Digital Commons Network^™

Consumer Privacy And The Dobbs Disruption, Mason R. Clark

University of Michigan Journal of Law Reform

The right to reproductive privacy is under attack in the United States, and it is losing ground. Dobbs v. Jackson Women’s Health Organization, the Supreme Court’s 2022 decision that overruled Roe v. Wade’s constitutional protection of abortion and jeopardized privacy rights by proxy, reflects this losing posture. Scholarship in reproductive privacy varyingly critiques federal privacy initiatives, evaluates regulatory interventions, and proposes civil rights frameworks in response to Dobbs. This Article, however, pinpoints how Dobbs created a gaping hole in state consumer privacy laws even as they propagated across the United States. Currently, there are no state consumer privacy …

Animals In Cost-Benefit Analysis, Andrew Stawasz

University of Michigan Journal of Law Reform

Federal agencies’ cost-benefit analyses do not capture nonhuman animals’ (animals’) interests. This omission matters. Cost-benefit analysis drives many regulatory decisions that substantially affect billions of animals. That omission creates a regulatory blind spot that is untenable as a matter of morality and of policy.

This Article advances two claims related to valuing animals in cost-benefit analyses, dubbed the “Weak Claim” and the “Strong Claim.” The Weak Claim argues that agencies typically may value animals in cost-benefit analyses. Usually, no legal prohibitions exist, and such valuation is within agencies’ legitimate discretion. The Strong Claim argues that agencies often must do so …

The Last Frontier: Fair Procedure In Informal Administrative Adjudication, Michael Asimow

Michigan Journal of Environmental & Administrative Law

The federal government engages in massive amounts of informal adjudication - a process that resolves a dispute between the government and a private party by making an individualized and legally binding decision without being required to conduct an evidentiary hearing if the dispute is not settled. This article sketches the highly diverse world of federal informal adjudication and surveys the procedural requirements imposed on it by due process and federal statutes. It proposes a set of best practices for conducting and improving informal adjudication that are rooted in those legal requirements. Agencies should adapt these practices to their individual circumstances …

An Artificial Intelligence Report Card For Judicial Review, Zoe E. Niesel

Michigan Journal of Environmental & Administrative Law

The rapid advancement of technology, including artificial intelligence (AI), is creating new challenges for judicial review under the Administrative Procedure Act (APA). In late 2023, federal administrative agencies publicly disclosed over 700 use cases of AI that employ sophisticated techniques like machine learning and natural language processing. While the APA's flexible judicial review framework certainly allows agencies to utilize new technologies, the APA also requires explainability of agency decisions; thus, agencies must be able to articulate the reasoning and methodology behind AI-enabled decisions for the purpose of judicial review. This Article examines APA judicial review as it applies to agency …

From Columbus To Lansing: Exploring The Prosecution Of Environmental Crimes Within Epa Region 5, Joshua Ozymy, Melissa Jarrell Ozymy

Michigan Journal of Environmental & Administrative Law

Transgressions of federal environmental law involving significant harm or culpable conduct can result in criminal prosecution. However, we know very little about how such prosecutions have taken place within EPA Region 5, which includes Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin. We undertake a content analysis of 2,807 criminal prosecutions that resulted from U.S. EPA criminal investigations from 1983-2022, selecting all 392 prosecutions occurring within Region 5 for analysis. Results show that over $3.4 billion in monetary penalties, 1,039 years of probation, and over 492 years of incarceration were assessed at sentencing. 33 % of prosecutions centered on water pollution, …

Solving The Stranded Asset Problem Of Retiring Coal Plants: An Evaluation Of Regulatory Approaches, Matthew Appel

Michigan Journal of Environmental & Administrative Law

Meeting the Biden administration's goal of cutting greenhouse gases by at least 50 percent from 2005 levels by 2030 will necessarily require transitioning the U.S. energy system away from carbon-intensive fossil fuels like coal. However, coal plants that are retiring early in states with regulated electricity markets usually still have undepreciated book value that has not yet been recovered from ratepayers. If not handled correctly, these "stranded assets" could have financial consequences for utility companies and cause them to actively oppose the energy transition. This Note aims to evaluate possible solutions to this problem. Through the prism of ratemaking legal …

Evaluating The Elimination Of Peremptory Challenges In Arizona, Hailey Badger Gordon

University of Michigan Journal of Law Reform

The Supreme Court confronted racial discrimination in jury selection in Batson v. Kentucky by prohibiting the use of race as a factor in exercising peremptory challenges. But Batson challenges rarely succeed in overcoming a challenged peremptory strike and have long been criticized as insufficient to eliminate racial discrimination in jury selection. Justice Marshall correctly predicted in his concurring opinion in Batson that racial discrimination in jury selection would continue as long as peremptory challenges were permissible.

Recognizing Batson’s shortfalls, states have experimented with reforms ranging from lowering the required showing for a successful Batson challenge to enumerating presumptively impermissible …

Justifying Redistributive Regulations, Jack Lienke

University of Michigan Journal of Law Reform

Conventional cost-benefit analysis asks whether a regulation’s total benefits exceed its total costs but not whether those benefits and costs are distributed fairly across society. The traditional justification for this indifference to equity is that distributional concerns are most efficiently addressed through the tax-and-transfer system. Agencies issuing regulations, the story goes, should focus on growing the pie (i.e., increasing aggregate welfare). If the regulation that yields the largest pie also yields inequitably apportioned slices, Congress can correct the problem with taxes and transfers.

But Congress often asks agencies to fill in the details of its transfer programs with regulations, such …

Once More: Digital Services Taxes Should Be Creditable, Reuven S. Avi-Yonah

Articles

In a previous column, I argued that digital services taxes should be creditable as in-lieu-of taxes under section 903. A new analysis by Jane Gravelle sheds further light on this topic but does not change the outcome.

Gravelle makes three arguments against the creditability of DSTs. First, she argues that the whole concept underlying both pillar 1 and DSTs (allocating value to market jurisdictions) is wrong, and therefore they cannot be justified. Second, she argues that DSTs are passed on in full to consumers and that this precludes creditability. Finally, she argues that DSTs are discriminatory excise taxes on U.S. …

Has Cost Sharing Outlived Its Usefulness?, Reuven S. Avi-Yonah

Articles

In her thoughtful column on cost sharing, Mindy Herzfeld explains the history of costsharing arrangements (CSAs) going all the way back to 1966, and then asks several questions, including: “Should the existing CSA regs be scrapped in favor of another regime, or simply eliminated as a choice for taxpayers?”

Garland V. Vanderstok: Brief Of Major Cities Chiefs Association; Police Executive Research Forum; And Current And Former National Security Officials, Law Enforcement Officers, And Prosecutors As Amici Curiae In Support Of Petitioners, Barbara Mcquade

Appellate Briefs

Amici are the Major Cities Chiefs Association, the Police Executive Research Forum, and numerous current and former national security officials, law enforcement officers, and prosecutors.

The Major Cities Chiefs Association (MCCA) is a professional organization of police executives representing the largest cities in the United States and Canada. The mission of MCCA is to provide a forum for police executives from large population centers to address the challenges and issues of policing, to influence national and international policy that affects police services, to enhance the development of current and future police leaders, and to encourage and sponsor research that advances …

The Administrative Procedure Act Problem Reconsidered, Reuven S. Avi-Yonah

Articles

Tax Notes contributing editor Ryan Finley’s excellent article on the 3M case1 and the Administrative Procedure Act provides an opportunity to reconsider the damage done to tax law by taxpayers constantly invoking the APA to invalidate regulations or IRS notices.

Liability For Use Of Artificial Intelligence In Medicine, Nicholson W. Price Ii, Sara Gerke, I. Glenn Cohen

Book Chapters

While artificial intelligence (AI) has substantial potential to improve medical practice, errors will certainly occur, sometimes resulting in injury. Who will be liable? Questions of liability for AI-related injury raise not only immediate concerns for potentially liable parties but also broader systemic questions about how AI will be developed and adopted. The landscape of liability is complex, involving healthcare providers and institutions and the developers of AI systems. In this chapter, we consider these three principal loci of liability. At the outset, we note a few issues that shape our analysis.

The Broader Lessons Of Privacy Law, Salome Viljoen

Articles

This Article explores the trend of privacy—and what kind of techno-social or legal effect ought to count as a “privacy harm”—expanding to encompass a growing set of social factors. This big-tent approach to privacy has several virtues. However, it also comes with a few costs. While others have explored the conceptual and doctrinal tradeoffs that an expansive approach to privacy may entail, this Article focuses on a secondary effect the trend toward expansiveness has had on the relationship between privacy scholarship and legal scholarship more broadly. This Article suggests that the internal expansiveness of privacy means that insights developed within …

Confronting Algorithms: Conscience Catching In The Criminal Trial And Beyond, Sherman J. Clark

University of Michigan Journal of Law Reform

Using the question of how to treat algorithmic evidence under the Confrontation Clause as an entry point, I argue that the use of AI in ethically salient situations presents a risk. It may cause us to avoid confronting our own responsibility. This matters because facing up to what we do, including what we delegate, can help us grow and thrive. Bearing responsibility can help us nurture vital capacities, including forms of empathy, honesty, and dignity. In the language of ethics, these are eudaimonist virtues—traits and capacities that can help us live well and fully. We should thus find ways of …

The Needless Search For A Founding-Era "Hearsay" Definition, Jeffrey Bellin

University of Michigan Journal of Law Reform

Modern Confrontation Clause doctrine permits only unconfronted “out-of-court statements that would have been admissible in a criminal case at the time of the founding.” To operationalize this concept, the Supreme Court identifies “testimonial hearsay” as the Clause’s primary concern. Its opinions regularly dive into the historical record to refine what counts as “testimonial” but ignore that record in defining “hearsay.” This omission cannot last. Cases in the lower courts, and one on the Court’s recent docket, concern testimonial but (arguably) non-hearsay statements. And while confrontation jurisprudence is supposed to be tied to founding-era evidence law, the “hearsay” definition, casually referenced …

Agency Use Of Indirect Benefits To Justify Regulation, Abe Eichner

Michigan Law Review

Executive agencies have long used indirect benefits—meaning benefits beyond the express purpose of a regulation—to justify their rulemakings. However, the statutes that provide agencies with regulatory authority rarely explicitly direct agencies to consider indirect benefits. Lower courts disagree over whether consideration of indirect benefits is permissible, and the Supreme Court has reserved the question for a future case. Courts and existing scholarship have largely asked whether particular statutory provisions authorize consideration of indirect benefits. This Note contends that, even without such statutory authorization, indirect benefits are presumptively permissible because they further three traditional administrative law values: rational decisionmaking, transparency, and …

Bounded Extraterritoriality, Ruth Mason, Michael S. Knoll

Michigan Law Review

Twenty-first-century politics has inspired a new mode of interstate rivalries and reprisals consisting not of the tariffs that plagued the Founding but rather of regulations with significant impacts outside the enacting state’s borders. Employing the dormant Commerce Clause doctrine of extraterritoriality, the Supreme Court has limited overbroad state regulations, but the extraterritoriality doctrine is unclear both in its normative grounding and practical application. This Article proposes a conceptual framework that situates the prohibition of extraterritoriality as an aspect of horizontal federalism. Our conceptualization of extraterritoriality enables us to distinguish it from two dormant Commerce Clause doctrines with which it is …

Subjective Beliefs About Contract Enforceability, J. J. Prescott, Evan Starr

Articles

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 demonstrate that employees tend to believe that even clearly unenforceable noncompetes are enforceable, including their own. 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 opportunities and to perceive that their employer is more likely to sue them if they choose to compete. Finally, we use an information experiment to inform employees …

Why We Should Stop Talking About Violent Offenders: Storytelling And Decarceration, Mira Edmonds

Articles

The movement to decarcerate risks foundering because of its failure to grapple with so-called violent offenders, who make up nearly half of U.S. prisoners. The treatment of people serving sentences for offenses categorized as violent is a primary reason for the continued problem of mass incarceration, despite widespread awareness of the phenomenon and significant bipartisan interest in its reduction. People convicted of “violent offenses” are serving historically anomalous and excessively long sentences, are generally denied clemency and compassionate release, and are excluded from a wide array of legal reform and policy changes with decarceral aims. Keeping these people in prison …

Labor Law, Ownership, And The Firm, Sanjukta Paul

Law & Economics Working Papers

Labor law has its own working theory of the business firm, not derivable from another area of law. This "theory of the firm," which the affirmative provisions of labor law are taken to both modify and preserve, is more overtly hierarchical than in other areas. This is true across the main functional domains of labor law: union formation; expressive and associational rights; and the scope of collective bargaining. A rich vein of existing scholarship deals with both hierarchy and deference to property within labor law. The arguments of this essay emerge from considering these aspects of labor law in conjunction …

Should Racially Vulnerable Victims Show Mercy?, Ekow N. Yankah

Articles

On June 17, 2015, twenty-one-year-old Dylann Roof entered the Emanuel African Methodist Episcopal Church in Charleston, South Carolina, sat, and prayed with nine congregants for at least an hour before pulling out a handgun and killing Cynthia Hurd, Susan Jackson, Ethel Lance, DePayne Middleton-Doctor, State Senator Rev. Clementa Pinckney, Tywanza Sanders, Rev. Daniel Simmons, Sharonda Singleton, and Myra Thompson.' He left three survivors, explicitly so they could "tell the story" of his killings. Roof did so for his own demented reasons; his racist rage was laid out publicly in an online manifesto, and he hoped his murders would begin a …

Littlejohn’S Unjust Tax Sentence, Reuven S. Avi-Yonah

Articles

On May 1 Charles Littlejohn began serving a five-year prison sentence for unauthorized disclosure of tax information. His crime is described by the Department of Justice as follows: According to court documents, Charles Littlejohn, 38, of Washington, D.C., while working at the IRS as a government contractor, stole tax return information associated with a high-ranking government official (Public Official A). Littlejohn accessed tax returns associated with Public Official A (and related individuals and entities) on an IRS database after using broad search parameters designed to conceal the true purpose of his queries. He then uploaded the tax returns to a …

Medical-Legal Partnerships Reinvigorate Systems Lawyering Using An Upstream Approach, Kate L. Mitchell, Debra Chopp

Articles

The upstream framework presented in public health and medicine considers health problems from a preventive perspective, seeking to understand and address the root causes of poor health. Medical-legal partnerships (MLPs) have demonstrated the value of this upstream framework in the practice of law and engage in upstream lawyering by utilizing systemic advocacy to address root causes of injustices and health inequities. This article explores upstreaming and its use by MLPs in reframing legal practice.

Congress Could Soon Spell The End Of Employment Arbitration—But It’S Not All Good News For American Workers., Lewis L. Maltby, Theodore J. St. Antoine

Other Publications

Employment arbitration has become a dirty word on Capitol Hill. Congressman Hank Johnson claims that arbitration allows employers to "stack the deck against the little guy" for the 60 million employees bound by arbitration agreements. The Economic Policy Institute calls it an epidemic that is "undermining decades of progress in labor rights."

Glossip V. State Of Oklahoma: Brief Of Federal Courts Scholars As Amici Curiae In Support Of Petitioner, Eve Brensike Primus

Appellate Briefs

Amici are law professors who teach and write about the federal courts, habeas corpus, and the relationship between federal and state law. A list of amici is attached as Appendix A. Amici sign this brief in their individual capacities and not on behalf of their institutions; institutional affiliations are provided solely for identification purposes.

Rethinking Taxing Excess Profits, Reuven S. Avi-Yonah, Tamir Shanan

Articles

This article discusses the application of excess profit taxes (EPTs, also referred to as windfall taxes) that have gained renewed interest and popularity over the past several years. The revival of these windfall taxes gained renewed interest following the COVID-19 outbreak, which led to a sharp price increase in corporate revenues of medical equipment and within pharmaceutical industries. However, the revival of such taxes was also used following the recent rise in energy prices mainly in Europe, leading to a sharp increase in corporate revenues of energy corporations and the recent surge in borrowing interest rates that was not accompanied …

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 …

Reviving Indian Country: Expanding Alaska Native Villages’ Tribal Land Bases Through Fee-To-Trust Acquisitions, Alexis Studler

Michigan Journal of Race and Law

For the last fifty years, the possibility of fee-to-trust acquisitions in Alaska has been precarious at best. This is largely due to the Alaska Native Claims Settlement Act of 1971 (ANCSA), which eschewed the traditional reservation system in favor of corporate land ownership and management. Despite its silence on trust acquisitions, ANCSA was and still is cited as the primary prohibition to trust acquisitions in Alaska. Essentially, ANCSA both reduced Indian Country in Alaska and prohibited any opportunities to create it, leaving Alaska Native Villages without the significant territorial jurisdiction afforded to Lower 48 tribes. However, recent policy changes from …

The Complicit Canon Of Criminal Law: A Critical Survey Of Syllabi, Casebooks, And Supplemental Materials, Robin Peterson

University of Michigan Journal of Law Reform

This Note analyzes the learning objectives, casebook readings, and supplemental sources that thirteen criminal law professors assigned over fifteen years and argues that the current approach to teaching criminal law is complicit in perpetuating the injustices of the American criminal legal system because it fails to adequately interrogate the carceral state and does not prepare students to become ethical practitioners or policymakers of criminal law. This paper calls for a fundamental rethinking of the purpose of teaching criminal law and recommends a reform orientation, which could be implemented through a variety of course structures.