The Need for an Established Senate Rule on Election-Year and Lame Duck Session Supreme Court Nominations

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(PDF) 54 U. Mich. J. L. Reform Caveat

Jacob R. Weaver*

Introduction

In 2016, the Republican-held Senate refused to hold a hearing on President Barack Obama’s nominee, Merrick Garland, sparking outrage among the Democratic Party.1 Then-Senate Majority Leader Mitch McConnell justified his party’s actions based on what became known as the “McConnell Rule.” This controversial rule holds that during years of presidential elections, when the president and the Senate majority are of different parties, the Senate is not expected to confirm the president’s Supreme Court nominees; but, when the president and Senate majority are of the same party, vacancies may be filled.2

When the Senate applied this rule in 2020, the stakes were even higher. Revered liberal stalwart Justice Ruth Bader Ginsburg passed away only 46 days before the 2020 presidential election.3 Invoking the McConnell Rule,4 the Republican-held Senate moved forward with the confirmation of President Trump’s nominee Amy Coney Barrett.5 This contentious move again infuriated Democrats, and the topic of court-packing soon became a central issue for the presidential campaign.6

Now that Justice Barrett has been appointed and the presidential election has passed, it is useful to look back on the history of Supreme Court nominations during presidential election years. Such a review suggests that the so-called McConnell Rule is rooted in valid historical precedent. In fact, viewed in light of American history, even a Trump lame duck nomination and confirmation would have been valid.

This blog post argues that the Senate should distill this historical precedent into an explicit Rule of the Senate that will govern the chamber going forward. The rule should obligate the Senate to either (1) hold a vote to confirm the election-year or lame duck nominee, or (2) hold a vote to postpone action on the nomination. If a vote to postpone action on the nomination fails, the rule should then compel the Senate to hold a vote to confirm the nominee. Such a rule removes all doubt about the Senate’s authority to act or refuse to act on election-year and lame duck nominees, exposes unfounded threats of retaliation by minority parties, and best conforms to the Constitution.

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Announcing JLR’s 2021 Symposium: “The Poverty Penalty: America’s Overuse of Fines and Fees”

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The Michigan Journal of Law Reform is pleased to announce that its 2021 Symposium, “The Poverty Penalty: America’s Overuse of Fines and Fees” will take place January 25-29, 2021 as a series of five virtual talks from 12:00 – 1:00 pm EST. Each panel will take place via zoom and registration is required for each panel. Zoom links will be provided to all registered participants prior to the start of each panel. Please visit our website povertypenaltyjlr.com to register and for more information about the event.

Volume 53 Issue 4 Summer 2020

Introduction

Dispossessing Detroit: How the Law Takes Property (pdf)
Mary Kathlin Sickel

Articles

Dispossessing Resident Voice: Municipal Receiverships and the Public Trust (pdf)
Juliet M. Moringiello

Tell Me How It Ends: The Path to Nationalizing the U.S. Pharmaceutical Industry (pdf)
Fran Quigley

Note

Eighteen Is Not a Magic Number: Why the Eighth Amendment Requires Protection for Youth Aged Eighteen to Twenty-Five (pdf)
Tirza A. Mullin

Volume 53 Issue 3 Spring 2020

Articles

Dignity Transacted: Emotional Labor and the Racialized Workplace (pdf)
Lu-in Wang and Zachary W. Brewster

Revisiting Immutability: Competing Frameworks for Adjudicating Asylum Claims Based on Membership in a Particular Social Group (pdf)
Talia Shiff

Calculating Compensation Sums for Private Law Wrongs: Underlying Imprecisions, Necessary Questions, and Toward a Plausible Account of Damages for Lost Years of Life (pdf)
Michael Pressman

Notes

A More Perfect Pickering Test: Janus v. AFSCME Council 31 and the Problem of Public Employee Speech (pdf)
Alexandra J. Gilewicz

Resolving ALJ Removal Protections Problem Following Lucia (pdf)
Spencer Davenport

Serving-Up the ACE: Understanding Adverse Childhood Experiences (“ACE”) in Dependency Adoption Through the Lens of Social Science

(PDF) 54 U. Mich. J. L. Reform Caveat 1 (2020)

Cynthia G. Hawkins* and Taylor Scribner**

I. Introduction

The damage done to us during our childhood cannot be undone, since we cannot change anything in our past. We can, however, change ourselves. We can repair ourselves and gain our lost integrity by choosing to look more closely at the knowledge that is stored inside our bodies and bringing this closer to our awareness. This path, although certainly not easy, is the only route by which we can leave behind the cruel, invisible prison of our childhood. We become free by transforming ourselves from unaware victims of the past into responsible individuals in the present, who are aware of our past and are thus able to live with it.1

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A Better Madden Fix: Holistic Reform, Not Band-aids, to Modernize Banking Law

(PDF) 54 U. Mich. J. L. Reform Caveat 1 (2020)

Matthew J. Razzano*

Introduction

Historically, state usury laws prohibited lending above certain interest rates, but in 1978 the Supreme Court interpreted the National Bank Act (NBA) to allow chartered banks to issue loans at rates based on where they were headquartered rather than where the loan originated.1 States like South Dakota virtually eliminated interest rate ceilings to attract business, incentivizing national banks to base credit operations there and avoid local usury laws.2 In 2015, however, the Second Circuit decided Madden v. Midland Funding, LLC and reversed long-standing banking practices, ruling that non-chartered financial institutions were not covered by the NBA and were therefore subject to state usury laws where the loan originated.3 The underlying reasoning for the court’s decision was well-intentioned and based on (a) an unwillingness to allow non-chartered institutions to function as pseudo-banks4 and (b) a desire to protect consumers.5 The court’s radical decision received widespread criticism,6 and empirical studies have demonstrated a noteworthy decrease in credit availability in the Second Circuit7—negating the court’s own policy rationales. Since Madden, Congress and federal agencies have attempted an outright reversal, but none of their solutions address the Madden court’s fundamental concerns. This Essay argues that a Madden fix is needed, but the most effective solution must incorporate and address the Second Circuit’s underlying concerns.

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Volume 53 Issue 2 Winter 2020

Articles

“A World of Steel-Eyed Death”: An Empirical Evaluation of the Failure of the Strickland Standard to Ensure Adequate Counsel to Defendants with Mental Disabilities Facing the Death Penalty (pdf)
Michael L. Perlin, Talia Roitberg Harmon, and Sarah Chatt

Dismantling the Master’s House: Toward a Justice-Based Theory of Community Economic Development (pdf)
Etienne C. Toussaint

The City and the Soul: Character and Thriving in Law and Politics (pdf)
Sherman J. Clark

Waiving Federal Sovereign Immunity in Original Actions Between States (pdf)
Sandra Zellmer

Notes

Making a Reasonable Calculation: A Strategic Amendment to the IDEA (pdf)
Hetali M. Lodaya

Volume 53 Issue 1 Winter 2020

Articles
Age of Unreason: Rationality and the Regulatory State (pdf)
Louise Weinberg

Making and Unmaking Citizens: Law and the Shaping of Civic Capacity (pdf)
Tabatha Abu El-Haj

Searching for Humanitarian Discretion in Immigration Enforcement: Reflections on a Year as an Immigration Attorney in the Trump Era (pdf)
Nina Rabin

Constitutional Cohesion and the Right to Public Health (pdf)
James G. Hodge Jr.; Daniel Aaron; Haley R. Augur; Ashley Cheff; Joseph Daval; Drew Hensley;

Notes
Policing Corporate Conduct Toward Minority Communities: An Insurance Law Perspective on the Use of Race in Calculating Tort Damages (pdf)
Dhruti J. Patel

“Dispossessing Detroit” Videos

We hope you were able to join us for “Dispossessing Detroit”! The JLR team was thrilled to host a wonderful day of engaging sessions and conversation.

Recordings of each talk can be found below. We hope you’ll re-watch your favorite parts and let these questions continue to challenge you!

Property Dispossession is Nothing New: A Historical Overview
Panel discussion on the historical instances of land dispossession experienced by people living in the Detroit area and more broadly.

  • Bernadette AtuaheneProfessor of Law, Chicago-Kent College of Law
  • Beryl SatterProfessor of History, Rutgers University-Newark
  • Louise SeamsterAssistant Professor of Sociology and Criminology and African American Studies, University of Iowa
  • Michael WitgenDirector of the Native American Studies, Program and Associate Professor of History and American Culture, University of Michigan

Municipal Bankruptcy: Who Gets What?
Panel discussion comparing the experiences of Detroit, Puerto Rico, and Harrisburg, PA and the citizens who call these places home during and after bankruptcy proceedings.

  • Michelle AndersonProfessor of Law, Stanford Law School
  • Juliet MoringielloAssociate Dean for Research and Faculty Development and Professor of Law, Widener University, Commonwealth Law School
  • John PottowJohn Philip Dawson Collegiate Professor of Law, University of Michigan Law School
  • David SkeelS. Samuel Arsht Professor of Corporate Law, University of Pennsylvania Law School 

Dispossession in Other Forms: A Closer Look at Detroit 

Right of Refusal 

  • Michele OberholtzerDirector of Tax Foreclosure Prevention, United Community Housing Coalition 
  • Eli SavitSenior Advisor to Detroit Mayor Mike Duggan

Changes in the Detroit Real Estate Market

  • Joshua AkersAssistant Professor of Geography and Urban & Regional Studies, University of Michigan-Dearborn

MorningSide v. Sabree: The Tax Foreclosure Crisis

How Data Informs Policy

No video available

Ramifications of Dispossession: Activism and Lived Experiences
A panel discussion addressing the ways dispossession has affected community members and activists. 

  • Sonja Bonnet, Community Legal Worker, Detroit Justice Center
  • David Pitawanakwat, J.D. Candidate, University of Detroit Mercy School of Law and University of Windsor Faculty of Law  
  • Simone Sagovac, Southwest Detroit Community Benefits Coalition

Revitalization Today: Urban Renewal and Eminent Domain
Panel discussion on the role of revitalization efforts in cities throughout the country. 

Closing Remarks
Small group discussions with speakers and participants discussing reforms to current issues of land dispossession. Small groups will reconvene to report possible reforms.

Special thanks to Shawn Deloach for AV assistance!