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Revisiting Immigration Exceptionalism in Administrative Law
Get PDFWith all the changes swirling in administrative law, one trend seems to be getting less attention than perhaps it should: the death of regulatory exceptionalism in administrative law. For decades, many regulatory fields—such as tax, intellectual property, and antitrust—viewed themselves as exceptional, such that the normal rules of the road in administrative law do not apply. The Supreme Court and the lower courts have increasingly rejected such exceptionalism in many regulatory contexts, emphasizing that the Administrative Procedure Act (APA) and related administrative law doctrines are the default rules unless Congress has clearly chosen to depart from them by statute in a particular regulatory context
Capograssi, imperdonabile
Get PDFWhen reviewing the history of early twentieth century thought, it is not uncommon to read reflections concerning the crisis of contemporary states. Less frequent – but not unheard of – is coming across meditations regarding the very end of the state. Among the latter, those of Giuseppe Capograssi (1889-1956) stand out like a lightning flash, for the eschatological meaning they flare upon the relationship between statehood and the law. «All true research on the state is a profound meditation on its ending», he writes concluding the introduction of his first book in 1918. Like a seal yet to be broken, the claim envelops Capograssi\u27s thought and invites readers to unravel the riddle of his jurisprudence. The article breaks that seal to show how – reflecting on the state’s ending – Capograssi understood religion to be the fulfilment of legal experience
Framing the Framer: A Commentary on Treanor’s Gouverneur Morris as “Dishonest Scrivener”
Get PDFDean William Treanor’s masterful article, The Case of the Dishonest Scrivener: Gouverneur Morris and the Creation of the Federalist Constitution, makes a major contribution to scholarship on the founding, one that will have a profound impact on how we read and understand the Constitution. Treanor’s keen analyses and his presentation of important-but-overlooked historical details support the article’s central and historically significant arguments. Treanor’s research is at the forefront of emerging scholarship seeking to recover “the Federalist Constitution,” a body of constitutional interpretations favored by those Framers who advocated a strong national government. These nationalist interpretations were subsequently emphasized by the Federalist Party in the early decades of politics and policy under the Constitution. But many of these interpretations have been washed away or buried, as the political triumph of Jeffersonian-Madisonian Republicanism after 1800 settled into constitutional orthodoxy. Treanor’s work is thus a crucial contribution to the excavation of ideas whose appreciation is essential to a thorough understanding of our Constitution
Regulatory Paralysis: The Answer to the Unanswerable Question of FCC Minority Ownership Policy
Get PDFFor five decades, the Federal Communications Commission (FCC) has struggled to implement policies that promote minority ownership of broadcast stations. Four “Prometheus” decisions from the Third Circuit span a seventeen-year legal impasse that highlighted the agency’s shortcomings on effective minority ownership policies. Now, after the Supreme Court’s 2021 decision in FCC v. Prometheus Radio Project, the FCC is required to relaunch its media ownership policy in 2022. This paper explores how the FCC has interpreted diversity in media ownership policymaking by examining a range of diversity policies and assessment methodologies particularly regarding minority ownership. The paper then presents data from a thirty-year period to demonstrate that the impasse of the Prometheus cases corresponded with significant growth in minority station ownership. Results of a series of independent empirical tests examining the connection between ownership and diversity, and assessing the diversity of content production in broadcast radio by company size and ownership by race and ethnicity, are discussed in the context of the legal rulings
Pocket Police: The Plain Feel Doctrine Thirty Years Later
Get PDFThe idea that a police officer can park in a low-income neighborhood, pull someone over because of their race, frisk everyone in the car, let them go if their pockets are empty, and do the whole thing over and over again until the officer finds something illegal seems deeply upsetting and violative, to say the least. And yet, pretextual traffic stops are constitutional per a unanimous Supreme Court in Whren v. United States, 517 U.S. 806 (1996), as is seizing obvious contraband during a frisk per Minnesota v. Dickerson, 508 U.S. 366 (1993). In the thirty years since these cases were decided, their disproportionate impact on minority communities has become clear, and yet courts have struggled to place meaningful limits on officer discretion. Amid the growing national conversation on police practices, this Note analyzes the role of Dickerson’s plain feel doctrine, which permits an officer to seize contraband during a frisk so long as the illicit nature of the item is immediately apparent upon “plain feel.” First, it reviews the doctrine as it was established in Dickerson and traces its roots to understand the rationale behind the ruling. Second, it identifies the key factors state and federal courts consider when applying Dickerson and demonstrates that courts presented with similar facts routinely come to conflicting conclusions. Third, this Note assesses the ways modern plain feel doctrine is in tension with core Fourth Amendment principles and argues that, in the thirty years since Dickerson, it has quietly become an ever-broadening loophole enabling the ongoing targeting of minority populations. As calls to address inequitable policing grow louder, the plain feel doctrine is a crucial site for reform
Feedback Loops: Feedback Fundamentals
Get PDFLearning how to give and receive feedback is fundamental to the development of every student and professional. Yet few of us are ever taught anything like “feedback skills.”
This book, which is the first in the Feedback Loops series, is designed to change that. Here is what students who have taken the University of Michigan Law School course on which the series is based have said about it:
“One of the most memorable and useful classes I have taken in law school!”
“Excellent, full stop.”
“This class was always a fun highlight of my week.”https://repository.law.umich.edu/books/1115/thumbnail.jp
Editing and Advocacy
Get PDFGood editors don’t just see the sentence that was written. They see the sentence that might have been written. They know how to spot words that shouldn’t be included and summon up ones that haven’t yet appeared. Their value comes not just from preventing mistakes but from discovering new ways to improve a piece of writing’s style, structure, and overall impact.
This book— which is based on a popular course taught at the University of Chicago Law School, the University of Michigan Law School, and the UCLA School of Law— is designed to help you become one of those editors. You’ll learn how to edit with empathy. You’ll learn how to edit with statistics. You’ll learn, in short, a wide range of compositional skills you can use to elevate your advocacy and better champion the causes you care about the most.
An All-American soccer player in college who holds both a PhD in English and a JD, Professor Patrick Barry joined the University of Michigan Law School after clerking for two federal judges and working in legal clinics devoted to combatting human trafficking and reforming the foster care system. He is the author of several books on advocacy—including Good with Words: Writing and Editing, The Syntax of Sports, and Notes on Nuance—and regularly puts on workshops for law firms, state governments, and nonprofit organizations. He also teaches at the University of Chicago Law School and has developed a series of online courses for the educational platform Coursera.https://repository.law.umich.edu/books/1116/thumbnail.jp
Preemptive Federal Legislation for EV Manufacturers to Sell Direct to Customers
Get PDFThis article advocates for federal legislation to implement a nationwide EV licensing system that would allow both EV manufacturers and dealers to sell and service their vehicles directly to consumers nationwide. This prospective legislation would preempt dealer franchise laws that prohibit or limit manufacturers from selling their vehicles directly to consumers. This article does not argue that direct distribution is the superior method of distribution; instead, this article argues that manufacturers should have the freedom to pursue direct distribution. As more EV companies enter the market, EV manufacturers need to have the flexibility to use a variety of distribution systems that best suit their business needs.
Part II of this article provides background information on the history of dealer franchise laws and the current status of dealer franchise laws. Part III addresses the problems associated with the current car buying process and why some manufacturers prefer to sell their cars directly to consumers. Part III also addresses counterarguments from the dealer lobby. Part IV introduces potential federal legislative reform to preempt state dealer franchise laws to allow EV manufacturers to directly sell their vehicles to consumers
All Stick and No Carrot? Reforming Public Offerings
Get PDFThe SEC heavily regulates the traditional initial public offering. Those regulatory burdens fuel interest in alternative paths for private companies to go public, “regulatory arbitrage.” The SEC’s response to the emergence of alternatives, most recently SPACs and direct listings, has been to suppress them by imposing heightened liability under Section 11 of the Securities Act. The SEC’s treatment of the traditional IPO regulatory process as a one-size-fits-all regime ignores the weaknesses of this process, in particular the informational inefficiency of the book-building process. In this essay we argue that the agency’s focus in regulating issuers going public should be on promoting market pricing driven by sophisticated investors with access to credible disclosure. We propose an alternative approach that provides issuers with a clear choice in going public: 1) provide disclosures for a seasoning period prior to listing their securities for public trading, with corresponding reductions in regulatory requirements for going public (the “carrot”); or 2) impose heightened liability on company’s going public without a seasoning period, not only for registration statements, but also for the company’s periodic disclosures released during a post-offering seasoning period (the “stick”). We argue that such a regime would push issuers to maximize the joint welfare of both issuers and investors