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Crystalizing Community: “Communities Of Interest” And The 2020 Michigan Independent Citizens Redistricting Commission, Edward Webre Plaut, Elizabeth Powers

University of Michigan Journal of Law Reform

The Michigan Independent Citizens Redistricting Commission (MICRC) met for the first time in 2020 after it was created via ballot initiative in 2018. The MICRC included thirteen Michiganders tasked with drawing state house, senate, and congressional districts. The newly amended Michigan Constitution charged the MICRC with incorporating a new criterion previously unknown to Michigan redistricting: communities of interest. Communities of interest (COIs) have played a role in redistricting law across several states, gaining prominence after the Supreme Court’s landmark decision in Shaw v. Reno as an ostensibly race-neutral “traditional districting principle.” However, the concept is difficult to define. This Note …

Still Searching For Zora Neale Hurston, Khiara M. Bridges

Michigan Law Review

A review of Their Eyes Were Watching God. By Zora Neale Hurston.

Favoritism, Coercion, And The Establishment Clause, Christopher C. Lund

Michigan Law Review

A review of Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience. By Nathan S. Chapman and Michael W. McConnell.

The Profit Principle: Tracing The Moral Decline Of Corporate Law Firms, Sung Hui Kim

Michigan Law Review

A review of Servants of the Damned: Giant Law Firms, Donald Trump, and the Corruption of Justice. By David Enrich.

Orders Without Law, Thomas P. Schmidt

Michigan Law Review

A review of The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. By Stephen Vladeck.

Shutting Out Noise And Understanding Artificial Intelligence, Lauren J. Yu

Michigan Law Review

A review of Noise: A Flaw in Human Judgment. By Daniel Kahneman, Olivier Sibony and Cass R. Sunstein, and You Look Like a Thing and I Love You: How Artificial Intelligence Works and Why It’s Making the World a Weirder Place. By Janelle Shane.

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 …

The Shadow Of The Law Of The Police, Adam A. Davidson

Michigan Law Review

A review of Shielded: How the Police Became Untouchable. By Joanna Schwartz.

What Is A Prison?, Grace Y. Li

Michigan Law Review

A review of The Idea of Prison Abolition. By Tommie Shelby.

A Democracy Story: Reframing A Free Speech Landmark, Thomas Healy

Michigan Law Review

A review of Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan. By Samantha Barbas.

Justice By Means Of The Administrative State, Glen Staszewski

Michigan Law Review

A review of Justice by Means of Democracy. By Danielle Allen.

Disability, Race, And Health Beyond The Carceral State, Benjamin A. Barsky, Craig Konnoth, Michael Ashley Stein

Michigan Law Review

A review of Embodied Injustice: Race, Disability, and Health. By Mary Crossley.

In Pursuit Of Collective Liberation In Feminist Constitutionalism, Yvette Butler

Michigan Law Review

A review of After Misogyny: How The Law Fails Women and What to Do About It. By Julie C. Suk.

Looking And Seeing, Nicolas Cornell

Book Chapters

On November 6, 1938, Charles T. Dashiell, Jr, was driving south through Maryland. Around 5.30 or 6, Dashiell picked up two 19-year- old hitchhikers, J. Reginald Moore and Reginald Porter. Moore and Porter had been dropped off by Moore’s older brother and were now seeking to rejoin him several miles further on. The two boys got into Dashiell’s one-seat coup, with Moore sitting in the middle and Porter sitting on the right. It was a clear day, and the road was dry. Dashiell’s car lights were turned on and in good working condition.

Federal Indian Law As Method, Matthew L. M. Fletcher

Articles

Morton v. Mancari is well-known in Indian law circles as a foundation for the tribal self-determination era, which is generally understood to have begun in the late 1960s and early 1970s. The case involved an Act of Congress that required the federal “Indian Office” (now called the Bureau of Indian Affairs) to grant preference in employment to “Indians.” The case is typically understood as the basis for analyzing how federal statutes that apply exclusively to Indian people do not implicate the anti-discrimination principles of the United States Constitution. This understanding of the case, while correct, is too narrow.

Chevron And Stare Decisis, Kent Barnett, Christopher J. Walker

Articles

This Term, in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. U.S. Department of Commerce, the Supreme Court will expressly consider whether to overrule Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.—a bedrock precedent in administrative law that a reviewing court must defer to a federal agency’s reasonable interpretation of an ambiguous statute that the agency administers. In our contribution to this Chevron on Trial Symposium, we argue that the Court should decline this invitation because the pull of statutory stare decisis is too strong to overcome.

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, …

Peripheral Detention, Transfer, And Access To The Courts, Jessica Rofé

Michigan Law Review

In the last forty years, immigration detention in the U.S. has grown exponentially, largely concentrated in the southern states and outside of the country’s metropoles. In turn, federal immigration officials routinely transfer immigrants from their communities to remote jails and prisons hundreds, if not thousands, of miles away, often in jurisdictions where the law is more favorable to the government. These transfers are conducted without notice or process and frequently occur on weekends or in the predawn hours, when offices are closed and interested parties are lucky to access voicemail.

Federal immigration officials’ use of peripheral detention and transfer significantly …

Voting While Trans: How Voter Id Laws Unconstitutionally Compel The Speech Of Trans Voters, Emmy Maluf

Michigan Law Review

Thirty-five states currently request or require identification documents for in-person voting, and these requirements uniquely impact transgender voters. Of the more than 697,800 voting-eligible trans people living in states that conduct primarily in-person elections, almost half (43 percent) lack documents that correctly reflect their name or gender. When an ID does not align with a trans voter’s gender presentation, the voter may be disenfranchised—either because a poll worker denies them the right to cast a ballot or because the voter ID requirement chills their participation in the first place. Further, when a trans voter presents an ID that does not …

Taxing Fat Cats Abroad, Reuven S. Avi-Yonah

Articles

On January 12 the IRS announced that it was able to collect $482 million from a new initiative focused on taxing millionaires: The IRS has ramped up efforts to pursue high-income, high-wealth individuals who have either not filed their taxes or failed to pay recognized tax debt, with dozens of revenue officers focused on these high-end collection cases. These efforts are concentrated among taxpayers with more than $1 million in income and more than $250,000 in recognized tax debt. In an initial success, the IRS collected $38 million from more than 175 high-income earners. The IRS last fall began contacting …

Grágás And The Legal Culture Of Commonwealth Iceland, William Ian Miller

Book Chapters

The subject of this chapter is Grágás, the compilation of the laws of Iceland in the Commonwealth period. The chapter begins by outlining the court structure of Iceland and the fundamentals of legal procedure, briefly discussing the importance of law to the conversion narrative in Íslendingabók and its account of the first decision to put Iceland’s laws into writing. It describes the distinctive concepts and customs which underlie the legal system of medieval Iceland, looking at the role of the búi (neighbour) in legal procedure, and explaining the key concepts of helgi (the right of inviolability), grið (domicile, or household …

The Case Against Expensing R&E, Reuven S. Avi-Yonah

Articles

On January 16 Senate Finance Committee Chair Ron Wyden, D-Ore., and House Ways and Means Committee Chair Jason Smith, R-Mo., introduced a bipartisan tax package that would revive the child tax credit and modify three provisions in the Tax Cuts and Jobs Act. Under the proposal, the 30 percent limit on interest deductions would be relaxed by including depreciation and amortization in calculating deductible interest, expensing of corporate investment would be extended, and expensing of research and experimentation would be restored in lieu of amortization.

Shadows Or Forgeries? Explaining Legal Normativity, Alma Diamond

Fellow, Adjunct, Lecturer, and Research Scholar Works

Legal norms serve as practical standards for individuals and officials. While this ‘normative aspect’ of law is widely acknowledged, its significance for theories of law remains contested. In this paper, I examine three views on the matter. First, that we should explain legal norms as reason-giving. Second, that we should explain legal discourse as being about reasons for action. Third, that we should explain law as capable of being reason-giving. I survey some challenges associated with each of these views. What they have in common is an implicit assumption about the form that normative explanation must take: that it must …

On Behalf Of All Others Similarly Situated: Class Representation & Equitable Compensation, Alexander J. Noronha

Michigan Law Review

Class actions require class representation. In class actions, plaintiffs litigate not only on their own behalf but “on behalf of all others similarly situated.” For almost fifty years, federal courts have routinely exercised their inherent equitable authority to award modest compensation to deserving class representatives who help recover common funds benefiting the plaintiff class. These discretionary “incentive awards” are generally intended to compensate class representatives for shouldering certain costs and risks—which are not borne by absent class members—during the pendency of class litigation.

The ubiquity of permitting class action incentive awards ended in 2020. In an extraordinary ruling, the Eleventh …

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 …

Responding To Alternatives, Daniel T. Deacon

Michigan Law Review

This Article is the first to comprehensively analyze administrative agencies’ obligation to respond to alternatives to their chosen course of action. The obligation has been around at least since the Supreme Court’s decision in Motor Vehicle Manufacturers Ass’n of the United States, Inc. v. State Farm, and it has mattered in important cases. Most recently, the Supreme Court invoked the obligation as the primary ground on which to invalidate the Trump Administration’s rescission of the Deferred Action for Childhood Arrivals (DACA) program. The obligation to respond to alternatives is also frequently invoked in the lower courts and in the …

What Do Consumers Understand About Predispute Arbitration Agreements? An Empirical Investigation, Roseanna Sommers

Articles

The results of a survey of 1,071 adults in the United States reveal that most consumers do not pay attention to, let alone understand, arbitration clauses in their everyday lives. The vast majority of survey respondents (over 97%) report having opened an account with a company that requires disputes to be submitted to binding arbitration (e.g., Netflix, Hulu, Cash App, a phone or cable company), yet most are unaware that they have, in fact, agreed to mandatory arbitration (also known as “forced arbitration”). Indeed, over 99% of respondents who think they have never entered into an arbitration agreement likely have …

Consent Searches And Underestimation Of Compliance: Robustness To Type Of Search, Consequences Of Search, And Demographic Sample, Roseanna Sommers, Vanessa K. Bohns

Law & Economics Working Papers

Most police searches today are authorized by citizens’ consent, rather than probable cause or reasonable suspicion. The main constitutional limitation on so-called “consent searches” is the voluntariness test: whether a reasonable person would have felt free to refuse the officer’s request to conduct the search. We investigate whether this legal inquiry is subject to a systematic bias whereby uninvolved decision-makers overstate the voluntariness of consent and underestimate the psychological pressure individuals feel to comply. We find evidence for a robust bias extending to requests, tasks, and populations that have not been examined previously. Across three pre-registered experiments, we approached participants …

Restorative Justice For International Traditional Cultural Expression Ownership Disputes, Sandra H. Sulzer

Michigan Journal of International Law

Traditional cultural expressions (“TCE”), which include dances, songs, and pottery, and traditional knowledge (“TK”), which includes plant properties, agricultural practices, and artistic techniques, are inarguably valuable both to the groups that create them and to outsiders who wish to use or sell them. International law broadly, and intellectual property (“IP”) law more specifically, are not well-suited to protect the interests of creators of TCE and TK. A persistent pattern of exploitation of traditional expressions and knowledge has been well-documented. But responses have been dissatisfying, and sometimes begin from a place of disregarding the value of these contributions. At present, when …

What Does It Mean To Be An Ethical Lawyer? The Importance Of Context, Lynn Mather, Leslie C. Levin

Bibliography of Research Using UMLS Alumni Survey Data

Although the entire legal profession shares a single ethical code, lawyers’ understanding of what it means to be “ethical” shows considerable variation. This article discusses the factors that shape lawyers’ ethical conduct in practice. We review the role of legal education, bar associations, the workplace, and hard and soft regulators in the construction of lawyers’ ethical values. We then explore the important role that practice contexts play in shaping lawyers’ understanding of appropriate ethical conduct. Some of the key explanatory factors for differences among lawyers include type of client, office size, specialty and specialization, regulators, and the extent to which …