US international tax law is commonly conceived as developed in the US and influencing the development of other countries' international tax law. This paper will argue that in the case of the TCJA, the US legislation was heavily influenced by the OECD BEPS project, and that the continuing OECD work in Pillars I and II is likely to have a similar influence on the future development of US international tax law.
{"title":"Constructive Dialogue: BEPS and the TCJA","authors":"R. Avi-Yonah","doi":"10.2139/ssrn.3544065","DOIUrl":"https://doi.org/10.2139/ssrn.3544065","url":null,"abstract":"US international tax law is commonly conceived as developed in the US and influencing the development of other countries' international tax law. This paper will argue that in the case of the TCJA, the US legislation was heavily influenced by the OECD BEPS project, and that the continuing OECD work in Pillars I and II is likely to have a similar influence on the future development of US international tax law.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"42 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77861922","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 : 2020-01-01DOI: 10.36646/mjlr.53.4.dispossessing.moringiello
Juliet M. Moringiello
The residents of struggling cities suffer property dispossessions both as individual owners and as municipal residents. Their individual dispossessions are part of a cycle that often begins with industrial decline. In Detroit, for example, more than 100,000 residents have lost their homes to tax foreclosure over a four-year period that bracketed the city’s bankruptcy filing. Falling property values, job losses, and foreclosures affect municipal budgets by reducing tax revenues. As individual dispossessions exacerbate municipal financial crises, residents can also face the loss of municipal property. Struggling cities and towns often sell publicly owned property—from parks to parking systems—to balance municipal budgets. This article discusses the relationship between property dispossessions and proceedings to resolve municipal financial distress, with a focus on another important loss faced by residents of distressed municipalities—the loss of their voice in municipal government. A municipal financial crisis, by itself, has no effect on the property of any individuals who live in the city, and a city’s bankruptcy does not take a city’s assets in the same way that a corporate or personal bankruptcy can take the property of a business or individual. Yet even though creditors cannot force the sale of city-owned assets, the decision to transfer the property may be made by unelected officials appointed by the state government to replace city government in times of financial crisis. This results in another type of collective dispossession—the dispossession of resident voice in local government affairs. This article discusses how insolvency proceedings, including Chapter 9 bankruptcy, can deprive residents of their voice and, in turn, deprive them of the city’s assets that the city holds for them in public trust and proposes some suggestions for states for balancing the need for resident voice with higher-level financial oversight as they determine how to manage the financial distress of their cities. * Associate Dean for Research and Faculty Development, Widener University Commonwealth Law School. Many thanks to the editors and staff of the Michigan Journal of Law Reform for hosting the thought-provoking symposium, Dispossessing Detroit, for which this Ar-
{"title":"Dispossessing Resident Voice: Municipal Receiverships and the Public Trust","authors":"Juliet M. Moringiello","doi":"10.36646/mjlr.53.4.dispossessing.moringiello","DOIUrl":"https://doi.org/10.36646/mjlr.53.4.dispossessing.moringiello","url":null,"abstract":"The residents of struggling cities suffer property dispossessions both as individual owners and as municipal residents. Their individual dispossessions are part of a cycle that often begins with industrial decline. In Detroit, for example, more than 100,000 residents have lost their homes to tax foreclosure over a four-year period that bracketed the city’s bankruptcy filing. Falling property values, job losses, and foreclosures affect municipal budgets by reducing tax revenues. As individual dispossessions exacerbate municipal financial crises, residents can also face the loss of municipal property. Struggling cities and towns often sell publicly owned property—from parks to parking systems—to balance municipal budgets. This article discusses the relationship between property dispossessions and proceedings to resolve municipal financial distress, with a focus on another important loss faced by residents of distressed municipalities—the loss of their voice in municipal government. A municipal financial crisis, by itself, has no effect on the property of any individuals who live in the city, and a city’s bankruptcy does not take a city’s assets in the same way that a corporate or personal bankruptcy can take the property of a business or individual. Yet even though creditors cannot force the sale of city-owned assets, the decision to transfer the property may be made by unelected officials appointed by the state government to replace city government in times of financial crisis. This results in another type of collective dispossession—the dispossession of resident voice in local government affairs. This article discusses how insolvency proceedings, including Chapter 9 bankruptcy, can deprive residents of their voice and, in turn, deprive them of the city’s assets that the city holds for them in public trust and proposes some suggestions for states for balancing the need for resident voice with higher-level financial oversight as they determine how to manage the financial distress of their cities. * Associate Dean for Research and Faculty Development, Widener University Commonwealth Law School. Many thanks to the editors and staff of the Michigan Journal of Law Reform for hosting the thought-provoking symposium, Dispossessing Detroit, for which this Ar-","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"14 1","pages":"733-754"},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75384523","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}
This Article describes a way of thinking about law and politics that is ancient in origins but largely absent from modern legal scholarship. It poses a two-part question: how do our law and politics influence our character, and how does that in turn influence how well and fully we live? Much legal scholarship asks how law can be more efficient and effective in making us richer, healthier, safer, and such. This is good: wealth, health, and safety are—or can be—good things. But material conditions are not the only things that make for a rich and full life. What also matters—and beyond a certain threshold may matter much more—is what sort of people we are. If, for example, we are wise and brave, we will likely live better and more fully than if we are foolish and fearful. This much should be uncontroversial. What goes unaddressed, however, is that law and politics, whether we like it or not, have an impact on what sort of people we become. Granted, the impact is incremental and marginal, but it may also be cumulative and substantial—just as an incremental cumulative exposure to asbestos can lead to cancer. We can ignore it; but that does not make it go away. We can claim that it is not the business of law to think about character; but that is an irresponsible dodge. This Article argues that we should acknowledge and take responsibility for the impact our law and politics have on our character and thus on our capacity to live well. To that end I describe several ways in which law and politics may influence the sort of people we become. I then offer a way of thinking about what traits and capacities may conduce to our thriving—as democratic citizens and human beings. Just as a dose or two of poison every day can cause illness, nutrition and exercise can build strength. If our law and politics inevitably have some impact on the sort of people we become, as I argue they do, we should ask whether and how we can nurture the strengths we need—for our city and our
{"title":"The City and the Soul: Character and Thriving in Law and Politics","authors":"Sherman J. Clark","doi":"10.36646/mjlr.53.2.city","DOIUrl":"https://doi.org/10.36646/mjlr.53.2.city","url":null,"abstract":"This Article describes a way of thinking about law and politics that is ancient in origins but largely absent from modern legal scholarship. It poses a two-part question: how do our law and politics influence our character, and how does that in turn influence how well and fully we live? Much legal scholarship asks how law can be more efficient and effective in making us richer, healthier, safer, and such. This is good: wealth, health, and safety are—or can be—good things. But material conditions are not the only things that make for a rich and full life. What also matters—and beyond a certain threshold may matter much more—is what sort of people we are. If, for example, we are wise and brave, we will likely live better and more fully than if we are foolish and fearful. This much should be uncontroversial. What goes unaddressed, however, is that law and politics, whether we like it or not, have an impact on what sort of people we become. Granted, the impact is incremental and marginal, but it may also be cumulative and substantial—just as an incremental cumulative exposure to asbestos can lead to cancer. We can ignore it; but that does not make it go away. We can claim that it is not the business of law to think about character; but that is an irresponsible dodge. This Article argues that we should acknowledge and take responsibility for the impact our law and politics have on our character and thus on our capacity to live well. To that end I describe several ways in which law and politics may influence the sort of people we become. I then offer a way of thinking about what traits and capacities may conduce to our thriving—as democratic citizens and human beings. Just as a dose or two of poison every day can cause illness, nutrition and exercise can build strength. If our law and politics inevitably have some impact on the sort of people we become, as I argue they do, we should ask whether and how we can nurture the strengths we need—for our city and our","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"16 1","pages":"417-446"},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90790451","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}
In June 2018, the Supreme Court issued its long-awaited—and, for the American labor movement, long-feared—decision in Janus v. AFSCME Council 31. The decision is expected to have a major impact on public sector employee union membership, but could have further impact on public employees’ speech rights in the workplace. Writing for the majority, Justice Samuel Alito’s broad interpretation of whether work-related speech constitutes a “matter of public concern” may have opened the floodgates to substantially more litigation by employees asserting that their employers have violated their First Amendment rights. Claims that would have previously been unequivocally foreclosed may now be permitted. This Note proposes a test to allow courts to meaningfully respond to this influx of claims. By explicitly incorporating the “social value” of public employee speech into the Pickering balance test as a factor of equal weight alongside the existing factors—the individual employee’s right to speech and the employer’s interest in operating an effective workplace—courts can make meaningful sense of the doctrinal conflict Janus created while also respecting and promoting the unique role public employee speech plays in public discourse.
{"title":"A More Perfect Pickering Test: Janus v. AFSCME Council 31 and the Problem of Public Employee Speech","authors":"A. Gilewicz","doi":"10.36646/mjlr.53.3.more","DOIUrl":"https://doi.org/10.36646/mjlr.53.3.more","url":null,"abstract":"In June 2018, the Supreme Court issued its long-awaited—and, for the American labor movement, long-feared—decision in Janus v. AFSCME Council 31. The decision is expected to have a major impact on public sector employee union membership, but could have further impact on public employees’ speech rights in the workplace. Writing for the majority, Justice Samuel Alito’s broad interpretation of whether work-related speech constitutes a “matter of public concern” may have opened the floodgates to substantially more litigation by employees asserting that their employers have violated their First Amendment rights. Claims that would have previously been unequivocally foreclosed may now be permitted. This Note proposes a test to allow courts to meaningfully respond to this influx of claims. By explicitly incorporating the “social value” of public employee speech into the Pickering balance test as a factor of equal weight alongside the existing factors—the individual employee’s right to speech and the employer’s interest in operating an effective workplace—courts can make meaningful sense of the doctrinal conflict Janus created while also respecting and promoting the unique role public employee speech plays in public discourse.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"47 1","pages":"671-692"},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86547655","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 : 2020-01-01DOI: 10.36646/mjlr.53.3.revisiting
T. Shiff
The Immigration and Nationality Act (INA) defines a refugee as any person who has a “well-founded fear of persecution on account of race, religion, nationality, membership of a particular social group or political opinion.” An emerging issue in U.S. asylum law is how to define the category “membership of a particular social group.” This question has become ever-more pressing in light of the fact that the majority of migrants seeking asylum at the U.S.-Mexico border are claiming persecution on account of their “membership in a particular social group.” The INA does not define the meaning of “particular social group” and courts are split over the correct definition of the term. According to one approach, the focus should be on which immutable characteristics should be protected from systemic discrimination. According to a second approach, the focus should rather be on how members of a given society define the boundaries of the proposed group. Each framework centers the analysis on a fundamentally distinct set of questions and concerns. This Article outlines the development and conceptual basis of each framework, to show that an immutability-centered approach to defining particular social group generates more consistency in asylum decisions and broadens the scope of asylum to include women and victims of harm traditionally categorized as falling within the category of “private criminal activity.” This Article contributes to debates on asylum policy by shedding new light on how to define the contours of asylum status and proposing concrete means by which to accomplish change.
{"title":"Revisiting Immutability: Competing Frameworks for Adjudicating Asylum Claims Based on Membership in a Particular Social Group","authors":"T. Shiff","doi":"10.36646/mjlr.53.3.revisiting","DOIUrl":"https://doi.org/10.36646/mjlr.53.3.revisiting","url":null,"abstract":"The Immigration and Nationality Act (INA) defines a refugee as any person who has a “well-founded fear of persecution on account of race, religion, nationality, membership of a particular social group or political opinion.” An emerging issue in U.S. asylum law is how to define the category “membership of a particular social group.” This question has become ever-more pressing in light of the fact that the majority of migrants seeking asylum at the U.S.-Mexico border are claiming persecution on account of their “membership in a particular social group.” The INA does not define the meaning of “particular social group” and courts are split over the correct definition of the term. According to one approach, the focus should be on which immutable characteristics should be protected from systemic discrimination. According to a second approach, the focus should rather be on how members of a given society define the boundaries of the proposed group. Each framework centers the analysis on a fundamentally distinct set of questions and concerns. This Article outlines the development and conceptual basis of each framework, to show that an immutability-centered approach to defining particular social group generates more consistency in asylum decisions and broadens the scope of asylum to include women and victims of harm traditionally categorized as falling within the category of “private criminal activity.” This Article contributes to debates on asylum policy by shedding new light on how to define the contours of asylum status and proposing concrete means by which to accomplish change.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"24 1","pages":"567-596"},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75682720","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 : 2020-01-01DOI: 10.36646/mjlr.53.4.dispossessing.sickel
Mary Kathlin Sickel
Introduction for the University of Michigan Journal of Law Reform's Symposium “Dispossessing Detroit: How the Law Takes Property,” hosted on November 9 and 10, 2019.
2019年11月9日至10日，密歇根大学法律改革期刊研讨会“剥夺底特律:法律如何剥夺财产”。
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Pub Date : 2020-01-01DOI: 10.36646/mjlr.53.3.resolving
S. Davenport
When the Supreme Court decided Lucia v. SEC and held that administrative law judges (ALJs) are Officers under the Constitution, the Court opened a flood of constitutional issues around the status of ALJs and related government positions. One central issue relates to ALJs’ removal protections. ALJs currently have two layers of protection between them and the President. In an earlier Supreme Court decision, the Court held that two layers of tenure protection between an “Officer of the United States” and the President was unconstitutional as it deprived the President the power to hold his officers accountable. As impartial adjudicators, ALJs need those layers of protection to ensure fair adjudicative hearings. Lucia now threatens ALJ protections. This Note argues that implementing a peremptory challenge system which would allow each party in an adjudicative hearing to remove the ALJ from hearing its case would create an avenue in which the Court could justify the removal issue. Such a proposal would fix executive oversight concerns about the President being unable to properly implement his policy. Additionally, peremptory challenges would allow litigants in front of an agency be able to remove ALJs they feel are predisposed to the agency. By addressing both constitutional issues, the Court may be more likely to find that the two layers of tenure protection in place are permissible for those in adjudicatory positions. INTRODUCTION................................................................................ 694 I. APPOINTMENT AND REMOVAL OF ALJS AND LUCIA.............. 696 A. Congress Enacted Protections to Keep ALJs Independent from their Agency ........................................................ 697 B. Lucia Designated ALJs as Officers of the United States...... 698 C. The President Has the Power to Remove His Officers Which Now Includes ALJs ............................................ 701 II. ALJ REMOVAL PROTECTIONS VIOLATE THE APPOINTMENTS CLAUSE ...................................................... 702 A. The Court’s Decision to Not Define “Significant Authority” Threatens the Independence of Hundreds of Agency Employees........................................................ 702 B. Removal Protections Raise Constitutional Issues .............. 704 1. Removal Protections Limit Presidential * J.D. Candidate, May 2020, University of Michigan Law School. I would like to thank the Michigan Journal of Law Reform editors for their feedback and comments through the process. I would like to thank Professor Nicholas Bagley for his comments on an early draft, and I also appreciate the helpful comments from Laurence Batmazian and Gregg Coughlin. 694 University of Michigan Journal of Law Reform [Vol. 53:3 Supervisory Oversight............................................ 704 2. Removing ALJ Tenure Protections Raise Due Process Concerns ........................................... 706 III. PROPOSED SOLUTIONS TO THE APPOINTMENT AND REMOVAL OF ALJS ....
{"title":"Resolving ALJ Removal Protections Problem Following Lucia","authors":"S. Davenport","doi":"10.36646/mjlr.53.3.resolving","DOIUrl":"https://doi.org/10.36646/mjlr.53.3.resolving","url":null,"abstract":"When the Supreme Court decided Lucia v. SEC and held that administrative law judges (ALJs) are Officers under the Constitution, the Court opened a flood of constitutional issues around the status of ALJs and related government positions. One central issue relates to ALJs’ removal protections. ALJs currently have two layers of protection between them and the President. In an earlier Supreme Court decision, the Court held that two layers of tenure protection between an “Officer of the United States” and the President was unconstitutional as it deprived the President the power to hold his officers accountable. As impartial adjudicators, ALJs need those layers of protection to ensure fair adjudicative hearings. Lucia now threatens ALJ protections. This Note argues that implementing a peremptory challenge system which would allow each party in an adjudicative hearing to remove the ALJ from hearing its case would create an avenue in which the Court could justify the removal issue. Such a proposal would fix executive oversight concerns about the President being unable to properly implement his policy. Additionally, peremptory challenges would allow litigants in front of an agency be able to remove ALJs they feel are predisposed to the agency. By addressing both constitutional issues, the Court may be more likely to find that the two layers of tenure protection in place are permissible for those in adjudicatory positions. INTRODUCTION................................................................................ 694 I. APPOINTMENT AND REMOVAL OF ALJS AND LUCIA.............. 696 A. Congress Enacted Protections to Keep ALJs Independent from their Agency ........................................................ 697 B. Lucia Designated ALJs as Officers of the United States...... 698 C. The President Has the Power to Remove His Officers Which Now Includes ALJs ............................................ 701 II. ALJ REMOVAL PROTECTIONS VIOLATE THE APPOINTMENTS CLAUSE ...................................................... 702 A. The Court’s Decision to Not Define “Significant Authority” Threatens the Independence of Hundreds of Agency Employees........................................................ 702 B. Removal Protections Raise Constitutional Issues .............. 704 1. Removal Protections Limit Presidential * J.D. Candidate, May 2020, University of Michigan Law School. I would like to thank the Michigan Journal of Law Reform editors for their feedback and comments through the process. I would like to thank Professor Nicholas Bagley for his comments on an early draft, and I also appreciate the helpful comments from Laurence Batmazian and Gregg Coughlin. 694 University of Michigan Journal of Law Reform [Vol. 53:3 Supervisory Oversight............................................ 704 2. Removing ALJ Tenure Protections Raise Due Process Concerns ........................................... 706 III. PROPOSED SOLUTIONS TO THE APPOINTMENT AND REMOVAL OF ALJS ....","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"49 1","pages":"693-726"},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78841037","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 : 2020-01-01DOI: 10.36646/mjlr.53.3.dignity
Lu-in Wang, Zachary W. Brewster
In interactive customer service encounters, the dignity of the parties becomes the currency of a commercial transaction. Service firms that profit from customer satisfaction place great emphasis on emotional labor, the work that service providers do to make customers feel cared for and esteemed. But performing emotional labor can deny dignity to workers by highlighting their subservience and requiring them to suppress their own emotions in an effort to elevate the status and experiences of their customers. Paradoxically, the burden of performing emotional labor may also impose transactional costs on some customers by facilitating discrimination in service delivery. Drawing on the extant scholarship on emotional labor and ongoing research on full-service restaurants, we argue that the strain and indignities of performing emotional labor, often for precarious compensation, lead servers to adopt various coping strategies, including some that open the door to their delivery of inferior and inhospitable service. When these strains and indignities are coupled with culturally entrenched racial stereotypes and racialized discourse in the workplace, the result is that people of color—a legally protected category of customers—are systematically denied dignity and equality by being excluded from the benefits of welcoming and caring customer service. Discriminatory customer service often is so subtle and ambiguous that it escapes legal accountability. It nevertheless warrants our attention, because it contributes to the social and economic marginalization of people of color. Far from being a mundane or trivial concern, the dynamics described in this Article underscore the various ways in which particular groups come to be designated as suitable targets for a wide range of disregard and mistreatment. These dynamics also illuminate how structural conditions facilitate and promote economic discrimination, as well as the connections between workers’ rights and civil rights. * Professor of Law, University of Pittsburgh School of Law (lu-inwang@pitt.edu). I am grateful to Mary Crossley and Dave Herring for their comments on earlier drafts, to Akira Tomlinson for her stellar work on this project as a Derrick A. Bell Student Research Fellow and the family of Professor Derrick A. Bell for supporting that work, and to Dean Chip Carter and Research Dean Debbie Brake for generous institutional and collegial support. ** Associate Professor of Sociology, Wayne State University (zbrewster@wayne.edu). 532 University of Michigan Journal of Law Reform [Vol. 53:3
{"title":"Dignity Transacted: Emotional Labor and the Racialized Workplace","authors":"Lu-in Wang, Zachary W. Brewster","doi":"10.36646/mjlr.53.3.dignity","DOIUrl":"https://doi.org/10.36646/mjlr.53.3.dignity","url":null,"abstract":"In interactive customer service encounters, the dignity of the parties becomes the currency of a commercial transaction. Service firms that profit from customer satisfaction place great emphasis on emotional labor, the work that service providers do to make customers feel cared for and esteemed. But performing emotional labor can deny dignity to workers by highlighting their subservience and requiring them to suppress their own emotions in an effort to elevate the status and experiences of their customers. Paradoxically, the burden of performing emotional labor may also impose transactional costs on some customers by facilitating discrimination in service delivery. Drawing on the extant scholarship on emotional labor and ongoing research on full-service restaurants, we argue that the strain and indignities of performing emotional labor, often for precarious compensation, lead servers to adopt various coping strategies, including some that open the door to their delivery of inferior and inhospitable service. When these strains and indignities are coupled with culturally entrenched racial stereotypes and racialized discourse in the workplace, the result is that people of color—a legally protected category of customers—are systematically denied dignity and equality by being excluded from the benefits of welcoming and caring customer service. Discriminatory customer service often is so subtle and ambiguous that it escapes legal accountability. It nevertheless warrants our attention, because it contributes to the social and economic marginalization of people of color. Far from being a mundane or trivial concern, the dynamics described in this Article underscore the various ways in which particular groups come to be designated as suitable targets for a wide range of disregard and mistreatment. These dynamics also illuminate how structural conditions facilitate and promote economic discrimination, as well as the connections between workers’ rights and civil rights. * Professor of Law, University of Pittsburgh School of Law (lu-inwang@pitt.edu). I am grateful to Mary Crossley and Dave Herring for their comments on earlier drafts, to Akira Tomlinson for her stellar work on this project as a Derrick A. Bell Student Research Fellow and the family of Professor Derrick A. Bell for supporting that work, and to Dean Chip Carter and Research Dean Debbie Brake for generous institutional and collegial support. ** Associate Professor of Sociology, Wayne State University (zbrewster@wayne.edu). 532 University of Michigan Journal of Law Reform [Vol. 53:3","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"9 1","pages":"531-566"},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84290526","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 : 2020-01-01DOI: 10.36646/mjlr.53.2.making
Hetali M. Lodaya
The Individuals with Disabilities Education Act (IDEA) lays out a powerful set of protections and procedural safeguards for students with disabilities in public schools. Nevertheless, there is a persistent debate as to how far schools must go to fulfill their mandate under the IDEA. The Supreme Court recently addressed this question with its decision in Endrew F. v. Douglas City School District Re-1, holding that an educational program for a student with a disability must be “reasonably calculated” to enable a child’s progress in light of their circumstances. Currently, the Act’s statutory language mandates Individual Education Program (IEP) teams to consider a variety of factors including “the strengths of each child,” “the concerns of the parents,” “the results of the . . . most recent evaluation of the child,” and “the academic, developmental, and functional needs of the child.”1 This Note proposes an amendment to the IDEA, inspired by the Strengths, Weaknesses, Opportunities, and Threats (SWOT) analysis framework used in business strategy, that adds external “threats” to this list of factors. This amendment will help parents, advocates, and schools better understand the Endrew F. standard and implement it with fidelity to the IDEA’s broad mandate.
{"title":"Making a Reasonable Calculation: A Strategic Amendment to the IDEA","authors":"Hetali M. Lodaya","doi":"10.36646/mjlr.53.2.making","DOIUrl":"https://doi.org/10.36646/mjlr.53.2.making","url":null,"abstract":"The Individuals with Disabilities Education Act (IDEA) lays out a powerful set of protections and procedural safeguards for students with disabilities in public schools. Nevertheless, there is a persistent debate as to how far schools must go to fulfill their mandate under the IDEA. The Supreme Court recently addressed this question with its decision in Endrew F. v. Douglas City School District Re-1, holding that an educational program for a student with a disability must be “reasonably calculated” to enable a child’s progress in light of their circumstances. Currently, the Act’s statutory language mandates Individual Education Program (IEP) teams to consider a variety of factors including “the strengths of each child,” “the concerns of the parents,” “the results of the . . . most recent evaluation of the child,” and “the academic, developmental, and functional needs of the child.”1 This Note proposes an amendment to the IDEA, inspired by the Strengths, Weaknesses, Opportunities, and Threats (SWOT) analysis framework used in business strategy, that adds external “threats” to this list of factors. This amendment will help parents, advocates, and schools better understand the Endrew F. standard and implement it with fidelity to the IDEA’s broad mandate.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"58 1","pages":"495-530"},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89348705","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 : 2020-01-01DOI: 10.36646/mjlr.53.4.eighteen
Tirza Mullin
The Eighth Amendment protects a criminal defendant’s right to be free from cruel and unusual punishment. This Note argues that any punishment of eighteento twenty-five-year-olds is cruel and unusual without considering their youthfulness at every stage of the criminal process, and that it is unconstitutional under the Eighth Amendment for these youths to be automatically treated as fullydeveloped adults. This Note will explore in depth how juveniles differ from adults, both socially and scientifically, and how the criminal justice system fails every youth aged eighteento twenty-five by subjecting them to criminal, rather than juvenile, court without considering their youthfulness and diminished capacity. This Note proposes three reforms that, implemented together, aim to remedy this Eighth Amendment violation. First, the Supreme Court should apply the seminal cases of Miller, Roper, and Graham to eighteento twenty-five-year-olds. Second, all states should extend the age of juvenile jurisdiction to twenty-five, processing offenders twenty-five and younger through the juvenile system accordingly. Finally, every actor in the system—including courts, lawyers, and legislatures—should label eighteento twenty-five-year-olds as “youth” and consider their age at every stage of the criminal system.
{"title":"Eighteen Is Not a Magic Number: Why the Eighth Amendment Requires Protection for Youth Aged Eighteen to Twenty-Five","authors":"Tirza Mullin","doi":"10.36646/mjlr.53.4.eighteen","DOIUrl":"https://doi.org/10.36646/mjlr.53.4.eighteen","url":null,"abstract":"The Eighth Amendment protects a criminal defendant’s right to be free from cruel and unusual punishment. This Note argues that any punishment of eighteento twenty-five-year-olds is cruel and unusual without considering their youthfulness at every stage of the criminal process, and that it is unconstitutional under the Eighth Amendment for these youths to be automatically treated as fullydeveloped adults. This Note will explore in depth how juveniles differ from adults, both socially and scientifically, and how the criminal justice system fails every youth aged eighteento twenty-five by subjecting them to criminal, rather than juvenile, court without considering their youthfulness and diminished capacity. This Note proposes three reforms that, implemented together, aim to remedy this Eighth Amendment violation. First, the Supreme Court should apply the seminal cases of Miller, Roper, and Graham to eighteento twenty-five-year-olds. Second, all states should extend the age of juvenile jurisdiction to twenty-five, processing offenders twenty-five and younger through the juvenile system accordingly. Finally, every actor in the system—including courts, lawyers, and legislatures—should label eighteento twenty-five-year-olds as “youth” and consider their age at every stage of the criminal system.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"20 1","pages":"807"},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78723721","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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