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Articles 1 - 22 of 22
Full-Text Articles in Law
Are Unions A Constitutional Anomaly?, Cynthia Estlund
Are Unions A Constitutional Anomaly?, Cynthia Estlund
Michigan Law Review
This term in Friedrichs v. California Teachers Ass’n, the Supreme Court will consider whether ordinary public employees may constitutionally be required to pay an “agency fee,” as a condition of employment, to the union that represents them in collective bargaining. The Court established the terms of engagement in the 2014 decision Harris v. Quinn, which struck down an agency fee on narrower grounds while describing the current doctrine approving agency fees, blessed many times by the Court itself, as an “anomaly.” This Article asks whether labor unions are themselves anomalies in our legal system, particularly in their constitutional entitlements. Its …
Delegating Tax, James R. Hines Jr., Kyle D. Logue
Delegating Tax, James R. Hines Jr., Kyle D. Logue
Michigan Law Review
Congress delegates extensive and growing lawmaking authority to federal administrative agencies in areas other than taxation, but tightly limits the scope of Internal Revenue Service (IRS) and Treasury regulatory discretion in the tax area, specifically not permitting these agencies to select or adjust tax rates. This Article questions why tax policy does and should differ from other policy areas in this respect, noting some of the potential policy benefits of delegation. Greater delegation of tax lawmaking authority would allow administrative agencies to apply their expertise to fiscal policy and afford timely adjustment to changing economic circumstances. Furthermore, delegation of the …
Certiorari And The Marriage Equality Cases, Carl Tobias
Certiorari And The Marriage Equality Cases, Carl Tobias
University of Michigan Journal of Law Reform Caveat
Marriage equality has come to much of the nation. Over 2014, many district court rulings invalidated state proscriptions on same- sex marriage, while four appeals courts upheld these decisions. However, the Sixth Circuit reversed district judgments which struck down bans in Kentucky, Michigan, Ohio, and Tennessee. Because that appellate opinion created a patchwork of differing legal regimes across the country, this Paper urges the Supreme Court to clarify marriage equality by reviewing that determination this Term.
Enacted Legislative Findings And The Deference Problem, Daniel A. Crane
Enacted Legislative Findings And The Deference Problem, Daniel A. Crane
Articles
The constitutionality of federal legislation sometimes turns on the presence and sufficiency of congressional findings of predicate facts, such as the effects of conduct on interstate commerce, state discrimination justifying the abrogation of sovereign immunity, or market failures justifying intrusions on free speech. Sometimes a congressional committee makes these findings in legislative history. Other times, Congress recites its findings in a statutory preamble, thus enacting its findings as law. Surprisingly, the Supreme Court has not distinguished between enacted and unenacted findings in deciding how much deference to accord congressional findings. This is striking because the difference between enactedness and unenactedness …
The Puzzling Presumption Of Reviewability, Nicholas Bagley
The Puzzling Presumption Of Reviewability, Nicholas Bagley
Articles
The presumption in favor of judicial review of agency action is a cornerstone of administrative law, accepted by courts and commentators alike as both legally appropriate and obviously desirable. Yet the presumption is puzzling. As with any canon of statutory construction that serves a substantive end, it should find a source in history, positive law, the Constitution, or sound policy considerations. None of these, however, offers a plausible justification for the presumption. As for history, the sort of judicial review that the presumption favors - appellate-style arbitrariness review - was not only unheard of prior to the twentieth century, but …
The Puzzling Presumption Of Reviewability, Nicholas Bagley
The Puzzling Presumption Of Reviewability, Nicholas Bagley
Articles
The presumption in favor of judicial review of agency action is a cornerstone of administrative law, accepted by courts and commentators alike as both legally appropriate and obviously desirable. Yet the presumption is puzzling. As with any canon of statutory construction that serves a substantive end, it should find a source in history, positive law, the Constitution, or sound policy considerations. None of these, however, offers a plausible justification for the presumption. As for history, the sort of judicial review that the presumption favors - appellate-style arbitrariness review - was not only unheard of prior to the twentieth century, but …
Election Law's Lochnerian Turn, Ellen D. Katz
Election Law's Lochnerian Turn, Ellen D. Katz
Articles
This panel has been asked to consider whether "the Constitution [is] responsible for electoral dysfunction."' My answer is no. The electoral process undeniably falls well short of our aspirations, but it strikes me that we should look to the Supreme Court for an accounting before blaming the Constitution for the deeply unsatisfactory condition in which we find ourselves.
Dubious Delegation: Article Iii Limits On Mental Health Treatment Decisions, Adam Teitelbaum
Dubious Delegation: Article Iii Limits On Mental Health Treatment Decisions, Adam Teitelbaum
Michigan Law Review
A common condition of supervised release requires a defendant, post-incarceration, to participate in a mental health treatment program. Federal district courts often order probation officers to make certain decisions ancillary to these programs. However Article III delegation doctrine places limits on such actions. This Note addresses the constitutionality of delegating the "treatment program" decision, in which a probation officer decides which type of treatment the defendant must undergo; the choice is often between inpatient treatment and other less restrictive alternatives. The resolution of this issue ultimately depends on whether this decision constitutes a "judicial act." Finding support in lower court …
Are Class Actions Unconstitutional?, Alexandra D. Lahav
Are Class Actions Unconstitutional?, Alexandra D. Lahav
Michigan Law Review
Are class actions unconstitutional? Many people-defendants and conservative legislators, not to mention scholars at the American Enterprise Institute-would like them to be. For opponents of the class action, Martin Redish's book Wholesale Justice provides some of the most theoretically sophisticated arguments available. The book is a major contribution both to the scholarly literature on class actions and to the larger political debate about this powerful procedural device. The arguments it presents will surely be debated in courtrooms as well as classrooms.
Kids Are Different, Stephen St.Vincent
Kids Are Different, Stephen St.Vincent
Michigan Law Review First Impressions
The Supreme Court recently handed down its decision in Graham v. Florida. The case involved a juvenile, Graham, who was sentenced to life in prison after being convicted as an adult of a nonhomicidal crime. The offense, a home invasion robbery, was his second; the first was attempted robbery. Due to Florida's abolition of parole, the judge's imposition of a life sentence meant that Graham was constructively sentenced to life without parole for a nonhomicide crime. Graham challenged this sentence as unconstitutional under the Eighth Amendment. Somewhat surprisingly, the Supreme Court invalidated Graham's sentence by a 6-3 majority. By a …
The Abolition Of The Death Penalty In New Jersey And Its Impact On Our Nation's "Evolving Standards Of Decency", Aaron Scherzer
The Abolition Of The Death Penalty In New Jersey And Its Impact On Our Nation's "Evolving Standards Of Decency", Aaron Scherzer
Michigan Journal of Race and Law
In 2007, New Jersey became the first state in over forty years to abolish the death penalty legislatively. Twenty-five years earlier, in 1982, New Jersey had followed a state-level trend by reinstating its death penalty. However, during the twenty-five years between reinstatement and abolition, New Jersey did not conduct a single execution. Instead, the New Jersey Supreme Court reversed numerous death penalty cases and consistently narrowed the class of cases eligible for the death penalty. This Note posits that the supreme court's narrowing of eligible cases was one of the factors that prevented executions from taking place in New Jersey. …
Reinforcing Representation: Enforcing The Fourteenth And Fifteenth Amendments In The Rehnquist And Waite Courts, Ellen D. Katz
Reinforcing Representation: Enforcing The Fourteenth And Fifteenth Amendments In The Rehnquist And Waite Courts, Ellen D. Katz
Articles
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 …
Federalism, Preclearance, And The Rehnquist Court, Ellen D. Katz
Federalism, Preclearance, And The Rehnquist Court, Ellen D. Katz
Articles
Lopez v. Monterey County is an odd decision. Justice O'Connor's majority opinion easily upholds the constitutionality of a broad construction of section 5 of the Voting Rights Act (VRA) in language reminiscent of the Warren Court. Acknowledging the "substantial 'federalism costs" resulting from the VRA's "federal intrusion into sensitive areas of state and local policymaking," Lopez recognizes that the Reconstruction Amendments "contemplate" this encroachment into realms "traditionally reserved to the States." Justice O'Connor affirms as constitutionally permissible the infringement that the section 5 preclearance process "by its nature" effects on state sovereignty, and applies section 5 broadly, holding the statute …
Doma: An Unconstitutional Establishment Of Fundamentalist Christianity, James M. Donovan
Doma: An Unconstitutional Establishment Of Fundamentalist Christianity, James M. Donovan
Michigan Journal of Gender & Law
According to the text of the Act, DOMA's purposes are "to define and protect the institution of marriage," where marriage is defined to exclude same-sex partners. To be constitutionally valid under the Establishment Clause, this notion that heterosexual marriages require "protection" from gay and lesbian persons must spring from a secular and not religious source. This Article posits that DOMA has crossed this forbidden line between the secular and the religious. DOMA, motivated and supported by fundamentalist Christian ideology, and lacking any genuine secular goals or justifications, betrays the Establishment Clause of the U.S. Constitution.
Are Laws Against Assisted Suicide Unconstitutional?, Yale Kamisar
Are Laws Against Assisted Suicide Unconstitutional?, Yale Kamisar
Articles
On 15 February of this year, shortly after the number of people Dr. Jack Kevorkian had helped to commit suicide swelled to fifteen, the Michigan legislature passed a law, effective that very day, making assisted suicide a felony punishable by up to four years in prison. The law, which is automatically repealed six months after a newly established commission on death and dying recommends permanent legislation, prohibits anyone with knowledge that another person intends to commit suicide from "intentionally providing the physical means" by which the other person does so or from "intentionally participat[ing] in a physical act" by which …
Educational Financing, Equal Protection Of The Laws, And The Supreme Court, Michigan Law Review
Educational Financing, Equal Protection Of The Laws, And The Supreme Court, Michigan Law Review
Michigan Law Review
Recently, state systems of financing public education have been overturned or seriously threatened by several state and federal court cases based on the equal protection clause of the fourteenth amendment. Rodriguez v. San Antonio Independent School District, which invalidated the Texas system of educational financing, will be argued before the Supreme Court next term. This Comment will examine the doctrinal and policy problems that the Court will confront and the alternative solutions that are available to the Court when it considers the constitutionality of the Texas system, which is typical of the educational financing programs that have generated so …
The Newberry Case, Ralph W. Aigler
The Newberry Case, Ralph W. Aigler
Articles
Senator Newberry of Michigan and sixteen others were convicted in the United States District Court on the charge that they "unlawfully and feloniously did conspire, combine, confederate, and agree together to commit the offense [in the Newberry indictment] on his part of wilfully violating the act of Congress approved June 25, 1910, as amended, by giving, contributing, expending, and using and by causing to be given, contributed, expended and used in procuring his nomination and election at said primary and general elections, a greater sum than the laws of Michigan permitted and above ten thousand dollars," etc. The Act of …
The Commodity Clause Of The Hepburn Act, Edwin C. Goddard
The Commodity Clause Of The Hepburn Act, Edwin C. Goddard
Articles
The Supreme Court of the United States has added another to the interesting line of cases construing the so-called "Commodity Clause" of the HEPBURN ACT of 1906. In United States v. Delaware, Lackawanna & Western Railroad Co. and the Delaware, Lackawanna & Western Coal Co., decided on June 21, 1915, 35 Sup. Ct. 873, the court reversed the decree of the District Court as reported in 213 Fed. 240, and found the relation and contract between the Railroad Company and the Coal Company to be in violation of the HEPBURN ACT and the SHERMAN ACT.
The Corporation Tax Decision, Ralph W. Aigler
The Corporation Tax Decision, Ralph W. Aigler
Articles
Seldom, if ever, in the history of the country has the Supreme Court been called upon within a comparatively short period of time to decide so many questions of widespread interest and vital importance as has been the case during the last year or two. Attempts on the part of the state and national governments to regulate and control corporations, which in recent years have come to exercise such a large and not always wholesome influence upon affairs generally, have been the occasion for the consideration by the court of many of the important cases recently presented. Among these are …
The Constitutionality Of The Federal Corporation Tax, Ralph W. Aigler
The Constitutionality Of The Federal Corporation Tax, Ralph W. Aigler
Articles
During the special session of Congress held the past summer there was enacted as an amendment to the new Tariff Law what is generally known as the Federal Corporation Tax.1 At the time of its consideration in Congress and since its enactment there has been considerable discussion regarding the constitutionality of the measure, and no little doubt has been expressed as to its validity.
Labor Organizations In Legislation, Jerome C. Knowlton
Labor Organizations In Legislation, Jerome C. Knowlton
Articles
During the first months of the current year, the Supreme Court of the United States handed down three decisions on important questions in labor legislation.1 The Employers' Liability Act was declared unconstitutional, but on grounds that may be avoided by subsequent legislation; the boycott was decided to be an unlawful conspiracy against interstate commerce, and in violation of the Anti-Trust Act and the congressional enactment providing criminal punishment for the discharge of an employee because of his membership in a labor organization was also held unconstitutional. These decisions have been unjustly spoken of by some, as unreasonably severe on labor …
A Suggestion Concerning The Law Of Inter-State Extradition, Edwin F. Conely
A Suggestion Concerning The Law Of Inter-State Extradition, Edwin F. Conely
Articles
While yet the nation was forming-indeed as early as 1643-the impolicy of the colonies' suffering themselves to become asylums for criminal refugees was seen and appreciated by the public men of the time. But, though continued efforts were made in the right direction and much was accomplished, the rendition of fugitives from justice remained, either legally or practically, a matter of comity for nearly a century and a half, or until the adoption of the Constitution of the United States. Then, made mandatory by the organic law of the Nation, inter-state extradition ceased to be subject to State control or …