Digital Commons Network^™

Social Data's Role In Law And Political Economy, Salome Viljoen

Book Chapters

Over the past several years, the digital economy has been a notable uptick in interest from scholars across areas of law. This should come as no surprise. The digital economy encompasses some of the largest companies in the world, whose business models pioneer and spread new strategies to concentrate private power across the political economy more broadly. Digital companies have transformed commercial and social life, and they raise problems of concentrated private power. They are also charged with a slew of downstream disruptions resulting from collective pursuit of that power: global, social, and interpersonal forms of dislocation, oppression, impoverishment, alienation, …

Crisis And Change At The United Nations: Non-Amendment Reform And Institutional Evolution, Oona A. Hathaway, Maggie M. Mills, Heather Zimmerman

Michigan Journal of International Law

The Security Council’s inaction in response to the wars in Gaza and Ukraine has once again put a spotlight on structural problems at the United Nations (“U.N.”). Security Council paralysis—particularly the (mis)use of the veto power afforded to the permanent five (“P5”) members of the Council—has long prompted calls for reform. Yet the same veto power prevents nearly all efforts to reform the organization through the formal amendment process provided in the U.N. Charter.

This article argues that there is an alternative way forward: what we call “non-amendment reform.” Rather than seek formal amendments that are unlikely to survive the …

Facial Recognition Technology And The First Amendment, Joseph A. Tomain

Michigan Technology Law Review

The growing ubiquity of facial recognition technology (FRT) is a problem. While much has been written on harmful government use of FRT, little has been written about harmful use by private actors. This Article helps fill that gap in the literature by providing a detailed analysis of the First Amendment interests at stake when private actors use FRT. Specifically, this Article analyzes whether laws that limit the use of publicly available photographs to create “faceprints” for inclusion in FRT databases violate the First Amendment rights of the private actors creating these databases.

In May 2025, a multidistrict litigation against Clearview …

Human Masters/Robot Servants: Highly Automated Vehicle Design, Intoxicated Drivers & Vicarious Liability, William H. Widen, Marilyn Wolf

Journal of Law and Mobility

A traditional engineering role is to design a safe product. Safety engineering is an exercise in harm avoidance ex ante. In contrast, liability attribution is an exercise to compensate for loss post hoc—traditionally viewed as a legal matter. We observe that, when a natural person incurs liability for a loss that exceeds insurance coverage, economic ruin can follow. Neither engineering nor law focus on the loss suffered by defendants considering law as a “safety risk.” The highly automated vehicle (HAV) design space, however, provides an opportunity to prevent this kind of economic harm from occurring ex ante just as attention …

Are We Trapped By Realization?, Reuven S. Avi-Yonah

Articles

In this installment of Reflections With Reuven Avi-Yonah, Avi-Yonah examines the downsides of the realization requirement and potential solutions to them. In an excellent Tax Notes article, Steven Sheffrin recently mounted the most convincing defense of the realization requirement I have read. He explained that the case for taxing unrealized capital gains is based on the Haig- Simons definition of income. In this definition, income equals consumption plus savings when savings includes both realized and unrealized capital gains. If asset prices change because of changes in future cash flows, Haig-Simons income can provide an appropriate guide for designing tax policies.

Perception Pending: What Do Patents Signal To Consumers?, Alexander Billy, Neel Sukhatme

Articles

Patent law encourages inventors to label their products as “patented,” to mark their legal status and potentially secure monetary damages from infringing competitors. We examine whether such labels might have a separate and direct impact on consumers, by affecting how they view patented products and influencing what they purchase. We develop and conduct two experiments to isolate the impact of patent status on consumer behavior. In an online randomized experiment, we demonstrate how increasing the salience of patent status heightens consumers' beliefs that products are innovative and well made. We also reveal consumers' surprisingly sophisticated understanding of the patenting process …

Minor V. Happersett And The Repudiation Of Universal Suffrage, Ellen D. Katz

Articles

Nearly 150 years ago, Minor v. Happersett rejected a constitutional challenge to a Missouri law that excluded women from the electorate. Ratification of the Nineteenth Amendment forty-five years later is often said to have “overturned” Minor. In fact, the Amendment did no such thing. Minor held that voting is not among the privileges of citizenship protected by the Fourteenth Amendment. The Nineteenth Amendment says nothing to the contrary, and instead bars laws and practices that deny or abridge the right to vote “on account of sex.” Minor remains good law today.

It was not happenstance that the Nineteenth Amendment …

High Tech Touts, Sherman J. Clark

Articles

This essay has three interrelated aims. First, it articulates a set of capacities I call virtues of attention—capacities for intuitive discernment, good judgment about what is worth sustained focus, and the ability to engage deeply with worthwhile things. These are eudaimonist virtues in that they help us live well, not merely act rightly. Second, the essay explores what I call poisonous persuasion: the idea that rhetorical appeals, especially those used in marketing, may not only succeed by appealing to certain desires or habits of mind but may also deepen and entrench them. Third, I bring these insights together to examine …

Boden Lecture: Taxation Of Autonomous Artificial Intelligence, Reuven S. Avi-Yonah, Lucas Brasil Salama, Herbert Snitz, W. Robert Thomas

Articles

This Article proposes that tax can be a useful supplement to other measures to regulate Autonomous Artificial Intelligence (AAI) and limit its potential harmful effects. This proposal differs from command-and-control regulation of AAI along the lines of European Union legislation that may unduly limit the development of AAI. It also differs from existing proposals to tax AAI to generate revenue to help workers displaced by AAI programs, or to tax the data used by AAI The proposal is based on granting AAI programs like ChatGPT separate legal personhood, like corporate personhood, while incentivizing or requiring their corporate owner to place …

Reparations For Colonialism: Beyond Legal Responsibility, Steven R. Ratner

Articles

Reparations for colonialism and colonial-era atrocities have moved from an unrealized demand of citizens, politicians, and thinkers in the Global South to a project with some results in the real world. Key markers include the return of numerous art objects from museums in the Global North to their countries of origin; the release of the Caribbean Community and Common Market’s (CARICOM) proposal for reparations; and Namibia’s agreement with Germany on compensation for the German genocide against the Herero people in 1904–08 —along with the resultant controversy. These developments follow earlier claims for reparations directed to—and their eventual acceptance by—the governments …

Neo-Brandeis Goes To Washington: A Provisional Assessment Of The Biden Administration’S Antitrust Record, Daniel A. Crane

Articles

In early 2021, a new coterie of trustbusters came to Washington with the stated purpose of radically overhauling the antitrust status quo. The three central figures—Federal Trade Commission (“FTC”) Chair Lina Khan, Department of Justice (“DOJ”) Antitrust Division Assistant Attorney General (“AAG”) Jonathan Kanter, and Special Assistant to the President for Technology and Competition Policy in the White House Tim Wu—were self-identified neo-Brandeisians, committed to returning antitrust policy to a contemporary version of Justice Louis Brandeis’s ideas. At the urging of Senator Elizabeth Warren, President Biden turned over his Administration’s antitrust policy to the neo-Brandeisians, who vowed to break antitrust’s …

Reckoning With Social Policy In Utility Regulation, Alexandra B. Klass, Gabriel Chan

Articles

State public utility regulation in the energy sector is undergoing a rapid transformation driven by public and private investment in clean energy deployment, the corresponding threat to incumbent fossil fuel interests, and growing demands for energy justice. This transformation will impact many aspects of societal well-being—from energy insecurity in disadvantaged communities to dramatic shifts in energy-sector employment—so it is unsurprising that public utility commissions would engage with social policy concerns. However, for decades, state courts and utility stakeholders have admonished commissions that they are economic regulators and that their jurisdiction does not include social policy. This Article shows that state …

Fletcher's Uncertainty Principle, Matthew L.M. Fletcher

Articles

am here to talk about the equal protection challenges facing Indian Country. I am going to give you my thesis right off the bat, which is that Haaland v. Brackeen decided the equal protection issue for us already, and we should behave as if it is decided.

I will explain what I mean by that. But first, let’s talk about what we will call the Mancari rule. The Mancari rule is fundamentally what Indian law is about, and it goes something like this—I am going to more or less paraphrase the guiding principle of Morton v. Mancari from 1974. Any …

The Sovereignty Problem In Federal Indian Law, Matthew L.M. Fletcher

Articles

There is a sovereignty problem in federal Indian law-namely, that the federal government's sovereign defenses prevent tribal nations and individual Indian people from realizing justice in the courts. Often, compelling tribal and Indian claims go nowhere as the judiciary defers to the interests of the United States, even where Congress has expressly stated its support for tribal interests. Conversely, tribal judiciaries allow claims to proceed to the merits, invoking customary and traditional law to hold tribal governments accountable.

Sovereignty theory helps to explain why justice can be done in one court system but not another. But federal, state, and tribal …

Voter Harassment And The Limits Of State And Federal Power, Ellen D. Katz

Articles

Acts of voter harassment are often difficult to prevent. One longstanding, albeit underused, tool for addressing such harassment is found in section 11(b) of the Voting Rights Act (VRA). Continued use of the provision, however, is threatened by recent decisions restricting private enforcement of the VRA. This Essay examines one challenge to such enforcement, exploring the linkage between section 11(b)’s prohibition on voter intimidation and the enforcement of constitutional voting guarantees, on which private enforcement of the provision presently depends. It invites consideration of the idea that this linkage is sufficient and private enforcement is appropriate because section 11(b) provides …

Creditors, Shareholders, And Losers In Between: A Failed Regulatory Experiment, Albert H. Choi, Jeffery Zhang

Articles

In the aftermath of the 2007–08 Global Financial Crisis, regulators encouraged many of the world’s largest banks to hold a new type of regulatory instrument with the goal of improving their safety and soundness. The regulatory instrument was known as a “CoCo,” short for contingent convertible bond. CoCos are neither debt nor equity. They are something in between, designed to give the bank a shot in the arm during times of stress. Many of the largest international banks have issued CoCos worth hundreds of billions of dollars. After more than ten years—a decade that includes the collapse of Credit Suisse …

Memory, Resistance, And Doubt, Richard Primus

Articles

Burroughs v. United States is not a famous case. But it could be. Its central character was a famous man. James Cannon, Jr., was a bishop in the Methodist church, a player in the worlds of business and banking, a ruthless political power broker, and a zealous Prohibitionist. In Virginia, where he lived, his role within the Democratic Party earned him the informal title of “the dry boss of the state,” and his influence extended well beyond the Old Dominion. Indeed, the essayist H.L. Mencken identified Cannon as the most important Prohibitionist in the country. “More than any other man,” …

Physicists As Environmental Experts, Rachel Rothschild

Articles

The question of which scientists are qualified to provide expert guidance in legal controversies is a perennial debate among scholars, judges, and lawyers. Scientists who participate in legal disputes can achieve enormous power and influence, not only over the case at hand but over long-term developments in legal doctrine. While these issues arise in many areas of the law, environmental litigation has been a particularly active site of contestations over epistemic authority. Courts have frequently relied on scientists to understand whether the government is justified in regulating pollution and who may be liable for environmental and public health harms.

This …

Gregory, Textualism, And Tax Shelters, Reuven S. Avi-Yonah

Articles

In this installment of Reflections With Reuven Avi-Yonah, Avi-Yonah suggests that courts should adopt a consequentialist approach to tax shelter litigation that would acknowledge the long- term risks of enabling tax shelters and seek to prevent their recurrence. In his excellent article on Gregory v. Helvering, David Elkins says that the common assumption that the case was about abuse of the tax-free reorganization provisions of the code is mistaken. Therefore, he argues, both Judge Learned Hand and the Supreme Court were wrong when they focused on whether the transaction was a “reorganization” as intended by Congress. Instead, they should have …

The Future Of Ai Regulation In Drug Development: A Comparative Analysis, Gabriela Lenarczyk, Timo Minssen, W. Nicholson Price Ii, Arti Rai

Articles

As artificial intelligence (AI) transforms drug development, regulatory frameworks are evolving to oversee its implementation, particularly at the US Food and Drug Administration (FDA) and the European Medicines Agency (EMA). This paper makes three contributions to understanding emerging regulatory approaches. First, we offer a comparative analysis of how these agencies have responded to AI-driven advances, incorporating new US executive orders and the European Union (EU)’s AI Act. Second, we propose a novel analytical framework to understand regulatory divergence: the FDA’s flexible, dialog-driven model contrasts with the EMA’s structured, risk-tiered approach, reflecting broader institutional and political-economic differences. While the former encourages …

Lunar Refueling: Legal Issues And Suggested Solutions, Francesca Giannoni-Crystal

Journal of Law and Mobility

The establishment of settlements and economic activities on the Moon is expected to occur in the near future, positioning the Moon as a critical hub for continued exploration of the Solar System. Central to this development is the creation of a lunar refueling industry, which will play a pivotal role in supporting lunar activities and fostering further exploration.

Lunar refueling, which includes extracting local resources like lunar ice water to obtain hydrogen, offers key benefits, such as reducing the need for resupply missions from Earth, lowering launch costs, extending mission capabilities, and enabling launches from the Moon, which are more …

Pave Outer Space And Put Up A Parking Lot: Lagrange Points Should Be The Common Heritage Of Mankind, David A. Koplow

Michigan Journal of International Law

Outer space offers a vast array of opportunities, with different locations or regions available for exploitation by diverse users for a growing variety of satellite functions. But not all sectors of space are equally valuable for all applications, and the most desirable venues can become crowded, affording a premium for those who gain access first and impeding the development of a fair and efficient all-inclusive international legal regime.

This article focuses on Lagrange points, a finite series of special locations in space where the gravitational forces from a pair of large celestial bodies interact in unusual ways. These points afford …

Man On Mars: How Can International Space Law Limit The Environmental Consequences Of The Coming Rush For Resources In Space, Elizabeth Anne Henderson

Michigan Journal of International Law

The body of international law governing space has stood at a standstill for decades. The five central treaties regulating this area of law are not only vague, but they have also become a hindrance to the global community’s ability to address the rapidly intensifying second space race. The treaties do not adequately state who space belongs to, who is entitled to take advantage of the natural resources of celestial bodies, or what protections are afforded to celestial environments in the face of impending mining and resource extraction projects. This impasse within international law has not stopped entrepreneurs and corporations from …

Next In Line: Addressing The Constitutional And Policy Problems With The Current Presidential Line Of Succession, Arian Carlo Rubio

University of Michigan Journal of Law Reform

The presidential line of succession is a critical component of the United States government, designed to ensure continuity and stability in the executive leadership during crises. This Note examines the current statutory provisions concerning presidential succession to identify constitutional ambiguities and practical challenges that could undermine governmental operations during unforeseen emergencies.

Through a detailed analysis of historical instances, such as the incapacitation scenarios of past presidents and recent threats to government officials, including the COVID-19 pandemic and a rise in political violence, this Note highlights the risks posed by the existing succession framework. The ambiguity primarily revolves around the roles …

Lawyers And The Abuse Of Government Power, Margaret Tarkington

University of Michigan Journal of Law Reform

The legal profession needs to amend the rules of professional conduct to protect our constitutional system of government from those most likely to effectively undermine it: lawyers. The historic federal indictment against President Donald Trump for conspiring to stay in power after losing the 2020 presidential election included five attorney co-conspirators: Rudy Giuliani, John Eastman, Sidney Powell, Jeffrey Clark, and Kenneth Chesebro. Eight lawyers were indicted in Georgia on similar charges.

Lawyers weren’t just involved in Trump’s plot; they devised and enabled it. Rather than accurately advise Trump that he had lost and needed to concede, lawyers crafted a plan …

Court Forms And Court Reforms: Pro Se Litigants And The Limited Success Of Standardized Family Court Forms, Caroline Rogus

University of Michigan Journal of Law Reform

The first step in any civil lawsuit, long before a court will contemplate awarding relief, is initiating the court matter: a plaintiff must always start by effectively pleading their case. The court system rests upon the presumption that an attorney will create and file the requisite court documents—including complaints, answers, and motions—on behalf of their client. The reality, however, is that an extraordinarily high number of litigants do not have legal representation and must therefore proceed pro se and submit these documents on their own. Most jurisdictions offer pro se litigants standardized, fillable court forms. These forms are intended to …

Standalone Municipal Liability, Avery Figo Comar

Michigan Law Review

Under Monell v. Department of Social Services, municipalities may not be held liable for constitutional violations attributable to an errant employee’s actions. Instead, Monell dictates that municipal liability is appropriate only when the municipality itself is “the moving force” behind the constitutional violation. The Fourth and Fifth Circuits, based on a flawed reading of the Supreme Court case City of Los Angeles v. Heller, adopt an inapposite approach to the relationship between municipal and individual liability. Although every other circuit allows municipal claims to proceed absent any individual claim arising from the same underlying facts, the Fourth and …

Front Matter

Michigan Law Review

Front Matter for Volume 123, Issue 4 of Michigan Law Review

Front Matter For Volume 123, Issue 5 Of Michigan Law Review, University Of Michigan Law School

Michigan Law Review

No abstract provided.

Front Matter

Michigan Law Review

Front Matter for Volume 123, Issue 6 of Michigan Law Review