Law and Politics Commons^™

Voting By Mail: Issues And Resources, Virginia A. Neisler

Law Librarian Scholarship

As the world navigates the worst pandemic in living memory, America has been faced with the prospect of holding a federal presidential election amid a public health crisis. In the spring of 2020, when the coronavirus began to spread rapidly in the United States, election officials in many states opted to extend absentee voting deadlines or postpone elections altogether to reduce the risk of disease transmission. In anticipation of a resurgence of COVID-19 in the fall, the scheduled November election has caused concern for many officials who have searched for potential solutions to make the upcoming presidential election safer.

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

Michigan Law Review

Review of Eric Lomazoff's Reconstructing the National Bank Controversy: Politics and Law in the Early American Republic.

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 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 …

International Law, Steven R. Ratner

Book Chapters

International law is central to both the discourse and practice of global justice. It offers a critical institutional site for transforming theories about global justice into binding rules with institutional enforcement; many of its rules have strong claims to morality; and it can offer insights into the nature of just arrangements at the international level. This chapter first introduces the key participants and fundamental norms of international law that respond to the various claims of those participants. Second, it elaborates on the range of engagement by international legal scholarship with questions of global justice. Legal scholars have incorporated concepts of …

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.

Epilogue: The Need For A New And Critical Democracy, William J. Novak, Stephen W. Sawyer

Articles

Democratic critiques of neoliberalism have been comparatively rare, and positive democratic rejoinders to the social and political ruins of neoliberalism have been rarer. The question thus presents itself – what would an overtly democratic critique of neoliberalism look like and, beyond critique, what would a constructive democratic response to neoliberalism entail?

Political Views Of Graduates Of University Of Michigan Law School, Classes Of 1952-2001, David L. Chambers

Bibliography of Research Using UMLS Alumni Survey Data

In 1966, the University of Michigan Law School initiated an annual survey its graduating classes five and fifteen years after graduation. In 1981, with the survey of the graduates of the class of 1976 after they had been out of law school 5 years and the graduates of the class of 1966 after they been out 15 years, the survey instrument added questions about graduates’ current political views and their recollection of their political views when they began law school. In all years since, graduates have been asked to place themselves on a 7-point scale from “extremely liberal (left)” to …

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.

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

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

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

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

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

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 Progressive Idea Of Democratic Administration, William J. Novak

Articles

The first thing to acknowledge about administration is that administration is coincident with governance. Far from being a modern invention or some kind of radical departure from an original political or legal tradition, administration is among the oldest practices of governments. Indeed, it is impossible to conceive of government without administration. Laws need to be enforced, legislation needs to be implemented, and collective goods need to be secured. Governance is mostly a matter of actions and practices, making administration perhaps the most truly reflective aspect of legal and political culture.

Social Freedom, Democracy And The Political: Three Reflections On Axel Honneth's Idea Of Socialism, Stephen W. Sawyer, William J. Novak, James T. Sparrow

Articles

Axel Honneth’s Idea of Socialism is an important clarion call for an urgent rethinking of the possibilities of a socialism for the twenty-first century. One of the most surprising and satisfying aspects of Axel Honneth’s timely new book is its recovery of the continued vitality of John Dewey’s pragmatic democratic philosophy. These reflections on Honneth’s use of John Dewey for democratizing social freedom, take stock of and explore the political limits of Honneth’s social reconstruction.

Antitrust's Unconventional Politics, Daniel A. Crane

Articles

Antitrust law stands at its most fluid and negotiable moment in a generation. The bipartisan consensus that antitrust should solely focus on economic efficiency and consumer welfare has quite suddenly come under attack from prominent voices calling for a dramatically enhanced role for antitrust law in mediating a variety of social, economic, and political friction points, including employment, wealth inequality, data privacy and security, and democratic values. To the bewilderment of many observers, the ascendant pressures for antitrust reforms are flowing from both wings of the political spectrum, throwing into confusion a conventional understanding that pro-antitrust sentiment tacked left and …

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 …

Sites Of Storytelling: Supreme Court Confirmation Hearings, Patrick Barry

Articles

Supreme Court confirmation hearings have an interesting biographical feature: before nominees even say a word, many words are said about them. This feature— which has been on prominent display in the confirmation hearings of Judge Brett Kavanaugh—is a product of how each senator on the confirmation committee is allowed to make an opening statement. Some of these statements are, as Robert Bork remembers from his own confirmation hearing, “lavish in their praise,” some are “lavish in their denunciations,” and some are “lavish in their equivocations.”1 The result is a disorienting kind of biography by committee, one which produces not one …

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.

Implicit Bias's Failure, Samuel Bagenstos

Articles

The 2016 presidential election was a coming-out party of sorts for the concept of implicit bias-and not necessarily in a good way. In answering a question about race relations and the police during the vice-presidential debate, Mike Pence introduced the topic. Offering his explanation for why the Fraternal Order of Police had endorsed the Trump-Pence ticket, Pence said:

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

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 …

The Fortification Of Inequality: Constitutional Doctrine And The Political Economy, Kate Andrias

Articles

As Parts I and II of this Essay elaborate, the examination yields three observations of relevance to constitutional law more generally: First, judge-made constitutional doctrine, though by no means the primary cause of rising inequality, has played an important role in reinforcing and exacerbating it. Judges have acquiesced to legislatively structured economic inequality, while also restricting the ability of legislatures to remedy it. Second, while economic inequality has become a cause célèbre only in the last few years, much of the constitutional doctrine that has contributed to its flourishing is longstanding. Moreover, for several decades, even the Court’s more liberal …

Grasping For Energy Democracy, Shelley Welton

Michigan Law Review

Until recently, energy law has attracted relatively little citizen participation. Instead, Americans have preferred to leave matters of energy governance to expert bureaucrats. But the imperative to respond to climate change presents energy regulators with difficult choices over what our future energy sources should be, and how quickly we should transition to them—choices that are outside traditional regulatory expertise. For example, there are currently robust nationwide debates over what role new nuclear power plants and hydraulically fractured natural gas should play in our energy mix, and over how to maintain affordable energy for all while rewarding those who choose to …

Facts, Values, Justification, Democracy, Don Herzog

Reviews

Equality, you might think, is the more or less universally shared value of the modern world, or the West, or anyway these United States. “We strive to ensure that the values upon which our country was built, including our belief that all people are created equal, are reflected in everything our nation does.” That’s from the 2016 Democratic Party platform. And look! “We continue to encourage equality for all citizens and access to the American Dream.” That’s from the 2016 GOP Platform. Of course, the parties disagree deeply on the demands of equality. If they share an abstract concept, as …

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 …