Law Commons^™

A Revisionist Theory Of Abstention, Barry Friedman

Michigan Law Review

This article offers a straightforward model for identifying cases in which abstention threatens federal rights - and so is inappropriate and cases in which federal rights are not so threatened and state interests require abstention. Part I provides some background on the abstention doctrines, clarifying· the competing premises that must be reconciled in order to develop a coherent, unified abstention doctrine. Part II then sets out the basis for the revisionist theory and the manner in which it would operate, arguing that a federal trial forum only need be - and only should be - available where necessary to protect …

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 …

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.

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. …

Difference Made Legal: The Court And Dr. King, David Luban

Michigan Law Review

My aim in this essay is to contrast two legal retellings of the same event: a set of demonstrations sponsored by the Southern Christian Leadership Conference in Birmingham, Alabama in 1963 that led to the arrest and incarceration of Martin Luther King, Jr. One is the Supreme Court majority opinion in Walker v. City of Birmingham, sustaining King's conviction; the other, King's own defense of his actions in his Letter from Birmingham Jail I wish to show how the self-same event entails radically different legal consequences when it appears in different narratives, one the Supreme Court's official voice, the …

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 …

The Plessy Case: A Legal-Historical Interpretation, David D. Meyer

Michigan Law Review

A Review of The Plessy Case: A Legal-Historical Interpretation by Charles A. Lofgren

Siskel And Ebert At The Supreme Court, Thomas E. Baker

Michigan Law Review

A Review of Redefining the Supreme Court's Role: A Theory of Managing the Federal Judicial Process by Samuel Estreicher and John Sexton

The Parable As Legal Scholarship, G. Edward White

Michigan Law Review

A Review of Two Jewish Justices: Outcasts in the Promised Land by Robert Burt

Harry Kalven, The Proust Of The First Amendment, Lee Bollinger

Michigan Law Review

A Review of A Worth Tradition: Freedom of Speech in America by Harry Kalven, Jr.

Reimagining The Marshall Court, H. Jefferson Powell

Michigan Law Review

A Review of The Marshall Court and Cultural Change, 1815-1835 by G. Edward White

Rethinking Absolute Priority After Ahlers, John D. Ayer

Michigan Law Review

There was no evident reason why the Supreme Court granted certiorari in Norwest Bank Worthington v. Ahlers. It can be conceded that the issue was important: in the midst of an agricultural depression, a farmer was trying to hang onto his farm without paying the full amount of his bank debt. The farmer argued that he ought to be able to do so because he was offering to contribute "new value" beyond what he was obliged to contribute - specifically, his efforts as a farmer.

For Ahlers is a case with a past, as well as a future. Thus, in …

Legislative Inaction And The Patterson Case, Earl M. Maltz

Michigan Law Review

In its October 1988 issue,1 the Michigan Law Review published a symposium on Patterson v. McLean Credit Union, a case in which the Supreme Court has requested reargument on the question of whether Runyon v. McCrary should be overruled or modified. Each of the three distinguished contributors to the symposium concludes that the Court should not overrule Runyon. In reaching this conclusion, Professor William N. Eskridge and Professor Daniel A. Farber rely heavily on the view that because Congress has recognized the existence of the Runyon doctrine and has refused to overrule the decision, the doctrine of stare decisis …