Digital Commons Network^™

9/11 Impacts On Muslims In Prison, Spearit

Michigan Journal of Race and Law

It is no understatement to say that September 11, 2001, is the most important date in the history of American Islam. From this day forth, Muslims would become a target for social wrath and become vilified like at no other time in American history. In one fell swoop, Muslims became the most feared and hated religious group in the country. While analysis of the impacts on Muslims tends to focus on Muslims outside of prison, it is critical to recognize that Muslims in prison were no exception to the post- 9/11 hostilities directed at Muslims. They experienced similarly heightened levels …

The Promise And Limits Of Lawfulness: Inequality, Law, And The Techlash, Salomé Viljoen

Articles

In response to widespread skepticism about the recent rise of “tech ethics”, many critics have called for legal reform instead. In contrast with the “ethics response”, critics consider the “lawfulness response” more capable of disciplining the excesses of the technology industry. In fact, both are simultaneously vulnerable to industry capture and capable of advancing a more democratic egalitarian agenda for the information economy. Both ethics and law offer a terrain of contestation, rather than a predetermined set of commitments by which to achieve more democratic and egalitarian technological production. In advancing this argument, the essay focuses on two misunderstandings common …

Voices From A Prison Pandemic: Lives Lost From Covid-19 At Lakeland Correctional, Kimberly Thomas

Articles

Coronavirus tore through jails and prisons like wildfire. In some states, more than half of the people incarcerated there tested positive for COVID-19; nearly 400,000 people in prison across the United States have tested positive. For people in prison, COVID-19 brought the loss of close friends, solitary confinement, loss of connection with family and programming, lack of information, and fear of contracting the virus. It has also reminded those who are incarcerated of the one-dimensional way in which people in prison are perceived. As stated by one collaborator, Cory Souders, "[s]o many men and women who come to prison are …

How Serving Jobless Workers During The Pandemic’S Economic Recession Grounded Students: A Reflection From Michigan’S Workers’ Rights Clinic, Rachael Kohl, Nancy Vettorello

Articles

The COVID-19 pandemic drastically changed the delivery of legal education. Many courses switched to remote instruction, and that change was particularly complicated for clinical courses. For Michigan's Workers' Right Clinic (WRC), however, the pandemic brought more than a change in course delivery - it brought a huge influx of new cases and community need with rapidly and continually changing laws. This article describes how the WRC navigated and thrived, despite the rapid changes brought about by the pandemic, and how the clinic provided an opportunity for students to engage in more complex work that benefited students both academically and mentally. …

United States V. Muhammad: Brief Of Evidence Law Professors As Amici Curiae In Support Of Respondents, Richard D. Friedman

Appellate Briefs

Amici curiae teach, research, and write about the law of evidence. Amici share the view that the United States Court of Appeals for the Ninth Circuit correctly remanded this case to the District Court for an in camera review of the Executive’s claim of the state secrets privilege.<\p>

The concept of “state secrets” is an evidentiary privilege. It is occasionally confused with other doctrines. Privileges are to be strictly construed and narrowly interpreted because they impede the search for truth. The state secrets privilege should not operate as a monarchal “Crown Privilege.” When courts are confronted with state secrets claims, …

Autonomy And The Folk Concept Of Valid Consent, Joanna Demaree-Cotton, Roseanna Sommers

Law & Economics Working Papers

Consent governs innumerable everyday social interactions, including sex, medical exams, the use of property, and economic transactions. Yet little is known about how ordinary people reason about the validity of consent. Across the domains of sex, medicine, and police entry, Study 1 showed that when agents lack autonomous decision-making capacities, participants are less likely to view their consent as valid; however, failing to exercise this capacity and deciding in a nonautonomous way did not reduce consent judgments. Study 2 found that specific and concrete incapacities reduced judgments of valid consent, but failing to exercise these specific capacities did not, even …

Noise Pollution, Patrick Barry

Law & Economics Working Papers

The authors of Noise: A Flaw in Human Judgment are a trio of intellectual heavy hitters: Nobel-prize winner Daniel Kahneman, constitutional law scholar Cass Sunstein, and former McKinsey consultant (and current management professor) Olivier Sibony. As prolific as they are prominent, the three of them have collectively produced over fifty books and hundreds of articles, including some of the most cited research in social science. If academic publishing ever becomes an Olympic sport, they’ll be prime medal contenders, particularly if they get to compete as a team or on a relay. Their combined coverage of law, economics, psychology, medicine, education, …

The Case For Reviving The Corporate Amt, Reuven S. Avi-Yonah

Articles

In this article, Avi-Yonah examines the bill introduced by Senate Finance Committee member Elizabeth Warren, D-Mass., to revive the corporate alternative minimum tax as a 15 percent tax on corporate book income, and he argues that it is a sensible way to address some problems of the corporate tax system.

Toward Rationality In Oil And Gas Leasing: Building The Toolkit For Programmatic Reforms, Rachel Rothschild, Max Sarinsky

Other Publications

For decades, the federal government has inadequately considered the environmental harms of oil and gas extraction in its management of public lands and waters. As a result, fossil-fuel developers have been handed vast swaths of land at bargain prices, causing dangerous levels of greenhouse gas pollution that exacerbates climate change while depriving the public of more beneficial uses of the land.

That is all likely to change soon. A week into his term, President Biden called for a comprehensive review of the oil and gas program.1 That review is now underway and is likely to result in substantial programmatic reforms …

The Future Of Securities Law In The Supreme Court, Adam C. Pritchard, Robert B. Thompson

Articles

Since the enactment of the first federal securities statute in 1933, securities law has illustrated key shifts in the Supreme Court’s jurisprudence. During the New Deal, the Court’s securities law decisions shifted almost overnight from open hostility toward the newly-expanded administrative state to broad deference to agency expertise. In the 1940s, securities cases helped build the legal foundation for a broadly enabling administrative law. The 1960s saw the Warren Court creating new implied rights of action in securities law illustrative of the Court’s approach to statutes generally. The stage seemed set for the rise of “federal corporate law.” The Court …

Viii—Gambling On Others And Relying On Others, Nicolas Cornell

Articles

Gambling on another person and relying on another person are similar but intuitively distinct phenomena. This paper argues that gambling is distinguished by the stance that it necessarily involves towards the bet-upon conduct. It then contends that, where one has gambled upon the conduct of another, one has no standing to complain against that person for losses that result. This small point may have significant implications for how we think about speculative economic losses.

Antiracist Remedial Approaches In Judge Gregory’S Jurisprudence, Leah M. Litman

Articles

This piece uses the idea of antiracism to highlight parallels between school desegregation cases and cases concerning errors in the criminal justice system. There remain stark, pervasive disparities in both school composition and the criminal justice system. Yet even though judicial remedies are an integral part of rooting out systemic inequality and the vestiges of discrimination, courts have been reticent to use the tools at their disposal to adopt proactive remedial approaches to address these disparities. This piece uses two examples from Judge Roger Gregory’s jurisprudence to illustrate how an antiracist approach to judicial remedies might work.

Thompson V. Clark: Brief Of Amici Curiae Current And Former Prosecutors, Department Of Justice Officials, And Judges In Support Of Petitioner, Barbara L. Mcquade

Appellate Briefs

Amici are current and former federal, state, and local prosecutors, Department of Justice officials, and judges with experience prosecuting and establishing policy for prosecuting crimes at various levels of the criminal justice system. Amici recognize that prosecutors and judges must always conduct their duties in the interests of justice. Prosecutors therefore exercise their discretion to seek dismissal of criminal charges—and judges grant dismissal— where there is insufficient evidence to prove the case beyond a reasonable doubt or when other compelling circumstances call for dismissal. Amici have an interest in ensuring that prosecutors’ decisions whether to pursue criminal charges are not …

Strain V. Regalado: Motion For Leave To File Amicus Curiae Brief And Brief Of 21 Law Professors As Amici Curiae In Support Of Petitioner, Leah Litman

Appellate Briefs

Pursuant to Supreme Court Rule 37.2(b), amici curiae respectfully request leave to file the following brief in support of petitioner. Counsel of record for all parties received notice at least ten days prior to the due date of the amicus curiae brief. Respondents Vic Regalado and Armor Correctional Health Services, Inc. withheld consent. Petitioner consented to the filing of this brief.

Amici are legal scholars who teach and write on incarceration, criminal justice, civil rights, and constitutional law. Their interest in submitting this brief is to call attention to how the courts of appeals aligned with the court below are …

The Problem With Assumptions: Revisiting The Dark Figure Of Sexual Recidivism, Tamara Rice Lave, Jj Prescott, Grady Bridges

Law & Economics Working Papers

What is the actual rate of sexual recidivism given the well-known fact that many crimes go unreported? This is a difficult and important problem, and in The Dark Figure of Sexual Recidivism, Nicholas Scurich and Richard S. John (2019) attempt to make progress on it by “estimate[ing] actual recidivism rates given observed rates of reoffending” (p.172). In this article, we show that the math in their probabilistic model is flawed, but more important, we demonstrate that their conclusions follow ineluctably from their empirical assumptions and the unrepresentative empirical research they cite to benchmark their calculations. Scurich and John contend that …

Propaganda Warfare On The International Criminal Court, Sara L. Ochs

Michigan Journal of International Law

Propaganda warfare, while novel in nomenclature, is far from new in practice. In an era dominated by constant news, battles for public opinion complement physical attacks. In fact, “winning modern wars is as much dependent on carrying domestic and international public opinion as it is on defeating the enemy on the battlefield.” The fight for public opinion has become so valuable to military initiatives that the U.S. Department of Defense Law of War Manual specifically recognizes propaganda directed towards “civilian or neutral audiences” as a “permissible means of war.”

Border Searches For Investigatory Purposes: Implementing A Border Nexus Standard, Brenna Ferris

University of Michigan Journal of Law Reform Caveat

Border searches are a commonly used exception to the Fourth Amendment’s probable cause and warrant requirements. Using a border search, the government can conduct searches of individuals without any kind of individualized suspicion. Border searches pose a concerning risk to privacy when they are used as a tool for criminal investigations. The Supreme Court has never ruled on searches used in this way, but lower courts are addressing the technique and reaching conflicting decisions. Courts need to take an approach that will protect the privacy interests of individuals while allowing the government to advance its interests in protecting its borders …

Revisiting The International Court Of Justice Procedure For The Revision Of Judgments, Juliette Mcintyre

Michigan Journal of International Law

The International Court of Justice (“ICJ”) is a court of first and last instance. Its decisions are “final and without appeal.” At first blush, this seems uncontroversial; it is a simple restatement of the well-established principle of res judicata. But if the court makes a judicial pronouncement without all the facts to hand, can one say that the decision is legitimate and authoritative? Pursuant to article 61 of the ICJ’s Statute, the court does have the authority to revise a judgment in certain, limited circumstances. Revision is a remedy that enables the court, upon the application of a party, …

The Problem With Assumptions: Revisiting “The Dark Figure Of Sexual Recidivism”, Tamara Rice Lave, Jj Prescott, Grady Bridges

Articles

What is the actual rate of sexual recidivism given the well‐ known fact that many crimes go unreported? This is a difficult and important problem, and in “The dark figure of sexual recidivism,” Nicholas Scurich and Richard S. John (2019) attempt to make progress on it by “estimat[ing] actual recidivism rates . . . given observed rates of reoffending” (p. 171). In this article, we show that the math in their probabilistic model is flawed, but more importantly, we demonstrate that their conclusions follow ineluctably from their empirical assumptions and the unrepresentative empirical research they cite to benchmark their calculations. …

How The Rational Basis Test Protects Policing For Profit, William R. Maurer

University of Michigan Journal of Law Reform

Since the police shooting of Michael Brown in 2014 and the civil unrest that followed, numerous lawsuits have challenged laws that use the government’s ability to impose fines and fees for reasons other than the protection of the public. These challenges have usually raised equal protection challenges to these laws—that is, that the laws punish the poor more harshly than others. The challenges have been unsuccessful, largely because courts examine these laws using “rational basis review,” a standard that is highly deferential to the government and one in which the courts themselves are often required to actively advocate for the …

Fee Simple Failures: Rural Landscapes And Race, Jessica A. Shoemaker

Michigan Law Review

Property law’s roots are rural. America pursued an early agrarian vision that understood real property rights as instrumental to achieving a country of free, engaged citizens who cared for their communities and stewarded their physical place in it. But we have drifted far from this ideal. Today, American agriculture is industrialized, and rural communities are in decline. The fee simple ownership form has failed every agrarian objective but one: the maintenance of white landownership. For it was also embedded in the original American experiment that land ownership would be racialized for the benefit of its white citizens, through acts of …

Remediating Racism For Rent: A Landlord’S Obligation Under The Fha, Mollie Krent

Michigan Law Review

The Fair Housing Act (FHA) is an expansive and powerful piece of legislation that furthers equal housing in the United States by ferreting out discrimination in the housing market. While the power of the Act is well recognized by courts, the full contours of the FHA are still to be refined. In particular, it remains unsettled whether and when a landlord can be liable for tenant-on-tenant harassment. This Note argues, first, that the FHA does recognize liability in such a circumstance and, second, that a landlord should be subject to liability for her negligence in such a circumstance. Part I …

Ranked-Choice Voting As Reprieve From The Court-Ordered Map, Benjamin P. Lempert

Michigan Law Review

Thus far, legal debates about the rise of ranked-choice voting have centered on whether legislatures can lawfully adopt the practice. This Note turns attention to the courts and the question of remedies. It proposes that courts impose ranked-choice voting as a redistricting remedy. Ranked-choice voting allows courts to cure redistricting violations without also requiring that they draw copious numbers of districts, a process the Supreme Court has described as a “political thicket.” By keeping courts away from the fact-specific, often arbitrary judgments involved in redistricting, ranked-choice voting makes for the redistricting remedy that best protects the integrity of the judicial …

Suspect Spheres, Not Enumerated Powers: A Guide For Leaving The Lamppost, Richard Primus, Roderick M. Hills Jr.

Michigan Law Review

Despite longstanding orthodoxy, the Constitution’s enumeration of congressional powers does virtually nothing to limit federal lawmaking. That’s not because of some bizarrely persistent judicial failure to read the Constitution correctly. It’s because the enumeration of congressional powers is not a well-designed technology for limiting federal legislation. Rather than trying to make the enumeration do work that it will not do, decisionmakers should find better ways of thinking about what lawmaking should be done locally rather than nationally. This Article suggests such a rubric, one that asks not whether Congress has permission to do a certain thing but whether a certain …

Has Tax Competition Been Curbed? Reaction To L.Ahrens, L. Hakelberg & T. Rixen, Reuven Avi-Yonah

Articles

This excellent article shows that contrary to the dire predictions of many observers, tax cooperation is still possible among OECD member countries and that such cooperation can overcome the trilemma of maintaining democracy, sustaining globalization and accepting some tax competition. Specifically, the authors show that in the realm of individual tax evasion, the advent of Automatic Exchange of Information (AEol) after the financial crisis of 2008-9 has enabled OECD countries to maintain a higher level of tax on capital than was possible before the crisis. This, in turn, enabled such countries to reduce inequality and maintain the social safety net …

The Meaning Of Sex: Dynamic Words, Novel Applications, And Original Public Meaning, William N. Eskridge Jr., Brian G. Slocum, Stefan Th. Gries

Michigan Law Review

The meaning of sex matters. The interpretive methodology by which the meaning of sex is determined matters Both of these were at issue in the Supreme Court’s recent landmark decision in Bostock v. Clayton County, where the Court held that Title VII protects lesbians, gay men, transgender persons, and other sexual and gender minorities against workplace discrimination. Despite unanimously agreeing that Title VII should be interpreted in accordance with its original public meaning in 1964, the opinions in Bostock failed to properly define sex or offer a coherent theory of how long-standing statutes like Title VII should be interpreted over …

Tune Up: Fixing Market Failures To Cut Fuel Costs And Pollution From Cars And Trucks, Rachel Rothschild, Jason Schwartz

Other Publications

The Biden administration is currently seeking to bolster the federal government’s role in addressing climate change by reducing greenhouse gas emissions from the transportation sector, which is currently the largest source of these pollutants in the country. Federal fuel economy and vehicle emissions standards will thus be crucial tools in addressing climate change as well as improving the health of millions of Americans who are exposed to toxic tailpipe pollutants.

In addition to reducing pollution, these efforts can also save consumers money at the pump. Economists have long observed that consumers do not always select vehicles that will save them …

Brief For Plaintiff-Appellee, Carroll V. Trump, No. 20-3977 (2nd Cir. Apr. 16, 2021), Leah Litman, Roberta A. Kaplan, Joshua A. Matz, Raymond P. Tolentino

Appellate Briefs

Introduction

In June 2019, E. Jean Carroll revealed that former President Donald J. Trump had sexually assaulted her decades earlier. Trump denied it, saying he did not know who Carroll was and had never met her. But he did not stop there. He launched a series of vicious, personal attacks. He implied that she was too ugly to rape; that she had falsely accused other men of sexual assault; and that she had invented her story for money, or to sell books, or to advance a political plot. None of this was true. Trump knew that he had assaulted Carroll. …

Regtech And Predictive Lawmaking: Closing The Reglag Between Prospective Regulated Activity And Regulation, John W. Bagby, Nizan G. Packin

Michigan Business & Entrepreneurial Law Review

Regulation chronically suffers significant delay starting at the detectable initiation of a “regulable activity” and culminating at effective regulatory response. Regulator reaction is impeded by various obstacles: (i) confusion in optimal level, form and choice of regulatory agency, (ii) political resistance to creating new regulatory agencies, (iii) lack of statutory authorization to address particular novel problems, (iv) jurisdictional competition among regulators, (v) Congressional disinclination to regulate given political conditions, and (vi) a lack of expertise, both substantive and procedural, to deploy successful counter-measures. Delay is rooted in several stubborn institutions, including libertarian ideals permeating both the U.S. legal system and …

Precise Punishment: Why Precise Punitive Damage Requests Result In Higher Awards Than Round Requests, Michael Conklin

Michigan Business & Entrepreneurial Law Review

Imagine a setting where someone asks two people what the temperature is outside. The first person says it is 80 °F, while the second person says it is 78.7 °F. Research regarding precise versus round cognitive anchoring suggests that the second person is more likely to be believed. This is because it is human nature to assume that if someone gives a precise answer, he must have good reason for doing so. This principle remains constant in a variety of settings, including used car negotiations, eBay transactions, and estimating the field goal percentage of a basketball player.

This Article reports …