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":"48 7","pages":"947"},"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}
Pub Date : 2022-01-01DOI: 10.36644/mlr.121.2.catch
Z. Clopton
In catch and kill journalism, a tabloid buys a story that could be published elsewhere and then deliberately declines to publish it. In catch and kill jurisdiction, a federal court assumes jurisdiction over a case that could be litigated in state court and then declines to hear the merits through a nonmerits dismissal. Catch and kill journalism undermines the free flow of information. Catch and kill jurisdiction undermines the enforcement of substantive rights. And, importantly, because catch and kill jurisdiction relies on jurisdictional and procedural law, it is often able to achieve ends that would be politically unpalatable by other means. Catch and kill jurisdiction is a recurrent and growing phenomenon. This Article defines catch and kill jurisdiction and identifies areas where it can be found today, including in transnational and complex cases. This Article argues that catch and kill is likely to arise when federal judges are willing and able to expand federal jurisdiction and when federal courts are hostile to certain classes of claims or litigants. It also shows how catch and kill feeds back into more catch and kill—what I call the catch and kill ratchet. On the normative side, this Article does not argue that catch and kill is inherently wrong—indeed, some examples of catch and kill are normatively preferable. Instead, this Article argues that catch and kill jurisdiction is problematic when it relies on seeming neutrality, obscurity, and delegation to achieve deregulatory ends that might not be possible through substantive lawmaking. These concerns are exacerbated because federal judges—not legislators—are the lawmakers in catch and kill. Federalism values also are at stake when catch and kill defeats claims arising under state law. This Article’s analysis of catch and kill also helps clarify some of the issues raised by the Class Action Fairness Act, in which Congress employed a catch-and-kill-like strategy in service of deregulation. Finally, this Article explains why it will be challenging to reverse catch and kill in gross, though there are strategies to resist catch and kill in individual cases.
{"title":"Catch and Kill Jurisdiction","authors":"Z. Clopton","doi":"10.36644/mlr.121.2.catch","DOIUrl":"https://doi.org/10.36644/mlr.121.2.catch","url":null,"abstract":"In catch and kill journalism, a tabloid buys a story that could be published elsewhere and then deliberately declines to publish it. In catch and kill jurisdiction, a federal court assumes jurisdiction over a case that could be litigated in state court and then declines to hear the merits through a nonmerits dismissal. Catch and kill journalism undermines the free flow of information. Catch and kill jurisdiction undermines the enforcement of substantive rights. And, importantly, because catch and kill jurisdiction relies on jurisdictional and procedural law, it is often able to achieve ends that would be politically unpalatable by other means. Catch and kill jurisdiction is a recurrent and growing phenomenon. This Article defines catch and kill jurisdiction and identifies areas where it can be found today, including in transnational and complex cases. This Article argues that catch and kill is likely to arise when federal judges are willing and able to expand federal jurisdiction and when federal courts are hostile to certain classes of claims or litigants. It also shows how catch and kill feeds back into more catch and kill—what I call the catch and kill ratchet. On the normative side, this Article does not argue that catch and kill is inherently wrong—indeed, some examples of catch and kill are normatively preferable. Instead, this Article argues that catch and kill jurisdiction is problematic when it relies on seeming neutrality, obscurity, and delegation to achieve deregulatory ends that might not be possible through substantive lawmaking. These concerns are exacerbated because federal judges—not legislators—are the lawmakers in catch and kill. Federalism values also are at stake when catch and kill defeats claims arising under state law. This Article’s analysis of catch and kill also helps clarify some of the issues raised by the Class Action Fairness Act, in which Congress employed a catch-and-kill-like strategy in service of deregulation. Finally, this Article explains why it will be challenging to reverse catch and kill in gross, though there are strategies to resist catch and kill in individual 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":"69684620","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.120.8.civil
Jeffrey Omari
Although there have been significant civil rights gains made in recent decades, the United States is now experiencing a resurgence of many of the societal ills that have plagued the country for decades. From an insurrection that was seemingly inspired by white supremacist ideology to ongoing examples of police brutality against Black people, anti-Asian violence, anti-LGBTQ violence, and recurring islamophobia, the country sits at an apparent crossroads. There is an urgent need to advance a civil rights agenda that addresses the impact of these societal ills on the affected communities. At the same time, however, we are confronting these ills during a point in history that urges us to think both within and beyond our national borders and boundaries. For many citizens across the globe, similar societal ills exist and are coupled with the challenges presented by our warming planet. Moreover, since the spring of 2020, these dilemmas have been embedded within the throes of an ostensibly unending global pandemic. Indeed, the COVID-19 virus has, in many ways, exacerbated our societal ills and amplified existing inequalities. For instance, more privileged global populations have priority access to lifesaving vaccines. Meanwhile, the risks presented by climate disruption are also unevenly distributed, with such risks being mitigated more by economic comfort than by geography or preparedness. As if these challenges were not enough, online disinformation is a growing concern in this era of COVID-19 and climate disruption. The spread of misleading or patently false information about both the pandemic and global warming poses significant threats to alleviating the harms of each. By creating collective uncertainty about the pandemic, climate change, and a host of other societal issues, disinformation undermines public trust in governmental institutions and, in many cases, adversely affects the already frayed relationship these institutions have with vulnerable populations. Moreover, in a world where communication increasingly happens online, digital disinformation challenges the meaning of truth and breathes life into the extremist ideas that often proliferate on social media. Yet attempting to curb the harms of online disinformation implicates concerns over free speech and free association in cyberspace, which in turn implicates broader concerns over digital rights. Along with climate change, both of these emergent themes—COVID-19 and online disinformation—represent the uncertainty of our changing times and, because they often disproportionately or adversely impact vulnerable populations, pose new challenges for civil rights and democracy. Each of these themes also links two different but interconnected affairs: one that focuses on the civil rights issues of our local and national communities, and the other that focuses on the related wellness of our global neighbors and larger concerns over planetary life. Connecting local civil rights–based issues to si
{"title":"Civil Rights in Times of Uncertainty (The Anthropocene)","authors":"Jeffrey Omari","doi":"10.36644/mlr.120.8.civil","DOIUrl":"https://doi.org/10.36644/mlr.120.8.civil","url":null,"abstract":"Although there have been significant civil rights gains made in recent decades, the United States is now experiencing a resurgence of many of the societal ills that have plagued the country for decades. From an insurrection that was seemingly inspired by white supremacist ideology to ongoing examples of police brutality against Black people, anti-Asian violence, anti-LGBTQ violence, and recurring islamophobia, the country sits at an apparent crossroads. There is an urgent need to advance a civil rights agenda that addresses the impact of these societal ills on the affected communities. At the same time, however, we are confronting these ills during a point in history that urges us to think both within and beyond our national borders and boundaries. For many citizens across the globe, similar societal ills exist and are coupled with the challenges presented by our warming planet. Moreover, since the spring of 2020, these dilemmas have been embedded within the throes of an ostensibly unending global pandemic. Indeed, the COVID-19 virus has, in many ways, exacerbated our societal ills and amplified existing inequalities. For instance, more privileged global populations have priority access to lifesaving vaccines. Meanwhile, the risks presented by climate disruption are also unevenly distributed, with such risks being mitigated more by economic comfort than by geography or preparedness. As if these challenges were not enough, online disinformation is a growing concern in this era of COVID-19 and climate disruption. The spread of misleading or patently false information about both the pandemic and global warming poses significant threats to alleviating the harms of each. By creating collective uncertainty about the pandemic, climate change, and a host of other societal issues, disinformation undermines public trust in governmental institutions and, in many cases, adversely affects the already frayed relationship these institutions have with vulnerable populations. Moreover, in a world where communication increasingly happens online, digital disinformation challenges the meaning of truth and breathes life into the extremist ideas that often proliferate on social media. Yet attempting to curb the harms of online disinformation implicates concerns over free speech and free association in cyberspace, which in turn implicates broader concerns over digital rights. Along with climate change, both of these emergent themes—COVID-19 and online disinformation—represent the uncertainty of our changing times and, because they often disproportionately or adversely impact vulnerable populations, pose new challenges for civil rights and democracy. Each of these themes also links two different but interconnected affairs: one that focuses on the civil rights issues of our local and national communities, and the other that focuses on the related wellness of our global neighbors and larger concerns over planetary life. Connecting local civil rights–based issues to si","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":"69683890","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.bigotry
Jordan Woods
A Review of Who’s the Bigot? Learning from Conflicts over Marriage and Civil Rights Law. By Linda C. McClain.
《谁是偏执狂?》从婚姻与民权法的冲突中学习。琳达·c·麦克莱恩著。
{"title":"Bigotry, Civil Rights, and LGBTQ Child Welfare","authors":"Jordan Woods","doi":"10.36644/mlr.120.6.bigotry","DOIUrl":"https://doi.org/10.36644/mlr.120.6.bigotry","url":null,"abstract":"A Review of Who’s the Bigot? Learning from Conflicts over Marriage and Civil Rights Law. By Linda C. McClain.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":"108 1","pages":"1011"},"PeriodicalIF":2.7,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138507616","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.120.4.eaters
Margot J. Pollans
Food law, including traditional food safety regulation, antihunger programs, and food system worker protections, has received increased attention in recent years as a distinct field of study. Bringing together these disparate areas of law under a single lens provides an opportunity to understand the role of law in shaping what we eat (what food is produced and where it is distributed), how much we eat, and how we think about food. The food system is rife with problems— endemic hunger, worker exploitation, massive environmental externalities, and diet-related disease. Looked at in a piecemeal fashion, elements of food law appear responsive to these problems. Looked at as a whole, however, food law appears instead to entrench the existing structures of power that generate these problems. This Article offers a novel conceptual critique of the food system. It argues that food law is built on two contradictory myths: the myth of the helpless consumer who needs government protections from food producers and the myth of the responsible consumer who needs no government protection and can take on the food system’s many problems herself. The first myth is self-actualizing, as the laws that it justifies disempower food consumers and producers. The second myth is self-defeating, as the legal structures that assume consumer responsibility impede meaningful consumer choice. Food law, as it is shaped by these myths, constructs powerlessness by homogenizing— or erasing diversity within—the food system, paralyzing consumers through information control, and polarizing various food system constituents who might otherwise collaborate on reform. Ultimately, food law is designed to thwart food sovereignty. By revealing how the structures of food law itself obstruct reform, this Article also identifies a path forward toward true food sovereignty.
{"title":"Eaters, Powerless by Design","authors":"Margot J. Pollans","doi":"10.36644/mlr.120.4.eaters","DOIUrl":"https://doi.org/10.36644/mlr.120.4.eaters","url":null,"abstract":"Food law, including traditional food safety regulation, antihunger programs, and food system worker protections, has received increased attention in recent years as a distinct field of study. Bringing together these disparate areas of law under a single lens provides an opportunity to understand the role of law in shaping what we eat (what food is produced and where it is distributed), how much we eat, and how we think about food. The food system is rife with problems— endemic hunger, worker exploitation, massive environmental externalities, and diet-related disease. Looked at in a piecemeal fashion, elements of food law appear responsive to these problems. Looked at as a whole, however, food law appears instead to entrench the existing structures of power that generate these problems. This Article offers a novel conceptual critique of the food system. It argues that food law is built on two contradictory myths: the myth of the helpless consumer who needs government protections from food producers and the myth of the responsible consumer who needs no government protection and can take on the food system’s many problems herself. The first myth is self-actualizing, as the laws that it justifies disempower food consumers and producers. The second myth is self-defeating, as the legal structures that assume consumer responsibility impede meaningful consumer choice. Food law, as it is shaped by these myths, constructs powerlessness by homogenizing— or erasing diversity within—the food system, paralyzing consumers through information control, and polarizing various food system constituents who might otherwise collaborate on reform. Ultimately, food law is designed to thwart food sovereignty. By revealing how the structures of food law itself obstruct reform, this Article also identifies a path forward toward true food sovereignty.","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":"69683313","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.120.4.securing
J. Charles
In popular and professional discourse, debate about the right to keep and bear arms most often revolves around the Second Amendment. But that narrow reference ignores a vast and expansive nonconstitutional legal regime privileging guns and their owners. This collection of nonconstitutional gun rights confers broad powers and immunities on gun owners that go far beyond those required by the Constitution, like rights to bring guns on private property against an owner’s wishes and to carry a concealed firearm in public with no training or background check. This Article catalogues this set of expansive laws and critically assesses them. Unlike the formal constitutional guarantee, this broad collection is not solely libertarian, concerned only with guaranteeing noninterference with a negative right. Instead, it is also aggressively interventionist, countermanding contrary policy judgments by employers, universities, property owners, and local government officials, conferring robust rights and privileges, and shifting the distribution of violence in society. This Article underscores the rhetorical and legal connection between this gun-rights expansionism and the formal Second Amendment guarantee. These laws do not derive from a judicial interpretation of the scope of the Constitution, but they are expressed and advocated for in constitutional terms. The Article also highlights how broad gun rights can create unique harm to the body politic and to marginalized groups by fostering fear and mistrust and empowering sometimes-problematic private actors to proactively police their own communities. Finally, the Article shows how gun-rights expansionism influences constitutional doctrine in the context of the Second Amendment, as well as of the First, Fourth, and Fourteenth Amendments.
{"title":"Securing Gun Rights by Statute: The Right to Keep and Bear Arms Outside the Constitution","authors":"J. Charles","doi":"10.36644/mlr.120.4.securing","DOIUrl":"https://doi.org/10.36644/mlr.120.4.securing","url":null,"abstract":"In popular and professional discourse, debate about the right to keep and bear arms most often revolves around the Second Amendment. But that narrow reference ignores a vast and expansive nonconstitutional legal regime privileging guns and their owners. This collection of nonconstitutional gun rights confers broad powers and immunities on gun owners that go far beyond those required by the Constitution, like rights to bring guns on private property against an owner’s wishes and to carry a concealed firearm in public with no training or background check. This Article catalogues this set of expansive laws and critically assesses them. Unlike the formal constitutional guarantee, this broad collection is not solely libertarian, concerned only with guaranteeing noninterference with a negative right. Instead, it is also aggressively interventionist, countermanding contrary policy judgments by employers, universities, property owners, and local government officials, conferring robust rights and privileges, and shifting the distribution of violence in society. This Article underscores the rhetorical and legal connection between this gun-rights expansionism and the formal Second Amendment guarantee. These laws do not derive from a judicial interpretation of the scope of the Constitution, but they are expressed and advocated for in constitutional terms. The Article also highlights how broad gun rights can create unique harm to the body politic and to marginalized groups by fostering fear and mistrust and empowering sometimes-problematic private actors to proactively police their own communities. Finally, the Article shows how gun-rights expansionism influences constitutional doctrine in the context of the Second Amendment, as well as of the First, Fourth, and Fourteenth Amendments.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":"194 1","pages":""},"PeriodicalIF":2.7,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69683389","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}
This Article engages in a critical comparative analysis of the recent history and likely future trajectory of the Supreme Court’s constitutional jurisprudence in matters of race and religion to uncover new aspects of the racial project that Reggie Oh has recently called the “racial superordination” of whiteness—the reinforcing of the superior status of whites in American society by, among other things, prioritizing their interests in structuring constitutional doctrine. This analysis shows that the Court is increasingly widening the gap between conceptions of, and levels of protection provided for, equality in the contexts of race and religion in ways that prioritize the interests of whiteness and set those interests as the normative baseline in both areas of constitutional law. While the Court has increasingly moved toward an aggressive and religion-conscious “most favored nation” equality theory in the Free Exercise Clause context, its continued march toward mandating colorblindness is arguably moving toward something akin to a “least favored nation” equality theory for race and race consciousness in the equal protection context. Arguments can be made that the most favored nation approach should also be applied to race. Doing so would provide more doctrinal space for racial equality-enhancing government programs and call into question deeply entrenched aspects of the Court’s current affirmative action jurisprudence. The Court’s refusal to even hint at the possibility of such an approach points to a racial project of superordinating the interests of white Americans to be constitutionally protected from race-conscious interference with their dominant position in the racial hierarchy over the application of consistent constitutional principles.
{"title":"Most Favored Racial Hierarchy: The Ever-Evolving Ways of the Supreme Court’s Superordination of Whiteness","authors":"David Simson","doi":"10.36644/mlr.120.8.most","DOIUrl":"https://doi.org/10.36644/mlr.120.8.most","url":null,"abstract":"This Article engages in a critical comparative analysis of the recent history and likely future trajectory of the Supreme Court’s constitutional jurisprudence in matters of race and religion to uncover new aspects of the racial project that Reggie Oh has recently called the “racial superordination” of whiteness—the reinforcing of the superior status of whites in American society by, among other things, prioritizing their interests in structuring constitutional doctrine. This analysis shows that the Court is increasingly widening the gap between conceptions of, and levels of protection provided for, equality in the contexts of race and religion in ways that prioritize the interests of whiteness and set those interests as the normative baseline in both areas of constitutional law. While the Court has increasingly moved toward an aggressive and religion-conscious “most favored nation” equality theory in the Free Exercise Clause context, its continued march toward mandating colorblindness is arguably moving toward something akin to a “least favored nation” equality theory for race and race consciousness in the equal protection context. Arguments can be made that the most favored nation approach should also be applied to race. Doing so would provide more doctrinal space for racial equality-enhancing government programs and call into question deeply entrenched aspects of the Court’s current affirmative action jurisprudence. The Court’s refusal to even hint at the possibility of such an approach points to a racial project of superordinating the interests of white Americans to be constitutionally protected from race-conscious interference with their dominant position in the racial hierarchy over the application of consistent constitutional principles.","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":"69684215","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.ability
Ryan Nelson,Michael Stein
A Review of Ableism at Work: Disablement and Hierarchies of Impairment. By Paul David Harpur.
工作中的残疾歧视:残疾和残疾等级。保罗·大卫·哈普尔著。
{"title":"Ability Apartheid and Paid Leave","authors":"Ryan Nelson,Michael Stein","doi":"10.36644/mlr.120.6.ability","DOIUrl":"https://doi.org/10.36644/mlr.120.6.ability","url":null,"abstract":"A Review of Ableism at Work: Disablement and Hierarchies of Impairment. By Paul David Harpur.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":"50 1","pages":"1247"},"PeriodicalIF":2.7,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138507609","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.120.8.enduring
Daiquiri Steele
Economic justice has long been a part of the civil rights agenda, and minimum labor standards statutes play a crucial role in eradicating the exploitation and subordination of historically marginalized workers. While statutes establishing labor standards are characterized as “universal,” their effect has been anything but universal. Racial and ethnic minorities, women, and those at the intersection experience disproportionate violations of labor standards laws concerning minimum wage, overtime, and occupational safety and health. Through legislative maneuvering dating back to the New Deal era, Congress carved out many female workers and workers of color from core protections of minimum labor standards legislation. Due to the vigorous advocacy of civil rights groups, amendments to these statutes expanded coverage, making these statutes more inclusive of marginalized workers. Nevertheless, the exclusionary legacy of these New Deal era-laws lingers today. Black, Latinx, and female workers are more likely to be retaliated against for asserting rights or reporting employer misconduct pursuant to these statutes. Tracing the racial and gendered origins of exemptions to labor standards statutes from the early twentieth century to the present, this Article argues that, despite expanded coverage, female workers and workers of color remain largely excluded from “universal” workplace protections. Although antiworker forces previously sought to thwart creation of legal rights for marginalized workers, contemporary antiworker campaigns seek to gut marginalized workers’ protections through actual and threatened retaliation. Examination of the traditional rationales for employer retaliation reveals that the retaliation disparity is incongruent with these conventional motivations. This Article argues that securing compliance with both minimum labor standards and antiretaliation reform should be integral parts of the civil rights agenda.
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For more than a century, low-income tenants across cities in the United States have protested and organized together against unjust housing conditions. Yet landlords continue to evade accountability, leaving mold, pests, lead paint, unclean water, and innumerable other issues unaddressed. On top of habitability concerns, the past several decades of gentrification have displaced hundreds of thousands of Black and brown residents from their communities. To address these issues, legal reforms have focused on either housing-market regulation or individual rights devoid of effective enforcement mechanisms. These reforms fall short. Tenant power, not just tenant-focused housing reform, should be a concern of policymakers and legal scholars. This Note focuses specifically on rent strikes as an important organizing strategy that the law can and should better support. Legislation supporting rent strikes has the potential to offer tenants powerful tools as they organize for their communities and secure access to quality and affordable housing. This Note proposes a cluster of four legislative proposals that reflect tenants’ ongoing organizing strategies and, if enacted, would enhance tenants’ autonomy in their private bargaining with landlords.
{"title":"Rent Strikes and Tenant Power: Supporting Rent Strikes in Residential Landlord-Tenant Law","authors":"Samantha Gowing","doi":"10.36644/mlr.120.5.rent","DOIUrl":"https://doi.org/10.36644/mlr.120.5.rent","url":null,"abstract":"For more than a century, low-income tenants across cities in the United States have protested and organized together against unjust housing conditions. Yet landlords continue to evade accountability, leaving mold, pests, lead paint, unclean water, and innumerable other issues unaddressed. On top of habitability concerns, the past several decades of gentrification have displaced hundreds of thousands of Black and brown residents from their communities. To address these issues, legal reforms have focused on either housing-market regulation or individual rights devoid of effective enforcement mechanisms. These reforms fall short. Tenant power, not just tenant-focused housing reform, should be a concern of policymakers and legal scholars. This Note focuses specifically on rent strikes as an important organizing strategy that the law can and should better support. Legislation supporting rent strikes has the potential to offer tenants powerful tools as they organize for their communities and secure access to quality and affordable housing. This Note proposes a cluster of four legislative proposals that reflect tenants’ ongoing organizing strategies and, if enacted, would enhance tenants’ autonomy in their private bargaining with landlords.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":"49 7","pages":"877"},"PeriodicalIF":2.7,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138507611","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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