Digital Commons Network^™

Crypto Kleptocracy, W. Robert Thomas, Jeffery Y. Zhang

Michigan Law Review Online

Many Americans are worrying about whether they will soon be living in a postdemocracy autocracy. But in the meantime, they may already be living in a crypto-fueled kleptocracy. Less than one year into his second presidential term, Donald Trump has reportedly taken his wealth to new heights by embracing, both as a businessman and a politician, the crypto industry. Trump’s family businesses are involved in minting Trump-themed meme coins, creating America- themed stablecoins, and mining crypto assets—so successfully that most of Trump’s wealth is likely now from crypto, not real estate. All the while, the Trump Administration is rolling back …

Judicial Review Of Agency Discretion, Lisa S. Bressman, Daniel T. Deacon, Glen Staszewski

Book Chapters

Agencies exercise discretion when they make a choice among alternatives that are legally available to them. Such choices come in many different forms. An agency may grant a permit, deny it, or grant it with conditions. It may pro­mulgate a rule that sets specified limits on pollution, and it may or may not afford transition relief to existing sources. Or it may levy a fine against an indi­vidual and decide how high that fine should. be. To the extent the agency is afforded options in making these determinations, it is exercising discretion. This chapter concerns judicial review of agencies' discretionary …

Progressive Tax Rates As A Response To Algorithmic Tacit Collusion, Reuven S. Avi-Yonah, Lior Frank

Articles

This article suggests a tax-law-based approach to curtailing the harm that might be posed by algorithmic tacit collusion in response to the inability of antitrust laws to offer viable solutions. It suggests that progressive corporate tax rates, including higher tax rates, could alleviate the harm caused by algorithmic tacit collusion (“alleviate” because our tax-based approach would not entirely solve the problem of pricing algorithms’ ability to imitate prices of other algorithms without any form of agreement or communication). As we show, progressive and higher tax rates can lead to a redistribution of wealth and ultimately mitigate algorithmic supracompetitive pricing harm. …

Mobility-Restricting Covenants In Business Contracts: The Case Of Franchising, Francine Lafontaine, Lorenzo G. Luisetto, J. J. Prescott

Law & Economics Working Papers

Several studies show that restrictive covenants in employment contracts, such as noncompete agreements, may affect employees in detrimental ways, including by reducing mobility and suppressing wages. While such concerns are real, these clauses also have the potential to serve legitimate business purposes by helping companies protect valuable information, which can encourage investment and training and enhance social welfare. This paper explores the use of several types of covenants, including noncompetes but also confidentiality and post-relationship non-recruitment clauses, in franchise contracts, an important and accessible category of business contracts. Many of these contracts impose restrictive covenants on franchisees but also on …

A Comparative Analysis Of The Lack Of Contractual Protections In Female Dominated Opportunities: Collegiate Competitive Dancers And Cheerleaders Compared To Ncaa Student-Athletes And National Pageant Organization Titleholders Compared To Employees/Independent Contractors, Abigail Church

Michigan Journal of Gender & Law

The lack of contractual protections and regulations throughout female-dominated opportunities is abundantly clear in the collegiate competitive dance & cheer and the national pageant organization titleholders. Collegiate competitive dancers and cheerleaders have no standardized contractual requirements regarding their commitment to an academic institution or their engagement in NIL opportunities. Their NCAA recognized student-athlete counterparts, on the other hand, have extensive regulations and protections in place for both categories of contracts. In the pageant industry, pageant titleholders have no protection against the all-too-common procedural and substantive unconscionability of their service agreements, which can be found in confidentiality and arbitration clauses. In …

Repealing Reorgs, Reuven S. Avi-Yonah

Law & Economics Working Papers

Under the Supreme Court's opinion in Moore, it is likely that realization is essential for defining income as a constitutional matter. Therefore, when a transaction involves realization, it should presumptively be taxable unless there are very good reason for nonrecognition of gain. Given this reality, there are good reasons for Congress to consider repealing tax-free reorganizations and the other nonrecognition rules of the corporate tax, primarily for non-tax reasons. Acquisitive A, B, and C reorganizations and acquisitive section 351 transactions typically are used for large public corporations to acquire startups, which encourages monopolies. Triangular mergers raise corporate governance concerns …

From Medical Exceptions To Reproductive Freedom, David S. Cohen, Greer Donley

Michigan Law Review

Since the Supreme Court overruled Roe v. Wade in 2022, there has been a significant focus on pregnancy complications. This focus has created some risks. Highlighting medically indicated abortion stories could stigmatize the vast majority of abortion seekers who lack medical reasons for abortion and result in narrow remedies that do nothing to undermine abortion bans. This Article presents a way to convert these risks into an opportunity: to use pregnancy complications as a wedge to challenge abortion bans more generally and make abortion more accessible for everyone. We present a long-term strategy to dismantle abortion bans, using several legal …

Disability Rights On Probation And Parole, Alexis Karteron

Michigan Law Review

This Article addresses disability discrimination in community supervision programs, a large—but frequently overlooked—component of the criminal legal system and important contributor to America’s mass incarceration crisis. The long-standing concerns of legal scholars and advocates about disability discrimination in prisons and policing, particularly against people with mental health disabilities, apply with equal measure to probation and parole. This Article examines the experiences of people with intellectual/developmental, cognitive, and mental health disabilities to understand how disability discrimination manifests in probation and parole programs and identifies numerous policies and practices that likely run afoul of two major federal disability rights laws: the Americans …

Trump V. Slaughter: Brief Of Independent Agency Board Members And Scholars As Amici Curiae In Support Of Respondent, Samuel Bagenstos

Appellate Briefs

Amici are removed board members from independent federal agencies and scholars whose work includes the study of independent agencies and the separation of powers between the President and Congress. Amici advance the view that there are federal agencies whose responsibility for protecting the safety and stability of the national infrastructure or ensuring the structural integrity of government necessitates their independence. Significant negative consequences would likely follow if these agencies were to lose their independence and their work were to become politicized.

The Forgotten Weapon: Section 891 And The Origins Of U.S. Retaliatory Tax Policy, Reuven S. Avi-Yonah, Gianluca Mazzoni

Articles

The original version of the One Big Beautiful Bill Act (P.L. 119-21) included section 899, which would have imposed retaliatory taxes on individuals and corporations from countries that apply “discriminatory or extraterritorial” taxes to U.S. corporations, defined specifically to include digital services taxes and the undertaxed profits rule of pillar 2.

However, on June 26 Treasury Secretary Scott Bessent announced that a compromise was reached on the UTPR, and as a result, section 899 was removed from the OBBBA. Now that section 899 is gone, section 891 is the most important part of the United States’ legislative armory against “discriminatory …

Third-Party Accommodations, Doron Dorfman

Michigan Law Review

Does disability rights law impose an obligation on employers, schools, and other places of public accommodation to control the behavior of coworkers, students, or other third parties to accommodate an individual with disabilities? This Article examines that unexplored legal question and shows that the law frequently fails to protect people with disabilities from the choices and behaviors of third parties. Judges often consider these major barriers to access beyond the reach of the Americans with Disabilities Act’s reasonable accommodation mandate. This Article argues that this problem results from improperly imposing the privity paradigm, a doctrine that limits the inquiry about …

The Victims’ Rights Mismatch, Lee Kovarsky

Michigan Law Review

A puzzling mismatch lurks inside victims’ rights law. Victims’ rights are most easily justified when held by living victims, but the cultural movement has triumphed largely as a response to crime-caused death. This Article identifies the mismatch between victims’ rights and their justifications in dead-victim cases, analyzes the normative questions involved, and recommends an institutional response. The mismatch persists because American jurisdictions assign a single bundle of rights to all people denominated as “victims.” In dead-victim cases, however, the primary bearers of interpersonal harm are gone. Instead, their rights are assumed by aggrieved family members and legal estates. In those …

Reforming Abolition, Daniel Fryer

Michigan Law Review

Abolition is an elusive concept, which allows people with various political views to identify with the idea. This Article unpacks some of the conceptual features that lead to its elusiveness. This imprecision has empowered some to point out the diverse—if not inconsistent—positions that self-identified abolitionists take when articulating the contemporary abolition movement’s demands. The question then becomes whether the movement could protect itself from being a rootless position with insufficient tools to guide change. I suggest that it can. Rather than getting caught up in debates about abolition’s ends, I propose that more attention be paid to abolition’s grounds. By …

A Core Proposal For Budget Caring - Will The E.U. Adopt A Progressive Corporate Tax?, Domenico Imparato, Reuven S. Avi-Yonah

Articles

On 16 July 2025, the European Commission unveiled its proposed EU budget for the 2028–2034 period, representing a nearly EUR two trillion fiscal commitment for the bloc’s taxpayers – both individual and corporate. As leaked by some media outlets in the days leading up to the official announcement, the EU budget would introduce a new mechanism known as the ‘Corporate Resource for Europe’ (CORE). In the Commission’s proposal, CORE is described as a ‘financial contribution’ from the corporate sector, intended to become part of the European Union’s system of own resources. In practical terms, however, it would function as a …

Corporate Taxation And Industrial Policy, Reuven S. Avi-Yonah

Articles

The Trump administration recently announced two new ventures into industrial policy. First, it will impose a levy on chip exports to China by Nvidia and Advanced Micro Devices (AMD). Under the agreement, Nvidia and AMD will pay the government 15 percent of their gross revenue from sales to China. The secretary of the Treasury has said the administration will consider expanding this type of deal to other industries. Second, the administration announced that it will take a 9.9 percent equity stake in Intel

Burdens Of Proof In Criminal Procedure, Eve Brensike Primus

Articles

The Supreme Court’s haphazard approach to allocating burdens of proof in criminal procedure has created a system in which constitutional rights can be rendered meaningless simply because defendants are required to prove things they cannot possibly know. Even though allocations of the burden of proof often drive litigation outcomes, the Court has failed to establish clear burden allocation structures for cases arising under the Fourth, Fifth, Sixth, and Fourteenth Amendments, leaving lower courts split about how to allocate the burdens. When the Supreme Court does allocate burdens, it often does so without explanation or consideration of key factors. Recent Supreme …

Good Cause For Goodness’ Sake: A New Approach To Notice-And-Comment Rulemaking, Hazel Rosenblum-Sellers

Michigan Law Review

Notice and comment is a public participation process, first articulated in the Administrative Procedure Act (APA), that was heralded at the time as a critical innovation to engage the general population in the administrative agency rulemaking process. It has been crippled in the past fifty years, first by a series of cases—primarily at the circuit court level—which imposed new procedural requirements on agencies outside the text of the APA itself, and then by technological advancements that have enabled sophisticated parties to game the system while boxing others out. Rather than creating a democratic open-door process, notice and comment has become …

Tort Law In A World Of Scarce Compensatory Resources, Mark A. Geistfeld

Michigan Law Review

Large corporations facing extensive tort liabilities have often gone into bankruptcy, forcing tort plaintiffs to accept pennies on the dollar as compensation for their injuries. Bankruptcy painfully illustrates the social fact that the compensatory properties of tort law depend on the availability of compensatory resources. Although this feature of tort law is self-evident, no one has adequately analyzed whether it matters for substantive tort doctrine, and if so, how.

Wealth would seem to be substantively irrelevant given the rule that excludes evidence concerning the defendant’s financial resources when determining breach or compensatory damages. The antecedent tort duty, however, depends on …

Citizen Shareholders: The State As A Fiduciary In International Investment Law, Eleanor L. Thompson

Michigan Law Review

International investment law provides stability for investors, helps capital flow across the globe, and can be a critical tool for sustainable development. This regime, however, has become increasingly controversial, in part due to its inability to reconcile investor obligations with competing human rights obligations. International investment treaties provide substantive guarantees to investors, including submission to binding arbitration in the event of breach. When found in breach of one of these guarantees, international investment arbitral tribunal awards are often in the hundreds of millions of dollars, potentially creating “regulatory chill” for states that may otherwise take affirmative action to protect human …

Is Confidential Supervisory Information Material To Investors? Evaluating The Conflict Between Banking And Securities Law, Peter Conti-Brown, Patrick M. Corrigan, Jeffery Y. Zhang

Law & Economics Working Papers

A central goal of modern US securities law is the transparency of corporate information through mandatory public disclosures. This goal is in tension with a central goal of banking law, namely, the practice of preserving opacity of the information exchanged between banks and bank supervisors to ensure the safety and soundness of individual banks and the entire banking system. That informational opacity in banking known as "confidential supervisory information" (CSI) applies equally to all banks, whether or not they sell securities subject to public disclosure requirements. The disclosure of CSI is prohibited by law and practice, with dire consequences for …

Facebook Decision Enables Irs To Seek - Cwi Enforcement Against Meta, Stephen L. Curtis, Reuven S. Avi-Yonah, David G. Chamberlain

Law & Economics Working Papers

In this report, the authors explain how the Tax Court's recent decision in the Facebook transfer pricing case - although widely viewed as a victory for the taxpayer, Meta Platforms Inc.- could instead be a Pyrrhic victory because it enables the IRS to pursue a potentially substantial periodic adjustment against the company. The views expressed in this report are solely the authors' and do not necessarily reflect those of any other person or institution.

Too Scared To Use: Living Wills And Orderly Liquidation Of Too-Big-To-Fail Financial Institutions, Jeffery Y. Zhang

Law & Economics Working Papers

The term “too big to fail” became ubiquitous following the 2007-2008 Global Financial Crisis. Lawmakers, regulators, and scholars wondered if there was a better way forward than issuing an array of ad hoc bailout packages to large financial institutions. Congress, in enacting the Dodd-Frank Act, sought to address the concern by creating a new regulatory framework to resolve large financial institutions in an orderly manner.

First, Congress required too-big-to-fail institutions to file “living wills,” essentially planning documents that describe the institution’s path to a safe failure under the Bankruptcy Code—a failure that would not impact system-wide financial stability. Second, Congress …

Prosecutor Transparency Project: Racial Disparities Study (Washtenaw County, Michigan), Grady Bridges, J. J. Prescott

Law & Economics Working Papers

This report investigates and estimates racial disparities in prosecutorial decision-making in the Washtenaw County Prosecutor’s Office (WCPO) from 2017 to 2022. The analysis relies on currently available data resources at the WCPO and examines decision-making at four different junctures in the prosecutorial process: 1) case approval (i.e., warrant authorization) and charge selection, 2) habitual-offender designation (under Michigan law), 3) plea bargaining, and 4) diversion and deferral opportunities. Racial disparities appear most visibly at the earliest stages of the criminal justice process, with People of Color substantially overrepresented in the warrant requests the WCPO receives from law enforcement. The data further …

From Relic To Relevance, The Resurgence Of Tariffs, Reuven S. Avi-Yonah, Doron Narotzki, Tamir Shanan

Law & Economics Working Papers

Modern legal scholarship has largely relegated tariffs to economic analysis, overlooking their legal and policy significance. This article challenges that view by examining tariffs as a potential pillar of fiscal policy, exploring their viability as a revenue source alongside or in place of traditional income and corporate taxation. While historically central to U.S. government funding, tariffs diminished in importance with the rise of income taxation and trade liberalization. However, their recent resurgence as a tool for trade protection raises broader questions about their role in national economic strategy. This article critically assesses the feasibility of a tariff-based tax system, drawing …

Why Financial Crises Recur, Gary B. Gorton, Jeffery Y. Zhang

Law & Economics Working Papers

Financial crises have occurred around the world for over two centuries. These crises have been so costly and frequent that one wonders why governments cannot prevent them from recurring despite repeated, wide-ranging attempts at legislation, regulation, supervision, and enforcement.

In this article, we argue that lawmakers repeatedly act in two ways that may appear to be intuitive but are actually detrimental to system-wide stability. First, lawmakers fail to understand that “banks”—both traditional banks and shadow banks—produce runnable short-term debt, unlike other firms in the economy. To produce short-term debt, banks operate with opacity. Yet a regulatory framework based on secrecy …

Reasoning From Injustice, Robert L. Tsai

Michigan Journal of Race and Law

In a series of lectures at Yale Law School, the Harvard political theorist Judith Shklar critiqued leading models of justice as overly abstract and lacking a realistic account of the social dynamics that perpetuate injustice. In this essay, Professor Tsai builds on Shklar’s account of injustice as a social phenomenon by offering a structural reading of key literary texts that explore the nature of legal injustice—from the Book of Job to Harriett Beecher Stowe’s Uncle Tom’s Cabin and Frederick Douglass’s The Heroic Slave. A close reading of these texts permits us to flesh out Shklar’s observations and “give injustice …

(Re)Birth Of A Nation: Reconstruction’S Unfinished Business, Zanita E. Fenton

Michigan Journal of Race and Law

The irony, alluding to the title of the 1915 silent movie Birth of a Nation, seeks to make conspicuous the counter-stories that more authentically account for the “birth” and development of American society. Ku Klux Klan-sponsored propaganda designed to evoke hyper-racist fearmongering and perpetuate sexual paternalism over White women, the plot from Birth of a Nation reflects the paradigmatic race-bait: relentless pursuit of a White woman by a Black man. This storyline was fictionalized, culturally unrealistic and deliberately omitted the very real sexual exploitation of Black women and girls. Birth of a Nation parallels Constitutional history that marginalizes supplemental …

An In-Depth Criticism Of Shaw V. Reno, Katherine M. Perez-Oviedo

Michigan Journal of Race and Law

If I have learned one thing from my semester taking Critical Race Theory, it is that the United States Supreme Court has repeatedly issued decisions that directly impede on remedial efforts to address past racial discrimination. When the question of “how can we use the law to instill social change?” is proposed in class discussion, it is difficult to imagine a world in which the Court would support the progressive measures suggested.

Realizing Nepa’S Reasonable, Productive, And Enjoyable Harmony: The Fiscal Responsibility Act’S Amendments And Implications For Practitioners, L. Sheldon Clark, Catherine E. Kanatas, Maxwell C. Smith

Michigan Journal of Environmental & Administrative Law

The National Environmental Policy Act (NEPA), the “Magna Carta” of environmental protection, serves two important purposes: providing (1) decision makers and (2) the public with a federal agency’s assessment of the impacts that may occur from its proposed or selected course of action before the agency acts. Despite frequent criticism about NEPA reviews causing costly project delays, NEPA’s procedural requirements and framework had remained unchanged for more than 40 years. That all changed with the Fiscal Responsibility Act of 2023 (FRA). The writing on the NEPA wall is now very clear: agencies must now produce shorter NEPA analyses with a …

Noise Law, Joshua Ulan Galperin

Michigan Journal of Environmental & Administrative Law

The rumble of traffic, the drone of air conditioners, the blast of construction equipment. These are the mundane sources of noise pollution that we all experience but rarely think about. Or, if we do think about noise pollution, we don’t think of it as a central piece of federal environmental law. This Article, however, demonstrates that noise law is, or was, central to American environmental law, and it offers insights into how environmental protection and administrative governance work today.

In the 1970s, during the height of environmental activism and policymaking, lawmakers recognized noise as a serious pollutant alongside issues we …