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Articles 1 - 29 of 29
Full-Text Articles in Legal History
Why The Burger Court Mattered, David A. Strauss
Why The Burger Court Mattered, David A. Strauss
Michigan Law Review
A review of Michael J. Graetz and Linda Greenhouse, The Burger Court and the Rise of the Judicial Right.
When Congress Is Away The President Shall Not Play: Justice Scalia's Concurrence In Nlrb V. Noel Canning, Krista M. Pikus
When Congress Is Away The President Shall Not Play: Justice Scalia's Concurrence In Nlrb V. Noel Canning, Krista M. Pikus
Michigan Law Review First Impressions
On June 26, 2014, the Supreme Court unanimously decided NLRB v. Noel Canning, holding that the Recess Appointments Clause authorizes the president “to fill any existing vacancy during any recess . . . of sufficient length.” Justice Scalia filed a concurring opinion, joined by Chief Justice Roberts, Justice Thomas, and Justice Alito. While Justice Scalia “concurred,” his opinion read more like a dissent. Both the majority and the concurring opinions relied heavily on historical evidence in arriving at their respective opinions. This was expected from Justice Scalia given his method of “new originalism,” which focuses on “the original public …
The Real Formalists, The Real Realists, And What They Tell Us About Judicial Decision And Legal Education, Edward Rubin
The Real Formalists, The Real Realists, And What They Tell Us About Judicial Decision And Legal Education, Edward Rubin
Michigan Law Review
The periodization of history, like chocolate cake, can have some bad effects on us, but it is hard to resist. We realize, of course, that Julius Caesar didn’t think of himself as “Classical” and Richard the Lionhearted didn’t regard the time in which he lived as the Middle Ages. Placing historical figures in subsequently defined periods separates us from them and impairs our ability to understand them on their own terms. But it is difficult to understand anything about them at all if we try to envision history as continuous and undifferentiated. We need periodization to organize events that are …
But How Will The People Know? Public Opinion As A Meager Influence In Shaping Contemporary Supreme Court Decision Making, Tom Goldstein, Amy Howe
But How Will The People Know? Public Opinion As A Meager Influence In Shaping Contemporary Supreme Court Decision Making, Tom Goldstein, Amy Howe
Michigan Law Review
Chief Justice John Roberts famously described the ideal Supreme Court Justice as analogous to a baseball umpire, who simply "applies" the rules, rather than making them. Roberts promised to "remember that it's my job to call balls and strikes and not to pitch or bat." At her own recent confirmation hearings, Elena Kagan demurred, opining that Roberts's metaphor might erroneously suggest that "everything is clear-cut, and that there's no judgment in the process." Based on his 2009 book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, Barry Friedman …
Judicial Compensation And The Definition Of Judicial Power In The Early Republic, James E. Pfander
Judicial Compensation And The Definition Of Judicial Power In The Early Republic, James E. Pfander
Michigan Law Review
Article III's provision for the compensation of federal judges has been much celebrated for the no-diminution provision that forecloses judicial pay cuts. But other features of Article Ill's compensation provision have largely escaped notice. In particular, little attention has been paid to the framers' apparent expectation that Congress would compensate federal judges with salaries alone, payable from the treasury at stated times. Article III's presumption in favor of salary-based compensation may rule out fee-based compensation, which was a common form of judicial compensation in England and the colonies but had grown controversial by the time of the framing. Among other …
What's A Judge To Do? Remedying The Remedy In Institutional Reform Litigation, Susan Poser
What's A Judge To Do? Remedying The Remedy In Institutional Reform Litigation, Susan Poser
Michigan Law Review
Democracy by Decree is the latest contribution to a scholarly literature, now nearly thirty-years old, which questions whether judges have the legitimacy and the capacity to oversee the remedial phase of institutional reform litigation. Previous contributors to this literature have come out on one side or the other of the legitimacy and capacity debate. Abram Chayes, Owen Fiss, and more recently, Malcolm Feeley and Edward Rubin, have all argued that the proper role of judges is to remedy rights violations and that judges possess the legitimate institutional authority to order structural injunctions. Lon Fuller, Donald Horowitz, William Fletcher, and Gerald …
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 …
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 …
Obligations Impaired: Justice Jonathan Jasper Wright And The Failure Of Reconstruction In South Carolina, Caleb A. Jaffe
Obligations Impaired: Justice Jonathan Jasper Wright And The Failure Of Reconstruction In South Carolina, Caleb A. Jaffe
Michigan Journal of Race and Law
Part I of this article, on the historiography of South Carolina Reconstruction, explains the difficulty scholars have had in uncovering the documentary history of Reconstruction, and outlines the development of historical interpretations of Reconstruction from the Nineteenth century Redeemer-era accounts to the revisionists of the 1970's. Part II provides brief biographies of both Justice Wright and William James Whipper. Parts III and IV track the different approaches of Whipper and Wright on two vital issues of their day: (1) whether to repudiate all private debts relating to slavery; and (2) how to construct a homestead law to protect cash-poor landowners. …
Legislatively Directed Judicial Activism: Some Reflections On The Meaning Of The Civil Justice Reform Act, Matthew R. Kipp, Paul B. Lewis
Legislatively Directed Judicial Activism: Some Reflections On The Meaning Of The Civil Justice Reform Act, Matthew R. Kipp, Paul B. Lewis
University of Michigan Journal of Law Reform
With the Civil Justice Reform Act (CJRA), Congress attempted to further a trend that the federal judiciary had undertaken largely on its own initiative. Sensing a critical need to address the mounting expense and delay of federal civil litigation, Congress, like the judiciary, sought to increase the degree of early and active involvement of judges in the adjudicatory process. The result of this mandate has been a further emphasis on the role of the judge as a case manager. As a necessary corollary, the liberty and self-determination of individual litigants-ideals that have historically been seen as philosophical cornerstones of the …
Justices And Presidents: A Political History Of Appointments To The Supreme Court (2d Edition), James S. Portnoy
Justices And Presidents: A Political History Of Appointments To The Supreme Court (2d Edition), James S. Portnoy
Michigan Law Review
A Review of Justices and Presidents: A Political History of Appointments to the Supreme Court (2d edition) by Henry J. Abraham
Preserving The Progressive Spirit In A Conservative Time: The Joint Reform Efforts Of Justice Brandeis And Professor Frankfurter, 1916-1933, David W. Levy, Bruce Allen Murphy
Preserving The Progressive Spirit In A Conservative Time: The Joint Reform Efforts Of Justice Brandeis And Professor Frankfurter, 1916-1933, David W. Levy, Bruce Allen Murphy
Michigan Law Review
On January 28, 1916, President Wilson sent the name of Louis D. Brandeis to the Senate for confirmation as a Justice of the United States Supreme Court. Wilson's act surprised many Americans and sparked one of the bitterest confirmation struggles in the history of the Republic. The nomination and the confirmation that followed also created a painful and highly personal dilemma for the new Justice. This dilemma led Brandeis to a private arrangement that opened an unusual and revealing chapter in the story of the extra judicial activities of American justices. Even more important, the arrangement constitutes a noteworthy episode …
Friedman And Israel: The Justices Of The United States Supreme Court, 1789-1969: Their Lives And Major Opinions, Philip B. Kurland
Friedman And Israel: The Justices Of The United States Supreme Court, 1789-1969: Their Lives And Major Opinions, Philip B. Kurland
Michigan Law Review
A Review of The Justices of the United States Supreme Court, 1789-1969: Their Lives and Major Opinions edited by Leon Friedman and Fred L. Israel
Dawson: A History Of Lay Judges, Spencer L. Kimball
Dawson: A History Of Lay Judges, Spencer L. Kimball
Michigan Law Review
A Review of A History of Lay Judges . By John P. Dawson
Legal History-Joseph Story's Anonymous Law Article, John C. Hogan
Legal History-Joseph Story's Anonymous Law Article, John C. Hogan
Michigan Law Review
The first edition of the Encyclopedia Americana (1829-1833) contains numerous articles on a wide variety of legal subjects, including such topics as Common Law, Jury, Equity, etc. The identity of the author of these articles is not disclosed. There is an occasional footnote, however, which declares: "this article prepared by an eminent American jurist." This suggested the possibility of a lively and interesting manhunt--a search for the "eminent American jurist" who agreed to submit articles on law for the Encyclopedia, but who preferred to remain anonymous.
Recent Books, Michigan Law Review
Recent Books, Michigan Law Review
Michigan Law Review
This department undertakes to note or review briefly current books on law and matters closely related thereto.
Mr. Justice William Johnson And The Common Incidents Of Life: I, A. J. Levin
Mr. Justice William Johnson And The Common Incidents Of Life: I, A. J. Levin
Michigan Law Review
When Justice Oliver Wendell Holmes filed his brief dissenting opinion in Lochner v. New York in 1905 he must have noticed something new on the American horizon. In this now famous opinion he initiated the first steps which were to usher in a new era in American jurisprudence. "General propositions do not decide concrete cases," he announced with axiomatic brevity and, thus, gave the first telling blow to what may well be termed "introspective jurisprudence." This generalization on the subject of generality was followed in the opinion by a more concrete application, the implementing assertion that a reasonable man might …
Mr. Justice William Johnson And The Unenviable Dilemma, A. J. Levin
Mr. Justice William Johnson And The Unenviable Dilemma, A. J. Levin
Michigan Law Review
A policy of judicial avoidance, otherwise referred to as "judicial restraint," has clearly been the dominant trend in the United States Supreme Court since Mr. Justice Holmes began to sit upon that bench at the beginning of this century. There has been an inclination to explain this change as revealing a tendency of the Court to follow a policy of laissez-faire toward the legislative and executive departments, and to stop at this formalistic explanation of this important aspect of the judicial function. The Court's increasing awareness of its own lack of technical competence in dealing with the many complex governmental …
Unreported Michigan Supreme Court Opinions, 1836-1843, Clark F. Norton
Unreported Michigan Supreme Court Opinions, 1836-1843, Clark F. Norton
Michigan Law Review
It is a commonly known fact that, although Michigan was admitted to the Union in 1837 (many of her citizens had claimed statehood for more than a year prior to her formal admission), few opinions of the state supreme court written before 1843 have ever been published. Why a period of almost ten years should have elapsed before the first volume of state reports was issued in 1846 ( with the exception of two volumes of chancery reports), or why the early reporters seem, from a casual examination, to have neglected decisions of the court before 1843, or what happened …
Has The Constitution Gone?, John A. Fairlie
Has The Constitution Gone?, John A. Fairlie
Michigan Law Review
As far back as 1828, Chief Justice Marshall is quoted as saying: "Should Jackson be elected, I shall look upon the government as virtually dissolved." A few years later, when Taney was appointed Chief Justice by Jackson, Daniel Webster wrote: "Judge Story thinks the Supreme Court is gone, and I think so too." Soon afterwards, when the newly constituted Court rendered decisions upholding statutes from which Story dissented, the latter wrote to Judge McLean: "There will not, I fear, ever in our day, be any case in which a law of a State or of Congress will be declared …
The Contribution Of Thomas M. Cooley To Bryce's "American Commonwealth", Everett S. Brown
The Contribution Of Thomas M. Cooley To Bryce's "American Commonwealth", Everett S. Brown
Michigan Law Review
In the preface to The American Commonwealth, James Bryce acknowledged his indebtedness to numerous friends who, in one way or other, aided him in the writing of his book. First on this list is the name of Thomas M. Cooley. An examination of the text and footnotes of The American Commonwealth shows that Bryce was well acquainted with Cooley's published works, especially his Constitutional Limitations and his General Principles of Constitutional Law, which he quoted frequently with approval and respect. Also one finds six references to letters from Judge Cooley or to observations made directly by him to Bryce. But …
Review: Stephen J. Field: Craftsman Of Tbe Law., Everett S. Brown
Review: Stephen J. Field: Craftsman Of Tbe Law., Everett S. Brown
Michigan Law Review
A Review of: STEPHEN J. FIELD: CRAFTSMAN OF TBE LAW
Judges In The Executive Council Of Upper Canada, William Renwick Riddell
Judges In The Executive Council Of Upper Canada, William Renwick Riddell
Michigan Law Review
When in December, 1791, Upper Canada began her separate provincial career, her first Lieutenant-Governor, Colonel John Graves Simcoe, said that the Constitution of the Province was "the very image and transcript of that of Great Britain."'
Book Reviews, Nathan Isaacs, Horace Lafayette Wilgus, Arthur H. Basye, Leonard D. White, Victor H. Lane, Edwin D. Dickinson
Book Reviews, Nathan Isaacs, Horace Lafayette Wilgus, Arthur H. Basye, Leonard D. White, Victor H. Lane, Edwin D. Dickinson
Michigan Law Review
What does a judge do when he decides a case? It would be interesting to collect the answers ranging from those furnished by primitive systems of law in which the judge was supposed to consult the gods to the ultra-modern, rather profane system described to me recently by a retrospective judge: "I make up my mind which way the case ought to be decided, and then I see if I can't get some legal ground to make it stick." Perhaps the widespread impression is the curiously erroneous one lampooned by Gnaeus Flavius (Kantorowitz). The judge is supposed to sit at …
Judicial System Of Michigan Under Governor And Judges, W L. Jenks
Judicial System Of Michigan Under Governor And Judges, W L. Jenks
Michigan Law Review
When the Territory of Michigan came into existence July i, 1805, it found a system of jurisprudence in operation which had been adopted by the Governor and Judges of the Northwest Territory from the laws of Pennsylvania, due no doubt, to the fact that Gov. Arthur St. Clair had lived some years in that State, had been a member of its Board of Censors, a magistrate, and was familiar with its judicial system which provided a-Court of General Quarter Sessions of the Peace in each county composed of Justices of the Peace, a Court of Common Pleas in each County, …
The Establishment Of Judicial Review Ii, Edwin S. Corwin
The Establishment Of Judicial Review Ii, Edwin S. Corwin
Michigan Law Review
In tracing the establishment of judicial review subsequently to the inauguration of the national government it will be important to bear in mind that there are two distinct kinds of judicial review, namely, federal judicial review, or the power of the federal courts to review acts of the State legislatures under the United States Constitution, and Judicial review proper; or the power of the courts to pass upon the constitutionality of acts of the coordinate legislatures. That the Judiciary Act of 1789 contemplated, in the mind of its author, Ellsworth, the exercise of the power of review by the national …
The Establishment Of Judicial Review (I), Edwin S. Corwin
The Establishment Of Judicial Review (I), Edwin S. Corwin
Michigan Law Review
When Gladstone described the Constitution of the United States as "the most wonderful work ever struck off at a given time by the brain and purpose of man," his amiable intention to flatter was forgotten, while what was considered his gross historical error became at once a theme of adverse criticism. Their contemporaries and immediate posterity regarded the work of the Constitutional Fathers as the inspired product of political genius and essentially as a creation out of hand. Subsequently, due partly to the influence of the disciples of Savigny in the field of legal history, partly to the sway of …
Historical Lights From Judicial Decisions, Edward Cahill
Historical Lights From Judicial Decisions, Edward Cahill
Michigan Law Review
The history of a nation is to be looked for in a great variety of places. Its traditions, its public and private records, its religious and social orders, its literature and its laws, each yield copious results to the researches of the historian. The social, religious and economic conditions of a nation at any period of its history, the state of the· domestic relations, the rights of property and of succession, the growth of personal liberty, all these and many more find their accurate expression sooner or later, in the written or unwritten laws of the land. And the movement …
The Relation Of The Federal And The State Judiciary To Each Other, Horace R. Lurton
The Relation Of The Federal And The State Judiciary To Each Other, Horace R. Lurton
Michigan Law Review
In the very cordial invitation extended to me by the distinguished President of your Bar Association to participate in the observance of this occasion it was urged that I should make a short address upon the relations of the Federal and State Judiciary to each other. As a reason for my taking this particular subject it was suggested by him that I had had the advantage of a considerable service under both systems.