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The Cunning Of Reason: Michael Klarman's The Framers' Coup, Charles Fried Apr 2018

The Cunning Of Reason: Michael Klarman's The Framers' Coup, Charles Fried

Michigan Law Review

A review of Michael J. Klarman, The Framers' Coup: The Making of the United States Constitution.


Be Careful What You Wish For? Reducing Inequality In The Twenty-First Century, Reuven S. Avi-Yonah, Orli K. Avi-Yonah Apr 2018

Be Careful What You Wish For? Reducing Inequality In The Twenty-First Century, Reuven S. Avi-Yonah, Orli K. Avi-Yonah

Michigan Law Review

A review of Walter Scheidel, The Great Leveler: Violence and the History of Inequality from the Stone Age to the Twenty-First Century.


Why The Burger Court Mattered, David A. Strauss Apr 2018

Why The Burger Court Mattered, David A. Strauss

Michigan Law Review

A review of Michael J. Graetz and Linda Greenhouse, The Burger Court and the Rise of the Judicial Right.


"The Essential Characteristic": Enumerated Powers And The Bank Of The United States, Richard Primus Jan 2018

"The Essential Characteristic": Enumerated Powers And The Bank Of The United States, Richard Primus

Michigan Law Review

The idea that Congress can legislate only on the basis of its enumerated powers is an orthodox proposition of constitutional law, one that is generally supposed to have been recognized as essential ever since the Founding. Conventional understandings of several episodes in constitutional history reinforce this proposition. But the reality of many of those events is more complicated. Consider the 1791 debate over creating the Bank of the United States, in which Madison famously argued against the Bank on enumerated-powers grounds. The conventional memory of the Bank episode reinforces the sense that the orthodox view of enumerated powers has been …


Slaves As Plaintiffs, Alfred L. Brophy Apr 2017

Slaves As Plaintiffs, Alfred L. Brophy

Michigan Law Review

Review of Redemption Songs: Suing for Freedom Before Dred Scott by Lea VanderVelde.


State-Action Immunity And Section 5 Of The Ftc Act, Daniel A. Crane, Adam Hester Dec 2016

State-Action Immunity And Section 5 Of The Ftc Act, Daniel A. Crane, Adam Hester

Michigan Law Review

The state-action immunity doctrine of Parker v. Brown immunizes anticompetitive state regulations from preemption by federal antitrust law so long as the state takes conspicuous ownership of its anticompetitive policy. In its 1943 Parker decision, the Supreme Court justified this doctrine, observing that no evidence of a congressional will to preempt state law appears in the Sherman Act’s legislative history or context. In addition, commentators generally assume that the New Deal court was anxious to avoid re-entangling the federal judiciary in Lochner-style substantive due process analysis. The Supreme Court has observed, without deciding, that the Federal Trade Commission might …


The Sweeping Domestic War Powers Of Congress, Saikrishna Bangalore Prakash Jun 2015

The Sweeping Domestic War Powers Of Congress, Saikrishna Bangalore Prakash

Michigan Law Review

With the Habeas Clause standing as a curious exception, the Constitution seems mysteriously mute regarding federal authority during invasions and rebellions. In truth, the Constitution speaks volumes about these domestic wars. The inability to perceive the contours of the domestic wartime Constitution stems, in part, from unfamiliarity with the multifarious emergency legislation enacted during the Revolutionary War. During that war, state and national legislatures authorized the seizure of property, military trial of civilians, and temporary dictatorships. Ratified against the backdrop of these fairly recent wartime measures, the Constitution, via the Necessary and Proper Clause and other provisions, rather clearly augmented …


Saving Originalism, Robert J. Delahunty, John Yoo Apr 2015

Saving Originalism, Robert J. Delahunty, John Yoo

Michigan Law Review

It is sometimes said that biographers cannot help but come to admire, even love, their subjects. And that adage seems to ring true of Professor Amar, the foremost “biographer” of the Constitution. He loves it not just as a governing structure, or a political system, but as a document. He loves the Constitution in the same way that a fan of English literature might treasure Milton’s Paradise Lost or Shakespeare’s Macbeth. He loves the Constitution not just for the good: the separation of powers, federalism, and the Bill of Rights. He also loves it for its nooks and crannies, idiosyncrasies, …


A Pragmatic Republic, If You Can Keep It, William R. Sherman Apr 2014

A Pragmatic Republic, If You Can Keep It, William R. Sherman

Michigan Law Review

These things we know to be true: Our modern administrative state is a leviathan unimaginable by the Founders. It stands on thin constitutional ice, on cracks between the executive, legislative, and judicial branches. It burdens and entangles state and local governments in schemes that threaten federalism. And it presents an irresolvable dilemma regarding democratic accountability and political independence. We know these things to be true because these precepts animate some of the most significant cases and public law scholarship of our time. Underlying our examination of administrative agencies is an assumption that the problems they present would have been bizarre …


Racial Templates, Richard Delgado, Juan F. Perea Apr 2014

Racial Templates, Richard Delgado, Juan F. Perea

Michigan Law Review

This riveting tale of greed, international skullduggery, and behind-the-scenes heroism recounts the events that led up to America’s “wicked war” with Mexico. It depicts how expansionist ambitions in high circles fueled jingoistic propaganda (pp. 25, 34–35, 58), fed a public eager for national muscle flexing (pp. 57, 103, 108), and set the stage for a military skirmish in a disputed region between two rivers (pp. 75–77, 95, 100, 138) that provided the pretext for a savage and short-lived military campaign against the weak new nation of Mexico in which the U.S. Army, under General Scott, marched all the way to …


Oh, The Treatise!, Richard A. Danner Apr 2013

Oh, The Treatise!, Richard A. Danner

Michigan Law Review

In his foreword to the Michigan Law Review's 2009 Survey of Books Related to the Law, my former Duke colleague Erwin Chemerinsky posed the question: "[W]hy should law professors write?" In answering, Erwin took as a starting point the well-known criticisms of legal scholarship that Judge Harry Edwards published in this journal in 1992. Judge Edwards indicted legal scholars for failing to engage the practical problems facing lawyers and judges, writing instead for the benefit of scholars in law and other disciplines rather than for their professional audiences. He characterized "practical" legal scholarship as both prescriptive (aiming to instruct attorneys, …


Family History: Inside And Out, Kerry Abrams Apr 2013

Family History: Inside And Out, Kerry Abrams

Michigan Law Review

The twenty-first century has seen the dawn of a new era of the family, an era that has its roots in the twentieth. Many of the social and scientific phenomena of our time - same-sex couples, in vitro fertilization, single-parent families, international adoption - have inspired changes in the law. Legal change has encompassed both constitutional doctrine and statutory innovations, from landmark Supreme Court decisions articulating a right to procreate (or not), a liberty interest in the care, custody, and control of one's children, and even a right to marry, to state no-fault divorce statutes that have fundamentally changed the …


A Time For Presidential Power? War Time And The Constrained Executive, David Levine Apr 2013

A Time For Presidential Power? War Time And The Constrained Executive, David Levine

Michigan Law Review

Between 2002 and 2008 I served as an intelligence officer in the U.S. Air Force. Though I had been deployed overseas several times, my primary place of duty was in the United States. When I landed at Baghdad International Airport in June 2006, however, several things immediately changed for me as a result of military regulations. I had to carry my sidearm and dog tags at all times. I could not eat anywhere other than a U.S. military installation. I could not drink alcohol. My pay was a bit higher. Personally, I was more vigilant, more aware of my surroundings. …


Neither Sad Nor Strange: Recovering The Logic Of Anticruelty Organizations In Gilded Age America, Bryn Resser Pallesen Apr 2013

Neither Sad Nor Strange: Recovering The Logic Of Anticruelty Organizations In Gilded Age America, Bryn Resser Pallesen

Michigan Law Review

In 1877, the American Humane Association ("AHA") incorporated as one of the first national organizations dedicated to the protection of animals. Nine years later, it amended its constitution to include the protection of children in its chartered mission. By 1908, there were 354 anticruelty organizations in the United States, 185 of which were, like the AHA, humane societies invested in the welfare of both animals and children (pp. 2-3). As primary source documents reveal, Gilded Age humanitarians viewed the joint pursuit of child and animal protection as entirely sensible (p. 5). One of the Illinois Humane Society's founding directors, for …


Restoring Restitution To The Canon, Douglas Laycock Apr 2012

Restoring Restitution To The Canon, Douglas Laycock

Michigan Law Review

The Restatement (Third) of Restitution and Unjust Enrichment brings clarity and light to an area of law long shrouded in fogs that linger from an earlier era of the legal system. It makes an important body of law once again accessible to lawyers and judges. This new Restatement should be on every litigator's bookshelf, and a broad set of transactional lawyers and legal academics would also do well to become familiar with it. Credit for this Restatement goes to its Reporter, Professor Andrew Kull. Of course his work benefited from the elaborate processes of the American Law Institute, with every …


Regulating By Repute, David Zaring Apr 2012

Regulating By Repute, David Zaring

Michigan Law Review

Is regulation a hopeless cause? Many thoughtful observers spend a lot of time enumerating all of the reasons why it is doomed to fail. The entire field of public choice, with impeccable logic, posits the likely corruption of every bureaucrat. And if corruption cannot explain the failure of regulation, the atrophy that comes from lack of competition-there is just one government, after all, and it does not have a profit motive-may be just as rich a vein to mine. It could also be that the legal system itself, with its myriad complexities, checks, and procedural requirements, may ossify to the …


Facades Of Justice, Norman W. Spaulding Apr 2012

Facades Of Justice, Norman W. Spaulding

Michigan Law Review

Representing Justice is a book of encyclopedic proportions on the iconography of justice and the organization of space in which adjudication occurs. Professors Judith Resnik and Dennis Curtis have gathered a provocative array of images, ranging from the scales of the Babylonian god Shamash-"judge of heaven and earth"-on a 4,200-year-old seal (pp. 18- 19 & fig. 23), and a 600-year-old painting of Saint Michael weighing the souls at the Last Judgment with sword and scales in hand (p. 23 fig. 25) to the tiny Cook County Courthouse in Grand Marais, Minnesota, 110 miles north of Duluth (p. 372 fig. 226), …


Theorizing American Freedom, Anthony O'Rourke Apr 2012

Theorizing American Freedom, Anthony O'Rourke

Michigan Law Review

Some intellectual concepts once central to America's constitutional discourse are, for better and worse, no longer part of our political language. These concepts may be so alien to us that they would remain invisible without carefully reexamining the past to challenge the received narratives of America's constitutional development. Should constitutional theorists undertake this kind of historical reexamination? If so, to what extent should they be willing to stray from the disciplinary norms that govern intellectual history? And what normative aims can they reasonably expect to achieve by exploring ideas in our past that are no longer reflected in the Constitution's …


Race And Constitutional Law Casebooks: Recognizing The Proslavery Constitution, Juan F. Perea Apr 2012

Race And Constitutional Law Casebooks: Recognizing The Proslavery Constitution, Juan F. Perea

Michigan Law Review

Federalist No. 54 shows that part of Madison's public defense of the Constitution included the defense of some of its proslavery provisions. Madison and his reading public were well aware that aspects of the Constitution protected slavery. These aspects of the Constitution were publicly debated in the press and in state ratification conventions. Just as the Constitution's protections for slavery were debated at the time of its framing and ratification, the relationship between slavery and the Constitution remains a subject of debate. Historians continue to debate the centrality of slavery to the Constitution. The majority position among historians today appears …


Deconstructing 'Just And Proper': Arguments In Favor Of Adopting The 'Remedial Purpose' Approach To Section 10(J) Labor Injunctions, William K. Briggs Oct 2011

Deconstructing 'Just And Proper': Arguments In Favor Of Adopting The 'Remedial Purpose' Approach To Section 10(J) Labor Injunctions, William K. Briggs

Michigan Law Review

Congress, through the 1947 addition of section 10(j) to the National Labor Relations Act, authorized district courts to grant preliminary injunctive relief for unfair labor practices if they deem such relief "just and proper." To this day a circuit split persists over the correct interpretation of this "just and proper" standard. Some circuits interpret "just and proper" to require application of the traditional equitable principles approach that normally governs preliminary injunctions. Other circuits interpret "just and proper" to require an analysis of whether injunctive relief is necessary to preserve the National Labor Relations Board's remedial power This Note examines the …


Williams V. Lee And The Debate Over Indian Equality, Bethany R. Berger Jun 2011

Williams V. Lee And The Debate Over Indian Equality, Bethany R. Berger

Michigan Law Review

Williams v. Lee (1959) created a bridge between century-old affirmations of the immunity of Indian territories from state jurisdiction and the tribal self-determination policy of the twentieth century. It has been called the first case in the modern era of federal Indian law. Although no one has written a history of the case, it is generally assumed to be the product of a timeless and unquestioning struggle of Indian peoples for sovereignty. This Article, based on interviews with the still-living participants in the case and on examination of the congressional records, Navajo council minutes, and Supreme Court transcripts, records, and …


But How Will The People Know? Public Opinion As A Meager Influence In Shaping Contemporary Supreme Court Decision Making, Tom Goldstein, Amy Howe Apr 2011

But How Will The People Know? Public Opinion As A Meager Influence In Shaping Contemporary Supreme Court Decision Making, Tom Goldstein, Amy Howe

Michigan Law Review

Chief Justice John Roberts famously described the ideal Supreme Court Justice as analogous to a baseball umpire, who simply "applies" the rules, rather than making them. Roberts promised to "remember that it's my job to call balls and strikes and not to pitch or bat." At her own recent confirmation hearings, Elena Kagan demurred, opining that Roberts's metaphor might erroneously suggest that "everything is clear-cut, and that there's no judgment in the process." Based on his 2009 book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, Barry Friedman …


Framing The Fourth, Tracey Maclin, Julia Mirabella Apr 2011

Framing The Fourth, Tracey Maclin, Julia Mirabella

Michigan Law Review

Our knowledge of the Fourth Amendment's history was fundamentally transformed when William Cuddihy completed his Ph.D. dissertation in 1990. Cuddihy's study was the most comprehensive and detailed examination of the history of search and seizure law and essential reading for anyone interested in the amendment's history. At first, Cuddihy's work was little known: only a few people noticed when the highly regarded constitutional historian Leonard W. Levy stated that "Cuddihy is the best authority on the origins of the Fourth Amendment." Cuddihy finished his dissertation in 1990 and it remained unedited, unpublished, and largely unknown for several years-until Justice O'Connor …


Assessing The State Of The State Constitutionalism, Jim Rossi Apr 2011

Assessing The State Of The State Constitutionalism, Jim Rossi

Michigan Law Review

Robert Williams's The Law of American State Constitutions is an impressive career accomplishment for one of the leading academic lawyers writing on state constitutions. Given the need for a comprehensive, treatise-like treatment of state constitutions that transcends individual jurisdictions, Williams's book will almost certainly become the go-to treatise for the next generation of state constitutional law practitioners and scholars. The U.S. Constitution has a grip on how the American legal mind approaches issues in American constitutionalism, but an important recurring theme in Williams's work (as well as that of others) is how state constitutions present unique interpretive challenges. More than …


The Real Formalists, The Real Realists, And What They Tell Us About Judicial Decision And Legal Education, Edward Rubin Apr 2011

The Real Formalists, The Real Realists, And What They Tell Us About Judicial Decision And Legal Education, Edward Rubin

Michigan Law Review

The periodization of history, like chocolate cake, can have some bad effects on us, but it is hard to resist. We realize, of course, that Julius Caesar didn’t think of himself as “Classical” and Richard the Lionhearted didn’t regard the time in which he lived as the Middle Ages. Placing historical figures in subsequently defined periods separates us from them and impairs our ability to understand them on their own terms. But it is difficult to understand anything about them at all if we try to envision history as continuous and undifferentiated. We need periodization to organize events that are …


The Price Of Conflict: War, Taxes, And The Politics Of Fiscal Citizenship, Ajay K. Mehrotra Apr 2010

The Price Of Conflict: War, Taxes, And The Politics Of Fiscal Citizenship, Ajay K. Mehrotra

Michigan Law Review

This Review proceeds in four parts, paralleling the chronological organization of War and Taxes. It focuses mainly on the book's analysis of the leading modern American wars, from the Civil War through the global conflicts of the twentieth century, up to the recent war on terror. Part I contrasts the tax policies of the Union and Confederacy during the Civil War to show how the Lincoln Administration was able to overcome Yankee resistance to wartime tax hikes to wage a war against a Southern Confederacy that resolutely resisted any type of centralized taxation until, of course, it was too late. …


The Vitality Of The American Sovereign, Todd E. Pettys Jan 2010

The Vitality Of The American Sovereign, Todd E. Pettys

Michigan Law Review

The proposition that "the people" are the preeminent sovereign in the United States has long been a tenet of American public life. The authors of the Declaration of Independence characterized the American people's sovereignty as a "self-evident" truth when announcing the colonies' decision to sever their ties with Great Britain, the delegates to the Philadelphia Convention in 1787 invoked the people's sovereignty when framing the nation's Constitution, and Americans today exercise their sovereignty each time they cast their ballots on Election Day. Yet what prerogatives, precisely, does the people's sovereignty entail? In modern America, where neither a bloody revolution nor …


Examining Presidential Power Through The Rubric Of Equity, Eric A. White Oct 2009

Examining Presidential Power Through The Rubric Of Equity, Eric A. White

Michigan Law Review

In this Note I propose a method to examine presidents' actions taken outside the normal bounds of executive power by employing the general rubric of equity, in an attempt to find when the president acts with what I term "practical legitimacy." This would be a new category for executive actions that, while perhaps arguably illegal, are so valuable that we want to treat them as legitimate exercises of executive power. To do so, I first examine the history of equity, noting the many relevant parallels to our modern conception of executive power In light of these parallels, I argue that …


Fault At The Contract-Tort Interface, Roy Kreitner Jun 2009

Fault At The Contract-Tort Interface, Roy Kreitner

Michigan Law Review

The formative period in the history of contract and tort (in the second half of the nineteenth century) may be characterized by the cleavage of contract and tort around the concept of fault: tort modernized by moving from strict liability to a regime of "no liability without fault," while contract moved toward strict liability. The opposing attitudes toward fault are puzzling at first glance. Nineteenth-century scholars of private law offered explanations for the opposition, reasoning that alternative ideas about fault account for the different character of state involvement in enforcing private law rights: tort law governs liabilities imposed by law …


The Appropriations Power And Sovereign Immunity, Paul F. Figley, Jay Tidmarsh May 2009

The Appropriations Power And Sovereign Immunity, Paul F. Figley, Jay Tidmarsh

Michigan Law Review

Discussions of sovereign immunity assume that the Constitution contains no explicit text regarding sovereign immunity. As a result, arguments about the existence-or nonexistence-of sovereign immunity begin with the English and American common-law doctrines. Exploring political, fiscal, and legal developments in England and the American colonies in the seventeenth and eighteenth centuries, this Article shows that focusing on common-law developments is misguided. The common-law approach to sovereign immunity ended in the early 1700s. The Bankers' Case (1690- 1700), which is often regarded as the first modern common-law treatment of sovereign immunity, is in fact the last in the line of English …