Law Commons^™

Voting While Trans: How Voter Id Laws Unconstitutionally Compel The Speech Of Trans Voters, Emmy Maluf

Michigan Law Review

Thirty-five states currently request or require identification documents for in-person voting, and these requirements uniquely impact transgender voters. Of the more than 697,800 voting-eligible trans people living in states that conduct primarily in-person elections, almost half (43 percent) lack documents that correctly reflect their name or gender. When an ID does not align with a trans voter’s gender presentation, the voter may be disenfranchised—either because a poll worker denies them the right to cast a ballot or because the voter ID requirement chills their participation in the first place. Further, when a trans voter presents an ID that does not …

In Citizenship We Trust? The Citizenship Question Need Not Impede Puerto Rican Decolonization, Jimmy Mcdonough

Michigan Law Review

Puerto Rico is an uncomfortable reminder of the democratic deficits within the world’s oldest constitutional democracy. Puerto Ricans are U.S. citizens who live in a U.S. territory that is subject to the plenary authority of Congress, to which they cannot elect voting members. In 2022, under unified Democratic control for the first time in a decade, Congress considered the Puerto Rico Status Act, legislation that would finally decolonize Puerto Rico. The Status Act offered Puerto Rican voters three alternatives to the colonial status quo—statehood, independence, or sovereignty in free association—and committed Congress to implementing whichever alternative won majority support from …

Peripheral Detention, Transfer, And Access To The Courts, Jessica Rofé

Michigan Law Review

In the last forty years, immigration detention in the U.S. has grown exponentially, largely concentrated in the southern states and outside of the country’s metropoles. In turn, federal immigration officials routinely transfer immigrants from their communities to remote jails and prisons hundreds, if not thousands, of miles away, often in jurisdictions where the law is more favorable to the government. These transfers are conducted without notice or process and frequently occur on weekends or in the predawn hours, when offices are closed and interested parties are lucky to access voicemail.

Federal immigration officials’ use of peripheral detention and transfer significantly …

Designing Sanctuary, Rick Su

Michigan Law Review

In recent decades, a growing number of cities in the United States have adopted “sanctuary policies” that limit local participation in federal immigration enforcement. Existing scholarship has focused on their legality and effect, especially with respect to our nation’s immigration laws. Largely overlooked, however, is the local process through which sanctuary policies are designed and the reasons why cities choose to adopt them through city ordinances, mayoral orders, or employee handbooks. This Article argues that municipal sanctuary policies are far from uniform, and their variation reflects the different local interests and institutional actors behind their adoption and implementation. More specifically, …

On Behalf Of All Others Similarly Situated: Class Representation & Equitable Compensation, Alexander J. Noronha

Michigan Law Review

Class actions require class representation. In class actions, plaintiffs litigate not only on their own behalf but “on behalf of all others similarly situated.” For almost fifty years, federal courts have routinely exercised their inherent equitable authority to award modest compensation to deserving class representatives who help recover common funds benefiting the plaintiff class. These discretionary “incentive awards” are generally intended to compensate class representatives for shouldering certain costs and risks—which are not borne by absent class members—during the pendency of class litigation.

The ubiquity of permitting class action incentive awards ended in 2020. In an extraordinary ruling, the Eleventh …

Responding To Alternatives, Daniel T. Deacon

Michigan Law Review

This Article is the first to comprehensively analyze administrative agencies’ obligation to respond to alternatives to their chosen course of action. The obligation has been around at least since the Supreme Court’s decision in Motor Vehicle Manufacturers Ass’n of the United States, Inc. v. State Farm, and it has mattered in important cases. Most recently, the Supreme Court invoked the obligation as the primary ground on which to invalidate the Trump Administration’s rescission of the Deferred Action for Childhood Arrivals (DACA) program. The obligation to respond to alternatives is also frequently invoked in the lower courts and in the …

Sidewalk Government, Michael C. Pollack

Michigan Law Review

This Article is about one of the most used, least studied spaces in the country: the sidewalk.

It is easy to think of sidewalks simply as spaces for pedestrians, and that is exactly how most scholars, policymakers, and laws treat them. But this view is fundamentally mistaken. In big cities and small towns, sidewalks are also where we gather, demonstrate, dine, exercise, rest, and shop. They are host to commerce and infrastructure. They are spaces of public access and sources of private obligation. And in all of these things, sidewalks are sites of underappreciated conflict. The centrality of sidewalks in …

Destined To Deceive: The Need To Regulate Deepfakes With A Foreseeable Harm Standard, Matthew D. Weiner

Michigan Law Review

Political campaigns have always attracted significant attention, and politicians have often been the subjects of controversial—even outlandish—discourse. In the last several years, however, the risk of deception has drastically increased due to the rise of “deepfakes.” Now, practically anyone can make audiovisual media that are both highly believable and highly damaging to a candidate. The threat deepfakes pose to our elections has prompted several states and Congress to seek legislative remedies that ensure recourse for victims and hold bad actors liable. These recent attempts at deepfake laws are open to attack from two different loci. First, there is a question …

Who Owns Children’S Dna?, Nila Bala

Michigan Law Review

In recent years, DNA has become increasingly easy to collect, test, and sequence, making it far more accessible to law enforcement. While legal scholars have examined this phenomenon generally, this Article examines the control and use of children’s DNA, asking who ultimately owns children’s DNA. I explore two common ways parents—currently considered “owners” of children’s DNA— might turn over children’s DNA to law enforcement: (1) “consensual” searches and (2) direct-to-consumer testing. My fundamental thesis is that parental consent is an insufficient safeguard to protect a child’s DNA from law enforcement. At present, the law leaves parents in complete control of …

A Revisionist History Of Products Liability, Alexandra D. Lahav

Michigan Law Review

Increasingly courts, including the Supreme Court, rely on ossified versions of the common law to decide cases. This Article demonstrates the risks of this use of the common law. The main contribution of the Article is to demonstrate that the traditional narrative about early products law—that manufacturers were not liable for injuries caused by their products because the doctrine of privity granted producers immunity from suit by the ultimate consumers of their goods—is incorrect. Instead, the doctrinal rule was negligence liability for producers of injurious goods across the United States in the nineteenth century. Courts routinely ignored or rejected privity …

Is There Anything Left In The Fight Against Partisan Gerrymandering? Congressional Redistricting Commissions And The “Independent State Legislature Theory”, Derek A. Zeigler, Jose Urteaga

Michigan Law Review

Partisan gerrymandering is a scourge on our democracy. Instead of voters choosing their representatives, representatives choose their voters. Historically, individuals and states could pursue multiple paths to challenge partisan gerrymandering. One way was to bring claims in federal court. The Supreme Court shut this door in Rucho v. Common Cause. States can also resist partisan gerrymandering by establishing congressional redistricting commissions. However, the power of these commissions to draw congressional districts is at risk. In Moore v. Harper, a case decided in the Supreme Court’s 2022-2023 Term, the petitioners asked the Court to embrace the “Independent State Legislature …

The Death Knell And The Wild West: Two Dangers Of Domestic Discovery In Foreign Adjudications, Shay M. Collins

Michigan Law Review

Under 28 U.S.C. § 1782(a), parties to foreign legal proceedings can obtain discovery orders from United States federal courts. In other words, if a foreign party needs physical evidence located in—or testimony from a person residing in—the United States to support their claim or defense, they can ask a district court to order the production of that evidence. For almost two decades, § 1782(a) practice has operated as a procedural Wild West. Judges routinely consider § 1782(a) applications ex parte—that is, without giving the parties subject to the resulting discovery orders a chance to oppose them—and grant those applications at …

Revisiting The “Tradition Of Local Control” In Public Education, Carter Brace

Michigan Law Review

In Milliken v. Bradley, the Supreme Court declared “local control” the single most important tradition of public education. Milliken and other related cases developed this notion of a tradition, which has frustrated attempts to achieve equitable school funding and desegregation through federal courts. However, despite its significant impact on American education, most scholars have treated the “tradition of local control” as doctrinally insignificant. These scholars depict the tradition either as a policy preference with no formal legal meaning or as one principle among many that courts may use to determine equitable remedies. This Note argues that the Supreme Court …

The National Security Consequences Of The Major Questions Doctrine, Timothy Meyer, Ganesh Sitaraman

Michigan Law Review

The rise of the major questions doctrine—the rule that says that in order to delegate to the executive branch the power to resolve a “question of ‘deep economic and political significance’ that is central to [a] statutory scheme,” Congress must do so expressly—threatens to unmake the modern executive’s authority over foreign affairs, especially in matters of national security and interstate conflict. In the twenty-first century, global conflicts increasingly involve economic warfare, rather than (or in addition to) the force of arms.

In the United States, the executive power to levy economic sanctions and engage in other forms of economic warfare …

The Oligarchic Courthouse: Jurisdiction, Corporate Power, And Democratic Decline, Helen Hershkoff, Luke Norris

Michigan Law Review

Jurisdiction is foundational to the exercise of judicial power. It is precisely for this reason that subject matter jurisdiction, the species of judicial power that gives a court authority to resolve a dispute, has today come to the center of a struggle between corporate litigants and the regulatory state. In a pronounced trend, corporations are using jurisdictional maneuvers to manipulate forum choice. Along the way, they are wearing out less-resourced parties, circumventing hearings on the merits, and insulating themselves from laws that seek to govern their behavior. Corporations have done so by making creative arguments to lock plaintiffs out of …

Title Vii’S Failures: A History Of Overlooked Indifference, Elena S. Meth

Michigan Law Review

Nearly sixty years after the adoption of Title VII and over thirty since intersectionality theory was brought into legal discourse by Professor Kimberlé Crenshaw, the U.S. Supreme Court has consistently failed to meaningfully implement intersectionality into its decisionmaking. While there is certainly no shortage of scholarship on intersectionality and the Court’s failure to recognize it, this remains an overlooked failure by the Supreme Court. This Note proceeds in three parts. Part I provides an overview of Title VII and intersectional discrimination theory. I then explain how the EEOC and the Supreme Court have historically handled intersectional discrimination cases. Part II …

Telegraph Torts: The Lost Lineage Of The Public Service Corporation, Evelyn Atkinson

Michigan Law Review

At the turn of the twentieth century, state courts were roiled by claims against telegraph corporations for mental anguish resulting from the failure to deliver telegrams involving the death or injury of a family member. Although these “telegraph cases” at first may seem a bizarre outlier, they in fact reveal an important and understudied moment of transformation in the nature of the relationship between the corporation and the public: the role of affective relations in the development of the category of the public utility corporation. Even as powerful corporations were recast as private, rights-bearing, profit-making market actors in constitutional law, …

Inventing Deportation Arrests, Lindsay Nash

Michigan Law Review

At the dawn of the federal deportation system, the nation’s top immigration official proclaimed the power to authorize deportation arrests “an extraordinary one” to vest in administrative officers. He reassured the nation that this immense power—then wielded by a cabinet secretary, the only executive officer empowered to authorize these arrests—was exercised with “great care and deliberation.” A century later, this extraordinary power is legally trivial and systemically exercised by low-level enforcement officers alone. Consequently, thousands of these officers—the police and jailors of the immigration system— now have the power to solely determine whether deportation arrests are justified and, therefore, whether …

Wrongs To Us, Steven Schaus

Michigan Law Review

A huge number of tort suits in the United States are captioned Plaintiff & Spouse v. Defendant. Why? The answer is at once completely obvious and deeply puzzling. The plaintiff’s spouse is part of the case because, in almost every U.S. state, she has a claim against the defendant too—not for battery or negligence, as her spouse might, but for the loss of her spouse’s “consortium.” And yet, it’s not at all clear why a spouse should have a tort claim of this kind. A plaintiff who sues in tort, Judge Cardozo once explained, must always identify “ ‘a …

Gotta Get Those Ill-Gotten Gains: Improving The Ftc's Authority To Seek Disgorgement In Antitrust Cases, Kathryn Buggs

Michigan Law Review

Disgorgement is an equitable monetary remedy that requires a defendant to give up all ill-gotten gains from their illegal conduct. Unlike damages, which can be compensatory, deterrent, or even punitive in nature, disgorgement focuses primarily on deterring future illegal conduct. It relies on the simple moral premise that wrongdoers should not be allowed to retain the profits of their wrongdoing. Especially in antitrust litigation involving complex, multilayered supply chains, damages can underestimate the true harm suffered as a result of anticompetitive conduct. Disgorgement, if calculated properly and litigated thoughtfully, has the potential to provide redress for the full amount of …

Aerial Trespass And The Fourth Amendment, Randall F. Khalil

Michigan Law Review

Since 1973, courts have analyzed aerial surveillance under the Fourth Amendment by applying the test from Katz v. United States, which states that a search triggers the Fourth Amendment when a government actor violates a person’s “reasonable expectation of privacy.” The Supreme Court applied Katz to aerial surveillance three times throughout the 1980s, yet this area of the law remains unsettled and outcomes are unpredictable. In 2012, the Supreme Court recognized an alternative to the Katz test in Jones v. United States, which held that a search triggers the Fourth Amendment when a government actor physically intrudes into …

Justice Without Power: Yemen And The Global Legal System, Amulya Vadapalli

Michigan Law Review

The war in Yemen has remained the world’s worst humanitarian crisis since 2015, and yet it is shockingly invisible. The global legal system fails to offer a clear avenue through which the Yemeni people can hold the state actors responsible for their harm accountable. This Note analyzes international legal mechanisms for vindicating war crimes and human rights abuses perpetrated in Yemen. Through the lens of Yemen’s humanitarian crisis, it highlights gaps in the global legal structure, proposes alternative accountability processes, and uses a variety of sources—including interviews with practitioners and Arabic language legal scholarship—to explicate a victim-centered transitional justice process …

Pocket Police: The Plain Feel Doctrine Thirty Years Later, Kelly Recker

Michigan Law Review

The idea that a police officer can park in a low-income neighborhood, pull someone over because of their race, frisk everyone in the car, let them go if their pockets are empty, and do the whole thing over and over again until the officer finds something illegal seems deeply upsetting and violative, to say the least. And yet, pretextual traffic stops are constitutional per a unanimous Supreme Court in Whren v. United States, 517 U.S. 806 (1996), as is seizing obvious contraband during a frisk per Minnesota v. Dickerson, 508 U.S. 366 (1993). In the thirty years since …

Error Aversions And Due Process, Brandon L. Garrett, Gregory Mitchell

Michigan Law Review

William Blackstone famously expressed the view that convicting the innocent constitutes a much more serious error than acquitting the guilty. This view is the cornerstone of due process protections for those accused of crimes, giving rise to the presumption of innocence and the high burden of proof required for criminal convictions. While most legal elites share Blackstone’s view, the citizen jurors tasked with making due process protections a reality do not share the law’s preference for false acquittals over false convictions.

Across multiple national surveys sampling more than 12,000 people, we find that a majority of Americans consider false acquittals …

Privatizing Copyright, Xiyin Tang

Michigan Law Review

Much has been written, and much is understood, about how and why digital platforms regulate free expression on the internet. Much less has been written— and even much less is understood—about how and why digital platforms regulate creative expression on the internet—expression that makes use of others’ copyrighted content. While § 512 of the Digital Millennium Copyright Act regulates user-generated content incorporating copyrighted works, just as § 230 of the Communications Decency Act regulates other user speech on the internet, it is, in fact, rarely used by the largest internet platforms—Facebook and YouTube. Instead, as this Article details, creative speech …

Repugnant Precedents And The Court Of History, Daniel B. Rice

Michigan Law Review

Aged Supreme Court precedents continue to tolerate many practices that would shock modern sensibilities. Yet the Court lacks standard tools for phasing out decisions that offend our national character. The very cultural shifts that have reoriented our normative universe have also insulated most repugnant precedents from direct attack. And the familiar stare decisis factors cannot genuinely explain what ails societally outmoded decisions. Even for justices inclined to condemn these embarrassments in less clinical terms, it is unclear what qualifies courts to make universalist claims about contemporary American values.

The Court recently sidestepped these difficulties by insisting that one of its …

Recognizing The Right To Family Unity In Immigration Law, Eugene Lee

Michigan Law Review

The Trump Administration’s travel ban and separation of families at the U.S.- Mexico border drew newfound attention to the constitutional due process right to family unity. But even before then, the right to family unity has had a substantial history. Rooted in the Supreme Court’s line of privacy rights cases, the right to family unity is amorphous. This ambiguity has given rise to disagreement regarding not only legal doctrine surrounding the right but also whether the right even exists. This Note clarifies this disagreement by offering a historical account of the right to family unity and an overview of three …

Mooting Unilateral Mootness, Scott T. Macguidwin

Michigan Law Review

Several situations cause a case to be moot. These include settlement agreements, party collusion, changes in litigant status, and extrinsic circumstances thwarting the court from granting any relief. The final reason is unilateral mootness—when a defendant ends a lawsuit against a plaintiff’s wishes by giving them everything for which they ask. In practice, this allows defendants to strategically stop lawsuits when it is clear they are not going to win. By doing so, they prevent the court from handing down adverse precedent and preserve the opportunity to engage in similar behavior with impunity. Courts have established a series of mootness …

Race-Ing Antitrust, Bennett Capers, Gregory Day

Michigan Law Review

Antitrust law has a race problem. To spot an antitrust violation, courts inquire into whether an act has degraded consumer welfare. Since anticompetitive practices are often assumed to enhance consumer welfare, antitrust offenses are rarely found. Key to this framework is that antitrust treats all consumers monolithically; that consumers are differently situated, especially along lines of race, simply is ignored.

We argue that antitrust law must disaggregate the term “consumer” to include those who disproportionately suffer from anticompetitive practices via a community welfare standard. As a starting point, we demonstrate that anticompetitive conduct has specifically been used as a tool …

Beyond “Big Government”: Toward New Legal Histories Of The New Deal Order’S End, Gabriel L. Levine

Michigan Law Review

A Review of Public Citizens: The Attack on Big Government and the Remaking of American Liberalism. By Paul Sabin.