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Michigan Law Review

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Articles 1 - 30 of 388

Full-Text Articles in Legal History

What Is Remembered, Alice Ristroph May 2020

What Is Remembered, Alice Ristroph

Michigan Law Review

Review of Sarah A. Seo's Policing the Open Road: How Cars Transformed American Freedom.


Conceptualizing Legal Childhood In The Twenty-First Century, Clare Huntington, Elizabeth S. Scott May 2020

Conceptualizing Legal Childhood In The Twenty-First Century, Clare Huntington, Elizabeth S. Scott

Michigan Law Review

The law governing children is complex, sometimes appearing almost incoherent. The relatively simple framework established in the Progressive Era, in which parents had primary authority over children, subject to limited state oversight, has broken down over the past few decades. Lawmakers started granting children some adult rights and privileges, raising questions about their traditional status as vulnerable, dependent, and legally incompetent beings. As children emerged as legal persons, children’s rights advocates challenged the rationale for parental authority, contending that robust parental rights often harm children. And a wave of punitive reforms in response to juvenile crime in the 1990s ...


Fixing America's Founding, Maeve Glass May 2020

Fixing America's Founding, Maeve Glass

Michigan Law Review

Review of Jonathan Gienapp's The Second Creation: Fixing the American Constitution in the Founding Era.


Translating The Constitution, Jack M. Balkin May 2020

Translating The Constitution, Jack M. Balkin

Michigan Law Review

Review of Lawrence Lessig's Fidelity and Constraint: How the Supreme Court Has Read the American Constitution.


Coin, Currency, And Constitution: Reconsidering The National Bank Precedent, David S. Schwartz May 2020

Coin, Currency, And Constitution: Reconsidering The National Bank Precedent, David S. Schwartz

Michigan Law Review

Review of Eric Lomazoff's Reconstructing the National Bank Controversy: Politics and Law in the Early American Republic.


Fascism And Monopoly, Daniel A. Crane May 2020

Fascism And Monopoly, Daniel A. Crane

Michigan Law Review

The recent revival of political interest in antitrust has resurfaced a longstanding debate about the role of industrial concentration and monopoly in enabling Hitler’s rise to power and the Third Reich’s wars of aggression. Proponents of stronger antitrust enforcement argue that monopolies and cartels brought the Nazis to power and warn that rising concentration in the American economy could similarly threaten democracy. Skeptics demur, observing that German big business largely opposed Hitler during the crucial years of his ascent. Drawing on business histories and archival material from the U.S. Office of Military Government’s Decartelization Branch, this ...


Racial Purges, Robert L. Tsai Jan 2020

Racial Purges, Robert L. Tsai

Michigan Law Review

Review of Beth Lew-Williams' The Chinese Must Go: Violence, Exclusion, and the Making of the Alien in America.


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.


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.


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.


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.


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 ...


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.


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.


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 ...


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 ...


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 ...