{"title":"How Racism Persists in Its Power","authors":"Deborah Archer","doi":"10.36644/mlr.120.6.classic","DOIUrl":"https://doi.org/10.36644/mlr.120.6.classic","url":null,"abstract":"A Review of The Fire Next Time. By James Baldwin.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":"47 6","pages":"957"},"PeriodicalIF":2.7,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138507596","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":"Searching for Truth in the First Amendment's True Threat Doctrine","authors":"Renee Griffin","doi":"10.36644/mlr.120.4.searching","DOIUrl":"https://doi.org/10.36644/mlr.120.4.searching","url":null,"abstract":"Threats of violence, even when not actually carried out, can inflict real damage. As such, state and federal laws criminalize threats in a wide range of circumstances. But threats are also speech, and free speech is broadly protected by the First Amendment. The criminalization of threats is nonetheless possible because of Supreme Court precedents denying First Amendment protection to “true threats.” Yet a crucial question remains unanswered: What counts as a true threat? This Note examines courts’ attempts to answer this question and identifies the many ambiguities that have resulted from those attempts. In particular, this piece highlights three frontiers of judicial confusion that are likely to arise in a true threat case: (1) what type of intent the First Amendment requires, (2) the proper standard of review on appeals of true threat convictions, and (3) the contextual analyses in which courts engage to assess whether a threat is “true” (and, by extension, whether a threat conviction was constitutional). This third frontier is discussed most extensively, as it has the greatest impact on a case’s ultimate outcome. This Note also proposes a new framework for inquiries into the context of true threats, adapted from defamation law, in order to increase consistency and ensure adequate protection of speech rights within the chaotic true threat doctrine.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":"1 1","pages":""},"PeriodicalIF":2.7,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69683374","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":"Racial Trauma in Civil Rights Representation","authors":"Angela Onwuachi-Willig, A. Alfieri","doi":"10.36644/mlr.120.8.racial","DOIUrl":"https://doi.org/10.36644/mlr.120.8.racial","url":null,"abstract":"Narratives of trauma told by clients and communities of color have inspired an increasing number of civil rights and antiracist lawyers and academics to call for more trauma-informed training for law students and lawyers. These advocates have argued not only for greater trauma-sensitive practices and trauma-centered interventions on behalf of adversely impacted individuals and groups but also for greater awareness of the risks of secondary or vicarious trauma for lawyers who represent traumatized clients and communities. In this Article, we join this chorus of attorneys and academics. Harnessing the recent civil rights case of P.P. v. Compton Unified School District, we illustrate how trauma-informed lawyering can both advance civil rights and provide healing for affected communities and individuals. In so doing, we focus our analysis on the use of racial trauma evidence in the Compton school litigation specifically and in contemporary civil rights representation more generally. Building on our prior work on race, cultural trauma, and civil rights lawyering, we investigate the meaning of racial trauma for individual, group, and community clients and for their legal teams while detailing the importance of establishing a trauma-informed practice for today’s civil rights lawyers. This litigation-based investigation shows that sociolegal meaning is bound up in the struggle to accommodate community violence-centered racial trauma advocacy within traditional lawyering processes and legal ethics frameworks. Often overlooked, that ethical and professional struggle affects the form and substance of lawyer decisionmaking and discretion in civil rights cases.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":"1 1","pages":""},"PeriodicalIF":2.7,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69684305","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":"Racial Revisionism","authors":"Shaun Ossei-Owusu","doi":"10.36644/mlr.119.6.racial","DOIUrl":"https://doi.org/10.36644/mlr.119.6.racial","url":null,"abstract":"A Review of The Enigma of Clarence Thomas. by Corey Robin.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":"1 1","pages":""},"PeriodicalIF":2.7,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69682694","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":"Municipal Reparations: Considerations and Constitutionality","authors":"Brooke Simone","doi":"10.36644/mlr.120.2.municipal","DOIUrl":"https://doi.org/10.36644/mlr.120.2.municipal","url":null,"abstract":"Demands for racial justice are resounding, and in turn, various localities have considered issuing reparations to Black residents. Municipalities may be effective venues in the struggle for reparations, but they face a variety of questions when crafting legislation. This Note walks through key considerations using proposed and enacted reparations plans as examples. It then presents a hypothetical city resolution addressing Philadelphia’s discriminatory police practices. Next, it turns to a constitutional analysis of reparations policies under current Fourteenth Amendment jurisprudence, discussing both race-neutral and race-conscious plans. This Note argues that an antisubordination understanding of the Equal Protection Clause would better allow political branches to rectify vestiges of past discrimination and ongoing inequities through reparations plans such as the hypothetical Philadelphia City Council resolution. With these suggestions in mind, municipalities must boldly imagine and extend reparations to marginalized groups that have suffered harms. Similarly, the Court must reimagine its constitutional doctrine.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":"1 1","pages":""},"PeriodicalIF":2.7,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69682937","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":"Ranked-Choice Voting as Reprieve from the Court-Ordered Map","authors":"Benjamin R. Lempert","doi":"10.36644/mlr.119.8.ranked","DOIUrl":"https://doi.org/10.36644/mlr.119.8.ranked","url":null,"abstract":"Thus far, legal debates about the rise of ranked-choice voting have centered on whether legislatures can lawfully adopt the practice. This Note turns attention to the courts and the question of remedies. It proposes that courts impose ranked-choice voting as a redistricting remedy. Ranked-choice voting allows courts to cure redistricting violations without also requiring that they draw copious numbers of districts, a process the Supreme Court has described as a “political thicket.” By keeping courts away from the fact-specific, often arbitrary judgments involved in redistricting, ranked-choice voting makes for the redistricting remedy that best protects the integrity of the judicial role.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":"1 1","pages":""},"PeriodicalIF":2.7,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69683092","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":"Restorative Federal Criminal Procedure","authors":"Leo T. Sorokin, J. Stein","doi":"10.36644/MLR.119.6.RESTORATIVE","DOIUrl":"https://doi.org/10.36644/MLR.119.6.RESTORATIVE","url":null,"abstract":"A Review of Until We Reckon: Violence, Mass Incarceration, and a Road to Repair. by Danielle Sered.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":"119 1","pages":"1315-1344"},"PeriodicalIF":2.7,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69682749","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":"On Time, (In)equality, and Death","authors":"Fred O. Smith, Jr.","doi":"10.36644/mlr.120.2.time","DOIUrl":"https://doi.org/10.36644/mlr.120.2.time","url":null,"abstract":"In recent years, American institutions have inadvertently encountered the bodies of former slaves with increasing frequency. Pledges of respect are common features of these discoveries, accompanied by cultural debates about what “respect” means. Often embedded in these debates is an intuition that there is something special about respecting the dead bodies, burial sites, and images of victims of mass, systemic horrors. This Article employs legal doctrine, philosophical insights, and American history to both interrogate and anchor this intuition. Law can inform these debates because we regularly turn to legal settings to resolve disputes about the dead. Yet the passage of time, systemic dehumanization, and changing egalitarian norms all complicate efforts to apply traditional legal considerations to disputes about victims of subordination. While, for example, courts usually consult decedents’ expressed intentions to resolve disputes, how do we divine the wishes of people who died centuries ago, under a legal system designed to negate and dishonor their intentions? How do we honor relationships like kinship for people who were routinely and forcibly separated from their kin? And how do we assess the motives or culpability of institutions that, in prior generations, were complicit in profound horrors, but now pledge honor and respect? This Article offers a theory of time and equality to help guide cultural and legal debates about the treatment of dead victims of mass horror. On this account, we can become complicit in past, systemic subordination by dishonoring the memories of victims. Systemic neglect and exploitation of a group’s bodies and images can diminish the role of that group in shaping our national memory. And if it is wrong to deny a person the ability to leave a legacy on account of race under contemporary egalitarian norms, then we ought not engage in posthumous acts against the enslaved and other systemically debased persons that perpetually rob them of such a legacy.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":"1 1","pages":""},"PeriodicalIF":2.7,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69682992","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":"Affirmative Inaction: A Quantitative Analysis of Progress Toward “Critical Mass” in U.S. Legal Education","authors":"Loren Lee","doi":"10.36644/MLR.119.5.AFFIRMATIVE","DOIUrl":"https://doi.org/10.36644/MLR.119.5.AFFIRMATIVE","url":null,"abstract":"Since 1978, the Supreme Court has recognized diversity as a compelling government interest to uphold the use of affirmative action in higher education. Yet the constitutionality of the practice has been challenged many times. In Grutter v. Bollinger, for example, the Court denied its use in perpetuity and suggested a twenty-five-year time limit for its application in law school admissions. Almost two decades have passed, so where do we stand? This Note’s quantitative analysis of the matriculation of and degrees awarded to Black and Latinx students at twenty-nine accredited law schools across the United States illuminates a stark lack of progress toward critical mass since Grutter and reveals the continued need for affirmative action in law school admissions.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":"1 1","pages":"987"},"PeriodicalIF":2.7,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69681842","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":"Reviving Antitrust Enforcement in the Airline Industry","authors":"John W. Edelman","doi":"10.36644/mlr.120.2.reviving","DOIUrl":"https://doi.org/10.36644/mlr.120.2.reviving","url":null,"abstract":"The Department of Transportation (DOT) has broad but oft overlooked power to address antitrust issues among airlines through section 411 of the Federal Aviation Act. However, the DOT’s unwillingness to enforce antitrust more aggressively may be translating into higher fares and fees for airline travelers. More aggressive antitrust enforcement is urgently needed. Recent research has revealed a widespread practice of common ownership in the airline industry, whereby investment firms own large portions of rival airline companies. Although this practice leads to higher prices and reduced competition, antitrust regulators, from the DOT to the Department of Justice and the Federal Trade Commission, have declined to take action. This Note argues that the DOT has the clear legal authority—and the responsibility—under section 411 to address common ownership among airlines by promulgating a rule that limits investors’ ability to own large shares of multiple airlines. DOT regulation in this area could pave the way for more muscular antitrust regulation among industry-specific agencies.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":"1 1","pages":""},"PeriodicalIF":2.7,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69682978","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}
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