Digital Commons Network^™

Keynote: Promoting Disability Equality Behind Bars, Margo Schlanger

Articles

A few years back, I finished a five-year appointment as a “settlement monitor” in a state prison system for a civil rights case about deaf and hard-of hearing people incarcerated there. With the consent of the parties, I had been appointed by a federal court to spend time in the state’s prisons, talking to prisoners and staff, and reviewing records and facilities. I saw some obvious problems. I recall one deaf prisoner; he used American Sign Language to communicate and could not speak at all. He was found to have committed a disciplinary infraction at a proceeding where he could …

Ai And Tribal Court Practice, Matthew L.M. Fletcher

Articles

American Indian tribal court practice resides at the intersection of two difficult legal problems. First, because tribal justice systems are usually very young and dynamic, awareness and analysis of tribal law is underdeveloped. Second, because tribal nations are not governed by state or federal law, tribal law is culturally unique. Tribal court practitioners often find that even routine legal matters will involve questions of first impression in the jurisdiction. All of this is to say tribal court jurisprudence is intensely jurisgenerative.

Because tribal law is often unsettled or indeterminate, the costs of discovering and applying this law are occasionally high. …

Should Congress Reform The Accumulated Earnings Tax?, Reuven S. Avi-Yonah

Articles

In this installment of Reflections With Reuven Avi-Yonah, Avi-Yonah explains why the shifting landscape of the corporate tax rate requires congressional intervention. The Tax Cuts and Jobs Act 2017 permanently cut the corporate tax rate from 35 percent to 21 percent, and the Republican victory in the 2024 presidential election means that the rate is unlikely to be raised in the next four years. This means that there is, once again, a large disparity between the top individual tax rate of 37 percent (scheduled to increase to 39.6 percent in 2026 unless Congress acts) and the corporate rate. The corporate …

Should Harvard And Other Large Nonprofits Be Taxed?, Reuven S. Avi-Yonah

Articles

In this installment of Reflections With Reuven Avi-Yonah, Avi-Yonah examines justifications for exempting Harvard University and other large nonprofits from tax and argues that treating those organizations like large C corporations would not be such a bad thing. The proposal to subject large university endowment investment income to the corporate tax rate of 21 percent instead of the current 1.4 percent rate has engendered significant debate. More recently, President Trump’s threat to strip Harvard University of its tax-exempt status and treat it as a taxable corporation has likewise been controversial. In their recent Tax Notes article, Harvey Dale, Daniel Hemel, …

Can Side By Side Work?, Reuven S. Avi-Yonah

Articles

On June 26 Treasury Secretary Scott Bessent announced that a compromise had been reached between the United States and the rest of the G7 (Canada, France, Germany, Italy, Japan, and the United Kingdom), providing that pillar 2 of the OECD’s two-pillar global tax reform project will not apply to U.S. multinationals. As a result, proposed section 899, which would have imposed retaliatory taxation on corporations from countries that apply pillar 2 (and specifically the undertaxed profits rule) to U.S.-based multinationals, was removed from the One Big Beautiful Bill Act.

The Irs Approach To Periodic Adjustments: Losing Bet Or Royal Flush?, Jeffery M. Kadet, Reuven S. Avi-Yonah, David G. Chamberlain, Stephen L. Curtis

Articles

In this article, the authors argue that GLAM 2025-001 is consistent with the terms and purposes of the commensurate with income provision, relevant legislative history, and applicable case law and that the IRS approach to commensurate with income enforcement is a valid application of discretion delegated by Congress to the Treasury under Loper Bright.

Consensus And Conflict Over Context: Select Criminal Law And Procedure Cases From The Supreme Court's 2024-25 Term, Eve Brensike Primus, Elena Schultz

Articles

In its 2024-2025 Term, the Supreme Court emphasized the utility—and necessity—of context-based, fact-sensitive analyses throughout its criminal law and procedure cases. Though the Justices sparred over how to derive meaning from factual, structural, legal, and historical contexts, they tended to agree that courts should not be artificially restricted from considering the breadth of the record before them.

Periodic Adjustments And The Arm's Length Principle, Reuven S. Avi-Yonah

Articles

The Internal Revenue Service (IRS) recently issued AM 2025-001, whichrepresents a significant change in its interpretation of the periodic adjustment rules for transfers of intangibles within a multinational and forcost-sharing agreements.Arguably, this finally brings the IRS into compliancewith the “commensurate with income” language added to Code Sec. 482 in1986.

The State Capacity Crisis, David Schleicher, Nicholas Bagley

Articles

Crumbling infrastructure, inadequate housing supply, failing schools, public disorder—few government services seem to work as they should. For a decade, a nascent scholarly movement has been warning that America faces a crisis of state capacity. Although the major figures in this “state capacity movement” have identified the right problem, they concentrate almost exclusively on the federal government. That yields a misdiagnosis of why the American government lacks capacity and leads to solutions that are unlikely to accomplish much. In the United States, it is state and local governments that do most of what “the state” does, and they suffer from …

Examining State Climate Superfund Legislation, Madison Calhoun, Rachel Rothschild, Jonathan Binder, Elenda Mihaly, Justin Mankin, Ben Lippard, Mary Wood

Articles

There has been an influx of “climate superfund” bills introduced and adopted in state legislatures across the country. Modeled after the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), these laws are designed to recover costs from large emitters of greenhouse gases (GHGs) to pay for climate adaptation infrastructure. Following CERCLA’s strict liability framework, major polluters in New York and Vermont would be required to pay into state-managed funds in proportion to their shares of total GHG emissions; California, Maryland, Massachusetts, New Jersey, and Oregon have proposed similar bills. On March 19, 2025, the Environmental Law Institute hosted a …

John P. Davis And The Joint Committee, Pamela A. Izvănariu

Michigan Journal of Race and Law

This Article uses archival research and social movement theory to recover a critical but untold story about how John P. Davis innovated novel modes of organizational mobilization and multidimensional advocacy to build power and movement at the intersection of race and the economy in the Jim Crow and New Deal era. It examines Davis’s mobilization of the Joint Committee on National Recovery (JCNR), recovers the mobilization and advocacy models Davis engineered, and tells of the fight Davis and the JCNR waged to achieve racial and economic justice and effect a new— and truly emancipatory—New Deal.

Institutionalized Ostracism, Danieli Evans

Michigan Journal of Race and Law

Belonging is a fundamental need, like food or water. Hundreds of social psychology studies find that people who are ostracized (excluded, rejected, or ignored) experience severe pain and suffering. Ostracism threatens basic needs, triggers the same neurocognitive processing system as physical pain, and impairs functioning. Furthermore, ostracized people may cope in ways that beget “deviant” labeling and further ostracism.

Belonging and ostracism are prevalent themes in social psychology research, but these constructs have received relatively little attention in law. This Article begins to explore the implications of this research for law. I make three contributions: First, I name and describe …

Police Gatekeeping, Emily M. Poor

Michigan Journal of Race and Law

The role of policing in American society is more pervasive (and less visible) than many acknowledge. Police do not just patrol, arrest, and keep peace – they also gatekeep. Many and varied ostensibly non-criminal processes rely on police fact-finding to adjudicate claims, establish eligibility for resources, and take adverse action against individuals. This Article examines the phenomenon of police gatekeeping, both as a practical barrier to resources and remedies and as a hegemonic mechanism to construct the social conception of truth.

Recognizing the ways in which civil society relies upon police as gatekeepers of both practical resources and the social …

Tribal Legal Licensing Of Attorneys, House Counsel Status, And The Opportunity To Redefine The Jd Preferred Position And The Entire Lawyer Ecosystem, Nicholas J. Stamates

Michigan Journal of Race and Law

The recognized right of Indian Tribes to license has been a known reality dating back to the Supreme Court’s ruling in Worcester v. Georgia, 31 U.S. 515 (1832) where state law was found inapplicable on the lands of the Cherokee. However, the modern implications of tribal licensing and regulation have only just begun to be explored in the context of the modern American regulatory system. In fact, the ability of Indian Tribes to license attorneys to practice law within their court systems has largely gone unexamined outside of a few exceptions such as the Tribal Law and Order Act …

An Ecofeminist Approach To Climate Risks, Angela Hefti

Michigan Journal of International Law

Climate change poses significant risks to the human right to life. However, international adjudicators have either neglected to examine right to life claims in the context of climate risks or dismissed them as prospective and speculative. International human rights bodies have long applied the standard of imminence to determine whether a threat to the right to life exists and the extent to which it constitutes a violation. In climate change cases, this standard has hardened, requiring a tight temporal connection between climate risks and a violation of the right to life. This article argues that failing to recognize the impact …

Transparency, Accountability, And Influence In The International Investment Law System, Jarrod Wong, Jason Yackee

Michigan Journal of International Law

This article offers the first interdisciplinary critique of transparency in international investment law (“IIL”) that draws on transparency-skeptical and accountability scholarship in political science and public administration. Not only has the expansive IIL literature overlooked these disciplines, but much of it fails to define the core concept of transparency. Building on contributions from the fields of administrative law, international relations, and system theory in classic political science, we provide a novel functionalist account of transparency that traces a line from transparency to accountability to influence in the IIL system.

We make three arguments. First, transparency involves access to data that …

Automating International Human Rights Adjudication, Veronika Fikfak, Laurence R. Helfer

Michigan Journal of International Law

International human rights courts and treaty bodies are increasingly turning to automated decision-making (“ADM”) technologies to expedite and enhance their review of individual complaints. These tribunals have yet to consider many of the legal, normative, and practical issues raised by the use of different types of automation technologies for these purposes. This article offers a comprehensive and balanced assessment of the benefits and challenges of introducing ADM into international human rights adjudication. We argue in favor of using ADM to digitize documents and for internal case management purposes and to make straightforward recommendations regarding registration, inadmissibility, and the calculation of …

The Comstock Act’S Equal Protection Problem, Danny Y. Li

Michigan Law Review Online

Following its victory in Dobbs, the antiabortion movement has set its sights on a national abortion ban. Affiliates of the second Trump Admin- istration—including the vice president-elect—have endorsed the re- newed enforcement of the 1873 Comstock Act as one avenue for implementing such a ban. This Essay argues that contemporary enforce- ment of the Comstock Act as a national abortion ban would be unconsti- tutional. The Act violates the Fifth Amendment’s equal protection guarantee because it was enacted with the discriminatory purpose of in- hibiting illicit sex to promote women’s sexual purity. Only contemporary reenactment of the law without constitutionally …

The Federal General Counsel, Law, And Our Democracy At A Crossroads, Seth Frotman

Michigan Law Review Online

This speech, given by the general counsel of the Consumer Financial Protection Bureau (CFPB) on January 7, 2025, examines how federal government lawyers can help ensure that laws are faithfully administered to address the contemporary challenges facing American citizens. Despite the CFPB’s successes in protecting consumers from predatory financial practices—particularly amid the rapid digital transformation of the economy—undemocratic forces have increasingly rigged the legal system to serve as both sword and shield for the powerful. The speech describes how judge-made doctrines like “major questions” have been weaponized to disempower Congress from writing statutes with enduring relevance. These challenges represent an …

Neighborliness Vs. Car Culture: Traffic Violence, Pedestrian Deaths In Philadelphia, And Vision Zero's Concept Of Equity, Regina Austin

Journal of Law and Mobility

Vision Zero (VZ) is a transportation policy adopted by major cities like Philadelphia that aims to reduce or eliminate traffic violence, primarily through improvements in the transportation infrastructure. VZ prioritizes engineering (over enforcement), community engagement, and perhaps most importantly, equity. In the battle for superiority among users of land-based travel modes in America, automobile drivers have benefited from arterial highways that speed traffic flows around and through urban enclaves to reach center city business districts and from a car culture that encourages dominant behavior behind the wheel. Pedestrians have been among the losers.

In Philadelphia, as elsewhere, pedestrians who are …

Jerking The Rug Out From Under A Trade Secret Licensee: Is Transfer Of The Patent A Remedy?, Henry H. Perritt Jr.

Michigan Technology Law Review

Predominantly state trade secret law and exclusively federal patent law enjoy a sometimes-uneasy coexistence. Inventions almost always are secret until and unless they are patented; publicizing them for too long will negate the availability of a patent. Misappropriation of trade secrets often is accompanied by application for a patent on the same subject matter. This commonly occurs when an employee gains access to his employer’s trade secrets, quits, and then applies for a patent on them in his own name, maybe after going to work for a competitor of the original employer. It is also conceivable that the owner of …

Crisis And Change At The United Nations: Non-Amendment Reform And Institutional Evolution, Oona A. Hathaway, Maggie M. Mills, Heather Zimmerman

Michigan Journal of International Law

The Security Council’s inaction in response to the wars in Gaza and Ukraine has once again put a spotlight on structural problems at the United Nations (“U.N.”). Security Council paralysis—particularly the (mis)use of the veto power afforded to the permanent five (“P5”) members of the Council—has long prompted calls for reform. Yet the same veto power prevents nearly all efforts to reform the organization through the formal amendment process provided in the U.N. Charter.

This article argues that there is an alternative way forward: what we call “non-amendment reform.” Rather than seek formal amendments that are unlikely to survive the …

Facial Recognition Technology And The First Amendment, Joseph A. Tomain

Michigan Technology Law Review

The growing ubiquity of facial recognition technology (FRT) is a problem. While much has been written on harmful government use of FRT, little has been written about harmful use by private actors. This Article helps fill that gap in the literature by providing a detailed analysis of the First Amendment interests at stake when private actors use FRT. Specifically, this Article analyzes whether laws that limit the use of publicly available photographs to create “faceprints” for inclusion in FRT databases violate the First Amendment rights of the private actors creating these databases.

In May 2025, a multidistrict litigation against Clearview …

Are We Trapped By Realization?, Reuven S. Avi-Yonah

Articles

In this installment of Reflections With Reuven Avi-Yonah, Avi-Yonah examines the downsides of the realization requirement and potential solutions to them. In an excellent Tax Notes article, Steven Sheffrin recently mounted the most convincing defense of the realization requirement I have read. He explained that the case for taxing unrealized capital gains is based on the Haig- Simons definition of income. In this definition, income equals consumption plus savings when savings includes both realized and unrealized capital gains. If asset prices change because of changes in future cash flows, Haig-Simons income can provide an appropriate guide for designing tax policies.

Minor V. Happersett And The Repudiation Of Universal Suffrage, Ellen D. Katz

Articles

Nearly 150 years ago, Minor v. Happersett rejected a constitutional challenge to a Missouri law that excluded women from the electorate. Ratification of the Nineteenth Amendment forty-five years later is often said to have “overturned” Minor. In fact, the Amendment did no such thing. Minor held that voting is not among the privileges of citizenship protected by the Fourteenth Amendment. The Nineteenth Amendment says nothing to the contrary, and instead bars laws and practices that deny or abridge the right to vote “on account of sex.” Minor remains good law today.

It was not happenstance that the Nineteenth Amendment …

Voter Harassment And The Limits Of State And Federal Power, Ellen D. Katz

Articles

Acts of voter harassment are often difficult to prevent. One longstanding, albeit underused, tool for addressing such harassment is found in section 11(b) of the Voting Rights Act (VRA). Continued use of the provision, however, is threatened by recent decisions restricting private enforcement of the VRA. This Essay examines one challenge to such enforcement, exploring the linkage between section 11(b)’s prohibition on voter intimidation and the enforcement of constitutional voting guarantees, on which private enforcement of the provision presently depends. It invites consideration of the idea that this linkage is sufficient and private enforcement is appropriate because section 11(b) provides …

Memory, Resistance, And Doubt, Richard Primus

Articles

Burroughs v. United States is not a famous case. But it could be. Its central character was a famous man. James Cannon, Jr., was a bishop in the Methodist church, a player in the worlds of business and banking, a ruthless political power broker, and a zealous Prohibitionist. In Virginia, where he lived, his role within the Democratic Party earned him the informal title of “the dry boss of the state,” and his influence extended well beyond the Old Dominion. Indeed, the essayist H.L. Mencken identified Cannon as the most important Prohibitionist in the country. “More than any other man,” …

The New Substantive Due Process, Leah M. Litman

Articles

After the Supreme Court overruled Roe v. Wade, commentators made much about the possible demise of substantive due process—the idea that the Constitution safeguards certain substantive liberties that are not specifically or explicitly spelled out in the Constitution. Judges and scholars are debating which substantive due process decisions are next on the chopping block and whether the entire domain of substantive due process is in jeopardy. But a curious thing happened as the Court scaled back and openly questioned the traditional individual-rights line of substantive due process: Rather than eliminating it entirely, the Court seems to have transposed it elsewhere. …

Inventing Birthright: The Nineteenth-Century Fabrication Of Jus Soli And Jus Sanguinis, Sam Erman, Nathan Perl-Rosenthal

Articles

Formal membership in a state has been an essential political status for well over a century. It is typically gained at birth, either jus soli or jus sanguinis. Jus soli assigns nationality by birth in a nation's territory; jus sanguinis assigns children their parents’ nationality. This article provides an alternative intellectual history of the modern dominance of these principles for attributing nationality. Contrary to prior scholarship, soli and sanguinis were not restatements of existing principles. The soli/sanguinis binary was a nineteenth-century invention. Old-regime European empires attributed membership in the community under one or another single natural law principle. Parentage and …

Labor Law, Ownership, And The Firm, Sanjukta Paul

Articles

In shaping economic coordination within and across both firms and markets, one significant action of law is to allocate privileges or rights between people or groups of people. These include the right to coordinate with other people or groups of people in particular ways regarding core economic decisions-a type of activity that is not always or in all circumstances legally permissible. An area that makes this more general action of law especially concrete is antitrust or competition law, with its collection of "exemptions." Antitrust's formal and informal exemptions quite directly allocate economic coordination rights, for particular kinds of activity, and …