Constitutional Law Commons^™

Compensation For Constitutional Torts: Reflections On The Significance Of Fault, John C. Jeffries Jr.

Michigan Law Review

This essay is about a neglected aspect of the problem of redressing constitutional violations. Most discussions focus on incentive effects. Unconstitutional conduct can be discouraged by the "hands-on" mechanism of reform by injunction or, more commonly, through the indirection of deterrence. Deterrence issues include selection of the penalties needed to deter official misconduct; the risk that they may also inhibit legitimate government activity; the recruitment of private attorneys general to augment enforcement; and various costs of administration. These and other aspects of deterrence pervade discussions in the Supreme Court. They are also debated in a rich and sophisticated secondary literature. …

Stories Of Origin And Constitutional Possibilities, Milner S. Ball

Michigan Law Review

Robert Cover once observed how "[n]o set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning. For every constitution there is an epic, for each decalogue a scripture." Stories of origin locate law, invest it with legitimacy, and so lend it stability. As Cover went on to note, however, the narratives that legitimate a legal order also retain revolutionary force, for a return to the originating acts recounted in the narratives is always possible. A polity begun in revolution remains subject to revolution.

There is an American story of origins. It is …

Decoding Richmond: Affirmative Action And The Elusive Meaning Of Constitutional Equality, Michel Rosenfeld

Michigan Law Review

This Article first briefly considers the conceptual and constitutional framework out of which the controversy in Croson emerges. Next, the Article turns to Croson itself, and focuses on the Court's adoption of the strict scrutiny test, on the disagreement among the Justices concerning the test's meaning and implications, and on the Court's use of decontextualization to manipulate the key conceptual and factual issues at stake. Finally, drawing upon the principle of equality of opportunity, the Article endeavors to demonstrate how the adoption of particular principles of substantive equality can lead to a comprehensive and coherent constitutional resolution of the affirmative …

Onward Constitutional Soldiers, Milner S. Ball

Michigan Law Review

A Review of Constitutional Faith by Sanford Levinson

Ultra-Wrong About The "Ultra-Right", Terry Eastland

Michigan Law Review

A Review of Packing the Courts: The Conservative Campaign to Rewrite the Constitution by Herman Schwartz

Philosophy, The Federalist, And The Constitution, Edward J. Sebold

Michigan Law Review

A Review of Philosophy, The Federalist, and the Constitution by Morton White

Judicial Review And American Democracy, Stanley S. Sokul

Michigan Law Review

A Review of Judicial Review and American Democracy by Albert P. Melone and George Mace

Outlaw Blues, Suzanna Sherry

Michigan Law Review

A Review of Red, White, and Blue: A Critical Analysis of Constitutional Law by Mark Tushnet

Constitutional Conventions, Frederick Schauer

Michigan Law Review

A Review of American Constitutional Law Second Edition, by Laurence H. Tribe

Confusing The Fifth Amendment With The Sixth: Lower Court Misapplication Of The Innis Definition Of Interrogation, Jonathan L. Marks

Michigan Law Review

This Note examines how these courts have applied or misapplied Innis, and concludes that, while many of these decisions are consistent with Miranda and Innis, too many others are not. In order to evaluate these cases, it is first necessary to understand the meaning and significance of Innis. Part I thus considers Innis and its background. Part II then examines lower court decisions applying the Innis test, dividing these decisions into six groups based on the most common factual scenarios. Because the cases deal with factually specific police practices, this method constitutes the most useful way to …

Police-Obtained Evidence And The Constitution: Distinguishing Unconstitutionally Obtained Evidence From Unconstitutionally Used Evidence, Arnold H. Loewy

Michigan Law Review

The article will consider four different types of police-obtained evidence: evidence obtained from an unconstitutional search and seizure, evidence obtained from a Miranda violation, confessions and lineup identifications obtained in violation of the sixth amendment right to counsel, and coerced confessions. My conclusions are that evidence obtained from an unconstitutional search and seizure is excluded because of the police misconduct by which it was obtained. On the other hand, evidence obtained from a Miranda violation is (or ought to be) excluded because use of that evidence compromises the defendant's procedural right not to be compelled to be a witness against …

Is "Internal Consistency" Foolish?: Reflections On An Emerging Commerce Clause Restraint On State Taxation, Walter Hellerstein

Michigan Law Review

Whatever role "internal consistency" may come to play in the Court's commerce clause jurisprudence, it has already emerged as a doctrine that warrants our attention. This article traces the development of the doctrine, explores its implications, and considers its defensibility as a limitation on state taxing power. The article suggests that the results the Court reaches under the "internal consistency" doctrine could be reached by rigorous application of a more familiar commerce clause principle - one to which the Court has been less than faithful.

Territoriality And The Perils Of Formalism, Mark P. Gergen

Michigan Law Review

Recently in this journal Donald Regan published a pair of essays on CTS Corp. v. Dynamics Corp. of America. Much of the first essay elaborates his theory that what the Supreme Court should be doing and what it is doing under the dormant commerce clause is checking state laws adopted with a substantial protectionist purpose. The rest of the first essay and all of the second essay develop a different check on state lawmaking power in interstate affairs: a rule that states may not regulate conduct beyond their borders. He calls this the extraterritoriality principle. Elsewhere I have questioned …

Reconstituting "Original Intent": A Constitutional Law Encyclopedia For The Next Century, David M. Skover

Michigan Law Review

A Review of Encyclopedia of the American Constitution by Leonard Levy, Kenneth Karst and Dennis Mahoney

The Role Of State Supreme Courts In The New Judicial Federalism, Jonathan T. Foot

Michigan Law Review

A Review of The Role of State Supreme Courts in the new Judicial Federalism by Susan P. Fino

Why We Lost The Era, Judith L. Hudson

Michigan Law Review

A Review of Why We Lost the ERA