Law Commons^™

Untangling The Market-Participant Exemption To The Dormant Commerce Clause, Dan T. Coenen

Michigan Law Review

This article explores the market-participant rule. Part I traces the rule's evolution and shows how it has proven less rigid than some initially feared. Part II probes the roots of the rule by challenging justifications for it suggested by other observers. Part III offers an alternative theory of the market-participant doctrine, arguing in particular that it rests on a cluster of rationales that properly have led· the Court to uphold marketplace preferences as the "general rule." Part IV builds on Part III to advance a new, four-part framework for evaluating market-participant issues. Part V then uses that framework to apply …

"Let Congress Do It": The Case For An Absolute Rule Of Statutory Stare Decisis, Lawrence C. Marshall

Michigan Law Review

The sporadic way that various members of the Supreme Court and the legal community treat the principle of stare decisis is increasingly striking. At times, the rule of stare decisis appears to be trotted out in defense of decisions that were actually reached on quite independent grounds. At other times, the dictates of the rule appear to be casually ignored when other factors call for the overruling of a precedent. It is tempting, therefore, to dismiss the rule of stare decisis as a mere rhetorical device, much like the question of whether a Supreme Court nominee's judicial philosophy is an …

The Constitution's Accommodation Of Social Change, Philip A. Hamburger

Michigan Law Review

Did the framers and ratifiers of the United States Constitution think that changes in American society would require changes in the text or interpretation of the Constitution? If those who created the Constitution understood or even anticipated the possibility of major social alterations, how did they expect constitutional law - text and interpretation - to accommodate such developments?

The effect of social change upon constitutional law was an issue the framers and ratifiers frequently discussed. For example, when AntiFederalists complained of the Constitution's failure to protect the jury trial in civil cases, Federalists responded that a change of circumstances might, …

Compensation For Constitutional Torts: Reflections On The Significance Of Fault, John C. Jeffries Jr.

Michigan Law Review

This essay is about a neglected aspect of the problem of redressing constitutional violations. Most discussions focus on incentive effects. Unconstitutional conduct can be discouraged by the "hands-on" mechanism of reform by injunction or, more commonly, through the indirection of deterrence. Deterrence issues include selection of the penalties needed to deter official misconduct; the risk that they may also inhibit legitimate government activity; the recruitment of private attorneys general to augment enforcement; and various costs of administration. These and other aspects of deterrence pervade discussions in the Supreme Court. They are also debated in a rich and sophisticated secondary literature. …

Principles, Politics, And Constitutional Law, Mark Tushnet

Michigan Law Review

The contrast in Senator Thurmond's performance in hearings concerning Judge Bork, whose nomination he supported, and Justice Marshall, whose nomination he opposed, suggests the apparently cynical view that one's position on the proper scope of senatorial inquiry during a nomination depends upon one's position on the merits of the nomination. Much has been written, usually provoked by controversial nominations, about the proper scope of senatorial inquiry. The press of immediate controversy, however, diverts attention from more fundamental issues about the nature of constitutional government, to which I devote this essay.

Stories Of Origin And Constitutional Possibilities, Milner S. Ball

Michigan Law Review

Robert Cover once observed how "[n]o set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning. For every constitution there is an epic, for each decalogue a scripture." Stories of origin locate law, invest it with legitimacy, and so lend it stability. As Cover went on to note, however, the narratives that legitimate a legal order also retain revolutionary force, for a return to the originating acts recounted in the narratives is always possible. A polity begun in revolution remains subject to revolution.

There is an American story of origins. It is …

Decoding Richmond: Affirmative Action And The Elusive Meaning Of Constitutional Equality, Michel Rosenfeld

Michigan Law Review

This Article first briefly considers the conceptual and constitutional framework out of which the controversy in Croson emerges. Next, the Article turns to Croson itself, and focuses on the Court's adoption of the strict scrutiny test, on the disagreement among the Justices concerning the test's meaning and implications, and on the Court's use of decontextualization to manipulate the key conceptual and factual issues at stake. Finally, drawing upon the principle of equality of opportunity, the Article endeavors to demonstrate how the adoption of particular principles of substantive equality can lead to a comprehensive and coherent constitutional resolution of the affirmative …

Constitutional Conventions, Frederick Schauer

Michigan Law Review

A Review of American Constitutional Law Second Edition, by Laurence H. Tribe

Outlaw Blues, Suzanna Sherry

Michigan Law Review

A Review of Red, White, and Blue: A Critical Analysis of Constitutional Law by Mark Tushnet

Onward Constitutional Soldiers, Milner S. Ball

Michigan Law Review

A Review of Constitutional Faith by Sanford Levinson

Philosophy, The Federalist, And The Constitution, Edward J. Sebold

Michigan Law Review

A Review of Philosophy, The Federalist, and the Constitution by Morton White

Ultra-Wrong About The "Ultra-Right", Terry Eastland

Michigan Law Review

A Review of Packing the Courts: The Conservative Campaign to Rewrite the Constitution by Herman Schwartz

Judicial Review And American Democracy, Stanley S. Sokul

Michigan Law Review

A Review of Judicial Review and American Democracy by Albert P. Melone and George Mace

Police-Obtained Evidence And The Constitution: Distinguishing Unconstitutionally Obtained Evidence From Unconstitutionally Used Evidence, Arnold H. Loewy

Michigan Law Review

The article will consider four different types of police-obtained evidence: evidence obtained from an unconstitutional search and seizure, evidence obtained from a Miranda violation, confessions and lineup identifications obtained in violation of the sixth amendment right to counsel, and coerced confessions. My conclusions are that evidence obtained from an unconstitutional search and seizure is excluded because of the police misconduct by which it was obtained. On the other hand, evidence obtained from a Miranda violation is (or ought to be) excluded because use of that evidence compromises the defendant's procedural right not to be compelled to be a witness against …

Confusing The Fifth Amendment With The Sixth: Lower Court Misapplication Of The Innis Definition Of Interrogation, Jonathan L. Marks

Michigan Law Review

This Note examines how these courts have applied or misapplied Innis, and concludes that, while many of these decisions are consistent with Miranda and Innis, too many others are not. In order to evaluate these cases, it is first necessary to understand the meaning and significance of Innis. Part I thus considers Innis and its background. Part II then examines lower court decisions applying the Innis test, dividing these decisions into six groups based on the most common factual scenarios. Because the cases deal with factually specific police practices, this method constitutes the most useful way to …