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Articles 1 - 30 of 68
Full-Text Articles in Law
The Meaning Of Sex: Dynamic Words, Novel Applications, And Original Public Meaning, William N. Eskridge Jr., Brian G. Slocum, Stefan Th. Gries
The Meaning Of Sex: Dynamic Words, Novel Applications, And Original Public Meaning, William N. Eskridge Jr., Brian G. Slocum, Stefan Th. Gries
Michigan Law Review
The meaning of sex matters. The interpretive methodology by which the meaning of sex is determined matters Both of these were at issue in the Supreme Court’s recent landmark decision in Bostock v. Clayton County, where the Court held that Title VII protects lesbians, gay men, transgender persons, and other sexual and gender minorities against workplace discrimination. Despite unanimously agreeing that Title VII should be interpreted in accordance with its original public meaning in 1964, the opinions in Bostock failed to properly define sex or offer a coherent theory of how long-standing statutes like Title VII should be interpreted over …
Anti-Modalities, David E. Pozen, Adam M. Samaha
Anti-Modalities, David E. Pozen, Adam M. Samaha
Michigan Law Review
Constitutional argument runs on the rails of “modalities.” These are the accepted categories of reasoning used to make claims about the content of supreme law. Some of the modalities, such as ethical and prudential arguments, seem strikingly open ended at first sight. Their contours come into clearer view, however, when we attend to the kinds of claims that are not made by constitutional interpreters—the analytical and rhetorical moves that are familiar in debates over public policy and political morality but are considered out of bounds in debates over constitutional meaning. In this Article, we seek to identify the “anti-modalities” of …
Coin, Currency, And Constitution: Reconsidering The National Bank Precedent, David S. Schwartz
Coin, Currency, And Constitution: Reconsidering The National Bank Precedent, David S. Schwartz
Michigan Law Review
Review of Eric Lomazoff's Reconstructing the National Bank Controversy: Politics and Law in the Early American Republic.
Fixing America's Founding, Maeve Glass
Fixing America's Founding, Maeve Glass
Michigan Law Review
Review of Jonathan Gienapp's The Second Creation: Fixing the American Constitution in the Founding Era.
Translating The Constitution, Jack M. Balkin
Translating The Constitution, Jack M. Balkin
Michigan Law Review
Review of Lawrence Lessig's Fidelity and Constraint: How the Supreme Court Has Read the American Constitution.
Article Ii And Antidiscrimination Norms, Aziz Z. Huq
Article Ii And Antidiscrimination Norms, Aziz Z. Huq
Michigan Law Review
The Supreme Court’s opinion in Trump v. Hawaii validated a prohibition on entry to the United States from several Muslim-majority countries and at the same time repudiated a longstanding precedent associated with the Japanese American internment of World War II. This Article closely analyzes the relationship of these twin rulings. It uses their dichotomous valences as a lens on the legal scope for discriminatory action by the federal executive. Parsing the various ways in which the internment of the 1940s and the 2017 exclusion order can be reconciled, the Article identifies a tension between the Court’s two holdings in Trump …
Fourth Amendment Textualism, Jeffrey Bellin
Fourth Amendment Textualism, Jeffrey Bellin
Michigan Law Review
The Fourth Amendment’s prohibition of “unreasonable searches” is one of the most storied constitutional commands. Yet after decades of Supreme Court jurisprudence, a coherent definition of the term “search” remains surprisingly elusive. Even the justices know they have a problem. Recent opinions only halfheartedly apply the controlling “reasonable expectation of privacy” test and its wildly unpopular cousin, “third-party doctrine,” with a few justices in open revolt.
These fissures hint at the Court’s openness to a new approach. Unfortunately, no viable alternatives appear on the horizon. The justices themselves offer little in the way of a replacement. And scholars’ proposals exhibit …
The Cunning Of Reason: Michael Klarman's The Framers' Coup, Charles Fried
The Cunning Of Reason: Michael Klarman's The Framers' Coup, Charles Fried
Michigan Law Review
A review of Michael J. Klarman, The Framers' Coup: The Making of the United States Constitution.
Precedent And Disagreement, Glen Staszewski
Precedent And Disagreement, Glen Staszewski
Michigan Law Review
A review of Randy J. Kozel, Settled Versus Right: A Theory of Precedent.
Why Enumeration Matters, Richard A. Primus
Why Enumeration Matters, Richard A. Primus
Michigan Law Review
The maxim that the federal government is a government of enumerated powers can be understood as a “continuity tender”: not a principle with practical consequences for governance, but a ritual statement with which practitioners identify themselves with a history from which they descend. This interpretation makes sense of the longstanding paradox whereby courts recite the enumeration principle but give it virtually no practical effect. On this understanding, the enumerated-powers maxim is analogous to the clause that Parliament still uses to open enacted statutes: “Be it enacted by the Queen’s most Excellent Majesty.” That text might imply that the Queen is …
Paths Of Resistance To Our Imperial First Amendment, Bertrall L. Ross Ii
Paths Of Resistance To Our Imperial First Amendment, Bertrall L. Ross Ii
Michigan Law Review
In the campaign finance realm, we are in the age of the imperial First Amendment. Over the past nine years, litigants bringing First Amendment claims against campaign finance regulations have prevailed in every case in the Supreme Court. A conservative core of five justices has developed virtually categorical protections for campaign speech and has continued to expand those protections into domains that states once had the authority to regulate. As the First Amendment’s empire expands, other values give way. Four key cases from this era illustrate the reach of this imperial First Amendment. In Wisconsin Right to Life, Inc. v. …
Judge Posner's Simple Law, Mitchell N. Berman
Judge Posner's Simple Law, Mitchell N. Berman
Michigan Law Review
The world is complex, Richard Posner observes in his most recent book, Reflections on Judging. It follows that, for judges to achieve “sensible” resolutions of real-world disputes—by which Judge Posner means “in a way that can be explained in ordinary language and justified as consistent with the expectations of normal people” (p. 354)—they must be able to navigate the world’s complexity successfully. To apply legal rules correctly and (where judicial lawmaking is called for) to formulate legal rules prudently, judges must understand the causal mechanisms and processes that undergird complex systems, and they must be able to draw sound factual …
Countersupermajoritarianism, Frederic Bloom, Nelson Tebbe
Countersupermajoritarianism, Frederic Bloom, Nelson Tebbe
Michigan Law Review
Our Constitution can change. We can amend it, update it, improve it. And so we have—twenty-seven times by one count, many more by another. Everyone recognizes this. But fewer people appreciate that the mechanics of constitutional change can change as well. A method of alteration unaddressed at the founding can grow into established practice. A procedure built into constitutional text can slip into disuse. As much as citizens can change the substance of the Constitution, they can also change the ways they change it. In Originalism and the Good Constitution, John McGinnis and Michael Rappaport make an elegant and provocative …
A Moment For Pragmatism, Jane S. Schacter
A Moment For Pragmatism, Jane S. Schacter
Michigan Law Review
One of the least controversial things to say about the U.S. Constitution is that it has proven very difficult to amend. The numbers are familiar. Only 27 amendments have been made since the Constitution was ratified, and 10 of those were adopted at the same time, only a few years after the original ratification. These numbers are all the more remarkable given that there have been over 11,500 attempts to amend the Constitution since it was first enacted. The paucity of amendments is also striking as a comparative matter. The national constitution that India approved in 1949 has been amended …
Saving Originalism, Robert J. Delahunty, John Yoo
Saving Originalism, Robert J. Delahunty, John Yoo
Michigan Law Review
It is sometimes said that biographers cannot help but come to admire, even love, their subjects. And that adage seems to ring true of Professor Amar, the foremost “biographer” of the Constitution. He loves it not just as a governing structure, or a political system, but as a document. He loves the Constitution in the same way that a fan of English literature might treasure Milton’s Paradise Lost or Shakespeare’s Macbeth. He loves the Constitution not just for the good: the separation of powers, federalism, and the Bill of Rights. He also loves it for its nooks and crannies, idiosyncrasies, …
Plausible Absurdities And Practical Formalities: The Recess Appointments Clause In Theory And Practice, David Frisof
Plausible Absurdities And Practical Formalities: The Recess Appointments Clause In Theory And Practice, David Frisof
Michigan Law Review
The recent controversy surrounding President Obama’s recess appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau while the Senate was holding pro forma sessions illustrates the need to reach a new understanding of the Recess Appointments Clause of the Constitution. For the Recess Appointments Clause to be functional, it must fulfill two essential constitutional purposes: it must act as a fulcrum in the separation of powers, and it must ensure the continued exercise of the executive power. Achieving this functionality depends not only on the formal constructions of the Clause but also on the ways in …
Jack Balkin's Rich Historicism And Diet Originalism: Health Benefits And Risks For The Constitutional System, Neil S. Siegel
Jack Balkin's Rich Historicism And Diet Originalism: Health Benefits And Risks For The Constitutional System, Neil S. Siegel
Michigan Law Review
Jack Balkin's Living Originalism is a sweet read. It is beautifully written, illuminating, and provocative. It is conducive to deep reflection about foundational questions. In the book, Balkin reasons from two points of view - the perspective of the constitutional system as a whole and the perspective of the faithful participant in that system (p. 130). First, he provides a systemic account of constitutional change, which he calls "living constitutionalism." Second, he offers an approach to constitutional interpretation and construction, which he calls "framework originalism." These two components-living constitutionalism and framework originalism - together constitute his overall theory of "living …
Stare Decisis And Constitutional Text, Jonathan F. Mitchell
Stare Decisis And Constitutional Text, Jonathan F. Mitchell
Michigan Law Review
Almost everyone acknowledges that stare decisis should play a significant role when the Supreme Court of the United States resolves constitutional cases. Yet the academic and judicial rationales for this practice tend to rely on naked consequentialist considerations, and make only passing efforts to square the Court's stare decisis doctrines with the language of the Constitution. This Article offers a qualified defense of constitutional stare decisis that rests exclusively on constitutional text. It aims to broaden the overlapping consensus of interpretive theories that can support a role for constitutional stare decisis, but to do this it must narrow the circumstances …
Assessing The State Of The State Constitutionalism, Jim Rossi
Assessing The State Of The State Constitutionalism, Jim Rossi
Michigan Law Review
Robert Williams's The Law of American State Constitutions is an impressive career accomplishment for one of the leading academic lawyers writing on state constitutions. Given the need for a comprehensive, treatise-like treatment of state constitutions that transcends individual jurisdictions, Williams's book will almost certainly become the go-to treatise for the next generation of state constitutional law practitioners and scholars. The U.S. Constitution has a grip on how the American legal mind approaches issues in American constitutionalism, but an important recurring theme in Williams's work (as well as that of others) is how state constitutions present unique interpretive challenges. More than …
Commerce, Jack M. Balkin
Commerce, Jack M. Balkin
Michigan Law Review
This Article applies the method of text and principle to an important problem in constitutional interpretation: the constitutional legitimacy of the modem regulatory state and its expansive definition of federal commerce power Some originalists argue that the modem state cannot be justified, while others accept existing precedents as a "pragmatic exception" to originalism. Nonoriginalists, in turn, point to these difficulties as a refutation of originalist premises. Contemporary originalist readings have tended to view the commerce power through modem eyes. Originalists defending narrow readings offederal power have identified "commerce" with the trade of commodities; originalists defending broad readings of federal power …
The Glucksberg Renaissance: Substantive Due Process Since Lawrence V. Texas, Brian Hawkins
The Glucksberg Renaissance: Substantive Due Process Since Lawrence V. Texas, Brian Hawkins
Michigan Law Review
On their faces, Washington v. Glucksberg and Lawrence v. Texas seem to have little in common. In Glucksberg, the Supreme Court upheld a law prohibiting assisted suicide and rejected a claim that the Constitution protects a "right to die"; in Lawrence, the Court struck down a law prohibiting homosexual sodomy and embraced a claim that the Constitution protects homosexual persons' choices to engage in intimate relationships. Thus, in both subject matter and result, Lawrence and Glucksberg appear far apart. The Lawrence Court, however, faced a peculiar challenge in reaching its decision, and its response to that challenge brings …
The Constitution Of Reasons, Robin L. West
The Constitution Of Reasons, Robin L. West
Michigan Law Review
A Review of The Partial Constitution by Cass R. Sunstein
The Interpretable Constitution, Steven C. Coberly
The Interpretable Constitution, Steven C. Coberly
Michigan Law Review
A Review of The Interpretable Constitution by William F. Harris II
Three Mistakes About Interpretation, Paul Campos
Three Mistakes About Interpretation, Paul Campos
Michigan Law Review
The single most important word in modem constitutional theory is "interpretation." The single most confusing word in modem constitutional theory is "interpretation." What accounts for this unhappy state of affairs?
I will try to show that Barry Friedman's assertions, as well as others that are but rephrasings of the same basic ideas, are not the common sense truths that so many constitutional theorists assume them to be, but are instead the products of an extraordinarily confused and ultimately incoherent set of assumptions regarding the interpretation of language.
Constitutional Judgment, Gene R. Nichol
Constitutional Judgment, Gene R. Nichol
Michigan Law Review
A Review of Constitutional Interpretation by Philip Bobbitt
The Nonsupreme Court, Kathleen M. Sullivan
The Nonsupreme Court, Kathleen M. Sullivan
Michigan Law Review
A Review of The Constitution in Conflict by Robert A. Burt
The Care And Feeding Of The United States Constitution, Abner J. Mikva
The Care And Feeding Of The United States Constitution, Abner J. Mikva
Michigan Law Review
A Review of The Intelligible Constitution by Joseph Goldstein
Court-Gazing, Stephen F. Williams
Court-Gazing, Stephen F. Williams
Michigan Law Review
A Review of Turning Right: The Making of the Rehnquist Supreme Court by David G. Savage and Deciding To Decide: Agenda Setting in the United States Supreme Court by H.W. Perry, Jr.
Apple Of Gold: Constitutionalism In Israel And The United States, Cynthia A.M. Stroman
Apple Of Gold: Constitutionalism In Israel And The United States, Cynthia A.M. Stroman
Michigan Law Review
A Review of Apple of Gold: Constitutionalism in Israel and the United States by Gary Jeffrey Jacobsohn
A Failed Critique Of State Constitutionalism, David Schuman
A Failed Critique Of State Constitutionalism, David Schuman
Michigan Law Review
James A. Gardner begins The Failed Discourse of State Constitutionalism with a story describing "the experience of a great many lawyers in this country." The protagonist is an attorney whose client has an unlawful discrimination claim that for some reason cannot succeed under the U.S. Supreme Court's current equal protection jurisprudence. The attorney decides to present an argument based on her state constitution's equality guarantee, only to discover that the universe of material from which a plausible argument, not to mention a rich discourse, might emerge - existing case law and scholarship, "useful tidbits" of constitutional history and philosophy from …