Digital Commons Network^™

Learning From Land Use Reforms: Housing Outcomes And Regulatory Change, Noah Kazis

Law & Economics Working Papers

This essay serves as the introduction for an edited, interdisciplinary symposium of articles studying recent land use reforms at the state and local level. These papers provide important descriptive analyses of a range of policy interventions, using quantitative and qualitative methods to provide new empirical insights into zoning reform strategies.

After situating and summarizing the collected articles, the Introduction draws out shared themes. For example, these essays demonstrate the efficacy of recent reforms, not only at facilitating housing production but at doing so in especially difficult contexts (like when producing affordable housing and redeveloping single-family neighborhoods). They point to the …

Committee Prosecution: Using Expert Opinion To Make Criminal Justice Descisions More Impactful, Ellison Berryhill

University of Michigan Journal of Law Reform Caveat

Those uninitiated to the reality of the United States’ criminal justice framework may believe that judges are the most powerful actors in the system. These casual observers watch crime shows filled with trials where judges make rulings and yell at people who are out of line. Viewers may believe in the adversarial system as a war between zealous prosecutors seeking justice and defense attorneys fighting for their client’s innocence. They may think of judges as neutral arbiter who makes the ultimate decisions. Unfortunately, that is not the case.

Alternatively, casual observers may think that the jury is the most powerful …

Feedback Loops: Appreciators, Coaches, & Evaluators, Patrick Barry

Articles

No individual person is likely to be able to satisfy all of our feedback needs. Which is why I tell my students to assemble a “Feedback Board of Directors.” Focus in particular, I tell them, on recruiting people who can collectively provide what Douglas Stone and Sheila Heen of Harvard Law School identify as the three basic forms of feedback in their book “Thanks for the Feedback”:

Flawless First Draft In Legal Writing: A Fantasy Of The Uninitiated, Patrick Barry

Other Publications

I recently received an email from a former student (now a public interest lawyer) who had just finished a major writing project. She wanted to thank me for introducing her to the psychologically liberating concept of “shitty first drafts.” Without it, she said, she probably would have never hit her deadline.

Interpreting The Administrative Procedure Act: A Literature Review, Christopher J. Walker, Scott Macguidwin

Law & Economics Working Papers

The modern administrative state has changed substantially since Congress enacted the Administrative Procedure Act (APA) in 1946. Yet Congress has done little to modernize the APA in those intervening seventy-seven years. That does not mean the APA has remained unchanged. Federal courts have substantially refashioned the APA’s requirements for administrative procedure and judicial review of agency action. Perhaps unsurprisingly, calls to return to either the statutory text or the original meaning (or both) have intensified in recent years. “APA originalism” projects abound.

As part of the Notre Dame Law Review’s Symposium on the History of the Ad- ministrative Procedure Act …

More Than Mere Lip Service: A Mansfield Rule For Well-Being, Cecilia A. Silver

Michigan Law Review Online

Law firms’ watchword is well-being. “Never in history have organizations around the world devoted so much attention and capital to improving employee mental health and well-being. It is lamentable that these investments are not always providing a good return regarding improved outcomes.” In the legal arena, a 2021 report from the Institute for Well-Being in Law echoed this sentiment, determining that while 99 percent of law firms have some type of well-being program, these measures did little to nothing to address internal, structural issues that perpetuate the lack of attorney well-being.

Missed Connections In The U.N. Agenda: Applying The Women, Peace And Security Framework To The Feminization Of Poverty, Lauren A. Fleming

Michigan Journal of Gender & Law

Women, Peace and Security, a multifaceted agenda intended to address the particular ways in which conflict affects women, has been on the United Nations agenda since the landmark Security Council Resolution 1325 passed in 2000. The unequal burden of poverty on women, a phenomenon that has been coined “the feminization of poverty,” has been on the United Nations agenda for even longer, since the 1995 Beijing Conference on Women. Yet, despite the fact that poverty and inequality both cause and result in conflict in a violent cycle, the problem of the feminization of poverty has not been integrated into the …

The Preservation Of The Separate Spheres Doctrine In Congress And The Federal Courts, Arjun Parikh

Michigan Journal of Gender & Law

In Bradwell v. State, an 1872 decision upholding an Illinois law prohibiting women from practicing law, the United States Supreme Court reasoned that the law was justified because women belonged in the “domestic sphere.” While today’s sex-based workplace exclusions are not as explicit as they once were, women still face barriers to remaining in the workforce and advancing in the workplace despite the existence of major federal legislation in the areas of pregnancy discrimination and family leave policy. Congress passed the Pregnancy Discrimination Act (PDA) in 1978 to stop pregnancy discrimination, but the PDA has not come close to …

Constructing Race And Gender In Modern Rape Law: The Abandoned Category Of Black Female Victims, Jacqueline Pittman

Michigan Journal of Gender & Law

Despite the successes of the 1960s Anti-Rape Movement, modern state rape statutes continue to prioritize white male perspectives and perceptions of race, ultimately ignoring the intersectional identity of Black women and leaving these victims without legal protection. This Note examines rape law’s history of allocating agency along gendered and racialized lines through statutory construction and other discursive techniques. Such legal constructions both uphold and cultivate the white victim/Black assailant rape dyad primarily by making the Black male the “ultimate” and most feared assailant. Rape law’s adherence to a white baseline sustains stereotypes of Black men as criminals and predators, which …

Title Ix And "Menstruation Or Related Conditions", Marcy L. Karin, Naomi Cahn, Elizabeth B. Cooper, Bridget J. Crawford, Margaret E. Johnson, Emily Gold Waldman

Michigan Journal of Gender & Law

Title IX of the Education Amendments Act of 1972 (“Title IX”) prohibits sex discrimination in educational programs or activities receiving federal financial assistance. Neither the statute nor its implementing regulations explicitly define “sex” to include discrimination on the basis of menstruation or related conditions such as perimenopause and menopause. This textual absence has caused confusion over whether Title IX must be interpreted to protect students and other community members from all types of sex-based discrimination. It also calls into question the law’s ability to break down systemic sex-based barriers related to menstruation in educational spaces. Absent an interpretation that there …

Right To Informed Consent, Right To A Doula: An Evidence-Based Solution To The Black Maternal Mortality Crisis In The United States, Cecilia Landor

Michigan Journal of Gender & Law

This Note seeks to build on existing research about how to improve childbirth in the United States for women, particularly for Black women, given the United States’ extremely high maternal mortality rate. Through examining the history and characteristics of American and Western childbirth, it seeks to explore how the current birth framework contributes to maternal mortality. To fight this ongoing harm, I suggest increasing access to doulas— nonmedical support workers who provide “continuous support” to the birthing person.

Through this Note I seek to build on the research of others by identifying the ways medicalized birth practices fail women, particularly …

Including Minority Parties In Policymaking: A Legislative Requirement To Address Member Interests, Joseph Crupi

Michigan Law Review Online

Legislatures face a tension between legislative effectiveness and the inclusion of minority parties in policymaking. On one hand, providing minority party members with a meaningful role in the development of legislation may decrease the efficiency of the policymaking process, decrease the extent to which legislation meets the interests of majority party members, and increase the likelihood of gridlock if minority parties have the power to block legislation. On the other hand, excluding minority party members from the policymaking process may leave a significant portion of the public with no meaningful representation in the development of major legislation. This effective lack …

The Historical Origins And Current Prospects Of The Multilateral Tax Convention, Reuven S. Avi-Yonah, Eran Lempert

Articles

This article has three aims. First, it surveys the pre-BEPS efforts to create a multilateral tax convention (MTC) from the 19th century onward, and explains why these efforts have failed, leading to an international tax regime dominated by unilateralism and bilateralism. Second, it contrasts the success of multilateralism in investment and trade law. Third, it examines the BEPS era efforts to create an MTC and suggests that, while there has been more convergence of the tax laws of countries, a fundamental divergence of interests persists that will likely doom any such efforts to failure. The article concludes that, at this …

The Supreme Court Is Poised To Reverse Affirmative Action: Here’S What You Need To Know., Richard O. Lempert

Other Publications

Sometime in the next six weeks the Supreme Court will likely reveal its decisions in Students for Fair Admissions, Inc. (SFAI) v. President and Fellows of Harvard and SFAI v. University of North Carolina. Court watchers are almost unanimous that the Supreme Court majority will:

• read the 14 amendment as barring the use of racial preferences by public colleges and universities and
• interpret Section VI of the 1964 Civil Rights Act as similarly restricting race conscious admissions at any school receiving federal funds.

To achieve these outcomes a conservative majority will have to reject 40 years of a twice reaffirmed …

Rebraiding Frayed Sweetgrass For Niijaansinaanik: Understanding Canadian Indigenous Child Welfare Issues As International Atrocity Crimes, Alyssa Couchie

Michigan Journal of International Law

The unearthing of the remains of Indigenous children on the sites of former Indian Residential Schools (“IRS”) in Canada has focused greater attention on anti-Indigenous atrocity violence in the country. While such increased attention, combined with recent efforts at redressing associated harms, represents a step forward in terms of recognizing and addressing the harms caused to Indigenous peoples through the settler-colonial process in Canada, this note expresses concern that the dominant framings of anti-Indigenous atrocity violence remain myopically focused on an overly narrow subset of harms and forms of violence, especially those committed at IRSs. It does so by utilizing …

2023 Spring/Summer Class Schedule, University Of Michigan Law School

Class Schedules

Class schedule for the 2023 Spring/Summer semester at the University of Michigan Law School

Reforming World Bank Dispute Resolution: Icsid In Context, Susan Franck

Michigan Journal of International Law

During a tumultuous moment in history with shifts in power and politics, international dispute settlement stands at a crossroads. In theory, international dispute settlement should not institutionalize abuses of power, rely upon a monolithic one-size-fits-all model, or be a waste of resources, which will inevitably generate stakeholder dissatisfaction. Rather, dispute resolution should reflect both a commitment to the rule of law and equal treatment that sustains nuanced, fair, and just procedures most likely to provide results of substantive quality. Against this backdrop and with the major reforms concluded in July 2022, this article explores the reality of dispute resolution at …

Trade-Based Solutions For Revitalizing Post-Conflict Economies, Ryan R. Migeed

Michigan Journal of International Law

International trade improves efficiency in home markets, creates new sources of demand for domestic industries, and boosts worker productivity. However, some types of trade are better than others for reviving the economies of countries emerging from internal or international armed conflicts. This note evaluates existing trade mechanisms that ostensibly help developing countries but fail to actually do so. It ultimately recommends the use of investor-state partnerships over trade-based mechanisms as the appropriate tool for improving the economies of post-conflict states. Part I evaluates a number of these existing trade mechanisms, including preferential trade agreements and the General System of Preferences. …

Fact-Finding Without Rules: Habermas's Communicative Rationality As A Framework For Judicial Assessments Of Digital Open-Source Information, Matthew Gillett

Michigan Journal of International Law

Jürgen Habermas’s theory of “communicative rationality” (also known as “communicative action”) provides a promising conceptual apparatus through which to justify and validate the International Criminal Court’s consideration of the emerging phenomenon of digital open-source information. Because of its process-based and inclusive qualities, Habermas’s communicative rationality is particularly apposite for the dynamic nature of digital open-source information and the heterogenous range of actors and institutions which have relevant experiences and skills to contribute to the generation of norms and determinations regarding its role before the Court. This is important, as the International Criminal Court’s procedural framework is largely silent on digital …

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 121, Issue 8 of Michigan Law Review

Inventing Deportation Arrests, Lindsay Nash

Michigan Law Review

At the dawn of the federal deportation system, the nation’s top immigration official proclaimed the power to authorize deportation arrests “an extraordinary one” to vest in administrative officers. He reassured the nation that this immense power—then wielded by a cabinet secretary, the only executive officer empowered to authorize these arrests—was exercised with “great care and deliberation.” A century later, this extraordinary power is legally trivial and systemically exercised by low-level enforcement officers alone. Consequently, thousands of these officers—the police and jailors of the immigration system— now have the power to solely determine whether deportation arrests are justified and, therefore, whether …

Telegraph Torts: The Lost Lineage Of The Public Service Corporation, Evelyn Atkinson

Michigan Law Review

At the turn of the twentieth century, state courts were roiled by claims against telegraph corporations for mental anguish resulting from the failure to deliver telegrams involving the death or injury of a family member. Although these “telegraph cases” at first may seem a bizarre outlier, they in fact reveal an important and understudied moment of transformation in the nature of the relationship between the corporation and the public: the role of affective relations in the development of the category of the public utility corporation. Even as powerful corporations were recast as private, rights-bearing, profit-making market actors in constitutional law, …

Title Vii’S Failures: A History Of Overlooked Indifference, Elena S. Meth

Michigan Law Review

Nearly sixty years after the adoption of Title VII and over thirty since intersectionality theory was brought into legal discourse by Professor Kimberlé Crenshaw, the U.S. Supreme Court has consistently failed to meaningfully implement intersectionality into its decisionmaking. While there is certainly no shortage of scholarship on intersectionality and the Court’s failure to recognize it, this remains an overlooked failure by the Supreme Court. This Note proceeds in three parts. Part I provides an overview of Title VII and intersectional discrimination theory. I then explain how the EEOC and the Supreme Court have historically handled intersectional discrimination cases. Part II …

Collusive Prosecution, Ben A. Mcjunkin, J.J. Prescott

Law & Economics Working Papers

In this Article, we argue that increasingly harsh collateral consequences have surfaced an underappreciated and undertheorized dynamic of criminal plea bargaining. Collateral consequences that mostly or entirely benefit third parties (such as other communities or other states) create an interest asymmetry that prosecutors and defendants can exploit in plea negotiations. In particular, if a prosecutor and a defendant can control the offense of conviction (often through what some term a “fictional plea”), they can work together to evade otherwise applicable collateral consequences, such as deportation or sex-offender registration and notification. Both parties arguably benefit: Prosecutors can leverage collateral consequences to …

Cost-Benefit Analysis And The Problem Of Long-Term Harms From Environmental Pollution, Rachel Rothschild

Other Publications

One of the most contentious aspects of using cost-benefit analysis in the regulatory processinvolves discounting the value of future harms . Based on updated data from U.S. Treasurynotes and Inflation-Protected Securities, the Biden Administration’s new Circular A-4guidance will replace the unreasonably high discount rates of 3% and 7% from the prior 2003guidance with a single lower rate of 1.7% when assessing a regulation’s effects from thepresent through 30 years into the future. This post will review why discounting is done incost-benefit analyses and explain how the new guidance will allow the government to betterevaluate the benefits of reducing pollution exposures.

The Business Of Securities Class Action Lawyering, Stephen J. Choi, Jessica Erickson, Adam C. Pritchard

Law & Economics Working Papers

Plaintiffs’ lawyers in the United States play a key role in combating corporate fraud. Shareholders who lose money as a result of fraud can file securities class actions to recover their losses, but most shareholders do not have enough money at stake to justify overseeing the cases filed on their behalf. As a result, plaintiffs’ lawyers control these cases, deciding which cases to file and how to litigate them. Recognizing the agency costs inherent in this model, the legal system relies on lead plaintiffs and judges to monitor these lawyers and protect the best interests of absent class members. Yet …

Cryptic Patent Reform Through The Inflation Reduction Act, Arti K. Rai, Rachel Sachs, Nicholson Price

Law & Economics Working Papers

If a statute substantially changes the way patents work in an industry where patents are central, but says almost nothing about patents, is it patent reform? We argue the answer is yes — and it’s not a hypothetical question. The Inflation Reduction Act (IRA) does not address patents, but its drug pricing provisions are likely to prompt major changes in how patents work in the pharmaceutical industry. For many years scholars have decried industry’s ever-evolving strategies that use combinations of patents to block competition for as long as possible, widely known as “evergreening,” but legislators have not been receptive to …

Using Odr Platforms To Level The Playing Field: Improving Pro Se Litigation Through Odr Design, J.J. Prescott

Law & Economics Working Papers

In a few short years, court-connected ODR has shown itself capable of dramatically improving access to justice by reducing or eliminating barriers rooted in the simple fact that courts have traditionally offered dispute resolution services only during certain hours, only in particular physical places, and primarily through traditional face-to-face proceedings. Given the monopoly that courthouses have long had on resolving many legal issues, too many Americans have discovered their rights are simply too difficult or costly to exercise. As court-connected ODR systems spread, offering new types of dispute resolution services everywhere and often at any time, people will soon find …

Meme Corporate Governance, Dhruv Aggarwal, Albert H. Choi, Yoon-Ho Alex Lee

Law & Economics Working Papers

Can retail investors revolutionize corporate governance and make public companies more responsive to social concerns? The U.S. stock market offered an unusual experiment to test the impact of retail investors in 2021, when there was a dramatic influx of retail investors into the shareholder base of companies such as GameStop and AMC. The meme surge phenomenon elicited a variety of reactions from scholars and practitioners. While some worried that affected companies’ share prices were becoming disjointed from their financial fundamentals, others predicted that retail shareholders will reduce the power of large institutional investors and democratize corporate governance. This Article presents …

Senior Day 2023, University Of Michigan Law School

Commencement and Honors Materials

Program for the May 5, 2023 University of Michigan Law School Senior Day.