Digital Commons Network^™

The Hague Rules On Third-Party Joinder: A Revised Framework, Emma Macfarlane

Michigan Business & Entrepreneurial Law Review

This paper critically assesses the Hague Rules’ stance on third-party joinder. Third-party joinder is an important feature in business human rights disputes. It is a mechanism that victims of human rights abuses can use to bring claims against corporate defendants where the victims do not otherwise have an underlying agreement on which to base their claim. Keeping in line with traditional conceptions of commercial arbitration, the Hague Rules are grounded in party consent to arbitrate. Conceptions of consent therefore have an outsized impact on the universe of parties who can bring actions against corporations before arbitral tribunals for human rights …

Rethinking Mac Clauses In The Time Of Akorn, Boston Scientific, And Covid-19, Samuel Shapiro

Michigan Business & Entrepreneurial Law Review

The MAC clause is perhaps the most important clause in contract law, giving acquirers the ability to terminate even the largest agreements in the face of an often vaguely defined “Material Adverse Change.” For decades, even though MAC clauses have been present in nearly every merger agreement, courts have almost universally refused to enforce them. But the Delaware Chancery Court’s 2018 decision in Akorn may finally change that. As the world deals with the economic uncertainty caused by COVID-19, courts may soon get more opportunities to decide whether or not they will follow Akorn’s lead and begin to allow …

How The Supreme Court Can Improve Educational Opportunities For African American And Hispanic Students By Ruling Against Harvard College’S Use Of Race Data, Genevieve Kelly

University of Michigan Journal of Law Reform Caveat

Students for Fair Admissions v. Harvard has not only exposed ways in which Harvard College’s admissions office unfairly assesses Asian American applicants, but it has also revealed that Harvard’s fixation on race per se can disadvantage the very African American and Hispanic students best positioned to bring instructive and underrepresented perspectives to the college. The facts show that Harvard’s “tips” and “one-pager” system values African American and Hispanic students for their ability to boost Harvard’s racial profile more than for their actual experiences confronting racial discrimination. This Comment explains how, by ruling against Harvard (and without overruling Grutter or Fisher …

The Fallacy Of Contract In Sexual Slavery: A Response To Ramseyer's "Contracting For Sex In The Pacific War", Yong-Shik Lee, Natsu Taylor Saito, Jonathan Todres

Michigan Journal of International Law

Over seven decades have passed since the end of the Second World War, but the trauma from the cruelest war in human history continues today, perpetuated by denial of responsibility for the war crimes committed and unjust attempts to rewrite history at the expense of dignity, life, and justice for the victims of the most serious human rights violations. The latest such attempt is a troubling recharacterization of the sexual slavery enforced by Japan during the Second World War as a legitimate contractual arrangement. A recent paper authored by J. Mark Ramseyer, entitled “Contracting for Sex in the Pacific War,” …

Sexual Slavery As A War Crime: A Reform Proposal, Alessandro Storchi

Michigan Journal of International Law

For the first time in the history of international criminal law, the ICC Elements of Crimes included a statutory definition of sexual slavery as a war crime and as a crime against humanity. Such definition is derived from, and in fact almost identical to, the definition of enslavement in the same text. In July 2019, that language for the first time was adopted and applied in the conviction of general Bosco Ntaganda, the first ever conviction for sexual slavery as a war crime and as a crime against humanity at the ICC, as part of the situation in the Democratic …

Recollections Refreshed And Recorded, Len Niehoff

Articles

Witnesses forget stuff. When they do, the evidence rules give us two tools to help solve the problem. Lawyers call one "refreshed recollection" and the other "past recollection recorded," labels just similar enough to guarantee confusion. Nevertheless, these principles get at very different things and are well worth the effort necessary to distinguish and understand them. So how do we get there?

Reframing Article I, Section 8, Richard Primus

Articles

Constitutional lawyers usually think of the Constitution's enumeration of congressional powers as a device for limiting the federal government's legislative jurisdiction. And there's something to that. But considered from the point of view of the Constitution's drafters, it makes more sense to think of the enumeration of congressional powers as primarily a device for empowering Congress, not limiting it. The Framers wanted both to empower and to limit the general government, and the Constitution's enumeration of congressional powers makes more sense as a means of empowerment than as a means of limitation. The major exception--that is, the one significant way …

A Different Type Of Property: White Women And The Human Property They Kept, Michele Goodwin

Michigan Law Review

A Review of Incidents in the Life of a Slave Girl. by Harriet A. Jacobs, and They Were Her Property: White Women as Slave Owners in the American South. by Stephanie E. Jones-Rogers.

The Limits Of Deliberation About The Public's Values, Mark Seidenfeld

Michigan Law Review

A Review of The Public's Law: Origins and Architecture of Progressive Democracy by Blake Emerson.

Pregnancy And The Carceral State, Khiara M. Bridges

Michigan Law Review

A Review of Policing the Womb: Invisible Women and the Criminalization of Motherhood. by Michele Goodwin.

The Market Cannot Be Your Mother, Meghan Boone

Michigan Law Review

A Review of The Free-Market Family: How the Market Crushed the American Dream (and How It Can Be Restored). by Maxine Eichner.

Two Visions Of Contract, Hanoch Dagan

Michigan Law Review

A Review of Justice in Transactions: A Theory of Contract Law. by Peter Benson.

Tort Law And Civil Recourse, Mark A. Geistfeld

Michigan Law Review

A Review of Recognizing Wrongs. by John C.P. Goldberg and Benjamin C. Zipursky.

Compensation, Commodification, And Disablement: How Law Has Dehumanized Laboring Bodies And Excluded Nonlaboring Humans, Karen M. Tani

Michigan Law Review

A Review of Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era. by Nate Holdren.

Restorative Federal Criminal Procedure, Leo T. Sorokin, Jeffrey S. Stein

Michigan Law Review

A Review of Until We Reckon: Violence, Mass Incarceration, and a Road to Repair. by Danielle Sered.

The "Innocence" Of Bias, Osamudia James

Michigan Law Review

A Review of Biased: Uncovering the Hidden Prejudices that Shapes What We See, Think, and Do. by Jennifer L. Eberhardt.

The Rule Of Five Guys, Lisa Heinzerling

Michigan Law Review

A Review of The Rule of Five: Making Climate History at the Supreme Court. by Richard J. Lazarus.

Racial Revisionism, Shaun Ossei-Owusu

Michigan Law Review

A Review of The Enigma of Clarence Thomas. by Corey Robin.

Natural Language Processing For Lawyers And Judges, Frank Fagan

Michigan Law Review

A Review of Law as Data: Computation, Text, & the Future of Legal Analysis. Edited by Michael A. Livermore and Daniel N. Rockmore.

Can Prosecutors End Mass Incarceration?, Rachel E. Barkow

Michigan Law Review

A Review of Charged: The New Movement to Transform American Prosecution and End Mass Incarceration. by Emily Bazelon.

A Perfectly Empty Gift, Christina D. Ponsa-Kraus

Michigan Law Review

A Review of Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire. by Sam Erman.

The Geopolitics Of American Policing, Andrew Lanham

Michigan Law Review

A Review of Badges Without Borders: How Global Counterinsurgency Transformed American Policing. by Stuart Schrader.

The Economics Of Class Action Waivers, Albert H. Choi, Kathryn E. Spier

Law & Economics Working Papers

Many firms require consumers, employees, and suppliers to sign class action waivers as a condition of doing business with the firm, and the US Supreme Court has endorsed companies' ability to block class actions through mandatory individual arbitration clauses. Are class action waivers serving the interests of society or are they facilitating socially harmful business practices?

This paper synthesizes and extends the existing law and economics literature by analyzing the firms' incentive to impose class action waivers. While in many settings the firms’ incentive to block class actions may be aligned with maximizing social welfare, in many other settings it …

Acknowledgements As A Window Into Legal Academia, Jonathan Tietz, W. Nicholson Price Ii

Articles

Legal scholarship in the United States is an oddity—an institution built on student editorship, a lack of peer review, and a dramatically high proportion of solo authorship. It is often argued that this makes legal scholarship fundamentally different from scholarship in other fields, which is largely peer-reviewed by academics. We use acknowledgments in biographical footnotes from law review articles to probe the nature of legal knowledge co-production and de facto peer review in the legal literature. Using a survey and a textual analysis of about thirty thousand law review articles from 2008 to 2017, we examined the nature of knowledge …

Suicide Prevention And Mood Disorders: Self-Exclusion Agreements For Firearms As A Suicide Prevention Strategy, Melvin G. Mcinnis, Stephen B. Thompson, Sofia D. Merajver, Carl E. Schneider

Articles

Suicide involves a complex set of behaviors and emotions that lead up to actions that may be based on planning and forethought or the result of impulse. While there are a host of antecedent circumstances the presence of a mood disorder, primarily depression, is the most common factor in suicide. While management of depression is recognized as important prevention strategy in depression, the means by which suicide occurs must be a critical element of prevention. Policies that lower access to the means for suicide will decrease the fatality. Guns are associated with half of suicides and the case fatality rate …

The Economics Of Class Action Waivers, Albert H. Choi, Kathryn E. Spier

Articles

Many firms require consumers, employees, and suppliers to sign class action waivers as a condition of doing business with the firm, and the U.S. Supreme Court has endorsed companies’ ability to block class actions through mandatory individual arbitration clauses. Are class action waivers serving the interests of society or are they facilitating socially harmful business practices? This paper synthesizes and extends the existing law and economics literature by analyzing the firms’ incentive to impose class action waivers. While in many settings the firms’ incentive to block class actions may be aligned with maximizing social welfare, in many other settings it …

Antitrust Antitextualism, Daniel A. Crane

Articles

Judges and scholars frequently describe antitrust as a common-law system predicated on open-textured statutes, but that description fails to capture a historically persistent phenomenon:judicial disregard of the plain meaning of the statutory texts and manifest purposes of Congress. This pattern of judicial nullification is not evenly distributed: when the courts have deviated from the plain meaning or congressional purpose, they have uniformly done so to limit the reach of antitrust liability or curtail the labor exemption to the benefit of industrial interests. This phenomenon cannot be explained solely or even primarily as a tug-of-war between a progressive Congress and conservative …

The Reincorporation Of Prisoners Into The Body Politic: Eliminating The Medicaid Inmate Exclusion Policy, Mira K. Edmonds

Articles

Incarcerated people are excluded from Medicaid coverage due to a provision in the Social Security Act Amendments of 1965 known as the Medicaid Inmate Exclusion Policy (“MIEP”). This Article argues for the elimination of the MIEP as an anachronistic remnant of an earlier era prior to the massive growth of the U.S. incarcerated population and the expansion of Medicaid eligibility under the Patient Protection and Affordable Care Act of 2010. It explores three reasons for eliminating the MIEP. First, the inclusion of incarcerated populations in Medicaid coverage would signify the final erasure from the Medicaid regime of the istinction between …

The Democracy Principle In State Constitutions, Jessica Bulman-Pozen, Miriam Seifter

Michigan Law Review

In recent years, antidemocratic behavior has rippled across the nation. Lame-duck state legislatures have stripped popularly elected governors of their powers; extreme partisan gerrymanders have warped representative institutions; state officials have nullified popularly adopted initiatives. The federal Constitution offers few resources to address these problems, and ballot-box solutions cannot work when antidemocratic actions undermine elections themselves. Commentators increasingly decry the rule of the many by the few.

This Article argues that a vital response has been neglected. State constitutions embody a deep commitment to democracy. Unlike the federal Constitution, they were drafted—and have been repeatedly rewritten and amended— to empower …

The Lost Promise Of Disability Rights, Claire Raj

Michigan Law Review

Children with disabilities are among the most vulnerable students in public schools. They are the most likely to be bullied, harassed, restrained, or segregated. For these and other reasons, they also have the poorest academic outcomes. Overcoming these challenges requires full use of the laws enacted to protect these students’ affirmative right to equal access and an environment free from discrimination. Yet, courts routinely deny their access to two such laws—the Americans with Disabilities Act (ADA) and section 504 of the Rehabilitation Act of 1973 (section 504).

Courts too often overlook the affirmative obligations contained in these two disability rights …