Law Commons^™

Dissing Congress, Ruth Colker, James J. Brudney

Michigan Law Review

The Supreme Court under Chief Justice Rehnquist's recent leadership has invalidated numerous federal laws, arguably departing from settled precedent to do so. The Rehnquist Court has held that Congress exceeded its constitutional authority in five instances during the 2000-01 Term, on four occasions during the 1999-2000 Term and in a total of twenty-nine cases since the 1994-95 Term. Commentators typically explain these decisions in federalism terms, focusing on the Court's use of its power to protect the States from an overreaching Congress. That explanation is incomplete and, in important respects, unpersuasive. The Rehnquist Court has not been as solicitous of …

Creating Better Governance, Denise D. Fort

Two Decades of Water Law and Policy Reform: A Retrospective and Agenda for the Future (Summer Conference, June 13-15)

17 pages (includes illustration).

Contains 2 pages of references.

Congress And The Legislative Web Of Trust, Alan L. Feld

Faculty Scholarship

Trust in the legislative arena does not flow from altruism. It rests on two related foundations: personal interactions and rational incentives. Legislators must engage with each other over at least a two-year term and usually far longer. Their encounters reflect the dynamic of continuing players rather than one-time participants. Thus, failure to carry out commitments chills the possibility of future advantageous agreements with the aggrieved party. Moreover, the process of shared experience and personal interaction can create friendships that make the foundation for trust personal as well as professional. Further, each House of Congress has many of the characteristics of …

Miranda, The Constitution, And Congress, David A. Strauss

Michigan Law Review

Are Miranda warnings required by the Constitution, or not? If they are, why has the Supreme Court repeatedly said that the rights created by Miranda are "not themselves rights protected by the Constitution"? If not, why can't an Act of Congress, such as 18 U.S.C. 3501, declare them to be unnecessary? These were the central questions posed by United States v. Dickerson. It is not clear that the majority opinion ever really answered them. The majority said that "Miranda is constitutionally based," that Miranda has "constitutional underpinnings," that Miranda is "a constitutional decision," and that Miranda "announced a constitutional rule." …

The Nlra: A Call To Collective Bargaining, Theodore J. St. Antoine

Other Publications

A century ago the legal specialty of most members of this audience would have been known as Master and Servant Law. By the time my generation entered law school, the Decennial Dgest had just added a new topic - Labor Relations Law. That of course dealt with collective bargaining and union-management relations generally. Now, a half century further along, we might seem to have come full circle, to judge by the lectures of the two eminent jurists who inaugurated this series. Both Abner Mikva and Richard Posner spoke on highly important and timely subjects, and yet those would be classified, …

Interpreting Urugual Round Agreements Act Section 102(B)'S Safeguards For State Sovereignty: Reconciling Judicial Independence With The United States Trade Representative's Policy Expertise, Brandon Johnson

Michigan Journal of International Law

In this Note, I address the concerns of one aspect of this academic commentary-the claim that the WTO Agreement may cause a tectonic shift in domestic regulatory power, away from the states and toward the federal government and/or the WTO. I argue that while the concerns about the loss of national sovereignty are exaggerated, there is a very real threat to the sovereignty of the States. Congress was aware of this danger and included a variety of provisions designed specifically to protect state sovereignty from federal encroachment in the Uruguay Round Agreements Act (URAA), the federal legislation incorporating the WTO …

Indian Religious Freedom: To Litigate Or Legislate?, Louis Fisher

American Indian Law Review

No abstract provided.

Dissing Congress , Ruth Colker, James J. Brudney

Faculty Scholarship

This article adopts a novel separation of powers framework to analyze the Rehnquist Court's recent decisions under the Commerce Clause and Section Five of the Fourteenth Amendment. We demonstrate in historical terms how the Court's methods for assessing the constitutional adequacy of federal laws have changed dramatically since the mid-1990s, and we argue that these new methods are undermining the proper role of Congress and producing a significant shift in the balance of power between the Branches. We identify two distinct methodologies employed by the Rehnquist Court that have resulted in growing disrespect for Congress - the "crystal ball" and …

Conflating Scope Of Right With Standard Of Review: The Supreme Court's Strict Scrutiny Of Congressional Efforts To Enforce The Fourteenth Amendment, Melissa Hart

Publications

No abstract provided.

Miranda And Some Puzzles Of 'Prophylactic' Rules, Evan H. Caminker

Articles

Constitutional law scholars have long observed that many doctrinal rules established by courts to protect constitutional rights seem to "overprotect" those rights, in the sense that they give greater protection to individuals than those rights, as abstractly understood, seem to require.' Such doctrinal rules are typically called "prophylactic" rules.2 Perhaps the most famous, or infamous, example of such a rule is Miranda v. Arizona,' in which the Supreme Court implemented the Fifth Amendment's privilege against self-incrimination4 with a detailed set of directions for law enforcement officers conducting custodial interrogations, colloquially called the Miranda warnings. 5

Using § 1983 To Enforce Title Vi's Section 602 Regulations, Bradford Mank

Faculty Articles and Other Publications

This Article examines the circumstances under which § 1983 suits may be used to enforce agency regulations in general, and Title VI's disparate impact regulations in particular.

Bringing The Camel Into The Tent: State And Federal Power Over Electricity Transmission , Cassandra Burke Robertson

Cleveland State Law Review

This paper provides a framework for understanding the current controversy regarding jurisdiction over the power grid, and provides policy-oriented solutions to ensure an adequate, low-cost transmission supply. The main thesis of this paper is that sound transmission policy requires greater federal power, and that Congress is better equipped than the courts to enact such policy. To this end, Part I of the paper offers an historical outline of the problem and analyzes the statutes and regulations that form the backbone of both the federal and state jurisdictional claims. Part II looks at legal considerations regarding the scope of federal jurisdiction. …

Avoiding Constitutional Questions As A Three-Branch Problem, William K. Kelley

Journal Articles

This article criticizes the cardinal rule of statutory construction known as the avoidance canon - that statutes must be interpreted to avoid raising serious constitutional questions - as failing to respect the proper constitutional roles of both Congress and the Executive. It argues that the avoidance canon in practice cannot be grounded in legislative supremacy, which is the common justification for it offered by the Supreme Court, because it assumes without foundation that Congress would always prefer not to come close to the constitutional line in enacting statutes. Instead, the avoidance canon creates pressure for courts to adopt statutory meanings …

Clarifying The Intent Of Congress: Are The Federal Arbitration Act's Venue Provisions Permissive Or Mandatory - Cortez Byrd Chips, Inc. V. Bill Harbert Construction Co., Darynne L. O'Neal

Journal of Dispute Resolution

Some circuits have taken the position that the venue provisions are mandatory, thus limiting venue for motions to confirm, vacate, or modify arbitration awards to the district where the award was made. Other circuits, however, have adopted the contrary position that the venue provisions are permissive, allowing such motions to be brought either in the district where the arbitration award was made or in any district that is proper under the general venue statute. This Casenote explores the split among the circuits on the nature of the FAA's venue provisions. Cortez Byrd Chips, Inc. v. Bill Harbert Construction Co. addressed …

From Miranda To §3501 To Dickerson To...(Symposium: Miranda After Dickerson: The Future Of Confession Law), Yale Kamisar

Articles

Once the Court granted [certiorari in Dickerson] court-watchers knew the hour had come. At long last the Court would have to either repudiate Miranda, repudiate the prophylactic-rule cases [the cases viewing Miranda's requirements as not rights protected by the Constitution, but merely "prophylactic rules"] or offer some ingenious reconciliation of the two lines of precedent. The Supreme Court of the United States, however, doesn't "have to" do anything, as the decision in Dickerson once again reminds us.