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Full-Text Articles in Law

Fourth Amendment Textualism, Jeffrey Bellin Nov 2019

Fourth Amendment Textualism, Jeffrey Bellin

Michigan Law Review

The Fourth Amendment’s prohibition of “unreasonable searches” is one of the most storied constitutional commands. Yet after decades of Supreme Court jurisprudence, a coherent definition of the term “search” remains surprisingly elusive. Even the justices know they have a problem. Recent opinions only halfheartedly apply the controlling “reasonable expectation of privacy” test and its wildly unpopular cousin, “third-party doctrine,” with a few justices in open revolt.

These fissures hint at the Court’s openness to a new approach. Unfortunately, no viable alternatives appear on the horizon. The justices themselves offer little in the way of a replacement. And scholars ...


The New Housing Segregation: The Jim Crow Effects Of Crime-Free Housing Ordinances, Deborah N. Archer Nov 2019

The New Housing Segregation: The Jim Crow Effects Of Crime-Free Housing Ordinances, Deborah N. Archer

Michigan Law Review

America is profoundly segregated along racial lines. We attend separate schools, live in separate neighborhoods, attend different churches, and shop at different stores. This rigid racial segregation results in social, economic, and resource inequality, with White communities of opportunity on the one hand and many communities of color without access to quality schools, jobs, transportation, or health care on the other. Many people view this as an unfortunate fact of life, or as a relic of legal systems long since overturned and beyond the reach of current legal process. But this is not true. On the contrary, the law continues ...


Improving Employer Accountability In A World Of Private Dispute Resolution, Hope Brinn Nov 2019

Improving Employer Accountability In A World Of Private Dispute Resolution, Hope Brinn

Michigan Law Review

Private litigation is the primary enforcement mechanism for employment discrimination laws like Title VII, the Americans with Disabilities Act, and many related state statutes. But the expansion of extrajudicial dispute resolution—including both arbitration and prelitigation settlement agreements—has compromised this means of enforcement. This Note argues that state-enacted qui tam laws can revitalize the enforcement capacity of private litigation and provides a roadmap for enacting such legislation.


Treading On Sacred Land: First Amendment Implications Of Ice's Targeting Of Churches, Gabriella M. D'Agostini Nov 2019

Treading On Sacred Land: First Amendment Implications Of Ice's Targeting Of Churches, Gabriella M. D'Agostini

Michigan Law Review

In the last few years, Immigration and Customs Enforcement (ICE) has begun to target religious institutions—specifically churches—as a means to find and arrest undocumented immigrants. This technique is in legal tension with the First Amendment rights of free exercise of religion and free association. It is unclear, however, how these legal rights protect those most affected by this targeting tactic: undocumented immigrants. Undocumented immigrants may lack standing to challenge ICE’s tactics on their own and may require the help of related parties to protect their interests.

This Note explores a potential solution to the ambiguity surrounding undocumented ...


Re(Writing) The Rules Of The Road: Reflections From The Journal Of Law And Mobility's 2019 Conference, Raphael Beauregard-Lacroix Oct 2019

Re(Writing) The Rules Of The Road: Reflections From The Journal Of Law And Mobility's 2019 Conference, Raphael Beauregard-Lacroix

Journal of Law and Mobility

On March 15th, 2019, the Journal of Law and Mobility, part of the University of Michigan’s Law and Mobility Program, presented its inaugural conference, entitled “(Re)Writing the Rules of The Road.” The conference was focused on issues surrounding the relationship between automated vehicles (“AVs”) and the law. In the afternoon, two panels of experts from academia, government, industry, and civil society were brought together to discuss how traffic laws should apply to automated driving and the legal person (if any) who should be responsible for traffic law violations. The afternoon’s events occurred under a modified version of ...


Promises Unfulfilled: How Investment Arbitration Tribunals Mishandle Corruption Claims And Undermine International Development, Andrew T. Bulovsky Oct 2019

Promises Unfulfilled: How Investment Arbitration Tribunals Mishandle Corruption Claims And Undermine International Development, Andrew T. Bulovsky

Michigan Law Review

In recent years, the investment-arbitration and anti-corruption regimes have been in tension. Investment tribunals have jurisdiction to arbitrate disputes between investors and host states under international treaties that provide substantive protections for private investments. But these tribunals will typically decline to exercise jurisdiction over a dispute if the host state asserts that corruption tainted the investment. When tribunals close their doors to ag-grieved investors, tribunals increase the risks for investors and thus raise the cost of international investment. At the same time, the decision to decline jurisdiction creates a perverse incentive for host states to turn a blind eye to ...


National Injunctions And Preclusion, Zachary D. Clopton Oct 2019

National Injunctions And Preclusion, Zachary D. Clopton

Michigan Law Review

Critics of national injunctions are lining up. Attorney General Jeff Sessions labeled these injunctions “absurd” and “simply unsustainable.” Justice Clarence Thomas called them “legally and historically dubious,” while Justice Neil Gorsuch mockingly referred to them as “cosmic injunctions.” Scholars in leading law reviews have called for their demise. Critics argue that national injunctions encourage forum shopping, unfairly burden the federal government, and depart from the history of equity. They also claim that national injunctions contradict the Supreme Court’s decision in United States v. Mendoza to exempt the federal government from offensive nonmutual issue preclusion—a doctrine that permits nonparties ...


Making Rule 23 Ideal: Using A Multifactor Test To Evaluate The Admissibility Of Evidence At Class Certification, Cianan M. Lesley Oct 2019

Making Rule 23 Ideal: Using A Multifactor Test To Evaluate The Admissibility Of Evidence At Class Certification, Cianan M. Lesley

Michigan Law Review

Circuit courts are split on whether and to what extent the Daubert standard should apply at class certification. Potential plaintiffs believe that application of Daubert would make it nearly impossible to obtain class certification. For potential defendants, the application of the standard is an important way to ensure that the certification process is fair. This Note examines the incentives underlying the push to apply the Daubert standard at class certification and the benefits and drawbacks associated with that proposal. It proposes a solution that balances the concerns of both plaintiffs and defendants by focusing on three factors: the obstacles to ...


Article Ii And Antidiscrimination Norms, Aziz Z. Huq Oct 2019

Article Ii And Antidiscrimination Norms, Aziz Z. Huq

Michigan Law Review

The Supreme Court’s opinion in Trump v. Hawaii validated a prohibition on entry to the United States from several Muslim-majority countries and at the same time repudiated a longstanding precedent associated with the Japanese American internment of World War II. This Article closely analyzes the relationship of these twin rulings. It uses their dichotomous valences as a lens on the legal scope for discriminatory action by the federal executive. Parsing the various ways in which the internment of the 1940s and the 2017 exclusion order can be reconciled, the Article identifies a tension between the Court’s two holdings ...


Political Views Of Graduates Of University Of Michigan Law School, Classes Of 1952-2001, David L. Chambers Aug 2019

Political Views Of Graduates Of University Of Michigan Law School, Classes Of 1952-2001, David L. Chambers

Bibliography of Research Using UMLS Alumni Survey Data

In 1966, the University of Michigan Law School initiated an annual survey its graduating classes five and fifteen years after graduation. In 1981, with the survey of the graduates of the class of 1976 after they had been out of law school 5 years and the graduates of the class of 1966 after they been out 15 years, the survey instrument added questions about graduates’ current political views and their recollection of their political views when they began law school. In all years since, graduates have been asked to place themselves on a 7-point scale from “extremely liberal (left)” to ...


The Increasing Reliance On Educational Loans By University Of Michigan Law School Graduates, David L. Chambers Aug 2019

The Increasing Reliance On Educational Loans By University Of Michigan Law School Graduates, David L. Chambers

Bibliography of Research Using UMLS Alumni Survey Data

Among graduates of the University of Michigan Law School in the classes of 1970 through 1979, about half borrowed to pay for their college or legal education. By the early 1980s the portion who borrowed had risen to about 80 percent and has remained at that level through the classes of early twenty-first century. Even greater growth has occurred in the average debt of those who incurred debt. In actual dollars, average debts among those with debt have increased twenty-fold from the 1970s to the early 2000s. Even in CPI-adjusted dollars, average debts have tripled. By the classes of 2000-2001 ...


The Changing Student Body At The University Of Michigan Law School, David L. Chambers Aug 2019

The Changing Student Body At The University Of Michigan Law School, David L. Chambers

Bibliography of Research Using UMLS Alumni Survey Data

Most of the content of the memo that follows has been previously published in the article "Who We Were and Who We Are: How Michigan Law Students Have Changed Since the 1950s: Findings from 40 Years of Alumni Surveys." T. K. Adams, co-author. Law Quad. Notes 51, no. 1 (2009): 74-80, available through this website. This memo provides more detail about changing entry credentials and about the great expansion beginning in the 1970s in the numbers of women students and of racial/ethnic minority students. It also provides information not in the article about the patterns over time in students ...


Satisfaction With Law School Among Graduates Of The University Of Michigan Law School, Classes Of 1952-2001, David L. Chambers Aug 2019

Satisfaction With Law School Among Graduates Of The University Of Michigan Law School, Classes Of 1952-2001, David L. Chambers

Bibliography of Research Using UMLS Alumni Survey Data

The University of Michigan Law School conducted mail surveys of selective classes of its alumni each year from 1966 and 2006. The survey was revived online in 2014 and has continued to the present. This memo relates to the surveys through 2006.

For many years, the survey instrument has included questions about graduates’ satisfaction with their law school experience “overall” as well as specific questions about their satisfaction with law school “intellectually,” “as career training” and “socially.” Strongly related to overall satisfaction with law school is the length of time that graduates have been out of law school – the longer ...


Women And Men Graduates Of The University Of Michigan Law School: Career Patterns And Adjustments For Children, David L. Chambers Aug 2019

Women And Men Graduates Of The University Of Michigan Law School: Career Patterns And Adjustments For Children, David L. Chambers

Bibliography of Research Using UMLS Alumni Survey Data

The University of Michigan Law School conducted mail surveys of classes of its alumni each year from 1966 and 2006. This memorandum builds upon the mail surveys conducted through 2006 and in particular survey questions asked about the sex of the respondent, the settings in which they have worked since law school, the hours they work and their earnings in their current settings, whether they have children and the various adjustments they have made in order to care for children, such as working part-time or leaving the work force altogether for periods of time. The memorandum has two principal focuses ...


Law School Grades And Their Effects: The University Of Michigan Law School Alumni Survey, David L. Chambers Aug 2019

Law School Grades And Their Effects: The University Of Michigan Law School Alumni Survey, David L. Chambers

Bibliography of Research Using UMLS Alumni Survey Data

This short paper is based on a study of graduates of the University of Michigan Law School that was initiated in 1966 and continues today. The paper draws upon information about graduates’ grades in law school as recorded in the law school’s records and combines it with data from surveys of the graduates conducted by mail five, fifteen, twenty-five, thirty-five and forty-five years after graduation. Among the central findings reported are the following. (1) grades and gradepoint averages of Michigan law students rose hugely during the 1960s and 1970s, which can be explained in part by simple grade inflation ...


Finding A Mentor In The Practice Of Law: An Empirical Inquiry, David L. Chambers Aug 2019

Finding A Mentor In The Practice Of Law: An Empirical Inquiry, David L. Chambers

Bibliography of Research Using UMLS Alumni Survey Data

For many years the University of Michigan Law School has surveyed its graduates after they have been out of law school five, fifteen, twenty-five, thirty-five and forty-five years. This paper about finding mentors focuses on Michigan Law School alumni surveyed five years after graduation during the sixteen year period between 1985 and 2000 and particularly on those who have ever worked in a private law firm, a setting in which it is commonly believed that having a mentor is critical for a young lawyer’s success.

Our central findings are these: Among alumni who had worked in a law firm ...


The University Of Michigan Law School Alumni Survey Project: Description, Scope And Limits, David L. Chambers Aug 2019

The University Of Michigan Law School Alumni Survey Project: Description, Scope And Limits, David L. Chambers

Bibliography of Research Using UMLS Alumni Survey Data

For 41 consecutive years, from 1966 through 2006, the University of Michigan Law School surveyed by mail its graduates after they had been out of law school for 15 years, asking questions about their lives since law school and particularly about their careers as lawyers. Beginning in 1973, the graduates five years out of law school were added to the survey and beginning in 1997, the classes twenty-five, thirty-five and forty-five years out were added as well. Across the years of surveying, 79 percent of the law school’s graduates in the classes of 1952 through 2001 responded to at ...


The Effects Of Educational Debts On Career Choices Of Graduates Of The University Of Michigan Law School, David L. Chambers Aug 2019

The Effects Of Educational Debts On Career Choices Of Graduates Of The University Of Michigan Law School, David L. Chambers

Bibliography of Research Using UMLS Alumni Survey Data

In 1966, the University of Michigan Law School began an annual survey of selected classes of its graduates. Beginning in the early 1980s, annual surveys of those five and fifteen years after law school included questions about educational debts incurred during college and law school as well as about career plans at the beginning and end of law school and actual job held in the years since law school. This paper, written in 2009, examines the possible effects of debts on career decisions and job choices made before, during and after law school by the graduating classes of 1976 through ...


Retirement, Partial Retirement, And Working Into Old Age: Michigan Law School Graduates 45 Years Out Of Law School, David L. Chambers Aug 2019

Retirement, Partial Retirement, And Working Into Old Age: Michigan Law School Graduates 45 Years Out Of Law School, David L. Chambers

Bibliography of Research Using UMLS Alumni Survey Data

In 1966, the University of Michigan Law School began an annual survey of selected classes of its graduates. For the first few decades of the survey, only the graduating classes five and fifeen years out of law school were included in the survey. Beginning in 1997, graduates 25, 35, and 45 years out of law school were added. This memorandum focuses primarily on surveys conducted between 1997 and 2006 of the living graduates of the classes of 1952 through 1961, who had by then been out of law school for 45 years. After 45 years, the great majority were 69 ...


Imaginary Bottles, Jessica Litman Aug 2019

Imaginary Bottles, Jessica Litman

Articles

This essay, written for a symposium commemorating John Perry Barlow, who died on February 7, 2018, revisits Barlow's 1994 essay for WIRED magazine, "The Economy of Ideas: A Framework for patents and copyrights in the Digital Age (everything you know about intellectual property is wrong)." Barlow observed that networked digital technology posed massive and fundamental challenges for the markets for what Barlow termed “the work we do with our minds” and for the intellectual property laws designed to shape those markets. He predicted that those challenges would melt extant intellectual property systems into a smoking heap within a decade ...


Advocating For Children With Disabilities In Child Protection Cases, Joshua B. Kay Aug 2019

Advocating For Children With Disabilities In Child Protection Cases, Joshua B. Kay

Articles

Children with disabilities are maltreated at a higher rate than other children and overrepresented in child protection matters, yet most social service caseworkers, judges, child advocates, and other professionals involved in these cases receive little to no training about evaluating and addressing their needs. Child protection case outcomes for children with disabilities tend to differ from those of nondisabled children, with more disabled children experiencing a termination of their parents' rights and fewer being reunified with their parents or placed with kin. They also tend to experience longer waits for adoption. Furthermore, the poor outcomes that plague youth who age ...


A Functional Approach To Judicial Review Of Ptab Rulings On Mixed Questions Of Law And Fact, Rebecca S. Eisenberg Jul 2019

A Functional Approach To Judicial Review Of Ptab Rulings On Mixed Questions Of Law And Fact, Rebecca S. Eisenberg

Articles

The Court of Appeals for the Federal Circuit (“Federal Circuit”) has long relied on active appellate review to bring uniformity and clarity to patent law. It initially treated the PTO the same as the federal district courts, reviewing its factual findings for clear error and its legal conclusions de novo. Following reversal by the Supreme Court in Dickinson v. Zurko, the Federal Circuit began giving greater deference to PTO factual findings. But it continued to review the PTO’s legal conclusions de novo, while coding an expansive list of disputed issues in patent cases as legal conclusions, even when they ...


Domestic Violence Convictions And Firearms Possession: The Law As It Stands And As It Moves, Kate E. Britt Jul 2019

Domestic Violence Convictions And Firearms Possession: The Law As It Stands And As It Moves, Kate E. Britt

Law Librarian Scholarship

Legislatures have attempted to curb instances of gun use in fatal and nonfatal domestic violence by passing statutes restricting possession of firearms for perpetrators of domestic violence. This article explains federal and Michigan law as it stands and discusses current efforts to further limit perpetrators’ access to firearms.


A Cure Worse Than The Disease? The Impact Of Removal On Children And Their Families, Vivek Sankaran, Christopher Church, Monique Mitchell Jul 2019

A Cure Worse Than The Disease? The Impact Of Removal On Children And Their Families, Vivek Sankaran, Christopher Church, Monique Mitchell

Articles

Removing children from their parents is child welfare's most drastic intervention. Research clearly establishes the profound and irreparable damage family separation can inflict on children and their parents. To ensure that this intervention is only used when necessary, a complex web of state and federal constitutional principles, statutes, administrative regulations, judicial decisions, and agency policies govern the removal decision. Central to these authorities is the presumption that a healthy and robust child welfare system keeps families together, protects children from harm, and centers on the needs of children and their parents. Yet, research and practice-supported by administrative data-paint a ...


Policing Hate Speech And Extremism: A Taxonomy Of Arguments In Opposition, Leonard M. Niehoff Jun 2019

Policing Hate Speech And Extremism: A Taxonomy Of Arguments In Opposition, Leonard M. Niehoff

University of Michigan Journal of Law Reform

Hate speech and extremist association do real and substantial harm to individuals, groups, and our society as a whole. Our common sense, experience, and empathy for the targets of extremism tell us that our laws should do more to address this issue. Current reform efforts have therefore sought to revise our laws to do a better job at policing, prohibiting, and punishing hate speech and extremist association.

Efforts to do so, however, encounter numerous and substantial challenges. We can divide them into three general categories: definitional problems, operational problems, and conscientious problems. An informed understanding of these three categories of ...


Does A Non-Extreme Answer To Extremism Exist?, Jeffrey Levicki Jun 2019

Does A Non-Extreme Answer To Extremism Exist?, Jeffrey Levicki

University of Michigan Journal of Law Reform

Foreword for the Journal of Law Reform symposium entitled Alt-Association: The Role of Law in Combatting Extremism.


Keynote Address, Sammy Rangel Jun 2019

Keynote Address, Sammy Rangel

University of Michigan Journal of Law Reform

The following is a transcription of Mr. Rangel’s keynote address presented at the University of Michigan Journal of Law Reform Symposium, Alt Association: The Role of Law in Combating Extremism on November 17, 2018, at the University of Michigan School of Law. The transcript has been lightly edited for clarity.


Interview With Khaled Beydoun, Khaled Beydoun, Nina Mozeihem, Samuel Bagenstos Jun 2019

Interview With Khaled Beydoun, Khaled Beydoun, Nina Mozeihem, Samuel Bagenstos

University of Michigan Journal of Law Reform

The following is a transcription of an interview with Professor Khaled Beydoun, conducted at the University of Michigan Law School on March 15, 2019. The transcript has been lightly edited for clarity.


Blurred Lines: What Is Extremism?, Anna C. Williford Jun 2019

Blurred Lines: What Is Extremism?, Anna C. Williford

University of Michigan Journal of Law Reform

The Michigan Journal of Law Reform Symposium, Alt-Association: The Role of Law in Combating Extremism (“the Symposium”), attempted to address the question of defining extremism. The Symposium aimed to provide a platform for filtering through the participants’ pre-conceived notions around extremism in order to challenge misconceptions about those labeled “extremist.” This word has been used time and time again in conversation, research, and even this paper without a concreate definition behind it. At the start of the Symposium, participants were asked to define extremism in their own words. The definitions produced were eye opening. For example, extremism was thought to ...


Protecting Local Authority In State Constitutions And Challenging Intrastate Preemption, Emily S.P. Baxter Jun 2019

Protecting Local Authority In State Constitutions And Challenging Intrastate Preemption, Emily S.P. Baxter

University of Michigan Journal of Law Reform

In recent years, state legislatures have increasingly passed laws that prohibit or preempt local action on a variety of issues, including fracking, LGBTQIA nondiscrimination, and workplace protections, among others. Often, these preemption laws are a direct response to action at the local level. States pass preemption laws either directly before or directly after a locality passes an ordinance on the same subject. Scholars have seen these preemptive moves as the outcome of the urban disadvantage in state and national government due to partisan gerrymandering.

Preemption may be a feature of our governing system, but it has also become a problematic ...