Digital Commons Network^™

Chevron's 51 Imperfect Solutions., Christopher J. Walker, Neena Menon

Articles

In June 2024, the U.S. Supreme Court eliminated the judicial deference federal agencies previously received for their statutory interpretations, overturning the Court’s landmark 1984 decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. While Chevron was never binding on state courts, where the balance of powers and state constitutions may require different or no deference to agencies, numerous states have adopted Chevron deference, Skidmore weight, or similar deference regimes for judicial review of agency legal interpretations. Despite these developments, little scholarly attention has been paid to how and why states have developed administrative law’s deference doctrines, how the …

The Basis For Election Exceptionalism In Justiciability And Related Doctrines: Constitutional Compensation In Light Of Purcell, Vikram D. Amar, Evan H. Caminker

Articles

Pursuant to the so-called Purcell doctrine, lower federal courts (and perhaps the U.S. Supreme Court itself) are supposed to refrain from issuing remedies that would alter the rules for election administration in the run-up to Election Day. Whether or not the Purcell rule’s purported justifications are persuasive (e.g., concerns about voter confusion, candidate and campaign expectations, smooth operation of election logistics), one tremendously problematic entailment of Purcell is that elections are held (and candidates are elected and policies are determined) even when serious doubt exists about the legality of the contests under federal statutes and the Constitution. Because of these …

Fall 2024 - Westlaw And Lexis Advanced Search Strategies, University Of Michigan Law Library

Legal Tech Series

Do Westlaw and Lexis searches leave you swimming in statutes and cases? Do you wish you could find good law without sifting through mountains of irrelevant law? This program will help you use the tools at your fingertips to search more efficiently and effectively. Upgrade your legal research skills Underground!

Paying For Performance? Attorneys' Fees In Fraud Class Actions, Stephen J. Choi, Jessica M. Erickson, Adam C. Pritchard

Articles

This paper studies whether plaintiffs' lawyers matter in securities class actions. We use inverse propensity score weighting (IPW) to compare the results in cases led by top-tier firms against those brought by lower-tier firms. This technique addresses case selection effects by using all of the cases led by a top-tier firm and then weighting the cases led by lower-tier firms based on how similar these cases are to the cases led by top-tier firms. We do find that top-tier lawyers obtain better outcomes for shareholders in a subset of securities class actions, specifically the cases against the larger (although not …

Gatekeeper Competition Policy, Herbert Hovenkamp

Michigan Technology Law Review

Antitrust policy in the United States has always had special rules for dominant firms. As Justice Scalia once observed:

Where a defendant maintains substantial market power, his activities are examined through a special lens: Behavior that might otherwise not be of concern to the antitrust laws—or that might even be viewed as procompetitive—can take on exclusionary connotations when practiced by a monopolist.

Frand Arbitration Will Destroy Frand, Barbara Lauriat

Michigan Technology Law Review

Standard essential patent-licensing disputes have been raising the costs of business in the telecommunications industry for over a decade. As technology and interconnectivity extend beyond mobile phones into the Internet of Things (“IoT”), the number of these disputes will only increase. While many academics, policymakers, and stakeholders support arbitration to resolve these disputes, this article warns of the potential long-term consequences of doing so on a large scale.

Standard Setting Organizations usually require the owners of patented technology included in industry standards to commit to licensing on Fair, Reasonable, and Non-discriminatory (“FRAND”) terms to avoid potential abuse of their market …

The Unfairness Of Fair Machine Learning: Leveling Down And Strict Egalitarianism By Default, Brent Mittelstadt, Sandra Wachter, Chris Russell

Michigan Technology Law Review

In recent years, fairness in machine learning (ML), artificial intelligence (AI), and algorithmic decision-making systems has emerged as a highly active area of research and development. To date, most measures and methods to mitigate bias and improve fairness in algorithmic systems have been built in isolation from policymaking and civil societal contexts and lack serious engagement with philosophical, political, legal, and economic theories of equality and distributive justice. Many current measures define “fairness” in simple terms to mean narrowing gaps in performance or outcomes between demographic groups while preserving as much of the original system’s accuracy as possible. This oversimplified …

The Implications Of Chatgpt For Legal Services And Society, Andrew Perlman

Michigan Technology Law Review

On November 30, 2022, OpenAI released a chatbot called ChatGPT.1 To demonstrate the chatbot’s sophistication and its potential implications, both for legal services and society more generally, most of this paper was generated in about an hour through prompts within ChatGPT. Only this abstract, the preface, the outline headers, the footnotes, the epilogue, and the prompts were written by a person. ChatGPT generated the rest of the text with no human editing. To be clear, the responses generated by ChatGPT were imperfect and at times problematic, and the use of an AI tool for law-related services raises a host of …

"Legally Magic" Words: An Empirical Study Of The Accessibility Of Fifth Amendment Rights, Roseanna Sommers, Kate Weisburd

Law & Economics Working Papers

Fifth Amendment case law (including Miranda v. Arizona) requires that individuals assert their right to counsel or silence using "explicit," "clear," and "unambiguous" statements - or, as some dissenting judges have lamented, using "legally magic" words. Through a survey of 1,718 members of the U.S. public, we investigate what ordinary people believe it takes to assert the right to counsel and the right to silence. We then compare their perceptions against prevailing legal standards governing invocation.

With respect to the right to counsel, the survey results indicate that members of the public have a uniformly lower threshold for invocation than …

Fall 2024 - Gen Ai For Legal Research, University Of Michigan Law Library

Legal Tech Series

Generative AI is a transformative technology that will impact your legal career. Learn about the benefits and pitfalls of tools you can use for legal research now.

Does The U.S. Have To Be A Tax Haven?, Reuven S. Avi-Yonah

Articles

The United States is the world’s preeminent tax haven. Tax havens are defined as allowing secrecy and having low or zero tax rates; for nonresident aliens, the United States offers both.

The secrecy results from the fact that, in many U.S. states, it is possible to form a corporate entity without having to disclose information about the identity of the owner. This situation is beginning to change because of the Corporate Transparency Act, but the law has been challenged as unconstitutional. Even this would only apply for U.S. government nontax purposes. A nonresident alien who uses a U.S. limited liability …

Can Congress Give Unaffected Taxpayers Standing, Reuven S. Avi-Yonah

Articles

A recurring problem in tax law arises when the IRS promulgates a regulation or a notice that is too favorable to taxpayers.1 The problem is that nobody has standing to challenge the regulation. The IRS cannot challenge its own regulation, and taxpayers affected by the regulation have no interest in challenging it (and even if they did, they cannot show a concrete injury sufficient to establish standing). Congress may intervene, but that is rare for a taxpayer-favorable regulation (indeed, Congress sometimes intervenes to block IRS attempts to roll back its own regulations). Taxpayers unaffected by the regulation do not have …

Front Matter, University Of Michigan Law School

Michigan Journal of Gender & Law

Front Matter for Volume 30, Issue 2 of Michigan Journal of Gender & Law

Comity & Federalism In Extraterritorial Abortion Regulation, Jensen Lillquist

Michigan Journal of Gender & Law

On June 24, 2022, the Supreme Court decided Dobbs v. Jackson Women’s Health Organization and held that states may regulate abortion in whatever manner they wish. In the wake of Dobbs, commentators and laypersons have focused primarily on its implications for reproductive rights and other fundamental rights—such as gay marriage. Less often discussed are the questions that arise regarding state extraterritorial jurisdiction. Since Dobbs, a patchwork of laws has developed: pro-life states have placed greater restrictions on abortion, while pro-choice states have sought to expand abortion access. Questions have arisen regarding whether and to what extent states may regulate the …

Abortion Access For Incarcerated People Post-Dobbs, Kate Bock

Michigan Journal of Gender & Law

Dobbs v. Jackson Women’s Health Organization has fundamentally altered the legal landscape regarding abortion access. Though abortion rights for all people across the United States have now been eliminated or are in jeopardy, incarcerated people are a particularly vulnerable group, given the way carceral institutions restrict autonomy and the drastic health implications of an unwanted pregnancy while confined. Before Dobbs, detained people retained the constitutional right to an elective abortion while incarcerated. To remedy violations of this right, women brought claims under the Fourteenth Amendment and the Eighth Amendment. In a post-Roe world, however, incarcerated folks denied abortion …

Tort Liability, Privacy, And Regulatory Considerations For Level 3 Autonomous Vehicles, Ryan H. Jones

Michigan Technology Law Review

Recent developments in emerging technology, such as artificial intelligence, robotics, and autonomous vehicles, have generated inquiries about the incorporation of these technologies into the law, as well as the philosophical and ethical questions that accompany their use. This paper considers existing legal doctrine and regulatory frameworks as applied to the niche area of Level 3 autonomous vehicles. Specifically, this paper considers tort liability in the form of negligence and products liability, privacy risks, and regulatory considerations in relation to Level 3 vehicles. Finally, societal risks and potential solutions are considered to provide insight into potential areas of additional work.

From Biased Data Inputs To Your Discriminatory Diagnosis Outputs: A Review Of Legal Liability For Artificial Intelligence In Healthcare, Amber Bolden

Michigan Technology Law Review

While health disparities in America occur due to non-medical circumstances, certain protected classes experience healthcare disparities due to the biases of medical professionals. Biased diagnoses, both intentional or unintentional, have existed throughout the history of the medical profession. That those biases are becoming data for training algorithms raises concerns as the medical field increasingly incorporates and standardizes artificial and augmented intelligence in patient diagnosis and treatment. Currently unregulated but with lifedetermining potential, artificial intelligence (AI) when used in patient treatment leads to important questions: should the doctor, the provider, or the AI developers be liable, and for what? Section II …

Repair As Research: How Copyright Impedes Learning About Devices, Anthony D. Rosborough, Aaron Perzanowski

Michigan Technology Law Review

Widespread computerization and ubiquitous smart devices have enabled software-based copyright governance to reach into new domains. Beyond their instrumental utility, those devices contain vast amounts of information in the form of software and technical know-how. Through copyright and anti-circumvention rules, however, this information can be cordoned off and confined to exclusive distribution channels, significantly constraining research. While copyright law traditionally conceives of research as the use of expressive works within institutional settings, we propose a broader conceptualization that embraces device research, including informal inquiries and DIY activities. Whether for the purposes of modification, repair, user innovation, or testing, device research …

Formalizing Fairness: Statistical Measures Of Parity For Recidivism Prediction Instruments, Joshua Song

Michigan Technology Law Review

Recidivism prediction instruments (RPI) are increasingly employed as an algorithmic arm of the criminal justice system to assist in bond, sentencing, and probation determinations. Due process and ethics guidelines require that RPIs, such as the Correctional Offender Management Profiling for Alternative Sanctions (COMPAS), apply a fair assessment in making recidivism predictions. To establish fair RPIs, we must first define standards of fairness and methods to measure bias in RPI outputs. However, defining algorithmic fairness can be cryptic and context-dependent. Scholars have proposed different criteria for what defines a fair RPI. Unfortunately, these criteria are conflicting and mutually exclusive; it is …

Ideal Enforcement: How Do We Achieve Optimal Enforcement Of Traffic Law As Ubiquitous Enforcement Becomes Technologically Conceivable?, Bryant Walker Smith, Jeffrey Michael, Johnathon Ehsani

Michigan Technology Law Review

Safety. Mobility. Technology. Data. Equity. Autonomy. Community. Justice. Power. Trust. These themes have resonated over the last few years across a wide range of specific issues—some that are new and others that have only recently received the broader attention that they demand. A coming age of “perfect enforcement,” in which both public and private actors use increasingly powerful, pervasive, and affordable technologies to automatically identify and penalize every deviation from public or private rules, captures all these issues: They meet—in the language of physics, they interfere, whether constructively or destructively—to affect both perception and reality. The potential role of technology …

Should Ireland Have Taxed Apple?, Reuven S. Avi-Yonah, Nessa Ní Chasaide

Articles

On September 10 the EU’s Court of Justice issued its long-awaited decision in the Apple state aid case. Surprisingly, it reversed the EU’s General Court decision and held that the European Commission was correct in finding that Ireland had provided prohibited state aid to Apple, and therefore Apple must pay Ireland the €13 billion in taxes that it would have paid but for the illegal subsidy. This state aid case, the largest in the EU’s history, highlights significant issues about the legal governance of corporate tax. This article examines the notable features of the Court ruling, then outlines why we …

#Employerstoo: Expanding Vicarious Liability For Sexual Harassment In Title Vii And Tort Law, Kassandra "Kassie" Fotiadis

Michigan Law Review

When an individual experiences sexual harassment through a workplace, she has limited options for recourse. One seemingly promising possibility is bringing a claim against her perpetrator’s employer. But this option—achievable through vicarious liability—has failed to realize its potential. In 1998, the U.S. Supreme Court established a standard to enforce vicarious liability for sexual harassment claims under Title VII. That standard, though, was limited in scope to begin with and has further narrowed over time. Common law principles also allow courts to hold employers vicariously liable for sexual harassment in tort. But few jurisdictions have adopted those principles, and there is …

Antiracist Medicine In Colorblind Courts, Govind Persad

Michigan Law Review

This Article considers how health professionals’ efforts to combat racial health inequities interact with legal restrictions constraining their ability to consider race. In light of the Roberts Court’s recent invalidation of two university admissions programs, intensifying a “colorblind” judicial shift, the collision between antiracist medicine and colorblind law is a pressing concern. This Article anticipates the implications of this collision and explores how health professionals and systems can design programs that survive judicial examination.

In Part I, the Article examines the frameworks that will apply if antiracist medicine faces legal challenges. These include the Equal Protection Clause and federal statutes …

A Republic Of Spending, Jonathan S. Gould

Michigan Law Review

Large-scale spending measures make up many of Congress’s most important recent contributions to national policymaking. Congress has appropriated trillions of dollars to respond to emergencies, fight climate change, expand social safety net programs, spur technological innovation, and strengthen national infrastructure. While the contemporary Congress’s failure to enact landmark regulatory statutes causes many to characterize it as dysfunctional, Congress in fact remains quite active—its policymaking energy is simply concentrated in the spending domain.

Congress’s use of spending rather than regulatory legislation as its primary way of shaping national policy marks a significant shift in American governance. This Article examines the causes …

Postmortem Privacy, Anita L. Allen, Jennifer E. Rothman

Michigan Law Review

Since their inception in the late nineteenth century, privacy rights have been widely understood to terminate with a person’s death. The “no-privacy-rights-for- the-dead” doctrine has been repeated for nearly 130 years. As demonstrated in this Article, the reality on the ground deviated from this common pronouncement even early on. The divergence is so great today that sustained consideration of postmortem privacy is essential. This is especially so given urgent calls to protect the digital assets of the dead and evolving technology that allows for the reanimation of deceased performers and loved ones. This Article provides a theoretical foundation for determining …

Don’T Be Cruel: Cruelty, Complicity, Self-Knowledge, And Growth, Sherman J. Clark

Articles

The papers in this symposium, and the larger body of scholarship to which this symposium is a contribution, ask us to attend to the often brutal and inhumane conditions in American jails and prisons. But why should we do that? Why should we confront the suffering of the incarcerated? Why should we ask ourselves whether that suffering is unjust, unnecessary, or even unconstitutional? The main reason, of course, is that we want to remedy those injustices. We care about the suffering of our fellow human beings, and people do not cease to be our fellow human beings merely because they …

Can The Economic Substance Doctine Be Revived?, Reuven S. Avi-Yonah

Articles

In two recent instances, the IRS has asserted the economic substance doctrine (ESD) to challenge transactions that comply with the literal text of the code. First, in Liberty Global, the IRS successfully asserted the ESD to deny tax benefits claimed by Liberty Global — namely, a section 245A deduction for a dividend out of foreign earnings that would normally be subject to global intangible low-taxed income — by relying on a mistake in effective dates under the Tax Cuts and Jobs Act. In granting summary judgment, the district court held that the doctrine looks to whether the tax benefits achieved …

Fall 2024 - Finding Briefs And Other Court Filings, University Of Michigan Law Library

Legal Tech Series

The judicial opinion is the last chapter of a long story. The key to a case’s history is its docket. This program will guide you through the steps to finding complaints, briefs, motions, and other filings by searching and finding court dockets. Get the whole story Underground!

Tossing Sand In The Regulatory Gears: Hurdles To Policy Progress In The Supreme Court, Nina A. Mendelson

Articles

In the last few years, the Supreme Court has been a source of seismic change. In Dobbs v. Jackson Women’s Health Organization, the Court overruled Roe v. Wade, which had protected the right to abortion for nearly fifty years. In Loper Bright Enterprises v. Raimondo, the Court abandoned so-called Chevron deference to particular categories of administrative agency interpretations, a doctrine viewed as bedrock for over forty years. Humphrey’s Executor v. United States, the 1935 ruling validating independent multi-member commissions such as the Federal Trade Commission, Securities and Exchange Commission, and Federal Communications Commission, may soon join the others on the …

Where Is China Now On Pillar 2?, Reuven S. Avi-Yonah

Articles

China has been relatively quiet about pillar 2 of the G20/OECD base erosion and profit-shifting 2.0 project. In a recent Tax Notes article, Xiaoli Ortega wrote:

Will China join the global tax reform club? If so, when? Although the Chinese government has made repeated positive statements about the importance of the global minimum tax reform, it has not clarified when it would modify its domestic tax laws to incorporate the pillar 2 rules. However, this does not mean that China is not preparing itself for the reform. Recall that on August 1, 2022, the State Taxation Administration issued a governmental …