Category: Volume 60 No. 1

Many factors—especially recent decisions rendered by the Supreme Court and the U.S. Court of Appeals for the D.C. Circuit—have catalyzed the evolution of the judiciary’s role in environmental administrative law. In the arena of statutory interpretation, this evolution has originated in large part from the landmark Supreme Court decision Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. Through Chevron, the Supreme Court changed the landscape of judicial review in administrative law by creating a two-part test for determining when deference to agency statutory interpretation is appropriate. In many ways, the doctrine “vastly expanded the scope of agency lawmaking and interpretive power,” tending to diminish and complicate the role of the judicial system in administrative law. However, the evolution of the doctrine’s application has also enabled courts, when they are so inclined, to take on more authority than has traditionally been appropriate in this area. This doctrinal shift has yielded largely inconsistent results in Chevron’s application, leaving room for courts to mold the doctrine and its ensuing results to meet whatever ends they seek. Read More …

“Save Veronica” has become a common phrase in the American South over the past year. It appears on the signs of local businesses, is stamped on light purple bracelets, and is the rallying cry for fundraisers, candlelight vigils, and cupcake sales on holidays. It is the topic of many newspaper articles and television news broadcasts and was recently featured on an episode of the television show “Dr. Phil.” But who is Veronica and what exactly does she need saving from? Read More …

By touting increased job opportunities and lower prices, Wal-Mart expanded quickly throughout Mexico in the 2000s and built stores in highly populated neighborhoods where others were prohibited to build. In particular, in 2004 Wal-Mart built a store on alfalfa fields near Teotihuacan’s famous ancient pyramids, notwithstanding a 2003 zoning map which expressly banned commercial development of this field to protect the nation’s cultural landmarks. Recent reports have surfaced that Wal-Mart paid $52,000 to government officials to alter this zoning map—a drop in the ocean in light of further reports of similar acts by nineteen other Mexican Wal-Mart stores, culminating in $24 million in suspicious payments. Read More …

How is it that churches can freely and openly terminate a minister in complete disregard of all existing and established employment law? The ministerial exception is a highly controversial doctrine. It bars, at the very least, employment lawsuits between ministerial employees and their religious institutions based on the First Amendment’s Establishment and Free Exercise Clauses. While every federal circuit has adopted some form of the exception, the Supreme Court stood firm in not addressing the doctrine until its decision in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission. Historically, each circuit applied the exception differently, some applying it broadly, while others very narrowly. Read More …

It’s a well-known scenario; parents send their children off to school believing they will be protected and cared for until they are once again safely returned to the confines of their homes, never imagining that the very educators trusted to care for these children might be the ones causing them harm. While teacher abuse of the students entrusted to their care has always been considered an anomaly, recently this proposition has come into question. A barrage of cases has come to light showing this type of abuse to be a frequent and devastating occurrence. For most students, there exists an ingrained remedial safety net that prevents a singular such occurrence from becoming a recurring cycle. The student’s ability to communicate his or her experience with a family member or school official allows for the abuse to be discovered and proper action to be taken. Yet it has become apparent that a particular class of individuals, special needs children, are more susceptible to this abuse, but face communication barriers making them unable to report it. Special needs children, particularly those who are nonverbal or have been diagnosed with autism, are less able to prevent this type of abuse and unable to bring it to light once it occurs. Read More …

Normally under copyright law, if a good has been manufactured in the United States and there is an original domestic sale, a subsequent purchaser can do what they will with the good because the copyright holder’s right to further distribute it is exhausted. However, if the good is foreign-made and sold in the United States without the domestic copyright holder’s permission, the seller could be liable for infringement. Read More …

The theme of the Wayne Law Review’s 2013 symposium was constitutional change—change, in particular, in Michigan, whose constitution this year celebrates its golden anniversary, and to state constitutionalism more generally. Fifty years is a milestone, to be sure, but there are other state constitutions that have endured in something resembling their original form for many more years. The people of New Hampshire, for example, ratified a constitution in 1784 that in its structure and much of its detail has remained unchanged to this day. In this essay, I would like to explore some of the facets of state constitutions that may make them more or less likely to endure—why is it that New Hampshire’s constitution has lasted essentially unchanged for more than two centuries, while the people of Michigan saw fit to replace their constitution (for the fourth time) fifty years ago? Read More …

The semi-centennial of the Michigan Constitution offers an opportunity to take stock of various features of post-Baker v. Carr state constitution-making, especially the continued reliance on policy provisions, which were often retained in state constitutions revised during this era and in many other cases added via the amendment process, even in the face of a near-universal scholarly consensus disfavoring the practice. My concern in this article is determining how to assess this divergence between mid-twentieth-century scholarly standards and the practice of state constitution-making over the last half-century. One might well view practitioners’ departure from these scholarly standards as a source of concern and recommend that practice be brought into alignment with these standards. Such is the position taken by some analysts. Alternatively, and this is the position I defend in this Article, one might view practitioners’ continued adoption of policy provisions as necessary and appropriate means of responding to recurring deficiencies in the operation of representative institutions, whether by removing matters from legislative purview in cases where legislators are at significant risk of acting irresponsibly, or securing passage of measures that command broad public support but are blocked in legislatures or by state courts, or safeguarding enduring commitments against short-sighted or passionate majorities. Mid-twentieth-century scholars were relatively unconcerned by these deficiencies in the operation of representative institutions and, at any rate, were confident that they could be addressed by means other than constitutional provisions. However, participants in state constitutional amendment and revision over the last half century, much like practitioners in prior eras and in keeping with the views of some scholars in prior years, have concluded that constitutional provisions are a necessary and proper means of addressing deficiencies in the political process and thereby securing more effective governance. Read More …

The fiftieth anniversary of the Michigan Constitution gives us an occasion to celebrate. Known as a managerial constitution because of its emphasis on executive power and administrative centralization, the Michigan Constitution has proven to be durable in significant ways. Yet every anniversary also marks a time to reflect, providing an occasion to look back at past accomplishments and defeats, and to look forward to future challenges. In that spirit, this essay reflects upon a provision of the Michigan Constitution that may seem quite distant from managerialism and gubernatorial power. Specifically, I look at Article VI, Section 5, which provides that the state’s supreme court shall create rules of practice and procedure for the courts of the state. Like many structural features of a state constitution, Section 5 has no analogue in the federal Constitution; to the contrary, the power of Congress over federal rules of procedure is well accepted. In Michigan, by contrast, the state constitution assigns procedural rulemaking to the court system—a conferral of authority that long preceded the 1963 Constitution and has served as a model to other states. Read More …

Conventional legal scholarship presents a new theory by testing its application against a variety of cases. In this essay, I reverse the process, considering a single recent case to identify the various theories of state constitutionalism it invokes. This exploration, reminiscent of the musical-composition concept of “études” or the visual-arts idea of “studies,” develops understanding by turning and turning the case until all of its major facets are exposed. The case I have selected, from Michigan, raises issues typical of all of the ten modern constitutions under study in this symposium. By adopting this method, I hope to demonstrate how even seemingly esoteric or abstract theories of state constitutionalism are playing out across some of the most important controversies of our day. Read More …