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 …

Standing To Sue For Unrecognized Foreign Governments: National Petrochemical Company Of Iran V. Mit Stolt Sheaf, Reid W. Lambert

BYU Law Review

No abstract provided.

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, …

Toward A Rational Scheme Of Interstate Water Compact Adjudication, Joseph W. Girardot

University of Michigan Journal of Law Reform

This Note argues that the current method of resolving interstate water compact disputes is seriously flawed and that the current practice of invoking the Supreme Court's original jurisdiction to resolve these cases should be altered. This Note contends that the compact itself should contain structural dispute resolution procedures insisted upon by Congress before any grant of approval is given to the agreement. Part I of this Note examines the history of the compact clause of the Constitution and its application in interstate relations. Part II explores how a poorly drafted, yet fairly representative, water allocation compact led two states to …

A Political-Choice Approach To Limiting Prejudicial Evidence, J. Alexander Tanford

Indiana Law Journal

No abstract provided.

Law And Disorder, Robert W. Gordon

Indiana Law Journal

No abstract provided.

On Amending The Constitution: A Plea For Patience, Ruth Bader Ginsburg

University of Arkansas at Little Rock Law Review

No abstract provided.

Constitutional Law—Civil Rights—State's Failure To Protect Child From Known Abuse Does Not Trigger Liability Under Section 1983. Deshaney V. Winnebago County Department Of Social Services, 109 S. Ct. 998 (1989)., Sarah J. Hefley

University of Arkansas at Little Rock Law Review

No abstract provided.

The Politics Of The Imagination: A Life Of F.R. Scott, J King Gordon

Dalhousie Law Journal

The task of a biographer is a challenging one at best. And when the subject is one who has achieved distinction in many fields the difficulties are magnified many times. Better, perhaps, to settle for a Festschift where colleagues and friends in fields in which the subject has excelled join together to pay their separate tributes. So in the case of Frank Scott and his biographer, Sandra Djwa. She is a professor of literature and has achieved recognition for the work she has done on the writings and life of E.J. Pratt. It was undoubtedly Frank Scott, the distinguished Canadian …

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. …

Murray V. United States: The Bell Tolls For The Search Warrant Requirement, Craig M. Bradley

Indiana Law Journal

No abstract provided.

The Annenberg Libel Reform Proposal: The Case For Enactment, Rodney A. Smolla, Michael J. Gaertner

William & Mary Law Review

No abstract provided.

The Charter Of Rights And The Legalization Of Politics In Canada, H Archibald Kaiser

Dalhousie Law Journal

Prospective readers would be forgiven were they to react in a dismissive manner to yet another book about the Charter. For any contribution in this now over-cultivated field, the question must immediately be asked: "Has the author brought a new vision, a fresh insight to his or her inquiries?" The answer in the case of The Charter of Rights and the Legalization of Politics in Canada is an unhesitant "Yes".

The Second-Best First Amendment, Frederick Schauer

William & Mary Law Review

No abstract provided.

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.

Stanford V. Kentucky: Upholding Juvenile Capital Punishment--A Confirmation Of Society's Evolving Standards Of Decency, Jeffery L. Robinette

West Virginia Law Review

No abstract provided.

History, Judicial Revisionism And J.M. Balkin, Raoul Berger

BYU Law Review

No abstract provided.

Eminent Domain, Police Power, And Business Regulation: Economic Liberty And The Constitution, Philip P. Houle

West Virginia Law Review

No abstract provided.

Just Compensation And The Condemnation Of Future Interests: Empirical Evidence Of The Failure Of Fair Market Value, Laura H. Burney

BYU Law Review

No abstract provided.

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 …

Constitutionality Of A Forum State's Use Of Its Own Longer Statute Of Limitations When Its Only Contact With The Dispute Is Its Status As A Forum—Sun Oil Co. V. Wortman, 108 S. Ct. 2117 (1988), Janet Kathleen May

Washington Law Review

In Sun Oil Co. v. Wortman, the United States Supreme Court declared constitutional a forum's use of its own longer statute of limitations. The Court essentially equates the requirements imposed by the due process clause and the full faith and credit clause. This Note concludes that the tests for constitutionality advanced by the Court do not adequately protect the individual rights of litigants, and recommends adopting a new choice of law test which recognizes both governmental and individual interests.

Letting Go Of The Eleventh Amendment, Gene R. Shreve

Indiana Law Journal

No abstract provided.

Shacking Up With The First Amendment: Symbolic Expression And The Public University, Laura L. Goodman

Indiana Law Journal

No abstract provided.

Representing The Community: A Look At The Selection Process In Obscenity Cases And Capital Sentencing, Stanton D. Krauss

Indiana Law Journal

No abstract provided.

The Constitutionality Of The Arkansas Ballot Question Disclosure Act, John M.A. Dipippa

University of Arkansas at Little Rock Law Review

No abstract provided.

Constitutional Law—Freedom Of The Press—Imposing Liability On Newspaper For Publishing Name Of Rape Victim Obtained From Publicly Released Police Report Violates First Amendment. Florida Star V. B.J.F., 109 S. Ct. 2603 (1989)., Stephanie M. Bartels

University of Arkansas at Little Rock Law Review

No abstract provided.

Foreword - The 'Truth In Criminal Justice' Series, Stephen J. Markman

University of Michigan Journal of Law Reform

This special issue of the University of Michigan Journal of Law Reform contains a series of reports-the 'Truth in Criminal Justice' series-that reexamine a variety of basic issues in the law of criminal procedure and evidence. In publishing this series, the editors of the Journal have made an important and timely contribution to the national debate over the character and future development of criminal justice in the United States. There is an abundance of legal writing on criminal justice issues, but relatively little of it concerns increasing the system's effectiveness in bringing criminals to justice or doing justice for the …

Federal Habeas Corpus Review Of State Judgments, Department Of Justice Office Of Legal Policy

University of Michigan Journal of Law Reform

This Report carries out a review of the historical development of the federal habeas corpus jurisdiction; examines its contemporary character and operation; and discusses relevant policy considerations. The Report concludes that federal habeas corpus as a post-conviction remedy for state prisoners should be abolished or limited as far as possible. The limited reform proposals that were passed by the Senate in 1984 and that are currently before Congress as Title II of the proposed Criminal Justice Reform Act provide the best immediate prospect for improvement.

Introduction - The Changed And Changing World Of Constitutional Criminal Procedure: The Contribution Of The Department Of Justice's Office Of Legal Policy, Joseph D. Grano

University of Michigan Journal of Law Reform

The world of constitutional criminal procedure is changing slowly. Repudiating much of the thinking that led to the existing world, the changes are being driven by arguments that share common ground with those expressed in the Office of Legal Policy Reports. The unanswered question is whether tomorrow's changes will mirror the logical ramifications of this new way of thinking. What we cannot know today, as we ponder these Reports, is whether twenty years hence, as a new generation of law students begin to study our endeavors, the mistakes of the 1960s will be little more than "cold history." Whatever our …