Digital Commons Network^™

Channeling A Federal Right To Education Through State Constitutions And Courts, Nicole Sunderlin, Evan Caminker

Articles

Professor Black attributes the ubiquitous adoption of education clauses in state constitutions in the immediate pre- and especially post-Reconstruction era to a “constitutional compromise” struck by Congress and the states. The State Citizenship commitment was designed to enhance the republican nature of both levels of governance by ensuring broader access to political participation through voting and broader access to public education to inform and support democratic deliberation. The education component of this commitment was uniquely secured, argues Black, through a state-federal compromise using two complementary mechanisms: first, by mandating states to embrace a state constitutional obligation to provide basic educational …

Should Digital Services Taxes Be Creditable?, Reuven S. Avi-Yonah

Articles

The impending collapse of pillar 1 of the OECD’s base erosion and profit-shifting 2.0 project means that many countries are likely to join Austria, France, Italy, Spain, and the United Kingdom in enacting digital services taxes. There is a moratorium on new DSTs that has been extended until the end of 2024, but any extension beyond that is unlikely because the elimination of DSTs was premised on pillar 1 coming into effect, and that cannot happen without U.S. ratification of the multilateral tax convention (MLC). It is safe to predict that there will not be 67 votes in the Senate …

A Fractured Supreme Court: Select Criminal Law And Procedure Cases From The Supreme Court’S 2023-24 Term, Eve Brensike Primus, Jordan Schuler

Articles

In its 2023-2024 Term, the Supreme Court outlined the contours of when a former President of the United States would be immune from criminal prosecution; issued important decisions interpreting the scope of the Cruel and Unusual Punishments Clause, the Double Jeopardy Clause, the Confrontation Clause, and the Second Amendment right to bear arms; decided a number of important statutory interpretation cases; and continued to avoid Fourth Amendment issues, only addressing them in the context of a malicious prosecution charge. Perhaps more striking than the Court’s decisions in these cases, though, was the Justices’ lack of consensus. Of the 16 criminal …

Revocation At The Founding, Jacob Schuman

Michigan Law Review

The Supreme Court is divided over the constitutional law of community supervision. The justices disagree about the nature of a defendant’s liberty under supervision, the rights that apply when the government punishes violations, and the relationship between parole, probation, and supervised release. These divisions came to a head in 2019’s United States v. Haymond, where the justices split 4–1–4 on whether the right to a jury trial applies to revocation of supervised release. Their opinions focused on the original understanding of the jury right at the time the Constitution was ratified.

This Article aims to settle the debate over …

Scrutinizing The Bathroom Binary: Equal Protection Theories For Nonbinary Students, Annie Schuver

Michigan Law Review

Over the past decade, transgender students have challenged discriminatory school bathroom policies under the Equal Protection Clause with varying success. But another group of students, facing similar discrimination, has yet to see its day in court. Like their transgender peers, nonbinary students often lack access to gender-appropriate restrooms at school. Many K–12 schools offer only “boys” and “girls” restrooms, ignoring the needs of students who identify as neither boys nor girls, as both of those genders, or as something else entirely. Forced to use sex-segregated bathrooms (or no bathroom at all), nonbinary students suffer adverse health, safety, and educational outcomes. …

On The Cultural Stakes Of Deep Seabed Mining, Julian Arato, Aline Jaeckel, Lucas Lixinski

Other Publications

Ownership over the deep seabed and its mineral riches was unsettled until well into the twentieth century. Yet, by the 1960s, a remarkable spirit of universalism prevailed. States declared the deep seabed to be the common heritage of [hu]mankind, determining that its exploitation and protection would require collective management. The seabed beyond national jurisdiction (or, the “Area”) spans roughly half of the surface of the Earth. It contains critical minerals, such as cobalt and copper, which technological advances have rendered increasingly within reach. States have worked collectively and proactively to regulate the near-future exploitation of the deep seas, thus far …

The First New Deal: Planning, Market Coordination, And The National Industrial Recovery Act Of 1933, Sanjukta Paul

Other Publications

In 1933, four years into the Great Depression, Congress enacted the National Industrial Recovery Act (NIRA) in close cooperation with the Roosevelt administration. The central action of the statute was to facilitate price coordination across a given market or industry. Its rationale was to contain the destructive competition and below-cost pricing that were exacerbating the problems already roiling the economy as a result of the initial stock market crash, and subsequent cascading credit and liquidity crises. In addition to addressing the credit crisis directly through banking and monetary reform, the Roosevelt administration thus sought to buoy up purchasing power by …

Synthetic Health Data: Real Ethical Promise And Peril, W. Nicholson Price Ii, Daniel Susser

Other Publications

Modern health research and development faces a dilemma. On the one hand, there is more data than ever — in electronic health records, in lab research, in public datasets, and on the internet — from which to extract potentially transformative scientific insights and to use as the basis for developing breakthrough health care technologies. On the other hand, using this data entails various risks: threats to patient privacy, skewed samples and approaches to analysis that can perpetuate demographic and other biases, and uneven access to data about rare conditions and small patient subgroups. Generating synthetic data has emerged as one …

Can Informed Consent Solve Ai Bias?, W. Nicholson Price Ii

Reviews

Artificial intelligence (AI) is moving increasingly rapidly into health care (as indeed into everything else). But it has problems there (as indeed everywhere else!). What’s to be done, in particular, about the deeply embedded biases along racial and other lines that permeate the whole world of health and, as such, are likely to be encoded in AI?

Khiara Bridges gives an answer that seems mild but carries roots of revolution. In Race in the Machine: Racial Disparities in Health and Medical AI, she argues that informed consent is a key lever to pull in fighting these racial disparities. But not …

The Meme Stock Fenzy: Origins And Implications, Dhruv Aggarwal, Albert H. Choi, Yoon-Ho Alex Lee

Articles

In 2021, several publicly traded companies, such as GameStop, Bed Bath & Beyond, and AMC, became “meme stocks,” experiencing a sharp rise in their stock prices through a dramatic influx of retail investors into their shareholder base. Analyses of the meme stock surge and its implications for corporate governance have focused on the idiosyncratic creation of online communities around particular stocks during the COVID-19 pandemic. In this Article, we argue that the emergence of meme stocks is part of longer-running and more structural digital transformations in trading, investing, and governance. On the trading front, the abolition of commissions by major …

Sins And Omissions: Slavery And The Bill Of Rights, Richard Primus

Articles

According to the conventional story, the Constitutional Convention declined to include a bill of rights in the Constitution because it trusted the enumeration of congressional powers to do the necessary work of limiting the federal government. That conventional story is historically unfounded. It is not supported by contemporary evidence, and it was roundly disbelieved at the time. Although it is not possible to know for certain why (really, for what mix of reasons) the Framers omitted a bill of rights, it seems likely that one major reason was that formulating a bill of rights would have provoked a bitter fight …

Pricing Corporate Governance, Albert Choi

Articles

Scholars and practitioners have long theorized that by penalizing firms with unattractive governance features, the stock market incentivizes firms to adopt the optimal governance structure at their initial public offerings (IPOs). This theory, however, does not seem to match with practice. Not only do many IPO firms offer putatively suboptimal governance arrangements, such as staggered boards and dual-class structures, but these arrangements have been gaining popularity among IPO firms. This Article argues that the IPO market is unlikely to provide the necessary discipline to incentivize companies to adopt the optimal governance package. In particular, when the optimal governance package differs …

The Jurisprudence Of Justice Gorsuch And Future Efforts To Address Climate Change, Rachel Rothschild

Michigan Law Review Online

Following the Trump administration’s significant reshaping of the federal judiciary and a number of blockbuster Supreme Court cases during the October 2021 and October 2022 Terms, environmental law is shifting rapidly toward a more restrictive vision of federal regulation. Justice Gorsuch has been clamoring for such a revolution throughout his time on the bench. Since joining the Supreme Court, he has not only provided a crucial vote for limiting the Environmental Protection Agency (EPA)’s regulatory authority, but also advanced a radical vision of the separation of powers that would drastically alter our modern system of administrative governance. In several of …

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 …

States’ Duty Under The Federal Elections Clause And A Federal Right To Education, Evan Caminker

Articles

Fifty years ago, in San Antonio Independent School District v. Rodriguez, the Supreme Court failed to address one of the preeminent civil rights issues of our generation—substandard and inequitable public education—by holding that the federal Constitution does not protect a general right to education. The Court didn’t completely close the door on a narrower argument that the Constitution guarantees “an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process.” Both litigants and scholars have been trying ever since to push that door open, pressing …

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

Articles

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 …

The Federal Reserve's Mandates, David T. Zaring, Jeffery Y. Zhang

Articles

Solutions to systemic problems such as climate change and racial inequities have eluded policymakers for decades. In searching for creative solutions, some policymakers have recently thought about expanding the Federal Reserve’s core set of macroeconomic mandates to tackle these issues. But there are real questions about whether that can be done from a legal perspective and whether that should be done from a policy perspective.

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 …

Christianity And Economic Law, Daniel A. Crane

Book Chapters

From the first century forward, Christian thinkers and authorities have espoused many dierent views of economics, regulation, the role of the state, and economic law. Christian thought on economic regulation underwent systematic scholarly exposition during the Scholastic, Reformation, and modern eras, culminating in a wide array of perspectives on the role of markets and the government’s regulatory role. From Thomas Aquinas on just price theory to Martin Luther on cartelization and predatory pricing and Adam Smith on the nature of the market’s “invisible hand,” Christian and Christian-inuenced thinkers worked out the ethical and moral implications of contracts, usury, exchange, and …

The Death Knell And The Wild West: Two Dangers Of Domestic Discovery In Foreign Adjudications, Shay M. Collins

Michigan Law Review

Under 28 U.S.C. § 1782(a), parties to foreign legal proceedings can obtain discovery orders from United States federal courts. In other words, if a foreign party needs physical evidence located in—or testimony from a person residing in—the United States to support their claim or defense, they can ask a district court to order the production of that evidence. For almost two decades, § 1782(a) practice has operated as a procedural Wild West. Judges routinely consider § 1782(a) applications ex parte—that is, without giving the parties subject to the resulting discovery orders a chance to oppose them—and grant those applications at …

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 …

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 …

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 …

Valuing Social Data, Amanda Parsons, Salomé Viljoen

Law & Economics Working Papers

Social data production is a unique form of value creation that characterizes informational capitalism. Social data production also presents critical challenges for the various legal regimes that are encountering it. This Article provides legal scholars and policymakers with the tools to comprehend this new form of value creation through two descriptive contributions. First, it presents a theoretical account of social data, a mode of production which is cultivated and exploited for two distinct (albeit related) forms of value: prediction value and exchange value. Second, it creates and defends a taxonomy of three “scripts” that companies follow to build up and …

Covid-19 Pandemic’S Impact On Online Sex Advertising And Sex Trafficking, Coxen O. Julia, Vanessa Castro, Bridgette Carr, Glen Redin

Articles

Disruptive social events such as the COVID-19 pandemic can have a significant impact on sex trafficking and the working conditions of victims, yet these effects have been little understood. This paper examines the effect of the COVID-19 pandemic on sex trafficking in the United States, based on analysis of over one million sexual service advertisements from the online platform Rubratings.com, using indicators of third-party management as potential proxies for trafficking. Our results show that there have been measurable changes in online commercial sexual service advertising, both with and without third-party management indicators, in the United States, with a significant decrease …

Committee Prosecution: Using Expert Opinion To Make Criminal Justice Descisions More Impactful, Ellison Berryhill

University of Michigan Journal of Law Reform Caveat

Those uninitiated to the reality of the United States’ criminal justice framework may believe that judges are the most powerful actors in the system. These casual observers watch crime shows filled with trials where judges make rulings and yell at people who are out of line. Viewers may believe in the adversarial system as a war between zealous prosecutors seeking justice and defense attorneys fighting for their client’s innocence. They may think of judges as neutral arbiter who makes the ultimate decisions. Unfortunately, that is not the case.

Alternatively, casual observers may think that the jury is the most powerful …

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 …

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 …

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 …

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 …