Digital Commons Network^™

Sacred Children, Taboo Tradeoffs, And Distorted Discourses, Sean Hannon Williams

University of Michigan Journal of Law Reform

This Article brings together three literatures—bioethics, psychological research on taboo tradeoffs, and family law—to reveal pervasive distortions in current family law scholarship and judicial reasoning. Empirical work in bioethics shows that child welfare occupies a unique moral sphere. People routinely resist making tradeoffs between spheres. Just as sacrificing adult lives for money is taboo, so too is sacrificing child welfare for adult welfare. When faced with the prospect of these tradeoffs, people engage in a predictable set of avoidance and moral mitigation strategies. Across five case studies, this Article shows how child welfare has talismanic qualities which, even in the …

Illegality Defense To Contractual And Restitutionary Claims: A Comparative And Philosophical Study, Dingyurui Bao

SJD Dissertations

The aim of this dissertation is to study the practice and theories regarding the law of illegality, in the context of contract and unjustified enrichment.

Illegality (and immorality) is universally seen as a ground for invalidating contracts. It is widely acknowledged that the courts have the "prerogative to limit enforcement of contracts that transgress the boundaries of public policy". In both Common Law and the Civil Law systems, it is usually in the law of contract that the problem of illegality is dealt with. An illegal contract is invalid, but it may be performed, either in full or in part. …

Framing The Framer: A Commentary On Treanor’S Gouverneur Morris As “Dishonest Scrivener”, David S. Schwartz

Michigan Law Review Online

Dean William Treanor’s masterful article, The Case of the Dishonest Scrivener: Gouverneur Morris and the Creation of the Federalist Constitution, makes a major contribution to scholarship on the founding, one that will have a profound impact on how we read and understand the Constitution. Treanor’s keen analyses and his presentation of important-but-overlooked historical details support the article’s central and historically significant arguments. Treanor’s research is at the forefront of emerging scholarship seeking to recover “the Federalist Constitution,” a body of constitutional interpretations favored by those Framers who advocated a strong national government. These nationalist interpretations were subsequently emphasized by …

Catch And Release Jurisdiction, Adam B. Sopko

Michigan Law Review Online

In Catch and Kill Jurisdiction, Professor Zachary Clopton sheds light on an increasingly common phenomenon in which federal courts are expanding the power of the federal judiciary in a way that frustrates the enforcement of substantive rights. Federal courts expansively interpret their jurisdiction to reach cases that arguably belong in state court, then apply federal procedural doctrines to dismiss the cases on non-merits grounds. First catch, then kill. Clopton argues we find catch and kills when the federal court system is not overly burdened and in areas where federal judges are “hostile” to a class of claims or litigants. Catch …

De-Nazifying By De-Cartelizing, Daniel A. Crane

Book Chapters

In 1945, a group of zealous American trustbusters, freshly groomed in the Brandeisian tradition of “anti- Bigness,” descended on the smoldering ruins of Germany, eager to identify and then nullify the culprits behind Hitler’s rise to power. Their eyes were fixed on the enormous industrial combines and cartel organizations that had sprung up in the German economy since the time of Bismarck, grown exponentially during the Weimar era, and then served as the economic infrastructure of the Third Reich. To the trustbusters in the Office of Military Government US (“OMGUS”) Decartelization Branch, the monopolies and trusts were the prime culprits …

Editing And Advocacy, Patrick Barry

Books

Good editors don’t just see the sentence that was written. They see the sentence that might have been written. They know how to spot words that shouldn’t be included and summon up ones that haven’t yet appeared. Their value comes not just from preventing mistakes but from discovering new ways to improve a piece of writing’s style, structure, and overall impact.

This book— which is based on a popular course taught at the University of Chicago Law School, the University of Michigan Law School, and the UCLA School of Law— is designed to help you become one of those editors. …

Feedback Loops: Feedback Fundamentals, Patrick Barry

Books

Learning how to give and receive feedback is fundamental to the development of every student and professional. Yet few of us are ever taught anything like “feedback skills.”

This book, which is the first in the Feedback Loops series, is designed to change that. Here is what students who have taken the University of Michigan Law School course on which the series is based have said about it:

“One of the most memorable and useful classes I have taken in law school!”

“Excellent, full stop.”

“This class was always a fun highlight of my week.”

The Syntax Of Sports Class 5: Rhetorical Repetition, Patrick Barry

Books

Here are some of the words that the people who have attended Patrick Barry's classes and workshops have used to describe his unique, multidisciplinary approach to teaching writing:

"Fantastic"
"Phenomenal"
"Very engaging and informative:
"Incredibly useful
"Full of practical lessons for both my career and life generally"

This fifth book in his Syntax of Sports series gives you a chance to experience his creative (and capacious) mind for yourself. Whether you've already read the previous four books in the series or are trying one out for the very first time, you're in for quite the educational treat.

Toward Self-Determination In The U.S. Territories: The Restorative Justice Implications Of Rejecting The Insular Cases, Sarah M. Kelly

Michigan Journal of Race and Law

Conservatives and liberals alike are increasingly calling for condemnation of the Insular Cases—a series of U.S. Supreme Court cases from the early 1900s, in which the Court developed the doctrine of territorial incorporation to license the United States’ indefinite holding of overseas colonial possessions. In March 2021, members of the U.S. House of Representatives introduced House Resolution 279, which declares that the Insular Cases should be rejected as having no place in U.S. constitutional law. Moreover, in 2022, Justice Gorsuch called for the Supreme Court to squarely overrule the cases.

For many, rejecting the Insular Cases is a long-overdue reckoning …

Bankruptcy In Black And White: The Effect Of Race And Bankruptcy Code Exemptions On Wealth, Matthew Bruckner, Raphaël Charron-Chénier, Jevay Grooms

Michigan Journal of Race and Law

Bankruptcy law in the United States is race-neutral on its face but, in practice, race matters in bankruptcy outcomes. Our original research provides an empirical look at how the facially neutral laws that allow debtors to retain assets in bankruptcy cases result in disparate outcomes for Black and white debtors. Racial differences in asset retention in bankruptcy cases play a role in perpetuating wealth inequality between Black and white debtors.

Existing bankruptcy data lacks individual-level characteristics such as race, which inhibits researchers’ ability to adequately assess biases or unintended consequences of laws and policies on subsets of the population. Thus, …

Equitable Ecosystem: A Two-Pronged Approach To Equity In Artificial Intelligence, Rangita De Silva De Alwis, Amani Carter, Govind Nagubandi

Michigan Technology Law Review

Lawmakers, technologists, and thought leaders are facing a once-in-a-generation opportunity to build equity into the digital infrastructure that will power our lives; we argue for a two-pronged approach to seize that opportunity. Artificial Intelligence (AI) is poised to radically transform our world, but we are already seeing evidence that theoretical concerns about potential bias are now being borne out in the market. To change this trajectory and ensure that development teams are focused explicitly on creating equitable AI, we argue that we need to shift the flow of investment dollars. Venture Capital (VC) firms have an outsized impact in determining …

Article 3, Christine Chinkin, Lisa Gormley

Book Chapters

Article 3 is located in Part I of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) as one of the provisions that describe States parties' general obligations under the Convention. Read in conjunction with Articles 1, 2, 4, 5, and 24, it forms part of the overarching interpretative framework for the application of the specific obligations set out in Articles 6-16. Article 24 in Part VI is somewhat repetitive of Article 3. The obligations and concepts introduced in these initial articles apply to all other articles in the Convention. The Committee has, on occasion, viewed …

A Comparative Look At Various Countries' Legal Regimes Governing Automated Vehicles, Brittany Eastman, Shay Collins, Ryan Jones, Jj Martin, Marjory S. Blumenthal, Karlyn D. Stanley

Journal of Law and Mobility

News and commentary about automated vehicles (AVs) focus on how they look and appear to operate, along with the companies developing and testing them. Behind the scenes are legal regimes—laws, regulations, and implementing bodies of different kinds—that literally and figuratively provide the rules of the road for AVs. Legal regimes matter because public welfare hinges on aspects of AV design and operation. Legal regimes can provide gatekeeping for AV developers and operators seeking to use public roads, and they can allocate liability when something goes wrong. Guiding and complementing legal regimes is public policy. Policy documents such as articulations of …

The Not-So-Standard Model: Reconsidering Agency-Head Review Of Administrative Adjudication Decisions, Rebecca S. Eisenberg, Nina A. Mendelson

Articles

The Supreme Court has invalidated multiple legislative design choices for independent agency structures in recent years, citing Article II and the need for political accountability through presidential control of agencies. In United States v. Arthrex, Inc., the Court turned to administrative adjudication, finding an Appointments Clause violation in the assignment of certain final patent adjudication decisions to appellate panels of unconfirmed administrative patent judges. As a remedy, a different majority declared unenforceable a statutory provision that had insulated Patent and Trademark Office (PTO) administrative adjudication decisions from political review for almost a century. The Court thereby enabled the politically appointed …

How Not To Lie: A Don't-Do-It-Yourself Guide For Litigators, Leonard Niehoff

Articles

Over the past few years, a number of high-profile attorneys have been sanctioned or suspended from the practice of law because they lied. The instance that probably received the greatest media attention came in June of 2021, when the Appellate Division of the Supreme Court of the State of New York ordered the immediate suspension of Rudy Giuliani’s license because he had made demonstrably false statements to the courts, lawmakers, and the public at large concerning the 2020 presidential election. In a 33- page opinion, the court considered the arguments Giuliani raised in his defense but concluded that his pants …

Informationalism Beyond Managerialism, Salome Viljoen

Articles

It is now commonplace to observe that digital platforms are both affecting and reshaping markets. The focus of this Article is not the anticompetitive effects of digital platforms upon the markets they enter. It instead focuses on digital platforms themselves as market mechanisms. Information—especially datafied information about people and their behavior—and information technologies have transformed how many markets function in the digital economy. Markets have become market machines: highly engineered and computationally intensive market-like mechanisms that make up a key layer of technological infrastructure within digital platforms.

Why Do Corporations Merge And Why Should Law Care?, Chris Sagers

University of Michigan Journal of Law Reform

Mergers and acquisitions are extraordinarily prevalent in the United States, generating massive expenditures every year. However, a serious empirical puzzle lies at the heart of all that activity. That empirical phenomenon’s most remarkable feature by far is that even though it is well established in an extensive literature and implies far-reaching policy consequences, American law ignores it entirely.

Generations of researchers have failed to find evidence that merger and acquisition activity generates any lasting benefits for the combining firms’ owners or anyone else. No one seriously doubts that efficiencies of scale or technological integration are real or that acquisitions sometimes …

Policies For Expanding Hepatitis C Testing And Treatment In United States Prisons And Jails, Tessa Bialek, Dr. Matthew J. Akiyama M.D.

University of Michigan Journal of Law Reform

Hepatitis C virus (HCV) is highly prevalent in United States prisons and jails. In prisons and jails, rates of infection are ten to twenty times greater than national levels. And, more than thirty percent of all people living with HCV in the United States will spend time in prisons and jails in any given year. Rates are especially high among people who inject drugs (PWID), a population whose members are also likely to move between carceral settings and the community. Thus, addressing HCV among incarcerated populations would have a significant effect on the virus’s transmission both in and out of …

The Geography Of Unfreedom, Ann M. Eisenberg

Michigan Law Review

A Review of Coal, Cages, Crisis: The Rise of the Prison Economy in Central Appalachia. By Judah Schept.

The Indian Child Welfare Act In The Multiverse, M. Alexander Pearl

Michigan Law Review

A Review of Adoptive Couple v. Baby Girl By Matthew L.M. Fletcher and Kathryn E. Fort, in Critical Race Judgments: Rewritten U.S. Court Opinions on Race and the Law 452, 471. Edited by Bennett Capers, Devon W. Carbado, R.A. Lenhardt and Angela Onwuachi-Willig.

Public Duties For The New City, Sarah L. Swan

Michigan Law Review

The first job of a government is to protect its people, and, in the United States, the government ostensibly performs this job through the police. But policing in America is deeply dysfunctional, as the police not only provide inadequate protection from violent crime, but simultaneously engage in outright acts of brutality against the citizenry. As awareness of these practices has swept across the nation, legal scholars and policymakers have offered numerous reforms and remedies to help solve policing’s problems. The responses have tended to focus on the top of the legal pyramid, using the big hammers of the federal government, …

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 …

Giving Shareholders The Right To Say No, Albert H. Choi, Adam C. Pritchard

Articles

When a public company releases misleading information that distorts the market for the company’s stock, investors who purchase at the inflated price lose money when (and if) the misleading information is later corrected. Under Rule 10b‑5 of the Securities Exchange Act of 1934, investors can seek compensation from corporations and their officers who make materially misleading statements that the investors relied on when buying or selling a security. Compensation is the obvious goal, but the threat of lawsuits can also benefit investors by deterring managers from committing fraud.

Congress's Anti-Removal Power, Christopher J. Walker, Aaron Nielson

Articles

Statutory restrictions on presidential removal of agency leadership enable agencies to act independently from the White House. Yet since 2020, the U.S. Supreme Court has held two times that such restrictions are unconstitutional precisely because they prevent the President from controlling policymaking within the executive branch. Recognizing that a supermajority of the Justices now appears to reject or at least limit the principle from Humphrey’s Executor that Congress may prevent the President from removing agency officials based on policy disagreement, scholars increasingly predict that the Court will soon further weaken agency independence if not jettison it altogether.

This Article challenges …

Unprecedented Precedent And Original Originalism: How The Supreme Court’S Decision In Dobbs Threatens Privacy And Free Speech Rights, Leonard Niehoff

Articles

The U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has drawn considerable attention because of its reversal of Roe v. Wade and its rejection of a woman’s constitutional right to terminate her pregnancy. The Dobbs majority, and some of the concurring opinions, emphasized that the ruling was a narrow one. Nevertheless, there are reasons to think the influence of Dobbs may extend far beyond the specific constitutional issue the case addresses.

This article explains why Dobbs could have significant and unanticipated implications for the law of privacy and the law of free expression. I argue that two …

Humans In The Loop, Nicholson Price Ii, Rebecca Crootof, Margot Kaminski

Articles

From lethal drones to cancer diagnostics, humans are increasingly working with complex and artificially intelligent algorithms to make decisions which affect human lives, raising questions about how best to regulate these “human in the loop” systems. We make four contributions to the discourse.

First, contrary to the popular narrative, law is already profoundly and often problematically involved in governing human-in-the-loop systems: it regularly affects whether humans are retained in or removed from the loop. Second, we identify “the MABA-MABA trap,” which occurs when policymakers attempt to address concerns about algorithmic incapacities by inserting a human into decision making process. Regardless …

What Would Surrey Say? The Long Reach Of Stanley S. Surrey, Reuven Avi-Yonah, Nir Fishbien

Articles

Stanley S. Surrey died in 1984, two years before the enactment of the Tax Reform Act of 1986, which gave us the Internal Revenue Code of 1986 as amended. Historians have recently discovered Surrey’s work through his memoirs, published in 2022, and several articles based on the memoir and on the unpublished Surrey papers at Harvard Law School. There is no doubt that Surrey was a towering historical figure during his “Half-Century with the Internal Revenue Code.” As his protégé Donald Lubick, who served as Assistant Secretary for Tax Policy in both the Carter and the Clinton Administrations, stated, Surrey …

Constitutional Losses And (Some) Statutory Wins For Criminal Defendants: Select Criminal Law And Procedure Cases From The Supreme Court's 2022-2023 Term., Eve Brensike Primus, Mark Rucci

Articles

The Supreme Court’s 2022–23 Term included a number of important statutory interpretation rulings, as well as significant cases concerning the scope of the Confrontation Clause; the Venue, Vicinage, and Double Jeopardy Clauses; the federal courts’ ability to entertain claims of legal innocence; and the contours of the adequate and independent state ground doctrine. It also was the first term for Justice Ketanji Brown Jackson—the first former public defender and first Black woman to join the centuries-old institution. Although Justice Jackson joined a Court ruptured along ideological lines and confronting serious challenges to its legitimacy and ethical standards, she quickly proved …

The Value Of Understandable Consumer Insurance Contracts, Kyle Logue, Daniel Schwarcz, Brenda Cude

Articles

Insurance consumers, the intermediaries who serve them, and the regulators who protect them all would benefit from understandable consumer insurance contracts. This article outlines the benefits of understandable insurance contracts, identifies the regulatory tools that are or can be used to ensure such comprehensibility, and reviews the existing literature about how well consumers comprehend their insurance policies within the context of personal lines insurance in the U.S. The article concludes by proposing an empirical research strategy to study consumers’ understanding of the terms of homeowners insurance policies and, even when they have not read their policies, their expectations about coverage.

The Impact Of Post-Dobbs Abortion Bans On Prenatal Tort Claims, Aviva K. Diamond

Michigan Law Review

In June 2022, the Supreme Court revoked Americans’ fundamental right to abortion in Dobbs v. Jackson Women’s Health Organization. However, the Court said nothing about how its decision would impact tort claims related to reproductive care. Many states have since adopted near-total or early-gestational- age abortion bans, which has not only diminished access to reproductive care, but has also incidentally impaired the ability of plaintiffs to bring long-recognized prenatal tort claims. Prenatal tort claims—wrongful pregnancy, birth, and life—allow victims to recover when a medical professional negligently performs reproductive or prenatal care. This Note identifies the impact that post-Dobbs …