Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 8 of 8

Full-Text Articles in Law

Fun With Administrative Law: A Game For Lawyers And Judges, Adam Babich May 2015

Fun With Administrative Law: A Game For Lawyers And Judges, Adam Babich

Michigan Journal of Environmental & Administrative Law

The practice of law is not a game. Administrative law in particular can implicate important issues that impact people’s health, safety, and welfare and change business’ profitability or even viability. Nonetheless, it can seem like a game. This is because courts rarely explain administrative law rulings in terms of the public purposes and policies at issue in lawsuits. Instead, the courts’ administrative law opinions tend to turn on arcane interpretive doctrines with silly names, such as the “Chevron two-step” or “Chevron step zero.” To advance doctrinal arguments, advocates and courts engage in linguistic debates that resemble a smokescreen—tending to obscure …


Abortion And Informed Consent: How Biased Counseling Laws Mandate Violations Of Medical Ethics, Ian Vandewalker Jan 2012

Abortion And Informed Consent: How Biased Counseling Laws Mandate Violations Of Medical Ethics, Ian Vandewalker

Michigan Journal of Gender & Law

If we slightly change the facts of the story about the discouraging doctor, it becomes a story that happens every day. Abortion patients face attempts to discourage them from terminating their pregnancies like those the imaginary doctor used, as well as others-and state laws mandate these attempts. While the law of every state requires health care professionals to secure the informed consent of the patient before any medical intervention, over half of the states place additional requirements on legally effective informed consent for abortion. These laws sometimes include features that have ethical problems, such as giving patients deceptive information. Unique …


Stare Decisis And Constitutional Text, Jonathan F. Mitchell Oct 2011

Stare Decisis And Constitutional Text, Jonathan F. Mitchell

Michigan Law Review

Almost everyone acknowledges that stare decisis should play a significant role when the Supreme Court of the United States resolves constitutional cases. Yet the academic and judicial rationales for this practice tend to rely on naked consequentialist considerations, and make only passing efforts to square the Court's stare decisis doctrines with the language of the Constitution. This Article offers a qualified defense of constitutional stare decisis that rests exclusively on constitutional text. It aims to broaden the overlapping consensus of interpretive theories that can support a role for constitutional stare decisis, but to do this it must narrow the circumstances …


Beyond Common Sense: A Social Psychological Study Of Iqbal's Effect On Claims Of Race Discrimination, Victor D. Quintanilla Sep 2011

Beyond Common Sense: A Social Psychological Study Of Iqbal's Effect On Claims Of Race Discrimination, Victor D. Quintanilla

Michigan Journal of Race and Law

Federal Rule of Civil Procedure 8(a) once operated as a notice pleading rule, requiring plaintiffs to set forth only a "short and plain" statement of their claim. In Bell Atlantic Corp. v. Twombly, and then Ashcroft v. Iqbal, the United States Supreme Court recast Rule 8(a) into a plausibility pleading standard. To survive a motion to dismiss, a complaint must contain sufficient factual matter "to state a claim to relief that is plausible on its face." Iqbal requires federal courts, when deciding whether a complaint is plausible, to draw on their "judicial experience and common sense." Courts apply this standard …


But How Will The People Know? Public Opinion As A Meager Influence In Shaping Contemporary Supreme Court Decision Making, Tom Goldstein, Amy Howe Apr 2011

But How Will The People Know? Public Opinion As A Meager Influence In Shaping Contemporary Supreme Court Decision Making, Tom Goldstein, Amy Howe

Michigan Law Review

Chief Justice John Roberts famously described the ideal Supreme Court Justice as analogous to a baseball umpire, who simply "applies" the rules, rather than making them. Roberts promised to "remember that it's my job to call balls and strikes and not to pitch or bat." At her own recent confirmation hearings, Elena Kagan demurred, opining that Roberts's metaphor might erroneously suggest that "everything is clear-cut, and that there's no judgment in the process." Based on his 2009 book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, Barry Friedman …


Modeling The Congressional End-Run Constraint, Luke M. Milligan Mar 2011

Modeling The Congressional End-Run Constraint, Luke M. Milligan

University of Richmond Law Review

No abstract provided.


Environmental Deliberative Democracy And The Search For Administrative Legitimacy: A Legal, Positivism Approach, Michael Ray Harris Feb 2011

Environmental Deliberative Democracy And The Search For Administrative Legitimacy: A Legal, Positivism Approach, Michael Ray Harris

University of Michigan Journal of Law Reform

The failure of regulatory systems over the past two decades to lessen the environment degradation associated with modern human economic output has begun to undermine the legitimacy of environmental lawmaking in the United States and around the world. Recent scholarship suggests that reversal of this trend will require a breach of the environmental administrative apparatus by democratization of a particular kind, namely the inclusion of greater public discourse within the context of regulatory decision-making. This Article examines this claim through the lens of modern legal positivism. Legal positivism provides the tools necessary to test for and identify the specfic structural …


Neutral Principles In The 1950'S, Gary Peller Jun 1988

Neutral Principles In The 1950'S, Gary Peller

University of Michigan Journal of Law Reform

In this Essay, I explore the intellectual setting within which Wechsler believed that defending freedom also required defending the legality of racial domination. I argue that the key to understanding this apparent paradox is to grasp the ideological/ cultural complex of the 1950's within which mainstream American intellectuals in law and in other disciplines came to terms with the disintegration of the traditional, "old order" paradigms of the late nineteenth and early twentieth centuries by means of an intense and overriding distinction between controversial issues of values and noncontroversial questions of framework and structure within which substantive conflict would take …