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

Digital Commons Network™

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

Michigan Law Review

Discipline
Keyword
Publication Year

Articles 1171 - 1200 of 8523

Full-Text Articles in Entire DC Network

Mediated Popular Constitutionalism, Barry Friedman Aug 2003

Mediated Popular Constitutionalism, Barry Friedman

Michigan Law Review

There are divergent views in the legal academy concerning judicial review, but at their core these views share a common (and possibly flawed) premise. The premise is that the exercise of judicial review is countermajoritarian in nature. There is a regrettable lack of clarity in the relevant scholarship about what "countermajoritarian" actually means. At bottom it often seems to be a claim, and perhaps must be a claim, that when judges invalidate governmental decisions based upon constitutional requirements, they act contrary to the preferences of the citizenry. Some variation on this premise seems to drive most normative scholarship regarding judicial …

Go to article

Legislating Chevron, Elizabeth Garrett Aug 2003

Legislating Chevron, Elizabeth Garrett

Michigan Law Review

One of the most significant administrative law cases, Chevron v. Natural Resources Defense Council, lnc., is routinely referred to as the "counter-Marbury." The reference suggests that Chevron's command to courts to defer to certain reasonable agency interpretations of statutes is superficially an uneasy fit with the declaration in Marbury v. Madison that "[i]t is emphatically the province and duty of the judicial department to say what the law is." According to the consensus view, Chevron deference is consistent with Marbury, as long as Congress has delegated to agencies the power to make policy by interpreting ambiguous statutory language or filling …

Go to article

Comparative Constitutionalism In A New Key, Paul W. Kahn Aug 2003

Comparative Constitutionalism In A New Key, Paul W. Kahn

Michigan Law Review

Law is a symbolic system that structures the political imagination. The "rule of law" is a shorthand expression for a cultural practice that constructs a particular understanding of time and space, of subjects and groups, as well as of authority and legitimacy. It is a way of projecting, maintaining, and discovering meaning in the world of historical events and political possibilities. The rule of law - as opposed to the techniques of lawyering - is not the possession of lawyers. It is a characterization of the polity, which operates both descriptively and normatively in public perception. Ours, we believe, is …

Go to article

The Irrepressible Myth Of Marbury, Michael Stokes Paulsen Aug 2003

The Irrepressible Myth Of Marbury, Michael Stokes Paulsen

Michigan Law Review

Nearly all of American constitutional law today rests on a myth. The myth, presented as standard history both in junior high civics texts and in advanced law school courses on constitutional law, runs something like this: A long, long time ago - 1803, if the storyteller is trying to be precise - in the famous case of Marbury v. Madison, the Supreme Court of the United States created the doctrine of "judicial review." Judicial review is the power of the Supreme Court to decide the meaning of the Constitution and to strike down laws that the Court finds unconstitutional. As …

Go to article

Why Europe Rejected American Judicial Review - And Why It May Not Matter, Alec Stone Sweet Aug 2003

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 …

Go to article

Alternative Forms Of Judicial Review, Mark Tushnet Aug 2003

Alternative Forms Of Judicial Review, Mark Tushnet

Michigan Law Review

The invention in the late twentieth century of what I call weak-form systems of judicial review provides us with the chance to see in a new light some traditional debates within U.S. constitutional law and theory, which are predicated on the fact that the United States has strong-form judicial review. Strong- and weak-form systems operate on the level of constitutional design, in the sense that their characteristics are specified in constitutional documents or in deep-rooted constitutional traditions. After sketching the differences between strong- and weak-form systems, I turn to design features that operate at the next lower level. Here legislatures …

Go to article

Recent Books, Michigan Law Review Aug 2003

Recent Books, Michigan Law Review

Michigan Law Review

A list of books recenlty received by Michigan Law Review.

Go to article

Contents Of Volume 101: Subject Index, Articles, Notes, Authors, Books Reviewed, Michigan Law Review Aug 2003

Contents Of Volume 101: Subject Index, Articles, Notes, Authors, Books Reviewed, Michigan Law Review

Michigan Law Review

No abstract provided.

Go to article

The New Imperialism: Violence, Norms, And The "Rule Of Law", Rosa Ehrenreich Brooks Jun 2003

The New Imperialism: Violence, Norms, And The "Rule Of Law", Rosa Ehrenreich Brooks

Michigan Law Review

The past decade has seen a surge in American and international efforts to promote "the rule of law" around the globe, especially in postcrisis and transitional societies. The World Bank and multinational corporations want the rule of law, since the sanctity of private property and the enforcement of contracts are critical to modern conceptions of the free market. Human-rights advocates want the rule of law since due process and judicial checks on executive power are regarded as essential prerequisites to the protection of substantive human rights. In the wake of September 11, international and national-security experts also want to promote …

Go to article

Reinforcing Representation: Congressional Power To Enforce The Fourteenth And Fifteenth Amendments In The Rehnquist And Waite Courts, Ellen D. Katz Jun 2003

Reinforcing Representation: Congressional Power To Enforce The Fourteenth And Fifteenth Amendments In The Rehnquist And Waite Courts, Ellen D. Katz

Michigan Law Review

A large body of academic scholarship accuses the Rehnquist Court of "undoing the Second Reconstruction," just as the Waite Court has long been blamed for facilitating the end of the First. This critique captures much of what is meant by those generally charging the Rehnquist Court with "conservative judicial activism." It posits that the present Court wants to dismantle decades' worth of federal antidiscrimination measures that are aimed at the "reconstruction" of public and private relationships at the local level. It sees the Waite Court as having similarly nullified the civil-rights initiatives enacted by Congress following the Civil War to …

Go to article

Government Responsibility For The Acts Of Jailhouse Informants Under The Sixth Amendment, Maia Goodell Jun 2003

Government Responsibility For The Acts Of Jailhouse Informants Under The Sixth Amendment, Maia Goodell

Michigan Law Review

Once a criminal investigation has identified a suspect, and adversarial proceedings have begun, the Sixth Amendment confers a right to be represented by counsel at the "critical stages" of the process. The Supreme Court has made clear that the government cannot circumvent this requirement merely by designating a civilian informant to engage in questioning on its behalf. Less clear is when the government is responsible for the actions of an informant; particularly in the case of jailhouse informants, incarcerated individuals who question fellow inmates, government responsibility is a difficult issue for which no clear legal standard has emerged. An examination …

Go to article

Recent Books, Michigan Law Review Jun 2003

Recent Books, Michigan Law Review

Michigan Law Review

No abstract provided.

Go to article

First Amendment Equal Protection: On Discretion, Inequality, And Participation, Daniel P. Tokaji Jun 2003

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 …

Go to article

Toward A More Communitarian Future? Fukuyama As The Fundamentalist Secular Humanist, June Carbone May 2003

Toward A More Communitarian Future? Fukuyama As The Fundamentalist Secular Humanist, June Carbone

Michigan Law Review

With The End of History and the Last Man, Francis Fukuyama established himself as the prophet of liberal democracy and free markets, heralding their triumph as the only form of governance capable of commanding legitimacy. Asked to reflect on his predictions a decade later, Fukuyama concluded that the greatest threat to liberalism comes from biotechnology because it alone has the potential to remake the human nature that liberal democracy was designed to serve. Fukuyama makes a compelling case that biotechnology may produce developments that should concern us; he is ironically less persuasive in articulating a liberal-democratic framework for governing the …

Go to article

Lochner'S Feminist Legacy, David E. Bernstein May 2003

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 - …

Go to article

The New Privacy, Paul M. Schwartz, William M. Treanor May 2003

The New Privacy, Paul M. Schwartz, William M. Treanor

Michigan Law Review

In 1964, as the welfare state emerged in full force in the United States, Charles Reich published The New Property, one of the most influential articles ever to appear in a law review. Reich argued that in order to protect individual autonomy in an "age of governmental largess," a new property right in governmental benefits had to be recognized. He called this form of property the "new property." In retrospect, Reich, rather than anticipating trends, was swimming against the tide of history. In the past forty years, formal claims to government benefits have become more tenuous rather than more secure. …

Go to article

Foreword: "Just Do It!": Title Ix As A Threat To University Autonomy, Richard A. Epstein May 2003

Foreword: "Just Do It!": Title Ix As A Threat To University Autonomy, Richard A. Epstein

Michigan Law Review

For a short time I was stymied to identify a suitable theme for the Foreword to the 2003 Survey of Books in the Michigan Law Review. The task is surely a daunting one, because it is never possible to write a Foreword that offers the reader a Cook's Tour of the many distinguished offerings reviewed in its pages. Therefore I hope to link one broad theme to one narrow topic, knowing that at first it may look as though they have little in common. In taking this approach, I prefer dangerous shoals to well-marked channels. I shall therefore begin with …

Go to article

Civil Liberties And The Terrorism Prevention Paradigm: The Guilt By Association Critique, Robert M. Chesney May 2003

Civil Liberties And The Terrorism Prevention Paradigm: The Guilt By Association Critique, Robert M. Chesney

Michigan Law Review

Faysal Galab is a twenty-seven-year-old American citizen of Yemeni descent who was born and raised in Buffalo, New York. He is married, has three children, and used to run a gas station in the Buffalo suburb of Lackawanna. Perhaps you have heard of him; he will be spending some or all of the next ten years in federal prison because in spring of 2001 he and six other Lackawanna residents traveled to Afghanistan and trained with Al Qaeda.

Go to article

Formalism, Pragmatism, And The Conservative Critique Of The Eleventh Amendment, Michael E. Solimine May 2003

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 …

Go to article

The Impossibility Of Citizenship, Peter J. Spiro May 2003

The Impossibility Of Citizenship, Peter J. Spiro

Michigan Law Review

These are interesting times at the constitutional margins. Questions about where the Constitution takes up and leaves off are more frequently in play; one can no longer so readily assume the Constitution to supply an authoritative metric as we confront prominent cases of nonapplication. At the same time, the increasing robustness of international norms has prompted a vigorous reconsideration of their relationship to domestic ones. Where the twentieth century was marked by deep segmentation among national legal regimes, with minimal transboundary interpenetration, recent years have seen the advent of complex, overlapping regimes: subnational, national, regional, and global, public, and private. …

Go to article

Standing Up To Wall Street (And Congress), Richard W. Painter May 2003

Standing Up To Wall Street (And Congress), Richard W. Painter

Michigan Law Review

In 1992, Arthur Levitt co-chaired a fundraising dinner for William Clinton. The dinner raised $750,000 (p. 7). Clinton was elected President, and Levitt got the job he wanted: Chairman of the Securities and Exchange Commission. Levitt, a former Chairman of the American Stock Exchange and a connected Democrat, was well qualified for the job. His, however, became a pyrrhic victory when accountants, issuers, broker-dealers, and other special interests used their own political connections to frustrate just about everything he sought to do. Levitt tells the story of his struggle against these well-funded interests in Take on the Street. One of …

Go to article

Discussing The First Amendment, Christina E. Wells May 2003

Discussing The First Amendment, Christina E. Wells

Michigan Law Review

Since the First Amendment's inception, Americans have agreed that free expression is foundational to our democratic way of life. Though we agree on this much, we have rarely agreed on much else regarding the appropriate parameters of free expression. Is the First Amendment absolute or does it allow some regulation of speech? Should the First Amendment protect offensive speech, pornography, flag-burning? Why do we protect speech - to promote the search for truth, to promote self-governance, or to protect individual autonomy?2 History is rife with disagreements regarding these issues to which there are no definitive answers. Certainly, the text of …

Go to article

Every Move You Make: How Stories Shape The Law Of Stalking, Anna-Rose Mathieson May 2003

Every Move You Make: How Stories Shape The Law Of Stalking, Anna-Rose Mathieson

Michigan Law Review

Bunny-boiler is now an official part of the English language. This word - taken from the scene in Fatal Attraction where Glenn Close's character boils the pet rabbit of the man she has been stalking - was unknown fifteen years ago. Although still not in common parlance, "bunny-boiler" has made its way far enough into our culture that a brief explanation of its source can conjure up an image of the obsessive, vindictive stalker it describes. Along with the entrance of this word into our language has come an explosive growth in laws punishing stalkers. Before 1990, no state in …

Go to article

Ifeminism, Ashlie Warnick May 2003

Ifeminism, Ashlie Warnick

Michigan Law Review

Laws should be judged not by their words or intentions, but by their effects and consequences. When government enacts laws designed to benefit one group, society should judge those laws first by examining whether they have, in practice, provided a net benefit to the law's intended beneficiaries. Next, any such benefit must be weighed against the costs imposed on the rest of society. If the benefits outweigh the costs, this is a socially efficient law. Government should repeal a law when the costs it imposes outweigh its benefits. When laws do not provide a net benefit to the group they …

Go to article

Who Cares About Courts? Creating A Constitutency For Judicial Independence In Africa, Mary L. Dudziak May 2003

Who Cares About Courts? Creating A Constitutency For Judicial Independence In Africa, Mary L. Dudziak

Michigan Law Review

While American scholars and judges generally assume that it is beneficial to insulate courts from politics, Jennifer Widner offers a contrasting perspective from another region of the world. In Building the Rule of Law: Francis Nyalali and the Road to Judicial Independence in Africa, Widner examines the role of courts and judicial review in democratization in Africa. She focuses on the role of one judge, a man who would see himself as embodying a role in Tanzania similar to that of Chief Justice John Marshall in the United States. Francis Nyalali, Chief Justice of the High Court of Tanzania, worked …

Go to article

Individual Vulnerability And Cultural Transformation, Eric J. Mitnick May 2003

Individual Vulnerability And Cultural Transformation, Eric J. Mitnick

Michigan Law Review

Perhaps the most pressing problem in multicultural theory and practice today is the problem of individual vulnerability. Most interested theorists and multicultural states now accept the basic premise that some degree of state accommodation of minority cultural practice is required as a matter of justice. Debate then shifts to the best justifications for, and the appropriate extent of, such groupdifferentiated policy. Too often lost amid these discussions is the plight of vulnerable members of accommodated cultural groups: individuals subject to repression within their cultural groups, but who lose a critical aspect of their identities upon exit; individuals who would retain …

Go to article

More Process Than Peace: Legitimacy, Compliance, And The Oslo Accords, Orde F. Kittrie May 2003

More Process Than Peace: Legitimacy, Compliance, And The Oslo Accords, Orde F. Kittrie

Michigan Law Review

The 21st century has inherited a number of bloody and long-unresolved intranational conflicts, including those in Kashmir, Northern Ireland, Burundi, Cyprus, Colombia, the Congo, the Philippines, and the Holy Land. Negotiated efforts to resolve these conflicts through legally binding peace settlements have been attempted from time to time, but without lasting success. Numerous negotiators' memoirs, political science books, and historians' tomes have been devoted to the subject of peace negotiations. But relatively little has been written about peace negotiations from a legal perspective. In particular, the legal literature contains virtually no discussion of what in the contents of a bilateral …

Go to article

The New Leviathan, Dennis Patterson May 2003

The New Leviathan, Dennis Patterson

Michigan Law Review

Reputation in any field is an elusive phenomenon: part notoriety, part honor, part fame, part critical assessment. Even in legal scholarship it has an uneven, unpredictable quality. It is hard to imagine a book by a law professor that has had more immediate impact on world leaders than Philip Bobbitt's The Shield of Achilles. Much of the national-security strategy devised by the U.S. administration after the September 11 attacks expresses ideas Bobbitt conceived long before; and from a different point on the political spectrum is the Archbishop of Canterbury, whose televised nationwide address in January explicitly took the book as …

Go to article

Attitudes About Attitudes, Michael J. Gerhardt May 2003

Attitudes About Attitudes, Michael J. Gerhardt

Michigan Law Review

Attitudes about the Supreme Court differ sharply, particularly among academics. Law professors believe the Constitution and other laws constrain the Court, while most political scientists do not. These different perspectives on justices' fidelity to the law ensure that legal scholars and political scientists have little to say about the Court that is of interest to each other. As a result, it should not be surprising that most legal scholars are unfamiliar with Harold Spaeth and Jeffrey Segal, the two political scientists most closely associated with the view that the law does not constrain the justices from voting their policy preferences. …

Go to article

Appellate Courts Inside And Out, Maxwell L. Stearns May 2003

Appellate Courts Inside And Out, Maxwell L. Stearns

Michigan Law Review

While the United States Supreme Court has been the object of seemingly endless scholarly commentary, the United States Courts of Appeals are just now coming into their own as a subject of independent academic inquiry. This is an important development when one considers that the vast bulk of relevant precedents governing most federal court litigation comes not from the Supreme Court, but rather from the United States Courts of Appeals. Because relatively few courts of appeals decisions are reviewed in the Supreme Court, with rare exception, the federal circuit courts provide the functional equivalent of that Court's proverbial "last word." …

Go to article

First Prev Next Last