Pub Date : 2022-01-01DOI: 10.36644/mlr.121.3.territoriality
E. Kaufman
It is a bedrock principle of American criminal law that the authority to try and punish someone for a crime arises from the crime’s connection to a particular place. Thus, we assume that a person who commits a crime in some location— say, Philadelphia—can be arrested by Philadelphia police for conduct deemed criminal by the Pennsylvania legislature, prosecuted in a Philadelphia court, and punished in a Pennsylvania prison. The idea that criminal law is tied to geography in this way is called the territoriality principle. This idea is so familiar that it usually goes unstated. This Article foregrounds and questions the territoriality principle. Drawing on a broad and eclectic set of sources, it argues that domestic criminal law is less territorial than conventional wisdom holds. Although the territoriality principle is central to criminal law ideology, territorialism is a norm in decline. In reality, over the past century, new doctrines and enforcement practices have unmoored criminal law from geographic boundaries. The result is a criminal legal system in which borders are negotiable and honored in the breach. Scholars have largely overlooked the deterritorialization of domestic criminal law, but the decline of the territoriality principle has striking implications. It undermines constitutional doctrines and academic theories built on the classic account of criminal law. It upsets foundational conceptual distinctions that structure public law. And it raises normative questions about just how far criminal laws should reach. This Article grapples with those questions and argues that borders are an underenforced constraint on the police power.
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Pub Date : 2022-01-01DOI: 10.36644/mlr.120.6.abolition
Jamelia Morgan
A Review of We Do This ’Til We Free Us. By Mariame Kaba.
回顾《我们在获得自由之前一直这样做》作者:Mariame Kaba。
{"title":"Responding to Abolition Anxieties: A Roadmap for Legal Analysis","authors":"Jamelia Morgan","doi":"10.36644/mlr.120.6.abolition","DOIUrl":"https://doi.org/10.36644/mlr.120.6.abolition","url":null,"abstract":"A Review of We Do This ’Til We Free Us. By Mariame Kaba.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138507592","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}
Pub Date : 2022-01-01DOI: 10.36644/mlr.120.6.intro
Brooke Simone,Aditya Vedapudi
A Review of Free Justice: A History of the Public Defender in Twentieth-Century America. By Sara Mayeux.
自由正义的回顾:二十世纪美国公设辩护人的历史。萨拉·梅耶斯著。
{"title":"Introduction: Two Perspectives on Sara Mayeux’s Free Justice","authors":"Brooke Simone,Aditya Vedapudi","doi":"10.36644/mlr.120.6.intro","DOIUrl":"https://doi.org/10.36644/mlr.120.6.intro","url":null,"abstract":"A Review of Free Justice: A History of the Public Defender in Twentieth-Century America. By Sara Mayeux.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138507595","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}
Pub Date : 2022-01-01DOI: 10.36644/mlr.120.6.shining
A. Dickerson
A Review of The Whiteness of Wealth: How the Tax System Impoverishes Black Americans—and How We Can Fix It . By Dorothy A. Brown.
《财富的白人化:税收制度如何使美国黑人陷入贫困——我们如何解决这个问题》书评。多萝西·a·布朗著。
{"title":"Shining a Bright Light on the Color of Wealth","authors":"A. Dickerson","doi":"10.36644/mlr.120.6.shining","DOIUrl":"https://doi.org/10.36644/mlr.120.6.shining","url":null,"abstract":"A Review of The Whiteness of Wealth: How the Tax System Impoverishes Black Americans—and How We Can Fix It . By Dorothy A. Brown.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138507618","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}
Pub Date : 2022-01-01DOI: 10.36644/mlr.120.7.imaginary
N. Bowie, Norah Rast
The political convulsions of the past decade have fueled acute interest in constitutional For the past century, the Supreme Court has skeptically scrutinized Congress’s power to enact healthcare laws and other domestic legislation, insisting that nothing in the Constitution gives Congress a general power to “regulate an individual from cradle to grave.” Yet when Congress regulates immigrants, the Court has contradictorily assumed that Congress has “broad, undoubted power” to do whatever it thinks necessary—even though no clause of the Constitution gives Congress any specific immigration power. The Court has explained this discrepancy with reference to the Chinese Exclusion Case, an 1889 decision in which it allegedly held that Congress possesses “sovereign” power to regulate immigrants beyond Congress’s ordinary enumerated powers. Absent this imagined Immigration Clause, the Court has offered no explanation for its anomalous review of Congress’s immigration laws. This Article contests this traditional reading of the Chinese Exclusion Case as well as the consequences that have followed from it. Throughout the first century of congressional and judicial resistance to Congress’s power to regulate immigration, there was a broad consensus that Congress had no freestanding power to regulate immigrants beyond its ordinary powers to regulate everyone else. Far from disrupting this consensus, the author of the Chinese Exclusion Case adhered to it before, during, and after his opinion. It was not until the mid-twentieth century that the Supreme Court retroactively misread the Chinese Exclusion Case to authorize an extraconstitutional federal immigration power. Yet these misreadings have never explained why the Court invalidates ordinary domestic legislation even as it defers to federal immigration laws. In contrast with scholars and immigration advocates who have sought to apply the Court’s ordinarily skeptical scrutiny to the immigration context, we argue that this history highlights the flaws of relying on judicial review to protect disenfranchised minorities from a hostile and overzealous Congress. This review has functioned to muffle the serious legislative debate that animated the resistance to the first century of federal immigration restrictions. Rather than ask the courts to limit federal immigration laws just as they limit federal healthcare laws, we therefore argue that Congress itself should rethink whether Article I permits the expanse of its immigration laws in effect today.
{"title":"The Imaginary Immigration Clause","authors":"N. Bowie, Norah Rast","doi":"10.36644/mlr.120.7.imaginary","DOIUrl":"https://doi.org/10.36644/mlr.120.7.imaginary","url":null,"abstract":"The political convulsions of the past decade have fueled acute interest in constitutional For the past century, the Supreme Court has skeptically scrutinized Congress’s power to enact healthcare laws and other domestic legislation, insisting that nothing in the Constitution gives Congress a general power to “regulate an individual from cradle to grave.” Yet when Congress regulates immigrants, the Court has contradictorily assumed that Congress has “broad, undoubted power” to do whatever it thinks necessary—even though no clause of the Constitution gives Congress any specific immigration power. The Court has explained this discrepancy with reference to the Chinese Exclusion Case, an 1889 decision in which it allegedly held that Congress possesses “sovereign” power to regulate immigrants beyond Congress’s ordinary enumerated powers. Absent this imagined Immigration Clause, the Court has offered no explanation for its anomalous review of Congress’s immigration laws. This Article contests this traditional reading of the Chinese Exclusion Case as well as the consequences that have followed from it. Throughout the first century of congressional and judicial resistance to Congress’s power to regulate immigration, there was a broad consensus that Congress had no freestanding power to regulate immigrants beyond its ordinary powers to regulate everyone else. Far from disrupting this consensus, the author of the Chinese Exclusion Case adhered to it before, during, and after his opinion. It was not until the mid-twentieth century that the Supreme Court retroactively misread the Chinese Exclusion Case to authorize an extraconstitutional federal immigration power. Yet these misreadings have never explained why the Court invalidates ordinary domestic legislation even as it defers to federal immigration laws. In contrast with scholars and immigration advocates who have sought to apply the Court’s ordinarily skeptical scrutiny to the immigration context, we argue that this history highlights the flaws of relying on judicial review to protect disenfranchised minorities from a hostile and overzealous Congress. This review has functioned to muffle the serious legislative debate that animated the resistance to the first century of federal immigration restrictions. Rather than ask the courts to limit federal immigration laws just as they limit federal healthcare laws, we therefore argue that Congress itself should rethink whether Article I permits the expanse of its immigration laws in effect today.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69683491","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}
Pub Date : 2022-01-01DOI: 10.36644/mlr.121.1.disparate
Leah M. Litman
This Article explains and analyzes a recent trend in the Supreme Court’s cases regarding unintentional discrimination, where the argument is that a law has the effect of producing a disadvantage on members of a particular group. In religious discrimination cases, the Court has held that a law is presumptively unconstitutional if the law results in a comparable secular activity being treated more favorably than religious activity. Yet in racial discrimination cases, the Court has said the mere fact that a law more severely disadvantages racial minorities as a group does not suffice to establish unlawful discrimination. The two tracks for unintentional discrimination claims can be understood through the lens of political process theory. One part of political process theory maintains that courts should be skeptical of laws that negatively affect discrete and insular minorities who may be politically powerless and face prejudice. One reason the Court more carefully scrutinizes laws that burden conservative, (often) Christian religious groups may be that the Court views those groups as socially powerless because their views no longer command majority support and because their views are not treated with the respect the Court thinks they deserve. And the Court’s decisions have the effect of redistributing power to or reinforcing power in the groups the Court believes to be socially powerless. Identifying the jurisprudential worldview that may plausibly drive these trends helps to identify the potential implications and assess the merits of the new doctrinal approach that the Court has taken in (some) antidiscrimination cases. The Court’s new approach to religious discrimination claims has some virtues; in particular, the Court is probably right to consider facts from the private sphere, such as a group’s economic or social power, in deciding the appropriate scope of judicial review. But the selectivity with which the Court has applied this approach, as well as the Court’s odd assessments of various groups’ power, has resulted in a problematic jurisprudence of conservative victimization that judicially protects backlash against advances in equality and antidiscrimination law.
{"title":"Disparate Discrimination","authors":"Leah M. Litman","doi":"10.36644/mlr.121.1.disparate","DOIUrl":"https://doi.org/10.36644/mlr.121.1.disparate","url":null,"abstract":"This Article explains and analyzes a recent trend in the Supreme Court’s cases regarding unintentional discrimination, where the argument is that a law has the effect of producing a disadvantage on members of a particular group. In religious discrimination cases, the Court has held that a law is presumptively unconstitutional if the law results in a comparable secular activity being treated more favorably than religious activity. Yet in racial discrimination cases, the Court has said the mere fact that a law more severely disadvantages racial minorities as a group does not suffice to establish unlawful discrimination. The two tracks for unintentional discrimination claims can be understood through the lens of political process theory. One part of political process theory maintains that courts should be skeptical of laws that negatively affect discrete and insular minorities who may be politically powerless and face prejudice. One reason the Court more carefully scrutinizes laws that burden conservative, (often) Christian religious groups may be that the Court views those groups as socially powerless because their views no longer command majority support and because their views are not treated with the respect the Court thinks they deserve. And the Court’s decisions have the effect of redistributing power to or reinforcing power in the groups the Court believes to be socially powerless. Identifying the jurisprudential worldview that may plausibly drive these trends helps to identify the potential implications and assess the merits of the new doctrinal approach that the Court has taken in (some) antidiscrimination cases. The Court’s new approach to religious discrimination claims has some virtues; in particular, the Court is probably right to consider facts from the private sphere, such as a group’s economic or social power, in deciding the appropriate scope of judicial review. But the selectivity with which the Court has applied this approach, as well as the Court’s odd assessments of various groups’ power, has resulted in a problematic jurisprudence of conservative victimization that judicially protects backlash against advances in equality and antidiscrimination law.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69683923","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}
Pub Date : 2022-01-01DOI: 10.36644/mlr.121.2.third-party
Gabe Chess
Courts have widely adopted a heightened standard for recognizing third-party beneficiaries of government contracts. But the justifications offered for the heightened standard do not withstand scrutiny. Instead, courts should apply a series of equitable factors to produce results consistent with the concern for “manifest justice” that animates third-party beneficiary doctrine. Governments make contracts frequently, often to address issues of huge importance to their citizens, including housing, economic development, and healthcare. In each of these areas, third-party beneficiary doctrine may be an important avenue of relief to citizens harmed by broken promises and may encourage the government and its contracting partners to more seriously include citizens in their decisionmaking. This Note proposes reforms to third-party beneficiary doctrine necessary for that to happen and applies those reforms to a pair of government contracts made in Detroit.
{"title":"Third-Party Beneficiaries of Government Contracts: Imagining an Equitable Approach and Applying It to Broken Promises in Detroit","authors":"Gabe Chess","doi":"10.36644/mlr.121.2.third-party","DOIUrl":"https://doi.org/10.36644/mlr.121.2.third-party","url":null,"abstract":"Courts have widely adopted a heightened standard for recognizing third-party beneficiaries of government contracts. But the justifications offered for the heightened standard do not withstand scrutiny. Instead, courts should apply a series of equitable factors to produce results consistent with the concern for “manifest justice” that animates third-party beneficiary doctrine. Governments make contracts frequently, often to address issues of huge importance to their citizens, including housing, economic development, and healthcare. In each of these areas, third-party beneficiary doctrine may be an important avenue of relief to citizens harmed by broken promises and may encourage the government and its contracting partners to more seriously include citizens in their decisionmaking. This Note proposes reforms to third-party beneficiary doctrine necessary for that to happen and applies those reforms to a pair of government contracts made in Detroit.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69685479","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}
Pub Date : 2022-01-01DOI: 10.36644/mlr.121.3.federal
Mark Gadson
Most state courts cannot follow both their state constitutions and federal pleading standards. Even if they could, policy considerations unique to states compel state courts to reject federal pleading standards. This is because federal courts have changed pleading standards to allow judges to make factual determinations on a motion to dismiss and to require more factual detail in complaints. While scholars have vigorously debated whether these changes are wise, just, and permissible under the federal rules and the Constitution, they have ignored the even more important questions of whether state courts can and should adopt those pleading standards. The oversight is particularly worrisome because so many state courts are currently struggling with those questions while hearing fifty times as many cases a year as federal courts do. Indeed, questions about pleading standards that deserve the most scholarly attention have received the least. This Article answers these questions with a definitive “no.” First, federal pleading standards violate the “inviolate” right to a jury trial contained in most state constitutions. This Article describes states as generally falling into one of four categories as it relates to the scope of their jury trial rights: (1) those following English common law practice from when the United States became an independent nation, (2) those whose constitutions enshrine distinctively American attitudes toward juries prevalent during the eighteenth century, (3) those who codified the right to a jury trial at the same time they wrote the first civil procedure codes in the nineteenth century, and (4) hybrids. It demonstrates that in all four cases, federal pleading standards are unconstitutional because they allow judges to decide factual questions that must be left to a jury. In some cases, the requirement to provide heightened factual detail is a constitutionally impermissible procedural barrier between a litigant and a jury. Furthermore, this Article makes the original claim that states should reject federal pleading standards for different reasons than those typically invoked by critics of changes in federal pleading standards. Instead of treating state courts as satellites revolving around federal courts, this Article puts state courts at the center of the debate. It explains that states must consider different policy concerns than federal courts do when formulating pleading standards. First, states generally guarantee litigants the right to a remedy and that their courts will be open to all who wish to remediate an injury. Second, states claim to make it easier than it is in federal courts for litigants to get a jury trial and are supposed to and do hear the vast majority of cases in this country. Third, states elect judges, which necessitates juries serving as a check on politicized decisionmaking. Fourth, states should not consider pleading standards in a vacuum. They should consider their own pleading standards in light o
{"title":"Federal Pleading Standards in State Court","authors":"Mark Gadson","doi":"10.36644/mlr.121.3.federal","DOIUrl":"https://doi.org/10.36644/mlr.121.3.federal","url":null,"abstract":"Most state courts cannot follow both their state constitutions and federal pleading standards. Even if they could, policy considerations unique to states compel state courts to reject federal pleading standards. This is because federal courts have changed pleading standards to allow judges to make factual determinations on a motion to dismiss and to require more factual detail in complaints. While scholars have vigorously debated whether these changes are wise, just, and permissible under the federal rules and the Constitution, they have ignored the even more important questions of whether state courts can and should adopt those pleading standards. The oversight is particularly worrisome because so many state courts are currently struggling with those questions while hearing fifty times as many cases a year as federal courts do. Indeed, questions about pleading standards that deserve the most scholarly attention have received the least. This Article answers these questions with a definitive “no.” First, federal pleading standards violate the “inviolate” right to a jury trial contained in most state constitutions. This Article describes states as generally falling into one of four categories as it relates to the scope of their jury trial rights: (1) those following English common law practice from when the United States became an independent nation, (2) those whose constitutions enshrine distinctively American attitudes toward juries prevalent during the eighteenth century, (3) those who codified the right to a jury trial at the same time they wrote the first civil procedure codes in the nineteenth century, and (4) hybrids. It demonstrates that in all four cases, federal pleading standards are unconstitutional because they allow judges to decide factual questions that must be left to a jury. In some cases, the requirement to provide heightened factual detail is a constitutionally impermissible procedural barrier between a litigant and a jury. Furthermore, this Article makes the original claim that states should reject federal pleading standards for different reasons than those typically invoked by critics of changes in federal pleading standards. Instead of treating state courts as satellites revolving around federal courts, this Article puts state courts at the center of the debate. It explains that states must consider different policy concerns than federal courts do when formulating pleading standards. First, states generally guarantee litigants the right to a remedy and that their courts will be open to all who wish to remediate an injury. Second, states claim to make it easier than it is in federal courts for litigants to get a jury trial and are supposed to and do hear the vast majority of cases in this country. Third, states elect judges, which necessitates juries serving as a check on politicized decisionmaking. Fourth, states should not consider pleading standards in a vacuum. They should consider their own pleading standards in light o","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69685480","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}
Direct listing is an innovative alternative to a traditional initial public offering. Since direct listing was revived in 2018, there have been many lingering questions, particularly about the liability of financial advisors involved in the process. In a traditional IPO, a company retains an investment bank as an underwriter; the underwriter takes on a degree of financial risk and lends credibility to the company’s offering, often directly marketing the offering to potential investors. In a direct listing, however, investment banks act as financial advisors but do not assume financial risk or market the sale of securities. Section 11 is an important antifraud provision of the Securities Act of 1933, which imposes liability on all offering participants meeting the statutory definition of underwriter. Whether that definition fairly encompasses financial advisors is unsettled, resulting in uncertainty for both investors and offering participants. After arguing for the application of the Lehman Brothers interpretation of the underwriter definition, this Note then argues that financial advisors are not likely to be statutory underwriters under that interpretation. This Note therefore recommends against the application of section 11 liability to financial advisors. After briefly discussing the risks this conclusion implies for investors, this Note discusses what should be done. One scholar has suggested that section 11 liability should be imposed on financial advisors through exchange rules. But increasing liability is not without costs. Reframing the question as a choice between negligence-based liability and scienter-based liability, this Note points to the possibility that an increase in liability could undermine the primary benefits of direct listing. Drawing on a framework developed by Professor Assaf Hamdani, this Note finally discusses the possibility of using direct regulation in concert with scienter-based liability to incentivize financial advisors to be effective gatekeepers.
{"title":"Risk and Reputation","authors":"T. Wilson","doi":"10.36644/mlr.121.3.risk","DOIUrl":"https://doi.org/10.36644/mlr.121.3.risk","url":null,"abstract":"Direct listing is an innovative alternative to a traditional initial public offering. Since direct listing was revived in 2018, there have been many lingering questions, particularly about the liability of financial advisors involved in the process. In a traditional IPO, a company retains an investment bank as an underwriter; the underwriter takes on a degree of financial risk and lends credibility to the company’s offering, often directly marketing the offering to potential investors. In a direct listing, however, investment banks act as financial advisors but do not assume financial risk or market the sale of securities. Section 11 is an important antifraud provision of the Securities Act of 1933, which imposes liability on all offering participants meeting the statutory definition of underwriter. Whether that definition fairly encompasses financial advisors is unsettled, resulting in uncertainty for both investors and offering participants. After arguing for the application of the Lehman Brothers interpretation of the underwriter definition, this Note then argues that financial advisors are not likely to be statutory underwriters under that interpretation. This Note therefore recommends against the application of section 11 liability to financial advisors. After briefly discussing the risks this conclusion implies for investors, this Note discusses what should be done. One scholar has suggested that section 11 liability should be imposed on financial advisors through exchange rules. But increasing liability is not without costs. Reframing the question as a choice between negligence-based liability and scienter-based liability, this Note points to the possibility that an increase in liability could undermine the primary benefits of direct listing. Drawing on a framework developed by Professor Assaf Hamdani, this Note finally discusses the possibility of using direct regulation in concert with scienter-based liability to incentivize financial advisors to be effective gatekeepers.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69686312","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}
Pub Date : 2022-01-01DOI: 10.36644/mlr.120.6.struggle
Stephanie Toti
For me, the annual Book Review issue is a time for reflection. It provides an opportunity to take stock of scholarly trends, reassess conventional wisdom, and gather new insights to apply to the practice of law. The reviews contained in this year’s issue address a wide range of subjects, including the history of public defenders, the use of bigotry rhetoric in conflicts over marriage and civil rights law, the role of cost-benefit analysis in federal policymaking, and racial inequities in tax policy. This impressive commentary on an astute and varied collection of books about the law will inspire many of us to pause and consider larger questions about our own work: Where do things stand? How did we get here? What comes next?My career has largely focused on reproductive rights. It is an area of the law that is perpetually at a crossroads and therefore always ripe for reflection. These rights, long recognized and deeply valued by a majority of Americans, are continually under attack and always—it would seem—on the brink of elimination. Almost from the day Roe v. Wade was decided, critics began calling for it to be overruled, and commentators began predicting its downfall. Although it has weathered the storm for nearly fifty years, those critics and commentators remain undeterred, still forecasting Roe’s imminent demise. And who knows? Perhaps this charged moment in our nation’s history, which seems increasingly like the dystopian future that prescient novelists warned of long ago, will see a disruption in constitutional protection for reproductive rights. Or perhaps the rights that have been central to the liberty and equality of women and gender-expansive people for half a century will continue to endure.In this Foreword, I would like to reflect on two aspects of reproductive rights law in particular. First, there is a seeming duality in the Supreme Court’s abortion jurisprudence. On the surface, it embodies a longstanding commitment to safeguarding the right to abortion. But just below the surface, the caselaw reflects a deep tension between this commitment and the Court’s recognition that certain members of our society—some motivated by “unprincipled emotional reactions” and others motivated by “principles worthy of profound respect”—will never accept that the Constitution grants the authority to make decisions about the outcome of a pregnancy to the individual who is pregnant rather than to the government. Second, the abortion right has proven surprisingly durable despite powerful efforts to subvert it. It seems that the vital relationship of this right to core constitutional values like liberty, equality, and freedom of belief, and the critical role that it plays in the ability of women and all people with the capacity for pregnancy to participate fully and equally in society, make it extremely difficult to cast aside, rhetorical denunciations notwithstanding.
{"title":"The Never-Ending Struggle for Reproductive Rights","authors":"Stephanie Toti","doi":"10.36644/mlr.120.6.struggle","DOIUrl":"https://doi.org/10.36644/mlr.120.6.struggle","url":null,"abstract":"For me, the annual Book Review issue is a time for reflection. It provides an opportunity to take stock of scholarly trends, reassess conventional wisdom, and gather new insights to apply to the practice of law. The reviews contained in this year’s issue address a wide range of subjects, including the history of public defenders, the use of bigotry rhetoric in conflicts over marriage and civil rights law, the role of cost-benefit analysis in federal policymaking, and racial inequities in tax policy. This impressive commentary on an astute and varied collection of books about the law will inspire many of us to pause and consider larger questions about our own work: Where do things stand? How did we get here? What comes next?My career has largely focused on reproductive rights. It is an area of the law that is perpetually at a crossroads and therefore always ripe for reflection. These rights, long recognized and deeply valued by a majority of Americans, are continually under attack and always—it would seem—on the brink of elimination. Almost from the day Roe v. Wade was decided, critics began calling for it to be overruled, and commentators began predicting its downfall. Although it has weathered the storm for nearly fifty years, those critics and commentators remain undeterred, still forecasting Roe’s imminent demise. And who knows? Perhaps this charged moment in our nation’s history, which seems increasingly like the dystopian future that prescient novelists warned of long ago, will see a disruption in constitutional protection for reproductive rights. Or perhaps the rights that have been central to the liberty and equality of women and gender-expansive people for half a century will continue to endure.In this Foreword, I would like to reflect on two aspects of reproductive rights law in particular. First, there is a seeming duality in the Supreme Court’s abortion jurisprudence. On the surface, it embodies a longstanding commitment to safeguarding the right to abortion. But just below the surface, the caselaw reflects a deep tension between this commitment and the Court’s recognition that certain members of our society—some motivated by “unprincipled emotional reactions” and others motivated by “principles worthy of profound respect”—will never accept that the Constitution grants the authority to make decisions about the outcome of a pregnancy to the individual who is pregnant rather than to the government. Second, the abortion right has proven surprisingly durable despite powerful efforts to subvert it. It seems that the vital relationship of this right to core constitutional values like liberty, equality, and freedom of belief, and the critical role that it plays in the ability of women and all people with the capacity for pregnancy to participate fully and equally in society, make it extremely difficult to cast aside, rhetorical denunciations notwithstanding.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138507593","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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