Digital Commons Network^™

Violence Against Women, Christine M. Chinkin, Lisa Gormley

Book Chapters

There is no provision in either the Declaration {DEDAW) or Convention on the Elimination of All Forms of Discrimination against Women (the Convention) that explicitly addresses violence against women. This contrasts with the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) Article 4(a) which requires States parties to declare as 'an offence punishable by law [ ... ] all acts of violence [ ... ] against any race or group of persons of another colour or ethnic origin'. Instead, States parties' obligations with respect to the elimination of violence against: women have been developed by a …

Love Hertz: Corporate Groups And Insolvency Forum Selection, John A. E. Pottow

Law & Economics Working Papers

The Hertz bankruptcy got a lot of attention, including for its bizarre equity trading. A less heralded but more significant legal aspect of that insolvency, however, was its complex interaction of cross-border insolvency proceedings.

This article discusses the “centripetal” and “centrifugal” forces in the Hertz case that counselled a U.S.-based centralized solution for an international enterprise comprising over 10,000 branches centripetally but also accommodated centrifugal European resistance to subject directors to the consequences of filing their entities in a foreign jurisdiction. This not uncommon constellation of incentives required not a COMI shift but what this article terms a jurisdiction shift …

A Response To Professor Choi’S Beyond Purposivism In Tax Law, Reuven S. Avi-Yonah

Law & Economics Working Papers

This response to Professor Choi’s excellent article questions whether the proposals made by the article can solve the tax shelter problem, and argues that a better response is to bolster purposivism with a statutory general anti-abuse rule (GAAR).

Error Aversions And Due Process, Brandon L. Garrett, Gregory Mitchell

Michigan Law Review

William Blackstone famously expressed the view that convicting the innocent constitutes a much more serious error than acquitting the guilty. This view is the cornerstone of due process protections for those accused of crimes, giving rise to the presumption of innocence and the high burden of proof required for criminal convictions. While most legal elites share Blackstone’s view, the citizen jurors tasked with making due process protections a reality do not share the law’s preference for false acquittals over false convictions.

Across multiple national surveys sampling more than 12,000 people, we find that a majority of Americans consider false acquittals …

Pocket Police: The Plain Feel Doctrine Thirty Years Later, Kelly Recker

Michigan Law Review

The idea that a police officer can park in a low-income neighborhood, pull someone over because of their race, frisk everyone in the car, let them go if their pockets are empty, and do the whole thing over and over again until the officer finds something illegal seems deeply upsetting and violative, to say the least. And yet, pretextual traffic stops are constitutional per a unanimous Supreme Court in Whren v. United States, 517 U.S. 806 (1996), as is seizing obvious contraband during a frisk per Minnesota v. Dickerson, 508 U.S. 366 (1993). In the thirty years since …

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 121, Issue 5 of Michigan Law Review

Justice Without Power: Yemen And The Global Legal System, Amulya Vadapalli

Michigan Law Review

The war in Yemen has remained the world’s worst humanitarian crisis since 2015, and yet it is shockingly invisible. The global legal system fails to offer a clear avenue through which the Yemeni people can hold the state actors responsible for their harm accountable. This Note analyzes international legal mechanisms for vindicating war crimes and human rights abuses perpetrated in Yemen. Through the lens of Yemen’s humanitarian crisis, it highlights gaps in the global legal structure, proposes alternative accountability processes, and uses a variety of sources—including interviews with practitioners and Arabic language legal scholarship—to explicate a victim-centered transitional justice process …

Microsoft's Cost-Sharing Arrangement: Frankenstein Strikes Again, Stephen L. Curtis, Reuven S. Avi-Yonah

Articles

This paper performs a forensic analysis of Microsoft Corporation’s transfer pricing cost sharing arrangement based on forensic economic analysis of public and information, including Microsoft’s SEC and foreign country regulatory filings, documents disclosed during a recent federal court trial, materials published by Microsoft, and information from former insiders interviewed for this paper, and other sources. The paper finds that Microsoft appears to have violated U.S. transfer pricing laws in 2009 and later years, in ways that caused its transfer pricing cost sharing arrangement with its Irish, Singaporean and Puerto Rican affiliates under U.S. tax laws to be invalid. However IRS …

Digital Tax Arithmetic., James R. Hines Jr.

Articles

More than 20 countries recently adopted digital services taxes, with many others threatening to do so. The Organisation for Economic Co-operation and Development (OECD) is attempting to convince countries to withdraw their digital taxes in return for an international agreement to implement its Pillar One proposal that would let countries tax prorated shares of the profits of foreign firms with local sales. This paper identifies incentives that countries have to impose inefficiently high rates of digital taxes and calls attention to shortcomings of the OECD’s formulary apportionment alternative. Diverging interests and the inflexible nature of the multilateral bargaining process make …

Privatizing Copyright, Xiyin Tang

Michigan Law Review

Much has been written, and much is understood, about how and why digital platforms regulate free expression on the internet. Much less has been written— and even much less is understood—about how and why digital platforms regulate creative expression on the internet—expression that makes use of others’ copyrighted content. While § 512 of the Digital Millennium Copyright Act regulates user-generated content incorporating copyrighted works, just as § 230 of the Communications Decency Act regulates other user speech on the internet, it is, in fact, rarely used by the largest internet platforms—Facebook and YouTube. Instead, as this Article details, creative speech …

Jack Daniel's Properties, Inc. V. Vip Products Llc: Brief Of Amici Curiae 30 Trademark Law Professors In Support Of Respondent, Aaron Perzanowski

Appellate Briefs

Amici are 30 law professors who teach and write extensively about trademark law and other intellectual property law subjects. Amici have no personal interest in this case. Amici’s sole interest is in the orderly development of trademark law in a way that serves the public interest, in part by ensuring the proper balance between legitimate trademark interests and strong First Amendment speech interests.<\p>

Trademark law has expanded dramatically in recent decades, opening the door to claims against parties that are primarily selling speech. Those claims would have been inconceivable when the Lanham Act was passed.<\p>

Early courts facing these expanded …

Outsourcing Agency Rulemaking, Christopher J. Walker

Reviews

When it comes to understanding the political dynamics of agency rulemaking, the place to start is Rachel Potter’s book Bending the Rules: Procedural Politicking in the Bureaucracy, about which the Yale Journal on Regulation published a blog symposium in 2019. Through a mix of qualitative and quantitative methods, Potter explores how agency officials—both career civil servants and political appointees—play a role in the rulemaking process and leverage procedural rules to help advance their preferred policy outcomes.

All Stick And No Carrot? Reforming Public Offerings, Stephen J. Choi, Adam C. Pritchard

Law & Economics Working Papers

The SEC heavily regulates the traditional initial public offering. Those regulatory burdens fuel interest in alternative paths for private companies to go public, “regulatory arbitrage.” The SEC’s response to the emergence of alternatives, most recently SPACs and direct listings, has been to suppress them by imposing heightened liability under Section 11 of the Securities Act. The SEC’s treatment of the traditional IPO regulatory process as a one-size-fits-all regime ignores the weaknesses of this process, in particular the informational inefficiency of the book-building process. In this essay we argue that the agency’s focus in regulating issuers going public should be on …

Legitimacy And Online Proceedings: Procedural Justice, Access To Justice, And The Role Of Income, Avital Mentovich, J.J. Prescott, Orna Rabinovich-Einy

Law & Economics Working Papers

Courts have long struggled to bridge the access-to-justice gap associated with in-person hearings, which makes the recent adoption of online legal proceedings potentially beneficial. Online proceedings hold promise for better access: they occur remotely, can proceed asynchronously, and often rely solely on written communication. Yet these very qualities may also undermine some of the well-established elements of procedural-justice perceptions, a primary predictor of how people view the legal system’s legitimacy. This paper examines the implications of shifting legal proceedings online for both procedural-justice and access-to-justice perceptions. It also investigates the relationship of both types of perceptions with system legitimacy, as …

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

Book Chapters

Court-connected ODR has already shown itself capable of dramatically improving access to justice by eliminating barriers rooted in the fact that courts traditionally resolve disputes only during certain hours, in particular physical places, and only through face-to-face proceedings. Given the centrality of courthouses to our system of justice, too many Americans have discovered their rights are too difficult or costly to exercise. As court-connected ODR systems spread, offering more inclusive types of dispute resolution services, people will soon find themselves with the law and the courts at their fingertips. But robust access to justice requires more than just raw, low-cost …

International Advisory Proceedings On Climate Change, Benoit Mayer

Michigan Journal of International Law

Several island states are expected to be severely harmed by climate change and rising sea levels. In late 2021, several island states launched two legal initiatives aimed at requesting advisory opinions of international courts on the law applicable to climate change. In the hope of fostering more action to combat climate change, these states are asking international courts to clarify the obligations of states to cut greenhouse gas emissions and pay reparations for harm already caused.

This article provides the first comprehensive assessment of the feasibility and desirability of international advisory proceedings on climate change. It analyzes recent developments and …

Shedding New Light On Multinational Corporations And Human Rights: Promises And Limits Of “Blockchainizing” The Global Supply Chain, Chang-Hsien Tsai, Ching-Fu Lin

Michigan Journal of International Law

Over the last few decades, advances in transportation and production technology, in conjunction with economic globalization and the emergence of multinational corporations, have consolidated fragmented production processes into long and complex supply chains across jurisdictions. While there are benefits to such global supply chains (“GSCs”), the prevalence of human rights violations attributable to information asymmetry, as well as rule of law gaps between different jurisdictions, has been a constant challenge. Modern slavery, child abuse, harsh working conditions, low wages, and other problems have reoccurred in the factories of upstream suppliers in the global South and have been systemically ignored by …

Measuring Corruption As A Threat To International Security: An Emerging Indicator For Enhancement Of Global Corruption Governance, Sungyong Kang

Michigan Journal of International Law

The conceptual changes to international security after the end of the Cold War, and particularly those following the al-Qaeda attacks of 2001, clarified the symbiotic relationship between corruption and international security: Corruption destroys the social political environment required to create human security and to ensure safety from terrorist attacks, and national borders increasingly fail to restrain its negative consequences.

To achieve human security though policy intervention in domestic affairs, global corruption governance relies on numerical indicators that measure corruption. By evaluating states through public comparison, indicators pressure states to improve their domestic institutions and structures to align them with the …

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 121, Issue 4 of Michigan Law Review

Race-Ing Antitrust, Bennett Capers, Gregory Day

Michigan Law Review

Antitrust law has a race problem. To spot an antitrust violation, courts inquire into whether an act has degraded consumer welfare. Since anticompetitive practices are often assumed to enhance consumer welfare, antitrust offenses are rarely found. Key to this framework is that antitrust treats all consumers monolithically; that consumers are differently situated, especially along lines of race, simply is ignored.

We argue that antitrust law must disaggregate the term “consumer” to include those who disproportionately suffer from anticompetitive practices via a community welfare standard. As a starting point, we demonstrate that anticompetitive conduct has specifically been used as a tool …

Repugnant Precedents And The Court Of History, Daniel B. Rice

Michigan Law Review

Aged Supreme Court precedents continue to tolerate many practices that would shock modern sensibilities. Yet the Court lacks standard tools for phasing out decisions that offend our national character. The very cultural shifts that have reoriented our normative universe have also insulated most repugnant precedents from direct attack. And the familiar stare decisis factors cannot genuinely explain what ails societally outmoded decisions. Even for justices inclined to condemn these embarrassments in less clinical terms, it is unclear what qualifies courts to make universalist claims about contemporary American values.

The Court recently sidestepped these difficulties by insisting that one of its …

Mooting Unilateral Mootness, Scott T. Macguidwin

Michigan Law Review

Several situations cause a case to be moot. These include settlement agreements, party collusion, changes in litigant status, and extrinsic circumstances thwarting the court from granting any relief. The final reason is unilateral mootness—when a defendant ends a lawsuit against a plaintiff’s wishes by giving them everything for which they ask. In practice, this allows defendants to strategically stop lawsuits when it is clear they are not going to win. By doing so, they prevent the court from handing down adverse precedent and preserve the opportunity to engage in similar behavior with impunity. Courts have established a series of mootness …

Recognizing The Right To Family Unity In Immigration Law, Eugene Lee

Michigan Law Review

The Trump Administration’s travel ban and separation of families at the U.S.- Mexico border drew newfound attention to the constitutional due process right to family unity. But even before then, the right to family unity has had a substantial history. Rooted in the Supreme Court’s line of privacy rights cases, the right to family unity is amorphous. This ambiguity has given rise to disagreement regarding not only legal doctrine surrounding the right but also whether the right even exists. This Note clarifies this disagreement by offering a historical account of the right to family unity and an overview of three …

Effective Communication With Deaf, Hard Of Hearing, Blind, And Low Vision Incarcerated People, Civil Rights Litigation, Tessa Bialek, Margo Schlanger

Articles

Tens of thousands of people incarcerated in jails and prisons throughout the United States have one or more communication disabilities, a term that describes persons who are deaf, hard of hearing, blind, low vision, deafblind, speech disabled, or otherwise disabled in ways that affect communication. Incarceration is not easy for anyone, but the isolation and inflexibility of incarceration can be especially challenging, dangerous, and further disabling for persons with disabilities. Correctional entities must confront these challenges; the number of incarcerated persons with communication disabilities—already overrepresented in jails and prisons—continues to grow as a proportion. Federal antidiscrimination law obligates jails and …

Due Process And Equal Protection In Michigan Anishinaabe Courts, Matthew Fletcher

Articles

In 1968, largely because the United States Constitution does not apply to tribal government activity, Congress enacted the Indian Civil Rights Act–a federal law that requires tribal governments to guarantee due process and equal protection to persons under tribal jurisdiction. In 1978, the Supreme Court held that persons seeking to enforce those federal rights may do so in tribal forums only; federal and state courts are unavailable. Moreover, the Court held that tribes may choose to interpret the meanings of “due process” and “equal protection” in line with tribal laws, including customary laws. Since the advent of the self-determination era …

The Utpr And The Treaties, Reuven Avi-Yonah

Articles

On December 15, 2022, the Council of the EU unanimously adopted a directive implementing pillar 2 of the OECD/G-20/inclusive framework base erosion and profit-shifting 2.0 project. Given that the United Kingdom is also going ahead, and several other countries (for example Australia, Canada, New Zealand) are likely to go ahead, this step renders it likely that pillar 2 will come into effect outside the United States. It therefore becomes important to address the interaction between the UTPR (now known as the undertaxed profits rule) and tax treaties, even though both EU directives and national legislation in the United Kingdom can …

By Any Other Name, Shay Elbaum

Law Librarian Scholarship

The use of names to refer to individuals is probably as old as language itself, but many features of naming in the United States are much newer. For the most part, our naming laws and norms derive from England, where the use of surnames, for example, can be traced back to the Norman conquest and did not become a common practice until the 13th or 14th century. The idea of a surname as a family name, permanent and hereditary, is even newer.

The common law method of changing one’s name — simply using a different name, for non-fraudulent purposes — …

Legal Guardrails For A Unicorn Crackdown, Alexander I. Platt

Michigan Law Review Online

The Securities and Exchange Commission (SEC) is undertaking a historic effort to redraw the boundary between public and private companies. After years of watching—and sometimes encouraging—the explosive growth in less tightly regulated private markets and the proliferation of so-called “unicorns,” the agency is now reasserting its authority.

A key arrow in the agency’s regulatory quiver is its authority under section 12(g) of the Securities Exchange Act of 1934 (Exchange Act) to force private companies to “go public” when they reach a certain size. The provision requires any company whose shares are “held of record” by more than 2,000 persons to …

Front Matter, Michigan Business & Entrepreneurial Law Review

Michigan Business & Entrepreneurial Law Review

Front Matter for Volume 12, Issue 1 of Michigan Business & Entrepreneurial Law Review

Texas Two-Stepping Out Of Bankruptcy, Michael A. Francus

Michigan Law Review Online

Johnson & Johnson has a problem. For decades, it sold talc baby powder, a product that made Johnson & Johnson a household name and earned the business billions. But as those babies grew up, they started getting cancer. And then they began suing. Last June, twenty-two plaintiffs cemented a $2.12 billion judgment against Johnson & Johnson for cancer caused by its baby powder. Another 38,000 cases (and counting) remain in progress, each with the potential for a similar verdict.

To handle these mass tort liabilities, Johnson & Johnson has followed the lead of many businesses and turned to the bankruptcy …