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Symbolism And The Thirteenth Amendment: The Injury Of Exposure To Governmentally Endorsed Symbols Of Racial Superiority, Edward H. Kyle

Michigan Journal of Race and Law

One of the debates often encountered by native southerners centers around our historical symbols. There are heated opinions on both sides of the issue as to what these symbols mean and whether they should be allowed to be displayed. The latter question has begun making its way into the courts, with many southern symbols and memorials being accused of promoting the philosophy of racial supremacy. Despite the growing public concern, modern courts refuse to rule on the question. They claim they are forestalled by Article III’s standing requirement that plaintiffs must have suffered a concrete injury in fact. They state …

Cross-Border Corporate Insolvency In The Era Of Soft(Ish) Law, John A.E. Pottow

Book Chapters

Insolvency law (bankruptcy law to some) moves so quickly in the cross-border realm that this piece's discussion, started in 2015, is probably already outdated. Nonetheless, I publish it unrepentantly because it turns overdue attention to the role of soft law in this domain. Building on earlier work in which I address the role of incrementalism, I discuss the marked success of the UNCITRAL Model Law on Cross-Border Insolvency and its cognate Insolvency Regulation in the EU (the latter now into its "Recast"). As predicted/hoped, the EU Recast, joining other contemporaneous reform projects, is building upon the scaffolding of legal doctrines …

The Urbanization Of International Law And International Relations: The Rising Soft Power Of Cities In Global Governance, Chrystie Swiney

Michigan Journal of International Law

This article examines the rising influence of cities in global governance and on international law, despite the existing international legal and political framework, which is designed to exclude them. It explores the various strategies and tools utilized by city leaders to leapfrog over their national counterparts in order to autonomously access the international policymaking and law-making world. These include (1) coalescing together to form large networks, which engage in city or “glocal” diplomacy; (2) allying with well-connected and well-resourced international organizations; (3) gaining inclusion in UN multilateral agendas; (4) mirroring state-based coalitions and their high-profile events; (5) harnessing the language …

Senior Day December 2019, University Of Michigan Law School

Commencement and Honors Materials

Program for the December 20, 2019 Senior Day ceremonies.

Select Criminal Law And Procedure Cases From The U.S. Supreme Court's 2018-2019 Term, Eve Brensike Primus, Kristin Froehle

Articles

Although the 2018-19 Term at the Supreme Court did not include any blockbuster rulings like Carpenter v. United States, the Court issued a number of significant criminal law and procedure rulings. It addressed warrantless blood-alcohol testing, the dual-sovereignty doctrine, the right to trial by jury, ineffective assistance of trial counsel, questions of incorporation, prisoners' competence to be executed, permissible methods of execution, and some important statutory interpretation questions. Looking back on the Term, Justice Gorsuch clearly solidified his position as the libertarian "swing" vote in criminal procedure cases. He joined the liberals to uphold a defendant's right to trial …

A U.S. Dst? The Potential Impact Of The Cloud Regulations, Reuven Avi-Yonah, Karen Sam

Articles

In this article, the authors explain how the recently proposed U.S. cloud computing regulations would apply to U.S. and foreign providers, and consider the potential consequences if the rule for permanent establishments and U.S. trades or businesses changes in 2020.

Of Bodies Politic And Pecuniary: A Brief History Of Corporate Purpose, David B. Guenther

Law & Economics Working Papers

American corporate law has long drawn a bright line between for-profit and non-profit corporations. In recent years, hybrid or social enterprises have increasingly put this bright-line distinction to the test. This Article asks what we can learn about the purpose of the American business corporation by examining its history and development in the United States in its formative period from roughly 1780-1860. This brief history of corporate purpose suggests that the duty to maximize profits in the for-profit corporation is a relatively recent development. Historically, the American business corporation grew out of an earlier form of corporation that was neither …

June Medical Services L.L.C. V. Gee: Brief For Constitutional Law Scholars Ashutosh Bhagwat, Lee C. Bollinger, Erwin Chemerinsky, Michael C. Dorf, Daniel Farber, Joanna L. Grossman, Pamela S. Karlan, Leah Litman, Martha Minow, Jane S. Schacter, Suzanna Sherry, Geoffrey R. Stone, David A. Strauss, Laurence H. Tribe, And Mary Ziegler As Amici Curiae Supporting Petitioners, Leah Litman

Appellate Briefs

Amici are constitutional law scholars who teach and write in the field of constitutional law, including as it relates to regulation of abortion, and who have a shared interest in identifying the proper standards of review. This brief sets forth Amici's considered understanding of the framework governing abortion regulation, as established by the decisions of this Court, and how to preserve the undue burden test as established in this Court's precedents over the last two decades. It also explains why the decision below, if permitted to stand, would threaten the uniformity and supremacy of federal law.

Louisiana's Act 620 requires …

Progressive Textualism In Administrative Law, Kathryn E. Kovacs

Michigan Law Review Online

Nicholas Bagley’s article The Procedure Fetish is destined to be a classic. In it, Bagley systematically dismantles administrative law’s obsession with procedure. He decimates the arguments that procedure is necessary to legit-imize the administrative state and avoid agency capture. He nullifies the con-tention that administrative law is neutral by showing how proceduralism inhibits regulation and “favors a libertarian agenda over a progressive one.” Bagley urges progressives to abandon “gauzy claims about legitimacy and accountability” and approach procedure with skepticism.

The Procedure Fetish addresses the normative question of what adminis-trative law ought to require. Bagley writes about how progressives should solve …

Front Matter, Michigan Law Review

Michigan Law Review

Front matter for Volume 118, Issue 3 of the Michigan Law Review.

Resources For Special Education Advocacy, Virginia A. Neisler

Law Librarian Scholarship

The CDC reports that approximately 1 in 6 children in the United States has a developmental disability.1 Certain types of developmental disabilities are becoming rapidly more prevalent, with autism spectrum disorder affecting 1 in 59 children in 2014 (as compared to 1 in 150 as recently as 2002).2 From 1997 to 2008, all incidences of developmental disabilities in children in the United States increased in prevalence by more than 17 percent.3 This represents a significant part of our population and in recent decades has given rise to a complex system of legal rights and protections for developmentally disabled children that …

Prenatal Drug Exposure As Aggravated Circumstances, Frank E. Vandervort

Articles

In Michigan, "a child has a legal right to begin life with sound mind and body." Yet the family court may not assert Juvenile Code jurisdiction until after birth. In re Baby X addressed the question of whether a parent's prenatal conduct may form the basis for jurisdiction upon birth. It held that a mother's drug use during pregnancy is neglect, allowing the court to assert jurisdiction immediately upon the child's birth. In deciding Baby X, the Court specifically reserved the question of whether parental drug use during pregnancy might be sufficient to permanently deprive a parent of custody. …

Front Matter, Michigan Law Review

Michigan Law Review

Front matter for Volume 118, Issue 2 of the Michigan Law Review.

Georgia V. Public.Resource.Org, Inc.: Brief Of Amici Curiae Law Professors Nina Mendelson, Alan Morrison, Anne Joseph O'Connell, And Peter Strauss In Support Of Respondent, Nina A. Mendelson

Appellate Briefs

Amici are professors of administrative law with particular expertise in government transparency, including issues such as the incorporation by reference of private standards into over 9,000 federal regulations. Amici have a strong interest in the development of administrative and copyright law in a manner that enables simple and universal access without charge to regulatory law. As scholars of federal incorporation by reference of private standards, amici write separately to urge the Court to reaffirm the application of the government edicts doctrine to all text that a government has adopted as the law. In particular, the government edicts doctrine applies to …

Central Bank Of The Future, University Of Michigan Law School

Event Materials

Program for the 2019 Central Bank of the Future Conference, hosted by the University of Michigan's Center on Finance, Law & Policy.

Department Of Homeland Security V. Regents Of The University Of California, Et Al.: Brief For Administrative Law Scholars As Amici Curiae In Support Of Respondents, Nina A. Mendelson

Appellate Briefs

Amici are professors of administrative law and related public law subjects at institutions across the United States. In their scholarship and their teaching, they have carefully considered the legal doctrines implicated by this case. They submit this brief to address arguments and precedent that are relevant to a central question presented by this appeal: whether the Department of Homeland Security's decision to rescind the Deferred Action for Childhood Arrivals (DACA) policy is judicially reviewable. Amici join this brief solely on their own behalf and not as representatives of their universities. A full list of amici appears in Appendix A.

Under …

The Dialogic Aspect Of Soft Law In International Insolvency: Discord, Digression, And Development, John A. E. Pottow

Law & Economics Working Papers

Soft law is on the ascent in international insolvency, seeming now to occupy a preferred status over boring old conventions. An arguably constitutive aspect of soft law, which some contend provides a normative justification for international law generally, is its "dialogic" nature, by which I mean its intentional exposure to recursive norm contestation and iterative development: soft law starts a dialogue. The product of that dialogue, on a teleological view, may well be hard law. In the international insolvency realm, that pathway is through (soft) model domestic legislation that aspires toward enactment as municipal law. The happy story is that …

2019 Fall Class Schedule, University Of Michigan Law School

Class Schedules

Class schedule for the 2019 Fall semester at the University of Michigan Law School

Front Matter, Journal Of Law Reform

University of Michigan Journal of Law Reform

Front matter for Volume 53, Issue 1 of the University of Michigan Journal of Law Reform.

Re(Writing) The Rules Of The Road: Reflections From The Journal Of Law And Mobility's 2019 Conference, Raphael Beauregard-Lacroix

Journal of Law and Mobility

On March 15th, 2019, the Journal of Law and Mobility, part of the University of Michigan’s Law and Mobility Program, presented its inaugural conference, entitled “(Re)Writing the Rules of The Road.” The conference was focused on issues surrounding the relationship between automated vehicles (“AVs”) and the law. In the afternoon, two panels of experts from academia, government, industry, and civil society were brought together to discuss how traffic laws should apply to automated driving and the legal person (if any) who should be responsible for traffic law violations. The afternoon’s events occurred under a modified version of the Chatham House …

Ecosystem Competition And The Antitrust Laws, Daniel A. Crane

Articles

Conventional antitrust norms analyze market power—as a stepping stone to anticompetitive effects and, hence, prohibited conduct—from the perspective of product substitutability. Two goods or services are said to compete with one another when they are reasonably interchangeable from the perspective of consumers, or to put it in more formal economic terms, when there is cross-elasticity of demand between them. Conversely, when two goods or services are not reasonably interchangeable, they are not horizontally related and are said not to compete with one another. Since a concern over horizontal agreements and horizontal effects dominate antitrust—courts even analyze vertical agreement or merger …

Front Matter, Michigan Law Review

Michigan Law Review

Front matter for Volume 118, Issue 1 of the Michigan Law Review.

Potential Liability For Physicians Using Artificial Intelligence, W. Nicholson Price Ii, Sara Gerke, I Glenn Cohen

Articles

Artificial intelligence (AI) is quickly making inroads into medical practice, especially in forms that rely on machine learning, with a mix of hope and hype. Multiple AI-based products have now been approved or cleared by the US Food and Drug Administration (FDA), and health systems and hospitals are increasingly deploying AI-based systems. For example, medical AI can support clinical decisions, such as recommending drugs or dosages or interpreting radiological images.2 One key difference from most traditional clinical decision support software is that some medical AI may communicate results or recommendations to the care team without being able to communicate the …

New Textualism And The Thirteenth Amendment, Leah Litman

Articles

Michele Goodwin’s piece raises important questions about whether troubling modern-day labor practices in jails and prisons are consistent with the Thirteenth Amendment. In Goodwin’s telling, the ratification of the Thirteenth Amendment formally ended the institution of slavery, but the Amendment allowed practices resembling slavery to continue, perhaps reflecting the extant stereotypes and racism that formally amending the Constitution cannot root out. Indeed, Goodwin excavates historical materials that suggest the people who drafted and ratified the Amendment understood and expected that it would allow the perpetuation of slavery in another form. As Goodwin explains, most historians have argued that the Thirteenth …

Response To: How Should We Respond To Pregnancy And Substance Use?, Frank E. E. Vandervort, Vincent J. Palusci

Articles

We begin our reply by asking the reader to consider this typical case taken from Professor Vandervort’s current practice. It is one of several similar cases currently being handled by the clinic he works in and similar to many dozens—perhaps hundreds—of cases handled over the past 30 years.

To Protect And Provide For Children, Prenatal Substance Use Must Be Considered Abuse., Frank E. E. Vandervort, Vincent J. Palusci

Articles

The use of drugs and alcohol during pregnancy is harmful to the developing child. When children are born having been exposed to these substances, children’s protective services should uniformly substantiate child maltreatment in order to ensure that the child’s parent(s) and the child receive the treatment and services necessary to address the child’s immediate safety, protect the government’s compelling interest in the child’s welfare, and ensure the best long-term outcome for the child.

The Indian Child Welfare Act: A Brief Overview To Contextualize Current Controversies., Frank E. E. Vandervort

Articles

Congress passed and the president signed the Indian Child Welfare Act (ICWA) into federal law in 1978. Because the Constitution grants to Congress the authority to make law regarding Indian tribes, ICWA’s provisions are mandatory, unlike other federal child welfare legislation such as the Child Abuse Prevention and Treatment Act, which are voluntary. State authorities handling any case involving an “Indian child” must comply with ICWA.

Banister V. David: Brief Of Amici Curiae Law Professors With Expertise In Habeas Corpus And Civil Procedure In Support Of Petitioner, Eve Brensike Primus

Appellate Briefs

Amici curiae, listed in the Appendix, are law professors and legal scholars who study federal post-conviction law and civil procedure. Amici curiae have no personal interest in the outcome of this case. They all share an interest in seeing habeas law applied in a way that ensures the just and timely adjudication of claims while preserving the traditional and intended operation of the Federal Rules of Civil Procedure.

Spoiler Alert: When The Supreme Court Ruins Your Brief Problem Mid-Semester, Margaret Hannon

Articles

Partway through the winter 2019 semester,1 the Supreme Court ruined my favorite summary judgment brief problem while my students were working on it. I had decided to use the problem despite the Court granting cert and knowing it was just a matter of time before the Court issued its decision. In this Article, I share some of the lessons that I learned about the risks involved in using a brief problem based on a pending Supreme Court case. I conclude that, while I have not typically set out to base a problem on a pending Supreme Court case, doing so …

Us And Capital Flight, Reuven S. Avi-Yonah

Articles

The recent leaks of the Panama and Paradise Papers have highlighted the difficulty of taxing the income of residents of developed and developing offshore countries. The basic problem is that such income is subject to neither withholding at source nor information reporting. In the absence of both withholding and reporting, it is easy to use tax havens to hide such income from tax authorities. Estimates of the scope of the problem vary widely, but it is certainly larger than the $200 billion in estimated losses from legal corporate tax avoidance.

This article explains the historic roots of this problem, which …