Pub Date : 2022-01-01DOI: 10.36644/mlr.120.6.classic
Deborah Archer
A Review of The Fire Next Time. By James Baldwin.
《下次失火》书评。詹姆斯·鲍德温著。
{"title":"How Racism Persists in Its Power","authors":"Deborah Archer","doi":"10.36644/mlr.120.6.classic","DOIUrl":"https://doi.org/10.36644/mlr.120.6.classic","url":null,"abstract":"A Review of The Fire Next Time. By James Baldwin.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":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":"138507596","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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":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":"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}
Pub Date : 2021-01-01DOI: 10.36644/mlr.119.8.ranked
Benjamin R. Lempert
Thus far, legal debates about the rise of ranked-choice voting have centered on whether legislatures can lawfully adopt the practice. This Note turns attention to the courts and the question of remedies. It proposes that courts impose ranked-choice voting as a redistricting remedy. Ranked-choice voting allows courts to cure redistricting violations without also requiring that they draw copious numbers of districts, a process the Supreme Court has described as a “political thicket.” By keeping courts away from the fact-specific, often arbitrary judgments involved in redistricting, ranked-choice voting makes for the redistricting remedy that best protects the integrity of the judicial role.
{"title":"Ranked-Choice Voting as Reprieve from the Court-Ordered Map","authors":"Benjamin R. Lempert","doi":"10.36644/mlr.119.8.ranked","DOIUrl":"https://doi.org/10.36644/mlr.119.8.ranked","url":null,"abstract":"Thus far, legal debates about the rise of ranked-choice voting have centered on whether legislatures can lawfully adopt the practice. This Note turns attention to the courts and the question of remedies. It proposes that courts impose ranked-choice voting as a redistricting remedy. Ranked-choice voting allows courts to cure redistricting violations without also requiring that they draw copious numbers of districts, a process the Supreme Court has described as a “political thicket.” By keeping courts away from the fact-specific, often arbitrary judgments involved in redistricting, ranked-choice voting makes for the redistricting remedy that best protects the integrity of the judicial role.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69683092","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-01DOI: 10.36644/mlr.120.2.municipal
Brooke Simone
Demands for racial justice are resounding, and in turn, various localities have considered issuing reparations to Black residents. Municipalities may be effective venues in the struggle for reparations, but they face a variety of questions when crafting legislation. This Note walks through key considerations using proposed and enacted reparations plans as examples. It then presents a hypothetical city resolution addressing Philadelphia’s discriminatory police practices. Next, it turns to a constitutional analysis of reparations policies under current Fourteenth Amendment jurisprudence, discussing both race-neutral and race-conscious plans. This Note argues that an antisubordination understanding of the Equal Protection Clause would better allow political branches to rectify vestiges of past discrimination and ongoing inequities through reparations plans such as the hypothetical Philadelphia City Council resolution. With these suggestions in mind, municipalities must boldly imagine and extend reparations to marginalized groups that have suffered harms. Similarly, the Court must reimagine its constitutional doctrine.
{"title":"Municipal Reparations: Considerations and Constitutionality","authors":"Brooke Simone","doi":"10.36644/mlr.120.2.municipal","DOIUrl":"https://doi.org/10.36644/mlr.120.2.municipal","url":null,"abstract":"Demands for racial justice are resounding, and in turn, various localities have considered issuing reparations to Black residents. Municipalities may be effective venues in the struggle for reparations, but they face a variety of questions when crafting legislation. This Note walks through key considerations using proposed and enacted reparations plans as examples. It then presents a hypothetical city resolution addressing Philadelphia’s discriminatory police practices. Next, it turns to a constitutional analysis of reparations policies under current Fourteenth Amendment jurisprudence, discussing both race-neutral and race-conscious plans. This Note argues that an antisubordination understanding of the Equal Protection Clause would better allow political branches to rectify vestiges of past discrimination and ongoing inequities through reparations plans such as the hypothetical Philadelphia City Council resolution. With these suggestions in mind, municipalities must boldly imagine and extend reparations to marginalized groups that have suffered harms. Similarly, the Court must reimagine its constitutional doctrine.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69682937","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-01DOI: 10.36644/mlr.119.6.racial
Shaun Ossei-Owusu
A Review of The Enigma of Clarence Thomas. by Corey Robin.
《克拉伦斯·托马斯之谜》述评科里·罗宾著。
{"title":"Racial Revisionism","authors":"Shaun Ossei-Owusu","doi":"10.36644/mlr.119.6.racial","DOIUrl":"https://doi.org/10.36644/mlr.119.6.racial","url":null,"abstract":"A Review of The Enigma of Clarence Thomas. by Corey Robin.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69682694","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-01DOI: 10.36644/MLR.119.6.RESTORATIVE
Leo T. Sorokin, J. Stein
A Review of Until We Reckon: Violence, Mass Incarceration, and a Road to Repair. by Danielle Sered.
回顾《直到我们考虑:暴力、大规模监禁和一条修复之路》。作者:Danielle Sered
{"title":"Restorative Federal Criminal Procedure","authors":"Leo T. Sorokin, J. Stein","doi":"10.36644/MLR.119.6.RESTORATIVE","DOIUrl":"https://doi.org/10.36644/MLR.119.6.RESTORATIVE","url":null,"abstract":"A Review of Until We Reckon: Violence, Mass Incarceration, and a Road to Repair. by Danielle Sered.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69682749","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In recent years, American institutions have inadvertently encountered the bodies of former slaves with increasing frequency. Pledges of respect are common features of these discoveries, accompanied by cultural debates about what “respect” means. Often embedded in these debates is an intuition that there is something special about respecting the dead bodies, burial sites, and images of victims of mass, systemic horrors. This Article employs legal doctrine, philosophical insights, and American history to both interrogate and anchor this intuition. Law can inform these debates because we regularly turn to legal settings to resolve disputes about the dead. Yet the passage of time, systemic dehumanization, and changing egalitarian norms all complicate efforts to apply traditional legal considerations to disputes about victims of subordination. While, for example, courts usually consult decedents’ expressed intentions to resolve disputes, how do we divine the wishes of people who died centuries ago, under a legal system designed to negate and dishonor their intentions? How do we honor relationships like kinship for people who were routinely and forcibly separated from their kin? And how do we assess the motives or culpability of institutions that, in prior generations, were complicit in profound horrors, but now pledge honor and respect? This Article offers a theory of time and equality to help guide cultural and legal debates about the treatment of dead victims of mass horror. On this account, we can become complicit in past, systemic subordination by dishonoring the memories of victims. Systemic neglect and exploitation of a group’s bodies and images can diminish the role of that group in shaping our national memory. And if it is wrong to deny a person the ability to leave a legacy on account of race under contemporary egalitarian norms, then we ought not engage in posthumous acts against the enslaved and other systemically debased persons that perpetually rob them of such a legacy.
{"title":"On Time, (In)equality, and Death","authors":"Fred O. Smith, Jr.","doi":"10.36644/mlr.120.2.time","DOIUrl":"https://doi.org/10.36644/mlr.120.2.time","url":null,"abstract":"In recent years, American institutions have inadvertently encountered the bodies of former slaves with increasing frequency. Pledges of respect are common features of these discoveries, accompanied by cultural debates about what “respect” means. Often embedded in these debates is an intuition that there is something special about respecting the dead bodies, burial sites, and images of victims of mass, systemic horrors. This Article employs legal doctrine, philosophical insights, and American history to both interrogate and anchor this intuition. Law can inform these debates because we regularly turn to legal settings to resolve disputes about the dead. Yet the passage of time, systemic dehumanization, and changing egalitarian norms all complicate efforts to apply traditional legal considerations to disputes about victims of subordination. While, for example, courts usually consult decedents’ expressed intentions to resolve disputes, how do we divine the wishes of people who died centuries ago, under a legal system designed to negate and dishonor their intentions? How do we honor relationships like kinship for people who were routinely and forcibly separated from their kin? And how do we assess the motives or culpability of institutions that, in prior generations, were complicit in profound horrors, but now pledge honor and respect? This Article offers a theory of time and equality to help guide cultural and legal debates about the treatment of dead victims of mass horror. On this account, we can become complicit in past, systemic subordination by dishonoring the memories of victims. Systemic neglect and exploitation of a group’s bodies and images can diminish the role of that group in shaping our national memory. And if it is wrong to deny a person the ability to leave a legacy on account of race under contemporary egalitarian norms, then we ought not engage in posthumous acts against the enslaved and other systemically debased persons that perpetually rob them of such a legacy.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69682992","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-01DOI: 10.36644/MLR.119.5.AFFIRMATIVE
Loren Lee
Since 1978, the Supreme Court has recognized diversity as a compelling government interest to uphold the use of affirmative action in higher education. Yet the constitutionality of the practice has been challenged many times. In Grutter v. Bollinger, for example, the Court denied its use in perpetuity and suggested a twenty-five-year time limit for its application in law school admissions. Almost two decades have passed, so where do we stand? This Note’s quantitative analysis of the matriculation of and degrees awarded to Black and Latinx students at twenty-nine accredited law schools across the United States illuminates a stark lack of progress toward critical mass since Grutter and reveals the continued need for affirmative action in law school admissions.
自1978年以来，最高法院认定多元化是政府维护高等教育平权法案的重要利益。然而，这种做法的合宪性已多次受到质疑。例如，在Grutter v. Bollinger案中，最高法院否决了该条款的永久使用，并建议在法学院招生中使用该条款的期限为25年。快二十年过去了，我们的进展如何?本文对美国29所经认证的法学院的黑人和拉丁裔学生的入学和学位授予情况进行了定量分析，揭示了自格鲁特事件以来，在达到临界质量方面明显缺乏进展，并揭示了在法学院招生中继续采取平权行动的必要性。
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Pub Date : 2021-01-01DOI: 10.36644/mlr.120.2.reviving
John W. Edelman
The Department of Transportation (DOT) has broad but oft overlooked power to address antitrust issues among airlines through section 411 of the Federal Aviation Act. However, the DOT’s unwillingness to enforce antitrust more aggressively may be translating into higher fares and fees for airline travelers. More aggressive antitrust enforcement is urgently needed. Recent research has revealed a widespread practice of common ownership in the airline industry, whereby investment firms own large portions of rival airline companies. Although this practice leads to higher prices and reduced competition, antitrust regulators, from the DOT to the Department of Justice and the Federal Trade Commission, have declined to take action. This Note argues that the DOT has the clear legal authority—and the responsibility—under section 411 to address common ownership among airlines by promulgating a rule that limits investors’ ability to own large shares of multiple airlines. DOT regulation in this area could pave the way for more muscular antitrust regulation among industry-specific agencies.
{"title":"Reviving Antitrust Enforcement in the Airline Industry","authors":"John W. Edelman","doi":"10.36644/mlr.120.2.reviving","DOIUrl":"https://doi.org/10.36644/mlr.120.2.reviving","url":null,"abstract":"The Department of Transportation (DOT) has broad but oft overlooked power to address antitrust issues among airlines through section 411 of the Federal Aviation Act. However, the DOT’s unwillingness to enforce antitrust more aggressively may be translating into higher fares and fees for airline travelers. More aggressive antitrust enforcement is urgently needed. Recent research has revealed a widespread practice of common ownership in the airline industry, whereby investment firms own large portions of rival airline companies. Although this practice leads to higher prices and reduced competition, antitrust regulators, from the DOT to the Department of Justice and the Federal Trade Commission, have declined to take action. This Note argues that the DOT has the clear legal authority—and the responsibility—under section 411 to address common ownership among airlines by promulgating a rule that limits investors’ ability to own large shares of multiple airlines. DOT regulation in this area could pave the way for more muscular antitrust regulation among industry-specific agencies.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69682978","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Quinn D. Curtis, Jill E. Fisch, Adriana Z. Robertson
Corporations have received growing criticism for contributing to climate change, perpetuating racial and gender inequality, and failing to address other pressing social issues. In response to these concerns, shareholders are increasingly focusing on environmental, social, and corporate governance (ESG) criteria in selecting investments, and asset managers are responding by offering a growing number of ESG mutual funds. The flow of assets into ESG is one of the most dramatic trends in asset management. But are these funds giving investors what they promise? This question has attracted the attention of regulators, with the Department of Labor and the Securities and Exchange Commission (SEC) both taking steps to rein in ESG funds. The change in administration has created an opportunity to rethink these steps, but the rapid growth and evolution of the market mean regulators are acting without a clear picture of ESG investing. We fill this gap by offering the most complete empirical overview of ESG mutual funds to date. Combining comprehensive data on mutual funds with proprietary data from the several of the most significant ESG ratings firms, we provide a unique picture of the current ESG environment with an eye to informing regulatory policy. We evaluate a number of criticisms of ESG funds made by academics and policymakers and find them lacking. We find that ESG funds offer their investors increased ESG exposure. They also vote their shares differently from non-ESG funds and are more supportive of ESG principles. Our analysis shows that they do so without increasing costs or reducing returns. We conclude that ESG funds generally offer investors a differentiated and competitive investment product that is consistent with their labeling. In short, we see no reason to single out ESG funds for special regulation.
企业因助长气候变化、延续种族和性别不平等以及未能解决其他紧迫的社会问题而受到越来越多的批评。为了应对这些担忧，股东在选择投资时越来越关注环境、社会和公司治理(ESG)标准，资产管理公司也通过提供越来越多的ESG共同基金来应对。资产流入ESG是资产管理领域最引人注目的趋势之一。但这些基金兑现了他们的承诺吗?这个问题引起了监管机构的注意，美国劳工部(Department of Labor)和美国证券交易委员会(SEC)都在采取措施控制ESG基金。行政管理的变化创造了一个重新思考这些措施的机会，但市场的快速增长和演变意味着，监管机构在对ESG投资没有清晰认识的情况下采取行动。我们通过提供迄今为止最完整的ESG共同基金的实证概述来填补这一空白。我们将共同基金的综合数据与几家最重要的ESG评级公司的专有数据相结合，提供了当前ESG环境的独特图景，旨在为监管政策提供信息。我们评估了学者和政策制定者对ESG基金的一些批评，发现它们存在不足。我们发现，ESG基金为投资者提供了更多的ESG敞口。他们对股票的投票方式也不同于非ESG基金，并且更支持ESG原则。我们的分析表明，他们这样做不会增加成本或降低回报。我们的结论是，ESG基金通常为投资者提供与其标签一致的差异化和竞争性投资产品。简而言之，我们认为没有理由对ESG基金进行特别监管。
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