Pub Date : 2021-01-01DOI: 10.36644/mlr.120.3.through
Robin Walker Sterling
This Article is the first to describe how systemic racism persists in a society that openly denounces racism and racist behaviors, using affirmative action and disproportionate minority contact as contrasting examples. Affirmative action and disproportionate minority contact are two sides of the same coin. Far from being distinct, these two social institutions function as two sides of the same ideology, sharing a common historical nucleus rooted in the mythologies that sustained chattel slavery in the United States. The effects of these narratives continue to operate in race-related jurisprudence and in the criminal legal system, sending normative messages about race and potential using the same jurisprudential trick: denial of our country’s race-bound legacy. By juxtaposing the rhetoric and jurisprudence concerning the underrepresentation of white people in the criminal legal system with the rhetoric and jurisprudence concerning the underrepresentation of Black people in higher education, this Article illuminates a key feature of how systemic racism persists. Obscuring the history of how both affirmative action and disproportionate minority contact came to be, the racially contorted narratives that we have adopted about affirmative action in both guises described here—affirmative action that benefits people of color by accepting them into institutions of higher learning and that which benefits white people by diverting them from the criminal legal system—allow systems to thrive under a guise of presumed racial innocence. Unmoored from the force of history, we rudderlessly reinforce well-worn social norms, no matter how discriminatory they might be.
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A Review of The Rule of Five: Making Climate History at the Supreme Court. by Richard J. Lazarus.
《五原则:在最高法院创造气候历史》述评。理查德·j·拉撒路著。
{"title":"The Rule of Five Guys","authors":"Lisa Heinzerling","doi":"10.36644/mlr.119.6.rule","DOIUrl":"https://doi.org/10.36644/mlr.119.6.rule","url":null,"abstract":"A Review of The Rule of Five: Making Climate History at the Supreme Court. by Richard J. Lazarus.","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":"138507612","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.119.4.DOCTRINE
Pat McDonell
Clarifications are a longstanding but little-studied concept in statutory interpretation. Most courts have found that clarifying amendments to preexisting statutes bypass retroactivity limitations. Therein lies their power. Because clarifications simply restate the law, they do not implicate the presumption against retroactivity that Landgraf v. USI Film Products embedded in civil-statute interpretation. The problem that courts have yet to address is how exactly clarifying legislation can be distinguished from legislation that substantively changes the law. What exactly is a clarification? The courts’ answers implicate many of the entrenched debates in statutory interpretation. This Note offers three primary contributions. First, it summarizes the existing doctrine of clarifications as it has been established in the federal circuits and highlights the important implications of their approaches. Second, it argues that clarifications are an important tool for courts and lawmaking bodies. Third, it provides a more intelligible taxonomy for courts to use, including specific factors that ought to guide their determination of whether an amendment clarifies the law.
{"title":"The Doctrine of Clarifications","authors":"Pat McDonell","doi":"10.36644/MLR.119.4.DOCTRINE","DOIUrl":"https://doi.org/10.36644/MLR.119.4.DOCTRINE","url":null,"abstract":"Clarifications are a longstanding but little-studied concept in statutory interpretation. Most courts have found that clarifying amendments to preexisting statutes bypass retroactivity limitations. Therein lies their power. Because clarifications simply restate the law, they do not implicate the presumption against retroactivity that Landgraf v. USI Film Products embedded in civil-statute interpretation. The problem that courts have yet to address is how exactly clarifying legislation can be distinguished from legislation that substantively changes the law. What exactly is a clarification? The courts’ answers implicate many of the entrenched debates in statutory interpretation. This Note offers three primary contributions. First, it summarizes the existing doctrine of clarifications as it has been established in the federal circuits and highlights the important implications of their approaches. Second, it argues that clarifications are an important tool for courts and lawmaking bodies. Third, it provides a more intelligible taxonomy for courts to use, including specific factors that ought to guide their determination of whether an amendment clarifies the law.","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":"69681220","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.119.7.EXCLUDING
Alessandra N. Rosales
Public charge is a ground of inadmissibility based upon the likelihood that a noncitizen will become dependent on government benefits in the future. Once designated as a public charge, a noncitizen is ineligible to be admitted to the United States or to obtain lawful permanent residence. In August 2019, the Trump Administration published a regulation regarding this inadmissibility ground. Among its mandates, the rule expanded the definition of a public charge to include any noncitizen who receives one or more public benefits for more than twelve months in a thirty-six-month period It also instructed immigration officers to weigh medical conditions that “interfere” with the noncitizen’s ability to care for themselves in favor of finding the noncitizen to be a public charge. The rule prompted several legal challenges, including under section 504 of the Rehabilitation Act, the predecessor to the Americans with Disabilities Act. While these claims address the core legal arguments of disability discrimination, the scope of violations should be viewed more broadly. This Comment assesses the public charge rule from a disability rights perspective, exploring the intersection between disability and immigration law, and concludes that immigrants with disabilities no longer had access to federal programs to which they were entitled, and consequently, access to the United States itself.
{"title":"Excluding 'Undesirable' Immigrants: Public Charge as Disability Discrimination","authors":"Alessandra N. Rosales","doi":"10.36644/MLR.119.7.EXCLUDING","DOIUrl":"https://doi.org/10.36644/MLR.119.7.EXCLUDING","url":null,"abstract":"Public charge is a ground of inadmissibility based upon the likelihood that a noncitizen will become dependent on government benefits in the future. Once designated as a public charge, a noncitizen is ineligible to be admitted to the United States or to obtain lawful permanent residence. In August 2019, the Trump Administration published a regulation regarding this inadmissibility ground. Among its mandates, the rule expanded the definition of a public charge to include any noncitizen who receives one or more public benefits for more than twelve months in a thirty-six-month period It also instructed immigration officers to weigh medical conditions that “interfere” with the noncitizen’s ability to care for themselves in favor of finding the noncitizen to be a public charge. The rule prompted several legal challenges, including under section 504 of the Rehabilitation Act, the predecessor to the Americans with Disabilities Act. While these claims address the core legal arguments of disability discrimination, the scope of violations should be viewed more broadly. This Comment assesses the public charge rule from a disability rights perspective, exploring the intersection between disability and immigration law, and concludes that immigrants with disabilities no longer had access to federal programs to which they were entitled, and consequently, access to the United States itself.","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":"69682518","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.PREGNANCY
K. Bridges
{"title":"Pregnancy and the Carceral State","authors":"K. Bridges","doi":"10.36644/MLR.119.6.PREGNANCY","DOIUrl":"https://doi.org/10.36644/MLR.119.6.PREGNANCY","url":null,"abstract":"","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":"69682727","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.PRIDE
Heidi S. Bond
A Review of Pride and Prejudice. by Jane Austen
《傲慢与偏见》书评简·奥斯汀
{"title":"Pride and Predators","authors":"Heidi S. Bond","doi":"10.36644/MLR.119.6.PRIDE","DOIUrl":"https://doi.org/10.36644/MLR.119.6.PRIDE","url":null,"abstract":"A Review of Pride and Prejudice. by Jane Austen","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":"69682622","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.120.3.vacatur
Ruby Emberling
When a case becomes moot on appeal, as when the parties settle, two primary Supreme Court cases guide the appellate court’s decision about whether to vacate the lower-court opinion. The Court has said that vacatur, an equitable remedy, promotes fairness to parties who were not responsible for the mootness because it erases adverse legal outcomes the litigants were prevented from appealing. Beyond this, vacatur is inadvisable since it eliminates precedential decisions and harms the judiciary’s efficiency and legitimacy. Yet this doctrinal order has not been uniformly brought to bear on the highly similar question of whether to vacate when a case becomes moot pending en banc review. Instead, courts have varied in their approach. Some adhere to the two primary cases, others distinguish them by referring to the unique characteristics of en banc review, and many simply vacate without justification. This Note calls attention to a little-discussed set of procedural doctrines and rules that carry the power to decimate important pieces of decisional law without justification. It offers an account of how existing doctrine fits in the en banc context, highlighting the pitfalls for judicial efficiency and legitimacy of failing to acknowledge that fit. Ultimately, it proposes revising the Federal Rules of Appellate Procedure to clarify judicial confusion on this point.
{"title":"Vacatur Pending En Banc Review","authors":"Ruby Emberling","doi":"10.36644/mlr.120.3.vacatur","DOIUrl":"https://doi.org/10.36644/mlr.120.3.vacatur","url":null,"abstract":"When a case becomes moot on appeal, as when the parties settle, two primary Supreme Court cases guide the appellate court’s decision about whether to vacate the lower-court opinion. The Court has said that vacatur, an equitable remedy, promotes fairness to parties who were not responsible for the mootness because it erases adverse legal outcomes the litigants were prevented from appealing. Beyond this, vacatur is inadvisable since it eliminates precedential decisions and harms the judiciary’s efficiency and legitimacy. Yet this doctrinal order has not been uniformly brought to bear on the highly similar question of whether to vacate when a case becomes moot pending en banc review. Instead, courts have varied in their approach. Some adhere to the two primary cases, others distinguish them by referring to the unique characteristics of en banc review, and many simply vacate without justification. This Note calls attention to a little-discussed set of procedural doctrines and rules that carry the power to decimate important pieces of decisional law without justification. It offers an account of how existing doctrine fits in the en banc context, highlighting the pitfalls for judicial efficiency and legitimacy of failing to acknowledge that fit. Ultimately, it proposes revising the Federal Rules of Appellate Procedure to clarify judicial confusion on this point.","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":"69683200","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.natural
Frank Fagan
A Review of Law as Data: Computation, Text, & the Future of Legal Analysis. Edited by Michael A. Livermore and Daniel N. Rockmore.
《作为数据的法律:计算、文本》述评法律分析的未来。迈克尔·a·利弗莫尔和丹尼尔·n·罗克莫尔编辑。
{"title":"Natural Language Processing for Lawyers and Judges","authors":"Frank Fagan","doi":"10.36644/mlr.119.6.natural","DOIUrl":"https://doi.org/10.36644/mlr.119.6.natural","url":null,"abstract":"A Review of Law as Data: Computation, Text, & the Future of Legal Analysis. Edited by Michael A. Livermore and Daniel N. Rockmore.","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":"138507594","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.DIFFERENT
M. Goodwin
A Review of Incidents in the Life of a Slave Girl. by Harriet A. Jacobs, and They Were Her Property: White Women as Slave Owners in the American South. by Stephanie E. Jones-Rogers.
《一个女奴的生活》述评《她们是她的财产:美国南方白人妇女作为奴隶主》Stephanie E. Jones-Rogers著。
{"title":"A Different Type of Property: White Women and the Human Property They Kept","authors":"M. Goodwin","doi":"10.36644/MLR.119.6.DIFFERENT","DOIUrl":"https://doi.org/10.36644/MLR.119.6.DIFFERENT","url":null,"abstract":"A Review of Incidents in the Life of a Slave Girl. by Harriet A. Jacobs, and They Were Her Property: White Women as Slave Owners in the American South. by Stephanie E. Jones-Rogers.","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":"69682023","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.GEOPOLITICS
A. Lanham
A Review of Badges Without Borders: How Global Counterinsurgency Transformed American Policing. by Stuart Schrader.
《无疆界徽章:全球平叛如何改变美国警务》书评。Stuart Schrader著。
{"title":"The Geopolitics of American Policing","authors":"A. Lanham","doi":"10.36644/MLR.119.6.GEOPOLITICS","DOIUrl":"https://doi.org/10.36644/MLR.119.6.GEOPOLITICS","url":null,"abstract":"A Review of Badges Without Borders: How Global Counterinsurgency Transformed American Policing. by Stuart Schrader.","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":"69682034","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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