Law Commons^™

Textualism, Judicial Supremacy, And The Independent State Legislature Theory, Leah Litman, Katherine Shaw

Articles

This piece offers an extended critique of one aspect of the so-called “independent state legislature” theory. That theory, in brief, holds that the federal Constitution gives state legislatures, and withholds from any other state entity, the power to regulate federal elections. Proponents ground their theory in two provisions of the federal Constitution: Article I’s Elections Clause, which provides that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof,” and Article II’s Presidential Electors Clause, which provides that “[e]ach State shall appoint, in such Manner as the Legislature …

Preemption, Commandeering, And The Indian Child Welfare Act, Matthew L.M. Fletcher, Randall F. Khalil

Articles

This year (2022), the Supreme Court agreed to review wide-ranging constitutional challenges to the Indian Child Welfare Act (ICWA) brought by the State of Texas and three non-Indian foster families in the October 2022 Term. The Fifth Circuit, sitting en banc, held that certain provisions of ICWA violated the anti-commandeering principle implied in the Tenth Amendment and the equal protection component of the Fifth Amendment’s Due Process Clause.

We argue that the anti-commandeering challenges against ICWA are unfounded because all provisions of ICWA provide a set of legal standards to be applied in states which validly and expressly preempt state …

Limiting Access To Remedies: Select Criminal Law And Procedure Cases From The Supreme Court's 2021-22 Term, Eve Brensike Primus, Justin Hill

Articles

Although the most memorable cases from the Supreme Court’s 2021-22 Term were on the civil side of its docket, the Court addressed significant cases on the criminal side involving the Confrontation Clause, capital punishment, double jeopardy, criminal jurisdiction in Indian Country, and important statutory interpretation principles, such as the mens rea presumption and the scope of the rule of lenity. Looking back, the Court’s decisions limiting individuals’ access to remedies for violations of their constitutional criminal procedure rights stand out. Shinn v. Ramirez and Shoop v. Twyford drastically limit the ability of persons incarcerated in state facilities to challenge the …

Elephant In The Room, Patrick Barry

Articles

Over the past several decades, the student population at law schools across the country has become more and more racially diverse. In 1987, for example, only about 1 in every 10 law students identified as a person of color; by 2019, that percentage shot up to almost 1 out of 3.

Yet take a look at virtually any collection of recommended manuals on writing. You are unlikely to find even one that is authored by a person of color. The composition of law schools may be dramatically changing, but the materials that students are given to help them figure out …

Mary Lou Graves, Nolen Breedlove, And The Nineteenth Amendment, Ellen D. Katz

Articles

This close examination of two cases is part of a larger ongoing project to provide a distinct account of the Nineteenth Amendment. In 1921, the Alabama Supreme Court held the Nineteenth Amendment required that any poll tax be imposed equally on men and women. Sixteen years later, the Supreme Court disagreed. Juxtaposing these two cases, and telling their story in rich context, captures my larger claim that—contrary to the general understanding in the scholarly literature—the Nineteenth Amendment was deliberately crafted as a highly circumscribed measure that would eliminate only the exclusively male franchise while serving steadfastly to preserve and promote …

Professionalism In Tribal Jurisdictions, Matthew L.M. Fletcher

Articles

American Indian law is an important area of law. There are 12 federally recognized Indian tribes in the state of Michigan.1 Indian tribes throughout the United States do business in Michigan. Indian tribal governments and corporations employ hundreds of thousands of non-Indians and received billions in federal pandemic relief. Indian gaming generated nearly $40 billion in revenues nationally last year. Still, many lawyers ignore the field or claim ignorance about the basic precepts of federal Indian law.

This article will canvass several themes of professionalism in tribal practice, drawing from this author’s tribal law experience over the last few decades. …

The Orkney Slew And Central Bank Digital Currencies, Jeffery Y. Zhang, Gary B. Gordon

Articles

This Article on central bank digital currencies is motivated by a parable, The Orkney Slew, which is set in an archipelago. Based on the parable, we point out a significant economic market failure that exists in the cross-border payments realm. The analysis then focuses on real-world examples and the national security concerns, including for Anti-Money Laundering/Combatting the Financing of Terrorism (AML/CFT) and the continued efficacy of U.S. sanctions, associated with the rapidly evolving digital payments landscape.

Many central banks around the world are now cooperatively experimenting with cross-border interoperability of digital currencies. These efforts are driven by the idea of …

Regulating For Energy Justice, Alexandra B. Klass, Gabriel Chan

Articles

In this Article, we explore and critique the foundational norms that shape federal and state energy regulation and suggest pathways for reform that can incorporate principles of “energy justice.” These energy justice principles—developed in academic scholarship and social movements—include the equitable distribution of costs and benefits of the energy system, equitable participation and representation in energy decision making, and restorative justice for structurally marginalized groups.

While new legislation, particularly at the state level, is critical to the effort to advance energy justice, our focus here is on regulators’ ability to implement reforms now using their existing authority to advance the …

A New Framework For Digital Taxation, Reuven S. Avi-Yonah, Young Ran (Christine) Kim, Karen Sam

Articles

The international tax regime has wide implications for business, trade, and the international political economy. Under current law, multinational enterprises do not pay their fair share of taxes to market countries where profits are generated because market countries are only allowed to tax companies with a physical presence there. Digital companies, like Google and Amazon, can operate entirely online, thereby avoiding market country taxes. Multinationals can also exploit existing tax rules by shifting their profits to low-tax jurisdictions, thereby avoiding taxes in the residence country where their headquarters are located.

Recently, a global tax deal was reached to tackle these …

Feedback Loops: Surviving The Feedback Desert, Patrick Barry

Articles

I ask my law students the following set of parallel questions on the very first day of “Feedback Loops,” a course I have been teaching for the past couple of years: What did you get better at last year? How do you know? What should you get better at this year? How do you know?

Race Belongs In Week One Of Lrw, Beth H. Wilensky

Articles

I talk to my 1Ls about race and the law in their first week of law school. In doing so, I have discovered that discussing race helps me introduce foundational concepts about legal writing and law school that we will return to throughout the year. That is partly because race is relevant to nearly every topic law school touches on. But it is also because race is present in—and often conspicuous in its absence from—court opinions in ways that provide rich fodder for discussing how to approach law school. That topic interests all students—even those who might be skeptical about …

A Quiet Revolution: How Judicial Discipline Essentially Eliminated Foster Care And Nearly Went Unnoticed., Melissa Carter, Christopher Church, Vivek Sankaran

Articles

This Article argues that juvenile court judges can safely reduce the number of children entering foster care by faithfully and rigorously applying the law. Judges often fail to perform this core functon when a state child welfare agency separates a child from their family. Judges must perform their role as impartial gatekeeper despite the temptation to be "omnipotent moral busybodies".

The Parallel March Of The Ginis: How Does Taxation Relate To Inequality, And What Can Be Done About It?, Reuven S. Avi-Yonah

Articles

The United States currently has one of the highest levels of inequality among industrialized economies. In addition, numerous scholars have shown that social mobility in the United States is significantly lower than it was in the period between 1945 and 1970, when inequality was declining. The combination of these trends is dangerous because it risks transforming the United States into a society where small elites capture most of the gains, a pattern in which growth cannot be sustained over time. The level of inequality in the United States after taxes and transfers are taken into account is much lower, but …

Chapter Eight - Technology And The Law: The Automobile (By James Willard Hurst), Bj Ard, William J. Novak

Articles

In this chapter we are going to talk about some of the automobile effects that it has had. Upon the law, and some of the effects that the law has had upon the automobile. We could undoubtedly open up some worthwhile lines of thought, if we talked about the automobile in relation to, certain brooder problems of which it is a part: for example, the effects of the internal combustion the growth engine, or of all types of communication. But we shall have enough on our hands if we stick to the automobile, and even so in the limits of …

In Defense Of Its Identity, Daniel H. Halberstam, Werner Schroeder

Articles

The Court of Justice has spoken. The Commission may now, under Regulation 2020/2092, withhold monies from Member States that do not observe the rule of law. This “budget conditionality”, if wielded smartly, should prove a powerful tool if comparative experience coaxing states through union money to follow union policies holds true in Europe. Given the limitations of national reference actions and infringement proceedings that lag behind the nefarious strategies of some governments, and the political obstacles to using Article 7 TEU, we cheer on this new tool of the Union. But we believe the urgency of rule of law concerns …

The Dubious Constitutional Origins Of Treaty Overrides: A Response To Rosenbloom And Shaheen, Reuven Avi-Yonah

Articles

In 1888, the Supreme Court decided a case called Whitney v. Robert- son, which is generally considered to be the source of the proposition that, under the Constitution, later-in-time statutes can override earlier treaties (the Rule). The Rule is highly controversial because it violates articles 26 and 27 of the Vienna Convention on the Law of Treaties (VCLT), which the United States has accepted as binding on it as cus- tomary international law (CIL). Despite that, the United States has since Whitney routinely engaged in treaty overrides, and the Court has repeatedly endorsed the Rule even while narrowing its application …

Towards Greater Investor Accountability: Indirect Actions, Direct Actions By States And Direct Actions By Individuals, Martin Jarrett, Sergio Puig, Steven R. Ratner

Articles

Investor accountability in international investment law (IIL) has been gaining increasing traction in recent years. Most visibly, some states have included investor obligations in their investment treaties, while others have made them part of their model treaties. While highly significant for the substance of IIL, these duties need adequate procedural tools to enforce them. Otherwise, investor obligations will be only decorative features of investment treaties without any legal meaning. The oft-discussed option of counterclaims is limited insofar as it may only be launched after an investor has made a claim against a state. As a result, it is important to …

The Myth Of The Great Writ, Leah M. Litman

Articles

Habeas corpus is known as the “Great Writ” because it supposedly protects individual liberty against government overreach and guards against wrongful detentions. This idea shapes habeas doctrine, federal courts theories, and habeas-reform proposals.

It is also incomplete. While the writ has sometimes protected individual liberty, it has also served as a vehicle for the legitimation of excesses of governmental power. A more complete picture of the writ emerges when one considers traditionally neglected areas of public law that are often treated as distinct—the law of slavery and freedom, Native American affairs, and immigration. There, habeas has empowered abusive exercises of …

Medicare Coverage Of Aducanumab - Implications For State Budgets, Rachel E. Sachs, Nicholas Bagley

Articles

Aducanumab (Aduhelm), the controversial $56,000-per-year Alzheimer’s disease drug approved by the Food and Drug Administration (FDA) in June 2021, has the potential to cost the federal government many billions of dollars — more, by one estimate, than it spends on agencies such as the Environmental Protection Agency or the National Aeronautics and Space Administration. The drug’s extraordinary price tag helps explain why, soon after its approval, the Centers for Medicare and Medicaid Services (CMS) opened a national coverage determination to decide whether and under what circumstances Medicare would pay for it.1

Problematic Interactions Between Ai And Health Privacy, W. Nicholson Price Ii

Articles

Problematic Interactions Between AI and Health Privacy Nicholson Price, University of Michigan Law SchoolFollow Abstract The interaction of artificial intelligence (AI) and health privacy is a two-way street. Both directions are problematic. This Essay makes two main points. First, the advent of artificial intelligence weakens the legal protections for health privacy by rendering deidentification less reliable and by inferring health information from unprotected data sources. Second, the legal rules that protect health privacy nonetheless detrimentally impact the development of AI used in the health system by introducing multiple sources of bias: collection and sharing of data by a small set …

Editing And Interleaving, Patrick Barry

Articles

This essay suggests that a powerful learning strategy called "interleaving"--which involves strategically switching between cognitive tasks--is being underused. It can do more than make study sessions more productive; it can also make editing sessions more productive.

Love Hertz: Corporate Groups And Insolvency Forum Selection, John A. E. Pottow

Articles

The Hertz bankruptcy got a lot of attention, including for its bizarre equity trading. A less heralded but more significant legal aspect of that insolvency, however, was its complex interaction of cross-border insolvency proceedings.

This article discusses the “centripetal” and “centrifugal” forces in the Hertz case that counselled a U.S.-based centralized solution for an international enterprise comprising over 10,000 branches centripetally but also accommodated centrifugal European resistance to subject directors to the consequences of filing their entities in a foreign jurisdiction. This not uncommon constellation of incentives required not a COMI shift but what this article terms a jurisdiction shift …

Caring For The Souls Of Our Students: The Evolution Of A Community Economic Development Clinic During Turbulent Times, Gowri J. Krishna, Kelly Pfeifer, Dana Thompson

Articles

Community Economic Development (CED) clinicians regularly address issues surrounding economic, racial, and social justice, as those are the core principles motivating their work to promote vibrant, diverse, and sustainable communities. When COVID-19 arrived, and heightened attention to police brutality and racial injustice ensued, CED clinicians focused not only on how to begin to address these issues in their clinics, but on how to discuss these issues more deeply and effectively with their students. This essay highlights the ways in which the pandemic school year influenced significant rethinking of one CED clinic’s operations: first, the pandemic sharpened the clinic’s mission to …

Financial Toxicity During Breast Cancer Treatment: A Qualitative Analysis To Inform Strategies For Mitigation, Laila A. Gharzai, Kerry A. Ryan, Lauren Szczygiel, Susan Goold, Grace Li Smith, Sarah T. Hawley, John A.E. Pottow, Reshma Jagsi

Articles

Financial toxicity from cancer treatment is a growing concern. Its impact on patients requires refining our understanding of this phenomenon. We sought to characterize patients' experiences of financial toxicity in the context of an established framework to identify knowledge gaps and strategies for mitigation. Semistructured interviews with patients with breast cancer who received financial aid from a philanthropic organization during treatment were conducted from February to May 2020. Interviews were transcribed and coded until thematic saturation was reached, and findings were contextualized within an existing financial toxicity framework. Thirty-two patients were interviewed, of whom 58% were non-Hispanic White. The mean …

Contract Schemas, Roseanna Sommers

Articles

This review draws on the notion of “contract schemas” to characterize what ordinary people think is happening when they enter into contractual arrangements. It proposes that contracts are schematically represented as written documents filled with impenetrable text containing hidden strings, which are routinely signed without comprehension. This cognitive template, activated whenever people encounter objects with these characteristic features, confers certain default assumptions, associations, and expectancies. A review of the literature suggests that contract schemas supply (a) the assumption that terms will be enforced as written, (b) the feeling that one is obligated to perform, and (c) the sense that one …

Why Are You Here? Modeling Illicit Massage Business Location Characteristics With Machine Learning, Anna White, Seth Guikema, Bridgette Carr

Articles

Illicit massage businesses are a venue for sex and labor trafficking in the United States. Though many of their locations are made publicly available through online advertising, little is known about why they choose to locate where they do. In this work, we use inferential modeling to better understand the spatial distribution of illicit massage businesses within the U.S. Based on addresses web-scraped weekly from online advertisements over 6 months, we modeled illicit massage business prevalence at the census tract and county levels. We used publicly available data to characterize census tracts and counties, finding that the state in which …

Funding Global Governance, Kristina B. Daugirdas

Articles

Funding is an oft-overlooked but critically important determinant of what public institutions are able to accomplish. This article focuses on the growing role of earmarked voluntary contributions from member states in funding formal international organizations such as the United Nations and the World Health Organization. Heavy reliance on such funds can erode the multilateral governance of international organizations and poses particular risks for two kinds of undertakings: normative work, such as setting standards and identifying best practices; and evaluating the conduct of member states and holding those states accountable, including through public criticism, when they fall short. International organizations have …

The Promise And Limits Of Lawfulness: Inequality, Law, And The Techlash, Salomé Viljoen

Articles

In response to widespread skepticism about the recent rise of “tech ethics”, many critics have called for legal reform instead. In contrast with the “ethics response”, critics consider the “lawfulness response” more capable of disciplining the excesses of the technology industry. In fact, both are simultaneously vulnerable to industry capture and capable of advancing a more democratic egalitarian agenda for the information economy. Both ethics and law offer a terrain of contestation, rather than a predetermined set of commitments by which to achieve more democratic and egalitarian technological production. In advancing this argument, the essay focuses on two misunderstandings common …

How Serving Jobless Workers During The Pandemic’S Economic Recession Grounded Students: A Reflection From Michigan’S Workers’ Rights Clinic, Rachael Kohl, Nancy Vettorello

Articles

The COVID-19 pandemic drastically changed the delivery of legal education. Many courses switched to remote instruction, and that change was particularly complicated for clinical courses. For Michigan's Workers' Right Clinic (WRC), however, the pandemic brought more than a change in course delivery - it brought a huge influx of new cases and community need with rapidly and continually changing laws. This article describes how the WRC navigated and thrived, despite the rapid changes brought about by the pandemic, and how the clinic provided an opportunity for students to engage in more complex work that benefited students both academically and mentally. …

Voices From A Prison Pandemic: Lives Lost From Covid-19 At Lakeland Correctional, Kimberly Thomas

Articles

Coronavirus tore through jails and prisons like wildfire. In some states, more than half of the people incarcerated there tested positive for COVID-19; nearly 400,000 people in prison across the United States have tested positive. For people in prison, COVID-19 brought the loss of close friends, solitary confinement, loss of connection with family and programming, lack of information, and fear of contracting the virus. It has also reminded those who are incarcerated of the one-dimensional way in which people in prison are perceived. As stated by one collaborator, Cory Souders, "[s]o many men and women who come to prison are …