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Articles 1 - 4 of 4
Full-Text Articles in Judges
Amendment Creep, Jonathan L. Marshfield
Amendment Creep, Jonathan L. Marshfield
Michigan Law Review
To most lawyers and judges, constitutional amendment rules are nothing more than the technical guidelines for changing a constitution’s text. But amendment rules contain a great deal of substance that can be relevant to deciding myriad constitutional issues. Indeed, judges have explicitly drawn on amendment rules when deciding issues as far afield as immigration, criminal procedure, free speech, and education policy. The Supreme Court, for example, has reasoned that, because Article V of the U.S. Constitution places no substantive limitations on formal amendment, the First Amendment must protect even the most revolutionary political viewpoints. At the state level, courts have …
Thin Rationality Review, Jacob Gersen, Adrian Vermeule
Thin Rationality Review, Jacob Gersen, Adrian Vermeule
Michigan Law Review
Under the Administrative Procedure Act, courts review and set aside agency action that is “arbitrary [and] capricious.” In a common formulation of rationality review, courts must either take a “hard look” at the rationality of agency decisionmaking, or at least ensure that agencies themselves have taken a hard look. We will propose a much less demanding and intrusive interpretation of rationality review—a thin version. Under a robust range of conditions, rational agencies have good reason to decide in a manner that is inaccurate, nonrational, or arbitrary. Although this claim is seemingly paradoxical or internally inconsistent, it simply rests on an …
The Return Of Coverture, Allison Anna Tait
The Return Of Coverture, Allison Anna Tait
Michigan Law Review First Impressions
Once, the notion that husbands and wives were equal partners in marriage seemed outlandish and unnatural. Today, the marriage narrative has been reversed and the prevailing attitude is that marriage has become an increasingly equitable institution. This is the story that Justice Kennedy told in Obergefell v. Hodges, in which he described marriage as an evolving institution that has adapted in response to social change such that discriminatory marriage rules no longer apply. Coverture exemplifies this change: marriage used to be deeply shaped by coverture rules and now it is not. While celebrating the demise of coverture, however, the …
The Good, The Bad, And The Ugly: Reflections Of A Counterclerk, Gil Seinfeld
The Good, The Bad, And The Ugly: Reflections Of A Counterclerk, Gil Seinfeld
Michigan Law Review First Impressions
Everyone has strong feelings about Justice Scalia. Lionized by the political right and demonized by the left, he has been among the most polarizing figures in American public life over the course of the last halfcentury. It is hardly surprising, then, that in the weeks since Justice Scalia’s death, the public discourse surrounding his legacy has exhibited something of a split personality. There have, of course, been plenty of appropriately respectful—even admiring—tributes from some of the Justice’s ideological adversaries; and here and there one of the Justice’s champions has acknowledged, with a hint of lament, the acerbic quality of some …