Law Commons^™

"A Government Of Limited And Enumerated Powers": In Defense Of United States V. Lopez, Steven G. Calabresi

Michigan Law Review

The Supreme Court's recent decision in United States v. Lopez marks a revolutionary and long overdue revival of the doctrine that the federal government is one of limited and enumerated powers. After being "asleep at the constitutional switch" for more than fifty years, the Court's decision to invalidate an Act of Congress on the ground that it exceeded the commerce power must be recognized as an extraordinary event. Even if Lopez produces no progeny and is soon overruled, the opinion has shattered forever the notion that, after fifty years of Commerce Clause precedent, we can never go back to the …

Foreword, Louis H. Pollak

Michigan Law Review

Introduction to the Symposium Reflections on United States v. Lopez

Enumerated Means And Unlimited Ends, H. Jefferson Powell

Michigan Law Review

United States v. Lopez can be read as a fairly mundane disagreement over the application of a long-settled test. The Government defended the statute under review in the case, the Gun-Free School Zones Act of 1990, along familiar lines as a permissible regulation of activity affecting interstate and foreign commerce.

In this essay, I do not address the question whether Lopez was an important decision. My concern instead is with the problem that underlies Lopez's particular issue of the scope of the commerce power: Given our commitment to limited national government, in what way is the national legislature actually limited? …

Commerce!, Deborah Jones Merritt

Michigan Law Review

In this article, I explore the Supreme Court's new definition of "Commerce ... among the several States."9 In Part I, I examine three new principles that Lopez announces and that could significantly rework the Court's Commerce Clause jurisprudence. Part II, however, shows that these principles must be understood in the context of almost a dozen factors narrowing the Supreme Court's Lopez decision. Part II also demonstrates that the lower courts have understood the contextual uniqueness of Lopez and already have distinguished the decision in upholding more than half a dozen broad exercises of congressional authority. Part III then shows that …

Too Much Waste: A Proposal For Change In The Government's Effort To Clean Up The Nation, Ian G. John

Indiana Law Journal

No abstract provided.

Power, Responsibility, And Republican Democracy, Marci A. Hamilton

Michigan Law Review

A Review of Power Without Responsibility: How Congress Abuses the People Through Delegation by David Schoenbrod

The Indiana Environmental Policy Act: Casting A New Role For A Forgotten Statute, Jeffrey L. Carmichael

Indiana Law Journal

No abstract provided.

Congressional Risk Proposals, Dalton G. Paxman

RISK: Health, Safety & Environment (1990-2002)

Dr. Paxman relates how an ambitious environmental agenda supported by the Administration and many members of the 103d Congress was ultimately derailed. He associates this with an apparently ever-growing interest in risk assessment.

The Regulatory Reform Recommendations Of The National Performance Review, Jeffrey S. Lubbers

RISK: Health, Safety & Environment (1990-2002)

Of ten recommendations Mr. Lubbers discusses, several were of particular interest. These include encouraging consensus-based rule making and ADR in enforcement, as well as ranking risks and improving regulatory science.

Introduction To Mortgage Lending Discrimination Law, Robert G. Schwemm

Law Faculty Scholarly Articles

Although mortgage lending discrimination and the laws that forbid it have been a part of the American landscape for over two decades, it has only been in recent years that this subject has captured the attention of the public, Congress, and federal enforcement officials. The result has been a tremendous upsurge in interest in this field. Still, there are relatively few cases that have been litigated to a conclusion on the merits, and fewer still that have resulted in plaintiff's victories. Thus, we find ourselves in an exciting period of great potential, but as yet not fully realized accomplishment, as …

That The Laws Shall Bind Equally On All: Congressional And Executive Roles In Applying Laws To Congress, Harold H. Bruff

Publications

No abstract provided.

National Depositor Preference: In An Attempt To Raise Revenue, Congress Completely Ignores A Potential Disaster, David J. Ratway

Nova Law Review

Until recently, the risk of a bank's insolvency was borne primarily by

the Federal Deposit Insurance Corporation ("FDIC").'

International Trade Relations And The Separation Of Powers Under The United States Constitution, John Linarelli

Scholarly Works

No abstract provided.

Erisa: Reformulating The Federal Common Law For Plan Interpretation, George Lee Flint Jr

Faculty Articles

In order to develop the federal common law of the Employee Retirement Income Security Act of 1974 (ERISA), courts must consider the history, foundations, and policies of ERISA. However, federal courts have yet to conduct this process. This failure is explained by either the fundamental nature of the American adversary system leading to the undermining of congressional intent, or the failure of the incompetent federal judiciary to follow legislative intent. Conclusively, the lack of developing federal common law has resulted in ERISA law that is hostile to participants and the policies that Congress intended ERISA to foster.

Although seldom following …

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

Articles

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 …

The Commerce Clause Quartet, Martin A. Schwartz

Touro Law Review

No abstract provided.

State And Local Governmental Entities: In Search Of... Statutory Authority To Enter Into Interest Rate Swap Agreements, Jeanette Redmond

Fordham Law Review

No abstract provided.

Multimedia Computing: Copyright Law's "Last Stand", Steven Pepe

Touro Law Review

No abstract provided.

"Use" And The Irresistible Impulse To Legislate, Robert C. Dorf

Touro Law Review

No abstract provided.

The December 1993 Amendments To The Federal Rules Of Civil Procedure--A Critical Analysis, Leslie M. Kelleher

Touro Law Review

No abstract provided.

"Mixture Or Substance": Continuing Disparity Under The Federal Sentencing Guidelines Section 2d1.1, Eric J. Stockel

Touro Law Review

No abstract provided.

Taking Liberties With The First Amendment: Congress, Section 5, And The Religious Freedom Restoration Act, Jay S. Bybee

Scholarly Works

In 1993 Congress enacted the Religious Freedom Restoration Act (“RFRA”), which provided that government, including the United States and the states, “shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability” except where the government can demonstrate that the burden furthers “a compelling governmental interest” and is “the least restrictive means of furthering that interest.”

Unfortunately, whatever consistency RFRA might bring to the substance of church-state relations comes at the expense of clarity in federal-state relations. This is unfortunate because the First Amendment does not address church-state relations; it concerns …

With Malice Toward Some: United States V. Kirby, Malicious Prosecution, And The Fourteenth Amendment, David J. Achtenberg

Faculty Works

In 1869, the Supreme Court treated United States v. Kirby as a simple case. In 1994, it treated Albright v. Oliver as a case divorced from history. Understanding the factual complexity of Kirby provides the historical framework missing from Albright and casts new light on the issue of whether the Fourteenth Amendment forbids malicious prosecution.

United States v. Kirby appeared straightforward. John W. Kirby was indicted for interferring with the United States mail by detaining a mail agent, Dr. Cyrus W. Farris, and a mail steamer. John Kirby's defense was simple. He was the sheriff of Gallatin County, Kentucky. The …

A Beginning And Not An End In Itself: The Role Of Risk Assessment In Environmental Decision-Making, John S. Applegate

Articles by Maurer Faculty

No abstract provided.