Digital Commons Network^™

The Needless Search For A Founding-Era "Hearsay" Definition, Jeffrey Bellin

University of Michigan Journal of Law Reform

Modern Confrontation Clause doctrine permits only unconfronted “out-of-court statements that would have been admissible in a criminal case at the time of the founding.” To operationalize this concept, the Supreme Court identifies “testimonial hearsay” as the Clause’s primary concern. Its opinions regularly dive into the historical record to refine what counts as “testimonial” but ignore that record in defining “hearsay.” This omission cannot last. Cases in the lower courts, and one on the Court’s recent docket, concern testimonial but (arguably) non-hearsay statements. And while confrontation jurisprudence is supposed to be tied to founding-era evidence law, the “hearsay” definition, casually referenced …

Bounded Extraterritoriality, Ruth Mason, Michael S. Knoll

Michigan Law Review

Twenty-first-century politics has inspired a new mode of interstate rivalries and reprisals consisting not of the tariffs that plagued the Founding but rather of regulations with significant impacts outside the enacting state’s borders. Employing the dormant Commerce Clause doctrine of extraterritoriality, the Supreme Court has limited overbroad state regulations, but the extraterritoriality doctrine is unclear both in its normative grounding and practical application. This Article proposes a conceptual framework that situates the prohibition of extraterritoriality as an aspect of horizontal federalism. Our conceptualization of extraterritoriality enables us to distinguish it from two dormant Commerce Clause doctrines with which it is …

Standing And Probabilistic Injury, Curtis A. Bradley, Ernest A. Young

Michigan Law Review

Standing to sue often turns on questions of probability. For example, public law plaintiffs must show that they are likely to be affected by allegedly unlawful government surveillance or environmental policies, and consumers may wish to sue private defendants over false credit reporting or data breaches that may or may not cause them financial or reputational harm in the future. This Article offers a framework for resolving a wide range of these “probabilistic standing” issues. Our core claim is that courts and commentators ask too much of standing doctrine in probabilistic cases. First, scholars sometimes seek a unified theory of …

Why We Should Stop Talking About Violent Offenders: Storytelling And Decarceration, Mira Edmonds

Articles

The movement to decarcerate risks foundering because of its failure to grapple with so-called violent offenders, who make up nearly half of U.S. prisoners. The treatment of people serving sentences for offenses categorized as violent is a primary reason for the continued problem of mass incarceration, despite widespread awareness of the phenomenon and significant bipartisan interest in its reduction. People convicted of “violent offenses” are serving historically anomalous and excessively long sentences, are generally denied clemency and compassionate release, and are excluded from a wide array of legal reform and policy changes with decarceral aims. Keeping these people in prison …

Should Racially Vulnerable Victims Show Mercy?, Ekow N. Yankah

Articles

On June 17, 2015, twenty-one-year-old Dylann Roof entered the Emanuel African Methodist Episcopal Church in Charleston, South Carolina, sat, and prayed with nine congregants for at least an hour before pulling out a handgun and killing Cynthia Hurd, Susan Jackson, Ethel Lance, DePayne Middleton-Doctor, State Senator Rev. Clementa Pinckney, Tywanza Sanders, Rev. Daniel Simmons, Sharonda Singleton, and Myra Thompson.' He left three survivors, explicitly so they could "tell the story" of his killings. Roof did so for his own demented reasons; his racist rage was laid out publicly in an online manifesto, and he hoped his murders would begin a …

Labor Law, Ownership, And The Firm, Sanjukta Paul

Law & Economics Working Papers

Labor law has its own working theory of the business firm, not derivable from another area of law. This "theory of the firm," which the affirmative provisions of labor law are taken to both modify and preserve, is more overtly hierarchical than in other areas. This is true across the main functional domains of labor law: union formation; expressive and associational rights; and the scope of collective bargaining. A rich vein of existing scholarship deals with both hierarchy and deference to property within labor law. The arguments of this essay emerge from considering these aspects of labor law in conjunction …

The International Tax Revolution: Introduction, Christine Kim, Reuven S. Avi-Yonah

Law & Economics Working Papers

(This book chapter, Introduction, is included in the forthcoming book, titled THE INTERNATIONAL TAX REVOLUTION, which the Cambridge University Press will publish in 2024-25.)

The past decade has witnessed the creation of a new international tax regime (ITR). Since the advent of globalization in the 1980s and digitalization in the 1990s, the original ITR ceased to function as intended. The main problems were the increased mobility of capital related to intangibles, a relaxation of capital controls, and increased tax competition. The outcome was a significant fall in tax revenues that threatened the social safety net of the modern welfare state. …

Medical-Legal Partnerships Reinvigorate Systems Lawyering Using An Upstream Approach, Kate L. Mitchell, Debra Chopp

Articles

The upstream framework presented in public health and medicine considers health problems from a preventive perspective, seeking to understand and address the root causes of poor health. Medical-legal partnerships (MLPs) have demonstrated the value of this upstream framework in the practice of law and engage in upstream lawyering by utilizing systemic advocacy to address root causes of injustices and health inequities. This article explores upstreaming and its use by MLPs in reframing legal practice.

Should U.S. Tax Law Be Constitutionalized?, Reuven S. Avi-Yonah

Articles

Moore is the first Supreme Court case involving a constitutional challenge to a federal income tax law since Macomber, which was decided more than a century ago. Whatever way the Court rules, other such cases are likely to be brought and some of them may reach the Court. Moore won’t be the last case of its kind.

Can Investment Treaties Defeat Pillar 2?, Reuven S. Avi-Yonah

Articles

In their excellent recent Tax Notes International article, “Using Investment Treaties to Prevent Pillar 2’s Revocation of Promised Tax Incentives,” Javier Rubinstein, Lauren Friedman, and Tamsin Parzen make an interesting new argument about the interaction between bilateral investment treaties (BITs) and pillar 2. They argue that an investor benefiting from an existing BIT can rely on it to prevent the imposition of a qualified domestic minimum top-up tax (QDMTT) even without resorting to treaty arbitration. This argument is problematic, however, because it does not fully address the likely reaction of other countries that are not party to the BIT.

The Humanization Of War Reparations: Combatant Deaths And Compensation In Unlawful Wars, Hannes Jöbstl, Dean Rosenberg

Michigan Journal of International Law

Recent events have sparked a renewed interest in the law and practice of war reparations. While today it is uncontroversial that unlawful uses of force, including acts of aggression, entail the obligation of the wrongdoing state to make reparations, including by way of compensation, the precise extent of this obligation remains subject to debate. One particularly contentious aspect is whether, and to what extent, states that violate the prohibition on the use of force are obligated to pay compensation not only for harm caused to civilians and civilian objects, but also for damage caused to the armed forces of the …

Whose International Law Is It Anyway? The Battle Over The Gatekeepers Of Voluntarism, Shelly Aviv Yeini

Michigan Journal of International Law

International law has been ruled by the theory of voluntarism for the course of the last two centuries. It is currently being challenged by competing theories, which do not see states’ consent as the main justification for international law. The theories of naturalism, international constitutionalism, and communitarianism all consider justification for international law to lie elsewhere than the realm of consent. While each theory provides a different framework for explaining the validity of international law, they all seek to justify their dissent from consent. Naturalism, international constitutionalism, and communitarianism view states as participators in the making of international law alongside …

Original Public Meaning And Pregnancy’S Ambiguities, Evan D. Bernick, Jill Wieber Lens

Michigan Law Review

Relying on 1868 abortion statutes, the 2022 Supreme Court held in Dobbs v. Jackson Women’s Health Organization that no federal constitutional right to abortion exists. Mere months later, a petition for certiorari asked the Court to determine that “person” in the Fourteenth Amendment includes prenatal existence, which would require criminalization of abortion in all states. The petitioners cited Dobbs and claimed the authority of legal history in 1868 and before. These arguments will be heard again, and they are increasingly framed in terms of the “original public meaning” of the Fourteenth Amendment.

This Article refutes these arguments on their own …

Glossip V. State Of Oklahoma: Brief Of Federal Courts Scholars As Amici Curiae In Support Of Petitioner, Eve Brensike Primus

Appellate Briefs

Amici are law professors who teach and write about the federal courts, habeas corpus, and the relationship between federal and state law. A list of amici is attached as Appendix A. Amici sign this brief in their individual capacities and not on behalf of their institutions; institutional affiliations are provided solely for identification purposes.

Rethinking Taxing Excess Profits, Reuven S. Avi-Yonah, Tamir Shanan

Articles

This article discusses the application of excess profit taxes (EPTs, also referred to as windfall taxes) that have gained renewed interest and popularity over the past several years. The revival of these windfall taxes gained renewed interest following the COVID-19 outbreak, which led to a sharp price increase in corporate revenues of medical equipment and within pharmaceutical industries. However, the revival of such taxes was also used following the recent rise in energy prices mainly in Europe, leading to a sharp increase in corporate revenues of energy corporations and the recent surge in borrowing interest rates that was not accompanied …

Reviving Indian Country: Expanding Alaska Native Villages’ Tribal Land Bases Through Fee-To-Trust Acquisitions, Alexis Studler

Michigan Journal of Race and Law

For the last fifty years, the possibility of fee-to-trust acquisitions in Alaska has been precarious at best. This is largely due to the Alaska Native Claims Settlement Act of 1971 (ANCSA), which eschewed the traditional reservation system in favor of corporate land ownership and management. Despite its silence on trust acquisitions, ANCSA was and still is cited as the primary prohibition to trust acquisitions in Alaska. Essentially, ANCSA both reduced Indian Country in Alaska and prohibited any opportunities to create it, leaving Alaska Native Villages without the significant territorial jurisdiction afforded to Lower 48 tribes. However, recent policy changes from …

A Framework For Managing Disputes Over Intellectual Property Rights In Traditional Knowledge, Stephen R. Munzer

Michigan Journal of Race and Law

Major controversies in moral and political theory concern the rights, if any, Indigenous peoples should have over their traditional knowledge. Many scholars, including me, have tackled these controversies. This Article addresses a highly important practical issue: Can we come up with a solid framework for resolving disputes over actual or proposed intellectual property rights in traditional knowledge?

Yes, we can. The framework suggested here starts with a preliminary distinction between control rights and income rights. It then moves to four categories that help to understand disputes: nature of the traditional knowledge under dispute; dynamics between named parties to disputes; unnamed …

Abolition Economics, Jessica Wolpaw Reyes, René Reyes

Michigan Journal of Race and Law

Over the past several decades, Law & Economics has established itself as one of the most well-known branches of interdisciplinary legal scholarship. The tools of L&E have been applied to a wide range of legal issues and have even been brought to bear on Critical Race Theory in an attempt to address some of CRT’s perceived shortcomings. This Article seeks to reverse this dynamic of influence by applying CRT and related critical perspectives to the field of economics. We call our approach Abolition Economics. By embracing the abolitionist ethos of “dismantle, change, and build,” we seek to break strict …

Subsidizing The Microchip Race: The Expanding Use Of National Security Arguments In International Trade, Victoria Walker

University of Michigan Journal of Law Reform

In 2018, China, India, the European Union, Canada, Mexico, Norway, Russia, Switzerland, and Turkey lodged complaints with the World Trade Organization’s (WTO) Dispute Settlement Body (DSB) in the case of Certain Measures on Steel and Aluminium Products. Each State alleged that the United States had violated international trade law by imposing a series of aggressive tariffs on steel and aluminum imports. President Donald Trump’s administration responded to these allegations by claiming that its actions were permissible under Article XXI of the General Agreement on Tariffs and Trade (GATT); a long-standing exception built into the international trade law framework that …

On The Genealogy Of Intimate Digital Harm, Aziz Z. Huq

Michigan Law Review

A review of The Fight for Privacy: Protecting Dignity, Identity, and Love in the Digital Age. By Danielle Keats Citron.

The Complicit Canon Of Criminal Law: A Critical Survey Of Syllabi, Casebooks, And Supplemental Materials, Robin Peterson

University of Michigan Journal of Law Reform

This Note analyzes the learning objectives, casebook readings, and supplemental sources that thirteen criminal law professors assigned over fifteen years and argues that the current approach to teaching criminal law is complicit in perpetuating the injustices of the American criminal legal system because it fails to adequately interrogate the carceral state and does not prepare students to become ethical practitioners or policymakers of criminal law. This paper calls for a fundamental rethinking of the purpose of teaching criminal law and recommends a reform orientation, which could be implemented through a variety of course structures.

Crystalizing Community: “Communities Of Interest” And The 2020 Michigan Independent Citizens Redistricting Commission, Edward Webre Plaut, Elizabeth Powers

University of Michigan Journal of Law Reform

The Michigan Independent Citizens Redistricting Commission (MICRC) met for the first time in 2020 after it was created via ballot initiative in 2018. The MICRC included thirteen Michiganders tasked with drawing state house, senate, and congressional districts. The newly amended Michigan Constitution charged the MICRC with incorporating a new criterion previously unknown to Michigan redistricting: communities of interest. Communities of interest (COIs) have played a role in redistricting law across several states, gaining prominence after the Supreme Court’s landmark decision in Shaw v. Reno as an ostensibly race-neutral “traditional districting principle.” However, the concept is difficult to define. This Note …

Orders Without Law, Thomas P. Schmidt

Michigan Law Review

A review of The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. By Stephen Vladeck.

The Shadow Of The Law Of The Police, Adam A. Davidson

Michigan Law Review

A review of Shielded: How the Police Became Untouchable. By Joanna Schwartz.

Beyond Profit Motives, William J. Moon

Michigan Law Review

A review of The Profit Motive: Defending Shareholder Value Maximization By Stephen M. Bainbridge.

What Is A Prison?, Grace Y. Li

Michigan Law Review

A review of The Idea of Prison Abolition. By Tommie Shelby.

Care Reimagined: Transforming Law By Embracing Interdependence, Robyn M. Powell

Michigan Law Review

A review of All Our Families: Disability Lineage and the Future of Kinship. By Jennifer Natalya Fink.

A Democracy Story: Reframing A Free Speech Landmark, Thomas Healy

Michigan Law Review

A review of Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan. By Samantha Barbas.

Justice By Means Of The Administrative State, Glen Staszewski

Michigan Law Review

A review of Justice by Means of Democracy. By Danielle Allen.

Disability, Race, And Health Beyond The Carceral State, Benjamin A. Barsky, Craig Konnoth, Michael Ashley Stein

Michigan Law Review

A review of Embodied Injustice: Race, Disability, and Health. By Mary Crossley.