Pub Date : 2021-01-01DOI: 10.36646/MJLR.54.2.SEAMAN
Conor Bradley
Section 1 of the Federal Arbitration Act (FAA or the Act) exempts “seamen, railroad employees, [and] any other class of workers engaged in foreign or interstate commerce” from arbitration. In 2019, the Supreme Court held in New Prime Inc. v. Oliveira that this provision exempted independent contractors as well as employees. This decision expanded the reach of the section 1 exemption and may affect the relationship between ridesharing companies, such as Uber, and their drivers. Previously, ridesharing companies argued that courts must enforce the arbitration clauses in their employment contracts because their workers were independent contractors and, therefore, section 1 was inapplicable. Since this argument is now prohibited by the holding in New Prime, rideshare drivers have an opportunity to avoid arbitration using the section 1 exemption. But they still face legal difficulties because of the narrow construction of the exemption employed by courts. This Note argues that the current interpretation of the exemption, which focuses on the physical movement of goods across state lines, is incongruent with the text and history of the FAA and that courts should broaden the exemption to include rideshare drivers.
《联邦仲裁法》(FAA或该法案)第1条免除了“海员、铁路雇员、[和]从事外国或州际贸易的任何其他类别的工人”的仲裁。2019年，最高法院在New Prime Inc. v. Oliveira案中裁定，这一条款豁免了独立承包商和雇员。这一决定扩大了第1条豁免的范围，并可能影响优步等拼车公司与其司机之间的关系。此前，拼车公司辩称，法院必须在其雇佣合同中执行仲裁条款，因为他们的工人是独立的承包商，因此第1条不适用。由于这一论点现在被New Prime的控股所禁止，拼车司机有机会使用第1条豁免来避免仲裁。但由于法院对豁免的狭义界定，他们仍然面临着法律上的困难。本说明认为，目前对豁免的解释侧重于跨州货物的实际移动，与FAA的文本和历史不一致，法院应扩大豁免范围，将拼车司机包括在内。
{"title":"Seamen, Railroad Employees, and Uber Drivers: Applying the Section 1 Exemption in the Federal Arbitration Ace to Rideshare Drivers","authors":"Conor Bradley","doi":"10.36646/MJLR.54.2.SEAMAN","DOIUrl":"https://doi.org/10.36646/MJLR.54.2.SEAMAN","url":null,"abstract":"Section 1 of the Federal Arbitration Act (FAA or the Act) exempts “seamen, railroad employees, [and] any other class of workers engaged in foreign or interstate commerce” from arbitration. In 2019, the Supreme Court held in New Prime Inc. v. Oliveira that this provision exempted independent contractors as well as employees. This decision expanded the reach of the section 1 exemption and may affect the relationship between ridesharing companies, such as Uber, and their drivers. Previously, ridesharing companies argued that courts must enforce the arbitration clauses in their employment contracts because their workers were independent contractors and, therefore, section 1 was inapplicable. Since this argument is now prohibited by the holding in New Prime, rideshare drivers have an opportunity to avoid arbitration using the section 1 exemption. But they still face legal difficulties because of the narrow construction of the exemption employed by courts. This Note argues that the current interpretation of the exemption, which focuses on the physical movement of goods across state lines, is incongruent with the text and history of the FAA and that courts should broaden the exemption to include rideshare drivers.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"109 1","pages":"525-561"},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75280377","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-01DOI: 10.36646/MJLR.54.2.GOVERNMENT
A. Raviv
Americans’ trust in government officials has never been lower. Despite the intense public focus on ethics in government in recent years, legal scholarship on the subject has been sparse. This Article fills the gap by examining the ethics regime of the federal executive branch in depth, with a discussion of both the applicable ethics standards and the agencies and offices that are charged with ensuring that government officials comply with those standards. The Article describes how the current system heavily emphasizes prevention, education, and highly detailed disclosures while it rarely enforces the law against wrongdoers. A federal official in the United States is literally more likely to be struck by lightning than to be charged with violating a government ethics law. The Article then considers the federal government’s ethics regime through the lens of criminal deterrence theory and concludes that the current system is an example of what not to do if the goal is to discourage violations. To address this deficiency, the Article proposes a number of reforms to the current system to improve the deterrent effect of federal ethics standards, including a radical reimagining of the authority of government ethics officials.
{"title":"Government Ethics in the Age of Trump","authors":"A. Raviv","doi":"10.36646/MJLR.54.2.GOVERNMENT","DOIUrl":"https://doi.org/10.36646/MJLR.54.2.GOVERNMENT","url":null,"abstract":"Americans’ trust in government officials has never been lower. Despite the intense public focus on ethics in government in recent years, legal scholarship on the subject has been sparse. This Article fills the gap by examining the ethics regime of the federal executive branch in depth, with a discussion of both the applicable ethics standards and the agencies and offices that are charged with ensuring that government officials comply with those standards. The Article describes how the current system heavily emphasizes prevention, education, and highly detailed disclosures while it rarely enforces the law against wrongdoers. A federal official in the United States is literally more likely to be struck by lightning than to be charged with violating a government ethics law. The Article then considers the federal government’s ethics regime through the lens of criminal deterrence theory and concludes that the current system is an example of what not to do if the goal is to discourage violations. To address this deficiency, the Article proposes a number of reforms to the current system to improve the deterrent effect of federal ethics standards, including a radical reimagining of the authority of government ethics officials.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"2 1","pages":"331-400"},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89229584","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-01DOI: 10.36646/MJLR.54.1.SOVEREIGN
L. Weinberg
This paper argues that the Supreme Court made a serious mistake last term, when, in a case of interstate government tort, it tore up useful options that should be available to each state for the rare cases in which they would be of service. In seeking to insulate a state from liability when its employee intrudes on a sister state’s territory and causes injury there, the Court stripped every state of power, in cases of interstate government tort, to try injuries occurring on its own territory to its own residents—an unprecedented disregard of a state’s acknowledged traditional interests. Indeed, the Court went beyond interstate government tort and seemed to say that the Constitution prohibits litigation against a state in all cases, whether to enforce state or federal law, whether in state or federal courts. It is argued that the Court’s originalist and structural arguments cannot withstand scrutiny. Moreover, the Court’s position, if firmly established, would balk the actual interests even of a state as defendant. The states typically do see a need to meet their tort responsibilities. Real damage has been done, but it is argued that conservative and liberal views on judicial review of government action in time may well converge to put an end to judicial abnegation of the duty to place government at all levels under the rule of law.
{"title":"Sovereign Immunity and Interstate Government Tort","authors":"L. Weinberg","doi":"10.36646/MJLR.54.1.SOVEREIGN","DOIUrl":"https://doi.org/10.36646/MJLR.54.1.SOVEREIGN","url":null,"abstract":"This paper argues that the Supreme Court made a serious mistake last term, when, in a case of interstate government tort, it tore up useful options that should be available to each state for the rare cases in which they would be of service. In seeking to insulate a state from liability when its employee intrudes on a sister state’s territory and causes injury there, the Court stripped every state of power, in cases of interstate government tort, to try injuries occurring on its own territory to its own residents—an unprecedented disregard of a state’s acknowledged traditional interests. Indeed, the Court went beyond interstate government tort and seemed to say that the Constitution prohibits litigation against a state in all cases, whether to enforce state or federal law, whether in state or federal courts. It is argued that the Court’s originalist and structural arguments cannot withstand scrutiny. Moreover, the Court’s position, if firmly established, would balk the actual interests even of a state as defendant. The states typically do see a need to meet their tort responsibilities. Real damage has been done, but it is argued that conservative and liberal views on judicial review of government action in time may well converge to put an end to judicial abnegation of the duty to place government at all levels under the rule of law.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"2 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89409844","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-01DOI: 10.36646/MJLR.54.3.RENTAL
E. Sirota
The Foreclosure Crisis of the 2000s has likely hurt renters more than homeowners. Incongruously, however, consumer enforcement agencies have been far more zealous in protecting mortgagors than tenants. This Article explores the under-protection of tenants as a class of consumers, particularly in a “commoditized” rental market, and examines how consumer enforcement agencies can more zealously incorporate tenant-protection into their mandates. Much of the prior literature on the legal protections afforded tenants was published in the wake of the consumer rights revolution of the 1970s. This Article is the first to carefully reexamine, in the context of the modern rental market, whether tenants should be protected as consumers and whether tenants have truly reaped the benefits of consumer gains over the last half-century. The Article analyzes original interviews with state consumer protection agencies, engages in the first broad survey of state and federal tenant protection enforcement actions, and provides a new review of the caselaw addressing whether tenants are covered by consumer protection regimes. Concluding that achieving systemic change through broad-scale policing of the rental industry is both vital and often overlooked, the Article proposes specific reforms that consumer protection agencies can adopt to better protect tenants.
{"title":"The Rental Crisis Will Not Be Televised: The Case for Protecting Tenants Under Consumer Protection Regimes","authors":"E. Sirota","doi":"10.36646/MJLR.54.3.RENTAL","DOIUrl":"https://doi.org/10.36646/MJLR.54.3.RENTAL","url":null,"abstract":"The Foreclosure Crisis of the 2000s has likely hurt renters more than homeowners. Incongruously, however, consumer enforcement agencies have been far more zealous in protecting mortgagors than tenants. This Article explores the under-protection of tenants as a class of consumers, particularly in a “commoditized” rental market, and examines how consumer enforcement agencies can more zealously incorporate tenant-protection into their mandates. Much of the prior literature on the legal protections afforded tenants was published in the wake of the consumer rights revolution of the 1970s. This Article is the first to carefully reexamine, in the context of the modern rental market, whether tenants should be protected as consumers and whether tenants have truly reaped the benefits of consumer gains over the last half-century. The Article analyzes original interviews with state consumer protection agencies, engages in the first broad survey of state and federal tenant protection enforcement actions, and provides a new review of the caselaw addressing whether tenants are covered by consumer protection regimes. Concluding that achieving systemic change through broad-scale policing of the rental industry is both vital and often overlooked, the Article proposes specific reforms that consumer protection agencies can adopt to better protect tenants.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"2 1","pages":"667"},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81963131","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-01DOI: 10.36646/MJLR.54.1.FRESH
E. Rips
Questions about criminal and juvenile records in the college application process are common and frequently fail to account for the unique characteristics of juvenile justice systems. The ways in which colleges and universities ask about juvenile records often encourage applicants to disclose information in spite of statutory protections. These questions fly in the face of the public policy underlying a range of legal safeguards that are intended to help individuals with records from juvenile systems in moving forward and receiving a second chance. In recent years, a series of legislative and institutional changes have begun to restrict how colleges and universities may ask about criminal and juvenile records. Four states have passed laws limiting how criminal history may be used in the admissions process. The Common Application has moved to make asking about criminal history optional, and now gives institutions more flexibility in deciding how to phrase criminal history questions. This Article presents a first-of-its-kind empirical analysis of how the more than 800 U.S. schools that use the Common Application, and schools in the first states to restrict asking about criminal history, have responded to these changes. While these reforms have affected how frequently colleges and universities ask about criminal history, they continue to leave the door open for some postsecondary institutions to push applicants to disclose juvenile records. The growing movement to restrict use of criminal history in the college admissions process presents a critical opportunity to reconsider the role that postsecondary systems should play in supporting the rehabilitative goals of juvenile justice systems. To that end, this Article concludes by providing recommendations for legislative and institutional language that can more effectively ensure that individuals with juvenile records are given a true second chance and a meaningful opportunity to earn postsecondary degrees.
{"title":"A Fresh Start: The Evolving Use of Juvenile Records in College Admissions","authors":"E. Rips","doi":"10.36646/MJLR.54.1.FRESH","DOIUrl":"https://doi.org/10.36646/MJLR.54.1.FRESH","url":null,"abstract":"Questions about criminal and juvenile records in the college application process are common and frequently fail to account for the unique characteristics of juvenile justice systems. The ways in which colleges and universities ask about juvenile records often encourage applicants to disclose information in spite of statutory protections. These questions fly in the face of the public policy underlying a range of legal safeguards that are intended to help individuals with records from juvenile systems in moving forward and receiving a second chance. In recent years, a series of legislative and institutional changes have begun to restrict how colleges and universities may ask about criminal and juvenile records. Four states have passed laws limiting how criminal history may be used in the admissions process. The Common Application has moved to make asking about criminal history optional, and now gives institutions more flexibility in deciding how to phrase criminal history questions. This Article presents a first-of-its-kind empirical analysis of how the more than 800 U.S. schools that use the Common Application, and schools in the first states to restrict asking about criminal history, have responded to these changes. While these reforms have affected how frequently colleges and universities ask about criminal history, they continue to leave the door open for some postsecondary institutions to push applicants to disclose juvenile records. The growing movement to restrict use of criminal history in the college admissions process presents a critical opportunity to reconsider the role that postsecondary systems should play in supporting the rehabilitative goals of juvenile justice systems. To that end, this Article concludes by providing recommendations for legislative and institutional language that can more effectively ensure that individuals with juvenile records are given a true second chance and a meaningful opportunity to earn postsecondary degrees.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"65 3 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82460390","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-01DOI: 10.36646/mjlr.54.4.drivers
Joni Hirsch, Priya Sarathy Jones
Nearly eleven million people in the United States have a suspended driver’s license for unpaid fines and fees. Laws that suspend, revoke, or prevent renewal of driver’s licenses and/or restrict driving privileges (i.e., registration holds and non-renewals) for nonpayment of traffic- and court-related debt criminalize poverty and disproportionately impact those with a lower economic status. These unproductive and harmful debt-based restrictions not only fail to increase collections of fines and fees, but also divert important public resources for law enforcement and courts away from public safety. The primary way in which these restrictions manifest themselves is through driver’s license suspensions, which are the focus of this article. However, several states also hold or suspend registrations or other required compliance documents, creating the same types of complications that result from a suspended license. The racial disparities of debt-based driver’s license suspensions are even more troubling, as individuals of color are more likely to experience poverty and to be stopped by law enforcement, as well as ticketed, arrested, charged, and convicted for traffic violations. To date, twenty-two states and Washington, D.C. have passed reforms that curb or eliminate the use of driver’s license suspensions and driving privilege restrictions for unpaid fines and fees. While most states continue to suspend, revoke, or prohibit license and/or vehicle compliance renewals for those with unpaid court debt, a growing movement for reform has taken hold. This Article will discuss the imperative for stopping debt-based restrictions and examine the rationales and impacts of two pathways to reform: litigation and legislation. This Article will lay out specific factors that jurisdictions should consider in their reform approach. Careful evaluation of these factors will ensure the greatest benefit while posing the least harm to those most impacted by these policies.
{"title":"Driver's License Suspension for Unpaid Fines and Fees: The Movement for Reform","authors":"Joni Hirsch, Priya Sarathy Jones","doi":"10.36646/mjlr.54.4.drivers","DOIUrl":"https://doi.org/10.36646/mjlr.54.4.drivers","url":null,"abstract":"Nearly eleven million people in the United States have a suspended driver’s license for unpaid fines and fees. Laws that suspend, revoke, or prevent renewal of driver’s licenses and/or restrict driving privileges (i.e., registration holds and non-renewals) for nonpayment of traffic- and court-related debt criminalize poverty and disproportionately impact those with a lower economic status. These unproductive and harmful debt-based restrictions not only fail to increase collections of fines and fees, but also divert important public resources for law enforcement and courts away from public safety. The primary way in which these restrictions manifest themselves is through driver’s license suspensions, which are the focus of this article. However, several states also hold or suspend registrations or other required compliance documents, creating the same types of complications that result from a suspended license. The racial disparities of debt-based driver’s license suspensions are even more troubling, as individuals of color are more likely to experience poverty and to be stopped by law enforcement, as well as ticketed, arrested, charged, and convicted for traffic violations. To date, twenty-two states and Washington, D.C. have passed reforms that curb or eliminate the use of driver’s license suspensions and driving privilege restrictions for unpaid fines and fees. While most states continue to suspend, revoke, or prohibit license and/or vehicle compliance renewals for those with unpaid court debt, a growing movement for reform has taken hold. This Article will discuss the imperative for stopping debt-based restrictions and examine the rationales and impacts of two pathways to reform: litigation and legislation. This Article will lay out specific factors that jurisdictions should consider in their reform approach. Careful evaluation of these factors will ensure the greatest benefit while posing the least harm to those most impacted by these policies.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"26 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74280065","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-01DOI: 10.36646/mjlr.55.1.federal-state
Maddie McFee
In March 2020, the COVID-19 pandemic caused millions of people to lose their jobs and become dependent on unemployment benefits. State unemployment offices were not prepared for this sudden onslaught of claims. Offices could not increase staffing levels because they were not given money by the federal government to do so. As offices were overwhelmed, a scammer group named Scattered Canary took this opportunity to fraudulently claim millions of dollars from several states. Because the federal government supplies administrative funds to states based on average previous need, the system is not designed to support states’ increased needs during sudden economic downturns. This Note argues that the federal government should allot a portion of money within the currently existing Federal Unemployment Fund to create a source of emergency money for states during emergencies. These funds would provide as-requested grants to states to increase staffing more quickly than would otherwise be possible through existing emergency routes. Through the creation of this fund, the federal government would fulfill its part of the federal-state partnership and prevent widespread harm to states during economic crises.
{"title":"Federal-State Partnership: How the Federal Government Should Better Support Its State Unemployment Insurance Offices in Times of Crisis","authors":"Maddie McFee","doi":"10.36646/mjlr.55.1.federal-state","DOIUrl":"https://doi.org/10.36646/mjlr.55.1.federal-state","url":null,"abstract":"In March 2020, the COVID-19 pandemic caused millions of people to lose their jobs and become dependent on unemployment benefits. State unemployment offices were not prepared for this sudden onslaught of claims. Offices could not increase staffing levels because they were not given money by the federal government to do so. As offices were overwhelmed, a scammer group named Scattered Canary took this opportunity to fraudulently claim millions of dollars from several states. Because the federal government supplies administrative funds to states based on average previous need, the system is not designed to support states’ increased needs during sudden economic downturns. This Note argues that the federal government should allot a portion of money within the currently existing Federal Unemployment Fund to create a source of emergency money for states during emergencies. These funds would provide as-requested grants to states to increase staffing more quickly than would otherwise be possible through existing emergency routes. Through the creation of this fund, the federal government would fulfill its part of the federal-state partnership and prevent widespread harm to states during economic crises.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"201 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76017873","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Content warning: this Article discusses police brutality. The relationship between race, law, and policing is one that has been analyzed by many scholars throughout U.S. history. The vast majority of research about police has highlighted policing in relation to groups they police, focusing on areas such as policing practices, policies, or involvement in the racialization of minority groups. This scholarship has far outpaced research on actions taken by law enforcement on behalf of law enforcement— specifically, how law enforcement engages in racialization out of self-interest. A better understanding of the ways in which law enforcement engages in racialization that is not just limited to other groups would provide a new way for understanding race, law, and policing. In addition, such an understanding would provide the appropriate context for policies and laws birthed out of the police racialization process. In this Article, I explore the racialization process of police by police (“blue racing”) in the context of hate crime legislation. I argue that the passage of hate crime legislation that included law enforcement, which I will refer to as “blue lives matter bills,” was not the result of increased violence or threats to officer safety, despite the rationale offered by the bills’ proponents. Instead, utilizing both Zakiya Luna’s “racial framing” and Michael Omi and Howard Winant’s “racial project” concepts, I argue that including law enforcement as a protected category within hate crime statutes was part of a racial project, engaged in by the countermovement blue lives matter, to prevent and criminalize protests that called attention to law enforcement abuse. Essential to this racial project was the blue racing of police. In this way, blue lives matter bill proponents used racial framing to legitimize their claims of alleged oppression. This legitimization gave both the blue lives matter bill proponents and legislatures the cover to punish and reprimand protestors of law enforcement brutality.
{"title":"Blue Racing: The Racialization of Police in Hate Crime Statutes","authors":"Christopher Williams","doi":"10.36646/mjlr.55.1.blue","DOIUrl":"https://doi.org/10.36646/mjlr.55.1.blue","url":null,"abstract":"Content warning: this Article discusses police brutality. The relationship between race, law, and policing is one that has been analyzed by many scholars throughout U.S. history. The vast majority of research about police has highlighted policing in relation to groups they police, focusing on areas such as policing practices, policies, or involvement in the racialization of minority groups. This scholarship has far outpaced research on actions taken by law enforcement on behalf of law enforcement— specifically, how law enforcement engages in racialization out of self-interest. A better understanding of the ways in which law enforcement engages in racialization that is not just limited to other groups would provide a new way for understanding race, law, and policing. In addition, such an understanding would provide the appropriate context for policies and laws birthed out of the police racialization process. In this Article, I explore the racialization process of police by police (“blue racing”) in the context of hate crime legislation. I argue that the passage of hate crime legislation that included law enforcement, which I will refer to as “blue lives matter bills,” was not the result of increased violence or threats to officer safety, despite the rationale offered by the bills’ proponents. Instead, utilizing both Zakiya Luna’s “racial framing” and Michael Omi and Howard Winant’s “racial project” concepts, I argue that including law enforcement as a protected category within hate crime statutes was part of a racial project, engaged in by the countermovement blue lives matter, to prevent and criminalize protests that called attention to law enforcement abuse. Essential to this racial project was the blue racing of police. In this way, blue lives matter bill proponents used racial framing to legitimize their claims of alleged oppression. This legitimization gave both the blue lives matter bill proponents and legislatures the cover to punish and reprimand protestors of law enforcement brutality.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"16 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74487973","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-01DOI: 10.36646/MJLR.54.2.PUBLISH
Michal Lavi
New technologies allow users to communicate ideas to a broad audience easily and quickly, affecting the way ideas are interpreted and their credibility. Each and every social network user can simply click “share” or “retweet” and automatically republish an existing post and expose a new message to a wide audience. The dissemination of ideas can raise public awareness about important issues and bring about social, political, and economic change. Yet, digital sharing also provides vast opportunities to spread false rumors, defamation, and Fake News stories at the thoughtless click of a button. The spreading of falsehoods can severely harm the reputation of victims, erode democracy, and infringe on the public interest. Holding the original publisher accountable and collecting damages from him offers very limited redress since the harmful expression can continue to spread. How should the law respond to this phenomenon and who should be held accountable? Drawing on multidisciplinary social science scholarship from network theory and cognitive psychology, this Article describes how falsehoods spread on social networks, the different motivations to disseminate them, the gravity of the harm they can inflict, and the likelihood of correcting false information once it has been distributed in this setting. This Article will also describe the top-down influence of social media platform intermediaries, and how it enhances dissemination by exploiting users’ cognitive biases and creating social cues that encourage users to share information. Understanding how falsehoods spread is a first step towards providing a framework for meeting this challenge. The Article argues that it is high time to rethink intermediary duties and obligations regarding the dissemination of falsehoods. It examines a new perspective for mitigating the harm caused by the dissemination of falsehood. The Article advocates harnessing social network intermediaries to meet the challenge of dissemination from the stage of platform design. It proposes innovative solutions for mitigating careless, irresponsible sharing of false rumors. The first solution focuses on a platform’s accountability for influencing user decision-making processes. “Nudges” can discourage users from thoughtless sharing of falsehoods and promote accountability ex ante. The second solution * Ph.D. (Law). Research Fellow, Hadar Jabotinsky Center for Interdisciplinary Research of Financial Markets, Crisis and Technology; Postdoctoral Fellow, University of Haifa, Faculty of Law; Cyberlaw Fellow, Federmann Center Hebrew University; Cheshin Fellow, Hebrew University, Faculty of Law, 2018. I thank Michal Shur-Ofry and Emily Cooper. Special thanks are due to Nick Adkins, Hannah Basalone, Nicole Frazer, Sumner Truax, and their colleagues on the University of Michigan Journal of Law Reform staff. I dedicate this Article to the memory of my mother—Aviva Lavi—who died suddenly and unexpectedly. My mother taught me to love knowledge an
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Pub Date : 2021-01-01DOI: 10.36646/MJLR.54.2.PROSECUTING
J. A. Cook
Attorney General William Barr’s handling of Robert Mueller’s Report on the Investigation into Russian Interference in the 2016 Presidential Election was undeniably controversial and raised meaningful questions regarding the impartiality of the Department of Justice. Yet, Barr’s conduct, which occurred at the conclusion of the Mueller investigation, was merely the caboose at the end of a series of controversies that were coupled together from the outset of the investigation. Ensnarled in dissonance from its inception, the Mueller investigation was dogged by controversies that ultimately compromised its legitimacy. Public trust of criminal investigations of executive branch wrongdoing requires prosecutorial independence. To further this critical objective, an investigative and prosecutorial structure must be implemented that grants a prosecutor sufficient latitude to pursue independent investigations while reigning in the exercise of runaway discretion. Indeed, at no time since Watergate has there been such a clear need for reform. This Article will explain why many of the controversies that beset the Mueller investigation can be sourced to the Special Counsel regulations—the rules that governed his appointment, as well as his investigative and prosecutorial authority. And it will explain why many of these ills can be ameliorated by enacting a modified and innovative version of the expired Independent Counsel Statute.
{"title":"Prosecuting Executive Branch Wrongdoing","authors":"J. A. Cook","doi":"10.36646/MJLR.54.2.PROSECUTING","DOIUrl":"https://doi.org/10.36646/MJLR.54.2.PROSECUTING","url":null,"abstract":"Attorney General William Barr’s handling of Robert Mueller’s Report on the Investigation into Russian Interference in the 2016 Presidential Election was undeniably controversial and raised meaningful questions regarding the impartiality of the Department of Justice. Yet, Barr’s conduct, which occurred at the conclusion of the Mueller investigation, was merely the caboose at the end of a series of controversies that were coupled together from the outset of the investigation. Ensnarled in dissonance from its inception, the Mueller investigation was dogged by controversies that ultimately compromised its legitimacy. Public trust of criminal investigations of executive branch wrongdoing requires prosecutorial independence. To further this critical objective, an investigative and prosecutorial structure must be implemented that grants a prosecutor sufficient latitude to pursue independent investigations while reigning in the exercise of runaway discretion. Indeed, at no time since Watergate has there been such a clear need for reform. This Article will explain why many of the controversies that beset the Mueller investigation can be sourced to the Special Counsel regulations—the rules that governed his appointment, as well as his investigative and prosecutorial authority. And it will explain why many of these ills can be ameliorated by enacting a modified and innovative version of the expired Independent Counsel Statute.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"29 1","pages":"401-440"},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91338597","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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