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Full-Text Articles in Law
The New Impartial Jury Mandate, Richard Lorren Jolly
The New Impartial Jury Mandate, Richard Lorren Jolly
Michigan Law Review
Impartiality is the cornerstone of the Constitution’s jury trial protections. Courts have historically treated impartiality as procedural in nature, meaning that the Constitution requires certain prophylactic procedures that secure a jury that is more likely to reach verdicts impartially. But in Peña- Rodriguez v. Colorado, 137 S. Ct. 855 (2017), the Supreme Court recognized for the first time an enforceable, substantive component to the mandate. There, the Court held that criminal litigants have a Sixth Amendment right to jury decisions made without reliance on extreme bias, specifically on the basis of race or national origin. The Court did not …
Article Ii And Antidiscrimination Norms, Aziz Z. Huq
Article Ii And Antidiscrimination Norms, Aziz Z. Huq
Michigan Law Review
The Supreme Court’s opinion in Trump v. Hawaii validated a prohibition on entry to the United States from several Muslim-majority countries and at the same time repudiated a longstanding precedent associated with the Japanese American internment of World War II. This Article closely analyzes the relationship of these twin rulings. It uses their dichotomous valences as a lens on the legal scope for discriminatory action by the federal executive. Parsing the various ways in which the internment of the 1940s and the 2017 exclusion order can be reconciled, the Article identifies a tension between the Court’s two holdings in Trump …
The Sweeping Domestic War Powers Of Congress, Saikrishna Bangalore Prakash
The Sweeping Domestic War Powers Of Congress, Saikrishna Bangalore Prakash
Michigan Law Review
With the Habeas Clause standing as a curious exception, the Constitution seems mysteriously mute regarding federal authority during invasions and rebellions. In truth, the Constitution speaks volumes about these domestic wars. The inability to perceive the contours of the domestic wartime Constitution stems, in part, from unfamiliarity with the multifarious emergency legislation enacted during the Revolutionary War. During that war, state and national legislatures authorized the seizure of property, military trial of civilians, and temporary dictatorships. Ratified against the backdrop of these fairly recent wartime measures, the Constitution, via the Necessary and Proper Clause and other provisions, rather clearly augmented …
Race And Constitutional Law Casebooks: Recognizing The Proslavery Constitution, Juan F. Perea
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 today appears …
Ugly: An Inquiry Into The Problem Of Racial Gerrymandering Under The Voting Rights Act, Daniel D. Polsby, Robert D. Popper
Ugly: An Inquiry Into The Problem Of Racial Gerrymandering Under The Voting Rights Act, Daniel D. Polsby, Robert D. Popper
Michigan Law Review
In the discussion that follows, we focus on the case of congressional districting rather than on districting in general. Although we proceed in this manner for the sake of clarity, it is also true that no single, all-purpose normative theory of electoral mechanics will cover every case of democratic representation, from county commissions to mosquito control districts to sovereign legislatures. We do not claim that one can generalize our argument to every sort of election to which the VRA might apply. Yet we think our argument does approximate a theory of general application.
Expressive Harms, "Bizarre Districts," And Voting Rights: Evaluating Election-District Appearances After Shaw V. Reno, Richard H. Pildes, Richard G. Niemi
Expressive Harms, "Bizarre Districts," And Voting Rights: Evaluating Election-District Appearances After Shaw V. Reno, Richard H. Pildes, Richard G. Niemi
Michigan Law Review
This article attempts to define the constitutional principles that characterize Shaw and to suggest how those principles might be applied in a consistent, meaningful way. Part I, in which we argue that Shaw must be understood to rest on a distinctive conception of the kinds of harms against which the Constitution protects, is the theoretical heart of the article. We call these expressive harms, as opposed to more familiar, material harms. In Part II, we briefly survey the history of previous, largely unsuccessful, efforts in other legal contexts to give principled content to these kinds of harms in redistricting. …
Race And Redistricting: Drawing Constitutional Lines After Shaw V. Reno, T. Alexander Aleinikoff, Samuel Isaacharoff
Race And Redistricting: Drawing Constitutional Lines After Shaw V. Reno, T. Alexander Aleinikoff, Samuel Isaacharoff
Michigan Law Review
Shaw is no doubt a major opinion that attempts to define limits on the use of racial or ethnic classifications in electoral redistricting. The main thrust of this article is to assess the critical question of whether Shaw renders unconstitutional the type of race-conscious realignment of electoral configurations that have given meaning to the voting rights reforms of the past two decades. In making this assessment, we try to ascertain exactly how the Court has limited the use of race-conscious districting, and we try to determine whether there is any jurisprudential coherence to the Court's latest confrontation with the law …
Disorder In The Court: The Death Penalty And The Constitution, Robert A. Burt
Disorder In The Court: The Death Penalty And The Constitution, Robert A. Burt
Michigan Law Review
This article has two purposes. Its first aim is to trace the significance of these shifting characterizations of American society in the Justices' successive approaches to the death penalty by retelling the story of the Court's capital punishment jurisprudence. Its second purpose is to suggest that belief in implacable social hostility destroys the coherence of the judicial role in constitutional adjudication. America may indeed be an irreconcilably polarized society; I cannot dispositively prove or disprove the proposition. I mean only to claim that in constitutional adjudication a judge is obliged to act as if this proposition were false; and, moreover, …
Judicial Competence And Fundamental Rights, Earl S. Maltz, Ira C. Lupu
Judicial Competence And Fundamental Rights, Earl S. Maltz, Ira C. Lupu
Michigan Law Review
In the April 1979 issue of the Michigan Law Review, Professor Ira Lupu added his valuable contribution to the continuing debate on the problem of defining the nature of fundamental rights under the Constitution. In many respects his article is a wholly admirable piece of scholarship, both well-researched and carefully reasoned. However, on one issue - the question of judicial competence to identify the values he defines as fundamental - Professor Lupu's discussion is seriously deficient. This letter will examine the problem of judicial competence and conclude that it is fatal to Professor Lupu's conception of the appropriate role …
Schwartz: Rights Of The Person, Hans A. Linde
Schwartz: Rights Of The Person, Hans A. Linde
Michigan Law Review
A Review of Rights of the Person by Bernard Schwartz
Dietze: America's Political Dilemma, Paul G. Kauper
Dietze: America's Political Dilemma, Paul G. Kauper
Michigan Law Review
A Review of America's Political Dilemma by Gottfried Dietze
The Powers Of The Michigan Civil Rights Commission, Roger C. Cramton
The Powers Of The Michigan Civil Rights Commission, Roger C. Cramton
Michigan Law Review
The thesis of this article is that the Attorney General has misread the language and actions of the constitution-makers. The Michigan Civil Rights Commission is an important and powerful agency of government which has substantial tasks to perform. But it does not possess the exclusive powers envisioned by the Attorney General. Other governmental units-the legislature, the executive, the courts, and the local governments-may continue to play a creative and positive role in fashioning a legal order that accords to every human being in society a reasonable opportunity to realize his potentialities.
Does The Constitution Protect Free Speech, Herbert F. Goodrich
Does The Constitution Protect Free Speech, Herbert F. Goodrich
Michigan Law Review
Many thoughtful men and women, witnessing the suppression of speech, by means both judicial and extra-judicial, in the period through which we have just passed, have reluctantly concluded that our hard won ight of freedom of speech has been lost, swept away in the flood tide of war enthusiasm. They point to the example of the recent candidate for the presidency, Eugene Debs, who is still confined in a federal prison for words he uttered during the war. They call attention to the fact that the fate of Mr. Debs is no worse than that of scores of other persons, …