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University of Michigan Law School

1995

Precedent

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How To Think About The Federal Commerce Power And Incidentally Rewrite United States V. Lopez, Donald H. Regan Jan 1995

How To Think About The Federal Commerce Power And Incidentally Rewrite United States V. Lopez, Donald H. Regan

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Almost sixty years after the "revolution" of 1937, we still do not have an adequate theory of the commerce power. The Court was right to abandon the theory of dual federalism epitomized by Carter v. Carter Coal Co.;' and it has got the right results in the major cases decided since then. But our post-1937 theory, whether before or after Lopez, is a mess. On the one hand, we have a collection of doctrinal rules that, if we take them seriously, allow Congress to do anything it wants under the commerce power. On the other hand, we continue to pay …


What's An Opinion For? (Special Issue: Judicial Opinion Writing), James Boyd White Jan 1995

What's An Opinion For? (Special Issue: Judicial Opinion Writing), James Boyd White

Articles

The question the papers in this Special Issue address is whether it matters how judicial opinions are written, and if so why. My hope here is to suggest a way of elaborating the ques­tion that may provide the reader with a useful point of departure for reading the more extensive papers that follow.