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Michigan Law Review

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Full-Text Articles in State and Local Government Law

Scrutinizing The Second Amendment, Adam Winkler Feb 2007

Scrutinizing The Second Amendment, Adam Winkler

Michigan Law Review

One overlooked issue in the voluminous literature on the Second Amendment is what standard of review should apply to gun control if the Amendment is read to protect an individual right to bear arms. This lack of attention may be due to the assumption that strict scrutiny would necessarily apply because the right would be "fundamental" or because the right is located in the Bill of Rights. In this Article, Professor Winkler challenges that assumption and considers the arguments for a contrary conclusion: that the Second Amendment's individual right to bear arms is appropriately governed by a deferential, reasonableness review …

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Twins Or Triplets?: Protecting The Eleventh Amendment Through A Three-Prong Arm-Of-The-State Test, Héctor G. Bladuell Feb 2007

Twins Or Triplets?: Protecting The Eleventh Amendment Through A Three-Prong Arm-Of-The-State Test, Héctor G. Bladuell

Michigan Law Review

In 1999, the Supreme Court held that the common law principle that the sovereign cannot be sued in its own courts without its consent was embedded in the Constitution's structure when it was ratified. The Court, however, has not always adhered to this view. In 1793, when a citizen of South Carolina sued the State of Georgia to enforce a debt arising from the sale of Revolutionary War supplies, the Court ordered the State to fulfill its obligation even though the State had not consented to the suit. Alarmed by the sudden opening of their treasuries to federal courts over …

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Voter Identification, Spencer Overton Feb 2007

Voter Identification, Spencer Overton

Michigan Law Review

In the wake of closely contested elections, calls for laws that require voters to present photo identification as a condition to cast a ballot have become pervasive. Advocates tend to rely on two rhetorical devices: (1) anecdotes about a couple of elections tainted by voter fraud; and (2) "common sense" arguments that voters should produce photo identification because identification is required to board airplanes, buy alcohol, and engage in other activities. This Article explains the analytical shortcomings of anecdote, analogy, and intuition, and applies a cost-benefit approach generally overlooked in election law scholarship. Rather than rushing to impose a photo-identification …

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Party On: The Right To Voluntary Blanket Primaries, Margaret P. Aisenbrey Dec 2006

Party On: The Right To Voluntary Blanket Primaries, Margaret P. Aisenbrey

Michigan Law Review

Political parties have unique associational rights. In party primaries, party members associate to further their common political beliefs, and more importantly, to nominate candidates. These candidate are the "standard bearer[s]" for the political party-the people who "best represent[ ] the party's ideologies and preferences." The primary represents a "crucial juncture at which the appeal to common principles may be translated into concerted action, and hence to political power in the community." Because the primary is such a critical moment for the political party, the party's asso-ciational rights are most important at this time.

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Free Will To Will? A Case For The Recognition Of Intestacy Rights For Survivors To A Same-Sex Marriage Or Civil Union?, Christine A. Hammerle Jun 2006

Free Will To Will? A Case For The Recognition Of Intestacy Rights For Survivors To A Same-Sex Marriage Or Civil Union?, Christine A. Hammerle

Michigan Law Review

This Note argues that courts should recognize intestacy rights for same sex couples that were validly married or civilly united in a state other than the one in which one of the partners died. Courts may validly recognize the marriage for intestacy purposes, even while refusing to recognize the marriage as against public policy. Part I details the recent provision of benefits in various states to same-sex couples. Part II argues that same-sex couples cannot necessarily rely on wills to effectuate their intent to leave their property to their spouses. Part III argues that when states refuse to recognize the …

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The Political Market For Criminal Justice, Rachel E. Barkow Jun 2006

The Political Market For Criminal Justice, Rachel E. Barkow

Michigan Law Review

In 2004, the number of individuals incarcerated in the United States exceeded the two million mark. The current incarceration rate in the United States is 726 per 100,000 residents, the highest incarceration rate in the Western world and a dramatic increase from just three decades ago. Not only are more people serving time, but sentences have markedly lengthened. What should we make of these trends? The answer has been easy for most legal scholars: to them, the incarceration rate in the United States is too high, and reforms are necessary to lower sentences. But many political leaders and voters reach …

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Crime, Criminals, And Competitive Crime Control, Wayne A. Logan Jun 2006

Crime, Criminals, And Competitive Crime Control, Wayne A. Logan

Michigan Law Review

Given the negative consequences of crime, it should come as no surprise that states will endeavor to make their dominions less hospitable to potential criminal actors. This predisposition, when played out on a national stage, would appear ripe for a dynamic in which states will seek to "out-tough" one another, leading to a spiral of detrimental competitiveness. Doran Teichman, in an article recently appearing in these pages, advances just such a view. Teichman posits that the decentralized structure of America's federalist system provides states with "an incentive to increasingly harshen" their crime control efforts, with the net result being excessive …

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Decentralizing Crime Control: The Political Economy Perspective, Doron Teichman Jun 2006

Decentralizing Crime Control: The Political Economy Perspective, Doron Teichman

Michigan Law Review

In an article recently published on the pages of this Law Review, The Market for Criminal Justice: Federalism, Crime Control, and Jurisdictional Competition ("The Market"), I put forward a theory of crime control in a decentralized government. Specifically, I made three distinct claims. First, criminal justice policies affect the geographic decision of criminals as to where to commit their crimes. Other things being equal, criminal activity will tend to shift to areas in which the expected sanction is lower. Second, local jurisdictions attempting to lower their crime rates will react to policies adopted by neighboring jurisdictions and try …

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Megasubsidiaries And Asset Sales Under Section 271: Which Shareholders Must Approve Subsidiary Asset Sales, Yaman Shukairy Jun 2006

Megasubsidiaries And Asset Sales Under Section 271: Which Shareholders Must Approve Subsidiary Asset Sales, Yaman Shukairy

Michigan Law Review

Corporate law statutes determine the nature of the relationship between shareholders, the principal owners of the corporation, and the board of directors, those w ho run and operate the corporation. Under the Delaware General Corporation Law ("DGCL"), many of the powers are delegated to the board of directors. More specifically, under section 141, "the business and affairs of every corporation . . . [are] managed by or under the direction of a board of directors . . . ." The Delaware courts have interpreted this provision by deferring to decisions by directors and their designated management under the business judgment …

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Daedalean Tinkering, Sean J. Griffith Jan 2006

Daedalean Tinkering, Sean J. Griffith

Michigan Law Review

Part I of this Review describes Skeel's account of corporate scandal, focusing on the central theme of excessive risk-taking. Part II examines Skeel's most original policy proposal-the creation of an investor insurance scheme to protect against excessive risk. Although the proposal takes up only a few pages of the book, it targets the books' core concern-the risk of corporate fraud. In evaluating the proposed investor insurance regime, this Review raises a set of objections based on cost and administrability and argues that an insurance regime would be duplicative of existing mechanisms that effectively spread the risk of financial fraud. Part …

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Deterrence Versus Brutalization: Capital Punishment's Differing Impacts Among States, Joanna M. Shepherd Nov 2005

Deterrence Versus Brutalization: Capital Punishment's Differing Impacts Among States, Joanna M. Shepherd

Michigan Law Review

Policymakers' false beliefs about capital punishment's universal deterrent effect may have caused many people to die needlessly. If deterrence is capital punishment's purpose then, in the majority of states where executions do not deter crime, executions kill convicts uselessly. Moreover, in the many states where the brutalization effect outweighs the deterrent effect, executions not only kill convicts needlessly but also induce the additional murders of many innocent people. After Part II discusses capital punishment's recent history in the United States, Part III reviews the conflict in recent studies on capital punishment and deterrence. Part IV explores differences in states' applications …

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The Market For Criminal Justice: Federalism, Crime Control, And Jurisdictional Competition, Doron Teichman Jun 2005

The Market For Criminal Justice: Federalism, Crime Control, And Jurisdictional Competition, Doron Teichman

Michigan Law Review

Part I introduces the concepts of jurisdictional competition and crime displacement and argues that, as a positive matter, a decentralized criminal justice system may create a competitive process among the different units composing it, in which each such unit attempts to divert crime to neighboring communities. Part II then turns to evaluate the normative aspects of jurisdictional competition in the area of criminal justice. In this context I will show that competition can have both advantages and disadvantages. On one hand, the forces of competition might drive jurisdictions to fight crime efficiently, since any jurisdiction that functions inefficiently will suffer …

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Subdivisions, Standing And The Supremacy Clause: Can A Political Subdivision Sue Its Parent State Under Federal Law, Brian P. Keenan Jun 2005

Subdivisions, Standing And The Supremacy Clause: Can A Political Subdivision Sue Its Parent State Under Federal Law, Brian P. Keenan

Michigan Law Review

This Note argues that political subdivisions should be able to seek protection from their parent states under the Supremacy Clause when alleging a conflict between state law and any federal law, be it the Constitution, treaty, or a federal statute. Part I argues that the precedential cases like Hunter and Trenton were limited to the constitutional provisions in question and therefore did not bar all suits under the Supremacy Clause. Part II shows that the issue is one of constitutional protection of political subdivisions, rather than Article III standing, which had a completely different meaning when Hunter and Trenton were …

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The Electrical Deregulation Fiasco: Looking To Regulatory Federalism To Promote A Balance Between Markets And The Provision Of Public Goods, Jim Rossi Jan 2002

The Electrical Deregulation Fiasco: Looking To Regulatory Federalism To Promote A Balance Between Markets And The Provision Of Public Goods, Jim Rossi

Michigan Law Review

Over the last thirty years, regulators have deregulated just about every regulated industry. In no industry has deregulation raised as much fear and concern as in electric power markets. Even before the Enron debacle, a crisis that is more about the failures of corporate than regulatory law, it was clear that something had gone seriously wrong in the turn towards deregulation of electric power. Recent events in California are illustrative. In early 2000, consumers in California, the first state to deregulate retail power markets on a mass scale, saw repeated months of power interruptions. Many utility customers experienced a risk …

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How To Apply The Religious Freedom Restoration Act To Federal Law Without Violating The Constitution, Gregory P. Magarian Aug 2001

How To Apply The Religious Freedom Restoration Act To Federal Law Without Violating The Constitution, Gregory P. Magarian

Michigan Law Review

Learned commentators have called the Religious Freedom Restoration Act of 1993 ("RFRA" or "the Act") "perhaps the most unconstitutional statute in the history of the nation" and "the most egregious violation of the separation of powers doctrine in American constitutional history." In the 1997 case of City of Boerne v. Flores, the Supreme Court struck down the Act in its applications to state and local governments, declaring that "RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance." The Act's applications to federal law, however, survived Boerne, which means that plaintiffs with religious freedom claims against …

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Understanding Sprawl: Lessons From Architecture For Legal Scholars, Mark S. Davies May 2001

Understanding Sprawl: Lessons From Architecture For Legal Scholars, Mark S. Davies

Michigan Law Review

What is suburban "sprawl"? Why is it undesirable? Why do many Americans nevertheless choose to live in sprawl? Do local zoning laws contribute to sprawl? Can democratic institutions discourage it? Legal scholars are beginning to study these urgent and complex questions. This Essay reviews Suburban Nation: The Rise of Sprawl and the Decline of the American Dream, by Andres Duany, Elizabeth Plater-Zyberk, and Jeff Speck, leading architects of the influential New Urbanism or traditional town planning movement. This review makes five points about the legal study of sprawl. First, Suburban Nation provides a definition of "sprawl" that the law can …

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Terry Firma: Background Democracy And Constitutional Foundations, Frank I. Michelman Jan 2001

Terry Firma: Background Democracy And Constitutional Foundations, Frank I. Michelman

Michigan Law Review

Ages ago, I had the excellent luck to fall into a collaboration with Terrance Sandalow to produce a casebook now long forgotten. There could have been no more bracing or beneficial learning experience for a fledgling legal scholar (meaning me). What brought us together indeed was luck from my standpoint, but it was enterprise, too - the brokerage of an alert West Publishing Company editor picking up on a casual remark of mine as he made one of his regular sweeps through Harvard Law School. A novice law professor, I mentioned to him how much I admired a new essay …

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The Racial Origins Of Modern Criminal Procedure, Michael J. Klarman Oct 2000

The Racial Origins Of Modern Criminal Procedure, Michael J. Klarman

Michigan Law Review

The constitutional law of state criminal procedure was born between the First and Second World Wars. Prior to 1920, the Supreme Court had upset the results of the state criminal justice system in just a handful of cases, all involving race discrimination in jury selection. By 1940, however, the Court had interpreted the Due Process Clause of the Fourteenth Amendment to invalidate state criminal convictions in a wide variety of settings: mob-dominated trials, violation of the right to counsel, coerced confessions, financially-biased judges, and knowingly perjured testimony by prosecution witnesses. In addition, the Court had broadened its earlier decisions forbidding …

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Building Community In The Twenty-First Century: A Post-Integrationist Vision For The American Metropolis, Sheryll D. Cashin Jan 2000

Building Community In The Twenty-First Century: A Post-Integrationist Vision For The American Metropolis, Sheryll D. Cashin

Michigan Law Review

[T]he problem of the Twentieth Century is the problem of the color-line. When W.E.B. DuBois wrote this prophetic statement at the dawn of the twentieth century, the American metropolis did not yet exist. Perhaps DuBois could not have predicted the sprawled, socioeconomically fragmented landscape that is so familiar to the majority of Americans who now live and work in metropolitan regions. But his prediction of a "color line" that would sear our consciousness and present the chief social struggle for the new century proved all too correct. As we contemplate the twenty-first century, Gerald Frug's book, City Making, makes clear …

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Citizen Suits Under The Resource Conservation And Recovery Act: Plotting Abstention On A Map Of Federalism, Charlotte Gibson Oct 1999

Citizen Suits Under The Resource Conservation And Recovery Act: Plotting Abstention On A Map Of Federalism, Charlotte Gibson

Michigan Law Review

In the shadow of the Supreme Court's constitutional federalism doctrines, lower federal courts have developed doctrines of common law federalism through vehicles such as abstention. In the environmental law arena, courts have employed a number of abstention theories to dismiss citizen suits brought under federal statutes. The appearance of primary jurisdiction and Burford abstention in citizen suits brought under the Resource Conservation and Recovery Act ("RCRA") exemplifies this trend. In rejecting RCRA suits, some courts have relied on primary jurisdiction, a doctrine conceived as a mechanism to allocate responsibility for limited fact-finding between courts and agencies, to dismiss RCRA citizen …

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The Qualities Of Completeness: More? Or Less?, Mark R. Killenbeck May 1999

The Qualities Of Completeness: More? Or Less?, Mark R. Killenbeck

Michigan Law Review

On January 14, 1983, Chief Judge W. Brevard Hand announced what he knew would be widely regarded as a rather startling proposition. Believing that "[t]he first amendment in large part was a guarantee to the states which insured that the states would be able to continue whatever church-state relationship existed in 1791," Judge Hand held that the people of Alabama were perfectly free to "establish[] a religion," in this instance by allowing public school teachers to begin the school day with prayer. The ruling reversed an earlier decision in the same case, which characterized the statutory provision at issue as …

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Dissecting The State: The Use Of Federal Law To Free State And Local Officials From State Legislatures' Control, Roderick M. Hills Jr. Mar 1999

Dissecting The State: The Use Of Federal Law To Free State And Local Officials From State Legislatures' Control, Roderick M. Hills Jr.

Michigan Law Review

In discussions about American federalism, it is common to speak of a "state government" as if it were a black box, an individual speaking with a single voice. State governments are, of course, no such thing. Rather, a "state" actually incorporates a bundle of different subdivisions, branches, and agencies controlled by politicians who often compete with each other for electoral success and governmental power. In particular, these institutions compete with each other for the power to control federal funds and implement federal programs. This article explores one aspect of this intrastate competition - the extent to which federal law can …

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The Myth Of Choice Of Law: Rethinking Conflicts, Kermit Roosevelt Iii Jan 1999

The Myth Of Choice Of Law: Rethinking Conflicts, Kermit Roosevelt Iii

Michigan Law Review

Choice of law is a mess. That much has become a truism. It is a "dismal swamp," a morass of confusion, a body of doctrine "killed by a realism intended to save it," and now "universally said to be a disaster." One way to demonstrate its tribulations would be to look at the academic dissensus and the hopelessly underdeterminative Restatement (Second) of Conflict of Laws. Another would be to examine the Supreme Court's abdication of the task of articulating constitutional constraints on state choice-of-law rules. This article will do both. At the outset, though, I want to suggest that one …

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Law's Territory (A History Of Jurisdiction), Richard T. Ford Jan 1999

Law's Territory (A History Of Jurisdiction), Richard T. Ford

Michigan Law Review

Pop quiz: New York City. The United Kingdom. The East Bay Area Municipal Utilities District. Kwazulu, South Africa. The Cathedral of Notre Dame. The State of California. Vatican City. Switzerland. The American Embassy in the U.S.S.R. What do the foregoing items have in common? Answer: they are, or were, all territorial jurisdictions. A thesis of this Article is that territorial jurisdictions - the rigidly mapped territories within which formally defined legal powers are exercised by formally organized governmental institutions - are relatively new and intuitively surprising technological developments. New, because until the development of modern cartography, legal authority generally followed …

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Direct Democracy In America, Sherman J. Clark Jan 1999

Direct Democracy In America, Sherman J. Clark

Michigan Law Review

The phrase "laboratories of democracy," as applied to the states, seems most often to mean something more like "democratic laboratories" - democratic testing grounds for various approaches to social problems. What sort of welfare reform will be most effective? Let Wisconsin try out Plan A, while Michigan experiments with Plan B. What combination of tort liability rules will achieve desired levels of compensation and deterrence? Let the states experiment with strict liability, comparative negligence, or various nofault schemes. It is also true, however, that the states are literally laboratories of democracy - arenas in which democratic institutions are themselves experimented …

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Ultra Vires Takings, Matthew D. Zinn Oct 1998

Ultra Vires Takings, Matthew D. Zinn

Michigan Law Review

When does legislative or administrative regulatory action "go[] too far" and effectively amount to an .appropriation of private property for which the Fifth Amendment requires just compensation? This question has turned out to be one of the thorniest in American constitutional law. The Supreme Court has identified several circumstances in which one can expect to find a regulatory taking, but its numerous pronouncements on the subject give no clear rule to distinguish compensable takings from noncompensable interference with property rights. Notwithstanding its volume, the commentary on the Takings Clause by and large addresses only proper governmental action that rises to …

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Police And Thieves, Rosanna Cavallaro May 1998

Police And Thieves, Rosanna Cavallaro

Michigan Law Review

What is it about New York City that has, in the last few years, spawned a series of books attacking the criminal justice system and describing a community in which victims' needs are compelling while the rights of the accused are an impediment to justice? Why does this apocalyptic vision of the system persist, despite statistics demonstrating the sharpest decline in the city's and the nation's crime rates in decades? What explains the acute detachment from the accused that is at the core of this series of books? In Virtual Justice: The Flawed Prosecution of Crime in America, Richard Uviller …

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Lawyers, Judges, And The Public Interest, John M. Payne May 1998

Lawyers, Judges, And The Public Interest, John M. Payne

Michigan Law Review

Chares Haar, the Louis D. Brandeis Professor of Law Emeritus at the Harvard Law School and a certified elder statesman of the housing and land-use community, was one of those scholar-politicians of the 1960s who spun out innovative theories in law reviews and then moved into government to see them applied. His generation inspired mine to pursue law as a means to serve the public interest. But the days of the Kennedy brothers' Camelot are long past. Today, big government and "big courts" alike are seen as parts of the problem. In the more austere political climate of the 1990s, …

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The Political Economy Of Cooperative Federalism: Why State Autonomy Makes Sense And "Dual Sovereignty" Doesn't, Roderick M. Hills Jr. Feb 1998

The Political Economy Of Cooperative Federalism: Why State Autonomy Makes Sense And "Dual Sovereignty" Doesn't, Roderick M. Hills Jr.

Michigan Law Review

It is commonplace to observe that "dual federalism" is dead, replaced by something variously called "cooperative federalism," "intergovernmental relations," or "marble-cake federalism." According to this conventional wisdom, state and local officials do not enforce merely their own laws in their distinct policymaking sphere. Rather, as analyzed in a voluminous literature, state and local governments also cooperate with the federal government in many policymaking areas, ranging from unemployment insurance to historic preservation. These nonfederal governments help implement federal policy in a variety of ways: by submitting implementation plans to federal agencies, by promulgating regulations, and by bringing administrative actions to enforce …

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Determining Ripeness Of Substantive Due Process Claims Brought By Landowners Against Local Governments, David S. Mendel Nov 1996

Determining Ripeness Of Substantive Due Process Claims Brought By Landowners Against Local Governments, David S. Mendel

Michigan Law Review

Landowners who sustain economic harm from arbitrary and capricious applications of land use regulations may sue the local government entities responsible for applying those regulations under 42 U.S.C. § 1983, alleging that the local government entities deprived them of substantive due process in violation of the Fourteenth Amendment. A landowner who brings this claim - an "as-applied arbitrary and capricious substantive due process" claim - may in appropriate cases seek declaratory and injunctive relief, damages, and attorney's fees. Despite controversy among courts and commentators over both the definition of property interests protected by the Due Process Clause and the standard …

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