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Full-Text Articles in Law

The Economics Of Class Action Waivers, Albert H. Choi, Kathryn E. Spier Mar 2021

The Economics Of Class Action Waivers, Albert H. Choi, Kathryn E. Spier

Articles

Many firms require consumers, employees, and suppliers to sign class action waivers as a condition of doing business with the firm, and the U.S. Supreme Court has endorsed companies’ ability to block class actions through mandatory individual arbitration clauses. Are class action waivers serving the interests of society or are they facilitating socially harmful business practices? This paper synthesizes and extends the existing law and economics literature by analyzing the firms’ incentive to impose class action waivers. While in many settings the firms’ incentive to block class actions may be aligned with maximizing social welfare, in many other settings ...


Delegation At The Founding, Julian Davis Mortenson, Nicholas Bagley Mar 2021

Delegation At The Founding, Julian Davis Mortenson, Nicholas Bagley

Articles

This article refutes the claim that the Constitution was originally understood to contain a nondelegation doctrine. The founding generation didn’t share anything remotely approaching a belief that the constitutional settlement imposed restrictions on the delegation of legislative power---let alone by empowering the judiciary to police legalized limits. To the contrary, the overwhelming majority of Founders didn’t see anything wrong with delegations as a matter of legal theory. The formal account just wasn’t that complicated: Any particular use of coercive rulemaking authority could readily be characterized as the exercise of either executive or legislative power, and was thus ...


The Moral Ambiguity Of Public Prosecution, Gabriel S. Mendlow Mar 2021

The Moral Ambiguity Of Public Prosecution, Gabriel S. Mendlow

Articles

Classic crimes like theft and assault are in the first instance wrongs against individuals, not against the state or the polity that it represents. Yet our legal system denies crime victims the right to initiate or intervene in the criminal process, relegating them to the roles of witness or bystander—even as the system treats prosecution as an institutional analog of the interpersonal processes of moral blame and accountability, which give pride of place to those most directly wronged. Public prosecution reigns supreme, with the state claiming primary and exclusive moral standing to call offenders to account for their wrongs ...


Antitrust Antitextualism, Daniel A. Crane Mar 2021

Antitrust Antitextualism, Daniel A. Crane

Articles

Judges and scholars frequently describe antitrust as a common-law system predicated on open-textured statutes, but that description fails to capture a historically persistent phenomenon:judicial disregard of the plain meaning of the statutory texts and manifest purposes of Congress. This pattern of judicial nullification is not evenly distributed: when the courts have deviated from the plain meaning or congressional purpose, they have uniformly done so to limit the reach of antitrust liability or curtail the labor exemption to the benefit of industrial interests. This phenomenon cannot be explained solely or even primarily as a tug-of-war between a progressive Congress and ...


Federalizing Tax Justice, Reuven Avi-Yonah, Orli Avi-Yonah, Nir Fishbien, Hayian Xu Feb 2021

Federalizing Tax Justice, Reuven Avi-Yonah, Orli Avi-Yonah, Nir Fishbien, Hayian Xu

Articles

The United States is the only large federal country that does not have an explicit way to reduce the economic disparities among more and less developed regions. In Germany, for example, federal revenues are distributed by a formula that takes into account the relative level of wealth of each state (the so-called Finanzausgleich, or fiscal equalization). Similar mechanisms are found in Australia, Canada, India, and other large federal countries. The United States, on the other hand, has no such explicit redistribution. Each state is generally considered equal and sovereign, and the federal government does not distribute revenues to equalize the ...


"Constructing Countervailing Power: Law And Organizing In An Era Of Political Inequality", Kate Andrias, Benjamin I. Sachs Jan 2021

"Constructing Countervailing Power: Law And Organizing In An Era Of Political Inequality", Kate Andrias, Benjamin I. Sachs

Articles

This Article proposes an innovative approach to remedying the crisis of political inequality: using law to facilitate organizing by the poor and working class, not only as workers, but also as tenants, debtors, welfare beneficiaries, and others. The piece draws on the social-movements literature, and the successes and failures of labor law, to show how law can supplement the deficient regimes of campaign finance and lobbying reform and enable lower-income groups to build organizations capable of countervailing the political power of the wealthy. As such, the Article offers a new direction forward for the public-law literature on political power and ...


Is There A Delaware Effect For Controlled Firms?, Edward Fox Jan 2021

Is There A Delaware Effect For Controlled Firms?, Edward Fox

Articles

The impact of Delaware incorporation on firm value remains a central question in corporate law. Despite the difficulty scholars have had in agreeing on an answer to this question, there is a consensus that Delaware has long enjoyed stable and important advantages in the expertise of its judiciary and its extensive case law. These advantages are believed to be particularly important for firms with a controlling shareholder. This Article attempts to empirically measure the effect of Delaware incorporation on these controlled firms and thus helps us understand the market value of Delaware’s judiciary and case law. It finds, surprisingly ...


Clearing Opacity Through Machine Learning, W. Nicholson Price Ii, Arti K. Rai Jan 2021

Clearing Opacity Through Machine Learning, W. Nicholson Price Ii, Arti K. Rai

Articles

Artificial intelligence and machine learning represent powerful tools in many fields, ranging from criminal justice to human biology to climate change. Part of the power of these tools arises from their ability to make predictions and glean useful information about complex real-world systems without the need to understand the workings of those systems.


Feigned Consensus: Usurping The Law In Shaken Baby Syndrome/Abusive Head Trauma Prosecutions, Keith A. Findley, D. Michael Risinger, Patrick D. Barnes, Julie A. Mack, David A. Moran, Barry C. Scheck, Thomas L. Bohan Dec 2020

Feigned Consensus: Usurping The Law In Shaken Baby Syndrome/Abusive Head Trauma Prosecutions, Keith A. Findley, D. Michael Risinger, Patrick D. Barnes, Julie A. Mack, David A. Moran, Barry C. Scheck, Thomas L. Bohan

Articles

Few medico-legal matters have generated as much controversy--both in the medical literature and in the courtroom--as Shaken Baby Syndrome (SBS), now known more broadly as Abusive Head Trauma (AHT). The controversies are of enormous significance in the law because child abuse pediatricians claim, on the basis of a few non-specific medical findings supported by a weak and methodologically flawed research base, to be able to “diagnose” child abuse, and thereby to provide all of the evidence necessary to satisfy all of the legal elements for criminal prosecution (or removal of children from their parents). It is a matter, therefore, in ...


Towards An Urban Disability Agenda, Samuel R. Bagenstos Nov 2020

Towards An Urban Disability Agenda, Samuel R. Bagenstos

Articles

The overwhelming majority of Americans with disabilities live in metropolitan areas. Yet those areas continue to contain significant barriers that keep disabled people from fully participating in city life. Although political and social debate has periodically turned its attention to urban issues or problems — or even the so-called “urban crisis” — during the past several decades, it has too rarely attended to the issues of disability access. When political debate has focused on disability issues, it has tended to address them in a nationally uniform way, without paying attention to the particular concerns of disabled people in cities. Even when city ...


Numbers, Patrick Barry Nov 2020

Numbers, Patrick Barry

Articles

Numbers can be numbing. Depend too much on them to make your case, pitch your product, or tell your story, and you risk losing your audience. This essay offers a way to way to use numbers—both large and small—in a manner that is at once more compelling and more concrete.


On Sexual Harassment In The Judiciary, Leah Litman, Deeva Shah Oct 2020

On Sexual Harassment In The Judiciary, Leah Litman, Deeva Shah

Articles

This Essay examines the legal profession’s role in sexual harassment, particularly in the federal courts. It argues that individuals in the profession have both an individual and collective responsibility for the professional norms that have allowed harassment to happen with little recourse for the people subject to the harassment. It suggests that the legal profession should engage in a sustained, public reflection about how our words, actions, attitudes, and institutional arrangements allow harassment to happen, and about the many different ways that we can prevent and address harassment.


Back To The Future: Creating A Bipartisan Environmental Movement For The 21st Century, David M. Uhlmann Oct 2020

Back To The Future: Creating A Bipartisan Environmental Movement For The 21st Century, David M. Uhlmann

Articles

With a contentious presidential election looming amidst a pandemic, economic worries, and historic protests against systemic racism, climate action may seem less pressing than other challenges. Nothing could be further from the truth. To prevent greater public health threats and economic dislocation from climate disruption, which will disproportionately harm Black Americans, people of color, and indigenous people, this Comment argues that we need to restore the bipartisanship that fueled the environmental movement and that the fate of the planet—and our children and grandchildren—depends upon our collective action.


Errors And Insights, Patrick Barry Oct 2020

Errors And Insights, Patrick Barry

Articles

In Seeing What Other's Don't, the psychologist Gary Klein suggests that only focusing on reducing errors limits our ability to improve. We also need to spend time increasing insights. This short essay applies Klein's approach to writing and editing.


Compassion: The Necessary Foundation To Reunify Families Involved In The Foster Care System, Katherine Markey, Vivek Sankaran Sep 2020

Compassion: The Necessary Foundation To Reunify Families Involved In The Foster Care System, Katherine Markey, Vivek Sankaran

Articles

Compassion plays a critical role in ensuring that stakeholders can engage with, and support parents trying to reunify with kids in the foster care system. This Article will explore the compassion crisis in foster care, will present the research documenting the impact of compassion on engaging families, and will identify key steps stakeholders can take to incorporate compassion into their work.


Legitimacy And Agency Implementation Of Title Ix, Samuel R. Bagenstos Sep 2020

Legitimacy And Agency Implementation Of Title Ix, Samuel R. Bagenstos

Articles

Title IX of the Education Amendments of 1972 prohibits sex discrimination by programs receiving federal education funding. Primary responsibility for administering that statute lies in the Office for Civil Rights of the Department of Education (OCR). Because Title IX involves a subject that remains highly controversial in our polity (sex roles and interactions among the sexes more generally), and because it targets a highly sensitive area (education), OCR’s administration of the statute has long drawn criticism. The critics have not merely noted disagreements with the legal and policy decisions of the agency, however. Rather, they have attacked the agency ...


Lawyers Democratic Dysfunction, Leah Litman Sep 2020

Lawyers Democratic Dysfunction, Leah Litman

Articles

As part of the symposium on Jack Balkin and Sandy Levinson’s Democracy and Dysfunction, this Article documents another source of the dysfunction that the authors observe—elite lawyers’ unwillingness to break ranks with other elite lawyers who participate in the destruction of various norms that are integral to a well-functioning democracy. These network effects eliminate the possibility of “soft” sanctions on norm violators such as withholding future professional advancement. Thus, rather than enforcing norms and deterring norm violations, the networks serve to insulate norm violators from any meaningful accountability.


A Positive Dialectic: Beps And The United States, Reuven S. Avi-Yonah Sep 2020

A Positive Dialectic: Beps And The United States, Reuven S. Avi-Yonah

Articles

This essay addresses the interaction between the changes in the international tax regime identified by Mason and U.S. international tax policy. Specifically, I will argue that contrary to the general view, the United States actively implemented the Organisation for Economic Co-Operation and Development (OECD)/G20 Base Erosion and Profit Shifting (BEPS) recommendations through the Tax Cuts and Jobs Act of 2017 (TCJA). Moreover, the changes of the TCJA influenced the current OECD effort of BEPS 2.0. Thus, the current state of affairs can be characterized as a constructive dialogue: The OECD moves (BEPS 1), the United States responds ...


Mapping The Iceberg: The Impact Of Data Sources On The Study Of District Courts, Christina L. Boyd, Pauline T. Kim, Margo Schlanger Aug 2020

Mapping The Iceberg: The Impact Of Data Sources On The Study Of District Courts, Christina L. Boyd, Pauline T. Kim, Margo Schlanger

Articles

Three decades ago, Siegelman and Donohue aptly characterized research about courts and litigation that relied only on published opinions as “studying the iceberg from its tip.” They implored researchers to view published district court opinions “with greater sensitivity to the ways in which such cases are unrepresentative of all cases”. The dynamic, multistage nature of trial court litigation makes a focus solely on published opinions particularly ill-suited to the study of federal district courts. Expanded electronic access to court documents now allows more pre-cise analysis of the ways in which published cases are unrepresentative and what differences that makes for ...


What Will (Or Might?) Law School Look Like This Fall?: Teaching In The Midst Of A Pandemic, Ted Becker Aug 2020

What Will (Or Might?) Law School Look Like This Fall?: Teaching In The Midst Of A Pandemic, Ted Becker

Articles

January 2020 marked the start of a new semester for Michigan law schools. There was little reason to suspect it wouldn’t be a semester like any other: for 3Ls, the start of the stretch run to graduation; for 1Ls, a chance to begin anew after the stress of their first set of law school final exams; for law school faculty, administrators, and staff, a return to the excitement and activity of crowded hallways and classrooms after the brief interlude of winter break. Classes began and proceeded as normal.


Federal Forum Provisions And The Internal Affairs Doctrine, Dhruv Aggarwal, Albert H. Choi, Ofer Eldar Aug 2020

Federal Forum Provisions And The Internal Affairs Doctrine, Dhruv Aggarwal, Albert H. Choi, Ofer Eldar

Articles

A key question at the intersection of state and federal law is whether corpo- rations can use their charters or bylaws to restrict securities litigation to federal court. In December 2018, the Delaware Chancery Court answered this question in the negative in the landmark decision Sciabacucchi v. Salzberg. The court invalidated “federal forum provisions” (“FFPs”) that allow companies to select federal district courts as the exclusive venue for claims brought under the Secur- ities Act of 1933 (“1933 Act”). The decision held that the internal affairs doc- trine, which is the bedrock of U.S. corporate law, does not permit ...


Incrementalist Vs. Maximalist Reform: Solitary Confinement Case Studies, Margo Schlanger Aug 2020

Incrementalist Vs. Maximalist Reform: Solitary Confinement Case Studies, Margo Schlanger

Articles

Among criminal justice reformers, it has long been hotly contested whether moderate reform helps or harms more efforts to achieve more thoroughgoing change. With respect to solitary confinement, do partial and ameliorative measures undermine the goal of solitary confinement abolition? Or do reformist campaigns advance—albeit incrementally—that ultimate goal? Call this a debate between “incrementalists” and “maximalists.” I offer this Essay as an appeal for empirical rather than aesthetic inquiry into the question. After summarizing nationwide reform litigation efforts that began in the 1970s, I try to shed some factual light by examining solitary reform efforts in two states ...


Rhetorical Repetition, Patrick Barry Aug 2020

Rhetorical Repetition, Patrick Barry

Articles

When it comes to persuading judges, boardrooms, or even just co-workers, many lawyers shy away from repetition. They remain committed to the idea, often developed in college, that good writing is associated with having (and showing) a big vocabulary. They mistakenly think the best thesaurus wins. This essay explores that error and offers ways to correct it.


Consent, Coercion, And Employment Law, Samuel R. Bagenstos Jul 2020

Consent, Coercion, And Employment Law, Samuel R. Bagenstos

Articles

The Roberts Court has recently handed several high-profile wins in labor and employment law cases to anti-labor and pro-employer forces. This paper argues that those decisions replicate crucial moves made by some infamous Lochner-era cases — and that those same moves continue to underlie key elements of labor and employment doctrine more generally. In particular, these decisions rest on a contestable understanding of free worker choice. This paper begins by examining the key recent Roberts Court decisions and demonstrates that they appear to invoke at least two distinct and conflicting understandings of employee and employer choice. It then turns to the ...


Thin And Thick Conceptions Of The Nineteenth Amendment Right To Vote And Congress's Power To Enforce It, Richard L. Hasen, Leah M. Litman Jul 2020

Thin And Thick Conceptions Of The Nineteenth Amendment Right To Vote And Congress's Power To Enforce It, Richard L. Hasen, Leah M. Litman

Articles

This Article, prepared for a Georgetown Law Journal symposium on the Nineteenth Amendment’s one-hundred-year anniversary, explores and defends a “thick” conception of the Nineteenth Amendment right to vote and Congress’s power to enforce it. A “thin” conception of the Nineteenth Amendment maintains that the Amendment merely prohibits states from enacting laws that prohibit women from voting once the state decides to hold an election. And a “thin” conception of Congress’s power to enforce the Nineteenth Amendment maintains that Congress may only supply remedies for official acts that violate the Amendment’s substantive guarantees. This Article argues the ...


May The State Punish What It May Not Prevent?, Gabriel S. Mendlow Jul 2020

May The State Punish What It May Not Prevent?, Gabriel S. Mendlow

Articles

In Why Is It Wrong To Punish Thought? I defended an overlooked principle of criminalization that I called the Enforceability Constraint. The Enforceability Constraint holds that the state may punish transgressions of a given type only if the state in principle may forcibly disrupt such transgressions on the ground that they are criminal wrongs. As I argued in the essay, the reason why the state is forbidden from punishing thought is that the state is forbidden from forcibly disrupting a person’s mental states on the ground that they are criminally wrongful (as opposed to, say, on the ground that ...


Fee-Shifting Statutes And Compensation For Risk, Maureen S. Carroll Jun 2020

Fee-Shifting Statutes And Compensation For Risk, Maureen S. Carroll

Articles

A law firm that enters into a contingency arrangement provides the client with more than just its attorneys' labor. It also provides a form of financing, because the firm will be paid (if at all) only after the litigation ends; and insurance, because if the litigation results in a low recovery (or no recovery at all), the firm will absorb the direct and indirect costs of the litigation. Courts and markets routinely pay for these types of risk-bearing services through a range of mechanisms, including state fee shifting statutes, contingent percentage fees, common-fund awards, alternative fee arrangements, and third-party litigation ...


Disaggregating Ineffective Assistance Of Counsel Doctrine: Four Forms Of Constitutional Ineffectiveness, Eve Brensike Primus Jun 2020

Disaggregating Ineffective Assistance Of Counsel Doctrine: Four Forms Of Constitutional Ineffectiveness, Eve Brensike Primus

Articles

For years, experts have blamed Strickland v. Washington’s lax standard for assessing trial attorney effectiveness for many of the criminal justice system’s problems. But the conventional understanding of Strickland as a problem for ineffectiveness claims gives the decision too much prominence because it treats Strickland as the test for all such claims. That is a mistake. Properly understood, the Supreme Court has recognized four different constitutional forms of trial attorney ineffectiveness, and Strickland’s two pronged test applies to only one of the four. If litigants and courts would notice this complexity and relegate Strickland to its proper ...


Disability And Reproductive Justice, Samuel Bagenstos Jun 2020

Disability And Reproductive Justice, Samuel Bagenstos

Articles

In the spring of 2019, disability and abortion rights collided at the Supreme Court in a case involving an Indiana ban on “disability-selective abortions.” In a lengthy concurrence in the denial of certiorari, Justice Thomas argued that the ban was constitutional because it “promote[s] a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.” Just a few months earlier, disability and reproductive rights issues had intersected in a very different way in the debate over the nomination of Brett Kavanaugh to the Supreme Court. Disability rights advocates drew attention to an opinion then-Judge Kavanaugh ...


Who Gets The Ventilator? Disability Discrimination In Covid-19 Medical-Rationing Protocols, Samuel Bagenstos May 2020

Who Gets The Ventilator? Disability Discrimination In Covid-19 Medical-Rationing Protocols, Samuel Bagenstos

Articles

The coronavirus pandemic has forced us to reckon with the possibility of having to ration life-saving medical treatments. In response, many health systems have employed protocols that explicitly de-prioritize people for these treatments based on pre-existing disabilities. This Essay argues that such protocols violate the Americans with Disabilities Act, the Rehabilitation Act, and the Affordable Care Act. Such explicit discrimination on its face violates these statutes. Nor can medical providers simply define disabled patients as being “unqualified” because of disabilities that do not affect the ability to ameliorate the condition for which treatment is sought. A proper interpretation of the ...