Open Access. Powered by Scholars. Published by Universities.®
- Keyword
-
- Constitution (5)
- United States Supreme Court (4)
- Constitutional interpretation (3)
- History (3)
- Private property (2)
-
- Statutory interpretation (2)
- Compensation (1)
- Conservatism (1)
- Constitutional history (1)
- Constitutional violations (1)
- Deliberation (1)
- Democracy (1)
- Equal Protection Clause (1)
- Essays (1)
- Fairness (1)
- Federalism (1)
- Fifth Amendment (1)
- Foreclosures (1)
- Government actors (1)
- Government officials (1)
- Governmental action (1)
- Home Building and Loan Assn. v. Blaisdell (1)
- Homes (1)
- Judicial review (1)
- Land (1)
- Lawmaking (1)
- Madison (James) (1)
- Materialism (1)
- Minnesota Mortgage Moratorium Act (1)
- Monroe v. Pape (1)
Articles 1 - 13 of 13
Full-Text Articles in Law
Postmodern Constitutionalism As Materialism, Francis J. Mootz Iii
Postmodern Constitutionalism As Materialism, Francis J. Mootz Iii
Michigan Law Review
Professor J.M. Balkin's recent essay in the Michigan Law Review assesses the implications that postmodernism holds for constitutional law. Although I agree with Balkin about many of the specific issues that he believes must be addressed in a postmodern constitutionalism, I find that his manner of talking about postmodernism is unproductive in an important way. Balkin quite correctly argues that a postmodern constitutionalism should not mimic the fragmented and superficial culture of postmodernity, nor should it devolve simply to normative claims that postmodernity is desirable and should be embraced or adopted within the law. However, Balkin's thesis that a postmodern …
The Meaning Of "Under Color Of" Law, Steven L. Winter
The Meaning Of "Under Color Of" Law, Steven L. Winter
Michigan Law Review
The argument proceeds as follows. In Part I, I examine why the conceptual problem of who or what is "the State" is so intractable. In Part II, I present the historical evidence that establishes beyond doubt the pedigree and meaning of the phrase under color of law. I explain why Frankfurter would have indulged in such an obvious historical error to take the position he did. I suggest that, as was the case with the invention of modem standing doctrine, Frankfurter was here engaged in a stealthy, anachronistic campaign against the jurisprudence of the Lochner era - attempting to …
A Failed Critique Of State Constitutionalism, David Schuman
A Failed Critique Of State Constitutionalism, David Schuman
Michigan Law Review
James A. Gardner begins The Failed Discourse of State Constitutionalism with a story describing "the experience of a great many lawyers in this country." The protagonist is an attorney whose client has an unlawful discrimination claim that for some reason cannot succeed under the U.S. Supreme Court's current equal protection jurisprudence. The attorney decides to present an argument based on her state constitution's equality guarantee, only to discover that the universe of material from which a plausible argument, not to mention a rich discourse, might emerge - existing case law and scholarship, "useful tidbits" of constitutional history and philosophy from …
Justifiably Punishing The Justified, Heidi M. Hurd
Justifiably Punishing The Justified, Heidi M. Hurd
Michigan Law Review
Contemporary moral philosophy, political theory, and jurisprudence have converged to create a quite baffling dilemma. This dilemma is generated by the apparent incompatibility of three principles, each of which grounds features of our system of law and government, and each of which carries substantial normative weight. The first I shall call the punishment principle - a moral principle, doctrinally entrenched in American criminal and civil law, which holds that individuals who are morally justified in their actions ought not to be blamed or punished for those actions. The second is the principle of the rule of law - a complex …
Legal Interpretation And A Constitutional Case: Home Building & Loan Association V. Blaisdell, Charles A. Bieneman
Legal Interpretation And A Constitutional Case: Home Building & Loan Association V. Blaisdell, Charles A. Bieneman
Michigan Law Review
The approaches of Hughes and Sutherland are but two extremes in constitutional interpretation. Though only two results were possible in the case - either the Act was constitutional or it was not - there are more than two methods by which an interpreter could reach those results. This Note explores possible ways of deciding Blaisdell, using the case as a vehicle for delimiting the boundaries of a positive constitutional command. As a sort of empirical investigation of legal philosophy, the Note examines how various interpretive theories affect an interpreter's approach to the case, and the results these theories might …
A Critical Reexamination Of The Takings Jurisprudence, Glynn S. Lunney Jr
A Critical Reexamination Of The Takings Jurisprudence, Glynn S. Lunney Jr
Michigan Law Review
To provide some insight into the nature of these disagreements, and to suggest a possible solution to the compensation issue, this article undertakes a critical reexamination of the takings jurisprudence. It focuses on the two bases which the modem Court has articulated as support for its resolution of the compensation issue: (1) the articulated purpose of using the just compensation requirement "to bar Government from forcing some people alone to bear public burdens"; and (2) the early case law. Beginning with the Court's first struggles with the compensation issue in the late nineteenth and early twentieth century, this article traces …
Deliberating About Deliberation, Frederick Schauer
Deliberating About Deliberation, Frederick Schauer
Michigan Law Review
A Review of We the People: 1: Foundations by Bruce Ackerman
On Reading The Constitution, Bruce Fein
On Reading The Constitution, Bruce Fein
Michigan Law Review
A Review of On Reading the Constitution by Laurence H. Tribe and Michael C. Dorf
The Age Of Rights, Stephen D. Sencer
The Age Of Rights, Stephen D. Sencer
Michigan Law Review
A Review of The Age of Rights by Louis Henkin
The Supreme Court As Constitutional Interpreter: Chronology Without History, Herbert Hovenkamp
The Supreme Court As Constitutional Interpreter: Chronology Without History, Herbert Hovenkamp
Michigan Law Review
A Review of The Constitution in the Supreme Court: The Second Century, 1888-1986 by David P. Currie
Memoirs Of A General In The Inglorious Revolution, Lawrence G. Sagar
Memoirs Of A General In The Inglorious Revolution, Lawrence G. Sagar
Michigan Law Review
A Review of Order and Law: Arguing the Reagan Revolution: A First-Hand Account by Charles Fried
Zero-Sum Madison, Thomas W. Merrill
Zero-Sum Madison, Thomas W. Merrill
Michigan Law Review
A Review of Private Property and the Limits of American Constitutionalism by Jennifer Nedelsky
The Failed Discourse Of State Constitutionalism, James A. Gardner
The Failed Discourse Of State Constitutionalism, James A. Gardner
Michigan Law Review
In this article, I approach these questions in two steps. First, I examine the status of state constitutional law as it is practiced today. I conclude that, contrary to the claims of New Federalism, state constitutional law today is a vast wasteland of confusing, conflicting, and essentially unintelligible pronouncements. I argue that the fundamental defect responsible for this state of affairs is the failure of state courts to develop a coherent discourse of state constitutional law that is, a language in which it is possible for participants in the legal system to make intelligible claims about the meaning of state …