Law Commons^™

Constitutional Interpretation And Judicial Review: A Case Of The Tail Wagging The Dog, Michael Halley

Michigan Law Review First Impressions

A response to John F. Manning, Federalism and the Generality Problem in Constitutional Interpretation, 122 Harv. L. Rev. 2003 (2009). Professor John Manning's analysis of the Supreme Court's recent federalism decisions works as a platform to further the cause of textualism. His argument fails to persuade, however, because the textualism he says the Court should embrace in federalism cases is antithetical to the atextual nature of the Court's jurisdiction to adjudicate the constitutionality of legislation. Manning prefaces his work by telling readers that his analysis is not an end in itself. His aim, rather, is to "use the methodology" the …

"The Threes": Re-Imagining Supreme Court Decisionmaking, Tracey E. George, Chris Guthrie

Vanderbilt Law Review

Article III is odd. In contrast to Articles 12 and II, which specify in some detail how the legislative and executive branches are to be assembled, Article III says virtually nothing about the institutional design of the Supreme Court.

Consistent with this Constitutional silence, the Court's look, shape, and behavior have adapted to changed circumstances. For example, the Court's membership has changed substantially. Initially, six Justices sat on the Court; in time, the Court grew to ten and shrank to seven. Only in 1869 did it settle at nine. Likewise, the Court's jurisdiction has changed, first expanding, then contracting, and …

Ideological Endowment: The Staying Power Of The Electoral College And The Weaknesses Of The National Popular Vote Interstate Compact, Daniel P. Rathbun

Michigan Law Review First Impressions

The National Popular Vote (“NPV”) movement is designed to eliminate the federalist impact of the Electoral College without amending the Constitution. By fashioning an interstate compact to grant participating states’ electoral votes to the winner of the national popular vote, NPV proponents suppose they can induce states to forfeit their electoral “weights” and replace the current, federalist election process with a fully majoritarian one. But by leaving the Electoral College in place, the NPV movement is setting itself up for a double pushback: first, in the form of immediate legal resistance, and second, through states’ long-term involvement in a meaningfully …

Looking Backward: Richard Epstein Ponders The "Progressive" Peril, Michael Allan Wolf

Michigan Law Review

In the 1888 novel Looking Backward, Edward Bellamy dreamed up a twentieth century America that was a socialist utopia, a vision invoked four years later by the conservative Justice David J. Brewer as a warning against government regulation. In How Progressives Rewrote the Constitution, Richard Epstein, looking back at the twentieth century through an interpretive lens much more similar to Brewer's than Bellamy's, sees and bemoans the growth of a dominant big government of which the novelist could only dream. Epstein pulls no punches in his attack on those he deems responsible for the shift in the American …

Reconceptualizing Federalism, Erwin Chemerinsky

NYLS Law Review

No abstract provided.

Introduction: A Tale Of (At Least) Two Federalisms, Denise C. Morgan

NYLS Law Review

No abstract provided.

The Future Of Federalism? Pierce County V. Guillen As A Case Study, Lynn A. Baker

NYLS Law Review

No abstract provided.

Evolving Understandings Of American Federalism: Some Shifting Parameters, Edward A. Purcell Jr.

NYLS Law Review

No abstract provided.

Bridging The Enforcement Gap In Constitutional Law: A Critique Of The Supreme Court's Theory That Self-Restraint Promotes Federalism, Robert J. Pushaw Jr.

William & Mary Law Review

No abstract provided.

The Rehnquist Revolution, Erwin Chemerinsky

The University of New Hampshire Law Review

[Excerpt] "When historians look back at the Rehnquist Court, without a doubt they will say that its greatest changes in constitutional law were in the area of federalism. Over the past decade, and particularly over the last five years, the Supreme Court has dramatically limited the scope of Congress’ powers and has greatly expanded the protection of state Sovereign Immunity. Virtually every area of law, criminal and civil, is touched by these changes. Since I began teaching constitutional law in 1980, the most significant differences in constitutional law are a result of the Supreme Court’s revival of federalism as a …

Of Federalism, Human Rights, And The Holland Caveat: Congressional Power To Iplement Treaties, Ana Maria Merico-Stephens

Michigan Journal of International Law

This Article explores whether the Rehnquist Court's federalism doctrine, as elaborated during this last decade, should or ought to extend to the domestication of discrete provisions of ratified human rights treaties. It explores this question by examining the International Covenant on Civil and Political Rights (Covenant) and by considering the civil remedy provision of Violence Against Women Act (VAWA) as potential implementing legislation for the equality provisions of the Covenant. In the context of this inquiry, the discussion engages federalism, as developed by the current Court, on its own terms. That is, I do not seek here to defend it …

Eldred's Aftermath: Tradition, The Copyright Clause, And The Constitutionalization Of Fair Use, Stephen M. Mcjohn

Michigan Telecommunications & Technology Law Review

Eldred v. Ashcroft offered the Supreme Court broad issues about the scope of Congress's constitutional power to legislate in the area of intellectual property. In 1998, Congress added twenty years to the term of all copyrights, both existing and future copyrights. But for this term extension, works created during the 1920s and 1930s would be entering the public domain. Now such works will remain under copyright until 2018 and beyond. Eldred v. Ashcroft rejected two challenges to the constitutionality of the copyright extension. The first challenge contended that Congress had exceeded its power to grant copyrights for "limited Times" in …

If History Mattered: John Marshall And Reframing The Constitution, Aviam Soifer

Michigan Law Review

What more can there be to learn about John Marshall? We have been blessed recently with a flood of fine books about Marshall and the Supreme Court over which he presided from 1801 until 1835. We also now have readily available an impressive collection of documents concerning the Court before Marshall, as well as a fine series collecting, introducing, and annotating Marshall's papers. With recent bicentennial celebrations marking the beginning of Marshall's career as Chief Justice and the anniversary of Marbury v. Madison, an outpouring of law review articles and scholarly symposia have offered learned exchanges about the great Chief …

Formalism, Pragmatism, And The Conservative Critique Of The Eleventh Amendment, Michael E. Solimine

Michigan Law Review

For many years the Second Amendment to the constitution was construed by most authorities to grant a communal right to bear arms, through state militias and the like. Some years ago Sanford Levinson labeled this interpretation "embarrassing" to liberal scholars. That characterization was deserved, Levinson argued, since liberal academics had been eager to defend expansive interpretations of other rights-granting provisions of the Constitution. But they failed to do so when it came to language in the Second Amendment, which could be plausibly construed to grant an individual right to bear arms. The failure might be attributed, in part, to the …

Federalism And Formalism, Allison H. Eid

William & Mary Bill of Rights Journal

Many commentators have criticized the Supreme Court's New Federalism decisions as "excessively formalistic. " In this Article, Professor Eid argues that this "standard critique" is wrong on both a descriptive and normative level. Descriptively, she argues that the standard critique mistakenly downplays the extent to which the New Federalism decisions consider the values that federalism serves, and contends that they employ the same sort of formalism/functionalism blend that is found in the Court's separation of powers jurisprudence. Professor Eid then contends that the standard critique's normative prescription - a case-by-case balancing test that would weigh the federal interest against the …

Section Five Overbreadth: The Facial Approach To Adjudicating Challenges Under Section Five Of The Fourteenth Amendment, Catherine Carroll

Michigan Law Review

In February 1996, the New York State Department of Transportation fired Joseph Kilcullen from his position as a snowplow driver in the Department's Highway Maintenance training program. Alleging that the state discharged him because of his epilepsy and learning disability, Kilcullen sued his former employer under the Americans with Disabilities Act ("ADA"), which abrogated states' sovereign immunity and permitted private suits for damages against states in a federal court. Kilcullen asserted only that he was not treated the same as similarly situated non-disabled employees; his claim did not implicate the ADA's requirement that employers provide "reasonable accommodation" to disabled employees. …

Medicaid And The Unconstitutional Dimensions Of Prior Authorization, Jagan Nicholas Ranjan

Michigan Law Review

The political outcry over prescription drug costs has been one of the most vociferous in recent memory. From tales depicting renegade seniors sneaking cheap prescriptions of Vioxx out of Tijuana across the border, to the promises of reduced prices made by front-runners during the 2000 Presidential election, the calls for lower drug prices have been forceful and demanding. This war for lower-priced pharmaceuticals fought by consumers, interest groups and politicians against the pharmaceutical industry itself has recently developed yet another front. The latest battle is over Medicaid. The new victims are the poor. Presently, federal statutory provisions in the Medicaid …

Suspecting The States: Supreme Court Review Of State-Court State-Law Judgments, Laura S. Fitzgerald

Michigan Law Review

At the Supreme Court these days, it is unfashionable to second-guess states' fealty to federal law without real proof that they are ignoring it. As the Court declared in Alden v. Maine: "We are unwilling to assume the States will refuse to honor the Constitution or obey the binding laws of the United States. The good faith of the States thus provides an important assurance that 'this Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land.'" Accordingly, without proof that a state has "systematic[ally]" …

No Longer Safe At Home: Preventing The Misuse Of Federal Common Law Of Foreign Relations As A Defense Tactic In Private Transnational Litigation, Lumen N. Mulligan

Michigan Law Review

In an increasingly common litigation strategy, plaintiffs in Patrickson v. Dole Food Company, laborers in the banana industries of Costa Rica, Ecuador, Guatemala and Panama, brought a classaction suit in Hawaii state court against Dole Food and other defendants. Plaintiffs brought only state law causes of action, alleging that they had been harmed by Dole Food's use of DBCP, a toxic pesticide banned from use in the United States. Dole Food removed the case to federal district court seeking the procedural advantages of a federal forum, as corporate defendants facing alien tort plaintiffs seeking redress for overseas conduct invariably do. …

John Marshall, Mcculloch V. Maryland, And "We The People": Revisions In Need Of Revising, Martin S. Flaherty

William & Mary Law Review

No abstract provided.

Marriage And Belonging, Ann Laquer Estin

Michigan Law Review

Marriage is a quintessentially private institution. Justice Douglas put the point this way in 1965, writing for the Supreme Court in Griswold v. Connecticut: "We deal with a right of privacy older than the Bill of Rights - older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association …

The Imperial Sovereign: Sovereign Immunity & The Ada, Judith Olans Brown, Wendy E. Parmet

University of Michigan Journal of Law Reform

Professors Brown and Parmet examine the impact of the Supreme Court's resurrection of state sovereign immunity on the rights of individuals protected by the Americans with Disabilities Act in light of the recent decision, Board of Trustees of the University of Alabama v. Garrett. Placing Garrett within the context of the Rehnquist Court's evolving reallocation of state and federal authority, they argue that the Court has relied upon a mythic and dangerous notion of sovereignty that is foreign to the Framers' understanding. Brown and Parmet go on to show that, by determining that federalism compels constraining congressional power to …

The Racial Origins Of Modern Criminal Procedure, Michael J. Klarman

Michigan Law Review

The constitutional law of state criminal procedure was born between the First and Second World Wars. Prior to 1920, the Supreme Court had upset the results of the state criminal justice system in just a handful of cases, all involving race discrimination in jury selection. By 1940, however, the Court had interpreted the Due Process Clause of the Fourteenth Amendment to invalidate state criminal convictions in a wide variety of settings: mob-dominated trials, violation of the right to counsel, coerced confessions, financially-biased judges, and knowingly perjured testimony by prosecution witnesses. In addition, the Court had broadened its earlier decisions forbidding …

Losing Faith: America Without Judicial Review?, Erwin Chemerinsky

Michigan Law Review

In the last decade, it has become increasingly trendy to question whether the Supreme Court and constitutional judicial review really can make a difference. Gerald Rosenberg, for example, in The Hollow Hope, expressly questions whether judicial review achieves effective social change. Similarly, Michael Klarman explores whether the Supreme Court's desegregation decisions were effective, except insofar as they produced a right-wing backlash that induced action to desegregate. In Taking the Constitution Away from the Courts, Mark Tushnet approvingly invokes these arguments (pp. 137, 145), but he goes much further. Professor Tushnet contends that, on balance, constitutional judicial review is harmful. He …

Treaty-Making And The Nation: The Historical Foundations Of The Nationalist Conception Of The Treaty Power, David M. Golove

Michigan Law Review

Characteristic of the most enduring constitutional controversies is a clash between fundamental but ultimately irreconcilable principles. Unable to synthesize opposing precepts, we visit and revisit certain issues in an endless cycle. Each generation marches forward heedless, and sometimes only dimly aware, of how many times the battle has already been fought. Even the peace of exhaustion achieves only a temporary respite. The abiding controversy over the relationship between the treaty power of the national government and the legislative powers of the states is paradigmatic in this respect. Beginning as early as in the first debate over ratification of the Articles …

Staking Out The Border Between Comandeering And Conditional Preemption: Is The Driver's Privacy Protection Act Constitutional Under The Tenth Amendment?, Rachel F. Preiser

Michigan Law Review

Congress passed the Driver's Privacy Protection Act of 1994 ("DPPA") in response to state sales of personal information contained in motor vehicle records to individuals and to direct marketing companies who use it to identify select groups of prospective customers for particular products. Thirty-four states sell their department of motor vehicles ("DMV") records to individual citizens and to direct marketers, essentially allowing their unregulated distribution to any party seeking them. This practice of selling and distributing personal information has serious implications for the privacy and safety of individual citizens. In considering the DPP A, Congress dwelt in particular on the …

Citizen Suits Under The Resource Conservation And Recovery Act: Plotting Abstention On A Map Of Federalism, Charlotte Gibson

Michigan Law Review

In the shadow of the Supreme Court's constitutional federalism doctrines, lower federal courts have developed doctrines of common law federalism through vehicles such as abstention. In the environmental law arena, courts have employed a number of abstention theories to dismiss citizen suits brought under federal statutes. The appearance of primary jurisdiction and Burford abstention in citizen suits brought under the Resource Conservation and Recovery Act ("RCRA") exemplifies this trend. In rejecting RCRA suits, some courts have relied on primary jurisdiction, a doctrine conceived as a mechanism to allocate responsibility for limited fact-finding between courts and agencies, to dismiss RCRA citizen …

Dissecting The State: The Use Of Federal Law To Free State And Local Officials From State Legislatures' Control, Roderick M. Hills Jr.

Michigan Law Review

In discussions about American federalism, it is common to speak of a "state government" as if it were a black box, an individual speaking with a single voice. State governments are, of course, no such thing. Rather, a "state" actually incorporates a bundle of different subdivisions, branches, and agencies controlled by politicians who often compete with each other for electoral success and governmental power. In particular, these institutions compete with each other for the power to control federal funds and implement federal programs. This article explores one aspect of this intrastate competition - the extent to which federal law can …

Caste, Class, And Equal Citizenship, William E. Forbath

Michigan Law Review

There is a familiar egalitarian constitutional tradition and another we have largely forgotten. The familiar one springs from Brown v. Board of Education; its roots lie in the Reconstruction era. Court-centered and countermajoritarian, it takes aim at caste and racial subordination. The forgotten one also originated with Reconstruction, but it was a majoritarian tradition, addressing its arguments to lawmakers and citizens, not to courts. Aimed against harsh class inequalities, it centered on decent work and livelihoods, social provision, and a measure of economic independence and democracy. Borrowing a phrase from its Progressive Era proponents, I will call it the social …

Civics 2000: Process Constitutionalism At Yale, Daniel J. Hulsebosch

Michigan Law Review

One or another form of historical fidelity has long been in the repetoire of constitutional interpretation, and during the last two decades conservative jurists have searched for the "original intent" of various clauses. Increasingly, however, it is liberal law professors who are turning to history to make sense of American constitutionalism. What they find there is not a document listing eternal rights or duties but rather a multidimensional structure of government, captured as much in practice as on paper, that has metamorphosed over time. It seems we have, in that familiar phrase, a living Constitution. But interest is shifting from …