Digital Commons Network^™

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.

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.

Stanley Surrey, The 1981 Us Model, And The Single Tax Principle, Reuven S. Avi-Yonah, Gianluca Mazzoni

Law & Economics Working Papers

2021 marks the 40th anniversary of the 1981 U.S. Model Tax Treaty as well as the 5th anniversary of the 2016 US Model Tax Treaty. The first author has repeatedly argued that the 1981 Model gave life to the single tax principle (“STP”). The 2016 Model updates effectively implemented the principle that cross-border income should be taxed once – that is not more and but also not less than once. For example, the 2016 Model does not reduce withholding taxes on payments of highly mobile income that are made to related persons that enjoy low or no taxation with respect …

Using Random Assignment To Measure Court Accessibility For Low-Income Divorce Seekers, James D. Greiner, Ellen L. Degnan, Thomas Ferriss, Roseanna Sommers

Articles

We conducted a field experiment in which 311 low-income individuals seeking a divorce were randomly assigned to receive access to a pro bono lawyer (versus minimal help) to assist with filing for divorce. Examining court records, we found that assignment to an attorney made a large difference in whether participants filed for and obtained a divorce. Three years after randomization, 46% of the treated group had terminated their marriages in the proper legal venue, compared to 9% of the control group. Among “compliers”—participants who obtained representation only if assigned to receive it—those with lawyers were far more likely to file …

Rebellion, Rascals, And Revenue: Pleasingly Gaudy And Preposterous, Reuven S. Avi-Yonah

Law & Economics Working Papers

Michael Keen and Joel Slemrod’s REBELLION, RASCALS AND REVENUE: TAX FOLLIES AND WISDOM THROUGH THE AGES (Princeton University Press, 2021) is a wonderful book, which should be read by any student of taxation. To most tax policy makers and academics, tax history may seem a bit arcane, because they believe that the study of taxation and especially public finance economics is a story of progress and that we know better how to design good tax systems than our ancestors. To this attitude, Keen and Slemrod offer a decisive rejoinder: We do not necessarily understand taxation better than our predecessors, and …

Tax Treaties, The Constitution, And The Noncompulsory Payment Rule, Reuven S. Avi-Yonah

Law & Economics Working Papers

US Tax treaties have been regarded as self-executing since the first treaty (with France) was ratified in 1932. Rebecca Kysar has argued this raises a doubt on whether the treaties are constitutional, because tax treaties (like other treaties) are negotiated by the executive branch and ratified by the Senate with no involvement by the House, and all tax-raising measures must originate in the House under the Origination Clause (U.S. Const. Art I, section 7, clause 7). Her preferred solution is to make tax treaties non-self executing, but that would reverse the universal practice since 1932, and is therefore unlikely. Moreover, …

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 …

Problematic Interactions Between Ai And Health Privacy, W. Nicholson Price Ii

Law & Economics Working Papers

The interaction of artificial intelligence (“AI”) and health privacy is a two-way street. Both directions are problematic. This Article makes two main points. First, the advent of artificial intelligence weakens the legal protections for health privacy by rendering deidentification less reliable and by inferring health information from unprotected data sources. Second, the legal rules that protect health privacy nonetheless detrimentally impact the development of AI used in the health system by introducing multiple sources of bias: collection and sharing of data by a small set of entities, the process of data collection while following privacy rules, and the use of …

Reforming Michigan Vehicle Direct Sales Laws, Daniel A. Crane

Law & Economics Working Papers

Michigan stands at a crossroads with respect to the way that electrical vehicles (“EVs”) are sold and serviced. For many decades, Michigan—like many other states—mandated that cars could be sold and serviced only through independent, franchised dealers and prohibited car manufacturers from selling or servicing directly. Historically, those laws were put in place to protect dealers from the superior bargaining power, and sometimes unfair practices, of the Big Three car companies—General Motors (“GM”), Ford, and Chrysler. With the advent of EV technology, it became clear that these decades-old restrictions on direct sales and servicing needed to be reconsidered. Tesla, the …

The Rights Of Refugees Under International Law, James C. Hathaway

Book Chapters

The universal rights of refugees are today derived from two primary sources - general standards of international human rights law, and the Refugee Convention itself. As the analysis in Chapter 1 makes clear, the obligations derived from the Refugee Convention remain highly relevant, despite the development since 1951 of a broad-ranging system of international human rights law. In particular, general human rights norms do not address many refugee-specific concerns; general economic rights are defined as duties of progressive implementation and may legitimately be denied to non-citizens by less developed countries; not all civil rights are guaranteed to non-citizens, and most …

The Moral Ambiguity Of Public Prosecution, Gabriel S. Mendlow

Articles

Classic crimes like theft and assault are in the first instance wrongs against individuals, not against the state or the polity that it represents. Yet our legal system denies crime victims the right to initiate or intervene in the criminal process, relegating them to the roles of witness or bystander—even as the system treats prosecution as an institutional analog of the interpersonal processes of moral blame and accountability, which give pride of place to those most directly wronged. Public prosecution reigns supreme, with the state claiming primary and exclusive moral standing to call offenders to account for their wrongs. Although …

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 Aggravating Duty Of Non-Aggravation, Steven R. Ratner

Articles

International law's duty of non-aggravation requires states to avoid actions that might inflame an international dispute, both to maintain international peace and to preserve the effectiveness of judicial or arbitral proceedings. Yet parties on the receiving end of calls for non-aggravation --whether from the Security Council or at tribunal -- have little idea of what conduct they are expected to avoid. This state of affairs is most unfortunate in light of the centrality of this norm to the peaceful resolution of disputes and, in particular, examples of seemingly provocative and aggravating acts in recent years. This article attempts to give …

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 …

Delegation At The Founding, Julian Davis Mortenson, Nicholas Bagley

Articles

This article refutes the claim that the Constitution was originally understood to contain a nondelegation doctrine. The founding generation didn’t share anything remotely approaching a belief that the constitutional settlement imposed restrictions on the delegation of legislative power---let alone by empowering the judiciary to police legalized limits. To the contrary, the overwhelming majority of Founders didn’t see anything wrong with delegations as a matter of legal theory. The formal account just wasn’t that complicated: Any particular use of coercive rulemaking authority could readily be characterized as the exercise of either executive or legislative power, and was thus formally valid regardless …

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 …

Symposium: Diamond Anniversary: 75 Years Of The Lanham Act, Jessica Litman

Articles

Thank you so much for inviting me. I think this is my fifth or sixth event with the Arts and Entertainment Law Journal. It’s always lots of fun, and I learn a lot. I’ve been spending the last couple of months doing a deep dive into everything Edward Sidney Rogers with no real agenda. I’m exploring what’s there, to see if there are any interesting stories I might tell. I found a few, so this afternoon I’ll tell one of them. I want to start with the mundane observation that intellectual prop-erty and intellectual property law are global. We’ve seen …

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 119, Issue 5 of Michigan Law Review

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 …

Affirmative Inaction: A Quantitative Analysis Of Progress Toward “Critical Mass” In U.S. Legal Education, Loren M. Lee

Michigan Law Review

Since 1978, the Supreme Court has recognized diversity as a compelling government interest to uphold the use of affirmative action in higher education. Yet the constitutionality of the practice has been challenged many times. In Grutter v. Bollinger, for example, the Court denied its use in perpetuity and suggested a twenty-five-year time limit for its application in law school admissions. Almost two decades have passed, so where do we stand? This Note’s quantitative analysis of the matriculation of and degrees awarded to Black and Latinx students at twenty-nine accredited law schools across the United States illuminates a stark lack of …

The Liar’S Mark: Character And Forfeiture In Federal Rule Of Evidence 609(A)(2), Jesse Schupack

Michigan Law Review

Rule 609(a)(2) of the Federal Rules of Evidence is an outlier. The Rule mandates admission of impeaching evidence of a witness’s past convictions for crimes of dishonesty. It is the only place in the Rules where judges are denied their usual discretion to exclude evidence on the grounds that its admission would be more prejudicial than probative. This Note analyzes three assumptions underlying this unusual Rule: (1) that there is a coherently definable category of crimes of dishonesty, (2) that convictions for crimes of dishonesty are uniquely probative of a person’s character, and (3) that an assessment of moral character …

Federalizing Tax Justice, Reuven Avi-Yonah, Orli Avi-Yonah, Nir Fishbien, Hayian Xu

Articles

The United States is the only large federal country that does not have an explicit way to reduce the economic disparities among more and less developed regions. In Germany, for example, federal revenues are distributed by a formula that takes into account the relative level of wealth of each state (the so-called Finanzausgleich, or fiscal equalization). Similar mechanisms are found in Australia, Canada, India, and other large federal countries. The United States, on the other hand, has no such explicit redistribution. Each state is generally considered equal and sovereign, and the federal government does not distribute revenues to equalize …

New Innovation Models In Medical Ai, Nicholson Price Ii, Rachel Sachs, Rebecca S. Eisenberg

Law & Economics Working Papers

In recent years, scientists and researchers have devoted considerable resources to developing medical artificial intelligence (AI) technologies. Many of these technologies—particularly those which resemble traditional medical devices in their functions—have received substantial attention in the legal and policy literature. But other types of novel AI technologies, such as those that relate to quality improvement and optimizing use of scarce facilities, have been largely absent from the discussion thus far. These AI innovations have the potential to shed light on important aspects of health innovation policy. First, these AI innovations interact less with the legal regimes that scholars traditionally conceive of …

Is New York's Market-To-Market Act Unconstitutionally Retroactive?, Reuven S. Avi-Yonah, David Gamage, Darien Shanske, Kirk J. Stark

Articles

In this installment of Academic Perspectives on SALT, the authors argue that if New York’s proposed Billionaire Mark-to-Market Tax Act is enacted, it should be upheld against any constitutional challenge based on retroactivity.

Is Gilti Constitutional?, Reuven S. Avi-Yonah

Law & Economics Working Papers

In this article, Avi-Yonah argues that the global intangible low-taxed income regime may be an unconstitutional attempt to tax the foreign-source income of foreign entities, and he offers an alternative.

Equity Market Structure Regulation: Time To Start Over, Paul G. Mahoney

Michigan Business & Entrepreneurial Law Review

Over the past half-century, the U.S. Securities and Exchange Commission (SEC)’s regulations have become key determinants of the way in which stocks trade and the fees that exchanges charge for their services. The current equity market structure rules are contained primarily in the SEC’s Regulation NMS. The theory behind Regulation NMS is that a system of dispersed markets operating pursuant to SEC-mandated information and order routing links will provide the benefits of consolidation and competition simultaneously.

This article argues that Regulation NMS has failed in that quest. It has produced fragmented markets and created questionable incentives for market participants, possibly …

The Intersection Of Wrongful Convictions And Gender In Cases Where Women Were Sentenced To Death Or Life In Prison Without Parole, Connor F. Lang

Michigan Journal of Gender & Law

This Note examines National Registry of Exonerations data and discusses the prevalence of false confessions and presence of a child victim in cases of women who were convicted of murder, received a serious sentence, and were later exonerated. After looking at the cases of women exonerated after receiving death sentences or life without parole sentences in light of the prevalence of these factors, this Note argues that examination of the cases reveals that the presence of a false confession or a child victim may have contributed to some of the wrongful convictions where these factors may have led to the …