Law Commons^™

Revising The Indian Plenary Power Doctrine, M. Henry Ishtani, Alexandra Fay

Michigan Journal of Race and Law

The federal Indian law doctrine of Congressional plenary power is long overdue for an overhaul. Since its troubling nineteenth-century origins in Kagama v. United States (1886), plenary power has justified invasive Congressional interventions and undermined Tribal sovereignty. The doctrine's legal basis remains a constitutional conundrum. This Article considers the Court's recent engagement with plenary power in Haaland v. Brackeen (2023). It argues that the Brackeen opinions may signal judicial readiness to reevaluate the doctrine. The Article takes ahold of Justice Gorsuch's critical assessment and runs with it, ultimately proposing a method for cleaning up this destructive and constitutionally dubious line …

Chevron And Stare Decisis, Kent Barnett, Christopher J. Walker

Articles

This Term, in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. U.S. Department of Commerce, the Supreme Court will expressly consider whether to overrule Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.—a bedrock precedent in administrative law that a reviewing court must defer to a federal agency’s reasonable interpretation of an ambiguous statute that the agency administers. In our contribution to this Chevron on Trial Symposium, we argue that the Court should decline this invitation because the pull of statutory stare decisis is too strong to overcome.

States’ Duty Under The Federal Elections Clause And A Federal Right To Education, Evan Caminker

Articles

Fifty years ago, in San Antonio Independent School District v. Rodriguez, the Supreme Court failed to address one of the preeminent civil rights issues of our generation—substandard and inequitable public education—by holding that the federal Constitution does not protect a general right to education. The Court didn’t completely close the door on a narrower argument that the Constitution guarantees “an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process.” Both litigants and scholars have been trying ever since to push that door open, pressing …

Is There Anything Left In The Fight Against Partisan Gerrymandering? Congressional Redistricting Commissions And The “Independent State Legislature Theory”, Derek A. Zeigler, Jose Urteaga

Michigan Law Review

Partisan gerrymandering is a scourge on our democracy. Instead of voters choosing their representatives, representatives choose their voters. Historically, individuals and states could pursue multiple paths to challenge partisan gerrymandering. One way was to bring claims in federal court. The Supreme Court shut this door in Rucho v. Common Cause. States can also resist partisan gerrymandering by establishing congressional redistricting commissions. However, the power of these commissions to draw congressional districts is at risk. In Moore v. Harper, a case decided in the Supreme Court’s 2022-2023 Term, the petitioners asked the Court to embrace the “Independent State Legislature …

The Dormant Commerce Clause As A Way To Combat The Anti-Competitive, Anti-Transmission-Development Effects Of State Right Of First Refusal Laws For Electricity Transmission Construction, Walker Mogen

Michigan Journal of Environmental & Administrative Law

To quickly decarbonize the electricity grid, new sources of renewable energy have to be connected to the grid. To connect these sources of energy to the grid, the rate of construction of new electricity infrastructure must increase quickly. The process to construct new electricity transmission infrastructure, however, is filled with chokepoints that slow its construction. State right of first refusal laws for transmission construction are one the things slowing the build out of the grid. These laws limit which companies can construct new transmission infrastructure to utilities and other companies already operating transmission infrastructure in a state. This Note, using …

Due Process And Equal Protection In Michigan Anishinaabe Courts, Matthew Fletcher

Articles

In 1968, largely because the United States Constitution does not apply to tribal government activity, Congress enacted the Indian Civil Rights Act–a federal law that requires tribal governments to guarantee due process and equal protection to persons under tribal jurisdiction. In 1978, the Supreme Court held that persons seeking to enforce those federal rights may do so in tribal forums only; federal and state courts are unavailable. Moreover, the Court held that tribes may choose to interpret the meanings of “due process” and “equal protection” in line with tribal laws, including customary laws. Since the advent of the self-determination era …

The Impact Of Post-Dobbs Abortion Bans On Prenatal Tort Claims, Aviva K. Diamond

Michigan Law Review

In June 2022, the Supreme Court revoked Americans’ fundamental right to abortion in Dobbs v. Jackson Women’s Health Organization. However, the Court said nothing about how its decision would impact tort claims related to reproductive care. Many states have since adopted near-total or early-gestational- age abortion bans, which has not only diminished access to reproductive care, but has also incidentally impaired the ability of plaintiffs to bring long-recognized prenatal tort claims. Prenatal tort claims—wrongful pregnancy, birth, and life—allow victims to recover when a medical professional negligently performs reproductive or prenatal care. This Note identifies the impact that post-Dobbs …

The Not-So-Standard Model: Reconsidering Agency-Head Review Of Administrative Adjudication Decisions, Rebecca S. Eisenberg, Nina A. Mendelson

Articles

The Supreme Court has invalidated multiple legislative design choices for independent agency structures in recent years, citing Article II and the need for political accountability through presidential control of agencies. In United States v. Arthrex, Inc., the Court turned to administrative adjudication, finding an Appointments Clause violation in the assignment of certain final patent adjudication decisions to appellate panels of unconfirmed administrative patent judges. As a remedy, a different majority declared unenforceable a statutory provision that had insulated Patent and Trademark Office (PTO) administrative adjudication decisions from political review for almost a century. The Court thereby enabled the politically appointed …

Responding To The New Major Questions Doctrine, Christopher J. Walker

Articles

The new major questions doctrine has been a focal point in administrative law scholarship and litigation over the past year. One overarching theme is that the doctrine is a deregulatory judicial power grab from both the executive and legislative branches. It limits the president’s ability to pursue a major policy agenda through regulation. And in the current era of political polarization, Congress is unlikely to have the capacity to pass legislation to provide the judicially required clear authorization for agencies to regulate major questions. Especially considering the various “vetogates” imposed by Senate and House rules, it is fair to conclude …

Constitutional Review Of Federal Tax Legislation, Reuven S. Avi-Yonah, Yoseph M. Edrey

Articles

What does the Constitution mean when it says that “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States” (U.S. Const. Article I, Section 8, Clause 1)?

The definition of “tax” for constitutional purposes has become important considering the Supreme Court’s 2012 decision in National Federation of Independent Business v. Sebelius (“NFIB”), in which Chief Justice Roberts for the Court upheld the constitutionality of the individual mandate of the Patient Protection and Affordable Care Act (“ACA”) under the taxing …

Status Manipulation In Chae Chan Ping V. United States, Sam Erman

Michigan Law Review

A Review of Chae Chan Ping v. United States. By Rose Cuison-Villazor in Critical Race Judgments: Rewritten U.S. Court Opinions on Race and the Law 74, 84. Edited by Bennett Capers, Devon W. Carbado, R.A. Lenhardt and Angela Onwuachi-Willig.

Allow Me To Transform: A Black Guy’S Guide To A New Constitution, Brandon Hasbrouck

Michigan Law Review

A Review of Allow Me to Retort: A Black Guy’s Guide to the Constitution. By Elie Mystal.

Akhil Amar’S Unusable Past, Gregory Ablavsky

Michigan Law Review

A Review of The Words That Made Us: America’s Constitutional Conversation, 1760–1840. By Akhil Reed Amar.

Textualism And The Indian Canons Of Statutory Construction, Alex Tallchief Skibine

University of Michigan Journal of Law Reform

When interpreting statutes enacted for the benefit or regulation of Indians or construing treaties signed with Indian nations, courts are supposed to apply any of five specific canons of construction relating to Indian Affairs. Through examining the modern line of Supreme Court cases involving statutory or treaty interpretation relating to Indian nations, this Article demonstrates that the Court has generally been faithful in applying canons relating to treaty interpretation or abrogation. The Court has also respected the canon requiring unequivocal expression of congressional intent before finding an abrogation of tribal sovereign immunity. However, there are two other canons that the …

Federal Pleading Standards In State Court, Marcus Gadson

Michigan Law Review

Most state courts cannot follow both their state constitutions and federal pleading standards. Even if they could, policy considerations unique to states compel state courts to reject federal pleading standards. This is because federal courts have changed pleading standards to allow judges to make factual determinations on a motion to dismiss and to require more factual detail in complaints. While scholars have vigorously debated whether these changes are wise, just, and permissible under the federal rules and the Constitution, they have ignored the even more important questions of whether state courts can and should adopt those pleading standards. The oversight …

Delegation At The Founding: A Response To Critics, Julian Davis Mortenson, Nicholas Bagley

Articles

This essay responds to the wide range of commentary on Delegation at the Founding, published previously in the Columbia Law Review. The critics’ arguments deserve thoughtful consideration and a careful response. We’re happy to supply both. As a matter of eighteenth-century legal and political theory, “rulemaking” could not be neatly described as either legislative or executive based on analysis of its scope, subject, or substantive effect. To the contrary: Depending on the relationships you chose to emphasize, a given act could properly be classified as both legislative (from the perspective of the immediate actor) and also executive (from the perspective …

Territoriality In American Criminal Law, Emma Kaufman

Michigan Law Review

It is a bedrock principle of American criminal law that the authority to try and punish someone for a crime arises from the crime’s connection to a particular place. Thus, we assume that a person who commits a crime in some location— say, Philadelphia—can be arrested by Philadelphia police for conduct deemed criminal by the Pennsylvania legislature, prosecuted in a Philadelphia court, and punished in a Pennsylvania prison. The idea that criminal law is tied to geography in this way is called the territoriality principle. This idea is so familiar that it usually goes unstated.

This Article foregrounds and questions …

Is Corporate Law Nonpartisan?, Ofer Eldar, Gabriel V. Rauterberg

Articles

Only rarely does the United States Supreme Court hear a case with fundamental implications for corporate law. In Carney v. Adams, however, the Supreme Court had the opportunity to address whether the State of Delaware’s requirement of partisan balance for its judiciary violates the First Amendment. Although the Court disposed of the case on other grounds, Justice Sotomayor acknowledged that the issue “will likely be raised again.” The stakes are high because most large businesses are incorporated in Delaware and thus are governed by its corporate law. Former Delaware governors and chief justices lined up to defend the state’s “nonpartisan” …

Most Favored Racial Hierarchy: The Ever-Evolving Ways Of The Supreme Court’S Superordination Of Whiteness, David Simson

Michigan Law Review

This Article engages in a critical comparative analysis of the recent history and likely future trajectory of the Supreme Court’s constitutional jurisprudence in matters of race and religion to uncover new aspects of the racial project that Reggie Oh has recently called the “racial superordination” of whiteness—the reinforcing of the superior status of whites in American society by, among other things, prioritizing their interests in structuring constitutional doctrine. This analysis shows that the Court is increasingly widening the gap between conceptions of, and levels of protection provided for, equality in the contexts of race and religion in ways that prioritize …

Second Chances: Why Michigan Should Categorically Prohibit The Sentence Of Juvenile Life Without Parole, Richard Zhao

University of Michigan Journal of Law Reform

The United States is the only country in the world that sentences children to die in prison. This practice, known as juvenile life without parole (JLWOP), is condemned by the United Nations Convention on the Rights of the Child. Yet twenty-five states still permit the sentence, and Michigan houses one of the nation’s largest JLWOP populations. Despite the U.S. Supreme Court’s ban on some forms of JLWOP, more must be done to further limit the use of this sentence. The current JLWOP sentencing scheme is untenable, imposes a significant financial burden on taxpayers, and perpetuates racial inequality. This Note explores …

The Politics Of Proportionality, Nelson Tebbe, Micah Schwartzman

Michigan Law Review

A Review of How Rights Went Wrong: Why Our Obsession With Rights Is Tearing America Apart. By Jamal Greene.

Securing Gun Rights By Statute: The Right To Keep And Bear Arms Outside The Constitution, Jacob D. Charles

Michigan Law Review

In popular and professional discourse, debate about the right to keep and bear arms most often revolves around the Second Amendment. But that narrow reference ignores a vast and expansive nonconstitutional legal regime privileging guns and their owners. This collection of nonconstitutional gun rights confers broad powers and immunities on gun owners that go far beyond those required by the Constitution, like rights to bring guns on private property against an owner’s wishes and to carry a concealed firearm in public with no training or background check. This Article catalogues this set of expansive laws and critically assesses them. Unlike …

The New Major Questions Doctrine, Daniel Deacon, Leah Litman

Law & Economics Working Papers

This article critically analyzes significant recent developments in the major questions doctrine. It highlights important shifts in what role the majorness of an agency policy plays in statutory interpretation, as well as changes in how the Court determines whether an agency policy is major. After the Supreme Court’s October 2021 term, the “new” major questions doctrine operates as a clear statement rule that directs courts not to discern the plain meaning of a statute using the normal tools of statutory interpretation, but to require explicit and specific congressional authorization for certain agency policies. Even broadly worded, otherwise unambiguous statutes do …

A Theory Of Constitutional Norms, Ashraf Ahmed

Michigan Law Review

The political convulsions of the past decade have fueled acute interest in constitutional norms or “conventions.” Despite intense scholarly attention, existing accounts are incomplete and do not answer at least one or more of three major questions: (1) What must all constitutional norms do? (2) What makes them conventional? (3) And why are they constitutional?

This Article advances an original theory of constitutional norms that answers these questions. First, it defines them and explains their general character: they are normative, contingent, and arbitrary practices that implement constitutional text and principle. Most scholars have foregone examining how norms are conventional or …

To Participate And Elect: Section 2 Of The Voting Rights Act At 40, Ellen D. Katz, Brian Remlinger, Andrew Dziedzic, Brooke Simone, Jordan Schuler

Other Publications

This paper provides an overview of cases decided under Section 2 of the Voting Rights Act between September 1, 1982 and December 31, 2021. It updates our 2006 study documenting Section 2 litigation through 2005. Of note is the substantial decline in the number of Section 2 cases decided and diminished success for the plaintiffs who bring them. While recent litigation (including Brnovich and Merrill v. Milligan) suggests that Section 2 is likely to occupy, at best, a diminished role in future electoral disputes, this paper shows that Section 2’s reach had already declined significantly prior to recent disputes. …

Not A Suicide Pact: Urgent Strategic Recommendations For Reducing Domestic Terrorism In The United States, Barbara L. Mcquade

Articles

America’s Bill of Rights protects U.S. citizens’ rights to free speech, to bear arms, and to be free from unreasonable searches and seizures, among other things. But, as the Supreme Court has consistently held, no right is absolute. All rights must be balanced against other societal needs, including and especially public safety. As the threat of domestic terrorism metastasizes in the United States, Americans need to use the practical wisdom that Justice Robert L. Jackson advised in 1949 to ensure the survival of the republic.

In recognition of this growing threat, the Biden administration issued the nation’s first National Strategy …

Textualism, Judicial Supremacy, And The Independent State Legislature Theory, Leah Litman, Katherine Shaw

Articles

This piece offers an extended critique of one aspect of the so-called “independent state legislature” theory. That theory, in brief, holds that the federal Constitution gives state legislatures, and withholds from any other state entity, the power to regulate federal elections. Proponents ground their theory in two provisions of the federal Constitution: Article I’s Elections Clause, which provides that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof,” and Article II’s Presidential Electors Clause, which provides that “[e]ach State shall appoint, in such Manner as the Legislature …

The Dubious Constitutional Origins Of Treaty Overrides: A Response To Rosenbloom And Shaheen, Reuven Avi-Yonah

Articles

In 1888, the Supreme Court decided a case called Whitney v. Robert- son, which is generally considered to be the source of the proposition that, under the Constitution, later-in-time statutes can override earlier treaties (the Rule). The Rule is highly controversial because it violates articles 26 and 27 of the Vienna Convention on the Law of Treaties (VCLT), which the United States has accepted as binding on it as cus- tomary international law (CIL). Despite that, the United States has since Whitney routinely engaged in treaty overrides, and the Court has repeatedly endorsed the Rule even while narrowing its application …

Disparate Discrimination, Leah M. Litman

Michigan Law Review

This Article explains and analyzes a recent trend in the Supreme Court’s cases regarding unintentional discrimination, where the argument is that a law has the effect of producing a disadvantage on members of a particular group. In religious discrimination cases, the Court has held that a law is presumptively unconstitutional if the law results in a comparable secular activity being treated more favorably than religious activity. Yet in racial discrimination cases, the Court has said the mere fact that a law more severely disadvantages racial minorities as a group does not suffice to establish unlawful discrimination.

The two tracks for …

Through A Glass, Darkly: Systemic Racism, Affirmative Action, And Disproportionate Minority Contact, Robin Walker Sterling

Michigan Law Review

This Article is the first to describe how systemic racism persists in a society that openly denounces racism and racist behaviors, using affirmative action and disproportionate minority contact as contrasting examples. Affirmative action and disproportionate minority contact are two sides of the same coin. Far from being distinct, these two social institutions function as two sides of the same ideology, sharing a common historical nucleus rooted in the mythologies that sustained chattel slavery in the United States. The effects of these narratives continue to operate in race-related jurisprudence and in the criminal legal system, sending normative messages about race and …