporary Supreme Court, Marie A. Failinger Apr 2012

Yick Wo At 125: Four Simple Lessons For The Contemporary Supreme Court, Marie A. Failinger

Michigan Journal of Race and Law

The 125th anniversary of Yick Wo v. Hopkins is an important opportunity to recognize the pervasive role of law in oppressive treatment of Chinese immigrants in the nineteenth and twentieth centuries. It is also a good opportunity for the Supreme Court to reflect on four important lessons gleaned from Yick Wo. First, the Court should never lend justification to the evil of class discrimination, even if it has to decline to rule in a case. Second, where there is persistent discrimination against a minority group, the Court must be similarly persistent in fighting it. Third, the Court needs to take ...


Facades Of Justice, Norman W. Spaulding Apr 2012

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), and the millennial opening of a spectacular new courthouse for the International Tribunal for the Law of the Sea in Hamburg, Germany (p. 266 fig. 176). A more richly conceived catalogue of the development of specialized courthouses from multipurpose buildings and the art that adorns adjudicative space is hard to imagine. Part history, part art history, part architectural theory, and part meditation on the relationship between adjudication and political legitimacy in the spirit of Jeremy Bentham, the book poses fundamental questions about the trajectory of liberal justice in the twenty-first century: is adjudication in public space essential to the rule of law in democratic societies? Can the resolution of civil and criminal disputes be privatized without compromising democratic values? Is justice primarily procedural, linked to courts and adjudication; primarily substantive, tied to substantive rights and the popularly accountable branches of government; or primarily normative, a set of ideals or theories against which the actions of any people and their government may be assessed? Most significantly, what is the relationship between justice ...


Race And Constitutional Law Casebooks: Recognizing The Proslavery Constitution, Juan F. Perea Apr 2012

Race And Constitutional Law Casebooks: Recognizing The Proslavery Constitution, Juan F. Perea

Michigan Law Review

Federalist No. 54 shows that part of Madison's public defense of the Constitution included the defense of some of its proslavery provisions. Madison and his reading public were well aware that aspects of the Constitution protected slavery. These aspects of the Constitution were publicly debated in the press and in state ratification conventions. Just as the Constitution's protections for slavery were debated at the time of its framing and ratification, the relationship between slavery and the Constitution remains a subject of debate. Historians continue to debate the centrality of slavery to the Constitution. The majority position among historians ...


The Case For Abolishing Centralized White House Regulatory Review , Rena Steinzor Jan 2012

The Case For Abolishing Centralized White House Regulatory Review , Rena Steinzor

Michigan Journal of Environmental & Administrative Law

A series of catastrophic regulatory failures have focused attention on the weakened condition of regulatory agencies assigned to protect public health, worker and consumer safety, and the environment. The destructive convergence of funding shortfalls, political attacks, and outmoded legal authority have set the stage for ineffective enforcement, unsupervised industry self-regulation, and a slew of devastating and preventable catastrophes. From the Deepwater Horizon spill in the Gulf of Mexico to the worst mining disaster in forty years at the Big Branch mine in West Virginia, the signs of regulatory dysfunction abound. Many stakeholders expected that President Barack Obama would recognize and ...


Is A Substantive, Non-Positivist United States Environmental Law Possible?, Dan Tarlock Jan 2012

Is A Substantive, Non-Positivist United States Environmental Law Possible?, Dan Tarlock

Michigan Journal of Environmental & Administrative Law

U.S. environmental law is almost exclusively positive and procedural. The foundation is the pollution control and biodiversity conservation statutes enacted primarily between 1969–1980 and judicial decisions interpreting them. This law has created detailed processes for making decisions but has produced few substantive constraints on private and public decisions which impair the environment. Several substantive candidates have been proposed, such as the common law, a constitutional right to a healthy environment, the public trust, and the extension of rights to fauna and flora. However, these candidates have not produced the hoped for substantive law. Many argue that a substantive ...


Reforming The Tax Code: A Tale Of Two Purposes And Paralysis, Gene Magidenko Jan 2012

Reforming The Tax Code: A Tale Of Two Purposes And Paralysis, Gene Magidenko

University of Michigan Journal of Law Reform Caveat

Though the presidential election of 2012 is still some time away, national politics have been in the thick of one for several months now. One of the top issues being debated is the tax code. Most agree that the tax code should be simplified, but to say that the proposals to do this are various is an understatement. This perennial question of reform has been a fixture of the national debate for a long time, so little of what can be said about it is particularly novel. All the same, a brief overview of the purposes behind our system of ...


Every High Has A Low: A Pragmatic Approach To The War On Drugs, Mark Garibyan Jan 2012

Every High Has A Low: A Pragmatic Approach To The War On Drugs, Mark Garibyan

University of Michigan Journal of Law Reform Caveat

One of the lasting vestiges of Richard Nixon’s presidency is the infamous “War on Drugs,” a forty-year-old effort aimed at curtailing “illicit drug consumption and transactions in America.” Although the goal behind the policy—a reduction in the rate of substance abuse—may be altruistic, the War on Drugs has dismally failed to achieve its goals and has exacerbated existing problems. Specifically, laws dealing with crack cocaine result in a “heavily disproportionate impact on black defendants;” in 2008 “blacks comprised 79.8 percent of those convicted for crack cocaine-related offenses,” whereas “whites comprised only 10.4 percent.” More generally ...


Energy Subsidies, Market Distortion, And A Free Market Alternative, Hans Biebl Jan 2012

Energy Subsidies, Market Distortion, And A Free Market Alternative, Hans Biebl

University of Michigan Journal of Law Reform Caveat

Gas and coal are cheap. They are cheap because the U.S. government subsidizes their production. The result is that the marketplace does not recognize the true cost of fossil fuels. Without the subsidies, Americans—for the first time in nearly a hundred years—would experience the cost of unsubsidized fossil fuels. In a newly competitive marketplace, renewable sources of energy would be in a better position to compete. Without gas and coal subsidies, clean energy producers, who have not been able to compete with the low price of fossil fuels, might be more willing to invest in “clean, renewable ...


The Devil Comes To Kansas: A Story Of Free Love, Sexual Privacy, And The Law, Charles J. Reid Jr. Jan 2012

The Devil Comes To Kansas: A Story Of Free Love, Sexual Privacy, And The Law, Charles J. Reid Jr.

Michigan Journal of Gender & Law

On Sunday, September 19, 1886, Moses Harman, the editor of the radical newspaper Lucifer the Light-Bearer, presided over an inherently contradictory event-a free-love marriage ceremony between his associate editor, the thirty-seven-year-old Edwin Walker, and Moses' own daughter, the sixteen-year-old Lillian. The case that the two Harmans and Walker wished to present aimed to transform marriage from a public to a private relationship and from a permanent and exclusive one to a temporary one that permitted potentially many partners. State v. Walker and its parties have received some scholarly notice, but the truly radical quality of the arguments Moses, Edwin, and ...


Against The New Maternalism, Naomi Mezey, Cornelia T. L. Pillard Jan 2012

Against The New Maternalism, Naomi Mezey, Cornelia T. L. Pillard

Michigan Journal of Gender & Law

Parenting is a major preoccupation in law and culture. As a result of efforts of the American women's movement over the past forty years, the legal parent is, for the first time in history, sex-neutral. Our law has abandoned restrictions on women's education, employment, and civic participation that sprang from and reinforced beliefs about the primacy of motherhood as women's best destiny. On the flip side, U.S. law now also generally rejects formal constraints on men's family roles by requiring sex-neutrality of laws regulating custody, adoption, alimony, spousal benefits, and the like. The official de-linking ...


No Contact Parole Restrictions: Unconstitutional And Counterproductive, Sharon Brett Jan 2012

No Contact Parole Restrictions: Unconstitutional And Counterproductive, Sharon Brett

Michigan Journal of Gender & Law

Although what Jesse Timmendequas did was abhorrent, the legislation enacted in the wake of his crime went far beyond making sure we know the pedophiles or pedophile-murderers living in our neighborhoods. Megan's name now lends itself to a host of state laws requiring the state to notify neighbors when a sex offender moves into the neighborhood. The term "sex offender" is intentionally broad, covering everyone from voyeurs and exhibitionists to rapists and child molesters. Yet, Megan's Laws treat them the same way, ignoring some crucial questions: Are all sex offenders alike? Are they all monsters? In reality, the ...