Digital Commons Network^™

A Fresh Look At Judicial Remedies In Eu Equality Law And Beyond: The Untapped Possibility Of Structural Injunctions., Daniel H. Halberstam, Sina Van Den Bogaert

Articles

This article proposes a shift in thinking about judicial remedies (or “sanctions”), from anti-discrimination law to equal pay and beyond.We suggest the currently preferred remedies – one-off declarations, compensation, fines, and simple orders to obey the law – may be insufficient when confronting a recalcitrant institution, complex violations, and broad, ongoing harm. In such cases, we suggest considering a remedy long overlooked in Europe: a “structural injunction”, i.e. ordering changes to an offending organization’s structure, processes, or rules. We argue that under certain circumstances, an injunction, including a structural injunction, may be appropriate or required under EU law to remedy …

The Origins Of The Major Questions Doctrine, Rachel Rothschild

Articles

In a series of recent cases, the Supreme Court has invoked the newly named “major questions doctrine” to strike down agency regulations that protect public health and the environment. Several Justices have argued that while the name “major questions” may be new, these decisions are simply the latest iteration in a longstanding effort of the courts to curtail the explosive growth of the administrative state since 1970. The first paradigmatic example of this line of cases is the 1980 “Benzene” case, in which the Supreme Court set aside the Occupational Safety and Health Administration (OSHA)’s new workplace standards for the …

A Global Wealth Tax?, Reuven S. Avi-Yonah

Articles

Mitt Romney famously said during his 2012 presidential campaign that “corporations are people.” Mindy Herzfeld’s column comparing the proposed 2 percent global wealth tax on billionaires with the corporate minimum tax (pillar 2) raises the opposite question: Are people like corporations for tax purposes? I would say no, for several reasons.

Crypto And The Exit Tax, Reuven S. Avi-Yonah

Articles

Robert Goulder has devoted one of his excellent columns to the fascinating case of “Bitcoin Jesus.” As explained by Goulder:

Another billionaire was in the news recently for reasons that relate to taxation, although it’s doubtful he will be accused of much virtue. The man known internationally as “Bitcoin Jesus” got himself arrested in Spain on April 27. He now faces extradition to the United States, where an eight-count criminal tax indictment awaits him. Bitcoin Jesus is coming home.

This is a far cry from the Jesus born in Bethlehem who once said that it was easier for a camel …

Regulating Algorithmic Harms, Sylvia Lu

Law & Economics Working Papers

In recent years, the rapid expansion of artificial intelligence (AI) innovations has led to a rise in algorithmic harms—harms emerging from AI operations that pose significant threats to civil rights and democratic values in today’s technological landscape. A facial recognition system for improving criminal detection wrongly collected sensitive personal data and flagged racial minorities as shoplifters. A risk-prediction algorithm adopted to identify patients denied medical treatment to Black individuals with poor health conditions. A social media algorithm intended to boost social engagement exacerbated addictive behavior and mental illness in teenagers. These harms are becoming increasingly ubiquitous yet often manifest in …

Consumer Privacy And The Dobbs Disruption, Mason R. Clark

University of Michigan Journal of Law Reform

The right to reproductive privacy is under attack in the United States, and it is losing ground. Dobbs v. Jackson Women’s Health Organization, the Supreme Court’s 2022 decision that overruled Roe v. Wade’s constitutional protection of abortion and jeopardized privacy rights by proxy, reflects this losing posture. Scholarship in reproductive privacy varyingly critiques federal privacy initiatives, evaluates regulatory interventions, and proposes civil rights frameworks in response to Dobbs. This Article, however, pinpoints how Dobbs created a gaping hole in state consumer privacy laws even as they propagated across the United States. Currently, there are no state consumer privacy …

Animals In Cost-Benefit Analysis, Andrew Stawasz

University of Michigan Journal of Law Reform

Federal agencies’ cost-benefit analyses do not capture nonhuman animals’ (animals’) interests. This omission matters. Cost-benefit analysis drives many regulatory decisions that substantially affect billions of animals. That omission creates a regulatory blind spot that is untenable as a matter of morality and of policy.

This Article advances two claims related to valuing animals in cost-benefit analyses, dubbed the “Weak Claim” and the “Strong Claim.” The Weak Claim argues that agencies typically may value animals in cost-benefit analyses. Usually, no legal prohibitions exist, and such valuation is within agencies’ legitimate discretion. The Strong Claim argues that agencies often must do so …

Shareholder Agreements In India: An Unsettled Jurisprudence., Vikramaditya S. Khanna

Book Chapters

Shareholder agreements (SAs) are becoming more common around the world as the ownership of companies become more concentrated. Larger investors— in particular, private equity investors— often document their understandings about their investments in increasingly sophisticated SAs. India has also witnessed a rise in SAs, usually with foreign private equity players, which reflects a level of sophistication and formality in contract negotiations that was not always present when such agreements were between family or affinity groups. This has placed increasing pressure on Indian case law to evolve in response to these agreements.

This chapter explores that response and finds that it …

Neutral Business Assistance And The Limits Of Complicity Under International Criminal Law, Nikola R. Hajdin

Michigan Journal of International Law

Business transactions between corporations and actors involved in grave human rights violations present significant challenges for the assessment of corporate criminal liability. This is particularly evident in cases of “neutral business assistance,” which refer to business conduct that appears legitimate on the surface and falls within day-to-day business operations but nonetheless contributes to the crime. An example of neutral business assistance is selling generic goods (for example, computer technology) legally at market rates, without the explicit intent to aid criminal activity, that increases the perpetrator’s capacity to carry out human rights violations. In such cases, discerning the point at which …

Aggressor State, Aggressor Individual, And What International Law Does/Should Protect, Nurbanu Hayır

Michigan Journal of International Law

This note examines the measures taken against Russian citizens in the context of the Russo-Ukrainian War in positive international law and analyzes the rationale for sanctioning individual citizens of an aggressor state. It questions whether the gravity of state aggression by Russia enables measures targeting individuals based solely on their Russian citizenship by investigating whether the blanket denial of asylum and imposition of travel bans for Russian citizens constitutes a breach of norms of international law. It further tests this citizenship link by turning to the legality of denationalization of pro-Russian Ukrainian citizens under international law. Building on this foundation, …

The Last Frontier: Fair Procedure In Informal Administrative Adjudication, Michael Asimow

Michigan Journal of Environmental & Administrative Law

The federal government engages in massive amounts of informal adjudication - a process that resolves a dispute between the government and a private party by making an individualized and legally binding decision without being required to conduct an evidentiary hearing if the dispute is not settled. This article sketches the highly diverse world of federal informal adjudication and surveys the procedural requirements imposed on it by due process and federal statutes. It proposes a set of best practices for conducting and improving informal adjudication that are rooted in those legal requirements. Agencies should adapt these practices to their individual circumstances …

Solving The Stranded Asset Problem Of Retiring Coal Plants: An Evaluation Of Regulatory Approaches, Matthew Appel

Michigan Journal of Environmental & Administrative Law

Meeting the Biden administration's goal of cutting greenhouse gases by at least 50 percent from 2005 levels by 2030 will necessarily require transitioning the U.S. energy system away from carbon-intensive fossil fuels like coal. However, coal plants that are retiring early in states with regulated electricity markets usually still have undepreciated book value that has not yet been recovered from ratepayers. If not handled correctly, these "stranded assets" could have financial consequences for utility companies and cause them to actively oppose the energy transition. This Note aims to evaluate possible solutions to this problem. Through the prism of ratemaking legal …

Child-Taking, Diane Marie Amann

Michigan Journal of International Law

A ruling group at times takes certain children out of their community and then tries to remake them in its image. It tries to rid the child of undesired differences, in ethnicity or nationality, religion or politics, race or ancestry, culture or class. There are too many examples: the colonialist residential schools that forced settler cultures on Indigenous children; the military juntas that kidnapped dissidents’ children; and today’s reports of abductions amid crises like that in Syria. Too often nothing is done, and the children are lost. But that may be changing, as the International Criminal Court (“ICC”) is seeking …

Investment Treaty Arbitration Caught In The Public-Private Law Divide, Catharine Titi

Michigan Journal of International Law

The ongoing reform of investor-state dispute settlement (“ISDS”) underlines the pertinence of an old question that has received various and conflicting answers: Is investment arbitration a public or private method of dispute settlement? A key criticism leveled at investment treaty arbitration is that public interest disputes are decided by a system of private justice. This article critically reviews the dominant interpretations of investment treaty arbitration as public, private, or hybrid. It argues that the subjective nature of each interpretation means that none of them can be definitively adopted. Rather, the real arguments in favor of or against arbitration lie beyond …

Evaluating The Elimination Of Peremptory Challenges In Arizona, Hailey Badger Gordon

University of Michigan Journal of Law Reform

The Supreme Court confronted racial discrimination in jury selection in Batson v. Kentucky by prohibiting the use of race as a factor in exercising peremptory challenges. But Batson challenges rarely succeed in overcoming a challenged peremptory strike and have long been criticized as insufficient to eliminate racial discrimination in jury selection. Justice Marshall correctly predicted in his concurring opinion in Batson that racial discrimination in jury selection would continue as long as peremptory challenges were permissible.

Recognizing Batson’s shortfalls, states have experimented with reforms ranging from lowering the required showing for a successful Batson challenge to enumerating presumptively impermissible …

Toward An Absolute Privilege From Defamation For Statements Made In Campus Sexual Misconduct Proceedings, Elizabeth Munoz-Smith

University of Michigan Journal of Law Reform

Title IX prohibits recipients of federal funding from discriminating on the basis of sex in their education programs and activities. The regulations implementing Title IX impose strict requirements on the procedures that institutions must follow in investigating and adjudicating complaints of sexual harassment. But survivors using campus processes are facing potential liability for defamation at an increasing rate. The existence of this threat leads to further underreporting of an already-underreported crime, a detrimental impact on survivors’ education, and psychological stress created by the re-traumatization of a civil suit that carries potential monetary liability for their report. This Note argues that …

Shadow Banking And Securities Law, Gabriel Rauterberg, Jeffery Y. Zhang

Law & Economics Working Papers

Shadow banking may be the single greatest challenge facing financial regulation. Financial institutions that function like banks, but outside the scope of banking regulation—aptly termed “shadow banking”—were at the heart of the Global Financial Crisis and most episodes of serious financial stress since then. Scholars have largely focused on one response to this problem—extending traditional banking regulation to shadow banks. Yet more than fifteen years after the crisis, major regulatory efforts along this route have stalled.

In this Article, we explore the uneasy case for greater regulation of shadow banking through securities law. Our first contribution is analytical. We demonstrate …

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

Law & Economics Working Papers

This Article 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 …

The Usefulness Of Pillar 1, Reuven S. Avi-Yonah

Articles

Many commentators have declared that pillar 1 of the base erosion and profit-shifting project 2.0 is dead. By its explicit terms, the multilateral tax convention (MLC) implementing pillar 1 cannot go into effect this year without ratification by the United States, and the chances of the United States ratifying it before or after the election are low given massive opposition in Congress. If the MLC does not go into effect by December 31, 2024, over 30 countries will likely impose digital services taxes on January 1, 2025, making the whole pillar 1 project (which was aimed at preventing the spread …

Sexual Assault Victims Face A Penalty For Adjacent Consent, Jillian J. Jordan, Roseanna Sommers

Articles

Sexual assault is pervasively underreported, and victims are often blamed and stigmatized. We highlight an important but overlooked factor that may contribute to these outcomes: adjacent consent. Even when a rape is objected to verbally and physically, and accomplished only through violent force, respondents see the victim as less virtuous and deserving of support if she previously consented to something sexual with her perpetrator (e.g., kissing, foreplay, sex on a prior occasion). Our findings are striking in an age of “no means no” and “affirmative consent”—and notably hold among even young and politically progressive respondents who do not otherwise disapprove …

Bizindan Miinawa (Listen Again), Matthew L.M. Fletcher

Articles

Johnson v. McIntosh was as fake as John Wayne’s teeth. That one was a property dispute, remember? Two wealthy, privileged, and powerful white people squared off over thousands of acres of land acquired from Indigenous nations who called the vast valley of Eagle River home. On one side, you had a former United States Supreme Court Justice; on the other, you had a wealthy political benefactor/beneficiary. No tribal nations or Indigenous peoples to be seen or heard from. And of course, the competing property claims at issue barely overlapped, if at all, thanks to stipulations of the parties at the …

Has Cost Sharing Outlived Its Usefulness?, Reuven S. Avi-Yonah

Articles

In her thoughtful column on cost sharing, Mindy Herzfeld explains the history of costsharing arrangements (CSAs) going all the way back to 1966, and then asks several questions, including: “Should the existing CSA regs be scrapped in favor of another regime, or simply eliminated as a choice for taxpayers?”

Pillar 2 And Specific Benefits For Multinationals, Reuven S. Avi-Yonah

Articles

In a recent column, Tax Notes’ Martin Sullivan asked whether a country that wishes to neutralize the effect of pillar 2 on its investment incentives can get around the OECD prohibition on a multinational enterprise receiving what amounts to a refund of the pillar 2 tax it pays to that country. He writes that:

It would make a mockery of the pillar 2 taxation system if an investment hub imposed a 15 percent minimum tax on a company — thereby shielding profit in that hub from other jurisdictions’ pillar 2 tax — and then, through a separate mechanism, unconditionally returned …

Garland V. Vanderstok: Brief Of Major Cities Chiefs Association; Police Executive Research Forum; And Current And Former National Security Officials, Law Enforcement Officers, And Prosecutors As Amici Curiae In Support Of Petitioners, Barbara Mcquade

Appellate Briefs

Amici are the Major Cities Chiefs Association, the Police Executive Research Forum, and numerous current and former national security officials, law enforcement officers, and prosecutors.

The Major Cities Chiefs Association (MCCA) is a professional organization of police executives representing the largest cities in the United States and Canada. The mission of MCCA is to provide a forum for police executives from large population centers to address the challenges and issues of policing, to influence national and international policy that affects police services, to enhance the development of current and future police leaders, and to encourage and sponsor research that advances …

Narrowing Foia's Exemption For Business Secrets, Deepa Varadarajan

Michigan Law Review Online

This essay examines the judicial aftermath of Food Marketing Institute v. Argus Leader Media, a controversial 2019 Supreme Court decision that broadened the Freedom of Information Act (FOIA) exemption for trade secrets and confidential commercial information (“Exemption 4”). This decision has made it easier for firms to hide damaging information from public view, frustrating the efforts of journalists and government watchdog groups that make FOIA requests to expose environmental harms, health risks, and failures of agency oversight. But two recent circuit court decisions highlight a promising path forward; they interpret Exemption 4 in ways that can mitigate Food Marketing’s negative …

Contractual Remedies In Mergers: Lessons From Crispo V. Musk, Dhruv Aggarwal, Albert H. Choi, Geeyoung Min

Law & Economics Working Papers

The Delaware Chancery Court recently restricted a merger target's ability to recover damages on behalf of its shareholders from a breaching buyer. This paper investigates the impact of the decision. First, we present a theoretical analysis to generate empirical predictions. Second, we show that the decision led to a decrease in the firm value of targets in mergers governed by Delaware law. Third, we hand-collect relevant provisions from merger agreements and find that the agreements governed by Delaware law increasingly include target-friendly non-price terms after the decision. We also present evidence suggesting deal price responds to the inclusion of novel …

Are Exit Taxes Discriminatory?, Reuven S. Avi-Yonah

Articles

In a recent column, Tax Notes’ Robert Goulder analyzed case law in Europe on the constitutionality of exit taxes. Many EU member states impose exit taxes on individual residents who move to lower-tax jurisdictions, but the Court of Justice of the European Union has repeatedly struck them down as inconsistent with freedom of movement unless they allow for deferral until realization or death with no interest charge, which is equivalent to having no exit tax at all. Goulder cogently argues that this issue is similar to the Moore problem in the United States, especially since the U.S. exit tax on …

The Broader Lessons Of Privacy Law, Salome Viljoen

Articles

This Article explores the trend of privacy—and what kind of techno-social or legal effect ought to count as a “privacy harm”—expanding to encompass a growing set of social factors. This big-tent approach to privacy has several virtues. However, it also comes with a few costs. While others have explored the conceptual and doctrinal tradeoffs that an expansive approach to privacy may entail, this Article focuses on a secondary effect the trend toward expansiveness has had on the relationship between privacy scholarship and legal scholarship more broadly. This Article suggests that the internal expansiveness of privacy means that insights developed within …

Front Matter

University of Michigan Journal of Law Reform

Front Matter for Volume 57, Issue 4 of Michigan Journal of Law Reform

Confronting Algorithms: Conscience Catching In The Criminal Trial And Beyond, Sherman J. Clark

University of Michigan Journal of Law Reform

Using the question of how to treat algorithmic evidence under the Confrontation Clause as an entry point, I argue that the use of AI in ethically salient situations presents a risk. It may cause us to avoid confronting our own responsibility. This matters because facing up to what we do, including what we delegate, can help us grow and thrive. Bearing responsibility can help us nurture vital capacities, including forms of empathy, honesty, and dignity. In the language of ethics, these are eudaimonist virtues—traits and capacities that can help us live well and fully. We should thus find ways of …