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Articles 1 - 30 of 273
Full-Text Articles in Law
Carceral Socialization As Voter Suppression, Danieli Evans
Carceral Socialization As Voter Suppression, Danieli Evans
Michigan Journal of Race and Law
In an era of mass incarceration, many people are socialized through interactions with the carceral state. These interactions are powerful learning experiences, and by design, they are contrary to democratic citizenship. Citizenship is about belonging to a community of equals, being entitled to mutual respect and concern. Criminal punishment deliberately harms, subordinates, and stigmatizes. Encounters with the carceral system are powerful experiences of anti-democratic socialization, and they impact peoples’ sense of citizenship and trust in government. Accordingly, a large body of social science research shows that eligible voters who have carceral contact are significantly less likely to vote or to …
Beating A Dead Corpse, Josh Chafetz
Beating A Dead Corpse, Josh Chafetz
Michigan Law Review
A Review of Sovereignty, RIP. By Don Herzog.
“A Mystifying And Distorting Factor”: The Electoral College And American Democracy, Katherine Shaw
“A Mystifying And Distorting Factor”: The Electoral College And American Democracy, Katherine Shaw
Michigan Law Review
A Review of Let the People Pick the President: The Case for Abolishing the Electoral College. By Jesse Wegman.
Criminal Law In A World Of States, Ryan Liss
Criminal Law In A World Of States, Ryan Liss
Michigan Journal of International Law
In recent decades, a new school of criminal law theory has emerged. Its proponents reject the traditional story that criminal law ought to be justified on either retributivist or utilitarian grounds alone. Instead, they argue that justifications for criminal law must be rooted in a broader political theory of the state’s authority. While this political theory turn is becoming increasingly dominant in the literature, it gives rise to two significant challenges that scholars have thus far failed to recognize. These challenges emerge when we turn our attention from an internal, domestic view of the state to the world beyond its …
Disparate Discrimination, Leah M. Litman
Disparate Discrimination, Leah M. Litman
Michigan Law Review
This Article explains and analyzes a recent trend in the Supreme Court’s cases regarding unintentional discrimination, where the argument is that a law has the effect of producing a disadvantage on members of a particular group. In religious discrimination cases, the Court has held that a law is presumptively unconstitutional if the law results in a comparable secular activity being treated more favorably than religious activity. Yet in racial discrimination cases, the Court has said the mere fact that a law more severely disadvantages racial minorities as a group does not suffice to establish unlawful discrimination.
The two tracks for …
Ranked-Choice Voting As Reprieve From The Court-Ordered Map, Benjamin P. Lempert
Ranked-Choice Voting As Reprieve From The Court-Ordered Map, Benjamin P. Lempert
Michigan Law Review
Thus far, legal debates about the rise of ranked-choice voting have centered on whether legislatures can lawfully adopt the practice. This Note turns attention to the courts and the question of remedies. It proposes that courts impose ranked-choice voting as a redistricting remedy. Ranked-choice voting allows courts to cure redistricting violations without also requiring that they draw copious numbers of districts, a process the Supreme Court has described as a “political thicket.” By keeping courts away from the fact-specific, often arbitrary judgments involved in redistricting, ranked-choice voting makes for the redistricting remedy that best protects the integrity of the judicial …
The Need For An Established Senate Rule On Election-Year And Lame Duck Session Supreme Court Nominations, Jacob R. Weaver
The Need For An Established Senate Rule On Election-Year And Lame Duck Session Supreme Court Nominations, Jacob R. Weaver
University of Michigan Journal of Law Reform Caveat
In 2016, the Republican-held Senate refused to hold a hearing on President Barack Obama’s nominee, Merrick Garland, sparking outrage among the Democratic Party. Then-Senate Majority Leader Mitch McConnell justified his party’s actions based on what became known as the “McConnell Rule.” This controversial rule holds that during years of presidential elections, when the president and the Senate majority are of different parties, the Senate is not expected to confirm the president’s Supreme Court nominees; but, when the president and Senate majority are of the same party, vacancies may be filled.
When the Senate applied this rule in 2020, the …
A Perfectly Empty Gift, Christina D. Ponsa-Kraus
A Perfectly Empty Gift, Christina D. Ponsa-Kraus
Michigan Law Review
A Review of Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire. by Sam Erman.
The Wolf We Feed: Democracy, Caste, And Legitimacy, Benjamin Justice, Tracey L. Meares
The Wolf We Feed: Democracy, Caste, And Legitimacy, Benjamin Justice, Tracey L. Meares
Michigan Law Review Online
Procedure is central to American public legal discourse. From the soaring rhetoric of the Declaration of Independence to the Due Process Clause of the Fourteenth Amendment, the American legal tradition rests on the principle that law must be both derived and applied according to fair process. Consider that in the 2020 election the Trump Administration resorted to fervent and false allegations of widespread voter fraud—that the election process was fundamentally unfair—in order to weaponize Republican voters’ ostensible commitments to fairness against what was, objectively, one of the least procedurally unfair elections in history. Yet the four-year period of the Trump …
No Voice, No Exit, But Loyalty? Puerto Rico And Constitutional Obligation, Guy-Uriel Charles, Luis Fuentes-Rohwer
No Voice, No Exit, But Loyalty? Puerto Rico And Constitutional Obligation, Guy-Uriel Charles, Luis Fuentes-Rohwer
Michigan Journal of Race and Law
The Michigan Law Review is honored to have supported Professors Charles and Fuentes-Rohwer's Essay on the subjugated status of Puerto Rico as an "unincorporated territory." This Essay contextualizes Puerto Rico not as an anomalous colonial vestige but as fundamentally a part of the United States' ongoing commitment to racial economic domination. We are thrilled to highlight this work, which indicts our constitutional complacence with the second-class status of Puerto Rican citizens and demands a national commitment to self-determination for Puerto Rico.
Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang
Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang
Michigan Law Review
This Article draws on novel data and presents the results of the first empirical analysis of how potentially salient characteristics of Court of Appeals judges influence class certification under Rule 23 of the Federal Rules of Civil Procedure. We find that the ideological composition of the panel (measured by the party of the appointing president) has a very strong association with certification outcomes, with all-Democratic panels having dramatically higher rates of procertification outcomes than all-Republican panels—nearly triple in about the past twenty years. We also find that the presence of one African American on a panel, and the presence of …
Reclaiming Access To Truth In Reproductive Healthcare After National Institute Of Family & Life Advocates V. Becerra, Diane Kee
Michigan Law Review
Crisis Pregnancy Centers (CPCs) are antiabortion organizations that seek to “intercept” people with unintended pregnancies to convince them to forego abortion. It is well documented that CPCs intentionally present themselves as medical professionals even when they lack licensure, while also providing medically inaccurate information on abortion. To combat the blatant deception committed by CPCs, California passed the Reproductive FACT Act in 2015. The Act required CPCs to post notices that disclosed their licensure status and informed potential clients that the state provided subsidized abortion and contraceptives. Soon after, CPCs brought First Amendment challenges to these disclosure requirements, claiming that the …
The Rise And Fall Of Clean Air Act Climate Policy, Nathan Richardson
The Rise And Fall Of Clean Air Act Climate Policy, Nathan Richardson
Michigan Journal of Environmental & Administrative Law
The Clean Air Act has proven to be one of the most successful and durable statutes in American law. After the Supreme Court’s 2008 decision in Massachusetts v. EPA, there was great hope that the Act could be brought to bear on climate change, the most pressing current environmental challenge of our time. Massachusetts was fêted as the most important environmental case ever decided, and, upon it, the Environmental Protection Agency under President Obama built a sweeping program of greenhouse gas regulations, aimed first at emissions from road vehicles, and later at fossil fuel power plants. It was the most …
Redefining Reproductive Rights And Justice, Leah Litman
Redefining Reproductive Rights And Justice, Leah Litman
Michigan Law Review
Review of Reproductive Rights and Justice Stories edited by Melissa Murray, Katherine Shaw, and Reva B. Siegel.
The Misplaced Trust In The Doj's Expertise On Criminal Justice Policy, Shon Hopwood
The Misplaced Trust In The Doj's Expertise On Criminal Justice Policy, Shon Hopwood
Michigan Law Review
Review of Rachel Elise Barkow's Prisoners of Politics: Breaking the Cycle of Mass Incarceration.
Coin, Currency, And Constitution: Reconsidering The National Bank Precedent, David S. Schwartz
Coin, Currency, And Constitution: Reconsidering The National Bank Precedent, David S. Schwartz
Michigan Law Review
Review of Eric Lomazoff's Reconstructing the National Bank Controversy: Politics and Law in the Early American Republic.
The City And The Soul: Character And Thriving In Law And Politics, Sherman J. Clark
The City And The Soul: Character And Thriving In Law And Politics, Sherman J. Clark
University of Michigan Journal of Law Reform
This Article describes a way of thinking about law and politics that is ancient in origins but largely absent from modern legal scholarship. It poses a two-part question: how do our law and politics influence our character, and how does that in turn influence how well and fully we live?
Much legal scholarship asks how law can be more efficient and effective in making us richer, healthier, safer, and such. This is good: wealth, health, and safety are—or can be—good things. But material conditions are not the only things that make for a rich and full life. What also matters—and …
Antitrust's "Curse Of Bigness" Problem, D. Daniel Sokol
Antitrust's "Curse Of Bigness" Problem, D. Daniel Sokol
Michigan Law Review
Review of Tim Wu's The Curse of Bigness: Antitrust in the New Gilded Age.
Protecting Local Authority In State Constitutions And Challenging Intrastate Preemption, Emily S.P. Baxter
Protecting Local Authority In State Constitutions And Challenging Intrastate Preemption, Emily S.P. Baxter
University of Michigan Journal of Law Reform
In recent years, state legislatures have increasingly passed laws that prohibit or preempt local action on a variety of issues, including fracking, LGBTQIA nondiscrimination, and workplace protections, among others. Often, these preemption laws are a direct response to action at the local level. States pass preemption laws either directly before or directly after a locality passes an ordinance on the same subject. Scholars have seen these preemptive moves as the outcome of the urban disadvantage in state and national government due to partisan gerrymandering.
Preemption may be a feature of our governing system, but it has also become a problematic …
Crafting A Corporate Analogue To Criminal Disenfranchisement, B. Graves Lee Jr.
Crafting A Corporate Analogue To Criminal Disenfranchisement, B. Graves Lee Jr.
Michigan Business & Entrepreneurial Law Review
The Supreme Court’s 2010 decision in Citizens United v. FEC represented a sea change in the world of corporate citizenship. Although the decision dealt with campaign finance law, it has sparked significant discussion of the concept of corporate personhood more broadly. Corporations have increasingly taken advantage of legal rights previously reserved for individuals. This Note argues that where corporations reap the benefits of constitutional entitlements intended for individuals, they should suffer consequences for malfeasance similar to those imposed on individuals who engage in criminal conduct. Specifically, this Note advocates for limitations on corporate electioneering as a collateral consequence of a …
The Locked Gates To Tension City: The Commission On Presidential Debates, The Fec, And The Two-Party System, Tommy La Voy
The Locked Gates To Tension City: The Commission On Presidential Debates, The Fec, And The Two-Party System, Tommy La Voy
Michigan Journal of Environmental & Administrative Law
Since John F. Kennedy and Richard Nixon walked into a Chicago television studio for the first general election presidential debate in 1960, candidate debates have been a fundamental aspect of presidential campaigns and have had broader effects on society at large. The Commission on Presidential Debates (“CPD”) has been in charge of organizing the general election debates since it was created in 1987 by the Democratic and Republican parties. In its tenure, the CPD has restricted its massive platform almost every election to the Republican and Democratic candidates through the use of criteria that seemingly follow the law’s requirement of …
Making And Unmaking Citizens: Law And The Shaping Of Civic Capacity, Tabatha Abu El-Haj
Making And Unmaking Citizens: Law And The Shaping Of Civic Capacity, Tabatha Abu El-Haj
University of Michigan Journal of Law Reform
American democracy is more fragile today than in recent memory. As evidence of stubborn imbalances in political influence grow, so too does public skepticism concerning the relative benefits of our democratic institutions. Scholars have taken note, and two dominant camps have emerged to offer proposals for restoring democratic accountability and responsiveness. The first, like the public, identifies the flood of money into electoral politics as the primary source of our troubles, whereas the second points to political parties as the root of the crisis. More recently, however, a nascent third approach has emerged. Looking beyond the usual suspects—money in politics …
Constitutional Cohesion And The Right To Public Health, James G. Hodge Jr., Daniel Aaron, Haley R. Augur, Ashley Cheff, Joseph Daval, Drew Hensley
Constitutional Cohesion And The Right To Public Health, James G. Hodge Jr., Daniel Aaron, Haley R. Augur, Ashley Cheff, Joseph Daval, Drew Hensley
University of Michigan Journal of Law Reform
Despite years of significant legal improvements stemming from a renaissance in public health law, Americans still face major challenges and barriers in assuring their communal health. Reversals of legal reforms coupled with maligned policies and chronic underfunding contribute to diminished public health outcomes. Underlying preventable morbidity and mortality nationally are realities of our existing constitutional infrastructure. In essence, there is no general obligation of government to protect or promote the public’s health. Under principles of “constitutional cohesion,” structural facets and rights-based principles interwoven within the Constitution protect individuals and groups from governmental vices (i.e., oppression, overreaching, tyranny, and malfeasance). Structural …
The Political Party System As A Public Forum: The Incoherence Of Parties As Free Speech Associations And A Proposed Correction, Wayne Batchis
The Political Party System As A Public Forum: The Incoherence Of Parties As Free Speech Associations And A Proposed Correction, Wayne Batchis
University of Michigan Journal of Law Reform
The Supreme Court’s jurisprudence addressing the associational rights of political parties is both highly consequential and deeply inconsistent. It dates back at least as far as the Court’s White Primary decisions more than a half-century ago. In recent decades, the Court has imposed an arguably ad hoc formula, striking down regulations on political parties on First Amendment grounds in some cases, while upholding them in others. From a jurisprudential perspective, critics might point to insufficiently principled distinctions between these cases. From a normative perspective, the very expansion of First Amendment rights to political parties, like the parallel extension to corporations …
Understanding State Agency Independence, Miriam Seifter
Understanding State Agency Independence, Miriam Seifter
Michigan Law Review
Conflicts about the independence of executive branch officials are brewing across the states. Governors vie with separately elected executive officials for policy control; attorneys general and governors spar over who speaks for the state in litigation, and legislatures seek to alter governors’ influence over independent state commissions. These disputes over intrastate authority have weighty policy implications both within states and beyond them, on topics from election administration and energy markets to healthcare and welfare. The disputes also reveal a blind spot. At the federal level, scholars have long analyzed the meaning and effects of agency independence—a dialogue that has deepened …
The Republic In Long-Term Perspective, Richard Primus
The Republic In Long-Term Perspective, Richard Primus
Michigan Law Review Online
Every system of government eventually passes away. That's a feature of the human condition. The United States has been an unusually stable polity by the standards of world civilizations, and for that stability Americans should be deeply grateful. But no nation is exempt from the basic forces of history. It is not reasonable to think that the constitutional republic we know will last forever. The question is when it will meet its end-in our lifetimes, or in our grandchildren's, or centuries later. Given the stable conditions that living Americans were socialized to expect, the dominant intuition is probably something like …
State Court Litigation: The New Front In The War Against Partisan Gerrymandering, Charlie Stewart
State Court Litigation: The New Front In The War Against Partisan Gerrymandering, Charlie Stewart
Michigan Law Review Online
Partisan gerrymandering is the process of drafting state and congressional districts in a manner that gives one political party an advantage over another. The end goal is simple: help your party win more seats or protect existing ones. The tactic is as old as the United States. In 1788, Patrick Henry convinced the Virginia state legislature to draw the 5th Congressional District to pit his rival James Madison against James Monroe. The term “gerrymander” itself is a hybrid: in 1810, democratic Governor Gerry signed a partisan redistricting plan into law—one that contained a district that infamously looked like a salamander. …
The Case For Effective Environmental Politics: Federalist Or Unitary State? Comparing The Cases Of Canada, The United States Of America, And The People’S Republic Of China, Justin Fisch
University of Michigan Journal of Law Reform
Federalism, by its nature, is a segmented system of governance. The Canadian and American constitutional orders are divided along very clear lines of jurisdictional authority between levels of government. Environmental issues, by their nature, are holistic in scope—they transcend borders, governments, jurisdictions, and authorities. For this reason, one might assume that a unitary state would be better positioned to tackle them. Is this justified? This Article examines the Chinese unitary state, in comparison to the federalist systems in Canada and the United States of America, to discern whether a unitary government can better manage issues plaguing the environment.
The People Against The Constitution, Aziz Z. Huq
The People Against The Constitution, Aziz Z. Huq
Michigan Law Review
A review of Jan-Werner Müller, What Is Populism?.
Books Have The Power To Shape Public Policy, Barbara Mcquade
Books Have The Power To Shape Public Policy, Barbara Mcquade
Michigan Law Review
In our digital information age, news and ideas come at us constantly and from every direction—newspapers, cable television, podcasts, online media, and more. It can be difficult to keep up with the fleeting and ephemeral news of the day.
Books, on the other hand, provide a source of enduring ideas. Books contain the researched hypotheses, the well-developed theories, and the fully formed arguments that outlast the news and analysis of the moment, preserved for the ages on the written page, to be discussed, admired, criticized, or supplanted by generations to come.
And books about the law, like the ones reviewed …