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Articles 1 - 10 of 10
Full-Text Articles in Law
Amendment Creep, Jonathan L. Marshfield
Amendment Creep, Jonathan L. Marshfield
Michigan Law Review
To most lawyers and judges, constitutional amendment rules are nothing more than the technical guidelines for changing a constitution’s text. But amendment rules contain a great deal of substance that can be relevant to deciding myriad constitutional issues. Indeed, judges have explicitly drawn on amendment rules when deciding issues as far afield as immigration, criminal procedure, free speech, and education policy. The Supreme Court, for example, has reasoned that, because Article V of the U.S. Constitution places no substantive limitations on formal amendment, the First Amendment must protect even the most revolutionary political viewpoints. At the state level, courts have …
American Bar Association Resolution 112: Championing Public Access To The Law., Nina A. Mendelson
American Bar Association Resolution 112: Championing Public Access To The Law., Nina A. Mendelson
Articles
In August 2016, the American Bar Association House of Delegates reaffirmed the fundamental democratic principle of public access to the law. ABA Resolution 112 calls on Congress to enact legislation ensuring a basic level of public access, without charge, to all regulatory law. Such legislation would address serious current obstacles to the public’s ability to see the law.
Using Proactive Legal Strategies For Corporate Environmental Sustainability, Gerlinde Berger-Walliser, Paul Shrivastava, Adam Sulkowski
Using Proactive Legal Strategies For Corporate Environmental Sustainability, Gerlinde Berger-Walliser, Paul Shrivastava, Adam Sulkowski
Michigan Journal of Environmental & Administrative Law
We argue that proactive law can help organizations be more sustainable. Toward that end, this Article first summarizes proactive law literature as it pertains to corporate sustainability. Next, it examines a series of cases on the pivotal nexus between proactive law and corporate sustainability. It then advances novel propositions that connect proactive law to central organizational design elements. The discussion traces further implications and suggests fruitful avenues for research and ways of using proactive law for firms to become more sustainable.
Antitrust And Wealth Inequality, Daniel Crane
Antitrust And Wealth Inequality, Daniel Crane
Articles
In recent years, progressive public intellectuals and prominent scholars have asserted that monopoly power lies at the root of wealth inequality and that increases in antitrust enforcement are necessary to stem its rising tide. This claim is misguided. Exercises of market power have complex, crosscutting effects that undermine the generality of the monopoly regressivity claim. Contrary to what the regressivity critics assume, wealthy shareholders and senior corporate executives do not capture the preponderance of monopoly rents. Such profits are broadly shared within and dissipated outside the firm. Further, many of the subjects of antitrust law are middle-class professionals, sole proprietors, …
A Comprehensive Theory Of Civil Settlement, J. J. Prescott, Kathryn E. Spier
A Comprehensive Theory Of Civil Settlement, J. J. Prescott, Kathryn E. Spier
Articles
A settlement is an agreement between parties to a dispute. In everyday parlance and in academic scholarship, settlement is juxtaposed with trial or some other method of dispute resolution in which a third-party factfinder ultimately picks a winner and announces a score. The “trial versus settlement” trope, however, represents a false choice; viewing settlement solely as a dispute-ending alternative to a costly trial leads to a narrow understanding of how dispute resolution should and often does work. In this Article, we describe and defend a much richer concept of settlement, amounting in effect to a continuum of possible agreements between …
Property, Duress, And Consensual Relationships, David Blankfein-Tabachnick
Property, Duress, And Consensual Relationships, David Blankfein-Tabachnick
Michigan Law Review
Professor Seana Valentine Shiffrin has produced an exciting new book, Speech Matters: On Lying, Morality, and the Law. Shiffrin’s previous rigorous, careful, and morally sensitive work spans contract law, intellectual property, and the freedoms of association and expression. Speech Matters is in line with Shiffrin’s signature move: we ought to reform our social practices and legal and political institutions to, in various ways, address or accommodate moral values—here, a stringent moral prohibition against lying, a strident principle of promissory fidelity, that is, the principle that one ought to keep one’s promises, and the general value of veracity. The book …
Expressive Law And The Americans With Disabilities Act, Alex C. Geisinger, Michael Ashley Stein
Expressive Law And The Americans With Disabilities Act, Alex C. Geisinger, Michael Ashley Stein
Michigan Law Review
The question of why people follow the law has long been a subject of scholarly consideration. Prevailing accounts of how law changes behavior coalesce around two major themes: legitimacy and deterrence. Advocates of legitimacy argue that law is obeyed when it is created through a legitimate process and its substance comports with community mores. Others emphasize deterrence, particularly those who subscribe to law-and-economics theories. These scholars argue that law makes certain socially undesirable behaviors more costly, and thus individuals are less likely to undertake them.
Customary International Law: An Instrument Choice Perspective, Laurence R. Helfer, Ingrid B. Wuerth
Customary International Law: An Instrument Choice Perspective, Laurence R. Helfer, Ingrid B. Wuerth
Michigan Journal of International Law
This Article proceeds as follows. Part II begins by considering custom’s design features, which the authors distinguish from the canonical elements of custom (state practice and opinio juris) and the individual doctrines associated with CIL. Specifically, they contend that, as an ideal-type, custom is non-negotiated, unwritten, and universal, three characteristics that distinguish CIL from both treaties and soft law, which are almost always negotiated, written, and rarely universal either in formation or application. These design features help to explain some of custom’s peculiar doctrinal characteristics, and they cut across the doctrinal divide which is said to distinguish “traditional” and …
Deference To The Executive, Julian Arato
Deference To The Executive, Julian Arato
Book Chapters
This chapter examines the practice of deference to the executive, by national courts, in the context of interpreting treaties. When faced with an issue of treaty interpretation, to what extent must a national court engage in its own independent analysis, and to what extent ought the court give weight to interpretations advanced by the executive branch? And if deference to the executive is permissible as a matter of international doctrine, what considerations ought to guide the manner of deference, and the determination of how much deference is appropriate? I argue that international law does not formally preclude national judicial deference …
Confronting Power In Public Law, Kate Andrias
Confronting Power In Public Law, Kate Andrias
Articles
In his important and provocative Foreword, Professor Daryl Levinson criticizes American constitutional law for failing to attend sufficiently to questions of power, which he defines as “the ability to effect substantive policy outcomes by influencing what the government will or will not do.” As Levinson details, structural constitutional law has focused on how power is distributed among governmental institutions. It has not consistently or adequately considered how power is — or should be — distributed among social groups. Ultimately, Levinson suggests that the narrow focus of separation of powers law and theory on “equalizing the power of government institutions” lacks …