Digital Commons Network^™

A Framework For Managing Disputes Over Intellectual Property Rights In Traditional Knowledge, Stephen R. Munzer

Michigan Journal of Race and Law

Major controversies in moral and political theory concern the rights, if any, Indigenous peoples should have over their traditional knowledge. Many scholars, including me, have tackled these controversies. This Article addresses a highly important practical issue: Can we come up with a solid framework for resolving disputes over actual or proposed intellectual property rights in traditional knowledge?

Yes, we can. The framework suggested here starts with a preliminary distinction between control rights and income rights. It then moves to four categories that help to understand disputes: nature of the traditional knowledge under dispute; dynamics between named parties to disputes; unnamed …

Abolition Economics, Jessica Wolpaw Reyes, René Reyes

Michigan Journal of Race and Law

Over the past several decades, Law & Economics has established itself as one of the most well-known branches of interdisciplinary legal scholarship. The tools of L&E have been applied to a wide range of legal issues and have even been brought to bear on Critical Race Theory in an attempt to address some of CRT’s perceived shortcomings. This Article seeks to reverse this dynamic of influence by applying CRT and related critical perspectives to the field of economics. We call our approach Abolition Economics. By embracing the abolitionist ethos of “dismantle, change, and build,” we seek to break strict …

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, …

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 …

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 …

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 …

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 …

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 …

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 …

A Theory Of Racialized Judicial Decision-Making, Raquel Muñiz

Michigan Journal of Race and Law

In this Article, I introduce a theory of racialized judicial decision-making as a framework to explain how judicial decision-making as a system contributes to creating and maintaining the racial hierarchy in the United States. Judicial decision-making, I argue, is itself a racialized systemic process in which judges transpose racially-bounded cognitive schemas as they make decisions. In the process, they assign legal burdens differentially across ethnoracial groups, to the disproportionate detriment of ethnoracial minorities. After presenting this argument, I turn to three mechanisms at play in racialized judicial decision-making: (1) whiteness as capital that increases epistemic advantages in the judicial process, …

Got Lead In Your Water? The Bipartisan Infrastructure Law May Be Poised To Help, Andrian Lee, Melissa Scanlan

Michigan Journal of Environmental & Administrative Law

Humans have no known safe level of exposure to lead. Blood lead levels have devastating consequences, especially for children, affecting their brain development and almost every organ in their bodies. Various government organizations have enacted measures to combat lead contamination in drinking water and its dangerous human health consequences by replacing lead service lines. At the federal level, the Environmental Protection Agency promulgated the Lead and Copper Rule Revisions, which requires states to replace lead service lines. At the state level, governments have programs to fund the replacement of lead service lines in their communities, but these funds often fall …

Temporary Nuclear Waste Siting Is A Major Problem But Not A Major Question, Dylan Cohen

Michigan Journal of Environmental & Administrative Law

Mitigating global warming requires robust change in the country’s energy policy. One area ripe for such change is nuclear waste storage, which has long confounded the federal government. The Nuclear Regulatory Commission (NRC) seems to have found a solution. It empowered private industry. But it might have run into a problem: the major questions doctrine. Though the major questions doctrine can indeed operate to constrain overzealous agencies, the NRC has acted within its authority, and private industry—by virtue of its Executive-branch grant of authority—should be allowed to help.

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 …

Regulating Greenhouse Gas Emissions Under The Endangered Species Act, Eric Biber

Michigan Journal of Environmental & Administrative Law

Despite the devastating impact climate change will have on biodiversity, most legal scholars and policymakers are skeptical that the flagship statute for protecting biodiversity in the United States, the Endangered Species Act (ESA), should be deployed to regulate greenhouse gas emissions. This skepticism has been driven by the concern that using the ESA to regulate greenhouse gases could lead to administrative issues, legal chaos, and political backlash that might endanger the Act overall.

In this article, I draw on three different elements to argue that the ESA could plausibly be used to regulate greenhouse gases. Specifically, I draw on recent …

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 …

Right To Informed Consent, Right To A Doula: An Evidence-Based Solution To The Black Maternal Mortality Crisis In The United States, Cecilia Landor

Michigan Journal of Gender & Law

This Note seeks to build on existing research about how to improve childbirth in the United States for women, particularly for Black women, given the United States’ extremely high maternal mortality rate. Through examining the history and characteristics of American and Western childbirth, it seeks to explore how the current birth framework contributes to maternal mortality. To fight this ongoing harm, I suggest increasing access to doulas— nonmedical support workers who provide “continuous support” to the birthing person.

Through this Note I seek to build on the research of others by identifying the ways medicalized birth practices fail women, particularly …

Title Ix And "Menstruation Or Related Conditions", Marcy L. Karin, Naomi Cahn, Elizabeth B. Cooper, Bridget J. Crawford, Margaret E. Johnson, Emily Gold Waldman

Michigan Journal of Gender & Law

Title IX of the Education Amendments Act of 1972 (“Title IX”) prohibits sex discrimination in educational programs or activities receiving federal financial assistance. Neither the statute nor its implementing regulations explicitly define “sex” to include discrimination on the basis of menstruation or related conditions such as perimenopause and menopause. This textual absence has caused confusion over whether Title IX must be interpreted to protect students and other community members from all types of sex-based discrimination. It also calls into question the law’s ability to break down systemic sex-based barriers related to menstruation in educational spaces. Absent an interpretation that there …

Rebraiding Frayed Sweetgrass For Niijaansinaanik: Understanding Canadian Indigenous Child Welfare Issues As International Atrocity Crimes, Alyssa Couchie

Michigan Journal of International Law

The unearthing of the remains of Indigenous children on the sites of former Indian Residential Schools (“IRS”) in Canada has focused greater attention on anti-Indigenous atrocity violence in the country. While such increased attention, combined with recent efforts at redressing associated harms, represents a step forward in terms of recognizing and addressing the harms caused to Indigenous peoples through the settler-colonial process in Canada, this note expresses concern that the dominant framings of anti-Indigenous atrocity violence remain myopically focused on an overly narrow subset of harms and forms of violence, especially those committed at IRSs. It does so by utilizing …

Fact-Finding Without Rules: Habermas's Communicative Rationality As A Framework For Judicial Assessments Of Digital Open-Source Information, Matthew Gillett

Michigan Journal of International Law

Jürgen Habermas’s theory of “communicative rationality” (also known as “communicative action”) provides a promising conceptual apparatus through which to justify and validate the International Criminal Court’s consideration of the emerging phenomenon of digital open-source information. Because of its process-based and inclusive qualities, Habermas’s communicative rationality is particularly apposite for the dynamic nature of digital open-source information and the heterogenous range of actors and institutions which have relevant experiences and skills to contribute to the generation of norms and determinations regarding its role before the Court. This is important, as the International Criminal Court’s procedural framework is largely silent on digital …

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, …

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 …

Armor Or Withdraw? Likely Litigation And Potential Adjudication Of Shoreland Conflicts Along Michigan's Shifting Great Lake Coasts, Richard K. Norton, Guy A. Meadows, Oday Salim, Matthew Piggins, Phillip Washburn, Lauren Ashley Week

Michigan Journal of Environmental & Administrative Law

Michigan enjoys along its inland seas, the Laurentian Great Lakes, one of the longest coastlines in the U.S. Much of that shoreline is privately owned. Because of a confluence of development pressures and irrepressible physical dynamics, growing numbers of Great Lakes shoreland properties, built on shifting sandy shores, are at heightened risk of loss from coastal storm surge, inundation, erosion, and shoreline recession. In response, property owners are installing extensive hardened shoreline armoring structures like seawalls and revetments to arrest those erosional processes. Those structures, however, will substantially impair, if not ultimately destroy, the state’s natural coastal beaches and other …

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 …

Regulatory Paralysis: The Answer To The Unanswerable Question Of Fcc Minority Ownership Policy, Christopher Terry

Michigan Technology Law Review

For five decades, the Federal Communications Commission (FCC) has struggled to implement policies that promote minority ownership of broadcast stations. Four “Prometheus” decisions from the Third Circuit span a seventeen-year legal impasse that highlighted the agency’s shortcomings on effective minority ownership policies. Now, after the Supreme Court’s 2021 decision in FCC v. Prometheus Radio Project, the FCC is required to relaunch its media ownership policy in 2022. This paper explores how the FCC has interpreted diversity in media ownership policymaking by examining a range of diversity policies and assessment methodologies particularly regarding minority ownership. The paper then presents data from …

Coca-Cola Curses: Hate Speech In A Post-Colonial Context, Brittan Heller

Michigan Technology Law Review

Hate speech is a contextual phenomenon. What offends or inflames in one context may differ from what incites violence in a different time, place, and cultural landscape. Theories of hate speech, especially Susan Benesch’s concept of “dangerous speech” (hateful speech that incites violence), have focused on the factors that cut across these paradigms. However, the existing scholarship is narrowly focused on situations of mass violence or societal unrest in America or Europe.

This paper discusses how online hate speech may operate differently in a postcolonial context. While hate speech impacts all societies, the global South—Africa in particular—has been sorely understudied. …

The Securities Law Disclosure Conundrum For Publicly Traded Litigation Finance Companies, Robert F. Weber

University of Michigan Journal of Law Reform

The Article examines a peculiar legal dilemma—implicating securities law, legal ethics, and evidence law—that arises when litigation finance companies (LFCs) become public companies. LFCs provide funding to litigants and law firms for prosecuting lawsuits in exchange for a share of the lawsuit recoveries. In recent years, LFCs have significantly altered the landscape of the civil justice system in common law jurisdictions. But their assets, which are just rights to proceeds from lawsuits, are notoriously opaque— who really can predict what a jury will do when it comes to liability and damages? When LFCs go public, this opacity frustrates public investors’ …

Racism Pays: How Racial Exploitation Gets Innovation Off The Ground, Daria Roithmayr

Michigan Journal of Race and Law

Recent work on the history of capitalism documents the key role that racial exploitation played in the launch of the global cotton economy and the construction of the transcontinental railroad. But racial exploitation is not a thing of the past. Drawing on three case studies, this Paper argues that some of our most celebrated innovations in the digital economy have gotten off the ground by racially exploiting workers of color, paying them less than the marginal revenue product of their labor for their essential contributions. Innovators like Apple and Uber have been able to racially exploit workers of color because …

A System Out Of Balance: A Critical Analysis Of Philosophical Justifications For Copyright Law Through The Lenz Of Users' Rights, Mitchell Longan

University of Michigan Journal of Law Reform

Ultimately, this Article has three goals. The first is to offer an analysis of users’ rights under copyright law from four commonly used theoretical perspectives. These are labor, personality, economic and utilitarian theories. In doing so, this Article will demonstrate that the philosophies that underpin modern copyright law support a broad and liberal set of rights for derivative creativity. It will argue that current treatment of derivative works is unnecessarily conservative from a theoretical perspective. Second, this Article will demonstrate how, in spite of theory that supports a healthy community of derivative creativity, those who practice it have been further …

Philanthropic Justice: The Role Of Private Foundations In Transitional Justice Processes, Julia Emtseva

Michigan Journal of International Law

In recent years, political transitions have become a major area of interest to private actors, including philanthropies. More and more philanthropic foundations have chosen to donate money to support transitional justice processes across the globe. However, philanthropies often take on not only the role of a funder but also the role of an active participant in transitional justice (TJ) mechanisms. They push for the building of long-lasting partnerships with state authorities and international organizations, and, sometimes, take over and administer certain transitional justice processes. As a result, philanthropic foundations wield considerable power in transitional justice, especially when the state cannot …