Law Commons^™

Radicals In Their Own Time: Four Hundred Years Of Struggle For Liberty And Equal Justice In America [Introduction & Selected Chapter Extracts], Michael Anthony Lawrence

Michael Anthony Lawrence

This book explores the lives of five individuals whose lifetimes, laid beginning to end, together form a nearly-continuous sweep of four hundred years of American history: Roger Williams (1603-1683), Thomas Paine (1737-1809), Elizabeth Cady Stanton (1815-1902); W.E.B Du Bois (1868-1963); and Vine Deloria (1933-2005). Radicals all, each did more than anyone during their respective eras to challenge and ultimately force government to honor Americans’ natural birthright of individual liberty and equal justice. Each, has had a profound impact on American history.

In discussing Williams, Paine, Stanton, Du Bois and Deloria, this book makes two important observations. First, each argued in …

Rescuing The Fourteenth Amendment Privileges Or Immunities Clause: How “Attrition Of Parliamentary Processes” Begat Accidental Ambiguity; How Ambiguity Begat Slaughterhouse, Michael Anthony Lawrence

Michael Anthony Lawrence

This essay addresses a topic of great academic and practical interest currently facing the Supreme Court: whether the Privileges or Immunities Clause, which has lain dormant since the Court’s erroneous 1873 SlaughterHouse Cases decision, should be resurrected in order to apply the Second Amendment to the States.

The essay makes the unique argument that the textual basis for the SlaughterHouse Court’s holding regarding the clause - i.e., the lack of parallel textual construction in the Fourteenth Amendment Section One’s first two sentences regarding citizenship - was in fact the wholly unintentional product of what we might call “attrition of parliamentary …

Reading Tea Leaves In Federal Election Commission V. Wisconsin Right To Life: Hope For A Buckley Evolution?, Michael Anthony Lawrence

Michael Anthony Lawrence

During its 2006-07 Term the U.S. Supreme Court decided Federal Election Commission v. Wisconsin Right to Life, Inc., the latest in a long line of cases sprouting from the seminal 1976 First Amendment campaign finance case, Buckley v. Valeo. In Wisconsin Right to Life, the Court concluded that Section 203 of the federal Bipartisan Campaign Reform Act of 2002, prohibiting the use of corporate funds to finance “electioneering communications” during a specified pre-election period, constituted an as-applied violation of a non-profit corporation’s free speech rights.

Wisconsin Right to Life offers useful insights into the Roberts Court’s thinking on the lively …

Government As Liberty's Servant: The "Reasonable Time, Place And Manner" Standard Of Review For All Government Restrictions On Liberty Interests, Michael Anthony Lawrence

Michael Anthony Lawrence

This essay suggests that the American legal system fails to do proper justice to the robust conception of Liberty under which the nation was founded, and locates a major source of the problem in the Supreme Court’s current presumption-of-constitutionality approach to judicial review, prompted by post-New Deal backlash to Lochner v. New York. This essay offers a new due process clause-based presumption-of-liberty standard of judicial review, modeled on the Court’s existing First Amendment “reasonable time, place and manner” doctrine. This approach, already utilized narrowly by the Third Circuit Federal Court of Appeals in Lutz v. York in 1990, more accurately …

Second Amendment Incorporation Through The Fourteenth Amendment Privileges Or Immunities And Due Process Clauses, Michael Anthony Lawrence

Michael Anthony Lawrence

The second amendment, alternately maligned over the years as the black sheep of the constitutional family and worse, and praised as a palladium of the liberties of a republic, since it offers a strong moral check against the usurpation and arbitrary power of rulers, should be recognized by the United States Supreme Court to apply to the several States through the Fourteenth Amendment privileges or immunities clause or, alternatively, through the due process clause.

This article suggests that the issue of Second Amendment incorporation presents a useful contemporary mechanism for the Court to revive the long-dormant Fourteenth Amendment privileges or …

Reviving A Natural Right: The Freedom Of Autonomy, Michael Anthony Lawrence

Michael Anthony Lawrence

This article explores the historical foundations of the individual rights of equality and free choice on matters of natural private concern (collectively, “freedom of autonomy”) in America, looks at several present-day applications, and concludes that meaningful steps must be taken – by encouraging greater awareness among lawmakers and courts of original meanings of the constitutional terms “liberty,” “property,” “privileges,” and “immunities,” and perhaps even through constitutional amendment – to revive this most basic right from an overbearing government.

Do “Creatures Of The State” Have Constitutional Rights?: Standing For Municipalities To Assert Procedural Due Process Claims Against The State, Michael Anthony Lawrence

Michael Anthony Lawrence

Conventional wisdom holds that a municipal corporation receives no protection from the equal protection and due process clauses as against its creating state. The reasoning is that municipal corporations, as mere subunits or instrumentalities of the state, are simply ineligible for such constitutional protections.

This article argues that municipal corporations, as "persons" under the Constitution, do in fact have standing to assert procedural due process claims against their creating states in cases not involving substantive matters of the state’s internal political organization. Judicial recognition of this principle would advance important values of fairness and doctrinal consistency in state-local relations, and …

A New Case For Direct Congressional Regulation Of Guns In School Zones, Michael Anthony Lawrence

Michael Anthony Lawrence

This article suggests that in the wake of last year’s school shootings at Columbine High School in Littleton, Colorado, Congress may justifiably exercise its commerce power to regulate arms in schools, notwithstanding its contrary holding in Lopez v. U.S in 1995. Sadly, with Columbine, the scope of violence in schools has assumed vastly more serious dimensions – to the point where such acts may accurately be labeled as premeditated acts of domestic terrorism.

Under such circumstances, Congress may reasonably enact laws designed to curb the interstate market for weapons used in these attacks. If Congress concludes, for example, that imposing …

Common Property And Natural Resource Management: A Michigan Perspective, Michael Anthony Lawrence

Michael Anthony Lawrence

In the thirty years since the publication of Garrett Hardin’s classic essay, The Tragedy of the Commons, academics have debated how to overcome the problems created for the environment by overpopulation and overtaxed natural resources. This essay discusses how one state – the State of Michigan – has dealt with the issues posed by the “the tragedy of the commons.” Through state legislative means (with, e.g., the Wetlands Protection Act and the Sand Dune Protection and Management Act), through local legislative means (zoning), and through judicial interpretation of common law and the United States and Michigan Constitutions, a body of …

Providing Guidance And Counsel On Ethics To Public Officials And Employees: The Proposed Michigan Government Ethics Act Of 1999, Michael Anthony Lawrence

Michael Anthony Lawrence

This article proposes a new Government Ethics Act for Michigan which would include the three cornerstone elements of any truly effective ethics law – (1) a clearly defined list of proscribed activities, (2) meaningful disclosure requirements, and (3) a strong independent ethics board. The article proceeds by first surveying the existing ethics laws in all fifty states, then sets forth a proposed Act for Michigan, and concludes with a section-by-section commentary of the Act. The article suggests public officials should welcome such a comprehensive code of ethics that provides certainty and clear standards; as contrasted to the alternative status quo …

A Proposal To Reform The Michigan Zoning Enabling Act To Allow Amortization Of Nonconforming Uses, Michael Anthony Lawrence

Michael Anthony Lawrence

This article suggests that the Michigan legislature should amend the Michigan Zoning Enabling Act in order to explicitly allow state and local government to amortize nonconforming property uses under limited circumstances. While the current prohibition on amortization protects individual rights and is thus laudable as a liberty-friendly law, it goes too far by categorically refusing to give any account for the public interest.

A revised statute allowing amortization, but only when the government satisfies a substantial burden to demonstrate its “reasonableness,” including a showing that the property to be amortized can be put to reasonable alternate use, would properly recognize …

Toward A More Coherent Dormant Commerce Clause: A Proposed Unitary Framework, Michael Anthony Lawrence

Michael Anthony Lawrence

The Dormant Commerce Clause (DCC), bane of generations of law students, lawyers, judges and state & local legislators, does not lend itself to easy analysis. Indeed, the U.S. Supreme Court itself at various times has described its own DCC doctrine as “hopelessly confused,” “a quagmire,” and “not predictable.” This article attempts to aid in simplifying the analytical task by providing a new Unitary Framework taxonomy designed to bring order and improved predictability to the Court’s DCC doctrine.

• Finding Shade From The "Government In The Sunshine Act": A Proposal To Permit Private Informal Background Discussions At The U.S. International Trade Commission, Michael Anthony Lawrence

Michael Anthony Lawrence

This article suggests that the practice of International Trade Commission (ITC) commissioners not to deliberate or share opinions among the themselves before releasing their decisions in antidumping and countervailing duty (AD/CVD) cases is at once shortsighted, anti-intellectual, and ultimately unnecessary. The plain language and legislative history of the federal Government in the Sunshine Act - the ITC’s apparent procedural reason not to deliberate or share opinions – simply does not apply, either to informal background discussions among the commissioners designed to clarify issues and expose varying views, or to the sort of meetings where the commissioners might discuss AD/CVD cases. …

Bias In The International Trade Administration: The Need For Impartial Decisionmakers In United States Antidumping Proceedings, Michael Anthony Lawrence

Michael Anthony Lawrence

This article suggests that Congress should enact legislation requiring the Department of Commerce International Trade Administration (ITA) to employ Administrative Law Judges, operating under the rubric of the Administrative Procedure Act, in administering its antidumping proceedings. This recommendation responds to concerns of many in the international trade community who believe that the ITA’s antidumping proceedings are patently biased and unfair. This belief is based on the agency’s failure to provide parties with an impartial tribunal - as demonstrated, among other indicia, by the telling statistic that the ITA now implausibly finds fully 97% of the foreign companies it investigates guilty …

The Parol Evidence Rule In Wisconsin: Status In The Law Of Contract, Revisited, Michael Anthony Lawrence

Michael Anthony Lawrence

This Comment surveys Wisconsin parol evidence cases decided from 1980 through mid-1991. Drawing upon a 1972 New York University Law Review article for its methodology, the Comment empirically examines whether it is useful to categorize Wisconsin decisions according to the business sophistication (i.e., “status”) of parties to the contract. The Comment concludes that status is important in Wisconsin parol evidence cases, despite the fact that courts rarely mention it as a factor. The data indicate that the nature of the proffered parol evidence is important as well.

The Comment suggests that the results of this law-in-action survey are useful to …