Digital Commons Network^™

Clearing Opacity Through Machine Learning, W. Nicholson Price Ii, Arti K. Rai

Articles

Artificial intelligence and machine learning represent powerful tools in many fields, ranging from criminal justice to human biology to climate change. Part of the power of these tools arises from their ability to make predictions and glean useful information about complex real-world systems without the need to understand the workings of those systems.

Judges Behaving Badly . . . Then Slinking Away, Maureen Carroll

Reviews

A federal judge is accused of misconduct and an investigation begins. Before the investigation has concluded, though, the judge leaves her post. What happens next? Does it create an accountability gap, and if so, how much should that concern us? These are the questions that Veronica Root Martinez takes up in Avoiding Judicial Discipline.

Symmetry And (Network) Neutrality, Tejas N. Narechania

Michigan Law Review Online

In this short Essay, I take the opportunity to highlight one further potential asymmetry that may yet emerge from the Supreme Court’s application of Chevron’s many doctrines. Drawing on then-Judge Kavanaugh’s disdissental from the D.C. Circuit’s decision affirming network neutrality rules, I suggest that there is at least one vote on the Supreme Court—and perhaps more—for an asymmetric approach to the major questions doctrine. Moreover, I demonstrate how asymmetry in this context is deeply irrational. As applied to network neutrality, the asymmetry has at least one of two effects. One, it might simply favor one large industry over another, …

Feigned Consensus: Usurping The Law In Shaken Baby Syndrome/Abusive Head Trauma Prosecutions, Keith A. Findley, D. Michael Risinger, Patrick D. Barnes, Julie A. Mack, David A. Moran, Barry C. Scheck, Thomas L. Bohan

Articles

Few medico-legal matters have generated as much controversy--both in the medical literature and in the courtroom--as Shaken Baby Syndrome (SBS), now known more broadly as Abusive Head Trauma (AHT). The controversies are of enormous significance in the law because child abuse pediatricians claim, on the basis of a few non-specific medical findings supported by a weak and methodologically flawed research base, to be able to “diagnose” child abuse, and thereby to provide all of the evidence necessary to satisfy all of the legal elements for criminal prosecution (or removal of children from their parents). It is a matter, therefore, in …

Coca-Cola: A Decisive Irs Transferpricing Victory, At Last, Reuven S. Avi-Yonah, Gianluca Mazzoni

Articles

In this article, Avi-Yonah and Mazzoni examine the Tax Court’s decision in Coca-Cola, the first decisive IRS victory in a major transfer pricing case since 1979.

Taxes As Pandemic Controls, Ashley C. Craig, James R. Hines Jr.

Articles

Tax policy can play important roles in limiting the spread of communicable disease and in managing the economic fallout of a pandemic. Taxes on business activities that bring workers or customers into close contact with each other offer efficient alternatives to broad regulatory measures, such as shutdowns, that have been effective but enormously costly. Corrective taxation also helps raise the revenue required to cover elevated government expenditure during a pandemic. Moreover, the restricted consumer choice that accompanies a pandemic reduces the welfare cost of raising tax revenue from higher-income taxpayers, making it a good time for deficit closure. Current U.S. …

Front Matter, Michigan Law Review

Michigan Law Review

Front matter for Volume 119, Issue 3 of the Michigan Law Review.

Restoring The Power Of The Convening Authority To Adjust Sentences, Jacob R. Weaver

Michigan Law Review

In 2013, Congress abrogated the power of certain military officers to reduce court-martial sentences, thereby eliminating a military defendant’s best hope for efficient and effective relief from common legal errors in the military justice system. While the overhaul of the Uniform Code of Military Justice (UCMJ) in 2016 promised significant reform, it ultimately failed to substantially reduce common legal errors. This Note analyzes how the 2013 and 2016 reforms have combined to prevent military defendants from receiving timely and adequate relief. In light of this analysis, this Note suggests an amendment to the UCMJ that would restore to certain officers …

The Relationship Between Social Innovation And Active Mobility Public Services, Silvia Stuchi Cruz, Sonia Paulino

Journal of Law and Mobility

This article aims to discuss the relationship between social innovation and public services on active mobility. Two active mobility initiatives are considered in the city of São Paulo, and analyzed based on 11 variables that characterize social innovation. Through the mapping of recent Brazilian regulatory frameworks for active mobility and a low-carbon economy, we can propose the following relationship: the more local (municipal) the public policy, the greater its social influence and participation. However, despite the advances indicated by both experiences of active mobility analyzed (highlighting the role of organized civil society), and by the progress in the regulatory framework, …

Overcoming Political Polarization: Federal Funding Of Education Is The Key, Reuven S. Avi-Yonah

Law & Economics Working Papers

The best way of overcoming political polarization in the US (the last two elections were both decided by fewer than 100,000 votes in WI, MI, PA (2016) and WI, AZ, GA (2020)) is to reduce disparities in education. But how can we do that?

The basic problem arises from the US system of funding K-12 education from property taxes. While the picture above refers to college education, it is K-12 education that determines both college admissions and college readiness.

Thus, the only viable solution is a federal solution. As President Nixon proposed in 1972, the United States should adopt an …

Overcoming Political Polarization: Federal Funding Of Education Is The Key, Reuven S. Avi-Yonah

Law & Economics Working Papers

The best way of overcoming political polarization in the US (the last two elections were both decided by fewer than 100,000 votes in WI, MI, PA (2016) and WI, AZ, GA (2020)) is to reduce disparities in education. But how can we do that? The basic problem arises from the US system of funding K-12 education from property taxes. While the picture above refers to college education, it is K-12 education that determines both college admissions and college readiness. Thus, the only viable solution is a federal solution. As President Nixon proposed in 1972, the United States should adopt an …

The American Law Of Overruling Necessity: The Exceptional Origins Of State Police Power, William J. Novak

Book Chapters

One of the most significant legal-constitutional moments in the history of the American republic occurred in the Confederation Congress on September 26 and 27, 1787. On those dates, the handiwork of the historic Constitutional Convention in Philadelphia was now "laid before the United States in Congress assembled." And the momentous question for the extant official lawmaking body of the US government was what to do next. Under Article 1 3 of the Articles of Confederation, any alteration of the articles had to be agreed to by Congress and confirmed by the legislatures of every state. Notably, the Philadelphia convention had …

Pham V. Chavez: Brief Of Amici Curiae Human Rights First And International Law Scholars In Support Of Respondent, James C. Hathaway

Appellate Briefs

Introduction and Summary of Argument: This amicus brief addresses the obligation of U.S. courts to construe federal statutes, including the Immigration and Nationality Act (“INA”), in a manner consistent with the nation’s obligations under binding international treaties. This has been an established canon of statutory construction since Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64 (1804). Applying that canon here, this Court should avoid an interpretation of the INA that allows for detention without a prompt individualized determination by a court, independent of the detaining authorities and capable of ordering release, that detention is reasonable, …

Incorporating Social Science Into Criminal Defense Practice, Eve Brensike Primus

Articles

In recent decades, social scientists have created a treasure trove of empirical and sociological data that defenders can and should use to help their clients. Evidence rules, criminal law, and criminal procedure are filled with concepts informed by social science. When is evidence likely to unfairly prejudice a defendant in the eyes of a jury? Do police interact differently with members of minority populations and how should that inform concepts of reasonableness? How easy or difficult is it for people to identify individuals they see during high-stress criminal episodes? How effective are police interrogation tactics at getting at the truth …

The Behavioral Effects Of (Unenforceable) Contracts, Evan Starr, Jj Prescott, Norman Bishara

Articles

Do contracts influence behavior independent of the law governing their enforceability? We explore this question in the context of employment noncompetes using nationally representative data for 11,500 labor force participants. We show that noncompetes are associated with reductions in employee mobility and changes in the direction of that mobility (i.e., toward noncompetitors) in both states that do and do not enforce noncompetes. Decomposing mobility into job offer generation and acceptance, we detect no evidence of differences in job search, recruitment, or offer activity associated with noncompetes. Rather, we find that employees with noncompetes—even in states that do not enforce them—frequently …

Towards An Urban Disability Agenda, Samuel R. Bagenstos

Articles

The overwhelming majority of Americans with disabilities live in metropolitan areas. Yet those areas continue to contain significant barriers that keep disabled people from fully participating in city life. Although political and social debate has periodically turned its attention to urban issues or problems — or even the so-called “urban crisis” — during the past several decades, it has too rarely attended to the issues of disability access. When political debate has focused on disability issues, it has tended to address them in a nationally uniform way, without paying attention to the particular concerns of disabled people in cities. Even …

Front Matter, Michigan Law Review

Michigan Law Review

Front matter for Volume 119, Issue 2 of the Michigan Law Review.

Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang

Michigan Law Review

This Article draws on novel data and presents the results of the first empirical analysis of how potentially salient characteristics of Court of Appeals judges influence class certification under Rule 23 of the Federal Rules of Civil Procedure. We find that the ideological composition of the panel (measured by the party of the appointing president) has a very strong association with certification outcomes, with all-Democratic panels having dramatically higher rates of procertification outcomes than all-Republican panels—nearly triple in about the past twenty years. We also find that the presence of one African American on a panel, and the presence of …

Arbitration Waiver And Prejudice, Timothy Leake

Michigan Law Review

Arbitration agreements are common in commercial and consumer contracts. But two parties can litigate an arbitrable dispute in court if neither party seeks arbitration. That presents a problem if one party changes its mind and invokes its arbitration rights months or years after the lawsuit was filed and substantial litigation activity has taken place. Federal and state courts agree that a party can waive its arbitration rights by engaging in sufficient litigation activity without seeking arbitration, but they take different approaches to deciding how much litigation is too much. Two basic methods exist. Some courts say waiver requires the party …

Equal Protection Under Algorithms: A New Statistical And Legal Framework, Crystal S. Yang, Will Dobbie

Michigan Law Review

In this Article, we provide a new statistical and legal framework to understand the legality and fairness of predictive algorithms under the Equal Protection Clause. We begin by reviewing the main legal concerns regarding the use of protected characteristics such as race and the correlates of protected characteristics such as criminal history. The use of race and nonrace correlates in predictive algorithms generates direct and proxy effects of race, respectively, that can lead to racial disparities that many view as unwarranted and discriminatory. These effects have led to the mainstream legal consensus that the use of race and nonrace correlates …

Possible Reliance: Protecting Legally Innocent Johnson Claimants, Keagan Potts

Michigan Law Review

The writ of habeas corpus presents the last chance for innocent defendants to obtain relief from invalid convictions and sentences. The writ constitutes a limited exception to the finality of judgments. Given the role finality plays in conserving judicial resources and deterring criminal conduct, exceptions created by habeas must be principally circumscribed. Since the Supreme Court’s invalidation of the Armed Career Criminal Act’s residual clause in Johnson v. United States, the federal courts of appeals have attempted to develop a test that protects the writ from abuse by Johnson claimants.

This Note first contributes a new understanding of the …

Recovery For Causing Tax Overpayment - Lyeth V. Hoey And Clark Revisited, Douglas A. Kahn, Jeffrey H. Kahn

Law & Economics Working Papers

The question has arisen in numerous cases as to the extent to which a settlement between arms’ length parties is dispositive in tax cases of the claims on which the settlement is based. Another issue that often arises is whether the receipt of compensation for a tax payment that was incurred because of the negligence of the payor is excluded from gross income. While those two issues were central to the proper resolution of a recent case in the United States Court of Appeals for the Eleventh Circuit, McKenny v. United States, the court failed even to note one of …

Recovery For Causing Tax Overpayment - Lyeth V. Hoey And Clark Revisited, Douglas A. Kahn, Jeffrey H. Kahn

Law & Economics Working Papers

The question has arisen in numerous cases as to the extent to which a settlement between arms’ length parties is dispositive in tax cases of the claims on which the settlement is based. Another issue that often arises is whether the receipt of compensation for a tax payment that was incurred because of the negligence of the payor is excluded from gross income. While those two issues were central to the proper resolution of a recent case in the United States Court of Appeals for the Eleventh Circuit, McKenny v. United States, the court failed even to note one of …

Lin-Manuel Miranda And The Future Of Originalism, Richard A. Primus

Book Chapters

This chapter discusses how Lin Manuel Miranda's Hamilton: An American Musical is changing the future of originalism. Originalism in constitutional law has recently had a generally conservative valence not because the Founders were an eighteenth-century version of the Federalist Society, but because readings of Founding era sources that favored right-leaning causes were generally predominant in the community of constitutional lawyers. Since 2015, however, the millions of Americans who have listened obsessively to Hamilton's cast album or packed theaters to see the show in person have been absorbing a new vision of the Founding. The blockbuster musical narrative has retold America's …

The Integrative Effects Of Global Legal Pluralism, Monica Hakimi

Book Chapters

International lawyers widely understand that legal pluralism is a fact of global life and that it can, in certain settings, be desirable. But many still approach it with some trepidation. A prominent skeptical claim is that pluralist structures lack the integrative resources that unify people around a shared governance project. This claim has been prominent with respect to two kinds of conflicts that are routine in international law: (1) conflicts that play out within a single international legal arrangement, and (2) conflicts that cut across multiple legal arrangements. For both, the skeptical claim is directed at the pluralist structure itself. …

Lochner Lives On, Samuel Bagenstos

Other Publications

Samuel Bagenstos, University of Michigan In the early 20th century (the “Lochner era”), courts invalidated numerous labor and employment laws for violating a supposed constitutional “freedom of contract.” The Lochner-era decisions rested on a key premise—that workers and employers were equally free to enter into bargains, or not enter into bargains, with each other. Most lawyers think that the courts killed off Lochner during the New Deal. But Lochner’s principles have persisted—not in constitutional law, but in the law of labor and employment. Key foundational doctrines of labor and employment law continue to rest on the premise of equal bargaining …

Do Lawyers Need Economists? Review Of Katja Langenbucher, Economic Transplants: On Lawmaking For Corporations And Capital Markets (Cambridge U. Press, 2017), Reuven S. Avi-Yonah

Law & Economics Working Papers

Katja Langenbucher’s outstanding book seeks to address the question of why and in what ways have lawyers been importing economic theories into a legal environment, and how has this shaped scholarly research, judicial and legislative work? Since the financial crisis, corporate or capital markets law has been the focus of attention by academia and media. Formal modelling has been used to describe how capital markets work and, later, has been criticized for its abstract assumptions. Empirical legal studies and regulatory impact assessments offered different ways forward. This excellent book presents a new approach to the risks and benefits of interdisciplinary …

Eight Months Later, Ellen D. Katz

Reviews

Rick Hasen’s Election Meltdown provides a concise and scathing analysis of what ails the American electoral process. Rick identifies four “principal dangers”—namely, voter suppression, “pockets of incompetence” in election administration, “dirty tricks,” and “incendiary rhetoric” about stolen or rigged elections. He argues that these dangers have contributed to past dysfunctional elections and are sure to infect future ones. Election Meltdown closes with some proposals to temper the identified dangers so as to make voting less difficult and restore confidence in the electoral process.

2020 Fall Class Schedule, University Of Michigan Law School

Class Schedules

Class schedule for the 2020 Fall semester at the University of Michigan Law School

The Sacred Fourth Amendment Text, Christopher Slobogin

Michigan Law Review Online

The Supreme Court’s jurisprudence governing the Fourth Amendment’s “threshold”—a word meant to refer to the types of police actions that trigger the amendment’s warrant and reasonableness requirements—has confounded scholars and students alike since Katz v. United States. Before that 1967 decision, the Court’s decisions on the topic were fairly straightforward, based primarily on whether the police trespassed on the target’s property or property over which the target had control. After that decision—which has come to stand for the proposition that a Fourth Amendment search occurs if police infringe an expectation of privacy that society is prepared to recognize as …