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Articles 1 - 30 of 165
Full-Text Articles in Law
The Private Causes Of Action Under Cercla: Navigating The Intersection Of Sections 107(A) And 113(F), Jeffrey M. Gaba
The Private Causes Of Action Under Cercla: Navigating The Intersection Of Sections 107(A) And 113(F), Jeffrey M. Gaba
Michigan Journal of Environmental & Administrative Law
The Comprehensive Environmental, Response, Compensation, and Liability Act (CERCLA) provides three distinct “private” causes of action that allow parties to recover all or part of their cleanup costs from “potentially responsible parties.” Section 107(a)(4)(B) provides a “direct” right of cost recovery. Sections 113(f)(1) and 113(f)(3)(B) provide a right of contribution following a CERCLA civil action or certain judicial or administrative settlements. The relationship among these causes of action has been the source of considerable confusion. Two Supreme Court cases, Cooper Industries, Inc. v. Aviall Services, Inc. and United States v. Atlantic Research Corp. have identified certain situations in which the …
Public Trust Doctrine Implications Of Electricity Production, Lance Noel, Jeremy Firestone
Public Trust Doctrine Implications Of Electricity Production, Lance Noel, Jeremy Firestone
Michigan Journal of Environmental & Administrative Law
The public trust doctrine is a powerful legal tool in property law that requires the sovereign, as a trustee, to protect and manage natural resources. Historically, the public trust doctrine has been used in relationship to navigable waterways and wildlife management. Despite electricity production’s impact on those two areas and the comparatively smaller impacts of renewable energy, electricity production has garnered very little public trust doctrine attention. This Article examines how electricity production implicates the public trust doctrine, primarily through the lens of four states—California, Wisconsin, Hawaii, and New Jersey—and how it would potentially apply to each state’s electricity planning …
Minimization Criteria For Off-Road Vehicle Use, Louisa S. Eberle
Minimization Criteria For Off-Road Vehicle Use, Louisa S. Eberle
Michigan Journal of Environmental & Administrative Law
President Nixon recognized the controversy surrounding off-road vehicle (ORV) use on public lands when he signed Executive Order 11,644 in 1972. The Executive Order set out minimization criteria that bound federal land management agencies’ ORV area and trail designations. Forty years later, agencies are still struggling to implement the minimization criteria. Recent court opinions have struck down implementation attempts by the National Park Service, Bureau of Land Management, and Forest Service. This note argues that agencies require additional guidance for ORV management, particularly in light of case law that sets a floor for achieving minimization. After examining how the mandate …
When Is An Agency A Court? A Modified Functional Approach To State Agency Removal Under 28 U.S.C. § 1441, Nicholas Jackson
When Is An Agency A Court? A Modified Functional Approach To State Agency Removal Under 28 U.S.C. § 1441, Nicholas Jackson
University of Michigan Journal of Law Reform
This Note argues that courts should interpret 28 U.S.C. § 1441, which permits removal from state court to federal court, to allow removal from state administrative agencies when the agency performs “court-like functions.” Circuits that apply a literal interpretation of the statute and forbid removal from state agencies should adopt this “functional” approach. The functional approach, which this Note calls the McCullion-Floeter test, should be modified to comport with legislative intent and public policy considerations: first, state agency adjudications should not be removable when the adjudication requires technical expertise, which federal courts cannot obtain because they adjudicate cases in a …
The Global Architecture Of Financial Regulatory Taxes, Carlo Garbarino, Giulio Allevato
The Global Architecture Of Financial Regulatory Taxes, Carlo Garbarino, Giulio Allevato
Michigan Journal of International Law
This Article endeavors to broaden the analysis of available policy tools to address the problems created by financial crises and discusses how, in addition to direct regulation, certain tax measures having a regulatory nature may operate to address the so-called “negative externalities” often associated with those crises. There is a negative externality when an economic agent making a decision does not pay the full cost of the decision’s consequences. In such cases, the cost to society as a whole is greater than the cost borne by the individuals creating the economic impact. In practice, negative externalities result in market inefficiencies …
Bridging Bisexual Erasure In Lgbt-Rights Discourse And Litigation, Nancy C. Marcus
Bridging Bisexual Erasure In Lgbt-Rights Discourse And Litigation, Nancy C. Marcus
Michigan Journal of Gender & Law
LGBT rights are at the forefront of current legal news, with “gay marriage” and other “gay” issues visible beyond dispute in social and legal discourse in the 21st Century. Less visible are the bisexuals who are supposedly encompassed by the umbrella phrase “LGBT” and by LGBT-rights litigation, but who are often left out of LGBTrights discourse entirely. This Article examines the problem of bisexual invisibility and erasure within LGBT-rights litigation and legal discourse. The Article surveys the bisexual erasure legal discourse to date, and examines the causes of bisexual erasure and its harmful consequences for bisexuals, the broader LGBT community, …
Constitutionalizing Fetal Rights: A Salutary Tale From Ireland, Fiona De Londras
Constitutionalizing Fetal Rights: A Salutary Tale From Ireland, Fiona De Londras
Michigan Journal of Gender & Law
In 1983, Ireland became the first country in the world to constitutionalize fetal rights. The 8th Amendment to the Constitution, passed by a referendum of the People, resulted in constitutional protection for “the right to life of the unborn,” which was deemed “equal” to the right to life of the “mother.” Since then, enshrining fetal rights in constitutions and in legislation has emerged as a key part of anti-abortion campaigning. This Article traces the constitutionalization of fetal rights in Ireland and its implications for law, politics, and women. In so doing, it provides a salutary tale of such an approach. …
Spending Medicare’S Dollars Wisely: Taking Aim At Hospitals’ Cultures Of Overtreatment, Jessica Mantel
Spending Medicare’S Dollars Wisely: Taking Aim At Hospitals’ Cultures Of Overtreatment, Jessica Mantel
University of Michigan Journal of Law Reform
With Medicare’s rising costs threatening the country’s fiscal health, policymakers have focused their attention on a primary cause of Medicare’s high price tag—the overtreatment of patients. Guided by professional norms that demand they do “everything possible” for their patients, physicians frequently order additional diagnostic tests, perform more procedures, utilize costly technologies, and provide more inpatient care. Much of this care, however, does not improve Medicare patients’ health, but only increases Medicare spending. Reducing the overtreatment of patients requires aligning physicians’ interests with the government’s goal of spending Medicare’s dollars wisely. Toward that end, recent Medicare payment reforms establish a range …
Parallels In Public And Private Environmental Governance, Sarah E. Light, Eric W. Orts
Parallels In Public And Private Environmental Governance, Sarah E. Light, Eric W. Orts
Michigan Journal of Environmental & Administrative Law
Private actors, including business firms and non-governmental organizations, play an essential role in addressing today’s most serious environmental challenges. Yet scholars have not fully recognized the parallels between public environmental law and the standard-setting and enforcement functions of private environmental governance. “Instrument choice” in environmental law scholarship is generally understood to refer to government actors choosing among options from the public law “toolkit,” which includes prescriptive rules, the creation of property rights, the leveraging of markets, and informational regulation. Each of these major public law tools, however, has a parallel in private environmental governance. This Article first provides a descriptive …
The New Road To Serfdom: The Curse Of Bigness And The Failure Of Antitrust, Carl T. Bogus
The New Road To Serfdom: The Curse Of Bigness And The Failure Of Antitrust, Carl T. Bogus
University of Michigan Journal of Law Reform
This Article argues for a paradigm shift in modern antitrust policy. Rather than being concerned exclusively with consumer welfare, antitrust law should also be concerned with consolidated corporate power. Regulators and courts should consider the social and political, as well as the economic, consequences of corporate mergers. The vision that antitrust must be a key tool for limiting consolidated corporate power has a venerable legacy, extending back to the origins of antitrust law in early seventeenth century England, running throughout American history, and influencing the enactment of U.S. antitrust laws. However, the Chicago School’s view that antitrust law should be …
One Significant Step: How Reforms To Prison Districts Begin To Address Political Inequality, Erika L. Wood
One Significant Step: How Reforms To Prison Districts Begin To Address Political Inequality, Erika L. Wood
University of Michigan Journal of Law Reform
Skyrocketing rates of incarceration over the last three decades have had profound and lasting effects on the political power and engagement of local communities throughout the United States. Aggressive enforcement practices and mandatory sentencing laws have an impact beyond the individuals who are arrested, convicted, and incarcerated. These policies have wide-ranging and enduring ripple effects throughout the communities that are most heavily impacted by criminal laws, predominantly urban and minority neighborhoods. Criminal justice policies broadly impact everything from voter turnout and engagement, to serving on juries, participating in popular protests, census data, and the way officials draw legislative districts. The …
An Administrative Stopgap For Migrants From The Northern Triangle, Collin Schueler
An Administrative Stopgap For Migrants From The Northern Triangle, Collin Schueler
University of Michigan Journal of Law Reform
From 2011–2014, the United States Department of Homeland Security recorded an extraordinary increase in the number of unaccompanied children arriving at the southern border from Central America’s “Northern Triangle”—the area made up of El Salvador, Guatemala, and Honduras. In fact, in fiscal year 2014, United States Customs and Border Protection apprehended over 50,000 unaccompanied children from the Northern Triangle. That is thirteen times more than just three years earlier. This Article examines the intersecting humanitarian and legal crises facing these children and offers an administrative solution to the problem. The children are fleeing a genuine humanitarian crisis—a region overrun by …
From Incentive To Commodity To Asset: How International Law Is Reconceptualizing Intellectual Property, Rochelle Dreyfuss, Susy Frankel
From Incentive To Commodity To Asset: How International Law Is Reconceptualizing Intellectual Property, Rochelle Dreyfuss, Susy Frankel
Michigan Journal of International Law
The intellectual property landscape is changing. As Jerry Reichman once observed, intellectual property rights were islands in a sea of the public domain until domestic laws expanded to include such “innovations” as business methods, software, scents, and sounds and turned the public domain into a pond surrounded by a continent of rights. Reichman spoke towards the end of the 20th century, and whatever problems accompanied this change, in truth (to paraphrase Voltaire’s view of the Holy Roman Empire), the concept of “intellectual property rights” was predominantly about neither “property” nor “rights” (nor was it always “intellectual”). Rather, copyright, patent, and …
Privacy Almighty? The Cjeu's Judgment In Google Spain Sl V. Aepd, David J. Stute
Privacy Almighty? The Cjeu's Judgment In Google Spain Sl V. Aepd, David J. Stute
Michigan Journal of International Law
The Internet has matured into an unprecedented repository of data, retrievable through myriad unique “links,” or Uniform Resource Locators. Yet, this wealth of information only became broadly accessible through the invention and continual development of algorithm-based search engines. Keyword searches empowered search-engine users to find—and sometimes stumble upon—information with great ease. Indeed, search-engine indices arguably have become the most comprehensive catalogues of information the world has ever seen. This wealth of accessible information poses challenges to traditional notions of privacy: aspects of our private and public lives, which previously would have rarely left the vicinities of our immediate social or …
Water, Water, Everywhere: Surface Water Liability, Jill M. Fraley
Water, Water, Everywhere: Surface Water Liability, Jill M. Fraley
Michigan Journal of Environmental & Administrative Law
By 2030 the U.S. will lose around $520 billion annually from its gross domestic product due to flooding. New risks resulting from climate change arise not only from swelling rivers and lakes, but also from stormwater runoff. According to the World Bank, coastal cities risk flooding more from their poor management of surface water than they do from rising sea levels. Surface water liability governs when a landowner is responsible for diverting the flow of water to a neighboring parcel of land. Steep increases in urban flooding will make surface water an enormous source of litigation in the coming decades. …
The Sun Doesn't Always Shine In Ohio: Reevaluating Renewable Portfolio Standards In Light Of Changed Conditions, Jeffrey M. Smith
The Sun Doesn't Always Shine In Ohio: Reevaluating Renewable Portfolio Standards In Light Of Changed Conditions, Jeffrey M. Smith
Michigan Journal of Environmental & Administrative Law
In 2014, with the signing of Senate Bill 310 (S.B. 310), Ohio became the first state to put a temporary “freeze” on its renewable portfolio standard (RPS) and energy efficiency mandates. The law has generated nationwide attention and been criticized as a step back in the state’s clean energy policy. This Note examines the central justifications for the passage of S.B. 310, challenging conventional wisdom that the law does not serve the interests of Ohio citizens. After the passage of Ohio’s RPS in 2008, the economic and energy landscape within the state changed dramatically, due in large part to technological …
Inside Regulatory Interpretation: A Research Note, Christopher J. Walker
Inside Regulatory Interpretation: A Research Note, Christopher J. Walker
Michigan Law Review First Impressions
We now live in a regulatory world, where the bulk of federal lawmaking takes place at the bureaucratic level. Gone are the days when statutes and common law predominated. Instead, federal agencies—through rulemaking, adjudication, and other regulatory action—have arguably become the primary lawmakers, with Congress delegating to its bureaucratic agents vast swaths of lawmaking power, the President attempting to exercise some control over this massive regulatory apparatus, and courts struggling to constrain agency lawmaking within statutory and constitutional bounds. This story is not new. Over two decades ago, for instance, Professor Lawson lamented the rise of the administrative state and …
Standing In The Way Of The Ftaia: Exceptional Applications Of Illinois Brick, Jennifer Fischell
Standing In The Way Of The Ftaia: Exceptional Applications Of Illinois Brick, Jennifer Fischell
Michigan Law Review
In 1982, Congress enacted the Foreign Antitrust Trade Improvements Act (FTAIA) to resolve uncertainties about the international reach and effect of U.S. antitrust laws. Unfortunately, the FTAIA has provided more questions than answers. It has been ten years since the Supreme Court most recently interpreted the FTAIA, and crucial questions and circuit splits abound. One of these questions is how to understand the convergence of the direct purchaser rule (frequently referred to as the Illinois Brick doctrine) and the FTAIA. Under the direct purchaser rule, only those who purchase directly from antitrust violators are typically permitted to sue under section …
Are Unions A Constitutional Anomaly?, Cynthia Estlund
Are Unions A Constitutional Anomaly?, Cynthia Estlund
Michigan Law Review
This term in Friedrichs v. California Teachers Ass’n, the Supreme Court will consider whether ordinary public employees may constitutionally be required to pay an “agency fee,” as a condition of employment, to the union that represents them in collective bargaining. The Court established the terms of engagement in the 2014 decision Harris v. Quinn, which struck down an agency fee on narrower grounds while describing the current doctrine approving agency fees, blessed many times by the Court itself, as an “anomaly.” This Article asks whether labor unions are themselves anomalies in our legal system, particularly in their constitutional entitlements. Its …
Holding On To Clarity: Reconciling The Federal Kidnapping Statute With The Trafficking Victims Protection Act, Benjamin Reese
Holding On To Clarity: Reconciling The Federal Kidnapping Statute With The Trafficking Victims Protection Act, Benjamin Reese
Michigan Law Review
In recent decades, the international community has come to recognize human trafficking as a problem of epidemic proportions. Congress responded to this global crisis in 2000 by passing the Trafficking Victims Protection Act (TVPA) and has since supplemented that comprehensive enactment. But, in light of the widespread use of psychological rather than physical coercion in trafficking cases, a long-standing split among federal courts regarding the scope of the federal kidnapping statute raises significant concerns about the United States’ efforts to combat traffickers. In particular, the broad interpretation adopted by several circuits threatens effective enforcement of statutes designed to prosecute traffickers, …
Delegating Tax, James R. Hines Jr., Kyle D. Logue
Delegating Tax, James R. Hines Jr., Kyle D. Logue
Michigan Law Review
Congress delegates extensive and growing lawmaking authority to federal administrative agencies in areas other than taxation, but tightly limits the scope of Internal Revenue Service (IRS) and Treasury regulatory discretion in the tax area, specifically not permitting these agencies to select or adjust tax rates. This Article questions why tax policy does and should differ from other policy areas in this respect, noting some of the potential policy benefits of delegation. Greater delegation of tax lawmaking authority would allow administrative agencies to apply their expertise to fiscal policy and afford timely adjustment to changing economic circumstances. Furthermore, delegation of the …
Dialogic Labor Regulation In The Global Supply Chain, Kevin Kolben
Dialogic Labor Regulation In The Global Supply Chain, Kevin Kolben
Michigan Journal of International Law
In May 2006, the government of Jordan was facing a crisis. A small U.S. labor-rights activist group had just released a damning report documenting extensive labor abuses in Jordan’s fledgling garment industry. Adding fuel to the fire, the New York Times published a front-page story about the report with its own field work that corroborated some of the allegations, such as long and abusive working hours, the confiscation of passports of foreign workers, horrendous living conditions, and sexual harassment. Although garment manufacturing was new to Jordan, after just several years of existence it already constituted an important part of Jordan’s …
Identifying The Start Of Conflict: Conflict Recognition, Operational Realities And Accountability In The Post-9/11 World, Laurie R. Blank, Benjamin R. Farley
Identifying The Start Of Conflict: Conflict Recognition, Operational Realities And Accountability In The Post-9/11 World, Laurie R. Blank, Benjamin R. Farley
Michigan Journal of International Law
On December 19, 2008, the Convening Authority for the United States Military Commissions at Guantanamo Bay referred charges against Abd al-Rahim Hussein Muhammed Abdu Al-Nashiri for his role in the October 2000 bombing of the U.S.S. Cole. The charge sheet alleged that al-Nashiri committed several acts—including murder in violation of the law of war, perfidy, destruction of property—”in the context of and associated with armed conflict” on or about October 12, 2000 in connection with the bombing. At the time of the attack, the statement that the United States was engaged in an armed conflict would have been a surprise …
Uncertainty, Precaution, And Adaptive Management In Wildlife Trade, Annecoos Wiersema
Uncertainty, Precaution, And Adaptive Management In Wildlife Trade, Annecoos Wiersema
Michigan Journal of International Law
Wildlife trade is big business. Legal international trade in just some of the wild animals and plants traded worldwide is estimated at $350 to $530 million per year. The United States is the primary importer of virtually every major taxon of these species, including mammals, reptiles, fish, and plants. When it comes to illegal trade, estimates of its value range from $7 to $23 billion annually, covering wild animals, fish, and timber. This illegal trade fuels organized crime and militia and terrorist groups. In the face of all this pressure, some wild species appear to be traded in sustainable amounts. …
After Atrocity: Optimizing Un Action Toward Accountability For Human Rights Abuses, Steven R. Ratner
After Atrocity: Optimizing Un Action Toward Accountability For Human Rights Abuses, Steven R. Ratner
Michigan Journal of International Law
It is a great honor for me to be here to deliver the John Humphrey Lecture. Humphrey led one of those lives within the UN that shaped what the organization has become today—as one of the first generation of UN civil servants, he was to human rights what Ralph Bunche was to peacekeeping, or Brian Urquhart to UN mediation. To read his diaries, so beautifully edited by John Hobbins, is to see a world that has in many ways vanished, a nearly entirely male club, mostly of Westerners, that hammered out new treaties and mechanisms over fine wine and cigars …
Barriers To The Ballot Box: Implicit Bias And Voting Rights In The 21st Century, Arusha Gordon, Ezra D. Rosenberg
Barriers To The Ballot Box: Implicit Bias And Voting Rights In The 21st Century, Arusha Gordon, Ezra D. Rosenberg
Michigan Journal of Race and Law
While much has been written regarding unconscious or “implicit bias” in other areas of law, there is a scarcity of scholarship examining how implicit bias impacts voting rights and how advocates can move courts to recognize evidence of implicit bias within the context of a voting rights claim. This Article aims to address that scarcity. After reviewing research on implicit bias, this Article examines how implicit bias might impact different stages of the electoral process. It then argues that “results test” claims under Section 2 of the Voting Rights Act (VRA) present an opportunity for plaintiffs to introduce evidence regarding …
When Congress Is Away The President Shall Not Play: Justice Scalia's Concurrence In Nlrb V. Noel Canning, Krista M. Pikus
When Congress Is Away The President Shall Not Play: Justice Scalia's Concurrence In Nlrb V. Noel Canning, Krista M. Pikus
Michigan Law Review First Impressions
On June 26, 2014, the Supreme Court unanimously decided NLRB v. Noel Canning, holding that the Recess Appointments Clause authorizes the president “to fill any existing vacancy during any recess . . . of sufficient length.” Justice Scalia filed a concurring opinion, joined by Chief Justice Roberts, Justice Thomas, and Justice Alito. While Justice Scalia “concurred,” his opinion read more like a dissent. Both the majority and the concurring opinions relied heavily on historical evidence in arriving at their respective opinions. This was expected from Justice Scalia given his method of “new originalism,” which focuses on “the original public …
Mens Rea, Criminal Responsibility, And The Death Of Freddie Gray, Michael Serota
Mens Rea, Criminal Responsibility, And The Death Of Freddie Gray, Michael Serota
Michigan Law Review First Impressions
Who (if anyone) is criminally responsible for the death of Freddie Gray, the 25-year-old African-American man who died from injuries suffered while in the custody of Baltimore police? This question has been at the forefront of the extensive coverage of Gray’s death, which has inspired a national discussion about law enforcement’s relationship with black communities. But it is also a question that may never be fairly resolved for reasons wholly unrelated to the topic of community policing, with which Gray’s death has become synonymous. What may ultimately hamper the administration of justice in the prosecution of the police officers involved …
The Seventh Letter And The Socratic Method, Sherman J. Clark
The Seventh Letter And The Socratic Method, Sherman J. Clark
University of Michigan Journal of Law Reform Caveat
Law teachers use the phrase “Socratic method” loosely to refer to various methods of questioning students in class rather than merely lecturing to them. The merits of such teaching have been the subject of spirited and even bitter debate. It can be perceived as not only inefficient but also unnecessarily combative—even potentially abusive. Although it is clear that some critics are excoriating the least defensible versions of what has been called the Socratic method, I do not attempt to canvas or adjudicate that debate in this brief essay. Rather, I hope to add to the conversation by looking to a …
Drawing (Gad)Flies: Thoughts On The Uses (Or Uselessness) Of Legal Scholarship, Sherman J. Clark
Drawing (Gad)Flies: Thoughts On The Uses (Or Uselessness) Of Legal Scholarship, Sherman J. Clark
University of Michigan Journal of Law Reform Caveat
In this essay, I argue that law schools should continue to encourage and support wide-ranging legal scholarship, even if much of it does not seem to be of immediate use to the legal profession. I do not emphasize the relatively obvious point that scholarship is a process through which we study the law so that we can ultimately make useful contributions. Here, rather, I make two more-subtle points. First, legal academics ought to question the priorities of the legal profession, rather than merely take those priorities as given. We ought to serve as Socratic gadflies—challenging rather than merely mirroring regnant …