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Articles 1 - 13 of 13
Full-Text Articles in Law
The Second Amendment: Structure, History, And Constitutional Change, David Yassky
The Second Amendment: Structure, History, And Constitutional Change, David Yassky
Michigan Law Review
A fierce debate about the Second Amendment has been percolating in academia for two decades, and has now bubbled through to the courts. The question at the heart of this debate is whether the Amendment restricts the government's ability to regulate the private possession of firearms. Since at least 1939 - when the Supreme Court decided United States v. Miller, its only decision squarely addressing the scope of the right to "keep and bear Arms" - the answer to that question has been an unqualified "no." Courts have brushed aside Second Amendment challenges to gun control legislation, reading the Amendment …
The Racial Origins Of Modern Criminal Procedure, Michael J. Klarman
The Racial Origins Of Modern Criminal Procedure, Michael J. Klarman
Michigan Law Review
The constitutional law of state criminal procedure was born between the First and Second World Wars. Prior to 1920, the Supreme Court had upset the results of the state criminal justice system in just a handful of cases, all involving race discrimination in jury selection. By 1940, however, the Court had interpreted the Due Process Clause of the Fourteenth Amendment to invalidate state criminal convictions in a wide variety of settings: mob-dominated trials, violation of the right to counsel, coerced confessions, financially-biased judges, and knowingly perjured testimony by prosecution witnesses. In addition, the Court had broadened its earlier decisions forbidding …
The Treaty Power And American Federalism, Part Ii, Curtis A. Bradley
The Treaty Power And American Federalism, Part Ii, Curtis A. Bradley
Michigan Law Review
In an article published in this Review two years ago, I described and critiqued what I called the "nationalist view" of the treaty power. Under this view, the national government has the constitutional power to enter into treaties, and thereby create binding national law by virtue of the Supremacy Clause, without regard to either subject matter or federalism limitations. This view is reflected in the writings of a number of prominent foreign affairs law scholars, as well as in the American Law Institute's Restatement (Third) of Foreign Relations Law of the United States. In my article, I argued that this …
Pleading Under Section 11 Of The Securities Act Of 1933, Krista L. Turnquist
Pleading Under Section 11 Of The Securities Act Of 1933, Krista L. Turnquist
Michigan Law Review
The Securities Act of 1933 ("Securities Act") requires full and fair disclosure of the nature of securities sold in interstate and foreign commerce. Section 11 of the Securities Act prohibits false or misleading registration statements. It also provides buyers a private remedy for false or misleading statements against any signer of the registration statement, any partner or director of the issuer, any professional involved in preparing or certifying the statement, and any underwriter. The rule appears simple: if there is a material misstatement or omission in the registration statement, the buyer may sue the seller. Courts disagree, however, over how …
Because We Love You, Rosemary B. Quigley
Because We Love You, Rosemary B. Quigley
Michigan Law Review
I remember the impotence I felt on the eve of the Gulf War in January 1991. No one could have known at that moment what a brief conflict it would be. We had every reason to believe that the Middle East would be hurled into turmoil. And if protracted war ensued, a draft would surely follow. I watched my college boyfriend sink into despair, with the help of a Bob Mould CD, at the prospect of being called to give his life for his country. I remained uncharacteristically mute. In the face of this battle, our positions were too unequal …
Healing The Blind Goddess: Race And Criminal Justice, Mark D. Rosenbaum, Daniel P. Tokaji
Healing The Blind Goddess: Race And Criminal Justice, Mark D. Rosenbaum, Daniel P. Tokaji
Michigan Law Review
Once again, issues of race, ethnicity, and class within our criminal justice system have been thrust into the public spotlight. On both sides of the country, in our nation's two largest cities, police are being called to account for acts of violence directed toward poor people of color. In New York City, a West African immigrant named Amadou Diallo was killed by four white police officers, who fired forty-one bullets at the unarmed man as he stood in the vestibule of his apartment building in a poor section of the Bronx. Did race influence the officers' decisions to fire the …
Treaty-Making And The Nation: The Historical Foundations Of The Nationalist Conception Of The Treaty Power, David M. Golove
Treaty-Making And The Nation: The Historical Foundations Of The Nationalist Conception Of The Treaty Power, David M. Golove
Michigan Law Review
Characteristic of the most enduring constitutional controversies is a clash between fundamental but ultimately irreconcilable principles. Unable to synthesize opposing precepts, we visit and revisit certain issues in an endless cycle. Each generation marches forward heedless, and sometimes only dimly aware, of how many times the battle has already been fought. Even the peace of exhaustion achieves only a temporary respite. The abiding controversy over the relationship between the treaty power of the national government and the legislative powers of the states is paradigmatic in this respect. Beginning as early as in the first debate over ratification of the Articles …
Antitrust Beyond Competition: Market Failures, Total Welfare, And The Challenge Of Intramarket Second-Best Tradeoffs, Peter J. Hammer
Antitrust Beyond Competition: Market Failures, Total Welfare, And The Challenge Of Intramarket Second-Best Tradeoffs, Peter J. Hammer
Michigan Law Review
Should antitrust law ever sanction the accumulation of market power or permit other restraints of trade if such conduct would increase social welfare? This is the challenge raised by intramarket second- best tradeoffs. The lesson of second-best analysis is that one market failure can sometimes counteract the effects of another market failure. In the presence of multiple market failures, it is conceivable that mergers or other restraints traditionally viewed as anticompetitive may be welfare-enhancing. A social planner, given the mandate of maximizing total welfare, would permit such restraints. Could an antitrust judge come to the same result under a defensible …
Judicial Review & The Policy Of Federal Abstention: A Juvenile's Right To Ensure The Existence Of A "Substantial Federal Interest", Matthew Drexler
Judicial Review & The Policy Of Federal Abstention: A Juvenile's Right To Ensure The Existence Of A "Substantial Federal Interest", Matthew Drexler
Michigan Law Review
The problem of juvenile delinquency must be dealt with in an effective and meaningful manner if we are to reduce the ever increasing levels of crime and improve the quality of life in America. With these words, the United States Senate opened its report in support of the first major federal juvenile delinquency statute in almost forty years. The goal of the statute and of federal involvement in juvenile delinquency proceedings was to give the highest attention to preventing juvenile crime and to minimizing the involvement of juveniles in the juvenile and criminal justice systems. Until 1974, the federal government …
History Unbecoming, Becoming History, Toni M. Massaro
History Unbecoming, Becoming History, Toni M. Massaro
Michigan Law Review
The last few decades have seen a torrent of legal commentary supporting gay equality and attacking the punishment, failure to protect, and refusal to affirm gay conduct and identity. William Eskridge, a prominent voice in this fin-de-siecle literature, now draws together and expands on his previous work in Gaylaw: Challenging the Apartheid of the Closet. Though far more successful in shaping the uses of the past than in showing the way to the future, the book instructs even where it fails. It augurs a century that could well witness the end of official discrimination against gay individuals, and the relegation …
A Public Choice Approach To Private Ordering: Rent-Seeking At The World's First Futures Exchange: Comments On Mark West's 'Private Ordering At The World's First Futures Exchange', Omri Yadlin
Michigan Law Review
The literature on private ordering systems has expanded exponentially over the last decade. Yet, very few scholars have actually attempted to define the term "private ordering" - a failure that sometimes leads to confusion. Some scholars identify private ordering with non-state ordering. According to this view, the private legal systems Robert Ellickson, Lisa Bernstein, McMillan & Woodruff, Mark West, and others have investigated are "private" simply because their norms are not manufactured or enforced by the state. The alternative view emphasizes the decentralized feature of private ordering systems. Robert Ellickson, for example, studied "how people manage to interact to mutual …
An Upbeat View Of English Justice In The Fourteenth Century, Charles Donahue Jr.
An Upbeat View Of English Justice In The Fourteenth Century, Charles Donahue Jr.
Michigan Law Review
The late Middle Ages are history's stepchild. Traditionally, medievalists are not interested in them. The earlier centuries, culminating in the twelfth and thirteenth, are much more typically "medieval." Traditionally too, early modern historians are interested in the late Middle Ages only for what they see as origins of the Reformation, or for decay of feudal structures out of which the national monarchies of the sixteenth century arose, or for Italian humanism, which they call "the Renaissance." Legal historians, on the other hand, are stuck with the late Middle Ages. With a few exceptions (including, most notably, the great run of …
Empirical Insight And Some Thoughts On Future(S) Investigation: Comments On Mark West's 'Private Ordering At The World's First Futures Exchange', A.W. Brian Simpson
Empirical Insight And Some Thoughts On Future(S) Investigation: Comments On Mark West's 'Private Ordering At The World's First Futures Exchange', A.W. Brian Simpson
Michigan Law Review
Some considerable number of years ago, when I was in Chicago, I had a plan to undertake a general study of the origins of futures markets. They fascinated me for a variety of reasons, one being their bizarre nature: traders meeting together, usually in some form of ring, in order to sell, on a huge scale, quantities of commodities which they neither possess, nor intend to possess, to other traders, who have not the least wish to receive such commodities, and nowhere to put them if they did. At first sight it appears a weird perversion of the institution of …