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Articles 1 - 18 of 18
Full-Text Articles in Law
Suspect Spheres, Not Enumerated Powers: A Guide For Leaving The Lamppost, Richard Primus, Roderick M. Hills Jr.
Suspect Spheres, Not Enumerated Powers: A Guide For Leaving The Lamppost, Richard Primus, Roderick M. Hills Jr.
Michigan Law Review
Despite longstanding orthodoxy, the Constitution’s enumeration of congressional powers does virtually nothing to limit federal lawmaking. That’s not because of some bizarrely persistent judicial failure to read the Constitution correctly. It’s because the enumeration of congressional powers is not a well-designed technology for limiting federal legislation. Rather than trying to make the enumeration do work that it will not do, decisionmakers should find better ways of thinking about what lawmaking should be done locally rather than nationally. This Article suggests such a rubric, one that asks not whether Congress has permission to do a certain thing but whether a certain …
Reckless Juveniles, Kimberly Thomas
Reckless Juveniles, Kimberly Thomas
Articles
Modern doctrine and scholarship largely take it for granted that offenders should be criminally punished for reckless acts.1 Yet, developments in our understanding of human behavior can shed light on how we define and attribute criminal liability, or at least force us to grapple with the categories that have existed for so long. This Article examines recklessness and related doctrines in light of the shifts in understanding of adolescent behavior and its biological roots, to see what insights we might attain, or what challenges these understandings pose to this foundational mens rea doctrine. Over the past decade, the U.S. Supreme …
Fourth Amendment Fairness, Richard M. Re
Fourth Amendment Fairness, Richard M. Re
Michigan Law Review
Fourth Amendment doctrine is attentive to a wide range of interests, including security, informational privacy, and dignity. How should courts reconcile these competing concerns when deciding which searches and seizures are “unreasonable”? Current doctrine typically answers this question by pointing to interest aggregation: the various interests at stake are added up, placed on figurative scales, and compared, with the goal of promoting overall social welfare. But interest aggregation is disconnected from many settled doctrinal rules and leads to results that are unfair for individuals. The main alternative is originalism; but historical sources themselves suggest that the Fourth Amendment calls for …
Medicine As A Public Calling, Nicholas Bagley
Medicine As A Public Calling, Nicholas Bagley
Michigan Law Review
The debate over how to tame private medical spending tends to pit advocates of government-provided insurance—a single-payer scheme—against those who would prefer to harness market forces to hold down costs. When it is mentioned at all, the possibility of regulating the medical industry as a public utility is brusquely dismissed as anathema to the American regulatory tradition. This dismissiveness, however, rests on a failure to appreciate just how deeply the public utility model shaped health law in the twentieth century— and how it continues to shape health law today. Closer economic regulation of the medical industry may or may not …
Theorizing American Freedom, Anthony O'Rourke
Theorizing American Freedom, Anthony O'Rourke
Michigan Law Review
Some intellectual concepts once central to America's constitutional discourse are, for better and worse, no longer part of our political language. These concepts may be so alien to us that they would remain invisible without carefully reexamining the past to challenge the received narratives of America's constitutional development. Should constitutional theorists undertake this kind of historical reexamination? If so, to what extent should they be willing to stray from the disciplinary norms that govern intellectual history? And what normative aims can they reasonably expect to achieve by exploring ideas in our past that are no longer reflected in the Constitution's …
Is A Substantive, Non-Positivist United States Environmental Law Possible?, Dan Tarlock
Is A Substantive, Non-Positivist United States Environmental Law Possible?, Dan Tarlock
Michigan Journal of Environmental & Administrative Law
U.S. environmental law is almost exclusively positive and procedural. The foundation is the pollution control and biodiversity conservation statutes enacted primarily between 1969–1980 and judicial decisions interpreting them. This law has created detailed processes for making decisions but has produced few substantive constraints on private and public decisions which impair the environment. Several substantive candidates have been proposed, such as the common law, a constitutional right to a healthy environment, the public trust, and the extension of rights to fauna and flora. However, these candidates have not produced the hoped for substantive law. Many argue that a substantive U.S. environmental …
A Neo-Chicago Perspective On Antitrust Institutions, Daniel A. Crane
A Neo-Chicago Perspective On Antitrust Institutions, Daniel A. Crane
Articles
It has long been fashionable to categorize antitrust by its "schools." From the Sherman Act's passage to World War II, there were (at least) neo-classical marginalism, populism, progressivism, associationalism, business commonwealthism, and Brandeisianism. From World War II to the present, we have seen (at least, and without counting the European Ordo-Liberals) PaleoHarvard structuralism, the Chicago School, Neo-Harvard institutionalism, and Post -Chicagoans. So why not Neo-Chicago? I am already on record as suggesting the possible emergence of such a school, so it is too late for me to dismiss the entire "schools" conversation as window-dressing. This Symposium is dedicated to defining …
Racial Cartels, Daria Roithmayr
Racial Cartels, Daria Roithmayr
Michigan Journal of Race and Law
This Article argues that we can better understand the dynamic of historical racial exclusion if we describe it as the anti-competitive work of "racial cartels." We can define racial cartels to include a range of all-White groups - homeowners' associations, school districts, trade unions, real estate boards and political parties - who gained signficant social, economic and political profit from excluding on the basis of race. Far from operating on the basis of irrational animus, racial cartels actually derived significant profit from racial exclusion. By creating racially segmented housing markets, for example, exclusive White homeowners' associations enjoyed higher property values …
Past As Prologue: Old And New Feminisms, Martha Chamallas
Past As Prologue: Old And New Feminisms, Martha Chamallas
Michigan Journal of Gender & Law
Each "stage" of feminist legal theory-and each brand or strand of feminism- stays alive and is never completely replaced by newer approaches. When I first attempted to synthesize the field of Feminist Legal Theory for a treatise I was writing at the end of the twentieth century, I thought it would be useful to think chronologically and to analyze the major developments of the 1970s, 1980s, and 1990s. I crudely divided feminist legal theory into three stages roughly corresponding to the preceding decades: the equality stage of the 1970s, the difference stage of the 1980s, and the diversity stage of …
Judicial Power And Mobilizable History, Richard A. Primus
Judicial Power And Mobilizable History, Richard A. Primus
Articles
One contribution that law professors can make to constitutional discourse, I suggest, is the nurturing of new mobilizable histories. A "mobilizable history," as I will use the term, is a narrative, image, or other historical source that is sufficiently well-known to the community of constitutional decisionmakers so as to be able to support a credible argument in the discourse of constitutional law. It draws upon materials that are within the collective memory of constitutional interpreters; indeed, a necessary step in nurturing a new mobilizable history is to introduce new information into that collective memory or to raise the prominence of …
Engaging The Spirit Of Racial Healing Within Critical Race Theory: An Exercise In Transformativethought, Rebecca Tsosie
Engaging The Spirit Of Racial Healing Within Critical Race Theory: An Exercise In Transformativethought, Rebecca Tsosie
Michigan Journal of Race and Law
This essay posits that Critical Race Theory (CRT) must operate at both the "idealist" and "materialist" levels. Although the emphasis may be in one direction or another at particular times, both domains are continually engaged. This essay links the debate between the "materialist" and "idealist" views to another central theme within CRT, which is the need for "justice" and how the law relates to justice. This essay focuses on the contemporary debate surrounding the status of Native Hawaiians to show how "race" is being used to construct the civil and political rights of Native Hawaiian people. CRT is a jurisprudence …
On The Frontier Of Procedural Innovation: Advance Pricing Agreements And The Struggle To Allocate Income For Cross Border Taxation, Diane M. Ring
On The Frontier Of Procedural Innovation: Advance Pricing Agreements And The Struggle To Allocate Income For Cross Border Taxation, Diane M. Ring
Michigan Journal of International Law
This paper outlines a recent procedural innovation in the tax area, the Advance Pricing Agreement Program ("APA" program), and evaluates its success. Such a case study can play a significant role in linking procedural innovation to the broader issues of administrative law theory and regulatory reform. For example, a working model such as the APA program, built on flexibility and creativity, may support administrative theories advocating discretion, flexibility, and experimentation. Conversely, some interest group theories of regulation (e.g., public choice theory), can prompt critical examination of reforms like APAs that exhibit limited openness to scrutiny. The APA program is an …
Theorists' Belief: A Comment On The Moral Tradition Of American Constitutionalism, Jospeh Vining
Theorists' Belief: A Comment On The Moral Tradition Of American Constitutionalism, Jospeh Vining
Articles
The Moral Tradition of American Constitutionalism is one of those rare works that leads us to face, at the center of law and legal thought, the largest questions about human life and human purpose. There is a special reader's shudder, a certain gestural shift in the chair, reserved for that moment of realizing where one is being led-not to the edge, but to the center, so that the questions become insistent, and whatever we and others say and do in the face of them becomes our response to them.
Democratic Credentials, Donald J. Herzog
Democratic Credentials, Donald J. Herzog
Articles
We've made a mistake, urges Bruce Ackerman. We've failed to notice, or have forgotten, that ours is a dualist democracy: ordinary representatives passing their statutes are in fact the democratic inferiors of We the People, who at rare junctures appear on the scene and affirm new constitutional principles. (Actually, he claims in passing that we have a three-track democracy.)' Dwelling lovingly on dualism, Ackerman doesn't quite forget to discuss democracy, but he comes close. I want to raise some questions about the democratic credentials of Ackerman's view. Not, perhaps, the ones he anticipates. So I don't mean to argue that …
From Blackstone To Bentham: Common Law Versus Legislation In Eighteenth-Century Britain, James Oldham
From Blackstone To Bentham: Common Law Versus Legislation In Eighteenth-Century Britain, James Oldham
Michigan Law Review
A Review of The Province of Legislation Determined: Legal Theory in Eighteenth Century Britain by David Lieberman
Anti-Formalism In Recent Constitutional Theory, Mark V. Tushnet
Anti-Formalism In Recent Constitutional Theory, Mark V. Tushnet
Michigan Law Review
The focus in constitutional theory on judicial review rests on a much deeper political theory than the phrase "countermajoritarian difficulty" standing alone suggests. Majoritarian or democratic decision making is itself a solution to a set of problems that arise from a particular view of human nature and political action. In this Article, I identify, explicate, and criticize some recent developments in constitutional theory which are of interest to the extent that they reject that view of human nature and politics. I take as my focus important articles by Robert Burt, Robert Cover, Owen Fiss, Frank Michelman, and Cass Sunstein. I …
In Re Radical Interpretations Of American Law: The Relation Of Law And History, A. E. Keir Nash
In Re Radical Interpretations Of American Law: The Relation Of Law And History, A. E. Keir Nash
Michigan Law Review
This Article centers instead upon assessing two types of legal analysis - non-Marxist radical interpretation and "non-reductionist" Marxist theory - which, despite conspicuous differences, share the belief that understanding the American historical experience is a prerequisite to understanding American law. Both approaches also share two other important convictions. One is that a "consensual" or "liberal pluralist" version of American history has little explanatory validity, at least in regard to such major problems as the political and legal breakdown represented by the Civil War, and the law's role in American economic development. They also agree that historical explanations which downplay discussion …
Constitutional Interpretation, Terrance Sandalow
Constitutional Interpretation, Terrance Sandalow
Articles
"[We] must never forget," Chief Justice Marshall admonished us in a statement pregnant with more than one meaning, "that it is a constitution we are expounding."' Marshall meant that the Constitution should be read as a document "intended to endure for ages.to come, and, consequently, to be adapted to the various crises of human affairs."'2 But he meant also that the construction placed upon the document must have regard for its "great outlines" and "important objects."'3 Limits are implied by the very nature of the task. There is not the same freedom in construing the Constitution as in constructing a …