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The Innocent Villain: Involuntary Manslaughter By Text, Charles Adside Iii

University of Michigan Journal of Law Reform

Michelle Carter’s texts instructing her mentally ill online boyfriend to commit suicide offended the social moral code. But the law does not categorize all morally reprehensible behavior as criminal. Commonwealth v. Carter is unprecedented in manslaughter law because Carter was convicted on the theory that she was virtually present as opposed to physically present—at the crime scene. The court’s reasoning is expansive, as the framework it employs is excessively vague and does not provide fair notice to the public of which actions constitute involuntary manslaughter. Disturbingly, the Massachusetts Supreme Judicial Court affirmed the trial court’s logic. This Article concludes that …

Tort Justice Reform, Paul David Stern

University of Michigan Journal of Law Reform

This Article calls for a comprehensive reform of public tort law with respect to law enforcement conduct. It articulates an effective and equitable remedial regime that reconciles the aspirational goals of public tort law with the practical realities of devising payment and disciplinary procedures that are responsive to tort settlements and judgments. This proposed statutory scheme seeks to deter law enforcement misconduct without disincentivizing prudent officers from performing their duties or overburdening them with extensive litigation. Rather than lamenting the dissolution of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics or the insurmountability of qualified immunity, reform …

21st Century Cures Act: The Problem With Preemption In Light Of Deregulation, Megan C. Andersen

University of Michigan Journal of Law Reform

The 21st Century Cures Act introduced innovative changes to the Food and Drug Administration’s regulatory processes. In an effort to address the slow, costly, and burdensome approval process for high-risk devices, the Cures Act modernized clinical trial data by allowing reviewers to determine whether devices merit expedited review and to consider post-market surveillance data in the premarket approval process. These changes will get life-saving devices to the people who need them faster than ever before. But the tradeoff is a greater risk of injury to the patient. The 2008 Supreme Court decision Riegel v. Medtronic, Inc., held that any …

Contracting On Litigation, Kathryn E. Spier, J.J. Prescott

Articles

Two risk-averse litigants with different subjective beliefs negotiate in the shadow of a pending trial. Through contingent contracts, the litigants can mitigate risk and/or speculate on the trial outcome. Contingent contracting decreases the settlement rate and increases the volume and costs of litigation. These contingent contracts mimic the services provided by third-party investors, including litigation funders and insurance companies. The litigants (weakly) prefer to contract with risk-neutral third parties when the capital market is transaction-cost free. However, contracting with third parties further decreases the settlement rate, increases the costs of litigation, and may increase the aggregate cost of risk bearing.

International Law And Political Philosophy: Uncovering New Linkages, Steven R. Ratner

Articles

The legal regime regulating cross-border investment gives key rights to foreign investors and places significant duties on states hosting that investment. It also raises distinctive moral questions due to its potential to constrain a state’s ability to manage its economy and protect its people. Yet international investment law remains virtually untouched as a subject of philosophical inquiry. The questions of international political morality surrounding investment rules can be mapped through the lens of two critiques of the law – that it systemically takes advantage of the global South and that it constrains the policy choices of states hosting investment. Each …

Google Llc V. Oracle America, Inc.: Brief Of 65 Intellectual Property Scholars As Amici Curiae In Support Of Petitioner, Jessica Litman

Appellate Briefs

Amici curiae are intellectual property scholars (listed in Appendix A) who are alarmed that the Federal Circuit's copyrightability ruling has deepened splits in circuit court interpretations of several major copyright doctrines as applied to computer programs. That ruling disrupted the relative equilibrium of more than two decades of software copyright precedents and upset settled expectations within the software industry. This Court's guidance is urgently needed to address and resolve circuit conflicts affecting this $564 billion industry? Amici's sole interest in this case lies in their concern for the proper application of traditional principles of copyright law to computer programs. Because …

Complete Distributive Rules And The Single Tax Principle: A Review Of Recent Italian Case Law, Reuven S. Avi-Yonah, Gianluca Mazzoni

Articles

The authors, in this article, examine the application of complete distributive rules as set out in various tax treaties as it relates to the single tax principle by reference to recent Italian case law.

On 11 October 2018, in Decision No. 25219, the Italian Corte Suprema di Cassazione (Supreme Court, CSC) confirmed that treaty provisions limiting the exercise of the domestic power to tax by the source state also apply where the residence state does not actually tax the relevant item of income. In that case, where a tax treaty attributes exclusive tax jurisdiction over an item of income to …

United States V. Haymond: Brief Of Social Science And Law Scholars As Amici Curiae In Support Of Respondent, J. J. Prescott

Appellate Briefs

Amici are eighteen scholars across six disciplines whose work includes the leading empirical studies of persons convicted of sexual offenses and the laws applied to them. The Appendix identifies them and describes their work.

Amici believe it critical that judicial decisions affecting constitutional rights be grounded on an accurate understanding of empirical realities. At the very least, they should not propagate misunderstandings. Unfortunately, such misunderstandings about the re-offense risk posed by people who have been convicted of sexual offenses are not only commonplace, but often traceable to language in early opinions of this Court. The Government invites the Court to …

Second Redemption, Third Reconstruction, Richard A. Primus

Articles

In The Accumulation of Advantages, the picture that Professor Owen Fiss paints about equality during and since the Second Reconstruction is largely a picture in black and white. That makes some sense. The black/white experience is probably the most important throughline in the story of equal protection. It was the central theme of both the First and Second Reconstructions. In keeping with that orientation, the picture of disadvantage described by Fiss’s theory of cumulative responsibility is largely drawn from the black/white experience. Important as it is, however, the black/white experience does not exhaust the subject of constitutional equality. So in …

Beps, Atap And The New Tax Dialogue: A Transatlantic Competition?, Reuven S. Avi-Yonah, Gianluca Mazzoni

Book Chapters

The Tax Cuts and Jobs Act (TRA17) signed into law by President Trump on 22 December 2017 contains multiple provisions that incorporate the principles of the OECD/G20 Base Erosion and Profit Shifting Action Plan (BEPS) into domestic US tax law. Together with the changes in the 2016 US Model Tax Treaty, 1 these provisions mean that the United States is following the European Union in implementing BEPS and particularly its underlying principle, the single tax principle (all income should be subject to tax once at the rate derived from the benefits principle, i.e., active income at a minimum source tax …

Introduction To Serials Cataloging With Rda, Steve Shadle, Alexis Zirpoli

Law Librarian Scholarship

This one-day pre-conference workshop, presented by Steve Shadle at NASIG 2018, was based on an abridged version of the Serials Cooperative Cataloging Training Program (SCCTP) Basic Serials Cataloging Workshop.1 Two sections of the workshop materials were omitted in order to complete the workshop in one day: Module 5 - Describing Carriers and Content, and Module 9 - Identifying Appropriate Copy. Module 10 - Working with Copy, was covered briefly. The overall goal of the workshop was to enable participants to catalog a “straightforward” print serial resource and to be able to understand elements of a serials cataloging record. The workshop …

How Many Copies Are Enough Revisited: Open Access Legal Scholarship In The Time Of Collection Budget Constraints, Kincaid C. Brown

Law Librarian Scholarship

This article discusses the results of a study into the open access availability of law reviews, followed by a discussion of why open access has such a high rate of adoption among law reviews, especially in comparison to the journal literature in other disciplines.

Properly Accounting For Domestic Violence In Child Custody Cases: An Evidence-Based Analysis And Reform Proposal, Debra Pogrund Stark, Jessica M. Choplin, Sarah Elizabeth Wellard

Michigan Journal of Gender & Law

Promoting the best interests of children and protecting their safety and well-being in the context of a divorce or parentage case where domestic violence has been alleged has become highly politicized and highly gendered. There are claims by fathers’ rights groups that mothers often falsely accuse fathers of domestic violence to alienate the fathers from their children and to improve their financial position. They also claim that children do better when fathers are equally involved in their children’s lives, but that judges favor mothers over fathers in custody cases. As a consequence, fathers’ rights groups have engaged in a nationwide …

Front Matter, Journal Of Law Reform

University of Michigan Journal of Law Reform

Front matter for Volume 52, Issue 2 of the University of Michigan Journal of Law Reform.

Cross-Listing, Corporate Governance And Private Securities Law Enforceinent In Taiwan, Thomas Yenshou Tsai

SJD Dissertations

The regulation of foreign listings have become an increasingly important issue. As issuers can now easily cross borders to gain access to foreign capital markets, jurisdictions have begun to work hard to entice foreign issuers to list on their exchanges. Especially for small markets such as Hong Kong and Taiwan, embracing foreign listings has become the inevitable route in order to boost their capital markets.

This Article is organized as follows: Part II provides an overview of the regulatory regimes of corporate governance for foreign issuers in the United States. and EU-namely, the United Kingdom and Germany, the EU's two …

Fiduciary Principles In Bankruptcy And Insolvency, John A. E. Pottow

Book Chapters

This chapter examines fiduciary duties in bankruptcy and insolvency, focusing on the bankruptcy trustee’s duties, which are triggered by virtue of appointment in a case. It first provides a background on bankruptcy law in order to elucidate the doctrines and rules affecting fiduciary responsibilities in bankruptcy, citing a number of relevant provisions in the Bankruptcy Code. It then considers the fiduciary, non-fiduciary, and anti-fiduciary obligations of the trustee under the Bankruptcy Code before discussing the fiduciary duties of care and loyalty. In particular, it highlights bankruptcy-related issues raised by the duty of loyalty with respect to secured creditors, priority unsecured …

Platform Procedure: Using Technology To Facilitate (Efficient) Civil Settlement., J.J. Prescott, Alexander Sanchez

Book Chapters

In this chapter, we explore the ability of courts to enhance the role of substantive law in case outcomes by reducing party litigation costs. When it becomes less costly for parties to engage actively in dispute resolution, the shadow of substantive law should, in theory, become more pronounced and case outcomes should change (and hopefully become more accurate/efficient on average). To empirically investigate this hypothesis, we examine the consequences of a large state court’s implementation of court-assisted online dispute resolution (ODR) tools for its small claims docket. A central goal of this technology is to reduce litigation costs of all …

Community Notification Policies, J.J. Prescott

Book Chapters

Community notification policies seek to prevent crime, raise awareness, or otherwise educate the public about criminal activity by requiring or permitting the police or other community actors to disseminate information to the public. Policies can focus on potential victims, potential offenders, the community at large, or some combination of these three. Victim-oriented policies seek to reduce the likelihood of victimization by encouraging precautionary behavior on the part of at-risk individuals. Offender-oriented policies publicize information (e.g., the severity of penalties or the likelihood of arrest) with the aim of deterring potential offenders from engaging in harmful activities. Community-oriented policies provide the …

Robot Criminals, Ying Hu

University of Michigan Journal of Law Reform

When a robot harms humans, are there any grounds for holding it criminally liable for its misconduct? Yes, provided that the robot is capable of making, acting on, and communicating the reasons behind its moral decisions. If such a robot fails to observe the minimum moral standards that society requires of it, labeling it as a criminal can effectively fulfill criminal law’s function of censuring wrongful conduct and alleviating the emotional harm that may be inflicted on human victims.

Imposing criminal liability on robots does not absolve robot manufacturers, trainers, or owners of their individual criminal liability. The former is …

Switching Employers In A Working World: American Immigrants And The Revocation Notice Problem, Julie Aust

University of Michigan Journal of Law Reform

A current tension in U.S. employment immigration law involves the notice requirements for prospective permanent residency—”green card”—applicants. Foreign workers oftentimes do not receive their green cards for more than ten years after beginning the permanent residency process. For almost four decades after the first major employment immigration legislation was passed in 1965, green card applicants were unable to change employers during this extremely long process without abandoning their applications. In 2000, Congress sought to remedy the problem by passing legislation allowing foreign workers to change employers without sacrificing progress on their green cards. This legislation, however, created a massive gap …

Constitutional Cohesion And The Right To Public Health, James G. Hodge Jr., Daniel Aaron, Haley R. Augur, Ashley Cheff, Joseph Daval, Drew Hensley

University of Michigan Journal of Law Reform

Despite years of significant legal improvements stemming from a renaissance in public health law, Americans still face major challenges and barriers in assuring their communal health. Reversals of legal reforms coupled with maligned policies and chronic underfunding contribute to diminished public health outcomes. Underlying preventable morbidity and mortality nationally are realities of our existing constitutional infrastructure. In essence, there is no general obligation of government to protect or promote the public’s health. Under principles of “constitutional cohesion,” structural facets and rights-based principles interwoven within the Constitution protect individuals and groups from governmental vices (i.e., oppression, overreaching, tyranny, and malfeasance). Structural …

The Syntax Of Sports, Class 1: The Words Under The Words, Patrick Barry

Books

The Syntax of Sports is that course you wish you took in college—even if you aren’t a sports fan. It’s interesting. It’s practical. It’s inspiring. And best of all, it teaches you a skill that is at once highly marketable and potentially transforming: how to become a better thinker and writer.

The beginning of a multi-volume series, this initial book recreates the first day of class as it was taught to undergraduates at the University of Michigan. The examples are compelling. The dialogue is fast moving. The stories are ones you’ll want to return to and retell over and over …

White Caller Crime: Racialized Police Communication And Existing While Black, Chan Tov Mcnamarah

Michigan Journal of Race and Law

Over the past year, reports to the police about Black persons engaged in innocuous behaviors have bombarded the American consciousness. What do we make of them? And, equally important, what are the consequences of such reports?

This Article is the first to argue that the recent spike in calls to the police against Black persons who are simply existing must be understood as a systematic phenomenon which it dubs racialized police communication. The label captures two related practices. First, racially motivated police reporting—calls, complaints, or reports made when Black persons are engaged in behavior that would not have been read …

Patents For Sharing, Toshiko Takenaka

Michigan Technology Law Review

Spurred by the Internet, emerging technologies have changed the way commercial firms innovate and have made it possible for individuals to play an important role in that innovation. Producers in the Information Communication Technologies (ICT), and other sectors dealing with complex technologies with many separately patentable components, find it increasingly difficult to make products without infringing on patents held by others. Numerous overlapping patents often cover such products. Producers have developed a new way to use patents: as inclusive rights for sharing their technologies with others through cross-licensing and other private ordering arrangements in order to ensure the freedom to …

Health Care Ai: Law, Regulation, And Policy., W. Nicholson Price Ii

Book Chapters

As discussed in previous chapters, artificial intelligence (AI) has the potential to be involved in almost all aspects of the health care industry. The legal landscape for health care AI is complex; AI systems with different intended uses, audiences, and use environments face different requirements at state, federal, and international levels. A full accounting of these legal requirements, or of the policy questions involved, is far beyond the scope of this chapter. Additionally, the legal and regulatory framework for AI in health care continues to evolve, given the nascent stage of the industry.

In this chapter, we offer an overview …

Introduction To The Symposium On Cyber Attribution, Monica Hakimi

Other Publications

This symposium explores some of the legal issues surrounding the attribution of cyber conduct to states. Relative to states' other activities, cyber conduct poses particularly thorny attribution challenges. States that engage in such conduct often use technology to obscure their identities or the full effects of their operations. The attribution challenges in turn raise difficult questions about how victim states should be allowed to respond—whether in kind, with other retorsions or countermeasures, with kinetic force, or by doing nothing at all. For example, how confident must a victim state be that it has correctly identified the source of the attack …

Privacy Preserving Social Norm Nudges, Yifat Nahmias

Michigan Technology Law Review

Nudges comprise a key component of the regulatory toolbox. Both the public and private sectors use nudges extensively in various domains, ranging from environmental regulation to health, food and financial regulation. This article focuses on a particular type of nudge: social norm nudges. It discusses, for the first time, the privacy risks of such nudges. Social norm nudges induce behavioral change by capitalizing on people’s desire to fit in with others, on their predisposition to social conformity, and on their susceptibility to the way information is framed. In order to design effective social norm nudges, personal information about individuals and …

The Deterrence Case For Comprehensive Automaker Enterprise Liability, Kyle D. Logue

Journal of Law and Mobility

This Article lays out the potential (at this point purely theoretical) deterrence benefits of replacing our current auto tort regime (including auto products liability law, driver-based negligence claims, and auto no-fault regimes) with a single, comprehensive automaker enterprise liability system. This new regime would apply not only to Level 5 vehicles, but to all automobiles made and sold to be driven on public roads. Because such a system would make automakers unconditionally responsible for the economic losses resulting from any crashes of their vehicles, it would in effect make automakers into auto insurers as well, although such a change will …

Policing, Danger Narratives, And Routine Traffic Stops, Jordan Blair Woods

Michigan Law Review

This Article presents findings from the largest and most comprehensive study to date on violence against the police during traffic stops. Every year, police officers conduct tens of millions of traffic stops. Many of these stops are entirely unremarkable—so much so that they may be fairly described as routine. Nonetheless, the narrative that routine traffic stops are fraught with grave and unpredictable danger to the police permeates police training and animates Fourth Amendment doctrine. This Article challenges this dominant danger narrative and its centrality within key institutions that regulate the police.

The presented study is the first to offer an …

Moral Diversity And Efficient Breach, Matthew A. Seligman

Michigan Law Review

Most people think it is morally wrong to breach a contract. But sophisticated commercial parties, like large corporations, have no objection to breaching contracts and paying the price in damages when doing so is in their self-interest. The literature has ignored the profound legal, economic, and normative implications of that asymmetry between individuals’ and firms’ approaches to breach. To individuals, a contract is a promise that cannot be broken regardless of the financial stakes. For example, millions of homeowners refused to breach their mortgage contracts in the aftermath of the housing crisis even though doing so could have saved them …