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Articles 1 - 30 of 64
Full-Text Articles in Law
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 …
Deadly Confusion: Juror Instructions In Capital Cases , Theodore Eisenberg, Martin T. Wells
Deadly Confusion: Juror Instructions In Capital Cases , Theodore Eisenberg, Martin T. Wells
Cornell Law Review
No abstract provided.
Persistence Of The Ancient Regime: Custom Utility And The Common Law In The Nineteenth Century , Andrea C. Loux
Persistence Of The Ancient Regime: Custom Utility And The Common Law In The Nineteenth Century , Andrea C. Loux
Cornell Law Review
No abstract provided.
Three Mistakes About Interpretation, Paul Campos
Three Mistakes About Interpretation, Paul Campos
Michigan Law Review
The single most important word in modem constitutional theory is "interpretation." The single most confusing word in modem constitutional theory is "interpretation." What accounts for this unhappy state of affairs?
I will try to show that Barry Friedman's assertions, as well as others that are but rephrasings of the same basic ideas, are not the common sense truths that so many constitutional theorists assume them to be, but are instead the products of an extraordinarily confused and ultimately incoherent set of assumptions regarding the interpretation of language.
The Constitution, The Legislature, And Unfair Surprise: Toward A Reliance-Based Approach To The Contract Clause, Robert A. Graham
The Constitution, The Legislature, And Unfair Surprise: Toward A Reliance-Based Approach To The Contract Clause, Robert A. Graham
Michigan Law Review
This Note argues that the Court should return to a reliance-based approach to Contract Clause challenges, fashioned loosely along the same lines as the HRID. Although it does not advocate that the Court revivify the rules created by the early decisions, the Note proposes that the Court look to the private parties' expectations and, more specifically, to the reasonableness of those expectations in deciding the clause's applicability to a particular case. Part I provides a brief history of the Contract Clause and its development. This Part follows the clause from the Constitutional Convention through the 1980s to illustrate the Court's …
The Advocacy Of "Constitutional" Conduct, Marshall C. Derks
The Advocacy Of "Constitutional" Conduct, Marshall C. Derks
Indiana Law Journal
No abstract provided.
Article Ii Revisionism, Cass R. Sunstein
Article Ii Revisionism, Cass R. Sunstein
Michigan Law Review
One of the most striking developments of the last decade has been the new use of Article II in public law adjudication. Article II is a prominent feature not only of cases involving the creation of federal institutions that are independent of the President, but also of new disputes involving reviewability, scope of review, and standing.
Professor Krent and Mr. Shenkman have performed a valuable service in spelling out the argument that Article II, rather than Article III, justifies constitutional limits on legislative grants of standing. Indeed, on several important matters, we are very much in agreement. In this brief …
How To Limit Gerrymandering, Michael E Lewyn
How To Limit Gerrymandering, Michael E Lewyn
Michael E Lewyn
An extensive discussion of constitutional issues related to partisan gerrymandering.
The Future Of Our Past: The Legal Mind And The Legacy Of Classical Common-Law Thought, Donald H. Gjerdingen
The Future Of Our Past: The Legal Mind And The Legacy Of Classical Common-Law Thought, Donald H. Gjerdingen
Indiana Law Journal
No abstract provided.
The Social Origins Of Property, Jack M. Beermann, Joseph William Singer
The Social Origins Of Property, Jack M. Beermann, Joseph William Singer
Faculty Scholarship
The takings clause of the United States Constitution requires government to pay compensation when private property is taken for public use.' When government regulates, but does not physically seize, property, the Supreme Court of the United States has had trouble defining when individuals have been deprived of property rights so as to give them a right to compensation. The takings clause serves "to bar Government from forcing some people alone to bear public burdens that, in all fairness and justice, should be borne by the public as a whole."' To determine when a regulation amounts to a "taking" of property …
Of Citizen Suits And Citizen Sunstein, Harold J. Krent, Ethan G. Shenkman
Of Citizen Suits And Citizen Sunstein, Harold J. Krent, Ethan G. Shenkman
Michigan Law Review
After briefly summarizing Lujan and addressing Sunstein's critique, we explore the concept of accountability underlying the creation of a single executive in Article II. We then apply our theory of the unitary executive to several examples of broad grants of statutory standing, concluding that Congress can confer standing on private citizens only if it specifically articulates and individuates the interests whose violation gives rise to a cognizable case. Although we agree with Sunstein's view that broad grants of statutory standing do not necessarily trench upon constitutional values, we ultimately side with Justice Scalia in concluding that universal citizen standing, as …
If The Eye Offend Thee, Turn Off The Color, John Harrison
If The Eye Offend Thee, Turn Off The Color, John Harrison
Michigan Law Review
A Review of The Color-Blind Constitution by Andrew Kull
The Preemption Of State Hazardous And Solid Waste Regulations: The Dormant Commerce Clause Awakens Once More, Michael P. Healy
The Preemption Of State Hazardous And Solid Waste Regulations: The Dormant Commerce Clause Awakens Once More, Michael P. Healy
Law Faculty Scholarly Articles
Last term, for the first time since its watershed decision in Philadelphia v. New Jersey, the Supreme Court considered the extent to which the Commerce Clause of the United States Constitution constrains a state's ability to regulate the disposal of hazardous and solid waste within its borders. In two cases, Chemical Waste Management, Inc. v. Hunt and Fort Gratiot Sanitary Landfill, Inc. v. Michigan Department of Natural Resources, the Supreme Court acted to limit substantially states’ ability to respond independently to the crisis of solid and hazardous waste disposal. The Article describes the harmful impact of the Court's …
The Tribunal In Albania, John Paul Jones
The Tribunal In Albania, John Paul Jones
Law Faculty Publications
Professor Jones explains and critiques "The Organization of Justice and the Constitutional Court," the1992 amendments to Albania's provisional constitution that established the nation's post-revolution judicial system.
The Political Process As Final Solution, Charles M. Freeland
The Political Process As Final Solution, Charles M. Freeland
Indiana Law Journal
No abstract provided.
The Role Of Religious Values In Judicial Decision Making, Scott C. Idleman
The Role Of Religious Values In Judicial Decision Making, Scott C. Idleman
Indiana Law Journal
No abstract provided.
Revisiting Roe V. Wade: Substance And Process In The Abortion Debate, Margaret G. Farrell
Revisiting Roe V. Wade: Substance And Process In The Abortion Debate, Margaret G. Farrell
Indiana Law Journal
No abstract provided.
Supreme Court's Tilt To The Property Right: Procedural Due Process Protections Of Liberty And Property Interests, Jack M. Beermann, Barbara A. Melamed, Hugh F. Hall
Supreme Court's Tilt To The Property Right: Procedural Due Process Protections Of Liberty And Property Interests, Jack M. Beermann, Barbara A. Melamed, Hugh F. Hall
Faculty Scholarship
The Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution provide important protections against government oppression. They provide that government may not deprive any person of "life, liberty or property" without due process of law. In recent decisions, the Supreme Court has appeared willing to strengthen its protection of traditional property interests yet weaken its protection of liberty interests.
It has long been accepted, albeit with controversy, that due process has both procedural and substantive elements. This essay concerns the procedural elements. Procedural due process analysis asks two questions: first, whether there exists a liberty …
Legal Developments: Ethics In Government Federal Advisory Committees, Foreign Conflicts Of Interest, The Constitution, And Dr. Franklin's Snuff Box, Gerald S. Schatz
Legal Developments: Ethics In Government Federal Advisory Committees, Foreign Conflicts Of Interest, The Constitution, And Dr. Franklin's Snuff Box, Gerald S. Schatz
University of the District of Columbia Law Review
No abstract provided.
Legislative Process And Commercial Law: Lessons From The Copyright Act Of 1976 And The Uniform Commercial Code, Harold R. Weinberg, William J. Woodward Jr.
Legislative Process And Commercial Law: Lessons From The Copyright Act Of 1976 And The Uniform Commercial Code, Harold R. Weinberg, William J. Woodward Jr.
Law Faculty Scholarly Articles
Overlap and conflict are inevitable in any legal system in which a federal government and state governments both have authority to enact laws. In our federal system, the Constitution's Supremacy Clause identifies federal law as preeminent in case of conflict. When conflict develops and litigation is required to determine whether state or federal law controls the issue at hand, our system analyzes the problem using the term preemption as a basis for analysis.
This Article explores the federal legislative process that precedes judicial preemption decisions. By studying the legislative process for its sensitivity to preemption issues, possible ways to modify …
Identifying, Protecting And Preserving Individual Rights: Traditional Federal Court Functions, Roger J. Miner '56
Identifying, Protecting And Preserving Individual Rights: Traditional Federal Court Functions, Roger J. Miner '56
Constitutional Law
No abstract provided.
Constitutional Interpretation And Activist Fantasies, Raoul Berger
Constitutional Interpretation And Activist Fantasies, Raoul Berger
Kentucky Law Journal
No abstract provided.
A Constitutional Conspiracy Unmasked: Why "No State" Does Not Mean "No State", Mark A. Graber
A Constitutional Conspiracy Unmasked: Why "No State" Does Not Mean "No State", Mark A. Graber
Faculty Scholarship
No abstract provided.
From The Constitutionality Of Juvenile Curfew Ordinances To A Children's Agenda For The 1990s: Is It Really A Simple Matter Of Supporting Family Values And Recognizing Fundamental Rights?, Michael K. Jordan
Faculty Scholarship
The analysis of the constitutionality of curfew ordinances provides a window into a process that obfuscates rather than clarifies the nature of the constitutional problem. By defining the issue as one governed by rights, we limit our ability to comprehend the larger issue of how the Supreme Court has defined the relationship between minors, the family and society. The issue of the rights of minors as they relate to curfew ordinances offers a measure of solace by reducing the number of disturbing questions which concern cultural change and public policy decisions relating to the family. An understanding of this process …
Fencing Out Politically Unpopular Groups From The Normal Political Processes: The Equal Protection Concerns Of Colorado Amendment Two, Craig Cassin Burke
Fencing Out Politically Unpopular Groups From The Normal Political Processes: The Equal Protection Concerns Of Colorado Amendment Two, Craig Cassin Burke
Indiana Law Journal
No abstract provided.