Digital Commons Network^™

The Federal Reserve's Mandates, David T. Zaring, Jeffery Y. Zhang

Articles

Solutions to systemic problems such as climate change and racial inequities have eluded policymakers for decades. In searching for creative solutions, some policymakers have recently thought about expanding the Federal Reserve’s core set of macroeconomic mandates to tackle these issues. But there are real questions about whether that can be done from a legal perspective and whether that should be done from a policy perspective.

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 122, Issue 3 of Michigan Law Review

Who Owns Children’S Dna?, Nila Bala

Michigan Law Review

In recent years, DNA has become increasingly easy to collect, test, and sequence, making it far more accessible to law enforcement. While legal scholars have examined this phenomenon generally, this Article examines the control and use of children’s DNA, asking who ultimately owns children’s DNA. I explore two common ways parents—currently considered “owners” of children’s DNA— might turn over children’s DNA to law enforcement: (1) “consensual” searches and (2) direct-to-consumer testing. My fundamental thesis is that parental consent is an insufficient safeguard to protect a child’s DNA from law enforcement. At present, the law leaves parents in complete control of …

Christianity And Economic Law, Daniel A. Crane

Book Chapters

From the first century forward, Christian thinkers and authorities have espoused many dierent views of economics, regulation, the role of the state, and economic law. Christian thought on economic regulation underwent systematic scholarly exposition during the Scholastic, Reformation, and modern eras, culminating in a wide array of perspectives on the role of markets and the government’s regulatory role. From Thomas Aquinas on just price theory to Martin Luther on cartelization and predatory pricing and Adam Smith on the nature of the market’s “invisible hand,” Christian and Christian-inuenced thinkers worked out the ethical and moral implications of contracts, usury, exchange, and …

Antitrust And The Corporate Tax, 1909–1928, Reuven S. Avi-Yonah

Book Chapters

In “Antitrust and the Corporate Tax, 1909–1928,” Reuven Avi-Yonah examines a twentieth-century antitrust measure that lay outside the Sherman Act per se—the corporate tax act of 1909. After the enactment of the Clayton Act and the creation of the FTC in 1914, the corporate tax’s antimonopoly reputation faded somewhat. Between 1919 and 1928 most of its antitrust features were eliminated, and they would not be revived during the New Deal. Nevertheless, Avi-Yonah argues that the corporate tax still retains some potential to contribute to limiting the power of monopolies, especially if the progressive corporate tax rate structure adopted in the …

International Tax Law: Status Quo, Trends And Perspectives, Reuven S. Avi-Yonah

Book Chapters

This chapter addresses the status quo, trends, and perspectives in international tax law. The international tax regime (ITR) is based on two principles: the benefits principle and the single-tax principle (STP). The benefits principle gives the primary right to tax passive (investment) income to residence jurisdictions, and the primary right to tax active (business) income to source jurisdictions. Meanwhile, the STP states that all cross-border income should be subject to the rate of tax determined by the benefits principle. The chapter then argues that developments in the past decade have significantly bolstered the ITR, so that it does a much …

Moore V. United States: Brief Of Amici Curiae Reuven Avi-Yonah, Clinton G. Wallace & Bret Wells In Support Of Respondent, Reuven S. Avi-Yonah

Appellate Briefs

Amici are professors of tax law. Amici join this brief solely on their own behalf and not as representatives of their universities.

Reversing the Moore decision would invalidate or at the very least cast considerable doubt over many sections of the Internal Revenue Code. Rules that call for taxation without realization (“Nonrealization Rules”) and their predecessors can be traced back to the earliest iterations of the income tax after the Sixteenth Amendment was ratified. Although the section 965 transition tax (“Transition Tax”) is a single-application provision that has no ongoing import, it is fashioned in the same manner as Nonrealization …

Revisiting Immigration Exceptionalism In Administrative Law, Christopher J. Walker

Reviews

With all the changes swirling in administrative law, one trend seems to be getting less attention than perhaps it should: the death of regulatory exceptionalism in administrative law. For decades, many regulatory fields—such as tax, intellectual property, and antitrust—viewed themselves as exceptional, such that the normal rules of the road in administrative law do not apply. The Supreme Court and the lower courts have increasingly rejected such exceptionalism in many regulatory contexts, emphasizing that the Administrative Procedure Act (APA) and related administrative law doctrines are the default rules unless Congress has clearly chosen to depart from them by statute in …

Pricing Solar Development Options, Denis Maguire

Michigan Law Review Online

Since the 1980s, each decade has been warmer than the last. The nine years from 2014 through 2022 were the nine warmest years on record. The results of these temperature trends are familiar at this point: Ice sheets are shrinking. Glaciers are retreating at an increasing rate. Sea levels are rising. Ocean acidification is intensifying. As climate change progresses, the Earth will experience worse flooding, harsher droughts, and more severe hurricanes. Yet, there is still time to mitigate the worst impacts of climate change— time to repair the roof.

Impossibility Of Emergent Works’ Protection In U.S. And Eu Copyright Law, Matt Blaszczyk

Fellow, Adjunct, Lecturer, and Research Scholar Works

Protection of emergent works is impossible. Without an author, there is no expression of ideas which can be original, and thus no copyrightable work. Indeed, the whole system of copyright law, its conceptual building blocks of idea-expression dichotomy, originality, authorship, and the concept of a protectable work operate in the notation of human creativity. Emergent works fall outside of copyright’s positive ontology, being akin to ideas, facts, or subject-matter predicated by technical considerations, rather than authorial creativity. In other words, they do not exist as things in law and thus cannot as such be owned. Rather, like any idea, they …

The Death Knell And The Wild West: Two Dangers Of Domestic Discovery In Foreign Adjudications, Shay M. Collins

Michigan Law Review

Under 28 U.S.C. § 1782(a), parties to foreign legal proceedings can obtain discovery orders from United States federal courts. In other words, if a foreign party needs physical evidence located in—or testimony from a person residing in—the United States to support their claim or defense, they can ask a district court to order the production of that evidence. For almost two decades, § 1782(a) practice has operated as a procedural Wild West. Judges routinely consider § 1782(a) applications ex parte—that is, without giving the parties subject to the resulting discovery orders a chance to oppose them—and grant those applications at …

The Oligarchic Courthouse: Jurisdiction, Corporate Power, And Democratic Decline, Helen Hershkoff, Luke Norris

Michigan Law Review

Jurisdiction is foundational to the exercise of judicial power. It is precisely for this reason that subject matter jurisdiction, the species of judicial power that gives a court authority to resolve a dispute, has today come to the center of a struggle between corporate litigants and the regulatory state. In a pronounced trend, corporations are using jurisdictional maneuvers to manipulate forum choice. Along the way, they are wearing out less-resourced parties, circumventing hearings on the merits, and insulating themselves from laws that seek to govern their behavior. Corporations have done so by making creative arguments to lock plaintiffs out of …

The National Security Consequences Of The Major Questions Doctrine, Timothy Meyer, Ganesh Sitaraman

Michigan Law Review

The rise of the major questions doctrine—the rule that says that in order to delegate to the executive branch the power to resolve a “question of ‘deep economic and political significance’ that is central to [a] statutory scheme,” Congress must do so expressly—threatens to unmake the modern executive’s authority over foreign affairs, especially in matters of national security and interstate conflict. In the twenty-first century, global conflicts increasingly involve economic warfare, rather than (or in addition to) the force of arms.

In the United States, the executive power to levy economic sanctions and engage in other forms of economic warfare …

The Weakness Of Neighborhood Revitalization Planning In The Low-Income Housing Tax Credit Program: Warnings From Connecticut, Noah Kazis, Katherine M. O'Regan

Articles

The Low-Income Housing Tax Credit (LIHTC) is the nation's largest program to produce and preserve subsidized housing. To ensure that LIHTC avoids harmfully concentrating poverty, entrenching segregation, or inefficiently deploying resources, federal law requires that states prioritize allocating credits to projects located in high-poverty locations that contribute to a "concerted community revitalization plan" (CCRP). In high-poverty neighborhoods, tax credit developments are meant to facilitate broader neighborhood revitalization, not only to benefit the residents of the housing itself. This paper provides new, empirical support for long-standing concerns that the CCRP process is ineffectively enforced.

Looking at each application for competitive tax …

Revisiting The “Tradition Of Local Control” In Public Education, Carter Brace

Michigan Law Review

In Milliken v. Bradley, the Supreme Court declared “local control” the single most important tradition of public education. Milliken and other related cases developed this notion of a tradition, which has frustrated attempts to achieve equitable school funding and desegregation through federal courts. However, despite its significant impact on American education, most scholars have treated the “tradition of local control” as doctrinally insignificant. These scholars depict the tradition either as a policy preference with no formal legal meaning or as one principle among many that courts may use to determine equitable remedies. This Note argues that the Supreme Court …

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 122, Issue 1 of Michigan Law Review

Proposal For A New Regulation Of Speculation In Sovereign Debt, Justin Vanderschuren

Fellow, Adjunct, Lecturer, and Research Scholar Works

Over the past few years, several countries have undertaken to regulate the speculation in sovereign debt pursued by so-called “vulture funds.” The various realizations and attempts present a series of loopholes that make a new regulation of this speculation advisable. A proposal for a new regulation, legally justified and precisely framed, is all the more desirable given that some legislators, in particular from the New York State Legislature, have recently taken up the issue of speculation.

Debt sustainability is the only realistic regulation benchmark. It is inconceivable to ban debt purchases on the secondary market as this would significantly impact …

Sovereign Debt Speculation: A Necessary Restraint Justified By A Concern For Debt Sustainability, Justin Vanderschuren

Fellow, Adjunct, Lecturer, and Research Scholar Works

The actions of funds speculating in sovereign debt, frequently nicknamed “vulture funds”, are often roundly criticized. These funds purchase distressed debts on the secondary market at reduced prices and then seek payment in court at face value plus interest and fees. Although their actions are legally justified, so-called “vulture funds” are vilified due to the negative impact of their activities on sovereign debtors and their population. While there is a strong demand for regulating sovereign debt speculation, various solutions already exist but are, in many ways, insufficient. This article argues for the adoption of a tailored regulation of the speculative …

A Theory Of Racialized Judicial Decision-Making, Raquel Muñiz

Michigan Journal of Race and Law

In this Article, I introduce a theory of racialized judicial decision-making as a framework to explain how judicial decision-making as a system contributes to creating and maintaining the racial hierarchy in the United States. Judicial decision-making, I argue, is itself a racialized systemic process in which judges transpose racially-bounded cognitive schemas as they make decisions. In the process, they assign legal burdens differentially across ethnoracial groups, to the disproportionate detriment of ethnoracial minorities. After presenting this argument, I turn to three mechanisms at play in racialized judicial decision-making: (1) whiteness as capital that increases epistemic advantages in the judicial process, …

Front Matter, Michigan Journal Of Environmental & Administrative Law

Michigan Journal of Environmental & Administrative Law

Front Matter for Volume 13, Issue 1 of Michigan Journal of Environmental & Administrative Law

Regulating Greenhouse Gas Emissions Under The Endangered Species Act, Eric Biber

Michigan Journal of Environmental & Administrative Law

Despite the devastating impact climate change will have on biodiversity, most legal scholars and policymakers are skeptical that the flagship statute for protecting biodiversity in the United States, the Endangered Species Act (ESA), should be deployed to regulate greenhouse gas emissions. This skepticism has been driven by the concern that using the ESA to regulate greenhouse gases could lead to administrative issues, legal chaos, and political backlash that might endanger the Act overall.

In this article, I draw on three different elements to argue that the ESA could plausibly be used to regulate greenhouse gases. Specifically, I draw on recent …

Why Stop Grazing The Climate Commons?, Brigham Daniels

Michigan Journal of Environmental & Administrative Law

Many have argued that climate change is the textbook example of a tragedy of the commons. Assuming that is correct, to make headway on climate change, we would expect an enforceable agreement that provides for global collective action. The tragedy of the commons assumes that those who cut back when others do not are—to use the formal language of game theorists—suckers. So, the last thing we would expect is a surge of unilateral action. Contrary to theory, for the past decade, unilateral climate action has flourished among governments, businesses, other organizations, and individuals.

Is the number of climate suckers growing …

Got Lead In Your Water? The Bipartisan Infrastructure Law May Be Poised To Help, Andrian Lee, Melissa Scanlan

Michigan Journal of Environmental & Administrative Law

Humans have no known safe level of exposure to lead. Blood lead levels have devastating consequences, especially for children, affecting their brain development and almost every organ in their bodies. Various government organizations have enacted measures to combat lead contamination in drinking water and its dangerous human health consequences by replacing lead service lines. At the federal level, the Environmental Protection Agency promulgated the Lead and Copper Rule Revisions, which requires states to replace lead service lines. At the state level, governments have programs to fund the replacement of lead service lines in their communities, but these funds often fall …

A Seat At Whose Table? Analyzing Detroit’S Community Benefit Ordinance As A Tool For Environmental Justice, Sarah Draughn Gargaro

Michigan Journal of Environmental & Administrative Law

The Environmental Protection Agency defines environmental justice as the “just treatment and meaningful involvement” of all people in the decisionmaking that affects the environment and human health. Since the origins of the modern American environmental justice movement in the 1980s, activists have emphasized the importance of self-determination. Environmental justice requires that decision making processes center the voices of the individuals impacted by decisions made about the distributions of environmental assets and harms. There is a significant challenge, however, in designing community engagement practices that meaningfully involve community members. Since the 1990s, community benefits agreements have been heralded as an effective …

Temporary Nuclear Waste Siting Is A Major Problem But Not A Major Question, Dylan Cohen

Michigan Journal of Environmental & Administrative Law

Mitigating global warming requires robust change in the country’s energy policy. One area ripe for such change is nuclear waste storage, which has long confounded the federal government. The Nuclear Regulatory Commission (NRC) seems to have found a solution. It empowered private industry. But it might have run into a problem: the major questions doctrine. Though the major questions doctrine can indeed operate to constrain overzealous agencies, the NRC has acted within its authority, and private industry—by virtue of its Executive-branch grant of authority—should be allowed to help.

Front Matter, Michigan Journal Of Race & Law

Michigan Journal of Race and Law

Front Matter for Volume 28, Issue 2 of Michigan Journal of Race & Law

Valuing Social Data, Amanda Parsons, Salomé Viljoen

Law & Economics Working Papers

Social data production is a unique form of value creation that characterizes informational capitalism. Social data production also presents critical challenges for the various legal regimes that are encountering it. This Article provides legal scholars and policymakers with the tools to comprehend this new form of value creation through two descriptive contributions. First, it presents a theoretical account of social data, a mode of production which is cultivated and exploited for two distinct (albeit related) forms of value: prediction value and exchange value. Second, it creates and defends a taxonomy of three “scripts” that companies follow to build up and …

Fee Shifting, Nominal Damages, And The Public Interest, Maureen Carroll

Law & Economics Working Papers

As the Supreme Court recognized in its 2021 decision in Uzuegbunam v. Preczewski, nominal damages can redress violations of “important, but not easily quantifiable, nonpecuniary rights.” For some plaintiffs who establish a violation of their constitutional rights, nominal damages will be the only relief available. In its 1992 decision in Farrar v. Hobby, however, the Court disparaged the nominal-damages remedy. The case involved the interpretation of federal fee-shifting statutes, which enable prevailing civil rights plaintiffs to recover a reasonable attorney’s fee from the defendant. According to Farrar, a plaintiff can prevail by obtaining the “technical” remedy of nominal damages, but …

Modular Bankruptcy: Toward A Consumer Scheme Of Arrangement, John A. E. Pottow

Law & Economics Working Papers

The world of international bankruptcy has seen increasing use of the versatile scheme of arrangement, a form of corporate reorganization available under English law. A key feature of the scheme is its modularity, whereby a debtor can restructure only a single class of debt, such as bond indentures, without affecting other debt, such as trade. This is the opposite of chapter 11 of the U.S. Bankruptcy Code’s comprehensive reckoning of all financial stakeholders. This article considers a novel idea: could the scheme be transplanted into the consumer realm? It argues that it could and should. Substantial benefits of more individually …

Covid-19 Pandemic’S Impact On Online Sex Advertising And Sex Trafficking, Coxen O. Julia, Vanessa Castro, Bridgette Carr, Glen Redin

Articles

Disruptive social events such as the COVID-19 pandemic can have a significant impact on sex trafficking and the working conditions of victims, yet these effects have been little understood. This paper examines the effect of the COVID-19 pandemic on sex trafficking in the United States, based on analysis of over one million sexual service advertisements from the online platform Rubratings.com, using indicators of third-party management as potential proxies for trafficking. Our results show that there have been measurable changes in online commercial sexual service advertising, both with and without third-party management indicators, in the United States, with a significant decrease …