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Articles 1 - 12 of 12
Full-Text Articles in Law
An Original Model Of The Independent Counsel Statute, Ken Gormley
An Original Model Of The Independent Counsel Statute, Ken Gormley
Michigan Law Review
On Friday, October 19, 1973, President Richard M. Nixon took a risky step to de-fang the Watergate investigation that had become a "viper in the bosom" of his Presidency. The U.S. Court of Appeals had just directed him to tum over tape-recordings subpoenaed by Watergate Special Prosecutor Archibald Cox; these taperecordings might prove or disprove White House involvement in the Watergate cover-up. Rather than challenge this ruling, the President conceived a new plan. The White House would prepare summaries of the nine tape-recordings in question, which would be verified by Senator John Stennis, a seventy-two-year-old Democrat from Mississippi, working alone …
The Treaty Power And American Federalism, Curtis A. Bradley
The Treaty Power And American Federalism, Curtis A. Bradley
Michigan Law Review
For much of this century, American foreign affairs law has assumed that there is a sharp distinction between what is foreign and what is domestic, between what is external and what is internal. This assumption underlies a dual regime of constitutional law, in which federal regulation of foreign affairs is subject to a different, and generally more relaxed, set of constitutional restraints than federal regulation of domestic affairs. In what is perhaps its most famous endorsement of this proposition, the Supreme Court stated in 1936 that "the federal power over external affairs [is] in origin and essential character different from …
Equal Rights, Special Rights, And The Nature Of Antidiscrimination Law, Peter J. Rubin
Equal Rights, Special Rights, And The Nature Of Antidiscrimination Law, Peter J. Rubin
Michigan Law Review
Despite the continued belief held by most Americans that certain characteristics should not form the basis for adverse decisions about individuals in employment, housing, public accommodations, and the provision of a wide range of governmental and private services and opportunities, antidiscrimination laws have increasingly come under attack on the ground that they provide members of the group against whom discrimination is forbidden with "special rights." The "special rights" objection has been voiced most strongly, but not exclusively, against laws that seek to prohibit discrimination on the basis of sexual orientation. This line of attack has not always been effective, but …
Rights Against Rules: The Moral Structure Of American Constitutional Law, Matthew D. Adler
Rights Against Rules: The Moral Structure Of American Constitutional Law, Matthew D. Adler
Michigan Law Review
The Bill of Rights, by means of open-ended terms such as "freedom of speech," "equal protection," or "due process," refers to moral criteria, which take on constitutional status by virtue of being thus referenced. We can disagree about whether the proper methodology for judicial application of these criteria is originalist or nonoriginalist. The originalist looks, not to the true content of the moral criteria named by the Constitution, but to the framers' beliefs about that content; the nonoriginalist tries to determine what the criteria truly require, and ignores or gives less weight to the framers' views. Bracketing this disagreement, however, …
The Commerce Clause Meets The Delhi Sands Flower-Loving Fly, John Copeland Nagle
The Commerce Clause Meets The Delhi Sands Flower-Loving Fly, John Copeland Nagle
Michigan Law Review
The protagonist in our story has six legs, is one inch long, and dies two weeks after it emerges from the ground. To the untrained eye, the Delhi Sands Flower-Loving Fly looks like, well, a big fly. Entomologists know better. This particular fly can hover like a hummingbird as it uses its long tubular nose to extract nectar from flowers. It can only live in particular fine soils - the Delhi sands - that appear in patches over a forty square mile stretch from Colton to Ontario, California. Today only a few hundred Delhi Sands Flower-Loving Flies survive in less …
Ultra Vires Takings, Matthew D. Zinn
Ultra Vires Takings, Matthew D. Zinn
Michigan Law Review
When does legislative or administrative regulatory action "go[] too far" and effectively amount to an .appropriation of private property for which the Fifth Amendment requires just compensation? This question has turned out to be one of the thorniest in American constitutional law. The Supreme Court has identified several circumstances in which one can expect to find a regulatory taking, but its numerous pronouncements on the subject give no clear rule to distinguish compensable takings from noncompensable interference with property rights. Notwithstanding its volume, the commentary on the Takings Clause by and large addresses only proper governmental action that rises to …
How Serious Is The Threat Of Impeachment? And To Whom?, Harold Baer Jr.
How Serious Is The Threat Of Impeachment? And To Whom?, Harold Baer Jr.
Michigan Law Review
While a slender volume, The Federal Impeachment Process offers the reader a variety of different insights on this topic, beginning with the debates at the Constitutional Convention and running to the modem-day practice of impeachment trials by committee rather than by the full senate. Impeachment is valuable reading, not just for those of us interested in American history, or those of us who are public officers of the United States, but for every American who wants to understand his or her morning newspaper better. Not only does it lift the veil of darkness surrounding the impeachment process, it provides a …
"We The People" And Our Enduring Values, Susan Bandes
"We The People" And Our Enduring Values, Susan Bandes
Michigan Law Review
Akhil Amar chides legal scholars for believing that the current system of criminal procedure, both substantive and remedial, is constitutionally compelled. He writes, "Scholars should know better, but too few of those who write in criminal procedure do serious, sustained scholarship in constitutional law generally, or in fields like federal jurisdiction and remedies" (p. 115). Amar believes, as I do, that criminal procedure has been impoverished by its failure to connect to "larger themes of constitutional, remedial and jurisdictional theory" (p. 115). But as one who has done serious, sustained scholarship in all the areas Amar mentions - or so …
Amending The Constitution, Erwen Chemerinsky
Amending The Constitution, Erwen Chemerinsky
Michigan Law Review
The ultimate measure of a constitution is how it balances entrenchment and change. On the one hand, a constitution differs from all other laws in that it is much more difficult to revise. For example, the next session of Congress can amend or repeal a statute, but altering the U.S. Constitution requires a complex process involving supermajorities of both houses of Congress and the states. A constitution thus reflects a desire to place a society's core values of governance - such as the structure of government and the rights of individuals - in a document that is hard to revise. …
Takeover: German Reunification Under A Magnifying Glass, Mathias Reimann
Takeover: German Reunification Under A Magnifying Glass, Mathias Reimann
Michigan Law Review
My first personal experience with the unification of my home country was an unlikely encounter in an unlikely place. In July 1990, I was strolling across the Ponte Vecchio in Florence when I saw something so bizarre that it stopped me in my tracks. At the southern end of the bridge, deep in the pedestrian zone - off limits to automobiles - and right in the middle of the tourist crowd, was a lonely car, occupied by four obviously disoriented people. It was not just any car but a small, drab, and amusingly antiquated vehicle puffing bluish smoke from a …
Process, The Constitution, And Substantive Criminal Law, Louis D. Bilionis
Process, The Constitution, And Substantive Criminal Law, Louis D. Bilionis
Michigan Law Review
Criminal law scholars have pined for a substantive constitutional criminal law ever since Henry Hart and Herbert Packer first embraced the notion in the late 1950s and early 1960s. To this day, scholars continue to search for a theory fhat giv:es content to, in Hart's words, "the unmistakable indications that the Constitution means something definite and spμiething serious when it speaks of 'crime.'" To their dismay, the Supreme Court has - with two exceptions - seemingly resisted the notion. The two exceptions are familiar. First came the 1957 case of Lambert v. California, in which the Court came as close …
The Political Economy Of Cooperative Federalism: Why State Autonomy Makes Sense And "Dual Sovereignty" Doesn't, Roderick M. Hills Jr.
The Political Economy Of Cooperative Federalism: Why State Autonomy Makes Sense And "Dual Sovereignty" Doesn't, Roderick M. Hills Jr.
Michigan Law Review
It is commonplace to observe that "dual federalism" is dead, replaced by something variously called "cooperative federalism," "intergovernmental relations," or "marble-cake federalism." According to this conventional wisdom, state and local officials do not enforce merely their own laws in their distinct policymaking sphere. Rather, as analyzed in a voluminous literature, state and local governments also cooperate with the federal government in many policymaking areas, ranging from unemployment insurance to historic preservation. These nonfederal governments help implement federal policy in a variety of ways: by submitting implementation plans to federal agencies, by promulgating regulations, and by bringing administrative actions to enforce …