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Full-Text Articles in Law

Stepping Through Grutter'S Open Doors: What The University Of Michigan Affirmative Action Cases Mean For Race-Conscious Government Decisionmaking, Helen L. Norton Oct 2005

Stepping Through Grutter'S Open Doors: What The University Of Michigan Affirmative Action Cases Mean For Race-Conscious Government Decisionmaking, Helen L. Norton

Faculty Scholarship

In Grutter, a majority of the Court for the first time identified an instrumental justification for race-based government decisionmaking as compelling -- specifically, a public law school’s interest in attaining a diverse student body. Grutter not only recognized the value of diversity in higher education, but left open the possibility that the Court might find similar justifications compelling as well. The switch to instrumental justifications for affirmative action appears a strategic response to the Court’s narrowing of the availability of remedial rationales. A number of thoughtful commentators, however, have reacted to this trend with concern and even dismay, questioning ...


The Jacksonian Makings Of The Taney Court, Mark A. Graber Jan 2005

The Jacksonian Makings Of The Taney Court, Mark A. Graber

Faculty Scholarship

Many twentieth century commentators regard the willingness of Taney Court majorities to declare laws unconstitutional as proof that the justices on that tribunal adjured Jacksonian partisanship upon taking the bench. Old Republicans during the 1820s fulminated against judicial review of state legislation and sought to repeal Section 25 of the Judiciary Act of 1787, but they were apparently frustrated by a Taney Court which continued imposing contract clause and dormant commerce clause limits on state power. This paper demonstrates that Jacksonians in office supported judicial power. Jacksonian animus was more directed at McCulloch v. Maryland than either Marbury v. Madison ...


Settling The West: The Annexation Of Texas, The Louisiana Purchase, And Bush V. Gore, Mark A. Graber Jan 2005

Settling The West: The Annexation Of Texas, The Louisiana Purchase, And Bush V. Gore, Mark A. Graber

Faculty Scholarship

No abstract provided.


Toward Flawlessness, Peter E. Quint Jan 2005

Toward Flawlessness, Peter E. Quint

Faculty Scholarship

No abstract provided.


The Market Participant Doctrine And The Clear Statement Rule, David S. Bogen Jan 2005

The Market Participant Doctrine And The Clear Statement Rule, David S. Bogen

Faculty Scholarship

This paper argues that the market participant exception to the dormant commerce clause reflects the same concerns that led to the clear statement doctrine for application of general legislation to the operations of state governments. The genius of the Constitution was to make federal law directly applicable to individuals instead of through state governments – this made enforcement easier and avoided confrontation between the state and nation. Confrontation in which the federal authorities order the state to act in a particular way should be a result of consideration of the need to do so. But the dormant commerce clause by definition ...