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Articles 31 - 60 of 72
Full-Text Articles in Law
Terry Firma: Background Democracy And Constitutional Foundations, Frank I. Michelman
Terry Firma: Background Democracy And Constitutional Foundations, Frank I. Michelman
Michigan Law Review
Ages ago, I had the excellent luck to fall into a collaboration with Terrance Sandalow to produce a casebook now long forgotten. There could have been no more bracing or beneficial learning experience for a fledgling legal scholar (meaning me). What brought us together indeed was luck from my standpoint, but it was enterprise, too - the brokerage of an alert West Publishing Company editor picking up on a casual remark of mine as he made one of his regular sweeps through Harvard Law School. A novice law professor, I mentioned to him how much I admired a new essay …
Losing Faith: America Without Judicial Review?, Erwin Chemerinsky
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 …
Choosing Justices: A Political Appointments Process And The Wages Of Judicial Supremacy, John C. Yoo
Choosing Justices: A Political Appointments Process And The Wages Of Judicial Supremacy, John C. Yoo
Michigan Law Review
William H. Rehnquist is not going to be Chief Justice forever - much to the chagrin of Republicans, no doubt. In the last century, Supreme Court Justices have retired, on average, at the age of seventy-one after approximately fourteen years on the bench. By the end of the term of the President we elect this November, Chief Justice Rehnquist will have served on the Supreme Court for thirty-two years and reached the age of eighty. The law of averages suggests that Chief Justice Rehnquist is likely to retire in the next presidential term. In addition to replacing Chief Justice Rehnquist, …
Is The Clean Air Act Unconstitutional?, Cass R. Sunstein
Is The Clean Air Act Unconstitutional?, Cass R. Sunstein
Michigan Law Review
This Article deals with two linked questions. The first involves the future of the Clean Air Act. The particular concern is how the Environmental Protection Agency ("EPA") might be encouraged, with help from reviewing courts, to issue better ambient air quality standards, and in the process to shift from some of the anachronisms of 1970s environmentalism to a more fruitful approach to environmental protection. The second question involves the role of the nondelegation doctrine in American public law, a doctrine that shows unmistakable signs of revival. I will suggest that improved performance by EPA and agencies in general, operating in …
Rights Against Rules: The Moral Structure Of American Constitutional Law, Matthew D. Adler
Rights Against Rules: The Moral Structure Of American Constitutional Law, Matthew D. Adler
Michigan Law Review
The Bill of Rights, by means of open-ended terms such as "freedom of speech," "equal protection," or "due process," refers to moral criteria, which take on constitutional status by virtue of being thus referenced. We can disagree about whether the proper methodology for judicial application of these criteria is originalist or nonoriginalist. The originalist looks, not to the true content of the moral criteria named by the Constitution, but to the framers' beliefs about that content; the nonoriginalist tries to determine what the criteria truly require, and ignores or gives less weight to the framers' views. Bracketing this disagreement, however, …
The Path To Habeas Corpus Narrows: Interpreting 28 U.S.C. § 2254(D)(1), Sharad Sushil Khandelwal
The Path To Habeas Corpus Narrows: Interpreting 28 U.S.C. § 2254(D)(1), Sharad Sushil Khandelwal
Michigan Law Review
The enforcement of the U.S. Constitution within the criminal justice system is an odd subspecies of constitutional law. In areas other than criminal law, federal courts act as the ultimate guarantors of constitutional rights by providing remedies whenever violations occur. Criminal law, however, is different by necessity; the bulk of criminal justice occurs in state courthouses, leaving constitutional compliance largely to state judges. The U.S. Supreme Court, of course, may review these decisions if it chooses, but a writ of certiorari can be elusive, especially given the Court's shrinking docket. After World War II, however, this feature of criminal constitutional …
Policy Distortion And Democratic Debilitation: Comparative Illumination Of The Countermajoritarian Difficulty, Mark Tushnet
Policy Distortion And Democratic Debilitation: Comparative Illumination Of The Countermajoritarian Difficulty, Mark Tushnet
Michigan Law Review
James Bradley Thayer set the terms of the past century's discussion of judicial review in The Origin and Scope of the American Doctrine of Constitutional Law. Thayer was concerned with what Alexander Bickel labeled the "countermajoritarian difficulty" with judicial review, that judicial review displaces decisions made by near-contemporaneous political majorities and therefore is open to the charge that it is undemocratic. Thayer attempted to minimize the displacement- of political majorities through his "clear error" rule, according to which courts should not overturn legislation unless "those who have the right to make laws have not merely made a mistake, but have …
The Constitution, The Legislature, And Unfair Surprise: Toward A Reliance-Based Approach To The Contract Clause, Robert A. Graham
The Constitution, The Legislature, And Unfair Surprise: Toward A Reliance-Based Approach To The Contract Clause, Robert A. Graham
Michigan Law Review
This Note argues that the Court should return to a reliance-based approach to Contract Clause challenges, fashioned loosely along the same lines as the HRID. Although it does not advocate that the Court revivify the rules created by the early decisions, the Note proposes that the Court look to the private parties' expectations and, more specifically, to the reasonableness of those expectations in deciding the clause's applicability to a particular case. Part I provides a brief history of the Contract Clause and its development. This Part follows the clause from the Constitutional Convention through the 1980s to illustrate the Court's …
The Supreme Court As Constitutional Interpreter: Chronology Without History, Herbert Hovenkamp
The Supreme Court As Constitutional Interpreter: Chronology Without History, Herbert Hovenkamp
Michigan Law Review
A Review of The Constitution in the Supreme Court: The Second Century, 1888-1986 by David P. Currie
Legislative Inputs And Gender-Based Discrimination In The Burger Court, Earl M. Maltz
Legislative Inputs And Gender-Based Discrimination In The Burger Court, Earl M. Maltz
Michigan Law Review
In An Interpretive History of Modem Equal Protection, Michael Klarman poses a powerful challenge to the conventional wisdom regarding the structure of Burger Court jurisprudence. Most commentators have concluded that during the Burger era the Court lacked a coherent vision of constitutional law, and was given to a "rootless" activism or a "pragmatic" approach to constitutional analysis. Klarman argues that, at least in the area of equal protection analysis, the Burger Court's approach did reflect a unifying theme, which he describes as a focus on "legislative inputs." According to Klarman, this approach "directs judicial review towards purging legislative decision-making of …
Judicial Power And Reform Politics: The Anatomy Of Lochner V. New York, Charles A. Beineman
Judicial Power And Reform Politics: The Anatomy Of Lochner V. New York, Charles A. Beineman
Michigan Law Review
A Review of Judicial Power and Reform Politics: The Anatomy of Lochner v. New York. By Paul Kens
The First Amendment, Burt Neuborne
Pure Politics, Girardeau A. Spann
Pure Politics, Girardeau A. Spann
Michigan Law Review
Part I of this article considers the impact that judicial discretion has on the traditional model of judicial review, and that model's reliance on the Supreme Court as the primary guardian of minority interests. Part II argues that the interests of racial minorities can be better advanced through the ordinary political process than through the process of Supreme Court adjudication. Part Ill emphasizes that minority participation in Supreme Court proceedings cannot ultimately be avoided and, accordingly, suggests a political model of the Court that minorities can use in an effort to neutralize the Court's distortion of the political process. Part …
Political Consensus, Constitutional Formulae, And The Rationale For Judicial Review, Martin H. Redish
Political Consensus, Constitutional Formulae, And The Rationale For Judicial Review, Martin H. Redish
Michigan Law Review
A Review of Constitutional Cultures; The Mentality and Consequences of Judicial Review by Robert Nagel
A Prior Restraint By Any Other Name: The Judicial Response To Media Challenges Of Gag Orders Directed At Trial Participants, René L. Todd
A Prior Restraint By Any Other Name: The Judicial Response To Media Challenges Of Gag Orders Directed At Trial Participants, René L. Todd
Michigan Law Review
Gag orders directed at trial participants do not directly intrude into the media's editorial process, but instead result in a reduction of the total communication available regarding trial proceedings. In this way, participant-directed gag orders are effective, albeit indirect, restraints upon the media. This Note examines the dynamics of these participant-directed restrictions and their consequent effect upon the media. Part I examines participant-directed gag orders in relation to traditional prior restraint doctrine. After discussing the history of prior restraint doctrine and the present standard of prior restraint analysis, Part I relates efforts by courts to apply. prior restraint doctrine to …
The Excessive History Of Federal Rule 15(C) And Its Lessons For Civil Rules Revision, Harold S. Lewis Jr.
The Excessive History Of Federal Rule 15(C) And Its Lessons For Civil Rules Revision, Harold S. Lewis Jr.
Michigan Law Review
This case study of one Federal Rule of Civil Procedure is designed to suggest affirmative answers to these questions. My focus is on the surprisingly extensive body of case law, culminating in the Supreme Court's 1986 decision in Schiavone v. Fortune, that parses the second sentence of Federal Rule 15(c). Added in 1966, that sentence attempts to set standards for the relation back of party-changing amendments to pleadings. A more prototypically pedestrian, less prepossessing topic of the traditionalist type could scarcely be imagined. Yet a review of its history brings larger points into sharp relief: something is seriously amiss in …
The Rise Of Modern Judicial Review: From Constitutional Interpretation To Judge-Made Law, Ward A. Greenberg
The Rise Of Modern Judicial Review: From Constitutional Interpretation To Judge-Made Law, Ward A. Greenberg
Michigan Law Review
A Review of The Rise of Modern Judicial Review: From Constitutional Interpretation to Judge-Made Law by Christopher Wolfe
The Delegation Doctrine: Could The Court Give It Substance?, David Schoenbrod
The Delegation Doctrine: Could The Court Give It Substance?, David Schoenbrod
Michigan Law Review
Part I of this Article demonstrates the need for a new approach to the delegation doctrine. It shows that the Court has failed to articulate a coherent test of improper delegation and that the alternative tests offered by commentators are not sufficient. Part II then sets forth a proposed test of improper delegation. The basic principles of an approach prohibiting delegations of legislative power are outlined and illustrated. This Article does not, however, attempt anything so grand as to suggest a final definition of the doctrine or to pass broadly on the validity of statutes. Such an encompassing analysis is …
The Legislative Branch And The Supreme Court, James Willard Hurst
The Legislative Branch And The Supreme Court, James Willard Hurst
University of Arkansas at Little Rock Law Review
No abstract provided.
Constitutional Adjudication: Deciding When To Decide, Carl Mcgowan
Constitutional Adjudication: Deciding When To Decide, Carl Mcgowan
Michigan Law Review
A Review of Judicial Review And The National Political Process: A Functional Reconsideration of the Role of the Supreme Court by Jesse H. Choper
The Role Of The Supreme Court, Raoul Berger
The Role Of The Supreme Court, Raoul Berger
University of Arkansas at Little Rock Law Review
No abstract provided.
The Eighteenth-Century Background Of John Marshall's Constitutional Jurisprudence, William E. Nelson
The Eighteenth-Century Background Of John Marshall's Constitutional Jurisprudence, William E. Nelson
Michigan Law Review
This analysis of Marshall's constitutional jurisprudence avoids the pitfalls of previous theories. It does not see the Federalist political program as the source of Marshall's constitutional doctrines and thus does not need to explain how Marshall qualified his political principles or how he convinced non-Federalist judges to accept them. Instead, this essay argues that legal, not political, principles underlay Marshall's jurisprudence, but it attempts to understand those principles in a manner consistent with the unavoidable twentieth-century assumption that law is a body of flexible rules responsive to social reality rather than a series of immutable, unambiguous doctrines derived from a …
What Has The Supreme Court Taught: A Criticism Of The Unites States Supreme Court By Way Of A Critique Of Lance V. The Board Of Education Of Roane County, James Audley Mclaughlin
What Has The Supreme Court Taught: A Criticism Of The Unites States Supreme Court By Way Of A Critique Of Lance V. The Board Of Education Of Roane County, James Audley Mclaughlin
West Virginia Law Review
The subway fare in New York City was recently raised to thirty cents. Incensed citizens immediately declared they would go to court and have the increase declared unconstitutional. "Unconstitutional" and "constitutional rights" have become the watchwords of political protestors and reformers. Moreover, their political forum is often a court of law. Who taught the nation this rhetoric, this mode of action, and this attitude toward law, law reform, and politics? The Supreme Court of the United States. Has the Court deliberately taught this doctrine? No, nor is it apparently even conscious of what it has unwittingly done. It is important …
Labor Law-Arbitration And Award-Judicial Review Of Labor Arbitration Awards Which Rely On The Practices Of The Parties, Michigan Law Review
Labor Law-Arbitration And Award-Judicial Review Of Labor Arbitration Awards Which Rely On The Practices Of The Parties, Michigan Law Review
Michigan Law Review
Modem collective bargaining agreements typically provide for private arbitration as the means of resolving disputes between employees and management over the interpretation and application of the agreement. In the event the arbitrator's decision is challenged in court by the adversely-affected party, the question of how much judicial deference should be given to the private ruling becomes of some importance. The Supreme Court has set out guidelines which purport to define the proper role of courts in such disputes-that role being for the most part one of judicial deference to arbitrator's decisions. Nevertheless, the appropriate scope of judicial review remains unclear. …
Reapportionment In The Supreme Court And Congress: Constitutional Struggle For Fair Representation, Robert G. Dixon Jr.
Reapportionment In The Supreme Court And Congress: Constitutional Struggle For Fair Representation, Robert G. Dixon Jr.
Michigan Law Review
Fair representation is the ultimate goal. At the time of the Reapportionment Decisions, much change was overdue in some states, and at least some change was overdue in most states. We are a democratic people and our institutions presuppose according population a dominant role in formulas of representation. However, by its exclusive focus on bare numbers, the Court may have transformed one of the most intricate, fascinating, and elusive problems of democracy into a simple exercise of applying elementary arithmetic to census data. In so doing, the Court may have disabled itself from effectively considering the more subtle issues …
Some Comments On The Reapportionment Cases, Paul G. Kauper
Some Comments On The Reapportionment Cases, Paul G. Kauper
Michigan Law Review
Any appraisal of the Supreme Court's decisions in the legislative reapportionment cases must necessarily distinguish between the basic policy ingredients and social consequences of the decisions on the one hand, and the question whether the results were reached by a proper exercise of judicial power on the other. Respecting the first of these considerations, I have no difficulty identifying the social advantages accruing from these decisions. Because of the stress on the population principle, the decisions will afford a greater voice to urban interests, will make the legislative process more responsive to current needs of particular concern to urban dwellers, …
Hyneman: The Supreme Court On Trial, William W. Van Alstyne
Hyneman: The Supreme Court On Trial, William W. Van Alstyne
Michigan Law Review
A Review of The Supreme Court on Trial. By Charles S. Hyneman
Judicial Review: Political Reality And Legislative Purpose: The Supreme Court's Supervision Of Congressional Investigations, Martin Shapiro
Judicial Review: Political Reality And Legislative Purpose: The Supreme Court's Supervision Of Congressional Investigations, Martin Shapiro
Vanderbilt Law Review
The Supreme Court has long claimed the power to exercise judicial review over the investigatory activities of Congress. The most severe limitation the Court has imposed is the requirement of legislative purpose. Investigations must be conducted for the purpose of aiding Congress in making the laws. But the Court has also introduced the doctrine of presumption of legislative purpose. The Justices will presume that the investigating committee and the Congress which authorized it had a legislative purpose in pursuing the inquiry. It will be argued here that these two doctrines are completely inter-dependent; once legislative purpose was required, presumption was …