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Articles 1 - 11 of 11
Full-Text Articles in Law
Why Europe Rejected American Judicial Review - And Why It May Not Matter, Alec Stone Sweet
Why Europe Rejected American Judicial Review - And Why It May Not Matter, Alec Stone Sweet
Michigan Law Review
In this Article, I explore the question of why constitutional review, but not American judicial review, spread across Europe. I will also argue that, despite obvious organic differences between the American and European systems of review, there is an increasing convergence in how review actually operates. I proceed as follows. In Part I, I examine the debate on establishing judicial review in Europe, focusing on the French. In Parts II and III, I contrast the European and the American models of review, and briefly discuss why the Kelsenian constitutional court diffused across Europe. In Part IV, I argue that despite …
First Amendment Equal Protection: On Discretion, Inequality, And Participation, Daniel P. Tokaji
First Amendment Equal Protection: On Discretion, Inequality, And Participation, Daniel P. Tokaji
Michigan Law Review
The tension between equality and discretion lies at the heart of some of the most vexing questions of constitutional law. The considerable discretion that many official decisionmakers wield raises the spectre that violations of equality norms will sometimes escape detection. This is true in a variety of settings, whether discretion lies over speakers' access to public fora, implementation of the death penalty, or the recounting of votes. Is the First Amendment violated, for example, when a city ordinance gives local officials broad discretion to determine the conditions under which political demonstrations may take place? Is equal protection denied where the …
The Progressive Consuption Tax Revisited, Steven A. Bank
The Progressive Consuption Tax Revisited, Steven A. Bank
Michigan Law Review
Over the last decade, it has become increasingly evident that our current federal income tax is too complex, too easily evaded by the wealthy, and too likely to distribute the burdens of taxation to the people least able to bear it. Several years ago, frustration with these realities led to a groundswell of reform proposals, ranging from replacing the current graduated income tax rates with "flat," or proportionate, rates to abolishing the income tax altogether in favor of a national sales tax. While this tax reform frenzy dissipated almost as quickly as it began, the seeds of discontent remain. Professor …
The Serpentine Wall Of Separation, John Witte Jr.
The Serpentine Wall Of Separation, John Witte Jr.
Michigan Law Review
The task of separating the secular from the religious in education is one of magnitude, intricacy, and delicacy, Justice Jackson wrote, concurring in McCollum v. Board of Education, the Supreme Court's first religion in public schools case. "To lay down a sweeping constitutional doctrine" of absolute separation of church and state "is to decree a uniform . . . unchanging standard for countless school boards representing and serving highly localized groups which not only differ from each other but which themselves from time to time change attitudes." If we persist in this experiment, Justice Jackson warned his brethren, "we are …
Foreign Affairs: Presidential Initiative And Congressional Control, David P. Currie
Foreign Affairs: Presidential Initiative And Congressional Control, David P. Currie
Michigan Law Review
Jefferson Powell is one of our foremost scholars of constitutional history. He is particularly adept at bringing extrajudicial sources to bear on constitutional issues. Owing perhaps in part to his extensive service in the Department of Justice, he has a special facility for the use of executive materials; he is surely our leading academic expert on executive interpretation of the Constitution. In his latest book Professor Powell applies his enviable skills to the recurring, fundamental, and controversial question of the division of authority between the President and Congress in the realm of foreign affairs. As is always the case when …
Formalism, Pragmatism, And The Conservative Critique Of The Eleventh Amendment, Michael E. Solimine
Formalism, Pragmatism, And The Conservative Critique Of The Eleventh Amendment, Michael E. Solimine
Michigan Law Review
For many years the Second Amendment to the constitution was construed by most authorities to grant a communal right to bear arms, through state militias and the like. Some years ago Sanford Levinson labeled this interpretation "embarrassing" to liberal scholars. That characterization was deserved, Levinson argued, since liberal academics had been eager to defend expansive interpretations of other rights-granting provisions of the Constitution. But they failed to do so when it came to language in the Second Amendment, which could be plausibly construed to grant an individual right to bear arms. The failure might be attributed, in part, to the …
Lochner'S Feminist Legacy, David E. Bernstein
Lochner'S Feminist Legacy, David E. Bernstein
Michigan Law Review
Professor Julie Novkov's Constituting Workers, Protecting Women examines the so-called Lochner era of American constitutional jurisprudence through the lens of the struggle over the constitutionality of "protective" labor legislation, such as maximum hours and minimum wage laws. Many of these laws applied only to women, and Novkov argues that the debate over the constitutionality of protective laws for women - laws that some women's rights advocates saw as discriminatory legislation against women - ultimately had more important implications for the constitutionality of protective labor legislation more generally. Liberally defined, the Lochner era lasted from the Slaughter-House Cases in 1873 - …
Patriotism: Do We Know It When We See It?, A. Wallace Tashima
Patriotism: Do We Know It When We See It?, A. Wallace Tashima
Michigan Law Review
In a small, triangular plot, a short distance north of the Capitol in Washington, D.C., is the recently dedicated "National Japanese American Memorial to Patriotism." One of the primary purposes of the memorial is to recall publicly the forced removal of Japanese Americans from the Pacific coast at the beginning of World War II and their imprisonment in government internment camps for the duration of the war. The incident is worth recalling, of course, if for no other reason than as a constant reminder that we must not let a similar tragedy befall any other group of Americans. But one …
The Past, Present, And Future Of Bankruptcy Law In America, Todd J. Zywicki
The Past, Present, And Future Of Bankruptcy Law In America, Todd J. Zywicki
Michigan Law Review
As this Review was being written, Congress once again failed to pass the bipartisan bankruptcy-reform bill, although many expect it to be enacted at some point in the near future. At the same time, WorldCom, Enron, Global Crossing, and their ignominous peers continue to set records for the size, expense, and public attention drawn to business bankruptcy. For the first time, consumer bankruptcies surpassed the 1.5 million per year mark, continuing an irresistible upward trend. Meanwhile, law firms announce layoffs and salary freezes in most departments, and bankruptcy professionals prosper amidst the despair, billing $1 million per day on the …
Economic Inequality And The Role Of Law, Richard L. Kaplan
Economic Inequality And The Role Of Law, Richard L. Kaplan
Michigan Law Review
In this ambitious book, famed commentator and analyst Kevin Phillips attempts nothing less than a political history of American economic life with a specific focus on the wealthy. Succeeding far more often than not, Phillips interweaves the development of American technology with the rise and fall of economic fortunes, crafting a compelling tale with significant implications for the formulation of public policy and the laws that implement such policy. Festooned with more than seventy charts and graphs, the book explains how wealth has been accumulated throughout the entire history of the United States. It is full of intriguing insights and …
Cleansing Moments And Retrospective Justice, Margaret M. Russell
Cleansing Moments And Retrospective Justice, Margaret M. Russell
Michigan Law Review
We live in an era of questioning and requestioning long-held assumptions about the role of race in law, both in criminal prosecutions specifically and in the legal process generally. Certainly, the foundational framework is not new; for decades, both legal literature and jurisprudence have explored in great detail the realities of racism in the legal system. Even among those who might prefer to ignore the role of race discrimination in more than two centuries of American law, denial is no longer a viable or intellectually defensible option. Rather, debate now centers upon whether or not the extensive history of American …