{"title":"Beyond Qualified Immunity","authors":"Fred O. Smith","doi":"10.36644/mlr.online.119.121.beyond","DOIUrl":"https://doi.org/10.36644/mlr.online.119.121.beyond","url":null,"abstract":"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.","PeriodicalId":393000,"journal":{"name":"Michigan Law Review Online","volume":"25 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":"114218086","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":"Gun Safety in the Age of Kavanaugh","authors":"Joseph S. Hartunian","doi":"10.36644/mlr.online.117.gun","DOIUrl":"https://doi.org/10.36644/mlr.online.117.gun","url":null,"abstract":"This Essay takes stock of the different approaches adopted and advocated for in evaluating constitutional challenges in Second Amendment opinions throughout the country. The author’s hope is that doing so will help highlight the contours for debate when the Supreme Court does finally start to define some of the limits purported to exist by Justice Scalia. Part I analyzes the paths explicitly rejected by Heller I by reviewing the limits considered allowable by Justice Scalia. Part II considers the ongoing debate between the courts on the application of “strict” or “intermediate” scrutiny for Second Amendment challenges. Part III examines then-Judge Kavanaugh’s Heller II opinion in comparison to the other options, and finally Part IV discusses the implications of Kavanaugh’s novel approach, particularly in light of the recent change in the Supreme Court’s Fourth Amendment jurisprudence and the Court’s grant of certiorari in New York State Rifle & Pistol Ass’n v. City of New York.","PeriodicalId":393000,"journal":{"name":"Michigan Law Review Online","volume":"28 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":"134043653","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":"Dismantling the Wall","authors":"C. Ellison, Anjum Gupta","doi":"10.36644/mlr.online.120.1.dismantling","DOIUrl":"https://doi.org/10.36644/mlr.online.120.1.dismantling","url":null,"abstract":"In this Essay, we will summarize the status quo of this crisis. We will highlight warning signs that began to appear even before the Trump Administration to understand how we reached this point. We will then propose solutions to chart a pathway forward, exploring strategies for implementing lasting reforms aimed at tearing down this administrative wall and replacing it with a more fair and welcoming system.","PeriodicalId":393000,"journal":{"name":"Michigan Law Review Online","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":"130514724","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":"The Sacred Fourth Amendment Text","authors":"C. Slobogin","doi":"10.36644/mlr.online.119.17.sacred","DOIUrl":"https://doi.org/10.36644/mlr.online.119.17.sacred","url":null,"abstract":"The Supreme Court’s jurisprudence governing the Fourth Amendment’s “threshold”—a word meant to refer to the types of police actions that trigger the amendment’s warrant and reasonableness requirements—has confounded scholars and students alike since Katz v. United States. Before that 1967 decision, the Court’s decisions on the topic were fairly straightforward, based primarily on whether the police trespassed on the target’s property or property over which the target had control. After that decision—which has come to stand for the proposition that a Fourth Amendment search occurs if police infringe an expectation of privacy that society is prepared to recognize as reasonable—scholars have attempted to define the Amendment’s threshold by reference to history, philosophy, linguistics, empirical surveys, and positive law. With the advent of technology that more easily records, aggregates, and accesses public activities and everyday transactions, the cacophony on the threshold issue has grown deafening—especially so after the Supreme Court’s decisions in United States v. Jones and Carpenter v. United States. In these decisions, the Court seemed to backtrack from its previously established notions that public travels and personal information held by third parties are not reasonably perceived as private and are therefore not protected by the Fourth Amendment.","PeriodicalId":393000,"journal":{"name":"Michigan Law Review Online","volume":"25 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":"123525765","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":"Is Groton the Next Evenwel?","authors":"P. Edelman","doi":"10.36644/mlr.online.117.groton","DOIUrl":"https://doi.org/10.36644/mlr.online.117.groton","url":null,"abstract":"In Evenwel v. Abbott the Supreme Court left open the question of whether states could employ population measures other than total population as a basis for drawing representative districts so as to meet the requirement of \"one person, one vote\" (OPOV). It was thought that there was little prospect of resolving this question soon as no appropriate instances of such behavior were known. That belief was mistaken. In this Essay I report on the Town of Groton, Connecticut, which uses registered voter data to apportion seats in its Representative Town Meeting and has done so since its incorporation in 1957. The resulting apportionment arguably meets the requirements of OPOV as applied to registered voter data but badly fails if total population is employed. Thus, it would make a good test case to resolve some of the open questions in Evenwel.","PeriodicalId":393000,"journal":{"name":"Michigan Law Review Online","volume":"234 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":"121422743","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":"Soundings and Silences","authors":"L. H. Tribe","doi":"10.36644/mlr.online.115.soundings","DOIUrl":"https://doi.org/10.36644/mlr.online.115.soundings","url":null,"abstract":"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 in the distinct but related projects of constitution-making and constitution-interpreting was underscored by an observation a law student of mine (Louis Fisher, J.D. 2016) once made about how he had been struck by the “presence of absence” in Berlin’s modern urban landscape. My student was moved by the way Berlin harnessed the “power of negative space in framing the public memory of World War II, from skeletal monuments outlining former churches to negative-space sculptures of murdered Jewish families.” I was born in Shanghai to Russian Jewish refugees, many of whose closest relatives had perished in the pogroms of Russia or had been silenced in the ultimate sense at the hands of the Nazis. That made this image of absence particularly vivid and meaningful to me. As I look back at where I came from and what I’ve done over the course of my professional life, it strikes me that attempting to organize and give structure to the study of legal silence has been a primary purpose of much of what I have written and taught over the past half-century. In recent years, I decided to focus more systematically on that attempt in an advanced seminar I have been teaching at Harvard Law School and, to a lesser degree, in courses I have taught as a University Professor to Harvard College undergraduates. This paper is an outgrowth of that effort—an outline of how I hope to pursue it in the years that remain, and how I hope others will pursue it as well.","PeriodicalId":393000,"journal":{"name":"Michigan Law Review Online","volume":"42 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":"114208714","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":"The Values of the Administrative State: A Reply to Seidenfeld","authors":"B. Emerson","doi":"10.36644/mlr.online.119.81.values","DOIUrl":"https://doi.org/10.36644/mlr.online.119.81.values","url":null,"abstract":"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.\u0000\u0000The 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 challenge the received wisdom about what that state is for and how it ought to operate. The Public’s Law argues that the legitimacy of the administrative state is not just a matter of technocratic expertise or finding a workable balance between interest groups. And it’s certainly not just a matter of carrying out the president’s will. Rather, the history of the administrative state shows how the people can use it to reconstruct society in the interest of freedom. I provide a short summary of my book’s historical findings and normative arguments before turning to Seidenfeld’s critique.","PeriodicalId":393000,"journal":{"name":"Michigan Law Review Online","volume":"179 3 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":"127313896","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}
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