Michigan Law Review最新文献

{"title":"Revisiting the “Tradition of Local Control” in Public Education","authors":"Carter Brace","doi":"10.36644/mlr.122.1.revisiting","DOIUrl":"https://doi.org/10.36644/mlr.122.1.revisiting","url":null,"abstract":"In Milliken v. Bradley, the Supreme Court declared “local control” the single most important tradition of public education. Milliken and other related cases developed this notion of a tradition, which has frustrated attempts to achieve equitable school funding and desegregation through federal courts. However, despite its significant impact on American education, most scholars have treated the “tradition of local control” as doctrinally insignificant. These scholars depict the tradition either as a policy preference with no formal legal meaning or as one principle among many that courts may use to determine equitable remedies. This Note argues that the Supreme Court conceived of the tradition not merely as good policy or remedial law but as a principle that was supported by multiple freestanding constitutional provisions. It shows how the policy and remedial law explanations for the tradition do not fully explain the Court’s reasoning. It then demonstrates that the Court located the tradition in the federal Constitution’s guarantees of substantive due process, the right to vote, federalism, and the separation of powers.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135560280","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Oligarchic Courthouse: Jurisdiction, Corporate Power, and Democratic Decline","authors":"Helen Hershkoff, Luke Norris","doi":"10.36644/mlr.122.1.oligarchic","DOIUrl":"https://doi.org/10.36644/mlr.122.1.oligarchic","url":null,"abstract":"Jurisdiction is foundational to the exercise of judicial power. It is precisely for this reason that subject matter jurisdiction, the species of judicial power that gives a court authority to resolve a dispute, has today come to the center of a struggle between corporate litigants and the regulatory state. In a pronounced trend, corporations are using jurisdictional maneuvers to manipulate forum choice. Along the way, they are wearing out less-resourced parties, circumventing hearings on the merits, and insulating themselves from laws that seek to govern their behavior. Corporations have done so by making creative arguments to lock plaintiffs out of court and push them into arbitration, and failing that, to lock plaintiffs into federal court rather than state court, or to punt federal cases to administrative agencies that may lack the power or will to resolve the underlying issues in the case. These efforts have largely been successful. This Article offers a panoramic view of how over recent decades federal courts have acquiesced in a corporate-driven effort to leverage jurisdictional doctrines to their unique private advantage, and contends that together, these doctrinal changes constitute an inflection point in U.S. law and procedure. We argue that corporate adjudicatory practice has slanted judicial power in favor of deregulatory efforts that undermine legal commitments to equality, dignity, and participation. The shifts in jurisdiction, which may seem to be merely technical and apolitical, are a core part of the architecture of what we call the oligarchic courthouse—one where courts as public institutions transform their procedures to meet private, corporate interests at the expense of public goals, thereby cementing economic power and translating it into concentrated political power that undermines the possibility of robust democratic life. The trends we describe in federal subject matter jurisdiction resonate with earlier corporate battles at the turn of the twentieth century. But the construction of today’s oligarchic courthouse holds implications for democracy that are not simply a reprise of earlier corporate efforts. To show the scope of the implications, the Article steps back and clarifies why jurisdiction matters to democracy. Drawing on law and social mobilization literature, we argue that jurisdiction functions as a political resource that facilitates opportunities for democratic contestation and both reflects and shapes the openness and closedness of the state. Having centered jurisdiction in a larger account of democracy, we explore how the oligarchic courthouse, by entrenching economic power and narrowing participatory options for workers, consumers, and other less-resourced litigants, can be nested in a larger account of democratic decline in the United States.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135560292","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Mooting Unilateral Mootness","authors":"Scott MacGuidwin","doi":"10.36644/mlr.121.4.mooting","DOIUrl":"https://doi.org/10.36644/mlr.121.4.mooting","url":null,"abstract":"Several situations cause a case to be moot. These include settlement agreements, party collusion, changes in litigant status, and extrinsic circumstances thwarting the court from granting any relief. The final reason is unilateral mootness—when a defendant ends a lawsuit against a plaintiff’s wishes by giving them everything for which they ask. In practice, this allows defendants to strategically stop lawsuits when it is clear they are not going to win. By doing so, they prevent the court from handing down adverse precedent and preserve the opportunity to engage in similar behavior with impunity. Courts have established a series of mootness exceptions to limit such gamesmanship. These exceptions are based on vague standards, which do little to guide judges making mootness decisions. The result is that some cases are heard on the merits, while other, nearly identical ones are dismissed. Unilateral mootness fails as a prudential doctrine. It struggles to limit disparate outcomes, prevent defendant gamesmanship, or save judicial resources, and alternative solutions do not fully address these three problems. This Note argues that the best recourse is to scrap unilateral mootness completely. Barring a settlement, collusion, or impossibility of relief, judges should never dismiss a case as moot.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":"1 1","pages":""},"PeriodicalIF":2.7,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69686106","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Disabling Lawyering: Buck v. Bell and the Road to a More Inclusive Legal Practice","authors":"Jacob Abudaram","doi":"10.36644/mlr.121.6.disabling","DOIUrl":"https://doi.org/10.36644/mlr.121.6.disabling","url":null,"abstract":"A Review of Demystifying Disability: What to Know, What to Say, and How to Be and Ally. By Emily Ladau and Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell By Paul A. Lombardo.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":"1 1","pages":""},"PeriodicalIF":2.7,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69686405","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Error Aversions and Due Process","authors":"Brandon L. Garrett, G. Mitchell","doi":"10.36644/mlr.121.5.error","DOIUrl":"https://doi.org/10.36644/mlr.121.5.error","url":null,"abstract":"William Blackstone famously expressed the view that convicting the innocent constitutes a much more serious error than acquitting the guilty. This view is the cornerstone of due process protections for those accused of crimes, giving rise to the presumption of innocence and the high burden of proof required for criminal convictions. While most legal elites share Blackstone’s view, the citizen jurors tasked with making due process protections a reality do not share the law’s preference for false acquittals over false convictions. Across multiple national surveys sampling more than 12,000 people, we find that a majority of Americans consider false acquittals and false convictions to be errors of equal magnitude. Contrary to Blackstone, most people are unwilling to err on the side of letting the guilty go free to avoid convicting the innocent. Indeed, a sizeable minority view false acquittals as worse than false convictions; this group is willing to convict multiple innocent persons to avoid letting one guilty person go free. These value differences translate into behavioral differences: we show in multiple studies that jury-eligible adults who reject Blackstone’s view are more accepting of prosecution evidence and are more conviction-prone than the minority of potential jurors who agree with Blackstone. These findings have important implications for our understanding of due process and criminal justice policy. Due process currently depends on jurors faithfully following instructions on the burden of proof, but many jurors are not inclined to hold the state to its high burden. Courts should do away with the fiction that the reasonable doubt standard guarantees due process and consider protections that do not depend on jurors honoring the law’s preference for false acquittals, such as more stringent pretrial screening of criminal cases and stricter limits on prosecution evidence. Further, the fact that many people place crime control on par with, or above, the need to avoid wrongful convictions helps explain divisions in public opinion on important policy questions like bail and sentencing reform. Criminal justice proposals that emphasize deontic concerns without addressing consequentialist concerns are unlikely to garner widespread support.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":"1 1","pages":""},"PeriodicalIF":2.7,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69686510","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Justice Without Power: Yemen and The Global Legal System","authors":"Amulya Vadapalli","doi":"10.36644/mlr.121.5.justice","DOIUrl":"https://doi.org/10.36644/mlr.121.5.justice","url":null,"abstract":"The war in Yemen has remained the world’s worst humanitarian crisis since 2015, and yet it is shockingly invisible. The global legal system fails to offer a clear avenue through which the Yemeni people can hold the state actors responsible for their harm accountable. This Note analyzes international legal mechanisms for vindicating war crimes and human rights abuses perpetrated in Yemen. Through the lens of Yemen’s humanitarian crisis, it highlights gaps in the global legal structure, proposes alternative accountability processes, and uses a variety of sources—including interviews with practitioners and Arabic language legal scholarship—to explicate a victim-centered transitional justice process for the Yemeni people.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":"1 1","pages":""},"PeriodicalIF":2.7,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69686635","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Status Manipulation in Chae Chan Ping v. United States","authors":"Sam Erman","doi":"10.36644/mlr.121.6.status","DOIUrl":"https://doi.org/10.36644/mlr.121.6.status","url":null,"abstract":"A Review of Chae Chan Ping v. United States. By Rose Cuison-Villazor in Critical Race Judgments: Rewritten U.S. Court Opinions on Race and the Law 74, 84. Edited by Bennett Capers, Devon W. Carbado, R.A. Lenhardt and Angela Onwuachi-Willig.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":"1 1","pages":""},"PeriodicalIF":2.7,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69687436","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Pocket Police: The Plain Feel Doctrine Thirty Years Later","authors":"Kelly Recker","doi":"10.36644/mlr.121.5.pocket","DOIUrl":"https://doi.org/10.36644/mlr.121.5.pocket","url":null,"abstract":"The idea that a police officer can park in a low-income neighborhood, pull someone over because of their race, frisk everyone in the car, let them go if their pockets are empty, and do the whole thing over and over again until the officer finds something illegal seems deeply upsetting and violative, to say the least. And yet, pretextual traffic stops are constitutional per a unanimous Supreme Court in Whren v. United States, 517 U.S. 806 (1996), as is seizing obvious contraband during a frisk per Minnesota v. Dickerson, 508 U.S. 366 (1993). In the thirty years since these cases were decided, their disproportionate impact on minority communities has become clear, and yet courts have struggled to place meaningful limits on officer discretion. Amid the growing national conversation on police practices, this Note analyzes the role of Dickerson’s plain feel doctrine, which permits an officer to seize contraband during a frisk so long as the illicit nature of the item is immediately apparent upon “plain feel.” First, it reviews the doctrine as it was established in Dickerson and traces its roots to understand the rationale behind the ruling. Second, it identifies the key factors state and federal courts consider when applying Dickerson and demonstrates that courts presented with similar facts routinely come to conflicting conclusions. Third, this Note assesses the ways modern plain feel doctrine is in tension with core Fourth Amendment principles and argues that, in the thirty years since Dickerson, it has quietly become an ever-broadening loophole enabling the ongoing targeting of minority populations. As calls to address inequitable policing grow louder, the plain feel doctrine is a crucial site for reform.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":"1 1","pages":""},"PeriodicalIF":2.7,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69686581","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Mothers in Law","authors":"Melissa E. Murray","doi":"10.36644/mlr.121.6.mothers","DOIUrl":"https://doi.org/10.36644/mlr.121.6.mothers","url":null,"abstract":"A Review of Civil Rights Queen: Constance Baker Motley and the Struggle for Equality. By Tomiko Brown-Nagin.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":"1 1","pages":""},"PeriodicalIF":2.7,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69687818","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Heeding the Voices of Migrant Youth: The Need for Action","authors":"R. Mandelbaum","doi":"10.36644/mlr.121.6.heeding","DOIUrl":"https://doi.org/10.36644/mlr.121.6.heeding","url":null,"abstract":"A Review of Unaccompanied: The Plight of Immigrant Youth at the Border. By Emily Ruehs-Navarro.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":"1 1","pages":""},"PeriodicalIF":2.7,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69687007","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}