Law Commons^™

Unprecedented Precedent And Original Originalism: How The Supreme Court’S Decision In Dobbs Threatens Privacy And Free Speech Rights, Leonard Niehoff

Articles

The U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has drawn considerable attention because of its reversal of Roe v. Wade and its rejection of a woman’s constitutional right to terminate her pregnancy. The Dobbs majority, and some of the concurring opinions, emphasized that the ruling was a narrow one. Nevertheless, there are reasons to think the influence of Dobbs may extend far beyond the specific constitutional issue the case addresses.

This article explains why Dobbs could have significant and unanticipated implications for the law of privacy and the law of free expression. I argue that two …

Giving Shareholders The Right To Say No, Albert H. Choi, Adam C. Pritchard

Articles

When a public company releases misleading information that distorts the market for the company’s stock, investors who purchase at the inflated price lose money when (and if) the misleading information is later corrected. Under Rule 10b‑5 of the Securities Exchange Act of 1934, investors can seek compensation from corporations and their officers who make materially misleading statements that the investors relied on when buying or selling a security. Compensation is the obvious goal, but the threat of lawsuits can also benefit investors by deterring managers from committing fraud.

Constitutional Review Of Federal Tax Legislation, Reuven S. Avi-Yonah, Yoseph M. Edrey

Articles

What does the Constitution mean when it says that “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States” (U.S. Const. Article I, Section 8, Clause 1)?

The definition of “tax” for constitutional purposes has become important considering the Supreme Court’s 2012 decision in National Federation of Independent Business v. Sebelius (“NFIB”), in which Chief Justice Roberts for the Court upheld the constitutionality of the individual mandate of the Patient Protection and Affordable Care Act (“ACA”) under the taxing …

Delegation At The Founding: A Response To Critics, Julian Davis Mortenson, Nicholas Bagley

Articles

This essay responds to the wide range of commentary on Delegation at the Founding, published previously in the Columbia Law Review. The critics’ arguments deserve thoughtful consideration and a careful response. We’re happy to supply both. As a matter of eighteenth-century legal and political theory, “rulemaking” could not be neatly described as either legislative or executive based on analysis of its scope, subject, or substantive effect. To the contrary: Depending on the relationships you chose to emphasize, a given act could properly be classified as both legislative (from the perspective of the immediate actor) and also executive (from the perspective …

Open-Source Clinical Machine Learning Models: Critical Appraisal Of Feasibility, Advantages, And Challenges, Keerthi B. Harish, W. Nicholson Price Ii, Yindalon Aphinyanaphongs

Articles

Machine learning applications promise to augment clinical capabilities and at least 64 models have already been approved by the US Food and Drug Administration. These tools are developed, shared, and used in an environment in which regulations and market forces remain immature. An important consideration when evaluating this environment is the introduction of open-source solutions in which innovations are freely shared; such solutions have long been a facet of digital culture. We discuss the feasibility and implications of open-source machine learning in a health care infrastructure built upon proprietary information. The decreased cost of development as compared to drugs and …

Just Say No? Shareholder Voting On Securities Class Actions, Albert H. Choi, Stephen J. Choi, Adam C. Pritchard

Articles

The U.S. securities laws allow security-holders to bring a class action suit against a public company and its officers who make materially misleading statements to the market. The class action mechanism allows individual claimants to aggregate their claims. This procedure mitigates the collective action problem among claimants, and also creates potential economies of scale. Despite these efficiencies, the class action mechanism has been criticized for being driven by attorneys and also encouraging nuisance suits. Although various statutory and doctrinal solutions have been proposed and implemented over the years, the concerns over the agency problem and nuisance suits persist. This paper …

Ma'ii And Nanaboozhoo Fistfight In Heaven, Tamera Begay, Matthew Fletcher

Articles

In the form of a cute, cuddly, and innocent waabooz, Nanaboozhoo munched on the chewy, bitter Tłohdá’ákáłiitsoh he found everywhere in this⁣ land, far from his own. Although, it was a bit dry. In this land, Dinétah,⁣ Nanaboozhoo thought he could see forever. There were few trees. The sky⁣ was bright blue and limitless. The air smelled like a kind of dirt he had never⁣ experienced. And, boy howdy, was it dry. He couldn’t smell water for the⁣ life of him. But there was water, to be sure, or else there wouldn’t be this⁣ bush.

Reducing Prejudice Through Law: Evidence From Experimental Psychology, Sara Emily Burke, Roseanna Sommers

Articles

Can antidiscrimination law effect changes in public attitudes toward minority groups? Could learning, for instance, that employment discrimination against people with clinical depression is legally prohibited cause members of the public to be more accepting toward people with mental health conditions? In this Article, we report the results of a series of experiments that test the effect of inducing the belief that discrimination against a given group is legal (versus illegal) on interpersonal attitudes toward members of that group. We find that learning that discrimination is unlawful does not simply lead people to believe that an employer is more likely …

Non-Lawyer Judges In Devalued Courts, Maureen Carroll

Reviews

Recent legal scholarship has shed needed light on the vast universe of litigation that occurs without lawyers. Large majorities of civil litigants lack representation, even in weighty matters such as eviction and termination of parental rights, raising a host of issues worthy of scholarly attention. For example, one recent article has examined racial and gendered effects of the lack of constitutionally guaranteed counsel in civil matters, and another has shown that judges tend not to reduce the complexity of the proceedings for the benefit of unrepresented parties. In Judging Without a J.D., Sara Greene and Kristen Renberg add an important …

Brief Of Amicus Curiae Conference Of Chief Justices In Support Of Neither Party, Moore V. Harper, No. 21-1271 (U.S. Sept. 6, 2022), Evan Caminker, Carter G. Phillips, Virginia A. Seitz, Kathleen M. Mueller

Appellate Briefs

Founded in 1949, amicus curiae Conference of Chief Justices (the “Conference”) is comprised of the Chief Justices or Chief Judges of the courts of last resort in all 50 states, the District of Columbia, the Commonwealths of Puerto Rico and the Northern Mariana Islands, and the Territories of American Samoa, Guam, and the Virgin Islands. For over 70 years, the Conference has been a leading national voice on important issues concerning the administration of justice in state courts, the operation of state courts and judicial systems, and the role of state courts in our federal system.

The Conference files briefs …

Wandering Into Psychology And Law, Phoebe C. Ellsworth

Book Chapters

Some people have a passion for a single topic that motivates and engages them for life. I’m not one of them. I can get interested in almost anything, and my career looks more like a random walk through a candy store than a single-minded pursuit of a goal. I am both a theorist and researcher in the field of emotion and a contributor to the application of psychology to legal issues. In this piece I will focus on my work in psychology and law. A review of my research on emotion can be found in Ellsworth and Scherer (2003).

Fenceposts Without A Fence, Katherine E. Dr Lucido, Nicholas K. Tabor, Jeffery Y. Zhang

Articles

Banking organizations in the United States have long been subject to two broad categories of regulatory requirements. The first is permissive: a “positive” grant of rights and privileges, typically via a charter for a corporate entity, to engage in the business of banking. The second is restrictive: a “negative” set of conditions on those rights and privileges, limiting conduct and imposing a program of oversight and enforcement, by which the holder of that charter must abide. Together, these requirements form a legal cordon, or “regulatory perimeter,” around the U.S. banking sector.

On Firms, Sanjukta Paul

Law & Economics Working Papers

This paper is about firms as an instance of economic coordination, and about how we think about them in relation to other forms of coordination as well as in relation to competition and markets. The dominant frame for thinking about firms--which has strongly influenced contemporary competition law as well as serving as a vital adjunct to the fundamental concepts of neoclassical price theory that guide many areas of law and policy--implicitly or explicitly explains and justifies the centralization of both decision-making rights and flows of income from economic activity on productive efficiency grounds. We have very good reasons to doubt …

Subjective Beliefs About Contract Enforceability, Jj Prescott, Evan Starr

Law & Economics Working Papers

This article assesses the content, role, and adaptability of subjective beliefs about contract enforceability in the context of postemployment covenants not to compete (“noncompetes”). We show that employees tend to believe that their noncompetes are enforceable, even when they are not. We provide evidence for both supply- and demand-side stories that explain employees’ persistently inaccurate beliefs. Moreover, we show that believing that unenforceable noncompetes are enforceable likely causes employees to forgo better job options and to perceive that their employer is more likely to take legal action against them if they choose to compete. Finally, we use an information experiment …

Protecting The Sovereign's Money Monopoly, Gary B. Gordon, Jeffery Zhang

Law & Economics Working Papers

Sovereign states have had a monopoly over the production of circulating currencies for well over a century. Governments, not private entities, issue circulating currencies. Indeed, in 1986, Milton Friedman and Anna Schwartz declared that “[t]he question of government monopoly of hand-to-hand currency is likely to remain a largely dead issue.” The advent of stablecoins—privately issued digital money that are pegged to fiat currencies like the U.S. dollar or the Euro—raises the question of the money monopoly from the grave.

Why did sovereign money monopolies come into existence in the 19th and 20th centuries? Should circulating private money coexist once again …

Criminal Enforcement Of Section 2 Of The Sherman Act: An Empirical Assessment, Daniel A. Crane

Law & Economics Working Papers

The Biden Justice Department has announced that it may begin to bring criminal monopolization cases under Section 2 of the Sherman Act, a practice that the Department has not employed in almost half a century. The Department's leadership has justified this idea by asserting that it used to be common practice for the Antitrust Division to bring such cases. This Article presents the findings of an empirical study of all of the Justice Department's antitrust case filings. It finds that the Justice Depart brought 175 criminal monopolization cases between 1903 and 1977, but that only 20 of these involved unilateral …

Is Corporate Law Nonpartisan?, Ofer Eldar, Gabriel V. Rauterberg

Law & Economics Working Papers

Only rarely does the United States Supreme Court hear a case with fundamental implications for corporate law. In Carney v. Adams, however, the Supreme Court had the opportunity to address whether the State of Delaware’s requirement of partisan balance for its judiciary violates the First Amendment. Although the Court disposed of the case on other grounds, Justice Sotomayor acknowledged that the issue “will likely be raised again.” The stakes are high because most large businesses are incorporated in Delaware and thus are governed by its corporate law. Former Governors and Chief Justices of Delaware lined up to defend the state’s …

Is Corporate Law Nonpartisan?, Ofer Eldar, Gabriel V. Rauterberg

Articles

Only rarely does the United States Supreme Court hear a case with fundamental implications for corporate law. In Carney v. Adams, however, the Supreme Court had the opportunity to address whether the State of Delaware’s requirement of partisan balance for its judiciary violates the First Amendment. Although the Court disposed of the case on other grounds, Justice Sotomayor acknowledged that the issue “will likely be raised again.” The stakes are high because most large businesses are incorporated in Delaware and thus are governed by its corporate law. Former Delaware governors and chief justices lined up to defend the state’s “nonpartisan” …

The Case For Banning (And Mandating) Ransomware Insurance, Kyle D. Logue, Adam B. Shniderman

Articles

Ransomware attacks are becoming increasingly pervasive and disruptive, resulting in ransom demands becoming more exorbitant. Payments for ransom costs are increasingly being covered by insurance, which may offer coverage for a variety of cyber-related losses. Some commentators have expressed concern over this market phenomenon. Specifically, the concern is that the presence of insurance is making the ransomware problem worse based on the following theory: because there is ransomware insurance that covers ransom payments, and because paying the ransom is often far cheaper than paying the restoration and business interruption costs covered under the policy, there is an increased tendency to …

Tax Harmony: The Promise And Pitfalls Of The Global Minimum Tax, Reuven S. Avi-Yonah, Young Ran (Christine) Kim

Law & Economics Working Papers

The rise of globalization has become a double-edged sword for countries seeking to implement a beneficial tax policy. On one hand, there are increased opportunities for attracting foreign capital and the benefits that increased jobs and tax revenue brings to a society. However, there is also much more tax competition among countries to attract foreign capital and investment. As tax competition has grown, effective corporate tax rates have continued to be cut, creating a “race-to-the-bottom” issue.

In 2021, 137 countries forming the OECD/G20 Inclusive Framework on BEPS passed a major milestone in reforming international tax by successfully introducing the framework …

New Developments In Us Treaty Overrides, Reuven S. Avi-Yonah

Law & Economics Working Papers

This note discusses the reservations added in the Senate Committee on Foreign Relations to the US-Chile tax treaty and their implications for the treaty override debate.

Senior Day 2022, University Of Michigan Law School

Commencement and Honors Materials

Program for the May 6, 2022 University of Michigan Law School Senior Day.

Prison And Jail Civil Rights/Conditions Cases: Longitudinal Statistics, 1970-2021, Margo Schlanger

Law & Economics Working Papers

These tables relating to prison and jail civil rights litigation in federal court update prior-published versions, using data available as of April 6, 2022.

The Tables show longitudinal statistics about case filings, features, and outcomes, for jail/prison civil rights and conditions cases and for the entire federal civil docket, grouped by case category.
List of tables:
Table A: Incarcerated Population and Prison/Jail Civil Rights Filings, FY1970–FY2021
Table B: Pro Se Litigation in U.S. District Courts by Case Type, Cases Terminated Fiscal Years 1996–2021
Table C: Outcomes in Prisoner Civil Rights Cases in Federal District Court, Fiscal Years 1988–2021
Table D: …

Happily Ever After, Phoebe C. Ellsworth

Book Chapters

I have been lucky in my upbringing and education, and especially in having advisors who let me do what I wanted to even when they didn’t think it was a good idea. This allowed me to have a deeply rewarding career devoted to two entirely different topics – basic theory and research on emotion, and applied theory and research in psychology and law. My career spanned the period from when women were considered unsuitable for scientific or academic work through the rise of feminism, so although I faced obstacles, the culture was changing quickly enough that my unusual choices soon …

Liability For Non-Disclosure In Equity Financing, Albert H. Choi, Kathryn E. Spier

Law & Economics Working Papers

The paper analyzes the effects of holding firms liable for non-disclosure of material information when raising capital. We develop a model in which a privately-informed entrepreneur can choose to withhold information from prospective investors when issuing and selling stock and the investors can bring suit against the firm ex post for (alleged) non-disclosure. The damage payment received by the investors is partially offset by the reduced value of their equity stake. The analysis shows that the equilibrium depends on, among others, (1) the amount of personal capital the entrepreneur has to commit, (2) the frequency with which the entrepreneur is …

Ai Insurance: How Liability Insurance Can Drive The Responsible Adoption Of Artificial Intelligence In Health Care, Ariel Dora Stern, Avi Goldfarb, Timo Minssen, W. Nicholson Price Ii

Articles

Despite enthusiasm about the potential to apply artificial intelligence (AI) to medicine and health care delivery, adoption remains tepid, even for the most compelling technologies. In this article, the authors focus on one set of challenges to AI adoption: those related to liability. Well-designed AI liability insurance can mitigate predictable liability risks and uncertainties in a way that is aligned with the interests of health care’s main stakeholders, including patients, physicians, and health care organization leadership. A market for AI insurance will encourage the use of high-quality AI, because insurers will be most keen to underwrite those products that are …

Volume Introduction, I. Glenn Cohen, Timo Minssen, W. Nicholson Price Ii, Christopher Robertson, Carmel Shachar

Other Publications

Medical devices have historically been less regulated than their drug and biologic counterparts. A benefit of this less demanding regulatory regime is facilitating innovation by making new devices available to consumers in a timely fashion. Nevertheless, there is increasing concern that this approach raises serious public health and safety concerns. The Institute of Medicine in 2011 published a critique of the American pathway allowing moderate-risk devices to be brought to the market through the less-rigorous 501(k) pathway,1 flagging a need for increased postmarket review and surveillance. High-profile recalls of medical devices, such as vaginal mesh products, along with reports globally …

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

Law & Economics Working Papers

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 …

97th Henry M. Campbell Moot Court Competition: Final Round, University Of Michigan Law School

Event Materials

Henry Munroe Campbell was a distinguished lawyer who served as legal counsel to the University of Michigan's Board of Regents for several years.

Following Campbell's death in 1926, his law partners met with then-University of Michigan Law School Dean Henry Bates to discuss a fitting memorial. They decided to establish a case club competition to foster training for law students in appellate advocacy in his honor. The first Henry M. Campbell competition was held in the 1927-1928 academic year.

A trust fund to finance the competition was established in 1927 and has been periodically augmented with gifts from Dickinson Wright …

What Is The Law's Role In A Recession?, Gabriel Rauterberg, Joshua Younger

Reviews

In March 2020, the world faced not only a public health emergency but also one of the most profound shocks to the global economy in the modern era — a shock deeper and broader than any other in eighty years. Never before had virtually all of the world’s economies suffered a contraction at the same time (Tooze, p. 5). Global output decreased by nearly 3.4% in 2020, the largest contraction since the Second World War. The United States saw the largest recorded demand shock in its history (-32.9%), and the unemployment rate peaked around 15% during 2020, higher than at …