Frank I. Michelman

Robert Walmsley University Professor, Emeritus

Langdell Library 334

617-495-4628

Assistant: Isaac Moore / 617-496-1760

Biography

Frank I. Michelman is Robert Walmsley University Professor, Harvard University, where he has taught since 1963. He is the author of Brennan and Democracy (1999), and has published widely in the fields of constitutional law and theory, comparative constitutionalism, South African constitutionalism, property law and theory, local government law, and general legal theory. Professor Michelman is a fellow of the American Academy of Arts and Sciences and a past President (1994-95) of the American Society for Political and Legal Philosophy. He has served on the Committee of Directors for the annual Prague Conference on Philosophy and the Social Sciences, the Board of Directors of the United States Association of Constitutional Law, and the National Advisory Board of the American Constitution Society. In 2005, Professor Michelman was awarded the American Philosophical Society’s Phillips Prize in Jurisprudence and, in 2004, the Brigham-Kanner Property Rights Prize.

In January, 1995, and again in January 1996, Professor Michelman served as a co-organizer and co-leader of Judges’ Conferences sponsored by the Centre on Applied Legal Studies of the University of the Witwatersrand, devoted to matters of constitutional law in South Africa. In December, 2011, Professor Michelman delivered the keynote address for a multi-day Conference on “The 20th Anniversary of Israel’s Human Rights Revolution,” at a session held at the Knesset, Jerusalem.

Areas of Interest

Frank I. Michelman, Political-Liberal Legitimacy and the Question of Judicial Restraint (Jan. 1, 2019).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Politics & Political Theory
,
Judges & Jurisprudence
,
Courts
,
Supreme Court of the United States
Type: Other
Abstract
The term "judicial restraint," applied to courts engaged in judicial constitutional review, can refer ambiguously to any one or more of three possible postures of such courts, which we here will distinguish as "quiescent," "tolerant" and "weak-form." A quiescent court deploys its powers sparingly, strictly limiting the agenda of social disputes on which it will pronounce in the constitution's name. A tolerant court confirms as valid laws whose constitutional compatibility it finds to be reasonably sustainable, even though it independently would conclude to the contrary. A weak-form court acts on the understanding that its pronouncements on matters constitutional will be duly open to considered rejection by other political agencies. Theory commonly tends to treat the question of judicial restraint as turning on a bedrock political value of democracy. We may also, however, understand debates over judicial restraint in the light of a different bedrock value, that of political legitimacy. Where democracy is the focal concern, debaters may tend toward conflating into one measure the three dimensions of judicial restraint. A focus on legitimacy rather tends toward a dis-bundling of the three dimensions, thus complicating the choices while also clarifying the stakes. The political philosophy of John Rawls helps us to see how and why this occurs.
Frank I. Michelman, ‘Constitution (Written or Unwritten)’: Legitimacy and Legality in the Thought of John Rawls, 31 Ratio Juris 379 (2018).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Article
Abstract
In what he called "the liberal principle of legitimacy," John Rawls proposed that coercive exercises of political power can be justified to free and equal dissenters when "in accordance with a constitution (written or unwritten) the essentials of which all citizens, as reasonable and rational, can endorse . . . ." Does "unwritten constitution" there refer to empirical regularities of political practice (as opposed to normative rules and standards)? To norms that subsist only as custom but not as law? To norms that subsist as common law but not as code law? Which interpretation is best?
Frank I. Michelman, Human Rights and Constitutional Rights: A Proceduralizing Function for Substantive Constitutional Law?, in Human Rights, Democracy, and Legitimacy in a World of Disorder 73 (Silja Voeneky & Gerald L. Neuman eds., 2018).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Fourteenth Amendment
,
Law & Political Theory
,
Legal Theory & Philosophy
,
Human Rights Law
Type: Book
Frank I. Michelman, Israel’s “Constitutional Revolution”: A Thought from Political Liberalism, 19 Theoretical Inquiries L. 745 (2018).
Categories:
Disciplinary Perspectives & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Law & Political Theory
,
Foreign Law
Type: Article
Abstract
In his book The Purse and the Sword: The Trials of Israel’s Legal Revolution, Daniel Friedmann brings under critical inspection what he names as a legal revolution in Israel. Friedmann gives us, under that name, an account of a shift of certain major and sensitive state powers from elected leaders and legislators to politically insulated officials and judges. The Supreme Court’s construction of two Basic Law enactments of the twelfth Knesset into a justiciable, substantive “formal constitution” for Israel figures in Friedmann’s book as one component of the revolution, along with other judicial developments, including purposive interpretation of constitutional and other laws, an intensified form of common-law review of administrative actions for unreasonableness, and expansionary revisions to standing and justiciability. In all these developments, Aharon Barak took a leading part as judge and as scholar. I here consider to what extent these developments may be understood as responsive to promptings from a “political-liberal” conception of a justificational burden and need for substantive constitutional law. I reflect here on the possible pull of this conception in a political-cultural setting of a persisting widespread attachment to an idea of Israel as a member of the family of liberal constitutional states, and hence on Barak’s understanding of the role and responsibility of the Supreme Court. I speculate briefly about how far that pull may extend also to Professor Friedmann in his role of critic of the judicial handiwork of Barak and the Court on which he served.
Frank I. Michelman, Michael Klarman’s Framers' Coup (and the News from Antifidelity), 33 Const. Comment.109 (2018)(reviewing Michael J. Klarman, The Framers' Coup: The Making of the United States Constitution (2016)).
Categories:
Constitutional Law
Sub-Categories:
Constitutional History
Type: Article
Frank I. Michelman, At the Liberal Edge in Prague, 43 Phil. & Soc. Criticism 254 (2017).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Critical Legal Studies
,
Legal Theory & Philosophy
Type: Article
Frank I. Michelman, Proportionality Outside the Courts (With Special Reference to Popular and Political Constitutionalism), in Proportionality: New Frontiers, New Challenges 30 (Vicki Jackson & Mark Tushnet eds., 2017).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Constitutional History
,
Legal Theory & Philosophy
Type: Article
Abstract
As used in this paper, “proportionality” names a protocol for use in deciding questions of the constitutionality of laws. The protocol is typically understood to consist of a four- or five-step order of decisional march, of which there are multiple close-kindred versions in circulation. Debates about the virtues, vices, and variations of the protocol and its deployment routinely construct the theater of action as a court of law engaged in judicial constitutional review. Adjudicative use of the protocol is what we think of as the central case. An aim of this paper is to achieve some first steps towards figuring out what relevance, if any, the protocol of proportionality might have for “extended” cases (as we may call them) of constitutional discourses outside the courts. I try here to think about the protocol’s pertinence, if any, to political-practice idealizations in which other political actors displace independent judiciaries as sole or final arbiters of constitutional compliance.
Frank I. Michelman, A Constitutional Horizon?, 42 Phil. & Soc. Criticism 640 (2016).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Article
Abstract
In The Democratic Horizon: Hyperpluralism and the Renewal of Political Liberalism, Alessandro Ferrara seeks a philosophical breakthrough from what looks like it could be a pending dead-end for democracy. The best hope, Ferrara superbly maintains, lies through an extension or updating – a “renewal,” as he calls it – of lines of thought bequeathed to us, by John Rawls and others, under the name of political liberalism. Somewhere near the crux of Ferrara’s reflection stands a class of institutional fixtures whose name is missing from his title. I mean the class “constitution.” I use that word to name a country’s scriptural basic law, its publicly cognizable corpus of canonically worded sentences ordaining the country’s basic institutional framework. My suggestion will be that it is no less tellingly a “constitutional” than a “democratic” horizon that Ferrara’s work, in conjunction with Rawls’, shows us to be facing.
Frank I. Michelman, The Ghost of the Declaration Present: The Legal Force of the Declaration of the Declaration of Independence Regarding Acts of Congress, 89 S. Cal. L. Rev. 575 (2016).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Constitutional History
,
Legal Theory & Philosophy
Type: Article
Abstract
I distinguish three ways by which references to the Declaration of Independence might enter into American legal argument. In primary-legal mode, the Declaration ranks as supreme law beside or above the Constitution, setting mandates as the Constitution does for other purported exercises of legal authority, from Acts of Congress on down. In interpretive-contextual mode, the Declaration provides informative historical context for determinations of the meanings of the Constitution and other laws. In creedal mode, the Declaration serves as a canonical marker for axiomatic principles of good or right government. Creedal uses of the Declaration are common and benign. Interpretive-contextual uses invite debates like those attending other uses of history in legal interpretation. A supreme-law status for the Declaration finds little support in our legal history, nor is there good reason to press in that direction.
Frank I. Michelman, The Unbearable Lightness of Tea Leaves: Constitutional Political Economy in Court, 94 Tex. L. Rev. 1403 (2016).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Constitutional History
,
Legal Theory & Philosophy
,
Courts
Type: Article
Abstract
Frank Michelman offers a critical discussion of the sense—if any—in which Fishkin and Forbath’s argument is a constitutional argument. He carefully teases out some different senses in which such an argument makes claims about the Constitution in court. He asks whether Fishkin and Forbath are essentially opening the door to an unraveling of the New Deal settlement, and a return of what Holmes called “economic theory” to the work of the courts. And finally, he questions why the argument contains much talk of the Constitution, but relatively little talk of constitutional rights.
Frank I. Michelman, Good Government, Core Liberties, and Constitutional Property: An Essay for Joe Singer, 5 Brigham-Kanner Property Rights Conf. J. 27 (2016).
Categories:
Property Law
Sub-Categories:
Property Rights
,
Eminent Domain
Type: Article
Frank I. Michelman, Legitimacy, The Social Turn and Constitutional Review: What Political Liberalism Suggests, 3 Critical Q. Legis. & L. 183 (2015).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Constitutional History
,
Legal Theory & Philosophy
Type: Article
Abstract
Alongside the regulative and integrative functions we theorize for constitutions, a function of legitimation perhaps deserves a focus of its own. By legitimation, I mean the social and communicative processes by which a country’s people sustain among themselves a sense of assurance of the deservingness of its political regime of general and regular support. On the level of political philosophy, the idea of the constitution as a platform for legitimation finds expression in John Rawls’s proposal – named by him as “the liberal principle of legitimacy” – that enactments by political majorities can be justified to dissenters in any given case (regardless of which side of the case you might think true justice and policy would favor) by a showing that the winners have acted within the terms of a good-enough (in the paper’s terms, a “legitimation-worthy”) constitution. The Rawlsian proposal figures as one for what the paper calls “legitimation by constitution” or “LBC.” The paper posits, as a hypothesis, the activity of this idea in a population’s political consciousness, with a view to tracing resultant effects on constitutional-legal practice and debate. As a prime case in point, the paper points to an apparent correlation, within the world of broadly-speaking liberal constitutional thought, of a recent spread of receptivity to the idea of “weak-form” judicial constitutional review with a spread, within that same world, of conviction that a legitimation-worthy constitution would have to include guarantees respecting the so-called socioeconomic rights of citizens vis-a-vis their states. The paper suggest that LBC (the idea) provides a hinge between these two developments.
Frank I. Michelman, The Priority of Liberty: Rawls and "Tiers of Scrutiny", in Rawls's Political Liberalism 175 (Thom Brooks & Martha C. Nussbaum eds., Colum. Univ. Press 2015).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Book
Abstract
In the United States, exceptionally, an established judicial protocol for constitutional clearance of legislative incursions on freedom of action sets up a two-track scheme, prescribing a searching form of review for a subset of such incursions and a markedly more cursory review for the rest. The model further sets up a general standard of 'fundamentality' by which to sort such incursions into the two classes – as opposed, say, to a name-by-name specification of protected liberties drawn directly from the text of the bill of rights. Political Liberalism, I argue, should be at home with both these features of the U.S. jurisprudence. The role assigned by that jurisprudence to fifth and fourteenth amendment 'liberty' is matched by the role assigned to 'liberty of conscience' in Rawlsian political philosophy; while the second principle of justice (and not, as might appear, any Rawlsian philosophical denial of value to freedom of action 'as such') points toward a refusal of heightened-scrutiny protection for freedom of action across the board. In a Rawlsian well-ordered society, two-track scrutiny would be understandable as a device for holding the two principles of justice in equipoise.
Frank I. Michelman, Book Review, 22 Constellations 614 (2015) (reviewing Alexander Somek, The Cosmopolitan Constitution (2014)).
Categories:
Constitutional Law
Sub-Categories:
Constitutional History
Type: Article
Frank I. Michelman, RSB, the Social Contract, and a Bridge Across the Gap: Delgado Talks to Rawls, 33 Law and Ineq. 417 (2015).
Categories:
Disciplinary Perspectives & Law
,
Criminal Law & Procedure
,
Legal Profession
Sub-Categories:
Critical Legal Studies
,
Legal Theory & Philosophy
,
Biography & Tribute
Type: Article
Abstract
Symposium: Examining Critical Race Theory: Honoring Professor Richard Delgado
Frank I. Michelman, The Compelling Idea of Social & Economic Rights: Reciprocating Perturbations in Liberal and Democratic Constitutional Visions, in Social and Economic Rights in Theory and Practice: Critical Inquiries (Helena Alviar García, Karl Klare & Lucy A. Williams eds., 2015).
Categories:
Constitutional Law
,
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Poverty Law
,
Social Welfare Law
,
Law & Political Theory
,
Comparative Law
Type: Book
Frank I. Michelman, Why Not Just Say No? An Essay on the Obduracy of Constitution Fixation, 94 B.U. L. Rev. 1141 (2014).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
,
Constitutional Law
Sub-Categories:
Constitutional History
,
Legal Theory & Philosophy
,
Politics & Political Theory
Type: Article
Abstract
The article focuses on political dysfunction in the U.S. and discusses U.S. constitutional law. Topics include constitutional interpretation and construction, legitimization by constitution, and the role of the U.S. Supreme Court in constitutional application. Information is provided on counterconstitutionalism, a term used by the author to discusses the rejection of constitutional rules.
Frank I. Michelman, Antipoverty in Constitutional Law: Some Recent Developments, 67 Ark. L. Rev. 213 (2014).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
,
Discrimination & Civil Rights
Sub-Categories:
Poverty Law
,
Comparative Law
Type: Article
Charles Fried, Frances Kamm, Frank I. Michelman, John C.P. Goldberg, Laurence H. Tribe, Martha Minow & Richard H. Fallon, In Memoriam: Ronald Dworkin, 127 Harv. L. Rev. 489 (2013).
Categories:
Government & Politics
,
Legal Profession
,
Constitutional Law
Sub-Categories:
Judges & Jurisprudence
,
Legal & Political Theory
,
Biography & Tribute
Type: Article
Frank I. Michelman, Expropriation, Eviction, and the Dignity of the Common Law (Harv. Pub. L. Working Paper No. 12-37, 2012).
Categories:
International, Foreign & Comparative Law
,
Government & Politics
,
Property Law
,
Constitutional Law
Sub-Categories:
Courts
,
Judges & Jurisprudence
,
Foreign Law
,
Comparative Law
,
Property Rights
Type: Article
Abstract
This is the text of a public talk delivered on 18 July 2012 in Johannesburg, South Africa. The talk included discussions of two recent decisions from South Africa’s top courts, considered in relation to the South African legal community’s response to the Constitution’s directions for submission of South Africa’s body of pre-transition common law to judicial inspection in appropriate cases, in order to check whether common-law norms are line (and to bring them into line where they are not) with the “spirit, purport and objects” of the Constitution’s Bill of Rights. Such an on-going, case-based judicial audit of the common law under the gaze of the Bill of Rights would be one way (in cases where all the parties are private) of giving “horizontal effect” to the Bill of Rights.
Frank I. Michelman, The Property Clause Question, 19 Constellations 152 (2012).
Categories:
Property Law
,
Disciplinary Perspectives & Law
,
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Fourth Amendment
,
Fifth Amendment
,
Legal Theory & Philosophy
,
Comparative Law
,
Property Rights
Type: Article
Abstract
A “property clause” is a dedicated text in the written basic law of a constitutional-democratic state, addressing the question of the security of asset-holdings (and of their values to their owners) against impairment by action or allowance of the state. The clause provides a defensive guarantee against such impairments, in the form of a trumping right of every person to be protected – perhaps not absolutely and unconditionally, but not negligibly, either – against state-engineered losses in lawfully established asset-holdings or asset-values. How should someone writing a constitution for an expectantly “social liberal” state regime think about the question of a property clause? Without suggesting that there can be any one-size-fits-all sort of answer to the question of including such a clause or not, this paper confines itself to doubting sharply one sort of a reason our constitution-writers might consider for including one – namely, that a liberal constitutional bill of rights ought to contain clauses covering all classes of interests of persons that qualify in liberalism as basic rights and freedoms and the interest distinctively protected by a property clause does so qualify – and suggesting some pros and cons regarding a quite different sort of reason for inclusion that the writers will also undoubtedly ponder – namely, that the clause will serve to keep lawmakers and constitutional adjudicators properly attuned to a national foundational commitment to a system of political economy in which markets play a key role. This essay, prepared as an after-dinner talk for the Conference on Constitutional Revolutions and Counter-Revolutions held at the New School for Social Research, May 5-7, 2011, is a companion to my “Liberal Constitutionalism, Property Rights, and the Assault on Poverty,” Stellenbosch Law Review (2012) (forthcoming), which treats more expansively some points made summarily here. A version of this essay will appear in Constellations 12 (2012).
Frank I. Michelman, Poverty in Liberalism: A Comment on the Constitutional Essentials, 60 Drake L. Rev. 1001 (2012).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Constitutional History
,
Law & Political Theory
Type: Article
Abstract
Does a political culture’s embrace of liberal constitutionalism – or does liberal political thought more generally – come laden with a deep-seated resistance to recognition of the injustice of structural poverty within a broadly affluent society, or to getting done politically whatever is required in order to abolish that injustice? For those inclined to say so, the philosophy of John Rawls might seem to pose a testing case. In our time, Rawls’s philosophical excavations of liberalism are the ones we might well regard as the most dedicatedly antipoverty of all, and so his works would seemingly be the last place to go hunting for evidence of an ineluctable resistance in liberalism to the subjugation of poverty by political means. If we find such evidence there, where in liberalism will we not? Rawls compiles a roster of “constitutional essentials,” meaning commitments that must be observable, in practice as well as in form, in the basic laws that constitute a country’s political and legal regime, in order to render that regime legitimate in the sense it can command morally the compliance of citizen with laws and policies that issue from it, regardless of disagreements about whether those laws and policies are truly compatible with the demands of justice. Now, Rawls decidedly and deliberately excludes from the constitutional essentials a guarantee to everyone of what he calls “fair” (as distinguished from merely “formal”) equality of opportunity – even though, in Rawls’s view, a regime that fails to satisfy fair equality of opportunity may for that very reason be gravely unjust. This paper asks whether the Rawlsian exclusion of fair equality of opportunity from the constitutional essentials should be taken as a sign, even within the thought of Rawls, of the incapacity of liberal constitutionalism, with its prioritized commitment to individual rights and liberties, to grasp and respond fully to the injustice of avoidable structural poverty. The paper answers “no.” It finds that constitutionalization of fair equality of opportunity remains an open and debatable question within liberalism as conceived by Rawls, and furthermore that Rawls’s own reasons for deciding against constitutionalization contain nothing to detract from his insistence that fair equality of opportunity is a strict requirement of justice. This paper was prepared for a symposium on “Constitutionalism and the Poor,” held at Drake Law School on April 14, 2012, under the sponsorship of the Drake Constitutional Law Center.
Frank I. Michelman, Our Liberalism, 89 Tex. L. Rev. 1409 (2011) (reviewing Seth Stern & Stephen Wermiel, Justice Brennan: Liberal Champion (2010)),
Categories:
Legal Profession
,
Government & Politics
Sub-Categories:
Judges & Jurisprudence
,
Politics & Political Theory
,
Legal Scholarship
Type: Article
Frank I. Michelman, Cutting the Gordian Knot of Legitimacy Theory? An Anatomy of Frank Michelman's Presentist Critique of Constitutional Authorship (Reply to Ming-Sung Kuo), 7 Int'l. J. Const. L 715 (2009).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Constitutional History
,
Legal Theory & Philosophy
Type: Article
Abstract
If members of a populace consciously share a description of an essential, durable feature of the constitution in force in their country (say, its provision for resolving disputes concerning the constitution's meaning and application), must they also share a view of that constitution as the prior utterance of authors whose word is deemed binding? Can a constitution's liberal legitimacy be grounded in the historical facts of its authorship, as opposed to present and personal assessments of that constitution's substantive rightness? If the answers to those questions are "no" and "no," are referrals to authorship to be excluded from any place in an account of the possibility of constitutional legitimacy on liberal terms? These questions arise in the wake of Ming-Sung Kuo's contention that certain writings of Frank Michelman attempt yet fail to show how confirmations of constitutional legitimacy can be "unhinged" from referrals to constitutional authorship. All three should be answered "no."
Frank I. Michelman, Socioeconomic Rights in Constitutional Law: Explaining America Away, 6 Int'l J. Const. L. 663 (2008).
Categories:
Discrimination & Civil Rights
,
Constitutional Law
,
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Constitutional History
,
Social Welfare Law
,
Law & Political Theory
,
Government Benefits
,
Politics & Political Theory
,
Supreme Court of the United States
,
Judges & Jurisprudence
Type: Article
Abstract
The apparent absence of a commitment to socioeconomic rights in United States constitutional law gives rise to continuing debate. It is unclear that this omission has any bearing on the actual performance of American governments in the social welfare field. Might there be other reasons for treating the omission as problematic? If so, might the omission nevertheless be explained in terms consistent with the belief that some kind of socioeconomic commitment ideally does belong in the constitutional law of a country like the U.S.? After briefly reviewing the uneasy instrumental case for a constitutionalized socioeconomic commitment, this article suggests why inclusion could be demanded, nonetheless, as a matter of political-moral principle. It then canvasses possible responses to the American case. These include both a possible denial that socioeconomic guarantees are, in fact, lacking from U.S. constitutional law and a possible claim that omitting them is the correct choice for the U.S. as a matter of nonideal political morality.
Frank I. Michelman, Book Review, 38 J. Interdisc. Hist. 628 (2008) (reviewing Daniel W. Hamilton, The Limits of Sovereignty: Property Confiscation in the Union and the Confederacy during the Civil War (2007)).
Categories:
Government & Politics
,
Property Law
,
Legal Profession
Sub-Categories:
Politics & Political Theory
,
Congress & Legislation
,
Military, War, & Peace
,
Legal History
,
Property Rights
Type: Article
Frank I. Michelman, On the Uses of Interpretive 'Charity': Some Notes on Application, Avoidance, Equality and Objective Unconstitutionality from the 2007 Term of the Constitutional Court of South Africa, 1 Const. Ct. Rev. 1 (2008).
Categories:
Government & Politics
,
International, Foreign & Comparative Law
,
Constitutional Law
Sub-Categories:
Courts
,
Judges & Jurisprudence
,
Foreign Law
Type: Article
Abstract
To hear Stu Woolman tell it, disturbing lapses and weaknesses - an apparent 'lack of analytical rigour' suggesting what could be a 'penchant for outcome-based decision-making' - have been showing up recently in the work of a Constitutional Court whose prior record of performance has deservedly garnered widespread applause. Woolman cites as evidence three decisions from the Court's work in the year 2007: Barkhuizen, Masiya, and NM, and suggests that his reactions to these decisions are widely shared among South Africa's well-informed Court-followers. He makes a worthy, illuminating, formidable case, one that the Court would do well to consult and ponder.
Frank I. Michelman, Reflection, 82 Tex. L. Rev. 1737 (2004).
Categories:
Disciplinary Perspectives & Law
,
Constitutional Law
,
International, Foreign & Comparative Law
,
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Fourteenth Amendment
,
Race & Ethnicity
,
Legal Theory & Philosophy
,
Judges & Jurisprudence
,
Comparative Law
Type: Article
Abstract
Can comparative encounter with another country's constitutional-legal choices-regarding, say, the fabrics of doctrine respectively woven by the judiciaries of the two countries in their efforts to cope juridically with some class of social controversies-ever help us to see ourselves clearly? American constitutional law remains closed to the dichotomizing doctrine, despite the obvious comforts of embracing it. Maybe the path to embrace winds through a form of constitutional patriotism, both communitarian and social democratic, that does not thrive uncontested in the land of the free. What the comparative mirror reflects is the tenacious streak of self-reliant individualism in our ideological soul.
Frank I. Michelman, Justice as Fairness, Legitimacy, and the Question of Judicial Review: A Comment, 72 Fordham L. Rev. 1407 (2004).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Constitutional Law
Sub-Categories:
Legal Theory & Philosophy
,
Judges & Jurisprudence
,
Politics & Political Theory
Type: Article
Frank I. Michelman, Reasonable Umbrage: Race and Constitutional Antidiscrimination Law in the United States and South Africa, 117 Harv. L. Rev. 1378 (2004).
Categories:
International, Foreign & Comparative Law
,
Constitutional Law
,
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Fourteenth Amendment
,
Race & Ethnicity
,
Civil Rights
,
Courts
,
Judges & Jurisprudence
,
Comparative Law
Type: Article
Abstract
Racial classifying itself may become a form of maltreatment, and the dilemmatic result is that while refusing to classify by race may sometimes amount to maltreatment, proceeding to classify by race always does. This essay is a comparative study of the imprint of this fusion in the constitutional-legal dogmatics of two countries, the US and South Africa. It first lays out a certain bind for doctrinal development to which a side-constraint "take" on racial classification seems destined to lead in a country such as the US. It then describes the rise in South Africa of a constitutional-legal discourse of antidiscrimination that arguably evades the side-constraint effect and resulting strains on the law's claim to consistency, even though that discourse has not been immune from the impulse to fusion. The essay concludes with a brief reflection on the availability of the South African solution for use by American jurists.
Frank Michelman, Ida's Way: Constructing the Respect-Worthy Governmental System, 72 Fordham L. Rev. 345 (2003).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Political Theory
,
Politics & Political Theory
,
Government Accountability
Type: Article
Frank I. Michelman, Book Review, 11 Soc. & Legal Stud. 463 (2002) (reviewing Cass Sunstein, Republic.com (2001)).
Categories:
Technology & Law
,
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Social Change
,
Administrative Law & Agencies
,
Networked Society
Type: Article
Frank I. Michelman, Tushnet's Realism, Tushnet's Liberalism, 90 Geo. L.J. 199 (2001).
Categories:
Legal Profession
,
Constitutional Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
,
Law & Political Theory
,
Legal & Political Theory
,
Legal Reform
,
Legal Scholarship
,
Biography & Tribute
Type: Article
Frank I. Michelman, "Terry Firma": Background Democracy and Constitutional Foundations, 99 Mich. L. Rev. 1827 (2001).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Congress & Legislation
,
State & Local Government
,
Courts
,
Judges & Jurisprudence
,
Politics & Political Theory
Type: Article
Frank I. Michelman, Suspicion, or the New Prince, 68 U. Chi. L. Rev. 679 (2001).
Categories:
Government & Politics
Sub-Categories:
Politics & Political Theory
,
Elections & Voting
,
Supreme Court of the United States
Type: Article
Abstract
The grounds for believing that the US Supreme Court majority, in Bush v. Gore, acted out of a personal and ideological preference in awarding a victory in the 2000 presidential election to George W. Bush are examined.
Frank I. Michelman, Democracy-Based Resistance to a Constitutional Right of Social Citizenship: A Comment on Forbath, 69 Fordham L. Rev. 1893 (2001).
Categories:
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
,
Constitutional Law
,
Government & Politics
Sub-Categories:
Social Welfare Law
,
Legal Theory & Philosophy
,
Law & Political Theory
,
Government Accountability
,
Politics & Political Theory
Type: Article
Frank I. Michelman, Dilemmas of Belonging: Moral Truth, Human Rights, and Why We Might Not Want a Representative Judiciary, 47 UCLA L. Rev. 1221 (2000).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Constitutional Law
Sub-Categories:
Fourteenth Amendment
,
Legal Theory & Philosophy
,
Courts
,
Judges & Jurisprudence
,
Supreme Court of the United States
Type: Article
Abstract
Professor and author Kenneth L. Karst believes that the case for judicial review rests heavily on the courts' unique ability to advance the cause of a unified, diverse, national community. Karst believes that the US could use a more experientially and culturally diversified judiciary than it now has. It is suggested, however, that a representative judiciary may not be what is needed.
Frank Michelman, Human Rights and the Limits of Constitutional Theory, 13 Ratio Juris 63 (2000).
Categories:
Disciplinary Perspectives & Law
,
International, Foreign & Comparative Law
,
Government & Politics
,
Constitutional Law
Sub-Categories:
Legal Theory & Philosophy
,
Politics & Political Theory
,
Human Rights Law
Type: Article
Abstract
The question of what is truly just in the matter of a country's currently established human‐rights interpretations appears not to be the same as the question of what it is morally right to do by way of coercively effectuating a given set of such interpretations. There are grounds for contending that acts of support for a coercive political regime can be justified morally on the condition that the regime's prevailing human‐rights interpretations are made continuously available to effective, democratic critical re‐examination. However, it is not possible ever finally to know whether that condition is satisfied.
Frank I. Michelman, Morality, Identity and "Constitutional Patriotism", 76 Denv. U. L. Rev. 1009 (1999).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Constitutional Law
Sub-Categories:
Legal Theory & Philosophy
,
Politics & Political Theory
Type: Article
Frank I. Michelman, Reason, Passion & the Progress of Law: Remembering and Advancing the Constitutional Vision of Justice William J. Brennan: Welcome Address, 33 Harv. C.R.-C.L. L. Rev. 317 (1998).
Categories:
Legal Profession
,
Government & Politics
Sub-Categories:
Judges & Jurisprudence
,
Supreme Court of the United States
,
Biography & Tribute
Type: Article
Abstract
Address delivered March 14, 1998 at New York University School of Law.
Frank I. Michelman, Rejoinders, 86 Calif. L. Rev. 469 (1998).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Constitutional Law
Sub-Categories:
Law & Political Theory
,
Judges & Jurisprudence
Type: Presentation
Frank Michelman, In Memoriam, William J. Brennan, Jr., 111 Harv. L. Rev. 37 (1997).
Categories:
Legal Profession
,
Government & Politics
Sub-Categories:
Judges & Jurisprudence
,
Supreme Court of the United States
,
Biography & Tribute
Type: Article
Abstract
A memorial to US Supreme Court retired Justice William J. Brennan, Jr. who died on July 24, 1997 is presented by 11 commentators which include Justice Brennan's friends and associates. Comments include predictions of the transcendence of his voice informing and challenging future jurists in all areas of the law. His personal impact is noted as well. He is remembered with the genuine affection which he bestowed upon those who knew him.
Frank I. Michelman, How Can the People Ever Make the Laws? (A Critique of Deliberative Democracy), 74 Mod. Schoolman 311 (1997).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
,
Law & Political Theory
Type: Article
Frank I. Michelman, Foreword: "Racialism" and Reason, 95 Mich. L. Rev. 723 (1997).
Categories:
Discrimination & Civil Rights
,
Legal Profession
Sub-Categories:
Discrimination
,
Race & Ethnicity
,
Civil Rights
,
Legal & Political Theory
,
Legal Scholarship
Type: Article
Frank I. Michelman, Thirteen Easy Pieces, 93 Mich. L. Rev. 1297 (1995) (reviewing Sanford Levinson, Responding to Imperfection: The Theory and Practice of Constitutional Amendment (1995)).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Constitutional History
,
Legal Theory & Philosophy
,
Congress & Legislation
Type: Article
Frank I. Michelman, The Subject of Liberalism, 46 Stan. L. Rev. 1807 (1994) (reviewing John Rawls, Political Liberalism (1993))
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Political Theory
,
Legal Theory & Philosophy
Type: Article
Abstract
In "Political Liberalism," the influential moral philosopher John Rawls attempts in part to justify a particular, liberal conception of justice by arguing that it is the conception which best corresponds to the way we perceive our powers and motivations when we behave politically. In this review essay, Professor Michelman suggests that Rawls' method may offer a way out of the debates over subjectivity and value currently occupying many legal scholars. By starting from a depiction of the liberal subject as the kind of person for whom constitutional democracy is the appropriate form of social ordering, Professor Michelman observes, Rawls constructs an "internal critique" of American society which depends on the practical, cultural appeal of that view of the person, not on its ultimate truth. However, Professor Michelman concludes that whether Rawls' approach is necessarily relativist-speaking only to those who already believe in liberal constitutionalism-or instead produces universally generalizable prescriptions remains unclear.
Frank I. Michelman, Liberties, Fair Values, and Constitutional Method, 59 U. Chi. L. Rev. 91 (1992).
Categories:
Disciplinary Perspectives & Law
,
Constitutional Law
,
Property Law
Sub-Categories:
First Amendment
,
Fifth Amendment
,
Legal Theory & Philosophy
,
Property Rights
Type: Article
Frank I. Michelman, Legalism and Humankind, Soc. Phil. & Pol'y, Summer 1992, at 190.
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Legal Theory & Philosophy
,
Law & Behavioral Sciences
,
Law & Humanities
,
Judges & Jurisprudence
Type: Article
Abstract
Prescriptive political and moral theories contain ideas about what human beings are like and about what, correspondingly, is good for them. Conceptions of human “nature” and corresponding human good enter into normative argument by way of support and justification. Of course, it is logically open for the ratiocinative traffic to run the other way. Strongly held convictions about the rightness or wrongness, goodness or badness, of certain social institutions or practices may help condition and shape one's responses to one or another set of propositions about what people are like and what, in consequence, they have reason to value.
Frank I. Michelman, Possession vs. Distribution in the Constitutional Idea of Property, 72 Iowa L. Rev. 1319 (1987).
Categories:
Constitutional Law
,
Property Law
Sub-Categories:
Fourth Amendment
,
Fifth Amendment
,
Property Rights
Type: Article
Frank I. Michelman, Foreword: Traces of Self-Government, 100 Harv. L. Rev. 4 (1986).
Categories:
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Religious Rights
,
Supreme Court of the United States
,
Military & Veterans Law
,
Judges & Jurisprudence
,
Politics & Political Theory
Type: Article
Frank I. Michelman, Reflections on Professional Education, Legal Scholarship, and the Law-and-Economics Movement, 33 J. Legal Educ. 197 (1983).
Categories:
Disciplinary Perspectives & Law
,
Legal Profession
Sub-Categories:
Law & Economics
,
Law & Behavioral Sciences
,
Legal Scholarship
,
Legal Education
Type: Article
Abstract
The aims of law-and-economics, the study of the interactions of law, economic activity, and human behavior, are not the dominantly important aims of legal scholarship today and are of limited value when compared with other legal scholarship needs.
Frank I. Michelman, The Parts and the Whole: Non-Euclidean Curricular Geometry, 32 J. Legal Educ. 352 (1982).
Categories:
Legal Profession
Sub-Categories:
Legal Education
Type: Article
Frank I. Michelman, Politics As Medicine: On Misdiagnosing Legal Scholarship, 90 Yale L.J. 1224 (1981).
Categories:
Legal Profession
Sub-Categories:
Legal Education
,
Legal Scholarship
Type: Article
Frank I. Michelman, Constitutions, Statutes, and the Theory of Efficient Adjudication, 9 J. Legal Stud. 431 (1980).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Economics
,
Legal Theory & Philosophy
,
Public Law
Type: Article
Frank I. Michelman, Norms and Normativity in the Economic Theory of Law, 62 Minn. L. Rev. 1015 (1978).
Categories:
Disciplinary Perspectives & Law
,
Civil Practice & Procedure
,
Government & Politics
Sub-Categories:
Torts
,
Empirical Legal Studies
,
Law & Economics
,
Law & Behavioral Sciences
,
Legal Theory & Philosophy
,
Courts
Type: Article
Frank I. Michelman, States' Rights and States' Roles: Permutations of "Sovereignty" in National League of Cities v. Usery, 86 Yale L.J. 1165 (1977).
Categories:
Constitutional Law
,
Government & Politics
,
Labor & Employment
Sub-Categories:
Fourteenth Amendment
,
State & Local Government
,
Congress & Legislation
,
Federalism
,
Labor Law
Type: Article

Langdell Library 334

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Assistant: Isaac Moore / 617-496-1760