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Full-Text Articles in Law
Congress And The Reconstruction Of Foreign Affairs Federalism, Ryan Baasch, Saikrishna Bangalore Prakash
Congress And The Reconstruction Of Foreign Affairs Federalism, Ryan Baasch, Saikrishna Bangalore Prakash
Michigan Law Review
Though the Constitution conspicuously bars some state involvement in foreign affairs, the states clearly retain some authority in foreign affairs. Correctly supposing that state participation may unnecessarily complicate or embarrass our nation’s foreign relations, the Supreme Court has embraced aggressive preemption doctrines that sporadically oust the states from discrete areas in foreign affairs. These doctrines are unprincipled, supply little guidance, and generate capricious results. Fortunately, there is a better way. While the Constitution permits the states a limited and continuing role, it never goes so far as guaranteeing them any foreign affairs authority. Furthermore, the Constitution authorizes Congress to enact …
Looking Backward: Richard Epstein Ponders The "Progressive" Peril, Michael Allan Wolf
Looking Backward: Richard Epstein Ponders The "Progressive" Peril, Michael Allan Wolf
Michigan Law Review
In the 1888 novel Looking Backward, Edward Bellamy dreamed up a twentieth century America that was a socialist utopia, a vision invoked four years later by the conservative Justice David J. Brewer as a warning against government regulation. In How Progressives Rewrote the Constitution, Richard Epstein, looking back at the twentieth century through an interpretive lens much more similar to Brewer's than Bellamy's, sees and bemoans the growth of a dominant big government of which the novelist could only dream. Epstein pulls no punches in his attack on those he deems responsible for the shift in the American …
The Political Economy Of Cooperative Federalism: Why State Autonomy Makes Sense And "Dual Sovereignty" Doesn't, Roderick M. Hills Jr.
The Political Economy Of Cooperative Federalism: Why State Autonomy Makes Sense And "Dual Sovereignty" Doesn't, Roderick M. Hills Jr.
Michigan Law Review
It is commonplace to observe that "dual federalism" is dead, replaced by something variously called "cooperative federalism," "intergovernmental relations," or "marble-cake federalism." According to this conventional wisdom, state and local officials do not enforce merely their own laws in their distinct policymaking sphere. Rather, as analyzed in a voluminous literature, state and local governments also cooperate with the federal government in many policymaking areas, ranging from unemployment insurance to historic preservation. These nonfederal governments help implement federal policy in a variety of ways: by submitting implementation plans to federal agencies, by promulgating regulations, and by bringing administrative actions to enforce …
Judicial Review In Europe, Gottfried Dietze
Judicial Review In Europe, Gottfried Dietze
Michigan Law Review
The years following the Second World War witnessed a wave of constitution making in Europe. In East and West alike, popular government was instituted through new basic laws. But whereas the constitutions of Eastern Europe established a Rousseauistic form. of democracy through the creation of an omnipotent legislature, those of the West, while reflecting a belief in parliamentary government, to a larger or smaller degree limited the power of the legislature through the introduction of judicial review. This acceptance of judicial review can be attributed mainly to two factors. It sprung from a distrust of a parliamentarism under which, during …
Justice Jackson And The Judicial Function, Paul A. Weidner
Justice Jackson And The Judicial Function, Paul A. Weidner
Michigan Law Review
Much of the pattern of division in the present Supreme Court is traceable to basic differences of opinion regarding the proper role of a judge in the process of constitutional adjudication. Some students of the Court, yielding to the current fashion of reducing even intricate problems to capsule terms, have tried to explain the controversy by classifying the justices as either "liberals" or "conservatives." A second school poses the disagreement largely in terms of judicial "activism" as opposed to judicial "restraint." It is this view that has the greater relevance for the present discussion. C.H. Pritchett, one of the leading …
Reappraisal Of Federal Question Jurisdiction, G. Merle Bergman
Reappraisal Of Federal Question Jurisdiction, G. Merle Bergman
Michigan Law Review
For some time I have been reading and listening to criticisms directed toward decisions which the Supreme Court has rendered in cases involving federal question jurisdiction. The general 'tenor of this criticism is that these decisions demonstrate a surprising lack of uniformity and conscious purpose. Writers profess to search in vain for sound logic in the Court's opinions. They point up instead the anomaly which is reflected when cases involving a substantial federal issue are tried in state courts, while those in which no real federal issue is involved are nevertheless accepted for trial in the federal courts. This result, …