Digital Commons Network^™

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, …

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 …

A Seat At Whose Table? Analyzing Detroit’S Community Benefit Ordinance As A Tool For Environmental Justice, Sarah Draughn Gargaro

Michigan Journal of Environmental & Administrative Law

The Environmental Protection Agency defines environmental justice as the “just treatment and meaningful involvement” of all people in the decisionmaking that affects the environment and human health. Since the origins of the modern American environmental justice movement in the 1980s, activists have emphasized the importance of self-determination. Environmental justice requires that decision making processes center the voices of the individuals impacted by decisions made about the distributions of environmental assets and harms. There is a significant challenge, however, in designing community engagement practices that meaningfully involve community members. Since the 1990s, community benefits agreements have been heralded as an effective …

Why Stop Grazing The Climate Commons?, Brigham Daniels

Michigan Journal of Environmental & Administrative Law

Many have argued that climate change is the textbook example of a tragedy of the commons. Assuming that is correct, to make headway on climate change, we would expect an enforceable agreement that provides for global collective action. The tragedy of the commons assumes that those who cut back when others do not are—to use the formal language of game theorists—suckers. So, the last thing we would expect is a surge of unilateral action. Contrary to theory, for the past decade, unilateral climate action has flourished among governments, businesses, other organizations, and individuals.

Is the number of climate suckers growing …

Missed Connections In The U.N. Agenda: Applying The Women, Peace And Security Framework To The Feminization Of Poverty, Lauren A. Fleming

Michigan Journal of Gender & Law

Women, Peace and Security, a multifaceted agenda intended to address the particular ways in which conflict affects women, has been on the United Nations agenda since the landmark Security Council Resolution 1325 passed in 2000. The unequal burden of poverty on women, a phenomenon that has been coined “the feminization of poverty,” has been on the United Nations agenda for even longer, since the 1995 Beijing Conference on Women. Yet, despite the fact that poverty and inequality both cause and result in conflict in a violent cycle, the problem of the feminization of poverty has not been integrated into the …

The Preservation Of The Separate Spheres Doctrine In Congress And The Federal Courts, Arjun Parikh

Michigan Journal of Gender & Law

In Bradwell v. State, an 1872 decision upholding an Illinois law prohibiting women from practicing law, the United States Supreme Court reasoned that the law was justified because women belonged in the “domestic sphere.” While today’s sex-based workplace exclusions are not as explicit as they once were, women still face barriers to remaining in the workforce and advancing in the workplace despite the existence of major federal legislation in the areas of pregnancy discrimination and family leave policy. Congress passed the Pregnancy Discrimination Act (PDA) in 1978 to stop pregnancy discrimination, but the PDA has not come close to …

Constructing Race And Gender In Modern Rape Law: The Abandoned Category Of Black Female Victims, Jacqueline Pittman

Michigan Journal of Gender & Law

Despite the successes of the 1960s Anti-Rape Movement, modern state rape statutes continue to prioritize white male perspectives and perceptions of race, ultimately ignoring the intersectional identity of Black women and leaving these victims without legal protection. This Note examines rape law’s history of allocating agency along gendered and racialized lines through statutory construction and other discursive techniques. Such legal constructions both uphold and cultivate the white victim/Black assailant rape dyad primarily by making the Black male the “ultimate” and most feared assailant. Rape law’s adherence to a white baseline sustains stereotypes of Black men as criminals and predators, which …

The Dormant Commerce Clause As A Way To Combat The Anti-Competitive, Anti-Transmission-Development Effects Of State Right Of First Refusal Laws For Electricity Transmission Construction, Walker Mogen

Michigan Journal of Environmental & Administrative Law

To quickly decarbonize the electricity grid, new sources of renewable energy have to be connected to the grid. To connect these sources of energy to the grid, the rate of construction of new electricity infrastructure must increase quickly. The process to construct new electricity transmission infrastructure, however, is filled with chokepoints that slow its construction. State right of first refusal laws for transmission construction are one the things slowing the build out of the grid. These laws limit which companies can construct new transmission infrastructure to utilities and other companies already operating transmission infrastructure in a state. This Note, using …

Relentless Atrocities: The Persecution Of Hazaras, Mehdi J. Hakimi

Michigan Journal of International Law

As one of the main ethnic groups in Afghanistan, Hazaras are Farsi-speaking and mostly Shi’a Muslims in a predominantly Sunni Muslim country. They are also distinguishable by their Asiatic appearance. Throughout Afghanistan’s history, Hazaras have suffered considerably under different regimes, enduring recurring massacres, enslavement, and forced displacement. Despite Afghanistan’s accession to the Rome Statute in 2003, the plight of Hazaras has not improved. Indeed, the assaults on Hazaras have only intensified in recent years, impacting virtually every aspect of their lives.

This article argues that the recent and ongoing attacks against Hazaras constitute a crime against humanity. In particular, I …

An Intelligent Path For Improving Diversity At Law Firms (Un)Artificially, Rimsha Syeda

Michigan Technology Law Review

Most law firms are struggling when it comes to diversity and inclusion. There are fewer women in law firms compared to men. The majority of lawyers—81%—are White, despite White people making up only about 65% of the law school population. Lawyers of color remain underrepresented with the historic high being only 28.32%. By comparison, 13.4% of the United States population is Black and 5.9% is Asian. The biases that perpetuate this lack of diversity in law firms begin during the hiring process and extend to associate retainment. For example, an applicant’s resume reveals a lot, including the prestige of the …

Teaching Slavery In Commercial Law, Carliss N. Chatman

Michigan Journal of Race and Law

Public status shapes private ordering. Personhood status, conferred or acknowledged by the state, determines whether one is a party to or the object of a contract. For much of our nation’s history, the law deemed all persons of African descent to have a limited status, if given personhood at all. The property and partial personhood status of African-Americans, combined with standards developed to facilitate the growth of the international commodities market for products including cotton, contributed to the current beliefs of business investors and even how communities of color are still governed and supported. The impact of that shift in …

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 …

Shedding New Light On Multinational Corporations And Human Rights: Promises And Limits Of “Blockchainizing” The Global Supply Chain, Chang-Hsien Tsai, Ching-Fu Lin

Michigan Journal of International Law

Over the last few decades, advances in transportation and production technology, in conjunction with economic globalization and the emergence of multinational corporations, have consolidated fragmented production processes into long and complex supply chains across jurisdictions. While there are benefits to such global supply chains (“GSCs”), the prevalence of human rights violations attributable to information asymmetry, as well as rule of law gaps between different jurisdictions, has been a constant challenge. Modern slavery, child abuse, harsh working conditions, low wages, and other problems have reoccurred in the factories of upstream suppliers in the global South and have been systemically ignored by …

Measuring Corruption As A Threat To International Security: An Emerging Indicator For Enhancement Of Global Corruption Governance, Sungyong Kang

Michigan Journal of International Law

The conceptual changes to international security after the end of the Cold War, and particularly those following the al-Qaeda attacks of 2001, clarified the symbiotic relationship between corruption and international security: Corruption destroys the social political environment required to create human security and to ensure safety from terrorist attacks, and national borders increasingly fail to restrain its negative consequences.

To achieve human security though policy intervention in domestic affairs, global corruption governance relies on numerical indicators that measure corruption. By evaluating states through public comparison, indicators pressure states to improve their domestic institutions and structures to align them with the …

Regulatory Frameworks For Smart Mobility: Current U.S. Regulation Of Connected And Automated Vehicles And The Road Ahead, Olivia Dworkin, Jorge Ortiz, Nicholas Xenakis

Journal of Law and Mobility

On June 7, 2023, Senator Gary Peters from Michigan gave an interview about autonomous vehicle technology where he stated that: “From a competitive standpoint, there’s no question that it is absolutely essential that this technology get developed here and deployed here in the United States. We’re facing significant international competition from other countries that understand that autonomy represents not only the future of mobility, but it drives other technologies in a significant way.” Just last year, Senator Peters and eleven of his colleagues had also written a letter to Secretary of Transportation Pete Buttigieg that: “The federal government has the …

Legal Guardrails For A Unicorn Crackdown, Alexander I. Platt

Michigan Law Review Online

The Securities and Exchange Commission (SEC) is undertaking a historic effort to redraw the boundary between public and private companies. After years of watching—and sometimes encouraging—the explosive growth in less tightly regulated private markets and the proliferation of so-called “unicorns,” the agency is now reasserting its authority.

A key arrow in the agency’s regulatory quiver is its authority under section 12(g) of the Securities Exchange Act of 1934 (Exchange Act) to force private companies to “go public” when they reach a certain size. The provision requires any company whose shares are “held of record” by more than 2,000 persons to …

How Might We Reimagine Transportation Technology To Combat Forced Labor: Conference Explanations And Recommendations From The Law And Mobility Program’S Annual Conference 2023, Brittany Eastman

Journal of Law and Mobility

The University of Michigan Law School’s Law and Mobility Program (LAMP), a resource for scholarship about the legal implications of emerging transportation technology with a particular focus on connected and automated vehicles (CAVs), hosts an annual conference. The topic of the LAMP Annual Conference 2023 considered how we might reimagine transportation technology in a way that combats the systemic vulnerabilities that leave certain populations more likely to experience forced labor. This topic was selected because there are multiple lenses through which to consider the transportation equity outcomes for users, industry workers, and society at large; forced labor is just one …

Mothers In Law, Melissa Murray

Michigan Law Review

A Review of Civil Rights Queen: Constance Baker Motley and the Struggle for Equality. By Tomiko Brown-Nagin.

Disrupting Carceral Logic In Family Policing, Cynthia Godsoe

Michigan Law Review

A Review of Torn Apart: How the Child Welfare System Destroys Black Families and How Abolition Can Build a Safer World, By Dorothy Roberts.

Sisters Gonna Work It Out: Black Women As Reformers And Radicals In The Criminal Legal System, Paul Butler

Michigan Law Review

A Review of Becoming Abolitionists: Police, Protests, and the Pursuit of Freedom. By Derecka Purnell and a review of Progressive Prosecution: Race and Reform in Criminal Justice. Edited by Kim Taylor-Thompson and Anthony C. Thompson.

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.

The Gloss Of War: Revisiting The Korean War’S Legacy, Mary L. Dudziak

Michigan Law Review

In war powers analysis, reliance on the interpretive method of historical practice, also called the “gloss of history,” has made history a technology of the forever war. This approach draws upon the history of U.S. military conflict to interpret the scope of presidential war power and embeds past actions into the separation of powers. There is a crucial flaw in this methodology, however. The understanding of history in historical gloss is not informed by the changing historiography of war. This has led to a divergence between the “history” in legal authority and the revised historical understanding in scholarly works of …

Making Mandates Last: Increasing Female Representation On Corporate Boards In The U.S., Nikki Williams

Michigan Journal of Gender & Law

A lack of female representation on corporate boards has plagued our country for decades. Until a few years ago, there was not a single state or federal regulation that required corporations to fill board seats with female directors. Instead, the federal government talked around the issue. In 2010, the SEC established an optional reporting structure for corporations to communicate their hiring practices, but did little else. With no national plan in place, many states implemented legislation that urged corporations to hire female directors. But this legislation barely moved the needle. The country needed a mandate. And in 2018, California implemented …

Gentlewomen Of The Jury, Vivian N. Rotenstein, Valerie P. Hans

Michigan Journal of Gender & Law

This Article undertakes a contemporary assessment of the role of women on the jury. In 1946, at a time when few women served on U.S. juries, the all-male Supreme Court opined in Ballard v. United States: “The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of influence of one on the other is among the imponderables.” Three-quarters of a century later, women’s legal and social status has changed dramatically, with increased participation in the labor force, expanded leadership roles, and the …

Critical Race Feminism, Health, And Restorative Practices In Schools: Centering The Experiences Of Black And Latina Girls, Thalia González, Rebecca Epstein

Michigan Journal of Gender & Law

Restorative practices (RP) in K-12 schools in the United States have grown exponentially since the early 1990s. Developing against a backdrop of systemic racism, RP has become embedded in education practice and policy to counteract the harmful and persistent patterns of disparities in school discipline experienced by students of color. Within this legal, social, and political context, the empirical evidence that has been gathered on school-based restorative justice has framed and named RP as a behavioral intervention aimed at reducing discipline incidents—that is, an “alternative” to punitive and exclusionary practices. While this view of RP is central to dismantling discriminatory …

Gender And Corporate Crime: Do Women On The Board Of Directors Reduce Corporate Bad Behavior?, Ido Baum, Dalit Gafni, Ruthy Lowenstein Lazar

Michigan Journal of Gender & Law

Public debate on mandating gender representation on boards of directors in the United States is close to a boiling point. California introduced a mandatory quota in 2018 only to see it constitutionally disqualified in 2022, and the Nasdaq Stock Market followed suit with new diversity rules in 2021 for all corporations listed on the exchange. While public discourse focuses on corporate performance, not much is known about the link between gender diversity and corporate normative obedience.

In this study we explore the relationship between boardroom gender representation and corporate compliance with the law. We examine the impact of gender diversity …

The Fed Of The Future: A Framework To Optimize Short-Term Lending Practices, Emma Macfarlane, Karin Thrasher

University of Michigan Journal of Law Reform

Underbanked individuals currently face significant risk when accessing short-term credit. While payday loans are the least expensive short-term credit option when compared to alternatives like overdraft fees, they can also have an extraordinarily high cost of borrowing. Unable to pay the cost of the loan, borrowers often find themselves in a vicious cycle that drives them further into debt. This Note sets forth a proposal as to how payday loans can be better regulated to create affordable access to short-term credit. Specifically, this Note advocates for congressional and Federal Reserve intervention in the payday lending market.

This Note first analyzes …

Abusing Discretion: The Battle For Childhood In Schools, Hannah Dodson

Michigan Journal of Race and Law

For too many children the schoolhouse doors become a point of entry into the criminal justice system. Children of color are the most likely to suffer from this phenomenon. The presence of policing in schools is a key contributor to this “school-to-prison pipeline.” This Note argues that broad, discretionary mandates for school resource officers (SROs) promote biased law enforcement that impacts Black girls in different and specific ways. I contend that SRO mandates can be effectively limited by strategically bolstering community organizing efforts with impact litigation.

The Ascension Of Indigenous Cultural Property Law, Angela R. Riley

Michigan Law Review

Indigenous Peoples across the world are calling on nation-states to “decolonize” laws, structures, and institutions that negatively impact them. Though the claims are broad based, there is a growing global emphasis on issues pertaining to Indigenous Peoples’ cultural property and the harms of cultural appropriation, with calls for redress increasingly framed in the language of human rights. Over the last decade, Native people have actively fought to defend their cultural property. The Navajo Nation sued Urban Outfitters to stop the sale of “Navajo panties,” the Quileute Tribe sought to enjoin Nordstrom’s marketing of “Quileute Chokers,” and the descendants of Tasunke …

Liability For Toxic Workplace Cultures, Dana Florczak

University of Michigan Journal of Law Reform

Title VII is meant to protect employees from discrimination and has historically been a crucial tool for creating social change in the workplace. But when considering modern-day workplace discrimination wrought by “toxic workplace cultures” defined herein, Title VII’s frameworks for confronting systemic discrimination prove outdated and ineffective. This Note proposes the codification of a new theory of discrimination under Title VII targeting toxic workplace cultures, with substantive and procedural elements working in tandem to better enable plaintiffs to collectively bring actions to hold employers accountable for fostering discriminatory environments. Part I defines toxic workplace cultures and walks through case studies …