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Articles 31 - 60 of 170
Full-Text Articles in Public Law and Legal Theory
Emergency Takings, Brian Angelo Lee
Emergency Takings, Brian Angelo Lee
Michigan Law Review
Takings law has long contained a puzzle. The Fifth Amendment to the U.S. Constitution requires the government to pay “just compensation” to owners of private property that the government “takes.” In ordinary circumstances, this requirement applies equally whether the property is confiscated or destroyed, and it also applies to property confiscated in emergencies. Remarkably, however, courts have repeatedly held that if the government destroys property to address an emergency, then a “necessity exception” relieves the government of any obligation to compensate the owner of the property that was sacrificed for the public good. Although the roots of this startling principle …
Passive Takings: The State's Affirmative Duty To Protect Property, Christopher Serkin
Passive Takings: The State's Affirmative Duty To Protect Property, Christopher Serkin
Michigan Law Review
The purpose of the Fifth Amendment’s Takings Clause is to protect property owners from the most significant costs of legal transitions. Paradigmatically, a regulatory taking involves a government action that interferes with expectations about the content of property rights. Legal change has therefore always been central to regulatory takings claims. This Article argues that it does not need to be and that governments can violate the Takings Clause by failing to act in the face of a changing world. This argument represents much more than a minor refinement of takings law because recognizing governmental liability for failing to act means …
The Political Safeguards Of Horizontal Federalism, Heather K. Gerken, Ari Holtzblatt
The Political Safeguards Of Horizontal Federalism, Heather K. Gerken, Ari Holtzblatt
Michigan Law Review
For decades, we have debated whether “political safeguards” preserve healthy relations between the states and the federal government and thus reduce or eliminate the need for judges to referee state–federal tussles. No one has made such an argument about relations among the states, however, and the few scholars to have considered the question insist that such safeguards don’t exist. This Article takes the opposite view and lays down the intellectual foundations for the political safeguards of horizontal federalism. If you want to know what unites the burgeoning work on horizontal federalism and illuminates the hidden logic of its doctrine, you …
Judicial Independence And Social Welfare, Michael D. Gilbert
Judicial Independence And Social Welfare, Michael D. Gilbert
Michigan Law Review
Judicial independence is a cornerstone of American constitutionalism. It empowers judges to check the other branches of government and resolve cases impartially and in accordance with law. Yet independence comes with a hazard. Precisely because they are independent, judges can ignore law and pursue private agendas. For two centuries, scholars have debated those ideas and the underlying tradeoff: independence versus accountability. They have achieved little consensus, in part because independence raises difficult antecedent questions. We cannot decide how independent to make a judge until we agree on what a judge is supposed to do. That depends on one’s views about …
Stare Decisis And The Rule Of Law: A Layered Approach, Jeremy Waldron
Stare Decisis And The Rule Of Law: A Layered Approach, Jeremy Waldron
Michigan Law Review
Stare decisis remains a controversial feature of the legal systems that recognize it. Some jurists argue that the doctrine is at odds with the rule of law; others argue that there are good rule-of-law arguments in favor of stare decisis. This Article considers one possible good rule-of-law argument. It suggests that we should approach stare decisis in a layered way, looking at what the rule of law requires of the various judges involved in the development of a precedent. One rule-of-law principle, the principle of constancy, counsels against lightly overturning such precedents as there are. But that is not in …
Contextualing Regimes: Institutionalization As A Response To The Limits Of Interpretation And Policy Engineering, Charles F. Sabel, William H. Simon
Contextualing Regimes: Institutionalization As A Response To The Limits Of Interpretation And Policy Engineering, Charles F. Sabel, William H. Simon
Michigan Law Review
When legal language and the effects of public intervention are indeterminate, generalist lawmakers (legislatures, courts, top-level administrators) often rely on the normative output of contextualizing regimes-institutions that structure deliberative engagement by stakeholders and articulate the resulting understanding. Examples include the familiar practices of delegation and deference to administrative agencies in public law and to trade associations in private law. We argue that resorting to contextualizing regimes is becoming increasingly common across a broad range of issues and that the structure of emerging regimes is evolving away from the well-studied agency and trade association examples. The newer regimes mix public and …
Theorizing American Freedom, Anthony O'Rourke
Theorizing American Freedom, Anthony O'Rourke
Michigan Law Review
Some intellectual concepts once central to America's constitutional discourse are, for better and worse, no longer part of our political language. These concepts may be so alien to us that they would remain invisible without carefully reexamining the past to challenge the received narratives of America's constitutional development. Should constitutional theorists undertake this kind of historical reexamination? If so, to what extent should they be willing to stray from the disciplinary norms that govern intellectual history? And what normative aims can they reasonably expect to achieve by exploring ideas in our past that are no longer reflected in the Constitution's …
Criminal Sanctions In The Defense Of The Innocent, Ehud Guttel, Doron Teichman
Criminal Sanctions In The Defense Of The Innocent, Ehud Guttel, Doron Teichman
Michigan Law Review
Under the formal rules of criminal procedure, fact finders are required to apply a uniform standard of proof in all criminal cases. Experimental studies as well as real world examples indicate, however, that fact finders often adjust the evidentiary threshold for conviction in accordance with the severity of the applicable sanction. All things being equal, the higher the sanction, the higher the standard of proof that fact finders will apply in order to convict. Building on this insight, this Article introduces a new paradigm for criminal punishments-a paradigm that focuses on designing penalties that will reduce the risk of unsubstantiated …
On Strict Liability Crimes: Preserving A Moral Framework For Criminal Intent In An Intent-Free Moral World, W. Robert Thomas
On Strict Liability Crimes: Preserving A Moral Framework For Criminal Intent In An Intent-Free Moral World, W. Robert Thomas
Michigan Law Review
The law has long recognized a presumption against criminal strict liability. This Note situates that presumption in terms of moral intuitions about the role of intention and the unique nature of criminal punishment. Two sources-recent laws from state legislatures and recent advances in moral philosophy-pose distinct challenges to the presumption against strict liability crimes. This Note offers a solution to the philosophical problem that informs how courts could address the legislative problem. First, it argues that the purported problem from philosophy stems from a mistaken relationship drawn between criminal law and morality. Second, it outlines a slightly more nuanced moral …
Property's Morale, Nestor M. Davidson
Property's Morale, Nestor M. Davidson
Michigan Law Review
A foundational argument long invoked to justify stable property rights is that property law must protect settled expectations. Respect for expectations unites otherwise disparate strands of property theory focused on ex ante incentives, individual identity, and community. It also privileges resistance to legal transitions that transgress reliance interests. When changes in law unsettle expectations, such changes are thought to generate disincentives that Frank Michelman famously labeled "demoralization costs." Although rarely approached in these terms, arguments for legal certainty reflect underlying psychological assumptions about how people contemplate property rights when choosing whether and how to work, invest, create, bolster identity, join …
Ely At The Altar: Political Process Theory Through The Lens Of The Marriage Debate, Jane S. Schacter
Ely At The Altar: Political Process Theory Through The Lens Of The Marriage Debate, Jane S. Schacter
Michigan Law Review
Political process theory, closely associated with the work of John Hart Ely and footnote four in United States v. Carolene Products, has long been a staple of constitutional law and theory. It is best known for the idea that courts may legitimately reject the decisions of a majority when the democratic process that produced the decision was unfair to a disadvantaged social group. This Article analyzes political process theory through the lens of the contemporary debate over same-sex marriage. Its analysis is grounded in state supreme court decisions on the constitutionality of barring same-sex marriage, as well as the high-profile, …
What We Make Matter, Sherman J. Clark
What We Make Matter, Sherman J. Clark
Michigan Law Review
The Michigan Law Review's Survey of Books Related to the Law provides an annual opportunity not only to consider a range of legal issues and views, but also to think about the range of ways we argue about and study the law. In this Foreword, I would like to suggest that we think not only about how we choose to argue, but also the potential consequences of those choices. When we study or argue about law and politics, we routinely and sensibly consider the possible unintended impact of particular substantive rules and policies. Here I suggest that we should attend …
Why Care About Mass Incarceration?, James Forman Jr.
Why Care About Mass Incarceration?, James Forman Jr.
Michigan Law Review
Advocates for less punitive crime policies in the United States face long and dispiriting odds. The difficulty of the challenge becomes clear if we compare our criminal justice outcomes with those of other nations: We lock up more people, and for longer, than anyone else in the world. We continue to use the death penalty long after Europe abandoned it, we are the only country in the world to lock up juveniles for life, and we have prisoners serving fifty-year sentences for stealing videotapes from Kmart. Our courts offer little relief: the German Constitutional Court prohibits a sentence of life …
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 …
Negligence And Insufficient Activity: The Missing Paradigm In Torts, David Gilo, Ehud Guttel
Negligence And Insufficient Activity: The Missing Paradigm In Torts, David Gilo, Ehud Guttel
Michigan Law Review
Conventional wisdom in tort law maintains that the prevention of undesirable risks mandates restriction of harmful conduct. Against this widely held conviction, this Article shows that undesirable risks often stem from insufficient, rather than excessive, activity. Because negligence requires investments in only cost-justified care, parties might deliberately limit their activity so that the size of the ensuing risk would be lower than the cost of welfare-enhancing precautions. Parties' incentives to strategically restrict their activity levels have striking implications for the inducement of efficient harm prevention. The overlooked paradigm of insufficient activity calls for the imposition of a new form of …
Temporary Accidents?, M. Elizabeth Magill
Temporary Accidents?, M. Elizabeth Magill
Michigan Law Review
In Part I of this Review, I will summarize Croley's book, focusing on his powerful critique of public choice theory and the alternative account that he develops and defends. Part II assesses the book, arguing that Croley is successful in demonstrating agency autonomy but less successful in showing that either administrator motivations or the administrative process tend to make agencies regulate in welfare-enhancing ways. As is often the case, the critique is more powerful than the construction of the alternative account. Even so, Croley's book should alter debates over the possibility of good government by placing the agency and how …
Harry Potter And The Half-Crazed Bureaucracy, Benjamin H. Barton
Harry Potter And The Half-Crazed Bureaucracy, Benjamin H. Barton
Michigan Law Review
What would you think of a government that engaged in this list of tyrannical activities: tortured children for lying; designed its prison specifically to suck all life and hope out of the inmates; placed citizens in that prison without a hearing; ordered the death penalty without a trial; allowed the powerful, rich, or famous to control policy; selectively prosecuted crimes (the powerful. go unpunished and the unpopular face trumped-up charges); conducted criminal trials without defense counsel; used truth serum to force confessions; maintained constant surveillance over all citizens; offered no elections and no democratic lawmaking process; and controlled the press? …
Should Coercive Interrogation Be Legal?, Eric A. Posner, Adrian Vermeule
Should Coercive Interrogation Be Legal?, Eric A. Posner, Adrian Vermeule
Michigan Law Review
Most academics who have written on coercive interrogation believe that its use is justified in extreme or catastrophic scenarios but that nonetheless it should be illegal. They argue that formal illegality will not prevent justified use of coercive interrogation because government agents will be willing to risk criminal liability and are likely to be pardoned, acquitted, or otherwise forgiven if their behavior is morally justified. This outlaw and forgive approach to coercive interrogation is supposed to prevent coercive interrogation from being applied in inappropriate settings, to be symbolically important, and nonetheless to permit justified coercive interrogation. We argue that the …
Private Standards In Public Law: Copyright, Lawmaking And The Case Of Accounting, Lawrence A. Cunningham
Private Standards In Public Law: Copyright, Lawmaking And The Case Of Accounting, Lawrence A. Cunningham
Michigan Law Review
Government increasingly leverages its regulatory function by embodying in law standards that are promulgated and copyrighted by nongovernmental organizations. Departures from such standards expose citizens to criminal, civil, and administrative sanctions, yet private actors generate, control, and limit access to them. Despite governmental ambitions, no one is responsible for evaluating the legitimacy of this approach ex ante and no framework exists to facilitate analysis. This Article contributes an analytical framework and proposes institutional mechanisms to implement it. The lack of a comprehensive framework for evaluating copyright to standards embodied in law is surprising because the range of standards potentially affected …
The Myth Of Accountability And The Anti-Administrative Impulse, Edward Rubin
The Myth Of Accountability And The Anti-Administrative Impulse, Edward Rubin
Michigan Law Review
The idea of accountability is very much in fashion in legal and political thought these days. To be sure, the term is used in a variety of different ways, but that is the nature of fashion. Colored cloth ponchos may be in fashion this season, for example, but they can be shaped and colored in a variety of different ways. It is differences of this sort that sustain a fashion trend. If the only poncho available were red and square, the fashion trend would display an impressive unity, but it wouldn't last very long. In order to make sales, clothing …
Was The Frog Prince Sexually Molested?: A Review Of Peter Westen's The Logic Of Consent, Heidi M. Hurd
Was The Frog Prince Sexually Molested?: A Review Of Peter Westen's The Logic Of Consent, Heidi M. Hurd
Michigan Law Review
Peter Westen's The Logic of Consent is nothing short of a tour de force. In the tradition of the very best and most significant contributions to legal theory, Professor Westen demonstrates that we do not know what we think we know about a capacity that on a daily basis turns trespasses into dinner parties, brutal batteries into football games, rape into lovemaking, and the commercial appropriation of name and likeness into biography. While we all employ claims of consent in everyday moral gossip to absolve some and withhold sympathy from others, and while courts of law across the nation commonly …
The Logic Of Reciprocity: Trust, Collective Action, And Law, Dan M. Kahan
The Logic Of Reciprocity: Trust, Collective Action, And Law, Dan M. Kahan
Michigan Law Review
The Logic of Collective Action has for decades supplied the logic of public-policy analysis. In this pioneering application of public choice theory, Mancur Olson elegantly punctured the premise - shared by a variety of political theories - that individuals can be expected to act consistently with the interest of the groups to which they belong. Absent externally imposed incentives, wealth-maximizing individuals, he argued, will rarely find it in their interest to contribute to goods that benefit the group as a whole, but rather will "free ride" on the contributions that other group members make. As a result, too few individuals …
The Progress Of Passion, Kathryn Abrams
The Progress Of Passion, Kathryn Abrams
Michigan Law Review
Like an abandoned fortress, the dichotomy between reason and the passions casts a long shadow over the domain of legal thought. Beset by forces from legal realism to feminist epistemology, this dichotomy no longer holds sovereign sway. Yet its structure helps to articulate the boundaries of the legal field; efforts to move in and around it infuse present thinking with the echoes of a conceptually distinct past. Early critics of the dichotomy may unwittingly have prolonged its influence through the frontal character of their attacks. By challenging a strong distinction between emotion and reason, critics kept it, paradoxically, before legal …
Pragmatism Regained, Christopher Kutz
Pragmatism Regained, Christopher Kutz
Michigan Law Review
Jules Coleman's The Practice of Principle serves as a focal point for current, newly intensified debates in legal theory, and provides some of the deepest, most sustained reflections on methodology that legal theory has seen. Coleman is one of the leading legal philosophers in the Anglo-American world, and his writings on tort theory, contract theory, the normative foundations of law and economics, social choice theory, and analytical jurisprudence have been the point of departure for much of the most interesting activity in the field for the last three decades. Indeed, the origin of this book lies in Oxford University's invitation …
Cost-Benefit Default Principles, Cass R. Sunstein
Cost-Benefit Default Principles, Cass R. Sunstein
Michigan Law Review
Courts should be reluctant to apply the literal terms of a statute to mandate pointless expenditures of effort. . .. Unless Congress has been extraordinarily rigid, there is likely a basis for an implication of de minimis authority to provide exemption when the burdens of regulation yield a gain of trivial or no value. It seems bizarre that a statute intended to improve human health would .. . lock the agency into looking at only one half of a substance's health effects in determining the maximum level for that substance. [I]t is only where there is "clear congressional intent to …
Where Is My Body? Stanley Fish's Long Goodbye To Law, Richard Delgado
Where Is My Body? Stanley Fish's Long Goodbye To Law, Richard Delgado
Michigan Law Review
Stanley Fish, author of Doing What Comes Naturally, Is There a Text in This Class?, There's No Such Thing as Free Speech, and It's a Good Thing, Too, and other paradigm-shifting books, and who recently left law teaching for a position in university administration, has written one last volume giving his colleagues in the profession he left behind something to think about. In his previous work, Fish, who taught English and law at Duke University, addressed central legal issues such as meaning, communication, and textual interpretation, challenging such received wisdoms as that every text has a single, determinate meaning, or …
A New Economic Theory Of Regulation: Rent Extraction Rather Than Rent Creation, Douglas Ginsburg
A New Economic Theory Of Regulation: Rent Extraction Rather Than Rent Creation, Douglas Ginsburg
Michigan Law Review
Once upon a time, people believed that the government regulated various indus tries in "the public interest." The idea was that certain conditions, such as "natural monopoly" or the ability to externalize significant costs, caus ed markets to fail and governments to step in to correct that failure. Econmnic regulation predicated upon market failure can be dated conveniently to the Interstate Commerce Act of 1887, in which the Congress established the Inters tate Commerce Commission to regulate railroads in the interests of shippers, principally farmers and small businesses. The legal notion of "affectation with the public interest" dates back much …
The Common Law In Cyberspace, Tom W. Bell
The Common Law In Cyberspace, Tom W. Bell
Michigan Law Review
Wrong in interesting ways, counts for high praise among academics. Peter Huber's stirring new book, Law and Disorder in Cyberspace, certainly merits acclaim by that standard. The very subtitle of the book, Abolish the FCC and Let Common Law Rule the Telecosm, announces the daring arguments to follow. A book so bold could hardly fail to make some stimulating errors, the most provocative of which this review discusses. Thanks to his willingness to challenge musty doctrines of telecommunications law and policy, moreover, Huber gets a great deal right. Law and Disorder in Cyberspace argues at length that the Federal Communications …
Guerrillas In Our Midst: The Assault On Radicals In American Law, Daria Roithmayr
Guerrillas In Our Midst: The Assault On Radicals In American Law, Daria Roithmayr
Michigan Law Review
On October 9, 1997, radicals everywhere celebrated the thirtieth anniversary of the death of Che Guevara, the revered Cuban and South American rebel known as much for his guerrilla manifestos as for his scraggly facial hair and the black beret positioned slightly askance. At the same time Latin Americans and revolutionaries were marking the death of their beloved Che, Professors Daniel Farber and Suzanna Sherry were publishing their long-awaited book, Beyond All Reason: The Radical Assault on Truth in American Law. The professors' timing was, unintentionally, quite appropriate. Like many of Che's manifestos, the book sounds an ideological call to …
The Origin, Development, And Regulation Of Norms, Richard H. Mcadams
The Origin, Development, And Regulation Of Norms, Richard H. Mcadams
Michigan Law Review
For decades, sociologists have employed the concept of social norms to explain how society shapes individual behavior. In recent years, economists and rational choice theorists in philosophy and political science have started to use individual behavior to explain the origin and function of norms. For many in this group, the focus of study is the interaction of law and norms, of formal and informal rules. Exemplified by Robert Ellickson's Order Without Law, this literature uses norms to develop more robust explanations of behavior and to predict more accurately the effect of legal rules. Norms turn out to matter in legal …