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All the President\u27s Men: Congressional Appointment Restrictions at the Founding
Full text linkThe appointment power is exercised through a unique unicameral process. The Founders emphasized its distinctiveness from our system’s general bicameral legislative process, yet the power has largely been overlooked by scholars and jurists. This Note reveals that appointment discretion is the crucial, but understudied, flipside of the removal-power coin and is essential for presidential administration. Constitutional text, structure, and history indicate that there is a line beyond which congressional restrictions on who is eligible to hold federal office exceed Congress’s delegated powers and infringe on the president’s nomination and appointment power under Article II. The conventional wisdom on this line, expressed in Myers v. United States, is incorrect and permits undue congressional interference into presidential powers. This Note employs a case study of the Fairness in Judicial Appointments Act to explore the historical meaning of the Constitution as it relates to statutory restrictions on eligibility for appointed offices. Ultimately, by rebuffing absolutist trends in recent scholarship, we show that while some legislative qualifications are permissible, many existing statutes purporting to restrict whom the president may appoint to federal office are invalid and unconstitutional
Law in Society: Defending Hart
Full text linkI revisit the debate between Joseph Raz and H. L. A. Hart concerning the nature of legal content and reasoning. Raz contended that legal reasoning should be analyzed as a form of moral reasoning. In contrast, Hart emphasized the distinction between legal and moral content, proposing that legal reasoning is a form of what I will call social-institutional reasoning. I characterize social-institutional reasoning in terms of the agent-relative, domain-specific, universal, and content-insensitive justifications it draws upon. I evaluate Raz’s moralized analysis and argue that it obscures the distinctive contribution that law’s social and institutional grounds play in our understanding of law. By analyzing legal content in moral terms, Raz’s approach obscures the very thing that positivism is well-placed to elucidate: the distinctively social-institutional character of legal reasoning
Genre Audiences, LCGFT and User Warrant: An Exploratory Study
Full text linkThe Library of Congress Genre/Form Terms (LCGFT) vocabulary is among the most prominent genre vocabularies used in library cataloging. To investigate how the current application of LCGFT affects users’ genre access, we gathered data from library patrons, library staff, and parties involved in genre creation and use. The results demonstrate that patrons actively seek out genre materials in libraries, often via library catalogs, and that LCGFT has room for growth and expansion that might enhance patrons’ search experience
Identifying the Guilty, Protecting the Innocent: Amending the Federal Rules of Evidence to Address Admissibility of Eyewitness Identification
No full textMistaken eyewitness identification is among the most common factors in wrongful conviction cases. Indeed, hundreds of innocent defendants have been convicted for a crime they did not commit, their fate sealed by an eyewitness who convincingly, but mistakenly, testified, “That’s the one!”
Scientific researchers have documented the fallibility of eyewitness identification for decades. Their collective work has produced recommendations for eyewitness identification reform, focusing on procedural problems most likely to result in mistaken identification. The law in this area, however, has not kept pace with the science. Rather than representing a cohesive series of safeguards against inaccurate eyewitness identifications, federal law remains an inadequate patchwork of Constitutional principles and evidentiary rules. As a result, well- intentioned eyewitnesses continue to make mistakes, police departments continue to use procedures that may taint an identification, and courts fail to serve the gatekeeping role necessary to improve the accuracy of identifications or moderate confidence in them.
This Article critically examines the law governing eyewitness testimony and argues that the solution is a new Federal Rule of Evidence modeled after Utah Rule of Evidence 617. Utah’s rule provides a comprehensive framework based on longstanding science. It is designed to provide police with the procedures necessary to collect accurate eyewitness identifications during investigations, empower courts to exclude problematic identifications before trial, and offer jurors scientifically grounded information to help them better weigh eyewitness testimony. This multi-faceted rule increases the probability that the criminal system will function as it should: identifying the guilty while protecting the innocent
Fall 2025 - Legal Research with Westlaw
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Host: Jill Burnette-Maurice | Academic Account Managerhttps://repository.law.umich.edu/legaltechseries/1010/thumbnail.jp
Good Cause for Goodness’ Sake: A New Approach to Notice-and-Comment Rulemaking
No full textNotice and comment is a public participation process, first articulated in the Administrative Procedure Act (APA), that was heralded at the time as a critical innovation to engage the general population in the administrative agency rulemaking process. It has been crippled in the past fifty years, first by a series of cases—primarily at the circuit court level—which imposed new procedural requirements on agencies outside the text of the APA itself, and then by technological advancements that have enabled sophisticated parties to game the system while boxing others out. Rather than creating a democratic open-door process, notice and comment has become inequitable, inaccessible, and ineffective. Procedural requirements imposed not by statute but by judges have created both a resource management problem and a litigation trap for administrative agencies, at times preventing them from achieving the actual governance that rules and regulations are meant to advance.
This Note offers agencies a solution already enshrined in the APA that would not require the exceedingly impracticable legislative action many proposed solutions rely on. The existing statutory tool—the good cause exception to notice and comment in section 553 of the APA—should be paired with a series of public engagement tools that are already available to agencies. Unlike notice and comment, these engagement methods are minimally resource-intensive and adapted to existing twenty-first century technologies. This approach preserves meaningful public participation in the rulemaking process while addressing many of the problems apparent in notice and comment without introducing new legislation, explicitly overruling any Supreme Court jurisprudence, or imposing new resource challenges on agencies
Drawing Lines in the Sand: Armed Conflict, Climate Damage and Setbacks to Climate Action
No full textArmed conflicts have a significant and detrimental effect on the climate system, with considerable implications for efforts to mitigate and adapt to climate change and the civilian population. Yet the environmental provisions under the law of armed conflict (LOAC), drafted some half a century ago, struggle to adequately address these concerns. This article assesses the capacity of LOAC to address conflict-driven climate damage and its cascading impacts by characterizing these harms as environmental damage and as injury to civilians. The analysis highlights opportunities for broadening LOA C\u27s scope and offers recommendations to enhance its capacity to address climate damage and indirect harms within its legal framework
Federal Communications Commission v. Consumers\u27 Research: Brief of Julian Davis Mortenson and Nicholas Bagley as \u3cem\u3eAmici Curiae\u3c/em\u3e in Support of Petitioners
No full textJulian Davis Mortenson and Nicholas Bagley are professors at the University of Michigan Law School. Mortenson is a specialist on the history of executive authority and the separation of powers. Bagley is a leading scholar in administrative law. They are the co-authors of Delegation at the Founding, 121 Colum. L. Rev. 277 (2021), a leading article examining Founding- era constitutional principles regarding legislative delegations of authority, and Delegation at the Founding: A Response to the Critics, 122 Colum. L. Rev. 2323 (2022)
Fee-Shifting Shortcuts
No full textFederal fee-shifting statutes, which allow certain prevailing plaintiffs to recover a reasonable attorney’s fee from the defendant, are critically important to civil rights enforcement. When it comes to the interpretation of these statutes, however, a wide gap separates the doctrine articulated by the Supreme Court and the decisions issued by lower courts. According to the Supreme Court, the calculation of a feeshifting award requires a highly contextualized inquiry, specific to the plaintiff’s attorneys and claims; in the lower courts, by contrast, judges take a set of welltrodden shortcuts that flatten many of the differences the case law makes relevant.
This Article identifies and analyzes this gap between the Supreme Court and the lower courts. It focuses on three particularly common shortcuts: lower courts’ use of standardized hourly rates, reliance on judicial expertise about legal markets, and duplication of previous fee awards. Each of these shortcuts can undervalue attorneys’ labor, making it harder for civil rights claimants to find qualified counsel. None is fully consistent with the highly contextualized inquiry that the Supreme Court requires.
Meaningfully narrowing the gap between the Supreme Court and the lower courts would require as much attention to legal culture as to legal doctrine. For example, if a Justice does not appreciate the day-to-day work of the district courts, they will be unlikely to recognize the judicial burdens their fee-shifting decisions have created; and if a judge does not appreciate the logistics and value of plaintiff-side civil rights litigation, they will be unlikely to treat the resolution of fee disputes as a task worthy of their time
Corporate Taxation and Industrial Policy
No full textThe Trump administration recently announced two new ventures into industrial policy. First, it will impose a levy on chip exports to China by Nvidia and Advanced Micro Devices (AMD). Under the agreement, Nvidia and AMD will pay the government 15 percent of their gross revenue from sales to China. The secretary of the Treasury has said the administration will consider expanding this type of deal to other industries. Second, the administration announced that it will take a 9.9 percent equity stake in Inte