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Articles 31 - 46 of 46
Full-Text Articles in Law
Restoring Trade’S Social Contract, Timothy Meyer, Frank J. Garcia
Restoring Trade’S Social Contract, Timothy Meyer, Frank J. Garcia
Michigan Law Review Online
As we write this, U.S. trade policy is falling into deeper and deeper disarray. The United States, Canada, and Mexico are holding frenzied meetings to renegotiate the North American Free Trade Agreement (NAFTA). As recently as October 11, 2017, President Donald Trump warned that he will withdraw the United States from NAFTA if he does not get a deal that is “fair” to American workers. Indeed, the Trump Administration has already pulled the United States out of the Trans-Pacific Partnership (TPP), threatened to withdraw from the United States-Korea Free Trade Agreement (KORUS), and is holding the World Trade Organization (WTO)’s …
Climate Change Litigation In The Federal Courts: Jurisdictional Lessons From California V. Bp, Gil Seinfeld
Climate Change Litigation In The Federal Courts: Jurisdictional Lessons From California V. Bp, Gil Seinfeld
Michigan Law Review Online
On March 21 of this year, something unusual took place at a U.S. courthouse in San Francisco: a group of scientists and attorneys provided Federal District Judge William H. Alsup with a crash course in climate science. The five-hour tutorial was ordered by Judge Alsup in connection with a lawsuit that had been filed by the cities of Oakland and San Francisco (“the Cities”) against the world’s five largest producers of fossil fuels. The central issue in the case is whether the energy companies can be held liable for continuing to market fossil fuels long after they learned that such …
Reassessing American Democracy: The Enduring Challenge Of Racial Exclusion, Johanna Kalb, Didi Kuo
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 …
Prosecutors Matter: A Response To Bellin’S Review Of Locked In, John P. Pfaff
Prosecutors Matter: A Response To Bellin’S Review Of Locked In, John P. Pfaff
Michigan Law Review Online
In this year's Book Review issue, Jeffrey Bellin reviews my book, Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform, and he finds much to disagree with. I appreciate the editors of the Law Review providing me with the opportunity to correct a significant error he makes when discussing some of my data. In the book, I use data from the National Center for State Courts (NCSC) to show that prosecutors filed increasingly more felony cases over the 1990s and 2000s, even as crime fell. Bellin makes two primary claims about how I used …
Judge Gorsuch And Johnson Resentencing (This Is Not A Joke), Leah M. Litman
Judge Gorsuch And Johnson Resentencing (This Is Not A Joke), Leah M. Litman
Michigan Law Review Online
Jan Crawford has reported that President Donald Trump is strongly considering appointing Judge Neil Gorsuch of the United States Court of Appeals for the Tenth Circuit to the U.S. Supreme Court. I do not know Judge Gorsuch, but I do know his opinion in Prost v. Anderson, which is a rather wonky case on a somewhat technical area of federal habeas law. Prost provides an interesting insight into Judge Gorsuch’s jurisprudence. The case concerns an issue on which the courts of appeals disagree, so it provides a nice glimpse into how Judge Gorsuch might address matters that are reasonably …
Sally Yates, Ronald Dworkin, And The Best View Of The Law, W. Bradley Wendel
Sally Yates, Ronald Dworkin, And The Best View Of The Law, W. Bradley Wendel
Michigan Law Review Online
What interests me, as a scholar of legal ethics and jurisprudence, is whether Yates got it right when she said the responsibility of a lawyer for the government is to seek justice and stand for what is right, and that the position of the Department of Justice should be informed by the lawyer’s best view of the law. Yates’s claim that legal advice should be informed by the best view of the law sounds very much like the position of Ronald Dworkin. Dworkin argued that a judge should determine the legal rights and duties of the litigants by constructing the …
Chevron In The Circuit Courts: The Codebook Appendix, Kent Barnett, Christopher J. Walker
Chevron In The Circuit Courts: The Codebook Appendix, Kent Barnett, Christopher J. Walker
Michigan Law Review Online
For our empirical study on the use of Chevron deference in the federal courts of appeals, we utilized the following Codebook. This Codebook draws substantially from the codebook appended to William Eskridge and Lauren Baer’s pathbreaking study of administrative law’s deference doctrines at the Supreme Court. Our research assistants and we followed the instructions below when coding judicial decisions. To address questions as they arose and to ensure consistent coding, we maintained close contact with each other and our research assistants throughout the project and clarified the Codebook to address additional issues. Further details concerning our methodology (and its limitations) …
Ms-13 As A Terrorist Organization: Risks For Central American Asylum Seekers, Jillian Blake
Ms-13 As A Terrorist Organization: Risks For Central American Asylum Seekers, Jillian Blake
Michigan Law Review Online
In its first year, the Trump Administration has used aggressive rhetoric in a crusade against the transnational gang MS‑13. In April, Attorney General Jeff Sessions called MS‑13 “one of the most violent gangs in the history of our country” and said that the gang “could qualify” as a terrorist organization. Since then, the administration has put its fight against MS‑13 at the front and center of its agenda. In a speech this summer, President Donald Trump called MS‑13 gang members “animals” and vowed to “dismantle, decimate and eradicate” their operations. The president has also used the threat posed by MS‑13 …
Counting Zeros: The Every Student Succeeds Act And The Testing Opt-Out Movement, Paul A. Hoversten
Counting Zeros: The Every Student Succeeds Act And The Testing Opt-Out Movement, Paul A. Hoversten
Michigan Law Review Online
The story begins with threatening letters. In October 2014, the U.S. Department of Education reminded Colorado’s chief state school officer that the department “ha[d], in fact, withheld Title I, Part A administrative funds . . . from a number of States for failure to comply with the assessment requirements” under the Elementary and Secondary Education Act. Given the occasion, the department implied, it wouldn’t hesitate to be ruthless.
Colorado could be forgiven for assuming it was authorized to craft its own policies in this arena; according to the Wall Street Journal, the Every Student Succeeds Act (ESSA) represented “the …
The Fourth Amendment Categorical Imperative, David Gray
The Fourth Amendment Categorical Imperative, David Gray
Michigan Law Review Online
The vast majority of current Fourth Amendment doctrine is unfounded, incoherent, and dangerous. The culprit is the Supreme Court’s 1967 decision in Katz v. United States, which defines “search” as government conduct that violates subjectively manifested expectations of privacy “that society is prepared to recognize as ‘reasonable.’ ” This is pure applesauce. Nowhere will you find a standard dictionary that defines “search” in these terms. Neither will you hear a native speaker of the English language use “search” in this sense unless her mind has been polluted by a semester of studying criminal procedure. The Court created this definition …
Legislative Sovereignty, Executive Power, And Judicial Review: Comparative Insights From Brexit, René Reyes
Legislative Sovereignty, Executive Power, And Judicial Review: Comparative Insights From Brexit, René Reyes
Michigan Law Review Online
In June 2016, participants in a United Kingdom referendum voted to leave the European Union (EU) by a margin of 52% to 48%. The timing and terms of Britain’s exit (commonly known as “Brexit”) are the subject of on-going public and parliamentary debate. But the mechanism by which Brexit is to be formally commenced was clarified by the U.K. Supreme Court at the end of January 2017 in the landmark case R (Miller) v. Secretary of State for Exiting the European Union. The question presented was whether ministers of Theresa May’s government could give notice of the U.K.’s withdrawal …
Unduly Burdening Women’S Health: How Lower Courts Are Undermining Whole Woman’S Health V. Hellerstedt, Leah M. Litman
Unduly Burdening Women’S Health: How Lower Courts Are Undermining Whole Woman’S Health V. Hellerstedt, Leah M. Litman
Michigan Law Review Online
At the end of the Supreme Court’s 2016 Term, the Court issued its decision in Whole Woman’s Health v. Hellerstedt. One of the more closely watched cases of that Term, Hellerstedt asked whether the Supreme Court would adhere to its prior decision in Planned Parenthood v. Casey, which reaffirmed that women have a constitutionally protected right to decide to end a pregnancy.
The state of Texas had not formally requested that the Court revisit Casey or the earlier decision Casey had affirmed, Roe v. Wade, in Hellerstedt. But that was what Texas was, in effect, asking …
Predicate Offenses, Foreign Convictions, And Trusting Tribal Courts, Alexander S. Birkhold
Predicate Offenses, Foreign Convictions, And Trusting Tribal Courts, Alexander S. Birkhold
Michigan Law Review Online
Concerns about the reliability of criminal justice systems in foreign countries have resulted in uneven treatment of foreign convictions in U.S. courts. Federal courts, however, have historically accepted tribal court convictions as predicate offenses under recidivist statutes. But the Ninth Circuit Court of Appeals recently rejected the uncounseled convictions obtained against Michael Bryant, Jr., a serial domestic abuser, in the Northern Cheyenne Tribal Court. The court dismissed a federal indictment that had been brought against Bryant under 18 U.S.C § 117, which makes it a felony to commit domestic violence against a spouse or partner in Indian country if the …
Portlandia, Ridesharing, And Sex Discrimination, Ari Herbert
Portlandia, Ridesharing, And Sex Discrimination, Ari Herbert
Michigan Law Review Online
This Essay discusses and assesses the legal hurdles that See Jane Go and SafeHer may face. Part I of this Essay explains how the plain text of Title VII and the pertinent Equal Employment Opportunity Commission (EEOC) guideline can fairly be read either to allow or condemn See Jane Go and SafeHer’s hiring practices. Part II then highlights precedent that supports See Jane Go’s and SafeHer’s discriminatory driver–passenger practices. Part III concludes by arguing that the legal system ought to make room for apps like See Jane Go and SafeHer in the current framework.
Soundings And Silences, Laurence H. Tribe
Soundings And Silences, Laurence H. Tribe
Michigan Law Review Online
My work over the years has included both studying existing constitutions, particularly that of the United States, and assisting others with the drafting of new constitutions—from the Marshall Islands to the Czech Republic to South Africa. Among the things I noticed was that those undertakings, although distinct, were related—and related most significantly in the way that formative decisions about what to say and what not to say in a new constitution have bearing on later decisions about how to interpret what a constitution says or fails to say. My decision to pay special attention to the various roles of silence …
Delegating Peace Enforcement Missions- But To Whom? What The U.N.'S Recent Recommendation Reveals About Today's Crisis In Legitimate Actors For Robust Peace Operations, Karima Tawfik
Michigan Law Review Online
This Essay argues that in assessing whether or not to move towards the U.N. panel’s proposed model that champions regional actors and ad hoc coalitions over the U.N. itself, the international community must weigh the marginal costs and benefits of this plan. This essay follows the U.N. panel’s call for the international community to derive lessons from the past by examining three case studies where regional actors and ad hoc coalitions, rather than the U.N., have embarked on peace enforcement missions. It argues that if the international community chooses to follow the U.N. panel’s recommendation on deferring to regional actors …