Michigan Law Review最新文献_第8页

Accommodating Absence: Medical Leave as an ADA Reasonable Accommodation 因故缺勤:病假作为ADA的合理安排

IF 2.7 2区社会学

Michigan Law Review Pub Date : 2020-06-01 DOI: 10.36644/mlr.118.8.accommodating

S. Mulloy

引用次数: 0

Natural Language Processing for Lawyers and Judges 律师和法官的自然语言处理

IF 2.7 2区社会学

Michigan Law Review Pub Date : 2020-05-13 DOI: 10.2139/ssrn.3564966

F. Fagan

引用次数: 5

The Misplaced Trust in the DOJ's Expertise on Criminal Justice Policy 对司法部刑事司法政策专业知识的错误信任

IF 2.7 2区社会学

Michigan Law Review Pub Date : 2020-04-01 DOI: 10.36644/mlr.118.6.misplaced

Shon Hopwood

{"title":"The Misplaced Trust in the DOJ's Expertise on Criminal Justice Policy","authors":"Shon Hopwood","doi":"10.36644/mlr.118.6.misplaced","DOIUrl":"https://doi.org/10.36644/mlr.118.6.misplaced","url":null,"abstract":"In this Review of Professor Rachel Barkow's new book, Prisoners of Politics: Breaking the Cycle of Mass Incarceration, I address Professor Barkow’s point about law enforcement resisting criminal justice reforms. I place particular emphasis on the Department of Justice’s (DOJ) and the National Association of Assistant U.S. Attorneys’ (NAAUSA) opposition to nearly any federal criminal justice reform. Federal prosecutors often claim that they just enforce the law—no more, no less. But their actions show the contrary. Through presidential administrations of both parties, the DOJ and the NAAUSA have affirmatively opposed most federal criminal justice reforms on issues involving sentencing, corrections, and clemency. Oftentimes they weigh in on issues for which their prosecutors have no expertise. Even worse, they have thwarted the goals of the very presidents they serve, especially if the president sets out to reform the system in ways that infringe on the DOJ’s prerogatives. If their opposition to reform were rooted in public safety or fairness, that would be one thing. But through their lobbying efforts, they often advocate for policies that make it easier for federal prosecutors to charge and incarcerate people—as if that is the only worthy goal of the federal criminal justice system. And all too often federal policymakers—whether members of Congress, the White House, or the U.S. Sentencing Commission—have listened. As a result, there are now nearly 4,450 federal statutes and hundreds of thousands of federal regulations carrying criminal penalties, excessively punitive federal sentences, and a federal prison population that has increased by 618 percent since 1980.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":"118 1","pages":"1181-1204"},"PeriodicalIF":2.7,"publicationDate":"2020-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47874165","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}

引用次数: 4

Tax Policy and Our Democracy 税收政策与我们的民主

IF 2.7 2区社会学

Michigan Law Review Pub Date : 2020-04-01 DOI: 10.36644/mlr.118.6.tax

Clint Wallace

引用次数: 0

Equality's Understudies 平等的研究

IF 2.7 2区社会学

Michigan Law Review Pub Date : 2020-04-01 DOI: 10.36644/MLR.118.6.EQUALITY

Aziz Z Huq

引用次数: 0

Ordinary People and the Rationalization of Wrongdoing 普通人与不法行为的合理化

IF 2.7 2区社会学

Michigan Law Review Pub Date : 2020-02-29 DOI: 10.36644/MLR.118.6.ORDINARY

Janice Nadler

{"title":"Ordinary People and the Rationalization of Wrongdoing","authors":"Janice Nadler","doi":"10.36644/MLR.118.6.ORDINARY","DOIUrl":"https://doi.org/10.36644/MLR.118.6.ORDINARY","url":null,"abstract":"In March 2019, over fifty people were criminally charged with participating in a scheme to gain fraudulent student admissions to various U.S. universities. How did these individuals end up engaging in plainly nefarious felony criminal offenses? Some of the perpetrators were likely fully aware of both the criminal and unethical nature of their behavior. But others seem to have convinced themselves that their behavior was acceptable because this is how the “system” works. In his book \"The Law of Good People,\" Yuval Feldman argues that people’s limited awareness of the unethical nature of their behavior requires redesigning legal rules to anticipate this aspect of human psychology. Feldman’s bottom line is that because people are often unaware of the moral meaning of their behavior, law must focus on identifying and regulating that behavior before the fact, rather than punishing it afterwards. This review explores an important category of wrongdoing for which the traditional regulatory approach of threats of punishment ex-post might in many cases be suboptimal: corruption. This category provides examples of settings where actors are difficult to deter within standard enforcement frameworks because their motivations are complex. Building on my earlier work on expressive law and social norms, I develop an alternative conception of compliance achieved by supplementing threatened sanctions with leveraging the expressive power of law to decrease the likelihood that people will deceive themselves about the social and ethical meaning of their behavior. Theories of expressive law posit that law can influence behavior through means that go beyond the legal sanctions threatened for violation. I will specifically focus on informational expressive law: the idea that the state can deploy law to provide information, which can in turn change individual beliefs and social norms, which in turn can shape behavior. By leveraging the informational function of expressive law, the state can identify situations in which individuals are likely to fail to fully appreciate the meaning of their behavior. Identifying and sorting “good people,” I argue, is less important than identifying situations and structures that are amenable to legal interventions that leverage social norms.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":"118 1","pages":"1205-1232"},"PeriodicalIF":2.7,"publicationDate":"2020-02-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45265841","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}

引用次数: 1

Symmetry's Mandate: Constraining the Politicization of American Administrative Law 对称的使命:制约美国行政法的政治化

IF 2.7 2区社会学

Michigan Law Review Pub Date : 2020-02-17 DOI: 10.36644/MLR.119.3.SYMMETRY

Daniel E. Walters

{"title":"Symmetry's Mandate: Constraining the Politicization of American Administrative Law","authors":"Daniel E. Walters","doi":"10.36644/MLR.119.3.SYMMETRY","DOIUrl":"https://doi.org/10.36644/MLR.119.3.SYMMETRY","url":null,"abstract":"Recent years have seen the rise of pointed and influential critiques of deference doctrines in administrative law. What many of these critiques have in common is a view that judges, not agencies, should resolve interpretive disputes over the meaning of statutes—disputes the critics take to be purely legal and almost always resolvable using lawyerly tools of statutory construction. In this article, I take these critiques, and the relatively formalist assumptions behind them, seriously and show that the critics have not acknowledged or advocated the full reform vision implied by their theoretical premises. Specifically, critics have extended their critique of judicial abdication only to what I call Type I statutory errors (that is, agency interpretations that regulate more conduct than the best reading of the statute would allow the agency to regulate) and do not appear to accept or anticipate that their theory of interpretation would also extend to what I call Type II statutory errors (that is, agency failures to regulate as much conduct as the best reading of the statute would require). As a consequence, critics have been more than willing to entertain an end to Chevron deference, an administrative law doctrine which is mostly invoked to justify Type I error, but have not shown any interest in adjusting administrative law doctrine to remedy agencies’ commission of Type II error. The result is a vision of administrative law’s future that is precariously slanted against legislative and regulatory action. \u0000 \u0000I critique this asymmetry in administrative law and address potential justifications of systemic asymmetries in the doctrine, such as concern about the remedial implications of addressing Type II error, finding them all wanting from a legal and theoretical perspective. I also lay out the positive case for adhering to symmetry in administrative law doctrine. In a time of deep political conflict over regulation and administration, symmetry plays, or at the very least could play, an important role in de-politicizing administrative law, clarifying what is at stake in debates about the proper level of deference to agency legal interpretations, and disciplining partisan gamesmanship. I suggest that when the conversation is so disciplined, an administrative law without deference to both Type I and Type II error is hard to imagine due to the high judicial costs of minimizing Type II error, but if we collectively choose to discard deference notwithstanding these costs, it would be a more sustainable political choice for administrative law than embracing the current, one-sided critique of deference.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":"1 1","pages":"455"},"PeriodicalIF":2.7,"publicationDate":"2020-02-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42734928","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}

引用次数: 1

The Municipal Pardon Power 市政赦免权

IF 2.7 2区社会学

Michigan Law Review Pub Date : 2020-02-01 DOI: 10.36644/mlr.118.4.municipal

Hayato Watanabe

引用次数: 0

Structural Labor Rights 结构性劳工权利

IF 2.7 2区社会学

Michigan Law Review Pub Date : 2020-01-09 DOI: 10.36644/MLR.119.4.STRUCTURAL

Hiba Hafiz

{"title":"Structural Labor Rights","authors":"Hiba Hafiz","doi":"10.36644/MLR.119.4.STRUCTURAL","DOIUrl":"https://doi.org/10.36644/MLR.119.4.STRUCTURAL","url":null,"abstract":"American labor law was designed to ensure equal bargaining power between workers and employers. But workers’ collective power against increasingly dominant employers has disintegrated. With union density at an abysmal 6.2 percent in the private sector—a level unequaled since the Great Depression— the vast majority of workers depend only on individual negotiations with employers to lift stagnant wages and ensure upward economic mobility. But decentralized, individual bargaining is not enough. Economists and legal scholars increasingly agree that, absent regulation to protect workers’ collective rights, labor markets naturally strengthen employers’ bargaining power over workers. Existing labor and antitrust law have failed to step in, leaving employers free to coordinate and consolidate labor-market power while constraining workers’ ability to do the same. The dissolution of workers’ collective rights has resulted in spiking income inequality: workers have suffered economy-wide wage stagnation and a declining share of the national income for decades. To resolve this crisis, some scholars have advocated for ambitious labor law reforms, like sector-wide bargaining, while others have turned to antitrust law to tackle employer power. While these proposals are vital, they overlook an existing opportunity already contained in the labor law that would avoid the political and doctrinal obstacles to such large-scale reforms.\u0000\u0000This Article argues for a “structural” approach to the labor law that revives and modernizes its equal bargaining power purpose through deploying innovative social scientific analysis. A “structural” approach is one that takes into account workers’ bargaining power relative to employers in determining the scope of substantive labor rights and in resolving disputes. Because employers’ current buyer power strengthens their ability to indefinitely hold out on worker demands in the employment bargain, the “structural” approach seeks to deploy social scientific tools to tailor the labor law’s provisions so that they resituate workers to a bargaining position from which they could equally hold out.\u0000\u0000This Article makes three key contributions. First, it documents the dispersion and misalignment of workers’ collective rights under current labor law, detailing the historical narrowing of workers’ collective rights to limited tactics by a small set of workers against highly protected individual enterprises and the concomitant rise of employer power (Part I). Second, it introduces and schematizes the wealth of social scientific literature relevant for evaluating the relative bargaining power of employers and employees (Part II). And finally, it offers concrete proposals for how to apply these social scientific tools and insights to three areas of the National Labor Relation Board’s adjudication and regulatory authority: the determination of “employer”/”employee” status, the determination of employees’ substantive rights under section 7 of the Nat","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":" ","pages":""},"PeriodicalIF":2.7,"publicationDate":"2020-01-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47845718","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}

引用次数: 1

Translating the Constitution 翻译宪法

IF 2.7 2区社会学

Michigan Law Review Pub Date : 2020-01-01 DOI: 10.36644/MLR.118.6.TRANSLATING

J. Balkin

{"title":"Translating the Constitution","authors":"J. Balkin","doi":"10.36644/MLR.118.6.TRANSLATING","DOIUrl":"https://doi.org/10.36644/MLR.118.6.TRANSLATING","url":null,"abstract":"Lawrence Lessig's recent book, Fidelity and Constraint: How the Supreme Court Has Read the American Constitution (Oxford University Press, 2019), restates and expands his important and influential theory of interpretive fidelity as translation. This book review is in three parts. Part One explains why, although Lessig's theory is based on fidelity to original meaning, his originalism is unlike most contemporary versions. Indeed, despite his metaphor of translation, Lessig is not really a textualist at all. Unlike most contemporary originalists, he pays relatively little attention to parsing the words of constitutional text, or to their history. Instead, he is a purposivist and structuralist, who argues that fidelity to purpose and structure in changed contexts may sometimes justify departing from the text or adding things to the text. Part Two examines Lessig’s use of the concept of social meaning to explain and justify many of the Supreme Court’s most famous liberal decisions, including Brown v. Board of Education, the sex equality cases, the reproductive rights cases, and the gay rights cases. Lessig's concept of \"social meaning\" actually refers to changes in elite consensus among the relatively small groups of elites who form the audience for Supreme Court Justices. Lessig's arguments are an imaginative restatement of the American Legal Process tradition, but using a different vocabulary. In an age of polarized elites like today, however, Lessig's social meaning account threatens to break down, as Lessig himself recognizes. Part Three considers whether a purely internalist theory of constitutional change like Lessig’s is adequate to explain the growth and development of the American Constitution. It argues that Lessig’s account of change relies too much on how the world looks to the Justices, rather than on how the world actually changes; it also relies too much on winner's history. His account could be made stronger by focusing on the role of political parties, social movements, and state-building in constitutional change; and the long-term construction of judicial review by the political branches. The result would no longer be purely internalist. But it might be a more powerful account of the complicated processes of constitutional change.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":"118 1","pages":"977-1004"},"PeriodicalIF":2.7,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69680967","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}

引用次数: 0