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Front Matter, Michigan Law Review

Michigan Law Review

Front matter for Volume 117, Issue 4 of Michigan Law Review.

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 …

Michigan Guidelines On The International Protection Of Refugees, James C. Hathaway

Books

The Michigan Guidelines on the International Protection of Refugees are the result of a collective endeavor of hundreds of scholars, advocates, judges, and international officials to tackle some of the most important and challenging questions in international refugee law. This volume presents 20 years of the Guidelines — the consensus work of senior Michigan Law students and experts from around the world on cutting-edge refugee law concerns — in five languages (English, French, Spanish, Arabic, and Russian).

The Guidelines address five of the most difficult issues of refugee status: what is the meaning of a “well-founded fear”; when may refugee …

An American Approach To Social Democracy: The Forgotten Promise Of The Fair Labor Standards Act, Kate Andrias

Articles

There is a growing consensus among scholars and public policy experts that fundamental labor law reform is necessary in order to reduce the nation’s growing wealth gap. According to conventional wisdom, however, a social democratic approach to labor relations is uniquely un-American—in deep conflict with our traditions and our governing legal regime. This Article calls into question that conventional account. It details a largely forgotten moment in American history: when the early Fair Labor Standards Act (FLSA) established industry committees of unions, business associations, and the public to set wages on an industry-by-industry basis. Alongside the National Labor Relations Act, …

Contracting Around Gender Constructs: Transgender Men At Women's Colleges, Elizabeth A. Heise

Michigan Journal of Gender & Law

As the transgender community gains increasing visibility in society, women’s colleges have begun to address new questions about who is eligible to attend. One such question is whether students who come out as transgender men after matriculation are eligible to remain enrolled and graduate from these institutions. The main claims relevant to this discussion are (1) colleges’ right to retain their identity as all-women’s institutions; (2) the parallel rights of cisgender female students who explicitly choose to attend an all-women’s institution, and (3) transgender students’ competing right to avoid arbitrary or capricious dismissal based on gender identity. This Note posits …

A Fresh View On The Hard/Soft Law Divide: Implications For International Insolvency Of Enterprise Groups, Irit Mevorach

Michigan Journal of International Law

It is the orthodox belief that treaties and—within the EU—directly applicable regulations represent hard, binding international law, while other international instruments—including model laws—are forms of soft law. In a previous publication(The Future of Cross-Border Insolvency: Overcoming Biases and Closing Gaps), I discussed how the traditional distinction between hard and soft law is less firm, due particularly to economic and behavioural implications of instrument choice and design. Building on that analysis, this Article focuses on the new rules for the international insolvency of enterprise groups in the Recast EU Insolvency Regulation 2015 (the “EIR”) and in the forthcoming UNCITRAL model law …

Foundations: Curriculum & Faculty, University Of Michigan Law School

Miscellaneous Law School History & Publications

Michigan Law Faculty are the best of the best. As you look through these pages, you will see some of their accomplishments: They serve as senior advisers to policymakers and governments around the world, they argue important cases in courts of every level, and they produce superb research that addresses society's greatest problems.

Our faculty also take teaching very seriously. They are dedicated to using their research and experience to help create a curriculum that will challenge and transform you. Michigan Law's rich curriculum features foundational courses that evolve with the needs of the profession, a wide array of upper-level …

Unraveling China's Capital Market Growth: A Political Economy Account, Tamar Groswald Ozery

SJD Dissertations

With modern, successful firms that operate globally and a capital market that is the second largest in the world, corporate governance in China has long passed the point of an “adjust or perish” prognostic. Yet its firm governance and capital market functions maintain strong idiosyncrasies that go against many fundamentals in economics and legal thought. These idiosyncrasies are products of the underlying configurations of China’s political economy and the shifts within it. Political economy in China has a determinant role on the ways corporate ownership is organized, firms operate, and the capital market functions. It is responsible for many of …

Intellectual Property: A Beacon For Reform Of Investor-State Dispute Settlement, Daniel Gervais

Michigan Journal of International Law

This Article attempts to resolve clashes between intellectual property and investor-state dispute settlement (“ISDS”). ISDS clauses contained in bilateral, plurilateral, or multilateral trade and investment agreements give multinational investors (corporations) a right to sue a state in a binding proceeding before an independent arbitral tribunal. This jurisgenerative right to file a claim against a state in an international tribunal with mandatory jurisdiction is exceptional; it is generally reserved to other states. Only multinational corporations can use ISDS to file claims against states in which they invest, provided the state is party to a bilateral investment treaty (“BIT”) or a trade …

Let’S Be Reasonable: The Consumer Expectations Test Is Simply Not Viable To Determine Design Defect For Complex Autonomous Vehicle Technology, Emily Frascaroli, John Isaac Southerland, Elizabeth Davis, Woods Parker

Journal of Law and Mobility

Although highly automated vehicles (“HAVs”) have potential to reduce deaths and injuries from traffic crashes, product liability litigation for design defects in vehicles incorporating autonomous technology is inevitable. During the early stages of implementation, courts and juries will be forced to grapple with the application of traditional product liability principles to a never before experienced category of highly technical products. Recent decisions limiting the use of the consumer expectations test in cases involving complex products prompted the authors to examine more closely the history behind and the future viability of the consumer expectations test in HAV litigation.

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 …

Research Resources For Michigan Criminal Law, Kate E. Britt

Law Librarian Scholarship

Few areas of the law are as consequential to the personal lives of those involved as criminal law. The law can, and does, change quickly, and attorneys need to stay abreast of the latest developments to effectively represent their clients. Thankfully, modern government bodies publish current primary law (and many useful secondary sources) online. The sites outlined below will take users to reliable sources of Michigan criminal law and procedure.

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.

Getting To Equal: Resolving The Judicial Impasse On The Weight Of Non-Monetary Contribution In Kenya's Marital Asset Division, Benedeta Prudence Mutiso

Michigan Journal of Gender & Law

Marital property law reforms and changing international human rights standards in the late 20th and early 21st century prompted Kenya to end certain discriminatory practices against women, especially in the area of property rights. For 50 years, Kenya relied on England’s century-old law, the Married Women’s Property Act of 1882, to regulate property rights. In 2010, Kenya adopted a new Constitution that called for equality between men and women, and in 2013, Kenya enacted independent legislation in the form of the Matrimonial Property Act (MPA). The MPA provides a basis for trial courts to divide marital property upon divorce. Specifically, …

2019 Winter Class Schedule, University Of Michigan Law School

Class Schedules

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

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 …

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 …

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 …

This We’Ll Defend: Expanding Ucmj Article 2 Subject Matter Jurisdiction As A Response To Nonconsensual Distribution Of Illicit Photographs, Nicholas Karp

University of Michigan Journal of Law Reform

In March 2017, it was revealed that current and former armed service members shared thousands of nude photos of their female counterparts over social media. Although some of these photos were taken with the women’s consent, almost none of them were distributed with the women’s consent.

Victims have little legal recourse. Military law is silent on the matter of non-consensual distribution. Federal civilian law speaks only to interstate stalking, domestic violence, and harassment, while only thirty-four states have revenge porn laws that sufficiently criminalize nonconsensual distribution of illicit photographs. Further complicating matters, the perpetrator’s military status as active duty, reservist, …

Making And Unmaking Citizens: Law And The Shaping Of Civic Capacity, Tabatha Abu El-Haj

University of Michigan Journal of Law Reform

American democracy is more fragile today than in recent memory. As evidence of stubborn imbalances in political influence grow, so too does public skepticism concerning the relative benefits of our democratic institutions. Scholars have taken note, and two dominant camps have emerged to offer proposals for restoring democratic accountability and responsiveness. The first, like the public, identifies the flood of money into electoral politics as the primary source of our troubles, whereas the second points to political parties as the root of the crisis. More recently, however, a nascent third approach has emerged. Looking beyond the usual suspects—money in politics …

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 Hague Rules On Business And Human Rights Arbitration, Bruno Simma, Diane Desierto, Martin Doe Rodriguez, Jan Eijsbouts, Ursula Kriebaum, Pablo Lumerman, Abiola Makinwa, Richard Meeran, Sergio Puig, Steven Ratner, Giorgia Sangiuolo, Martijn Scheltema, Anne Van Aaken, Katerina Yiannibas

Other Publications

The Hague Rules on Business and Human Rights Arbitration provide a set of procedures for the arbitration of disputes related to the impact of business activities on human rights. The Hague Rules are based on the Arbitration Rules of the United Nations Commission on International Trade Law (with new article 1, paragraph 4, as adopted in 2013) (the “UNCITRAL Rules”), with modifications needed to address certain issues likely to arise in the context of business and human rights disputes. Each article is accompanied by a commentary, which includes background on the drafting of various provisions in the Rules, explaining in …

Of Bee Stings, Mud Pies, And Outhouses: Exploring The Value Of Satire Through The Theory Of Useful Untruths, Leonard M. Niehoff

Other Publications

In this article, I attempt to fill this conceptual gap within Hustler by offering a theory of how satire functions and why it has a distinctively important place in our public discourse. That theory draws on the work of philosophers like Kwame Anthony Appiah, Hans Vaihinger, Kendall Walton, and Lon Fuller, who have discussed the concept of “useful untruths”—lines of thought where we proceed as if something we know to be false is in fact true, because doing so serves a useful and valuable purpose. In my view, the philosophy of useful untruths can help us understand the complexity of …

Risks And Remedies For Artificial Intelligence In Healthcare, W. Nicholson Price Ii

Other Publications

Artificial intelligence (AI) is rapidly entering health care and serving major roles, from automating drudgery and routine tasks in medical practice to managing patients and medical resources. As developers create AI systems to take on these tasks, several risks and challenges emerge, including the risk of injuries to patients from AI system errors, the risk to patient privacy of data acquisition and AI inference, and more. Potential solutions are complex but involve investment in infrastructure for high-quality, representative data; collaborative oversight by both the Food and Drug Administration and other health-care actors; and changes to medical education that will prepare …

General Editor's Introduction To The Treatise, Richard D. Friedman

Other Publications

There is a story -- recalled rather wistfully by an American in 1995, shortly after the thrashing of Young America by New Zealand's Black Magic -- that in 1851 Queen Victoria came to watch the first race for what became known as the America's Cup. “Who is leading?” she asked the signal master of the royal yacht. “The America,” came the reply. “Which boat is in second place?” the Queen wanted to know. The signal master replied: “There is no second, ma'am.'DD'

This story -- which, though perhaps apocryphal, has gained a life of its own -- captures perfectly the …

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 …