Constitutional Law Commons^™

The Failed Discourse Of State Constitutionalism, James A. Gardner

Michigan Law Review

In this article, I approach these questions in two steps. First, I examine the status of state constitutional law as it is practiced today. I conclude that, contrary to the claims of New Federalism, state constitutional law today is a vast wasteland of confusing, conflicting, and essentially unintelligible pronouncements. I argue that the fundamental defect responsible for this state of affairs is the failure of state courts to develop a coherent discourse of state constitutional law that is, a language in which it is possible for participants in the legal system to make intelligible claims about the meaning of state …

Guilt: Henry Friendly Meets The Maharal Of Prague, Irene Merker Rosenberg, Yale L. Rosenberg

Michigan Law Review

So while the overnight deliberation rule is at least partially bound up with the question of reliability and relates to the judicial process itself, the broader and more fundamental issue raised by this law is whether we should free the guilty to preserve a value that we deem necessary to proper working of the criminal justice process, regardless of the culpability of individual defendants. To this Judge Friendly's answer is generally no, 113 and the MaHaRaL's is yes.

The Breath Of The Unfee'd Lawyer: Statutory Fee Limitations And Ineffective Assistance Of Counsel In Capital Litigation, Albert L. Vreeland Ii

Michigan Law Review

This Note argues that fee limitations deprive indigent defendants of their right to effective assistance of counsel. Part I of this Note reviews state court decisions that address Sixth Amendment challenges to fee limitations, yet fail to address the broader concerns about the appointed counsel system. Part II considers the inherent disincentives and burdens fee limitations impose on attorneys and suggests that the limits threaten the indigent accused's right to effective assistance of counsel. A comparison of the fee limitations and the time required to prepare and try a capital case reveals the gross inadequacy of statutory fee provisions. In …

Foreign Affairs Law And Democracy, Phillip R. Trimble

Michigan Law Review

A Review of Constitutionalism, Democracy, and Foreign Affairs by Louis Henkin

Beyond The Constitution, Christopher J. Peters

Michigan Law Review

A Review of Beyond the Constitution by Hadley Arkes

Judicial Power And Reform Politics: The Anatomy Of Lochner V. New York, Charles A. Beineman

Michigan Law Review

A Review of Judicial Power and Reform Politics: The Anatomy of Lochner v. New York. By Paul Kens

Abortion And The Law: A Problem Without A Solution?, Robert F. Drinan S.J.

Michigan Law Review

A Review of Abortion: The Clash of Absolutes by Laurence H. Tribe

The Law's Conscience: Equitable Constitutionalism In America, Neil A. Riemann

Michigan Law Review

A Review of The Law's Conscience: Equitable Constitutionalism in America by Peter Charles Hoffer

Moral Foundations Of Constitutional Thought: Current Problems, Augustinian Prospects, Arthur J. Burke

Michigan Law Review

A Review of Moral Foundations of Constitutional Thought: Current Problems, Augustinian Prospects by Graham Walker

Commentary By Co-Defendant's Counsel On Defendant's Refusal To Testify: A Violation Of The Privilege Against Self-Incrimination?, Martin D. Litt

Michigan Law Review

Currently, the circuits are divided on whether comments by co-defendants' counsel on a defendant's silence impair that defendant's fifth amendment rights. Furthermore, among the circuits that regard such commentary as potentially prejudicial, disagreement exists over the proper test for identifying such comments. This Note asserts that the risk of prejudicing a defendant's fifth amendment rights is too great to allow counsel any comment on a defendant's decision to testify or to remain silent.

Part I of this Note examines the historical evolution of the privilege against self-incrimination and the policy goals behind the privilege. The Note argues that prohibiting comments …

Contempt Of Congress: A Reply To The Critics Of An Absolute Rule Of Statutory Stare Decisis, Lawrence C. Marshall

Michigan Law Review

In the law school tradition of "suspending belief," Professor Eskridge has created a hypothetical in which I, in my first case as Chief Justice of the United States, must decide whether to adhere to various antiquated and seemingly erroneous precedents interpreting the Mann Act. Eskridge assumes that I will feel compelled to adhere to these decisions, for to do otherwise, he contends, would force me to abandon the proposal for an absolute rule of statutory stare decisis that I advanced recently in this Law Review. Eskridge then offers a variety of critiques of my thesis, coming from perspectives as diverse …

Making Sense Of Billboard Law: Justifying Prohibitions And Exemptions, R. Douglass Bond

Michigan Law Review

Part I of this Note surveys the trends in the aesthetic regulation of billboards, culminating in the Supreme Court of California's decision in Metromedia, Inc. v. City of San Diego, and the Supreme Court's review of that decision. Part II analyzes the five Metromedia opinions in order to present properly the contemporary debate over billboard law. It inquires whether a sign prohibition should hinge on the commercial or noncommercial status of the targeted signs. Part III indicates how ambiguities in the Metromedia plurality opinion have produced the conflict in lower courts between the commercial/noncommercial distinction and the onsite/ off …

The Negative Constitution: A Critique, Susan Bandes

Michigan Law Review

Part I describes the current approach, which demands adherence to the notion of a negative constitution. Part II critiques the assumptions underlying the current approach and demonstrates its undesirable consequences in decisional law. Part III explores the tenacious barriers to recognition of affirmative governmental duties: the constitutional, philosophical, and common law roots of the notion of a negative constitution, as well as the belief that recognizing affirmative duties would be an invitation to chaos. Finally, Part IV proposes discarding the rhetoric of negative rights and suggests an approach for constructing a theory better designed to effectuate constitutional goals.

The Case Of The Amorous Defendant: Criticizing Absolute Stare Decisis For Statutory Cases, William N. Eskridge Jr.

Michigan Law Review

Earlier in this the first year of the new millennium, Professor Larry Marshall was appointed Chief Justice of the United States. The first important case coming before the Marshall Court involved the government's prosecution of Frankly Amorous under the White Slave Traffic Act of June 25, 1910 (the Mann Act), as amended. Defendant Amorous was a law student in Virginia who paid for the airplane ticket of his female lover to travel from North Carolina to Virginia for the admitted purpose of having extramarital sexual relations. The U.S. Attorney prosecuted Amorous for violating the Mann Act, which criminalizes the knowing …

Pure Politics, Girardeau A. Spann

Michigan Law Review

Part I of this article considers the impact that judicial discretion has on the traditional model of judicial review, and that model's reliance on the Supreme Court as the primary guardian of minority interests. Part II argues that the interests of racial minorities can be better advanced through the ordinary political process than through the process of Supreme Court adjudication. Part Ill emphasizes that minority participation in Supreme Court proceedings cannot ultimately be avoided and, accordingly, suggests a political model of the Court that minorities can use in an effort to neutralize the Court's distortion of the political process. Part …

Applying Section 2 Of The Voting Rights Act To Single-Member Offices, Edward J. Sebold

Michigan Law Review

This Note questions whether an exemption for single-member offices is justified. Part I provides a brief overview of the Voting Rights Act and the types of discrimination in the political process to which it applies., Part I then reviews the decisions on single-member offices, including the courts' attempts to define single-member offices. This Part concludes neither Congress nor the Supreme Court dictates an exemption for single-member offices. Instead, single-member offices should be open to challenge if they hamper the achievement of section 2's goals. Part II identifies the goals of section 2 by developing a number of theories to give …

Original Intent: "With Friends Like These…", Thomas Gibbs Gee

Michigan Law Review

A Review of Original Intent and the Framer's Constitution by Leonard W. Levy

Political Consensus, Constitutional Formulae, And The Rationale For Judicial Review, Martin H. Redish

Michigan Law Review

A Review of Constitutional Cultures; The Mentality and Consequences of Judicial Review by Robert Nagel

Equal Protection, Class Legislation, And Sex Discrimination: One Small Cheer For Mr. Herbert Spencer's Social Statics, Mark G. Yudof

Michigan Law Review

A Review of The Fourteenth Amendment: From Political Principle to Judicial Doctrine by William E. Nelson

The Privilege To Keep And Bear Arms: The Second Amendment And Its Interpretation, William A. Walker

Michigan Law Review

A Review of The Privilege to Keep and Bear Arms: The Second Amendment and Its Interpretation by Warren Freedman

The New Politics Of Pornography, René L. Todd

Michigan Law Review

A Review of The New Politics of Pornography by Donald A. Downs

Reform And Regret: The Story Of Federal Judicial Involvement In The Alabama Prison System, Steven M. Farina

Michigan Law Review

A Review of Reform and Regret: The Story of Federal Judicial Involvement in the Alabama Prison System by Larry W. Yackle

The Virtue Of Liberality In American Communal Life, Linda R. Hirshman

Michigan Law Review

This article attacks the barriers to articulation of a theory of the good and advocates discussion of the substance of a good regime, specifically, a good American regime. Part I of this article addresses in some detail the civic republicans' revival of interest in the common life. I propose that it is dauntingly difficult, if not impossible, to articulate a satisfying version of a common life without a theory of the good life, an undertaking traditionally associated with authoritarianism and elitism. Rather than abandoning the enterprise, however, I propose to reopen the assumption that the association automatically rules out any …

That Old Due Process Magic: Growth Control And The Federal Constitution, Keith R. Denny

Michigan Law Review

This Note argues that the interests of nonmunicipal federal citizens in being able freely to migrate about the nation are not adequately accounted for in a due process analysis which sanctions regulations with any, even a debatable, relation to the public welfare.

More adaptable and appropriate are the constitutional safeguards designed to protect the interests of nonmunicipal federal citizens: the privileges and immunities clause, the right of interstate travel, and the commerce clause. This Note concludes that GCOs should be measured against these safeguards and not the standards of the due process clause. When so reviewed, GCOs are found wanting. …

A Prior Restraint By Any Other Name: The Judicial Response To Media Challenges Of Gag Orders Directed At Trial Participants, René L. Todd

Michigan Law Review

Gag orders directed at trial participants do not directly intrude into the media's editorial process, but instead result in a reduction of the total communication available regarding trial proceedings. In this way, participant-directed gag orders are effective, albeit indirect, restraints upon the media. This Note examines the dynamics of these participant-directed restrictions and their consequent effect upon the media. Part I examines participant-directed gag orders in relation to traditional prior restraint doctrine. After discussing the history of prior restraint doctrine and the present standard of prior restraint analysis, Part I relates efforts by courts to apply. prior restraint doctrine to …

Progressive And Conservative Constitutionalism, Robin West

Michigan Law Review

The article's central thesis is that the understandings of the constitutional tradition most central to both paradigms are determined by sometimes implicit, but more often explicit, political dispositions toward various forms of social and private power, and the normative authority to which social and private power gives rise. Very broadly, conservative constitutionalists view private or social normative authority as the legitimate and best source of guidance for state action; accordingly, they view both the Constitution and constitutional adjudication as means of preserving and protecting that authority and the power that undergirds it against either legislative or judicial encroachment. Progressive constitutionalists, …

Untangling The Market-Participant Exemption To The Dormant Commerce Clause, Dan T. Coenen

Michigan Law Review

This article explores the market-participant rule. Part I traces the rule's evolution and shows how it has proven less rigid than some initially feared. Part II probes the roots of the rule by challenging justifications for it suggested by other observers. Part III offers an alternative theory of the market-participant doctrine, arguing in particular that it rests on a cluster of rationales that properly have led· the Court to uphold marketplace preferences as the "general rule." Part IV builds on Part III to advance a new, four-part framework for evaluating market-participant issues. Part V then uses that framework to apply …

"Let Congress Do It": The Case For An Absolute Rule Of Statutory Stare Decisis, Lawrence C. Marshall

Michigan Law Review

The sporadic way that various members of the Supreme Court and the legal community treat the principle of stare decisis is increasingly striking. At times, the rule of stare decisis appears to be trotted out in defense of decisions that were actually reached on quite independent grounds. At other times, the dictates of the rule appear to be casually ignored when other factors call for the overruling of a precedent. It is tempting, therefore, to dismiss the rule of stare decisis as a mere rhetorical device, much like the question of whether a Supreme Court nominee's judicial philosophy is an …

The Constitution's Accommodation Of Social Change, Philip A. Hamburger

Michigan Law Review

Did the framers and ratifiers of the United States Constitution think that changes in American society would require changes in the text or interpretation of the Constitution? If those who created the Constitution understood or even anticipated the possibility of major social alterations, how did they expect constitutional law - text and interpretation - to accommodate such developments?

The effect of social change upon constitutional law was an issue the framers and ratifiers frequently discussed. For example, when AntiFederalists complained of the Constitution's failure to protect the jury trial in civil cases, Federalists responded that a change of circumstances might, …

Principles, Politics, And Constitutional Law, Mark Tushnet

Michigan Law Review

The contrast in Senator Thurmond's performance in hearings concerning Judge Bork, whose nomination he supported, and Justice Marshall, whose nomination he opposed, suggests the apparently cynical view that one's position on the proper scope of senatorial inquiry during a nomination depends upon one's position on the merits of the nomination. Much has been written, usually provoked by controversial nominations, about the proper scope of senatorial inquiry. The press of immediate controversy, however, diverts attention from more fundamental issues about the nature of constitutional government, to which I devote this essay.