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Articles 451 - 480 of 2298

Full-Text Articles in Constitutional Law

Judicial Compensation And The Definition Of Judicial Power In The Early Republic, James E. Pfander Jan 2008

Judicial Compensation And The Definition Of Judicial Power In The Early Republic, James E. Pfander

Michigan Law Review

Article III's provision for the compensation of federal judges has been much celebrated for the no-diminution provision that forecloses judicial pay cuts. But other features of Article Ill's compensation provision have largely escaped notice. In particular, little attention has been paid to the framers' apparent expectation that Congress would compensate federal judges with salaries alone, payable from the treasury at stated times. Article III's presumption in favor of salary-based compensation may rule out fee-based compensation, which was a common form of judicial compensation in England and the colonies but had grown controversial by the time of the framing. Among other …

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A Call For The End Of The Doctrine Of Realignment, Jacob S. Sherkow Jan 2008

A Call For The End Of The Doctrine Of Realignment, Jacob S. Sherkow

Michigan Law Review

In Indianapolis v. Chase National Bank, 1941, the Supreme Court established the doctrine of realignment, requiring federal courts to examine the issues in dispute and realign each party as plaintiff or defendant if necessary. Due to the complete diversity requirement, realignment gave the federal courts the ability to both create and destroy diversity jurisdiction. Since 1941, the federal courts have struggled to interpret the central holding in Indianapolis, and have created several competing "tests" for realignment. This confusion has made the doctrine of realignment unworkable. Realignment along with each of the present tests-encourages jurisdictional abuses by forcing the federal …

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Issue Brief: Overcoming Legal Barriers To The Bulk Sale Of At-Risk Mortgages, Michael S. Barr, James A. Feldman Jan 2008

Issue Brief: Overcoming Legal Barriers To The Bulk Sale Of At-Risk Mortgages, Michael S. Barr, James A. Feldman

Other Publications

This memorandum argues that the sale of loans and loan pools to new owners would help to stabilize housing prices, and that such a modification to the REMIC rules would be desirable and well within Congress’ constitutional authority. Furthermore, it would not lead to successful legal claims by investors in securitized loan pools under the Just Compensation or Due Process clauses, which provide the primary constitutional protections for property interests.

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Limiting Federal Agency Preemption: Recommendations For A New Federalism Executive Order, William Funk, Thomas Mcgarity, Nina A. Mendelson, Sidney Shapiro, David Vladeck, Matthew Shudtz, James Goodwin Jan 2008

Limiting Federal Agency Preemption: Recommendations For A New Federalism Executive Order, William Funk, Thomas Mcgarity, Nina A. Mendelson, Sidney Shapiro, David Vladeck, Matthew Shudtz, James Goodwin

Other Publications

The structure of the U.S. Constitution reflects a profound respect for the principles of federalism and state sovereignty. These principles require the federal government to recognize and encourage opportunities for state and local governments to exercise their authority, especially in areas of traditional state concern such as the protection of the health, safety, and welfare of their citizens. However, over the last six years there has been a coordinated Executive Branch effortto use the regulatory process to shield certain product manufacturers from state tort liability. The Food and Drug Administration, National Highway Traffic Safety Administration, and Consumer Product Safety Commission, …

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Does An Accused Forfeit The Confrontation Right By Murdering A Witness, Absent A Purpose To Render Her Unavailable?, Richard D. Friedman Jan 2008

Does An Accused Forfeit The Confrontation Right By Murdering A Witness, Absent A Purpose To Render Her Unavailable?, Richard D. Friedman

Articles

If an accused murdered a witness, should he be deemed to have forfeited the right under the Sixth Amendment "to be confronted with" the witness, absent proof that the accused committed the murder for the purpose of rendering her unavailable as a witness?

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Requiem For Section 1983, Paul D. Reingold Jan 2008

Requiem For Section 1983, Paul D. Reingold

Articles

Section 1983 no longer serves as a remedial statute for the people most in need of its protection. Those who have suffered a violation of their civil rights at the hands of state authorities, but who cannot afford a lawyer because they have only modest damages or seek only equitable remedies, are foreclosed from relief because lawyers shun their cases. Today civil rights plaintiffs are treated the same as ordinary tort plaintiffs by the private bar: without high damages, civil rights plaintiffs are denied access to the courts because no one will represent them. Congress understood that civil rights laws …

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Can Glucksberg Survive Lawrence? Another Look At The End Of Life And Personal Autonomy, Yale Kamisar Jan 2008

Can Glucksberg Survive Lawrence? Another Look At The End Of Life And Personal Autonomy, Yale Kamisar

Articles

In Washington v. Glucksberg, the Court declined to find a right to physician-assisted suicide ("PAS") in the Constitution. Not a single Justice dissented. One would expect such a ruling to be quite secure. But Lawrence v. Texas, holding that a state cannot make consensual homosexual conduct a crime, is not easy to reconcile with Glucksberg. Lawrence certainly takes a much more expansive view of substantive due process than did Glucksberg. It is conceivable that the five Justices who made up the Lawrence majority-all of whom still sit on the Court-might overrule Glucksberg. For various reasons, …

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When Should Original Meanings Matter?, Richard A. Primus Jan 2008

When Should Original Meanings Matter?, Richard A. Primus

Articles

Constitutional theory lacks an account of when each of the familiar sources of authority-text, original meaning, precedent, and so on-should be given weight. The dominant tendency is to regard all sources as potentially applicable in every case. In contrast, this Article proposes that each source of authority is pertinent in some categories of cases but not in others, much as a physical tool is appropriate for some but not all kinds of household tasks. The Article then applies this approach to identify the categories of cases in which original meaning is, or is not, a valid factor in constitutional decisionmaking.

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Is A Forensic Laboratory Report Identifying A Substance As A Narcotic 'Testimonial'?, Richard D. Friedman Jan 2008

Is A Forensic Laboratory Report Identifying A Substance As A Narcotic 'Testimonial'?, Richard D. Friedman

Articles

Is a state forensic analyst's laboratory report, prepared for use in a criminal proceeding and identifying a substance as cocaine, "testimonial" evidence and so subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004)?

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Advocating For The Constitutional Rights Of Nonresident Fathers, Vivek Sankaran Jan 2008

Advocating For The Constitutional Rights Of Nonresident Fathers, Vivek Sankaran

Articles

Months after a child welaare case is petitioned, a nonresident father appears in court and requests custody of his children who are living in foster care. Little is known about the father, and immediately, the system-judge, caseworkers, and attorneys view him with suspicion and caution, inquiring about his whereabouts and his prior involvement in the children's lives. Those doubts, in turn, raise complicated questions about his legal rights to his children. As a practioner working in the child welfare system, you're likely to face this scenario. The largest percentage of child victims of abuse and neglect come from households headed …

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Why Counting Votes Doesn't Add Up: A Response To Cox And Miles' Judging The Voting Rights Act, Ellen D. Katz, Anna Baldwin Jan 2008

Why Counting Votes Doesn't Add Up: A Response To Cox And Miles' Judging The Voting Rights Act, Ellen D. Katz, Anna Baldwin

Articles

In Judging the Voting Rights Act, Professors Adam B. Cox and Thomas J. Miles report that judges are more likely to find liability under section 2 of the Voting Rights Act (VRA) when they are African American, appointed by a Democratic president, or sit on an appellate panel with a judge who is African American or a Democratic appointee. Cox and Miles posit that their findings “contrast” and “cast doubt” on much of the “conventional wisdom” about the Voting Rights Act, by which they mean the core findings we reported in Documenting Discrimination in Voting: Judicial Findings Under Section 2 …

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Emergency Federalism: Calling On The States In Perilous Times, Adam M. Giuliano Dec 2007

Emergency Federalism: Calling On The States In Perilous Times, Adam M. Giuliano

University of Michigan Journal of Law Reform

The attacks of September 11 prompted a historic debate concerning terrorism and domestic emergency response. This ongoing dialogue has driven policy decisions touching upon both liberty and security concerns. Yet despite the enormous effort that has gone into the national response, the role of the sovereign states, and with it federalism, has received comparatively little attention. This Article explores the relevance of federalism within the context of the "War on Terror" and in the aftermath of Hurricane Katrina. Acknowledging that theories of federalism developed elsewhere are insufficient, he outlines a doctrine of 'emergency federalism.' The author argues that the Framers …

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Taking Text Too Seriously: Modern Textualism, Original Meaning, And The Case Of Amar's Bill Of Rights, William Michael Treanor Dec 2007

Taking Text Too Seriously: Modern Textualism, Original Meaning, And The Case Of Amar's Bill Of Rights, William Michael Treanor

Michigan Law Review

Championed on the Supreme Court by Justice Scalia and Justice Thomas and in academia most prominently by Professor Akhil Amar textualism has emerged within the past twenty years as a leading school of constitutional interpretation. Textualists argue that the Constitution should be interpreted in accordance with its original public meaning, and in seeking that meaning, they closely parse the Constitution's words and grammar and the placement of clauses in the document. They have assumed that this close parsing recaptures original meaning, but, perhaps because it seems obviously correct, that assumption has neither been defended nor challenged. This Article uses Professor …

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Is There A Dormant Extraterritoriality Principle?: Commerce Clause Limits On State Antitrust Laws, Michael J. Ruttinger Dec 2007

Is There A Dormant Extraterritoriality Principle?: Commerce Clause Limits On State Antitrust Laws, Michael J. Ruttinger

Michigan Law Review

State antitrust laws ordinarily supplement federal law by providing a cause of action for anticompetitive activity that occurs in the state. Some states, however, have construed their antitrust regimes to reach conduct that occurs outside the state's boundaries. Such regulation raises significant federalism and Commerce Clause concerns by creating possible extraterritorial liability for conduct with virtually no in-state effect. This Note examines two Commerce Clause standards that may limit the degree to which state antitrust laws may exercise extraterritorial force-the "dormant" or "negative" Commerce Clause and the so-called "Extraterritorial Principle." Unfortunately, the dormant Commerce Clause test, as articulated in Pike …

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Noontime Dumping: Why States Have Broad Discretion To Regulate Onboard Treatments Of Ballast Water, Kyle H. Landis-Marinello Oct 2007

Noontime Dumping: Why States Have Broad Discretion To Regulate Onboard Treatments Of Ballast Water, Kyle H. Landis-Marinello

Michigan Law Review

Ballast water discharges from shipping vessels are responsible for spreading numerous forms of aquatic invasive species, a form of biological pollution that leads to billions of dollars in annual costs. In the wake of inaction from the federal government and inaction from the shipping industry, several Great Lakes states are currently considering legislation to address the problem. Michigan has already passed a law to prevent ballast water introductions of invasive species. As states begin to regulate ballast water discharges from oceangoing vessels, such laws will likely face challenges based on the constitutional principles of the Dormant Commerce Clause and the …

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International Law And Constitutional Interpretation: The Commander In Chief Clause Reconsidered, Ingrid Brunk Wuerth Oct 2007

International Law And Constitutional Interpretation: The Commander In Chief Clause Reconsidered, Ingrid Brunk Wuerth

Michigan Law Review

The Commander in Chief Clause is a difficult, underexplored area of constitutional interpretation. It is also a context in which international law is often mentioned, but not fully defended, as a possible method of interpreting the Constitution. This Article analyzes why the Commander in Chief Clause is difficult and argues that international law helps resolve some of the problems that the Clause presents. Because of weaknesses in originalist analysis, changes over time, and lack of judicial competence in military matters, the Court and commentators have relied on second-order interpretive norms like congressional authorization and executive branch practice in interpreting the …

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Standing Alone: Conformity, Coercion, And The Protection Of The Holdout Juror, Jason D. Reichelt May 2007

Standing Alone: Conformity, Coercion, And The Protection Of The Holdout Juror, Jason D. Reichelt

University of Michigan Journal of Law Reform

The holdout juror in felony criminal trials is a product of the near-universal decision rule in federal and state courts of a unanimous verdict. In recent years, courts have increasingly inquired into a jury's deliberations when a holdout juror has been identified amid allegations of misconduct. This Article helps bridge the considerable gap between cognitive psychology and legal scholarship, analyzing the thought processes of the holdout juror through the application of empirical evidence and psychological modeling, to conclude that the improved protection of the holdout juror is a necessary and critical component to the preservation of a defendant's right to …

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Furman'S Mythical Mandate, Scott W. Howe May 2007

Furman'S Mythical Mandate, Scott W. Howe

University of Michigan Journal of Law Reform

This Article argues for the rescue and reform of Supreme Court doctrine regulating capital sentencing trials under the Eighth Amendment. Many legal commentators, both liberal and conservative, including several members of the Supreme Court, have concluded that the Court's regulation of capital sentencing trials is a disaster. The repeated criticisms rest on a commonly accepted view about a principal goal of capital sentencing regulation. The prevailing account, fueled by the rhetoric of the Justices, stems from the notion that Furman v. Georgia, 408 U.S. 208 (1972), revealed a mandate of consistency in the use of the death penalty that …

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Proximate Cause In Constitutional Torts: Holding Interrogators Liable For Fifth Amendment Violations At Trial, Joel Flaxman May 2007

Proximate Cause In Constitutional Torts: Holding Interrogators Liable For Fifth Amendment Violations At Trial, Joel Flaxman

Michigan Law Review

This Note argues for the approach taken by the Sixth Circuit in McKinley: a proper understanding of the Fifth Amendment requires holding that an officer who coerces a confession that is used at trial to convict a defendant in violation of the right against self-incrimination should face liability for the harm of conviction and imprisonment. Part I examines how the Supreme Court and the circuits have applied the concept of common law proximate causation to constitutional torts and argues that lower courts are wrong to blindly adopt common law rules without reference to the constitutional rights at stake. It …

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A Syllabus Of Errors, Douglas Laycock Apr 2007

A Syllabus Of Errors, Douglas Laycock

Michigan Law Review

Modern American society is pervasively regulated. It is also religiously diverse to a degree that is probably unprecedented in the history of the world. It is inevitable that some of these diverse religious practices will violate some of these pervasive regulations, and equally inevitable that if we ask whether all these regulations are really necessary, sometimes the answer will be no. If we take free exercise of religion seriously, sometimes it will make sense to exempt sincere religious practices from generally applicable laws - but only some laws, and only some applications. Hardly anyone thinks that human sacrifice should be …

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A Response To Professor Laycock, Marci A. Hamilton Apr 2007

A Response To Professor Laycock, Marci A. Hamilton

Michigan Law Review

Almost a hundred years ago, the American Association of University Professors established guidelines for civility among scholars, saying that academic exchanges "should be set forth with dignity, courtesy, and temperateness of language." I agree wholeheartedly with these principles, and I will not succumb to the temptation to respond in kind to Professor Laycock's review. Tone is much less important than having a frank exchange of views. It is well known that Professor Laycock and I have very different perspectives on the proper interpretation of the Free Exercise Clause. His review and my response should be an opportunity for us to …

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"By Night She Fought For Fair Use": Restoring The Integrity Of Copyright Law, One Comic-Book Reader At A Time, Jessica Sawyer Wang Apr 2007

"By Night She Fought For Fair Use": Restoring The Integrity Of Copyright Law, One Comic-Book Reader At A Time, Jessica Sawyer Wang

Michigan Law Review

Students of copyright law quickly learn that the subject is counterintuitive. One of the first revelations of this is-somewhat alarmingly-the purpose of copyright itself. Contrary to popular belief, copyright is not just about protecting an artist's creation, but sharing it. Simultaneously protecting a work and sharing it helps to fulfill the Constitution's mandate that Congress "promote the Progress of Science ... by securing for limited Times to Authors ... the exclusive Right to their ... Writings." In other words, Congress is to promote learning and the advancement of our culture. The symbiosis of protecting and sharing is effected through the …

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Looking Backward: Richard Epstein Ponders The "Progressive" Peril, Michael Allan Wolf Apr 2007

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 …

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Twins Or Triplets?: Protecting The Eleventh Amendment Through A Three-Prong Arm-Of-The-State Test, Héctor G. Bladuell Feb 2007

Twins Or Triplets?: Protecting The Eleventh Amendment Through A Three-Prong Arm-Of-The-State Test, Héctor G. Bladuell

Michigan Law Review

In 1999, the Supreme Court held that the common law principle that the sovereign cannot be sued in its own courts without its consent was embedded in the Constitution's structure when it was ratified. The Court, however, has not always adhered to this view. In 1793, when a citizen of South Carolina sued the State of Georgia to enforce a debt arising from the sale of Revolutionary War supplies, the Court ordered the State to fulfill its obligation even though the State had not consented to the suit. Alarmed by the sudden opening of their treasuries to federal courts over …

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Mostly Harmless: An Analysis Of Post-Aedpa Federal Habeas Corpus Review Of State Harmless Error Determinations, Jeffrey S. Jacobi Feb 2007

Mostly Harmless: An Analysis Of Post-Aedpa Federal Habeas Corpus Review Of State Harmless Error Determinations, Jeffrey S. Jacobi

Michigan Law Review

Sixty years ago, in Kotteakos v. United States, the Supreme Court ruled that a small class of so-called harmless errors committed by courts did not require correction. The Court acknowledged that some judicial errors, though recognizable as errors, did not threaten the validity of criminal convictions and therefore did not quite require reversal. Specifically, the Court held that errors that violated federal statutes should be deemed harmless unless they had a "substantial and injurious effect or influence in determining the jury's verdict." While Kotteakos represented the Supreme Court's first treatment of the concept of harmlessness, other courts had a …

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Fair Use And The Digital Millennium Copyright Act, Thomas J. Loos Jan 2007

Fair Use And The Digital Millennium Copyright Act, Thomas J. Loos

Michigan Telecommunications & Technology Law Review

In the last decade of the 20th Century, more than 200 years after the first Copyright Act of 1790, the rights of copyright owners have increased relative to those of the public. The Visual Artists Rights Act of 1990 provided a limited right to visual artists to control their work; even after sold, limiting first use rights. The first copyright act had a 28 year term; in 1998, the term of copyright was increased to the life of the author plus 70 years. The Digital Millennium Copyright Act (DMCA) of 1998 dramatically shrank the fair use rights provided under 17 …

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Impediments To Financial Development In The Banking Sector: A Comparison Of The Impact Of Federalism In The United States And Germany, Khalil Nicholas Maalouf Jan 2007

Impediments To Financial Development In The Banking Sector: A Comparison Of The Impact Of Federalism In The United States And Germany, Khalil Nicholas Maalouf

Michigan Journal of International Law

This Note examines how differences in U.S. and German variants of federalism have contributed to the formation and development of the dual banking system in the United States and the three-pillar banking system in Germany. Specifically, this Note considers the manner in which federalism has informed the respective banking systems' reactions to dynamic changes in the global banking industry and analyzes the role federalism has played in contributing to or impeding reform efforts in the United States and Germany.

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Separate And Unequal: Federal Tough-On-Guns Program Targets Minority Communities For Selective Enforcement, Bonita R. Gardner Jan 2007

Separate And Unequal: Federal Tough-On-Guns Program Targets Minority Communities For Selective Enforcement, Bonita R. Gardner

Michigan Journal of Race and Law

This Article examines the Project Safe Neighborhoods program and considers whether its disproportionate application in urban, majority- African American cities (large and small) violates the guarantee of equal protection under the law. This Article will start with a description of the program and how it operates-the limited application to street-level criminal activity in predominately African American communities. Based on preliminary data showing that Project Safe Neighborhoods disproportionately impacts African Americans, the Article turns to an analysis of the applicable law. Most courts have analyzed Project Safe Neighborhoods' race-based challenges under selective prosecution case law, which requires a showing by the …

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Same-Sex Loving:Subverting White Supremacy Through Same-Sex Marriage, Adele M. Morrison Jan 2007

Same-Sex Loving:Subverting White Supremacy Through Same-Sex Marriage, Adele M. Morrison

Michigan Journal of Race and Law

This Article marks the 40th anniversary of Loving v. Virginia- the landmark decision that responded to the question of the constitutionality of anti-miscegenation laws by firmly stating that the fundamental right to marry could not be restricted by race-by taking up the issue of the case's applicability in the context of same-sex marriage. The invocation of Loving has generally been in a manner that invites comparisons between interracial and same-sex marriage. Pro same-sex marriage arguments that utilize this comparison-which has come to be known as the "Loving Analogy"-- include the decision's freedom of choice and antidiscrimination elements, but rarely …

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Militating Democracy: Comparative Constitutional Perspectives, Ruti Teitel Jan 2007

Militating Democracy: Comparative Constitutional Perspectives, Ruti Teitel

Michigan Journal of International Law

Can constitutional review by judges save democracy? This Article identifies and discusses the rise of "militant constitutional democracy" by exploring diverse approaches to the role of constitutional and transnational judicial review in rights protection and the challenges that these approaches present to the workings of democracy, the possibilities of compromise, consensus, and conciliation in political life, and the challenge to other constitutional values as well. "Militant constitutional democracy" ought to be understood as belonging to transitional constitutionalism, associated with periods of political transformation that often demand closer judicial vigilance in the presence of fledgling and often fragile democratic institutions; it …

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