Digital Commons Network^™

Three Proposals For Fixing The Tcja, Reuven S. Avi-Yonah

Articles

The year 2025 promises to be important in U.S. tax history for three reasons. First, the expiration of the individual provisions of the Tax Cuts and Jobs Act means that Congress is very likely to enact important tax legislation to prevent tax increases for millions of individual taxpayers. Second, a new administration frequently means tax legislation, typically through budget reconciliation if the same party controls Congress (1981, 1993, 2001, 2017, 2022). Third, the trifecta of Supreme Court decisions in 2024 (Moore, Corner Post, and Loper Bright) suggests that there may be a spike in litigation challenging various tax provisions as …

Next Steps In Online Courts: Accelerating Access To Justice Through Court Technology, J.J. Prescott

Articles

For more than a decade, state courts have been expanding access to justice by adopting online dispute resolution (ODR) platforms and other outward-facing communication technologies. At a deep level, these reforms aim at improving society by bolstering the rule of law. At a surface level, these innovations recognize that the justice system works better when courts and law are easier and less costly to understand and use. In important respects, these efforts have been a success. The accessibility of many state courts is considerably more robust today than it was ten years ago, at least for small-stakes cases, like traffic …

Marriage, Courts, And Substantive Equality: A Transformative Interpretation, Kushagr Bakshi

Michigan Law Review

Courts in various jurisdictions have relied on either the right to privacy or the right to equality to offer protections to the LGBTQ+ community. The use of different rights to achieve similar ends may seem like an empty distinction. But the differences in the nature and function of each right evince the differences in the construction of rights across jurisdictions. In the traditional liberal method of conceptualizing rights, privacy is typically a negative right, restricting the state from interfering in intimate relationships between individuals. Courts operating within a transformative framework of rights interpretation, however, rely on the positive right to …

The New Frontier Of Guidance Reviewability, Tomás Rios

Michigan Law Review

In the administrative context, agency actions must be “final” to trigger judicial review. The Supreme Court’s opinions in Sackett v. Environmental Protection Agency and U.S. Army Corps of Engineers v. Hawkes Co. marked an important shift in finality doctrine by emphasizing that the calculus of whether agency guidance is “final” may turn on its practical effects. For decades, agency guidance rarely warranted judicial review because it is not legally binding and, thus, not final. But the advent of the Sackett-Hawkes pragmatic analysis has changed the landscape, raising particular concerns for agencies relying on promulgating guidance documents to “softly” regulate. This …

Repurposed Energy, Alexandra B. Klass, Hannah Wiseman

Articles

Wildfires, weather extremes, and other conditions induced partially by climate change add urgency to the project of accelerating the clean energy transition from fossil fuels to zero-carbon energy infrastructure. Yet the hurdles to accomplishing such a massive industrial-scale transition are daunting. Indeed, large renewable energy generation projects regularly face denials or project-killing delays across the United States. This Article proposes a national policy to channel the bulk of new clean energy projects to targeted categories of both rural lands and urban, post-industrial lands that we define collectively as “repurposed energy” sites. Such lands will consist of marginal farmland, abandoned coal …

Chevron's 51 Imperfect Solutions., Christopher J. Walker, Neena Menon

Articles

In June 2024, the U.S. Supreme Court eliminated the judicial deference federal agencies previously received for their statutory interpretations, overturning the Court’s landmark 1984 decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. While Chevron was never binding on state courts, where the balance of powers and state constitutions may require different or no deference to agencies, numerous states have adopted Chevron deference, Skidmore weight, or similar deference regimes for judicial review of agency legal interpretations. Despite these developments, little scholarly attention has been paid to how and why states have developed administrative law’s deference doctrines, how the …

The Basis For Election Exceptionalism In Justiciability And Related Doctrines: Constitutional Compensation In Light Of Purcell, Vikram D. Amar, Evan H. Caminker

Articles

Pursuant to the so-called Purcell doctrine, lower federal courts (and perhaps the U.S. Supreme Court itself) are supposed to refrain from issuing remedies that would alter the rules for election administration in the run-up to Election Day. Whether or not the Purcell rule’s purported justifications are persuasive (e.g., concerns about voter confusion, candidate and campaign expectations, smooth operation of election logistics), one tremendously problematic entailment of Purcell is that elections are held (and candidates are elected and policies are determined) even when serious doubt exists about the legality of the contests under federal statutes and the Constitution. Because of these …

Paying For Performance? Attorneys' Fees In Fraud Class Actions, Stephen J. Choi, Jessica M. Erickson, Adam C. Pritchard

Articles

This paper studies whether plaintiffs' lawyers matter in securities class actions. We use inverse propensity score weighting (IPW) to compare the results in cases led by top-tier firms against those brought by lower-tier firms. This technique addresses case selection effects by using all of the cases led by a top-tier firm and then weighting the cases led by lower-tier firms based on how similar these cases are to the cases led by top-tier firms. We do find that top-tier lawyers obtain better outcomes for shareholders in a subset of securities class actions, specifically the cases against the larger (although not …

Frand Arbitration Will Destroy Frand, Barbara Lauriat

Michigan Technology Law Review

Standard essential patent-licensing disputes have been raising the costs of business in the telecommunications industry for over a decade. As technology and interconnectivity extend beyond mobile phones into the Internet of Things (“IoT”), the number of these disputes will only increase. While many academics, policymakers, and stakeholders support arbitration to resolve these disputes, this article warns of the potential long-term consequences of doing so on a large scale.

Standard Setting Organizations usually require the owners of patented technology included in industry standards to commit to licensing on Fair, Reasonable, and Non-discriminatory (“FRAND”) terms to avoid potential abuse of their market …

The Implications Of Chatgpt For Legal Services And Society, Andrew Perlman

Michigan Technology Law Review

On November 30, 2022, OpenAI released a chatbot called ChatGPT.1 To demonstrate the chatbot’s sophistication and its potential implications, both for legal services and society more generally, most of this paper was generated in about an hour through prompts within ChatGPT. Only this abstract, the preface, the outline headers, the footnotes, the epilogue, and the prompts were written by a person. ChatGPT generated the rest of the text with no human editing. To be clear, the responses generated by ChatGPT were imperfect and at times problematic, and the use of an AI tool for law-related services raises a host of …

"Legally Magic" Words: An Empirical Study Of The Accessibility Of Fifth Amendment Rights, Roseanna Sommers, Kate Weisburd

Law & Economics Working Papers

Fifth Amendment case law (including Miranda v. Arizona) requires that individuals assert their right to counsel or silence using "explicit," "clear," and "unambiguous" statements - or, as some dissenting judges have lamented, using "legally magic" words. Through a survey of 1,718 members of the U.S. public, we investigate what ordinary people believe it takes to assert the right to counsel and the right to silence. We then compare their perceptions against prevailing legal standards governing invocation.

With respect to the right to counsel, the survey results indicate that members of the public have a uniformly lower threshold for invocation than …

Can Congress Give Unaffected Taxpayers Standing, Reuven S. Avi-Yonah

Articles

A recurring problem in tax law arises when the IRS promulgates a regulation or a notice that is too favorable to taxpayers.1 The problem is that nobody has standing to challenge the regulation. The IRS cannot challenge its own regulation, and taxpayers affected by the regulation have no interest in challenging it (and even if they did, they cannot show a concrete injury sufficient to establish standing). Congress may intervene, but that is rare for a taxpayer-favorable regulation (indeed, Congress sometimes intervenes to block IRS attempts to roll back its own regulations). Taxpayers unaffected by the regulation do not have …

Comity & Federalism In Extraterritorial Abortion Regulation, Jensen Lillquist

Michigan Journal of Gender & Law

On June 24, 2022, the Supreme Court decided Dobbs v. Jackson Women’s Health Organization and held that states may regulate abortion in whatever manner they wish. In the wake of Dobbs, commentators and laypersons have focused primarily on its implications for reproductive rights and other fundamental rights—such as gay marriage. Less often discussed are the questions that arise regarding state extraterritorial jurisdiction. Since Dobbs, a patchwork of laws has developed: pro-life states have placed greater restrictions on abortion, while pro-choice states have sought to expand abortion access. Questions have arisen regarding whether and to what extent states may regulate the …

Abortion Access For Incarcerated People Post-Dobbs, Kate Bock

Michigan Journal of Gender & Law

Dobbs v. Jackson Women’s Health Organization has fundamentally altered the legal landscape regarding abortion access. Though abortion rights for all people across the United States have now been eliminated or are in jeopardy, incarcerated people are a particularly vulnerable group, given the way carceral institutions restrict autonomy and the drastic health implications of an unwanted pregnancy while confined. Before Dobbs, detained people retained the constitutional right to an elective abortion while incarcerated. To remedy violations of this right, women brought claims under the Fourteenth Amendment and the Eighth Amendment. In a post-Roe world, however, incarcerated folks denied abortion …

Tort Liability, Privacy, And Regulatory Considerations For Level 3 Autonomous Vehicles, Ryan H. Jones

Michigan Technology Law Review

Recent developments in emerging technology, such as artificial intelligence, robotics, and autonomous vehicles, have generated inquiries about the incorporation of these technologies into the law, as well as the philosophical and ethical questions that accompany their use. This paper considers existing legal doctrine and regulatory frameworks as applied to the niche area of Level 3 autonomous vehicles. Specifically, this paper considers tort liability in the form of negligence and products liability, privacy risks, and regulatory considerations in relation to Level 3 vehicles. Finally, societal risks and potential solutions are considered to provide insight into potential areas of additional work.

From Biased Data Inputs To Your Discriminatory Diagnosis Outputs: A Review Of Legal Liability For Artificial Intelligence In Healthcare, Amber Bolden

Michigan Technology Law Review

While health disparities in America occur due to non-medical circumstances, certain protected classes experience healthcare disparities due to the biases of medical professionals. Biased diagnoses, both intentional or unintentional, have existed throughout the history of the medical profession. That those biases are becoming data for training algorithms raises concerns as the medical field increasingly incorporates and standardizes artificial and augmented intelligence in patient diagnosis and treatment. Currently unregulated but with lifedetermining potential, artificial intelligence (AI) when used in patient treatment leads to important questions: should the doctor, the provider, or the AI developers be liable, and for what? Section II …

Repair As Research: How Copyright Impedes Learning About Devices, Anthony D. Rosborough, Aaron Perzanowski

Michigan Technology Law Review

Widespread computerization and ubiquitous smart devices have enabled software-based copyright governance to reach into new domains. Beyond their instrumental utility, those devices contain vast amounts of information in the form of software and technical know-how. Through copyright and anti-circumvention rules, however, this information can be cordoned off and confined to exclusive distribution channels, significantly constraining research. While copyright law traditionally conceives of research as the use of expressive works within institutional settings, we propose a broader conceptualization that embraces device research, including informal inquiries and DIY activities. Whether for the purposes of modification, repair, user innovation, or testing, device research …

Formalizing Fairness: Statistical Measures Of Parity For Recidivism Prediction Instruments, Joshua Song

Michigan Technology Law Review

Recidivism prediction instruments (RPI) are increasingly employed as an algorithmic arm of the criminal justice system to assist in bond, sentencing, and probation determinations. Due process and ethics guidelines require that RPIs, such as the Correctional Offender Management Profiling for Alternative Sanctions (COMPAS), apply a fair assessment in making recidivism predictions. To establish fair RPIs, we must first define standards of fairness and methods to measure bias in RPI outputs. However, defining algorithmic fairness can be cryptic and context-dependent. Scholars have proposed different criteria for what defines a fair RPI. Unfortunately, these criteria are conflicting and mutually exclusive; it is …

Should Ireland Have Taxed Apple?, Reuven S. Avi-Yonah, Nessa Ní Chasaide

Articles

On September 10 the EU’s Court of Justice issued its long-awaited decision in the Apple state aid case. Surprisingly, it reversed the EU’s General Court decision and held that the European Commission was correct in finding that Ireland had provided prohibited state aid to Apple, and therefore Apple must pay Ireland the €13 billion in taxes that it would have paid but for the illegal subsidy. This state aid case, the largest in the EU’s history, highlights significant issues about the legal governance of corporate tax. This article examines the notable features of the Court ruling, then outlines why we …

Antiracist Medicine In Colorblind Courts, Govind Persad

Michigan Law Review

This Article considers how health professionals’ efforts to combat racial health inequities interact with legal restrictions constraining their ability to consider race. In light of the Roberts Court’s recent invalidation of two university admissions programs, intensifying a “colorblind” judicial shift, the collision between antiracist medicine and colorblind law is a pressing concern. This Article anticipates the implications of this collision and explores how health professionals and systems can design programs that survive judicial examination.

In Part I, the Article examines the frameworks that will apply if antiracist medicine faces legal challenges. These include the Equal Protection Clause and federal statutes …

Postmortem Privacy, Anita L. Allen, Jennifer E. Rothman

Michigan Law Review

Since their inception in the late nineteenth century, privacy rights have been widely understood to terminate with a person’s death. The “no-privacy-rights-for- the-dead” doctrine has been repeated for nearly 130 years. As demonstrated in this Article, the reality on the ground deviated from this common pronouncement even early on. The divergence is so great today that sustained consideration of postmortem privacy is essential. This is especially so given urgent calls to protect the digital assets of the dead and evolving technology that allows for the reanimation of deceased performers and loved ones. This Article provides a theoretical foundation for determining …

A Republic Of Spending, Jonathan S. Gould

Michigan Law Review

Large-scale spending measures make up many of Congress’s most important recent contributions to national policymaking. Congress has appropriated trillions of dollars to respond to emergencies, fight climate change, expand social safety net programs, spur technological innovation, and strengthen national infrastructure. While the contemporary Congress’s failure to enact landmark regulatory statutes causes many to characterize it as dysfunctional, Congress in fact remains quite active—its policymaking energy is simply concentrated in the spending domain.

Congress’s use of spending rather than regulatory legislation as its primary way of shaping national policy marks a significant shift in American governance. This Article examines the causes …

Don’T Be Cruel: Cruelty, Complicity, Self-Knowledge, And Growth, Sherman J. Clark

Articles

The papers in this symposium, and the larger body of scholarship to which this symposium is a contribution, ask us to attend to the often brutal and inhumane conditions in American jails and prisons. But why should we do that? Why should we confront the suffering of the incarcerated? Why should we ask ourselves whether that suffering is unjust, unnecessary, or even unconstitutional? The main reason, of course, is that we want to remedy those injustices. We care about the suffering of our fellow human beings, and people do not cease to be our fellow human beings merely because they …

Tossing Sand In The Regulatory Gears: Hurdles To Policy Progress In The Supreme Court, Nina A. Mendelson

Articles

In the last few years, the Supreme Court has been a source of seismic change. In Dobbs v. Jackson Women’s Health Organization, the Court overruled Roe v. Wade, which had protected the right to abortion for nearly fifty years. In Loper Bright Enterprises v. Raimondo, the Court abandoned so-called Chevron deference to particular categories of administrative agency interpretations, a doctrine viewed as bedrock for over forty years. Humphrey’s Executor v. United States, the 1935 ruling validating independent multi-member commissions such as the Federal Trade Commission, Securities and Exchange Commission, and Federal Communications Commission, may soon join the others on the …

Tax Delegation Post-Loper Bright, Reuven S. Avi-Yonah

Law & Economics Working Papers

In its recent decision in Loper Bright, the Supreme Court has fundamentally shifted the contours of judicial deference to administrative interpretations by repealing the Chevron doctrine. However, while the Court has curtailed deference, it simultaneously underscored the legitimacy of statutory delegation to agencies. The Internal Revenue Code (Code) is the most intricate legislative text within the U.S. legal framework, necessitating significant technical expertise for its application. It is, therefore, unsurprising that Congress often delegates authority to the IRS for the execution of the statute. In light of the Court's decision in Loper Bright, it becomes imperative to clarify the parameters …

Tax Delegation After Loper Bright, Reuven S. Avi-Yonah

Articles

This paper examines the scope of the IRS and Treasury’s tax reg-writing authority after the Supreme Court’s decision in Loper Bright.

Finding The Thinkable Thoughts, Beth H. Wilensky

Reviews

When John B. West developed his legal classification system in the 1880s, he likely didn’t anticipate that his system of indexing the law would persist into the twenty-first century. But persist it has, and flourished, most prominently in the form of Westlaw’s headnote and key number system. West’s index built on several precursors, but it was his version, West’s American Digest, that established the foundations of the classification system that most modern legal researchers use today, in one form or another.

This history—of the late-nineteenth-century fascination with indexing—and much more is told in charming detail in Dennis Duncan’s Index, A …

Curbing Private Enforcement Of The Voting Rights Act: Thoughts On Recent Developments, Ellen D. Katz

Michigan Law Review Online

For decades, private plaintiffs have brought claims to enforce key provisions of the Voting Rights Act (VRA). Recent decisions have tossed out these claims on the ground that enforcement authority lies solely with the Attorney General of the United States. These decisions are deeply flawed. The VRA’s text and structure, history, precedent, and longstanding practice all support private enforcement of the VRA—including private enforcement of Sections 2 and 11(b). This Essay explains why.

Chenery Ii Revisited, Daniel T. Deacon

Articles

Ever since the Supreme Court’s 1947 decision in SEC v. Chenery Corporation, known as Chenery II, agencies have enjoyed wide latitude to develop policy through individual adjudications in addition to rulemaking. Chenery II has never been completely uncontroversial, and in recent years, calls to overturn or limit it have been expressed in increasingly fervent tones. Agency policymaking by adjudication has emerged as a new front in the struggle over the administrative state.

Against the backdrop of such calls, this Article revisits some of the fundamental questions concerning the Chenery II doctrine. I argue in favor of retaining Chenery II’s core …

Antitrust After The Coming Wave, Daniel A. Crane

Articles

A coming wave of general-purpose technologies, including artificial intelligence ("AI"), robotics, quantum computing, synthetic biology, energy expansion, and nanotechnology, is likely to fundamentally reshape the economy and erode the assumptions on which the antitrust order is predicated. First, AI-driven systems will vastly improve firms' ability to detect (and even program) consumer preferences without the benefit of price signals, which will undermine the traditional information-producing benefit of competitive markets. Similarly, these systems will be able to determine comparative producer efficiency without relying on competitive signals. Second, AI systems will invert the salient characteristics of human managers, whose intentions are opaque but …