Rule of Law Commons^™

Back To The Briarpatch: An Argument In Favor Of Constitutional Meta-Analysis In State Action Determinations, Ronald J. Krotoszynski Jr.

Michigan Law Review

Brer Rabbit, after claiming repeatedly that he would prefer almost anything to being thrown into the briarpatch, expressed glee once tossed there. In fact, Brer Rabbit wanted to be in the briarpatch because, like most rabbits, he could navigate the briarpatch with relative ease: the briarpatch was home.

Over the course of a century, the Supreme Court has developed a great degree of familiarity with the state action doctrine, a doctrinal briar patch. Like Brer Rabbit, the Court has disclaimed repeatedly any interest in being there.

In this article, I argue that the existing tests for establishing the presence of …

Procedure As A Guarantee Of Democracy: The Legacy Of The Perestroika Parliament, Frances H. Foster

Vanderbilt Journal of Transnational Law

In this Article, the author chronicles the rise and fall of the "perestroika parliament." While Gorbachev's reforms were ultimately unsuccessful in producing effective democratic representation, the author believes that the history of these reforms provides some valuable lessons for post-Soviet Russia. Specifically, Professor Foster concludes that current reformers in Russia should learn from the failed perestroika parliament that a democratic, "rule-of-law" state requires uniform lawmaking procedures with constitutional safeguards to guarantee their integrity.

Dialogue And Judicial Review, Barry Friedman

Michigan Law Review

This article argues that most normative legal scholarship regarding the role of judicial review rests upon a descriptively inaccurate foundation. The goal of this article is to redescribe the landscape of American constitutionalism in a manner vastly different than most normative scholarship. At times this article slips across the line into prescription, but by and large the task is descriptive. The idea is to clear the way so that later normative work can proceed against the backdrop of a far more accurate understanding of the system of American constitutionalism.

This article proceeds in three separate parts. Parts I and II …

Evidence: Indiana Moves Toward Adoption Of The Federal Rules, Ivan E. Bodensteiner

Law Faculty Publications

No abstract provided.

Judicial Conduct

Touro Law Review

No abstract provided.

Identifying, Protecting And Preserving Individual Rights: Traditional Federal Court Functions, Roger J. Miner '56

Constitutional Law

No abstract provided.

Disagreement And Interpretation, Robert F. Nagel

Publications

No abstract provided.

Justifiably Punishing The Justified, Heidi M. Hurd

Michigan Law Review

Contemporary moral philosophy, political theory, and jurisprudence have converged to create a quite baffling dilemma. This dilemma is generated by the apparent incompatibility of three principles, each of which grounds features of our system of law and government, and each of which carries substantial normative weight. The first I shall call the punishment principle - a moral principle, doctrinally entrenched in American criminal and civil law, which holds that individuals who are morally justified in their actions ought not to be blamed or punished for those actions. The second is the principle of the rule of law - a complex …

Foreign Affairs Law And Democracy, Phillip R. Trimble

Michigan Law Review

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

Unenumerated Constitutional Rights And The Rule Of Law, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The rule of law has long been one of the mainstays of liberal thought. John Locke cited its absence--not the absence of rights, which Locke thought existed in the state of nature--as the first reason for forming a government. Essentially, the rule of law says that the requirements of justice must take a form such that persons can know what justice requires of them before they act and can detect abuses by those charged with law enforcement. If the formal and procedural requirements of the rule of law are adhered to, those "good" persons who seek to act properly can …

The Virtues Of Redundancy In Legal Thought, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Redundancy has a bad reputation among legal intellectuals. When someone says, for example, that the ninth and tenth amendments are redundant, we can be pretty sure that this person attaches little importance to these constitutional provisions. Listen to one of the definitions of redundant provided by the Oxford English Dictionary: "superabundant, superfluous, excessive."' In this essay, the author proposes that legal theorists pay serious attention to the concept of redundancy used by engineers. He explains how redundancy--in this special sense--is essential to any intellectual enterprise in which we try to reach action-guiding conclusions, including the enterprise of law. The author …

Of Chickens And Eggs−−The Compatibility Of Moral Rights And Consequentialist Analyses, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Philosophers are accustomed to thinking of moral rights and consequentialist analyses as fundamentally incompatible. They frequently debate cases--both hypothetical and real--in which rights and consequences are in conflict. For example, suppose an innocent child knows the whereabouts of a terrorist who has planted a nuclear bomb in a city. Would it be permissible to violate the child's moral right to be free from torture, if this was the only way to save millions of innocent lives? If this is permissible, then do not moral rights yield to concerns about consequences? Or suppose that a community incorrectly believes that an innocent …

A Comment On The Rule Of Law Model Of Separation Of Powers, Robert F. Nagel

Publications

No abstract provided.

Adherence To The Original Intentions In Constitutional Adjudication: Three Objections And Responses, Richard Kay

Faculty Articles and Papers

No abstract provided.

Population Changes And Constitutional Amendments: Federalism Versus Democracy, Peter Suber

University of Michigan Journal of Law Reform

To amend the federal Constitution, we need the assent of two-thirds of each house of Congress and three-fourths of the states. This Article focuses on the three-fourths requirement for the states. This threshold is particularly high, and it suggests that constitutional amendment is very difficult. In fact, amendment is difficult in different degrees for different constituencies, depending not on their numbers but on where they live.

A Comment On Democratic Constitutionalism, Robert F. Nagel

Publications

No abstract provided.

Executive Targeting Of Congressmen As A Violation Of The Arrest Clause, Anita Bernstein

Faculty Scholarship

No abstract provided.

Governmental Secrecy And The Founding Fathers: A Study In Constitutional Controls, Michigan Law Review

Michigan Law Review

A Review of Governmental Secrecy and the Founding Fathers: A Study in Constitutional Controls by Daniel N. Hoffman

Making Campaign Finance Law Enforceable: Closing The Independent Expenditure Loophole, John P. Relman

University of Michigan Journal of Law Reform

This Note explores the problems posed by present attempts to define "coordination." Part I discusses generally the complexities of the coordination problem under Buckley, setting forth the rationale behind the Buckley rule and examining present efforts by Congress and the FEC to enforce the Buckley standards. Part I concludes by proposing a new definition for "coordination" designed to improve enforcement of the Buckley rule. Part II presents an alternative means for remedying the coordination problem. Rather than relying on a redefinition of coordination for proper enforcement of federal election law, this section proposes prophylactic legislation designed to regulate independent …

Constitutional Interpretation, Terrance Sandalow

Articles

"[We] must never forget," Chief Justice Marshall admonished us in a statement pregnant with more than one meaning, "that it is a constitution we are expounding."' Marshall meant that the Constitution should be read as a document "intended to endure for ages.to come, and, consequently, to be adapted to the various crises of human affairs."'2 But he meant also that the construction placed upon the document must have regard for its "great outlines" and "important objects."'3 Limits are implied by the very nature of the task. There is not the same freedom in construing the Constitution as in constructing a …

Pins Jurisdiction, The Vagueness Doctrine, And The Rule Of Law, All Katz, Lee E. Teitelbaum

Indiana Law Journal

No abstract provided.

Congressional Control Of Agency Privilege, Mark A. Luscombe

University of Michigan Journal of Law Reform

This note seeks to provide an introductory and largely historical analysis of "agency privilege:" the refusal of federal executive officials to furnish information and documents to congressional bodies absent the invocation of a claim of privilege by the President. After a brief survey of the origins of agency privilege in part I, the history and nature of the competing interests of congressional investigations and autonomy of executive departments and agencies will be discussed in part II. Part III explores the constitutional basis of the claim and analyzes other justifications proffered in specific circumstances. Part IV weighs the merits of various …

Fragile Coalition Interviews - Group - Tapes 4&5, July 11-12, 1975, M. Caldwell Butler

Fragile Coalition Interviews

No abstract provided.

M. Caldwell Butler Audio Diary - Digest Of Transcripts, July 10,1975, M. Caldwell Butler

Butler-Woodlief Recordings

No abstract provided.

Fragile Coalition Interviews - Hamilton Fish Jr., June 26, 1975, M. Caldwell Butler

Fragile Coalition Interviews

No abstract provided.

Fragile Coalition Interviews - James R. Mann, June 19, 1975, M. Caldwell Butler

Fragile Coalition Interviews

No abstract provided.

Fragile Coalition Interviews - William S. Cohen, June 17, 1975, M. Caldwell Butler

Fragile Coalition Interviews

No abstract provided.

Fragile Coalition Interviews - Raymond H. Thornton., June 13, 1975, M. Caldwell Butler

Fragile Coalition Interviews

No abstract provided.

Fragile Coalition Interviews - Thomas F. Railsback, June 11, 1975, M. Caldwell Butler

Fragile Coalition Interviews

No abstract provided.

Fragile Coalition Interviews - Introduction, M. Caldwell Butler

Fragile Coalition Interviews

No abstract provided.