Michigan Law Review, First Impressions最新文献

{"title":"The Return of Coverture","authors":"A. Tait","doi":"10.31228/osf.io/58mq2","DOIUrl":"https://doi.org/10.31228/osf.io/58mq2","url":null,"abstract":"Once, the notion that husbands and wives were equal partners in marriage seemed outlandish and unnatural. Today, the marriage narrative has been reversed and the prevailing attitude is that marriage has become an increasingly equitable institution. This is the story that Justice Kennedy told in Obergefell v. Hodges, in which he described marriage as an evolving institution that has adapted in response to social change such that discriminatory marriage rules no longer apply. Coverture exemplifies this change: marriage used to be deeply shaped by coverture rules and now it is not. While celebrating the demise of coverture, however, the substantive image of marriage that Justice Kennedy set forth subconsciously uses conventional, historical tropes that construct marriage as a relationship of hierarchy, gender differentiation, and female disempowerment. In this Essay, I describe the ways in which Justice Kennedy used coverture as a positive example of marriage transformation while simultaneously invoking coverture ideals to inform his portrayal of marriage as a fundamental building block of government, the keystone of civil society, and a transcendental, lifelong commitment.","PeriodicalId":362456,"journal":{"name":"Michigan Law Review, First Impressions","volume":"241 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-01-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132020543","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"To Seek a Newer World: Prisoners’ Rights at the Frontier","authors":"D. M. Shapiro","doi":"10.2139/SSRN.2707744","DOIUrl":"https://doi.org/10.2139/SSRN.2707744","url":null,"abstract":"Three Supreme Court decisions from this year could cause a massive shakeup in the law of prisoners’ rights. Kingsley v. Hendrickson not only alters the standard for use of force claims brought by pretrial detainees but suggests that the lower courts have gotten nearly every standard for claims by pretrial detainees dead wrong. Holt v. Hobbs jettisoned prior precedent on the standard for prisoners’ religious exercise claims — a ruling that throws hundreds of lower court decisions out the door. And a concurrence by Justice Kennedy in Davis v. Ayala signals that the Court may be poised to decide whether solitary confinement violates the Eighth Amendment. Why all of this now? Perhaps because the high court has not escaped a revolution in the politics and perception of mass incarceration.","PeriodicalId":362456,"journal":{"name":"Michigan Law Review, First Impressions","volume":"117 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-12-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124957616","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Inside Regulatory Interpretation: A Research Note","authors":"Christopher J. Walker","doi":"10.2139/SSRN.2660135","DOIUrl":"https://doi.org/10.2139/SSRN.2660135","url":null,"abstract":"In response to Kevin M. Stack, Interpreting Regulations, 111 Mich. L. Rev. 355 (2012). In Interpreting Regulations, Professor Stack provides the first comprehensive approach to regulatory interpretation and situates this approach within the larger literature on legal interpretation. His theory of regulatory interpretation is simple yet pioneering: “a regulation should be read in light of its purposes, with the regulation’s text and the statement of basis and purpose constituting the privileged interpretive sources.” This Research Note takes a look inside regulatory interpretation to explore the empirical foundation for Professor Stack’s novel approach to regulatory interpretation. In 2013, the author conducted a 195-question survey of 128 federal agency rule drafters at seven executive departments (Agriculture, Commerce, Energy, Homeland Security, Health and Human Services, Housing and Urban Development, and Transportation) and two independent agencies (the Federal Communications Commission and the Federal Reserve). Part I of this Research Note presents the findings from this study for the questions that were designed to assess Professor Stack’s theory of regulatory interpretation from the perspective of the agency officials who draft these statements of basis and purpose. These findings largely support his theory. Part II then takes a step back to explain how the other findings from the study bear on regulatory interpretation.","PeriodicalId":362456,"journal":{"name":"Michigan Law Review, First Impressions","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124592969","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Judicial Diversity After Shelby County v. Holder","authors":"William Roth","doi":"10.2139/SSRN.2501685","DOIUrl":"https://doi.org/10.2139/SSRN.2501685","url":null,"abstract":"In 2014, voters in ten of the fifteen states previously covered by the Voting Rights Act (\"VRA\") preclearance formula-including six of the nine states covered in their entirety-will go to the polls to elect or retain state supreme court justices. Yet despite the endemic underrepresentation of minorities on state benches and the judiciary's traditional role in fighting discrimination, scholars have seemingly paid little attention to how Shelby County v. Holder's suspension of the coverage formula in section 4(b) has left racial minorities vulnerable to retrogressive changes to judicial-election laws. The first election year following Shelby County thus provides a compelling opportunity to assess the VRA's ongoing role in the fight to diversify state benches.","PeriodicalId":362456,"journal":{"name":"Michigan Law Review, First Impressions","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123320947","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"An Argument for the Basic Legal Rights of Farmed Animals","authors":"S. Wise","doi":"10.5565/rev/da.205","DOIUrl":"https://doi.org/10.5565/rev/da.205","url":null,"abstract":"The most abused beings in the United States are those whom we raise and kill for food. The numbers of dead are staggering. Most are victims of the severe and almost entirely unregulated practices that Americans permit on their factory farms. According to the United States Department of Agriculture’s National Agricultural Statistics Service, in 2007, a total of 10.4 billion land-based animals were killed by the American food industry. These included 9.4 billion broiler chickens, 450 million laying hens, 317 million turkeys, 121 million pigs, 39 million bovines, 28 million ducks, 10 million rabbits, and 4 million sheep and goats—fifty times the number killed in biomedical research, for sport, as pests, and for all other reasons combined, carrying a value of hundreds of billions of dollars a year. The degree to which animal enslavement is embedded in our society is difficult to calculate or fathom. In commenting on human slavery, slave historian David Brion Davis wrote in the New York Times that","PeriodicalId":362456,"journal":{"name":"Michigan Law Review, First Impressions","volume":"92 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124655254","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Originalism and the Natural Born Citizen Clause","authors":"Lawrence B. Solum","doi":"10.2139/SSRN.1263885","DOIUrl":"https://doi.org/10.2139/SSRN.1263885","url":null,"abstract":"The enigmatic phrase \"natural born citizen\" poses a series of problems for contemporary originalism. New Originalists, like Justice Scalia, focus on the public meaning of the constitutional text, but the notion of a \"natural born citizen\" was likely a term of art, derived from the idea of a \"natural born subject\" in English law - a category that most likely did not extend to persons, like John McCain, who were born outside sovereign territory. But the constitution speaks of \"citizens\" and not \"subjects,\" introducing uncertainties and ambiguities that might (or might not) make McCain eligible for the presidency.What was the original public meaning of the enigmatic phrase that establishes the eligibility for the office of President of the United States? There is general agreement on the core of settled meaning: some cases of inclusion and exclusion seem indisputable. As a matter of inclusion, anyone born on American soil with an American parent is clearly a \"natural born citizen.\" As a matter of exclusion, anyone whose citizenship is acquired after birth as a result of \"naturalization\" is clearly not a \"natural born citizen.\" But these clear cases of inclusion and exclusion do not exhaust the possibilities. John McCain's citizenship was conferred by statute - perhaps before, but perhaps after his birth. That leaves John McCain in a twilight zone - neither clearly naturalized nor natural born.This Essay explores the contribution of originalism as a theory of constitutional interpretation to the controversy over the meaning of the natural born citizenship clause. Part II of the Essay explains the relevance of originalist constitutional theory to the controversy with special reference to the New Originalism - the view of constitutional meaning that emphasizes public meaning of the constitutional text at the time each provision was framed and ratified. Part III argues that that the clause creates a problem for public meaning originalism - the phrase \"natural born citizen\" may not have had a widely shared public meaning in the late eighteenth century; the solution to this problem could be the notion of a \"term of art,\" in particular, the idea that the meaning of \"natural born citizen\" derives from the English concept of a \"natural born subject.\" Part IV considers the possibility that the original meaning of the natural born citizen clause is subject to an irreducible ambiguity. Part V concludes with reflections on the exemplary significance of the natural born citizen clause for constitutional theory.","PeriodicalId":362456,"journal":{"name":"Michigan Law Review, First Impressions","volume":"158 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-04-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129449619","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Lulac on Partisan Gerrymandering: Some Clarity, More Uncertainty","authors":"Richard Briffault","doi":"10.7916/D8J966WH","DOIUrl":"https://doi.org/10.7916/D8J966WH","url":null,"abstract":"","PeriodicalId":362456,"journal":{"name":"Michigan Law Review, First Impressions","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122686217","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}