Law Commons^™

The Values Of The Administrative State: A Reply To Seidenfeld, Blake Emerson

Michigan Law Review Online

I appreciate the opportunity to continue the conversation on democracy in the administrative state that I hoped The Public’s Law would inspire. In his review, Mark Seidenfeld critiques some of the book’s legal reform proposals. He argues that I am too optimistic about the general public’s ability to participate in the administrative process, about administrators’ competence to reason about social values, and about courts’ capacity to police such reasoning.

The aspects of my argument Seidenfeld criticizes come at the conclusion of the book’s broader study of the intellectual and institutional history of the administrative state. This history is meant to …

Beyond Qualified Immunity, Fred O. Smith Jr.

Michigan Law Review Online

I never watched the video. The descriptions themselves have always felt like enough. Traumatizing enough. Invasive enough. George Floyd, father of two, laying on the ground, as an unfazed officer kneeled on his neck for at least eight minutes and forty-six seconds. He pleaded for his life and cried out to his deceased mother until he met his inevitable death. His name should be said for the record before saying almost anything else. The recording of the chilling final minutes of his life is, in all probability, one of the impetuses for this multi-journal Reckoning and Reform Symposium.

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 …

Hernandez, Bivens, And The Supreme Court’S Expanding Theory Of Judicial Abdication, William J. Aceves

Michigan Law Review Online

This Essay examines the Hernandez decision and critiques the Court’s expanding theory of judicial abdication, an approach with profound implications for civil rights and the future of the judiciary. While Hernandezinvolved a cross-border shooting, the Court’s reasoning extends to all facets of civil litigation. Accordingly, this Essay proposes a new theory of judicial engagement that would empower federal courts to grant relief for constitutional claims against federal officials. It is a theory founded in extant constitutional jurisprudence that the Court has used for over a century to apply the Bill of Rights to state and local governments—an approach that …

The Making Of The Supreme Court Bar: How Business Created A Solicitor General For The Private Sector, Jeremy Pilaar

Michigan Law Review Online

This Essay tells a simple but important story about power and the law: that of the rise of the modern Supreme Court bar. Since 1985, a small cadre of private attorneys has come to dominate Court advocacy. While the share of lawyers making their first arguments before the justices fell from 76% to 43% between 1980 and 2007, the fraction with ten or more arguments under their belt rose from 2% to 28%. Similarly, while litigators with five or more previous arguments were responsible for 5.8% of the case petitions granted in October Term 1980, that quotient soared to 55.5% …

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 …

Reassessing American Democracy: The Enduring Challenge Of Racial Exclusion, Johanna Kalb, Didi Kuo

Michigan Law Review Online

American democracy is in trouble. Since the 2016 election, a sizable literature has developed that focuses on diagnosing and assessing the state of American democracy, most of which concludes that our system of government is in decline.[2] These authors point to the rise in party polarization, the increasingly bipartisan abandonment of the norms of the democratic process, the rise of populism, the degradation of the public sphere, and the proliferation of gerrymandered districts and voting restrictions to illustrate the breakdown. And while attributing varying levels of significance to these factors, a common theme is that American democracy, once stable, is …