Open Access. Powered by Scholars. Published by Universities.®

Legal History Commons

Open Access. Powered by Scholars. Published by Universities.®

Michigan Law Review

Discipline
Keyword
Publication Year

Articles 1 - 30 of 162

Full-Text Articles in Legal History

Review By Justice John Paul Stevens (Ret.), John Paul Stevens Apr 2019

Review By Justice John Paul Stevens (Ret.), John Paul Stevens

Michigan Law Review

Review of Noah Feldman's The Three Lives of James Madison: Genius, Partisan, President.


Privacy, Property, And Publicity, Mark A. Lemley Apr 2019

Privacy, Property, And Publicity, Mark A. Lemley

Michigan Law Review

Review of Jennifer E. Rothman's The Right of Publicity: Privacy Reimagined for a Public World.


What Corporate Veil?, Joshua C. Macey Apr 2019

What Corporate Veil?, Joshua C. Macey

Michigan Law Review

Review of Adam Winkler's We the Corporations: How American Business Won Their Civil Rights.


Failed Protectors: The Indian Trust And Killers Of The Flower Moon, Matthew L.M. Fletcher Apr 2019

Failed Protectors: The Indian Trust And Killers Of The Flower Moon, Matthew L.M. Fletcher

Michigan Law Review

Review of David Grann's Killers of the Flower Moon: The Osage Murders and the Birth of the FBI.


Looking Backward And Forward At The Suspension Clause, G. Edward White Apr 2019

Looking Backward And Forward At The Suspension Clause, G. Edward White

Michigan Law Review

Review of Amanda L. Tyler's Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay.


Is The Exclusionary Rule A Prohibition-Era Relic?, Thomas M. Hardiman, Lauren Gailey Apr 2019

Is The Exclusionary Rule A Prohibition-Era Relic?, Thomas M. Hardiman, Lauren Gailey

Michigan Law Review

Review of Wesley M. Oliver's The Prohibition Era and Policing: A Legacy of Misregulation.


The Outcome Of Influence: Hitler’S American Model And Transnational Legal History, Mary L. Dudziak Apr 2019

The Outcome Of Influence: Hitler’S American Model And Transnational Legal History, Mary L. Dudziak

Michigan Law Review

Review of James Q. Whitman's Hitler's American Model: The United States and the Making of Nazi Race Law.


Which Radicals?, Cass R. Sunstein Apr 2019

Which Radicals?, Cass R. Sunstein

Michigan Law Review

Review of Jeremy McCarter's Young Radicals: In the War for American Ideals.


"The Essential Characteristic": Enumerated Powers And The Bank Of The United States, Richard Primus Dec 2018

"The Essential Characteristic": Enumerated Powers And The Bank Of The United States, Richard Primus

Michigan Law Review

The idea that Congress can legislate only on the basis of its enumerated powers is an orthodox proposition of constitutional law, one that is generally supposed to have been recognized as essential ever since the Founding. Conventional understandings of several episodes in constitutional history reinforce this proposition. But the reality of many of those events is more complicated. Consider the 1791 debate over creating the Bank of the United States, in which Madison famously argued against the Bank on enumerated-powers grounds. The conventional memory of the Bank episode reinforces the sense that the orthodox view of enumerated powers has been ...


Be Careful What You Wish For? Reducing Inequality In The Twenty-First Century, Reuven S. Avi-Yonah, Orli K. Avi-Yonah Apr 2018

Be Careful What You Wish For? Reducing Inequality In The Twenty-First Century, Reuven S. Avi-Yonah, Orli K. Avi-Yonah

Michigan Law Review

A review of Walter Scheidel, The Great Leveler: Violence and the History of Inequality from the Stone Age to the Twenty-First Century.


Why The Burger Court Mattered, David A. Strauss Apr 2018

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.


Sex And Religion: Unholy Bedfellows, Mary-Rose Papandrea Apr 2018

Sex And Religion: Unholy Bedfellows, Mary-Rose Papandrea

Michigan Law Review

A review of Geoffrey R. Stone, Sex and the Constitution: Sex, Religion, and Law from America's Origins to the Twenty-First Century.


The Cunning Of Reason: Michael Klarman's The Framers' Coup, Charles Fried Apr 2018

The Cunning Of Reason: Michael Klarman's The Framers' Coup, Charles Fried

Michigan Law Review

A review of Michael J. Klarman, The Framers' Coup: The Making of the United States Constitution.


Slaves As Plaintiffs, Alfred L. Brophy Apr 2017

Slaves As Plaintiffs, Alfred L. Brophy

Michigan Law Review

Review of Redemption Songs: Suing for Freedom Before Dred Scott by Lea VanderVelde.


State-Action Immunity And Section 5 Of The Ftc Act, Daniel A. Crane, Adam Hester Dec 2016

State-Action Immunity And Section 5 Of The Ftc Act, Daniel A. Crane, Adam Hester

Michigan Law Review

The state-action immunity doctrine of Parker v. Brown immunizes anticompetitive state regulations from preemption by federal antitrust law so long as the state takes conspicuous ownership of its anticompetitive policy. In its 1943 Parker decision, the Supreme Court justified this doctrine, observing that no evidence of a congressional will to preempt state law appears in the Sherman Act’s legislative history or context. In addition, commentators generally assume that the New Deal court was anxious to avoid re-entangling the federal judiciary in Lochner-style substantive due process analysis. The Supreme Court has observed, without deciding, that the Federal Trade Commission ...


The Sweeping Domestic War Powers Of Congress, Saikrishna Bangalore Prakash Jun 2015

The Sweeping Domestic War Powers Of Congress, Saikrishna Bangalore Prakash

Michigan Law Review

With the Habeas Clause standing as a curious exception, the Constitution seems mysteriously mute regarding federal authority during invasions and rebellions. In truth, the Constitution speaks volumes about these domestic wars. The inability to perceive the contours of the domestic wartime Constitution stems, in part, from unfamiliarity with the multifarious emergency legislation enacted during the Revolutionary War. During that war, state and national legislatures authorized the seizure of property, military trial of civilians, and temporary dictatorships. Ratified against the backdrop of these fairly recent wartime measures, the Constitution, via the Necessary and Proper Clause and other provisions, rather clearly augmented ...


Saving Originalism, Robert J. Delahunty, John Yoo Apr 2015

Saving Originalism, Robert J. Delahunty, John Yoo

Michigan Law Review

It is sometimes said that biographers cannot help but come to admire, even love, their subjects. And that adage seems to ring true of Professor Amar, the foremost “biographer” of the Constitution. He loves it not just as a governing structure, or a political system, but as a document. He loves the Constitution in the same way that a fan of English literature might treasure Milton’s Paradise Lost or Shakespeare’s Macbeth. He loves the Constitution not just for the good: the separation of powers, federalism, and the Bill of Rights. He also loves it for its nooks and ...


A Pragmatic Republic, If You Can Keep It, William R. Sherman Apr 2014

A Pragmatic Republic, If You Can Keep It, William R. Sherman

Michigan Law Review

These things we know to be true: Our modern administrative state is a leviathan unimaginable by the Founders. It stands on thin constitutional ice, on cracks between the executive, legislative, and judicial branches. It burdens and entangles state and local governments in schemes that threaten federalism. And it presents an irresolvable dilemma regarding democratic accountability and political independence. We know these things to be true because these precepts animate some of the most significant cases and public law scholarship of our time. Underlying our examination of administrative agencies is an assumption that the problems they present would have been bizarre ...


Racial Templates, Richard Delgado, Juan F. Perea Apr 2014

Racial Templates, Richard Delgado, Juan F. Perea

Michigan Law Review

This riveting tale of greed, international skullduggery, and behind-the-scenes heroism recounts the events that led up to America’s “wicked war” with Mexico. It depicts how expansionist ambitions in high circles fueled jingoistic propaganda (pp. 25, 34–35, 58), fed a public eager for national muscle flexing (pp. 57, 103, 108), and set the stage for a military skirmish in a disputed region between two rivers (pp. 75–77, 95, 100, 138) that provided the pretext for a savage and short-lived military campaign against the weak new nation of Mexico in which the U.S. Army, under General Scott, marched ...


Oh, The Treatise!, Richard A. Danner Apr 2013

Oh, The Treatise!, Richard A. Danner

Michigan Law Review

In his foreword to the Michigan Law Review's 2009 Survey of Books Related to the Law, my former Duke colleague Erwin Chemerinsky posed the question: "[W]hy should law professors write?" In answering, Erwin took as a starting point the well-known criticisms of legal scholarship that Judge Harry Edwards published in this journal in 1992. Judge Edwards indicted legal scholars for failing to engage the practical problems facing lawyers and judges, writing instead for the benefit of scholars in law and other disciplines rather than for their professional audiences. He characterized "practical" legal scholarship as both prescriptive (aiming to ...


Family History: Inside And Out, Kerry Abrams Apr 2013

Family History: Inside And Out, Kerry Abrams

Michigan Law Review

The twenty-first century has seen the dawn of a new era of the family, an era that has its roots in the twentieth. Many of the social and scientific phenomena of our time - same-sex couples, in vitro fertilization, single-parent families, international adoption - have inspired changes in the law. Legal change has encompassed both constitutional doctrine and statutory innovations, from landmark Supreme Court decisions articulating a right to procreate (or not), a liberty interest in the care, custody, and control of one's children, and even a right to marry, to state no-fault divorce statutes that have fundamentally changed the way ...


Neither Sad Nor Strange: Recovering The Logic Of Anticruelty Organizations In Gilded Age America, Bryn Resser Pallesen Apr 2013

Neither Sad Nor Strange: Recovering The Logic Of Anticruelty Organizations In Gilded Age America, Bryn Resser Pallesen

Michigan Law Review

In 1877, the American Humane Association ("AHA") incorporated as one of the first national organizations dedicated to the protection of animals. Nine years later, it amended its constitution to include the protection of children in its chartered mission. By 1908, there were 354 anticruelty organizations in the United States, 185 of which were, like the AHA, humane societies invested in the welfare of both animals and children (pp. 2-3). As primary source documents reveal, Gilded Age humanitarians viewed the joint pursuit of child and animal protection as entirely sensible (p. 5). One of the Illinois Humane Society's founding directors ...


A Time For Presidential Power? War Time And The Constrained Executive, David Levine Apr 2013

A Time For Presidential Power? War Time And The Constrained Executive, David Levine

Michigan Law Review

Between 2002 and 2008 I served as an intelligence officer in the U.S. Air Force. Though I had been deployed overseas several times, my primary place of duty was in the United States. When I landed at Baghdad International Airport in June 2006, however, several things immediately changed for me as a result of military regulations. I had to carry my sidearm and dog tags at all times. I could not eat anywhere other than a U.S. military installation. I could not drink alcohol. My pay was a bit higher. Personally, I was more vigilant, more aware of ...


Restoring Restitution To The Canon, Douglas Laycock Apr 2012

Restoring Restitution To The Canon, Douglas Laycock

Michigan Law Review

The Restatement (Third) of Restitution and Unjust Enrichment brings clarity and light to an area of law long shrouded in fogs that linger from an earlier era of the legal system. It makes an important body of law once again accessible to lawyers and judges. This new Restatement should be on every litigator's bookshelf, and a broad set of transactional lawyers and legal academics would also do well to become familiar with it. Credit for this Restatement goes to its Reporter, Professor Andrew Kull. Of course his work benefited from the elaborate processes of the American Law Institute, with ...


Regulating By Repute, David Zaring Apr 2012

Regulating By Repute, David Zaring

Michigan Law Review

Is regulation a hopeless cause? Many thoughtful observers spend a lot of time enumerating all of the reasons why it is doomed to fail. The entire field of public choice, with impeccable logic, posits the likely corruption of every bureaucrat. And if corruption cannot explain the failure of regulation, the atrophy that comes from lack of competition-there is just one government, after all, and it does not have a profit motive-may be just as rich a vein to mine. It could also be that the legal system itself, with its myriad complexities, checks, and procedural requirements, may ossify to the ...


Facades Of Justice, Norman W. Spaulding Apr 2012

Facades Of Justice, Norman W. Spaulding

Michigan Law Review

Representing Justice is a book of encyclopedic proportions on the iconography of justice and the organization of space in which adjudication occurs. Professors Judith Resnik and Dennis Curtis have gathered a provocative array of images, ranging from the scales of the Babylonian god Shamash-"judge of heaven and earth"-on a 4,200-year-old seal (pp. 18- 19 & fig. 23), and a 600-year-old painting of Saint Michael weighing the souls at the Last Judgment with sword and scales in hand (p. 23 fig. 25) to the tiny Cook County Courthouse in Grand Marais, Minnesota, 110 miles north of Duluth (p. 372 fig. 226), and the millennial opening of a spectacular new courthouse for the International Tribunal for the Law of the Sea in Hamburg, Germany (p. 266 fig. 176). A more richly conceived catalogue of the development of specialized courthouses from multipurpose buildings and the art that adorns adjudicative space is hard to imagine. Part history, part art history, part architectural theory, and part meditation on the relationship between adjudication and political legitimacy in the spirit of Jeremy Bentham, the book poses fundamental questions about the trajectory of liberal justice in the twenty-first century: is adjudication in public space essential to the rule of law in democratic societies? Can the resolution of civil and criminal disputes be privatized without compromising democratic values? Is justice primarily procedural, linked to courts and adjudication; primarily substantive, tied to substantive rights and the popularly accountable branches of government; or primarily normative, a set of ideals or theories against which the actions of any people and their government may be assessed? Most significantly, what is the relationship between justice ...


Theorizing American Freedom, Anthony O'Rourke Apr 2012

Theorizing American Freedom, Anthony O'Rourke

Michigan Law Review

Some intellectual concepts once central to America's constitutional discourse are, for better and worse, no longer part of our political language. These concepts may be so alien to us that they would remain invisible without carefully reexamining the past to challenge the received narratives of America's constitutional development. Should constitutional theorists undertake this kind of historical reexamination? If so, to what extent should they be willing to stray from the disciplinary norms that govern intellectual history? And what normative aims can they reasonably expect to achieve by exploring ideas in our past that are no longer reflected in ...


Race And Constitutional Law Casebooks: Recognizing The Proslavery Constitution, Juan F. Perea Apr 2012

Race And Constitutional Law Casebooks: Recognizing The Proslavery Constitution, Juan F. Perea

Michigan Law Review

Federalist No. 54 shows that part of Madison's public defense of the Constitution included the defense of some of its proslavery provisions. Madison and his reading public were well aware that aspects of the Constitution protected slavery. These aspects of the Constitution were publicly debated in the press and in state ratification conventions. Just as the Constitution's protections for slavery were debated at the time of its framing and ratification, the relationship between slavery and the Constitution remains a subject of debate. Historians continue to debate the centrality of slavery to the Constitution. The majority position among historians ...


Deconstructing 'Just And Proper': Arguments In Favor Of Adopting The 'Remedial Purpose' Approach To Section 10(J) Labor Injunctions, William K. Briggs Oct 2011

Deconstructing 'Just And Proper': Arguments In Favor Of Adopting The 'Remedial Purpose' Approach To Section 10(J) Labor Injunctions, William K. Briggs

Michigan Law Review

Congress, through the 1947 addition of section 10(j) to the National Labor Relations Act, authorized district courts to grant preliminary injunctive relief for unfair labor practices if they deem such relief "just and proper." To this day a circuit split persists over the correct interpretation of this "just and proper" standard. Some circuits interpret "just and proper" to require application of the traditional equitable principles approach that normally governs preliminary injunctions. Other circuits interpret "just and proper" to require an analysis of whether injunctive relief is necessary to preserve the National Labor Relations Board's remedial power This Note ...


Williams V. Lee And The Debate Over Indian Equality, Bethany R. Berger Jun 2011

Williams V. Lee And The Debate Over Indian Equality, Bethany R. Berger

Michigan Law Review

Williams v. Lee (1959) created a bridge between century-old affirmations of the immunity of Indian territories from state jurisdiction and the tribal self-determination policy of the twentieth century. It has been called the first case in the modern era of federal Indian law. Although no one has written a history of the case, it is generally assumed to be the product of a timeless and unquestioning struggle of Indian peoples for sovereignty. This Article, based on interviews with the still-living participants in the case and on examination of the congressional records, Navajo council minutes, and Supreme Court transcripts, records, and ...