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The Intellectual Property Of Vaccines: Takeaways From Recent Infectious Disease Outbreaks, Ana Santos Rutschman Apr 2020

The Intellectual Property Of Vaccines: Takeaways From Recent Infectious Disease Outbreaks, Ana Santos Rutschman

Michigan Law Review Online

In late 2019 and early 2020, a new strain of coronavirus, a family of pathogens causing serious respiratory illness, began infecting populations across the globe. A quick uptick in COVID-19, the disease caused by the novel pathogen, prompted the World Health Organization to declare the outbreak a Public Health Emergency of International Concern on January 30, 2020. By mid-February 2020, with 26 countries reporting cases of COVID-19 infection, the global case count had surpassed 50,000, and had resulted in over 1,500 deaths. The World Health Organization elevated the status of the outbreak to a pandemic in mid-March. As ...


Libra: A Concentrate Of "Blockchain Antitrust", Thibault Schrepel Apr 2020

Libra: A Concentrate Of "Blockchain Antitrust", Thibault Schrepel

Michigan Law Review Online

Blockchains promise to decentralize the economy, bypassing trusts in favor of decentralized communities. The World Economic Forum predicts that 10 percent of the global gross domestic product will be stored on block-chain by 2027. Gartner further prophesizes that blockchain will create $3.1 trillion worth of business value by 2030. Even if that prediction turns out to be too optimistic, blockchain’s legal implications cannot be neglected.


Segregation In The Galleries: A Reconsideration, Richard Primus Feb 2020

Segregation In The Galleries: A Reconsideration, Richard Primus

Michigan Law Review Online

When constitutional lawyers talk about the original meaning of the Fourteenth Amendment as applied to questions of race, they often men-tion that the spectators’ galleries in Congress were racially segregated when Congress debated the Amendment.1 If the Thirty-Ninth Congress practiced racial segregation, the thinking goes, then it probably did not mean to prohibit racial segregation.2 As an argument about constitutional interpretation, this line of thinking has both strengths and weaknesses. But this brief Essay is not about the interpretive consequences, if any, of segregation in the congressional galleries during the 1860s. It is about the factual claim that ...


Progressive Textualism In Administrative Law, Kathryn E. Kovacs Dec 2019

Progressive Textualism In Administrative Law, Kathryn E. Kovacs

Michigan Law Review Online

Nicholas Bagley’s article The Procedure Fetish is destined to be a classic. In it, Bagley systematically dismantles administrative law’s obsession with procedure. He decimates the arguments that procedure is necessary to legit-imize the administrative state and avoid agency capture. He nullifies the con-tention that administrative law is neutral by showing how proceduralism inhibits regulation and “favors a libertarian agenda over a progressive one.” Bagley urges progressives to abandon “gauzy claims about legitimacy and accountability” and approach procedure with skepticism.

The Procedure Fetish addresses the normative question of what adminis-trative law ought to require. Bagley writes about how progressives ...


Should The United States Adopt Crs?, Noam Noked Jun 2019

Should The United States Adopt Crs?, Noam Noked

Michigan Law Review Online

The United States' one-sided approach to tax transparency might lead to an unprecedented clash with the European Union (EU) in the near future. In light of the EU's deadline for the United States, the U.S. Treasury and Congress should urgently engage in a discussion on whether the United States should adopt the Common Reporting Standard (CRS) for automatic exchange of financial account information. A recent report from the U.S. Government Accountability Office considered this issue and did not recommend adopting CRS. This Essay discusses the contents of the report, as well as important considerations that were left ...


College Athletics: The Chink In The Seventh Circuit's "Law And Economics" Armor, Michael A. Carrier, Marc Edelman Apr 2019

College Athletics: The Chink In The Seventh Circuit's "Law And Economics" Armor, Michael A. Carrier, Marc Edelman

Michigan Law Review Online

If any court is linked to the “law and economics” movement, it is the Seventh Circuit, home of former Judge Richard Posner, the “Chicago School,” and analysis based on markets and economics. It thus comes as a surprise that in college-athletics cases, the court has replaced economic analysis with legal formalisms. In adopting a deferential approach that would uphold nearly every rule the National Collegiate Athletic Association (NCAA) claims is related to amateurism, the court recalls the pre- Chicago School era, in which courts aggressively applied “per se” illegality based on a restraint’s form, rather than substance. While the ...


Gun Safety In The Age Of Kavanaugh, Joseph S. Hartunian Apr 2019

Gun Safety In The Age Of Kavanaugh, Joseph S. Hartunian

Michigan Law Review Online

This Essay takes stock of the different approaches adopted and advocated for in evaluating constitutional challenges in Second Amendment opinions throughout the country. The author’s hope is that doing so will help highlight the contours for debate when the Supreme Court does finally start to define some of the limits purported to exist by Justice Scalia. Part I analyzes the paths explicitly rejected by Heller I by reviewing the limits considered allowable by Justice Scalia. Part II considers the ongoing debate between the courts on the application of “strict” or “intermediate” scrutiny for Second Amendment challenges. Part III examines ...


A Crossroads, Not An Island: A Response To Hanoch Dagan, Zoë Hitzig, E. Glen Weyl Apr 2019

A Crossroads, Not An Island: A Response To Hanoch Dagan, Zoë Hitzig, E. Glen Weyl

Michigan Law Review Online

Hanoch Dagan critiques Radical Markets for insufficient attention to the value of autonomy. While most of his concrete disagreements result from miscommunications, he appears sympathetic to a theory of autonomy that is more widespread, and deserves response. Human agency is fundamentally social, and individuality is primarily constituted by the unique set of social connections and identities one adopts. In this sense, flourishing individuals are crossroads of different communities, not self-sufficient islands. Beyond any welfarist benefits, a fundamental value of Radical Markets is that they aim to instantiate the social nature of identity and empower agency through diverse community.


The Making Of The Supreme Court Bar: How Business Created A Solicitor General For The Private Sector, Jeremy Pilaar Dec 2018

The Making Of The Supreme Court Bar: How Business Created A Solicitor General For The Private Sector, Jeremy Pilaar

Michigan Law Review Online

This Essay tells a simple but important story about power and the law: that of the rise of the modern Supreme Court bar. Since 1985, a small cadre of private attorneys has come to dominate Court advocacy. While the share of lawyers making their first arguments before the justices fell from 76% to 43% between 1980 and 2007, the fraction with ten or more arguments under their belt rose from 2% to 28%. Similarly, while litigators with five or more previous arguments were responsible for 5.8% of the case petitions granted in October Term 1980, that quotient soared to ...


Is Groton The Next Evenwel?, Paul H. Edelman Oct 2018

Is Groton The Next Evenwel?, Paul H. Edelman

Michigan Law Review Online

In Evenwel v. Abbott the Supreme Court left open the question of whether states could employ population measures other than total population as a basis for drawing representative districts so as to meet the requirement of "one person, one vote" (OPOV). It was thought that there was little prospect of resolving this question soon as no appropriate instances of such behavior were known. That belief was mistaken. In this Essay I report on the Town of Groton, Connecticut, which uses registered voter data to apportion seats in its Representative Town Meeting and has done so since its incorporation in 1957 ...


The Republic In Long-Term Perspective, Richard Primus Aug 2018

The Republic In Long-Term Perspective, Richard Primus

Michigan Law Review Online

Every system of government eventually passes away. That's a feature of the human condition. The United States has been an unusually stable polity by the standards of world civilizations, and for that stability Americans should be deeply grateful. But no nation is exempt from the basic forces of history. It is not reasonable to think that the constitutional republic we know will last forever. The question is when it will meet its end-in our lifetimes, or in our grandchildren's, or centuries later. Given the stable conditions that living Americans were socialized to expect, the dominant intuition is probably ...


State Court Litigation: The New Front In The War Against Partisan Gerrymandering, Charlie Stewart Jun 2018

State Court Litigation: The New Front In The War Against Partisan Gerrymandering, Charlie Stewart

Michigan Law Review Online

Partisan gerrymandering is the process of drafting state and congressional districts in a manner that gives one political party an advantage over another. The end goal is simple: help your party win more seats or protect existing ones. The tactic is as old as the United States. In 1788, Patrick Henry convinced the Virginia state legislature to draw the 5th Congressional District to pit his rival James Madison against James Monroe. The term “gerrymander” itself is a hybrid: in 1810, democratic Governor Gerry signed a partisan redistricting plan into law—one that contained a district that infamously looked like a ...


Is There Any Silver Lining To Trinity Lutheran Church, Inc. V. Comer?, Caroline Mala Corbin May 2018

Is There Any Silver Lining To Trinity Lutheran Church, Inc. V. Comer?, Caroline Mala Corbin

Michigan Law Review Online

Trinity Lutheran Church, Inc. v. Comer is a significant setback for a strong separation of church and state. Missouri denied a playground grant to Trinity Lutheran because of a state constitutional provision that bans financial aid to churches. The church sued. The Supreme Court held not only that the Establishment Clause allowed the government to give taxpayer money to Trinity Lutheran, but that the Free Exercise Clause required it. The decision's many flaws are not the focus of this short Essay. Instead, this Essay dissects the Supreme Court's reasoning in order to apply it to current controversies in ...


Solving The Nonresident Alien Due Process Paradox In Personal Jurisdiction, Robin J. Effron May 2018

Solving The Nonresident Alien Due Process Paradox In Personal Jurisdiction, Robin J. Effron

Michigan Law Review Online

Personal jurisdiction has a nonresident alien problem. Or, more accurately, personal jurisdiction has two nonresident alien problems. The first is the extent to which the specter of the nonresident alien defendant has overshadowed-if not unfairly driven-the discourse and doctrine over constitutional personal jurisdiction. The second is that the constitutional right to resist personal jurisdiction enjoyed by the nonresident alien defendant in a civil lawsuit is remarkably out of alignment with that same nonresident alien's ability to assert nearly every other constitutional right. Neither of these observations is new, although the first problem has drawn far more scholarly attention than ...


A Unifying Approach To Nexus Under The Dormant Commerce Clause, Adam B. Thimmesch Mar 2018

A Unifying Approach To Nexus Under The Dormant Commerce Clause, Adam B. Thimmesch

Michigan Law Review Online

The Supreme Court has long debated the existence and scope of its power to restrict state regulation under the so-called negative or dormant Commerce Clause. The Court took a broad view of that power in the late 1800s, but it has refined and restricted its role over time. One area where the Court has continued to wield considerable power, however, has been in the context of state taxes. Specifically, the Court has continued to restrict states' power to compel out-of-state vendors to collect their sales and use taxes based on a physical-presence "nexus" rule. That rule dates back to the ...


Reassessing American Democracy: The Enduring Challege Of Racial Exclusion, Johanna Kalb, Didi Kuo Jan 2018

Reassessing American Democracy: The Enduring Challege Of Racial Exclusion, Johanna Kalb, Didi Kuo

Michigan Law Review Online

American democracy is in trouble. Since the 2016 election, a sizable literature has developed that focuses on diagnosing and assessing the state of American democracy, most of which concludes that our system of government is in decline.[2] These authors point to the rise in party polarization, the increasingly bipartisan abandonment of the norms of the democratic process, the rise of populism, the degradation of the public sphere, and the proliferation of gerrymandered districts and voting restrictions to illustrate the breakdown. And while attributing varying levels of significance to these factors, a common theme is that American democracy, once stable ...


Prosecutors Matter: A Response To Bellin’S Review Of Locked In, John P. Pfaff Jan 2018

Prosecutors Matter: A Response To Bellin’S Review Of Locked In, John P. Pfaff

Michigan Law Review Online

In this year's Book Review issue, Jeffrey Bellin reviews my book, Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform, and he finds much to disagree with. I appreciate the editors of the Law Review providing me with the opportunity to correct a significant error he makes when discussing some of my data. In the book, I use data from the National Center for State Courts (NCSC) to show that prosecutors filed increasingly more felony cases over the 1990s and 2000s, even as crime fell. Bellin makes two primary claims about how I used ...


Climate Change Litigation In The Federal Courts: Jurisdictional Lessons From California V. Bp, Gil Seinfeld Jan 2018

Climate Change Litigation In The Federal Courts: Jurisdictional Lessons From California V. Bp, Gil Seinfeld

Michigan Law Review Online

On March 21 of this year, something unusual took place at a U.S. courthouse in San Francisco: a group of scientists and attorneys provided Federal District Judge William H. Alsup with a crash course in climate science. The five-hour tutorial was ordered by Judge Alsup in connection with a lawsuit that had been filed by the cities of Oakland and San Francisco (“the Cities”) against the world’s five largest producers of fossil fuels. The central issue in the case is whether the energy companies can be held liable for continuing to market fossil fuels long after they learned ...


Restoring Trade’S Social Contract, Timothy Meyer, Garcia J. Frank Jan 2018

Restoring Trade’S Social Contract, Timothy Meyer, Garcia J. Frank

Michigan Law Review Online

As we write this, U.S. trade policy is falling into deeper and deeper disarray. The United States, Canada, and Mexico are holding frenzied meetings to renegotiate the North American Free Trade Agreement (NAFTA). As recently as October 11, 2017, President Donald Trump warned that he will withdraw the United States from NAFTA if he does not get a deal that is “fair” to American workers. Indeed, the Trump Administration has already pulled the United States out of the Trans-Pacific Partnership (TPP), threatened to withdraw from the United States-Korea Free Trade Agreement (KORUS), and is holding the World Trade Organization ...


A Prudential Take On A Prudential Takings Doctrine, Katherine Mims Crocker Jan 2018

A Prudential Take On A Prudential Takings Doctrine, Katherine Mims Crocker

Michigan Law Review Online

The Supreme Court is set to decide a case requesting reconsideration of a doctrine that has long bedeviled constitutional litigants and commentators. The case is Knick v. Township of Scott, and the doctrine is the “ripeness” rule from Williamson County Regional Planning Commission v. Hamilton Bank that plaintiffs seeking to raise takings claims under the Fifth Amendment must pursue state-created remedies first—the so-called “compensation prong” (as distinguished from a separate “takings prong”). This Essay argues that to put the compensation prong in the best light possible, the Court should view the requirement as a “prudential” rule rather than (as ...


Counting Zeros: The Every Student Succeeds Act And The Testing Opt-Out Movement, Paul A. Hoversten Jan 2017

Counting Zeros: The Every Student Succeeds Act And The Testing Opt-Out Movement, Paul A. Hoversten

Michigan Law Review Online

The story begins with threatening letters. In October 2014, the U.S. Department of Education reminded Colorado’s chief state school officer that the department “ha[d], in fact, withheld Title I, Part A administrative funds . . . from a number of States for failure to comply with the assessment requirements” under the Elementary and Secondary Education Act. Given the occasion, the department implied, it wouldn’t hesitate to be ruthless.

Colorado could be forgiven for assuming it was authorized to craft its own policies in this arena; according to the Wall Street Journal, the Every Student Succeeds Act (ESSA) represented “the ...


Judge Gorsuch And Johnson Resentencing (This Is Not A Joke), Leah M. Litman Jan 2017

Judge Gorsuch And Johnson Resentencing (This Is Not A Joke), Leah M. Litman

Michigan Law Review Online

Jan Crawford has reported that President Donald Trump is strongly considering appointing Judge Neil Gorsuch of the United States Court of Appeals for the Tenth Circuit to the U.S. Supreme Court. I do not know Judge Gorsuch, but I do know his opinion in Prost v. Anderson, which is a rather wonky case on a somewhat technical area of federal habeas law. Prost provides an interesting insight into Judge Gorsuch’s jurisprudence. The case concerns an issue on which the courts of appeals disagree, so it provides a nice glimpse into how Judge Gorsuch might address matters that are ...


Sally Yates, Ronald Dworkin, And The Best View Of The Law, W. Bradley Wendel Jan 2017

Sally Yates, Ronald Dworkin, And The Best View Of The Law, W. Bradley Wendel

Michigan Law Review Online

What interests me, as a scholar of legal ethics and jurisprudence, is whether Yates got it right when she said the responsibility of a lawyer for the government is to seek justice and stand for what is right, and that the position of the Department of Justice should be informed by the lawyer’s best view of the law. Yates’s claim that legal advice should be informed by the best view of the law sounds very much like the position of Ronald Dworkin. Dworkin argued that a judge should determine the legal rights and duties of the litigants by ...


Chevron In The Circuit Courts: The Codebook Appendix, Kent Barnett, Christopher J. Walker Jan 2017

Chevron In The Circuit Courts: The Codebook Appendix, Kent Barnett, Christopher J. Walker

Michigan Law Review Online

For our empirical study on the use of Chevron deference in the federal courts of appeals, we utilized the following Codebook. This Codebook draws substantially from the codebook appended to William Eskridge and Lauren Baer’s pathbreaking study of administrative law’s deference doctrines at the Supreme Court. Our research assistants and we followed the instructions below when coding judicial decisions. To address questions as they arose and to ensure consistent coding, we maintained close contact with each other and our research assistants throughout the project and clarified the Codebook to address additional issues. Further details concerning our methodology (and ...


Legislative Sovereignty, Executive Power, And Judicial Review: Comparative Insights From Brexit, René Reyes Jan 2017

Legislative Sovereignty, Executive Power, And Judicial Review: Comparative Insights From Brexit, René Reyes

Michigan Law Review Online

In June 2016, participants in a United Kingdom referendum voted to leave the European Union (EU) by a margin of 52% to 48%. The timing and terms of Britain’s exit (commonly known as “Brexit”) are the subject of on-going public and parliamentary debate. But the mechanism by which Brexit is to be formally commenced was clarified by the U.K. Supreme Court at the end of January 2017 in the landmark case R (Miller) v. Secretary of State for Exiting the European Union. The question presented was whether ministers of Theresa May’s government could give notice of the ...


The Fourth Amendment Categorical Imperative, Gray David Jan 2017

The Fourth Amendment Categorical Imperative, Gray David

Michigan Law Review Online

The vast majority of current Fourth Amendment doctrine is unfounded, incoherent, and dangerous. The culprit is the Supreme Court’s 1967 decision in Katz v. United States, which defines “search” as government conduct that violates subjectively manifested expectations of privacy “that society is prepared to recognize as ‘reasonable.’ ” This is pure applesauce. Nowhere will you find a standard dictionary that defines “search” in these terms. Neither will you hear a native speaker of the English language use “search” in this sense unless her mind has been polluted by a semester of studying criminal procedure. The Court created this definition of ...


Ms-13 As A Terrorist Organization: Risks For Central American Asylum Seekers, Blake Jillian Jan 2017

Ms-13 As A Terrorist Organization: Risks For Central American Asylum Seekers, Blake Jillian

Michigan Law Review Online

In its first year, the Trump Administration has used aggressive rhetoric in a crusade against the transnational gang MS‑13. In April, Attorney General Jeff Sessions called MS‑13 “one of the most violent gangs in the history of our country” and said that the gang “could qualify” as a terrorist organization. Since then, the administration has put its fight against MS‑13 at the front and center of its agenda. In a speech this summer, President Donald Trump called MS‑13 gang members “animals” and vowed to “dismantle, decimate and eradicate” their operations. The president has also used the ...


Unduly Burdening Women’S Health: How Lower Courts Are Undermining Whole Woman’S Health V. Hellerstedt, Litman M. Leah Jan 2017

Unduly Burdening Women’S Health: How Lower Courts Are Undermining Whole Woman’S Health V. Hellerstedt, Litman M. Leah

Michigan Law Review Online

At the end of the Supreme Court’s 2016 Term, the Court issued its decision in Whole Woman’s Health v. Hellerstedt. One of the more closely watched cases of that Term, Hellerstedt asked whether the Supreme Court would adhere to its prior decision in Planned Parenthood v. Casey, which reaffirmed that women have a constitutionally protected right to decide to end a pregnancy.

The state of Texas had not formally requested that the Court revisit Casey or the earlier decision Casey had affirmed, Roe v. Wade, in Hellerstedt. But that was what Texas was, in effect, asking the Court ...


Predicate Offenses, Foreign Convictions, And Trusting Tribal Courts, Alexander S. Birkhold Jun 2016

Predicate Offenses, Foreign Convictions, And Trusting Tribal Courts, Alexander S. Birkhold

Michigan Law Review Online

Concerns about the reliability of criminal justice systems in foreign countries have resulted in uneven treatment of foreign convictions in U.S. courts. Federal courts, however, have historically accepted tribal court convictions as predicate offenses under recidivist statutes. But the Ninth Circuit Court of Appeals recently rejected the uncounseled convictions obtained against Michael Bryant, Jr., a serial domestic abuser, in the Northern Cheyenne Tribal Court. The court dismissed a federal indictment that had been brought against Bryant under 18 U.S.C § 117, which makes it a felony to commit domestic violence against a spouse or partner in Indian country ...


Delegating Peace Enforcement Missions- But To Whom? What The U.N.'S Recent Recommendation Reveals About Today's Crisis In Legitimate Actors For Robust Peace Operations, Karima Tawfik Jan 2016

Delegating Peace Enforcement Missions- But To Whom? What The U.N.'S Recent Recommendation Reveals About Today's Crisis In Legitimate Actors For Robust Peace Operations, Karima Tawfik

Michigan Law Review Online

This Essay argues that in assessing whether or not to move towards the U.N. panel’s proposed model that champions regional actors and ad hoc coalitions over the U.N. itself, the international community must weigh the marginal costs and benefits of this plan. This essay follows the U.N. panel’s call for the international community to derive lessons from the past by examining three case studies where regional actors and ad hoc coalitions, rather than the U.N., have embarked on peace enforcement missions. It argues that if the international community chooses to follow the U.N ...