Rule of Law Commons^™

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 …

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

A Skeptical Look At Contemporary Republicanism, Terrance Sandalow

Articles

A growing number of scholars have been led by that impulse to an interest in 'the republican tradition," arguing that it offers resources for correcting the deformities they perceive in contemporary life and for which they hold liberalism responsible. Republicanism is a mansion with many rooms, and its modem interpreters emphasize varying possibilities within it, but common to all is the vision of a politics that recognizes and seeks to strengthen the social bonds within a political community. Within the limits set by that vision differences abound, just as differences exist among liberals concerning appropriate political foundations for individual freedom. …

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.

Terrorism And The Democratic State, Alona E. Evans

Michigan Law Review

A Review of A Time of Terror: How Democratic Societies Respond to Revolutionary Violence by J. Bowyer Bell

Devising Procedures That Are Civil To Promote Justice That Is Civilized, Maurice Rosenberg

Michigan Law Review

In a democracy, process is king to a very large extent, and this is especially so in the judicial branch. Even though substantive laws command attention, procedural rules ensure respect. Why is this true? One powerful reason is that when people end up in court, their case typically is not a matter of right against wrong, but of right against right. Decent process makes the painful task of deciding which party will prevail bearable and helps make the decision itself acceptable.

To put my position plainly, I believe that the road to court-made justice is paved with good procedures. Later …

Political Crimes Defined, Theodore Schroeder

Michigan Law Review

Continental Europe is in the midst of revolutions. The immediate antecedents are such as to suggest the probable accompaniment of more widespread and perhaps even more intense passions of various sort, than have ever before been brought into being with a revolution. This in turn suggests the likelihood that there will follow more political plots and counter-revolutions than is usual in such cases. From such causes it is highly probable that the juridical meaning of the statutory words "an offense of a political character" will be a matter of frequent controversy, as successive crops of exiles claim the right of …

Theory Of Popular Sovereignty, Harold J. Laski

Michigan Law Review

Alexis de Tocqueville has wisely insisted upon the natural tendency of men to confound institutions that are necessary with institutions to which they have grown accustomed.' It is a truth more general in its application than he perhaps imagined. Certainly the student of political and legal ideas will in each age be compelled to examine theories which are called essential even when their original substance has, under pressure of new circumstance, passed into some allotropic form. Anyone, for instance, who analyses the modern theory of consideration will be convinced that, while judges do homage to an ancient content, they do …

The Guarantee Of Order And Republican Government In The States, Thomas M. Cooley

Articles

A short time ago, the whole country was plunged into a condition of anxiety and excitement by the conflicting claims to the executive authority in one of the States, and by the preparations made, and measures set on foot, to support them.