Digital Commons Network^™

Destined To Deceive: The Need To Regulate Deepfakes With A Foreseeable Harm Standard, Matthew D. Weiner

Michigan Law Review

Political campaigns have always attracted significant attention, and politicians have often been the subjects of controversial—even outlandish—discourse. In the last several years, however, the risk of deception has drastically increased due to the rise of “deepfakes.” Now, practically anyone can make audiovisual media that are both highly believable and highly damaging to a candidate. The threat deepfakes pose to our elections has prompted several states and Congress to seek legislative remedies that ensure recourse for victims and hold bad actors liable. These recent attempts at deepfake laws are open to attack from two different loci. First, there is a question …

U.S. Food & Drug Administration V. Alliance For Hippocratic Medicine: Brief For Food And Drug Law Scholars And Professors As Amici Curiae Supporting Petitioners And Reversal, Rebecca S. Eisenberg

Appellate Briefs

Amici curiae are U.S. food and drug law scholars and professors from academic institutions across the United States. A full list of amici is included as an Appendix to this brief. Amici have expertise in food and drug law, including the drug approval process and regulation of pharmaceuticals under the Federal Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. § 301 et seq. Amici submit this brief to address important issues raised by this case concerning the authority of the U.S. Food & Drug Administration (FDA or the Agency) to regulate prescription drugs.

The Federal Food, Drug, and Cosmetic Act …

Taxation And Corporate Governance, Reuven S. Avi-Yonah, Ariel Siman

Law & Economics Working Papers

In recent years, legal and economic research has shown a growing interest in the interaction between corporate governance and taxation. Some specific aspects have drawn more interest, particularly the tax rules related to the remuneration of directors, measures taken by management in the context of market for corporate control, and the double taxation of inter-corporate dividends. However, there is still little legal literature on many other aspects of the interplay between the two systems, and several authors have identified this gap in the literature and the dire need for further study in this “fertile area of research.” The aim of …

Introduction To The Symposium, Julian Arato, Jonathan Bonnitcha, Mavluda Sattorva

Other Publications

This symposium explores the interrelation and juxtaposition of private and public registers in the logics and practices of private international law, public international law, and foreign relations law. It is inspired by the scholarly work of a brilliant scholar and much-missed friend: Karen Knop, Professor and Cecil A. Wright Chair at the University of Toronto Faculty of Law (1960–2022).

Consent Searches And Underestimation Of Compliance: Robustness To Type Of Search, Consequences Of Search, And Demographic Sample, Roseanna Sommers, Vanessa K. Bohns

Law & Economics Working Papers

Most police searches today are authorized by citizens’ consent, rather than probable cause or reasonable suspicion. The main constitutional limitation on so-called “consent searches” is the voluntariness test: whether a reasonable person would have felt free to refuse the officer’s request to conduct the search. We investigate whether this legal inquiry is subject to a systematic bias whereby uninvolved decision-makers overstate the voluntariness of consent and underestimate the psychological pressure individuals feel to comply. We find evidence for a robust bias extending to requests, tasks, and populations that have not been examined previously. Across three pre-registered experiments, we approached participants …

How Viable Is Viability? Artificial Womb Technology And The Threat To Abortion Access, James E. Brown

Michigan Journal of Gender & Law

The viability standard plays an important role in abortion access around much of the United States. In fact, before the Dobbs decision, the viability standard was the constitutional gatekeeper to abortion access and was uniform across the entire nation. Unfortunately, the Supreme Court has removed the constitutional right to abortion altogether. Nevertheless, I will provide an argument as to why Dobbs does not signal the end of viability-based abortion around the U.S. I will prove the importance of the viability standard even in a post-Dobbs society, highlighting its operation within various state laws, such as Michigan’s Prop. 3, as well …

What Does It Mean To Be An Ethical Lawyer? The Importance Of Context, Lynn Mather, Leslie C. Levin

Bibliography of Research Using UMLS Alumni Survey Data

Although the entire legal profession shares a single ethical code, lawyers’ understanding of what it means to be “ethical” shows considerable variation. This article discusses the factors that shape lawyers’ ethical conduct in practice. We review the role of legal education, bar associations, the workplace, and hard and soft regulators in the construction of lawyers’ ethical values. We then explore the important role that practice contexts play in shaping lawyers’ understanding of appropriate ethical conduct. Some of the key explanatory factors for differences among lawyers include type of client, office size, specialty and specialization, regulators, and the extent to which …

Gendered Peace Through International Law, Louise Arimatsu, Christine M. Chinkin

Books

Two leading feminist lawyers reflect on gender in international law to set out what a gendered peace might look like and its impact on international law in this open access book.

In order to challenge orthodoxies, the book takes an unconventional approach, merging personal reflections, expert essays, and interviews. It throws the disciplinary net wide, drawing on international law, gender studies, international relations and history. The authors, undisputed global leaders in the field, challenge the reader to unlearn international law, in order to relearn it in a way that makes it more fit for purpose in the contemporary world. This …

It Takes A Thief…. And A Bank: Protecting Consumers From Fraud And Scams On P2p Payment Platforms, Cathy Lesser Mansfield

University of Michigan Journal of Law Reform

This Article proposes statutory and regulatory changes to the Electronic Fund Transfer Act; Regulation E; and the Bank Secrecy Act/Anti-Money Laundering regulations to protect consumers who use instant payment platforms in the United States (such as Zelle and Venmo) from scam artists and fraudsters. After discussing current fraud scams on these payment platforms, the Article discusses the history and context of the 1978 Electronic Fund Transfer Act and Regulation E, and the definition of unauthorized payments and payments made in error therein. The second part of this Article explores changes to the Bank Secrecy Act/Anti-Money Laundering regulations that might make …

Reimagining The Deduction For Employee Compensation, Daniel Schaffa

University of Michigan Journal of Law Reform

U.S. businesses pay trillions of dollars in employee compensation, a substantial fraction of which is deductible for tax purposes. This deduction reduces the taxable income of businesses, ultimately lowering business tax burdens by hundreds of billions of dollars. With a few exceptions, the tax code confers the same deduction to a business for every dollar of employee compensation, regardless of whether that compensation goes to an employee earning millions or an employee earning minimum wage. This is consistent with a pure Haig-Simons income tax, under which any business expense incurred ought to be deductible dollar-for-dollar. But many, if not most, …

Biophilic Design And Biophilic Cities: An Explainer, Kincaid Brown

Law Librarian Scholarship

The COVID-19 pandemic brought into focus that outdoor activities in natural settings have a positive impact on mental health, and individuals participating in outdoor activity report higher rates of emotional well-being than individuals who do not participate in such activity. Biophilic design is an architectural practice that aims to connect people to nature through design concepts with one of the benefits being psychological. Other benefits of biophilic design include improvements to environmental quality, physical health, support of animal species and habitats, and more resilient and energy-efficient cities.

Researching Antitrust Law, Keith Lacy

Law Librarian Scholarship

Antitrust is a dynamic area of law subject to rapid change. It is highly sensitive to the attitudes of regulators and market conditions, always looking forward to how decisions made today will affect businesses and the lives of individual consumers. Current events — and passionate consumers, or fans — can incur “Swift” antitrust scrutiny, as Live Nation Entertainment discovered recently.

Yet it is inextricably linked to more abstract considerations. The term “antitrust” is itself archaic, reflecting animosity to a business practice innovated by Standard Oil in 1882. Understanding the history of antitrust actions often requires understanding something of history broadly …

The Class Counsel Draft Gender Gap: An Analysis Of Class Counsel Applicants, Alissa Del Riego

Michigan Journal of Gender & Law

This Article accomplishes three important and distinct objectives. First, it provides an updated window into the class counsel gender gap. Second, and most critically, it analyzes a to date unexamined data point—MDL class counsel applications. And third, based on its analysis of the data gathered, it demonstrates: (1) female class counsel application rates are correlated with appointment rates and (2) gender equal class counsel applicants’ success rate, suggesting courts are not discriminating against female class counsel applicants. Instead, the class counsel gender gap appears to be a product of the class counsel draft gender gap. To narrow the gap, more …

Gender Identity And Birth Certificates: The Surrogacy Nexus, Richard F. Storrow

Michigan Journal of Gender & Law

This Article confronts and responds to the weaponization of birth certificates in recent controversies around gender identity by drawing parallels between gender identity and intentional parentage. A juxtaposition of gender identity with parentage identity reveals that they share the common underpinning of self-identification, raising the question why birth certificates are permitted to reflect one’s parentage identity but, as has been suggested in numerous controversies involving transgender litigants, not one’s gender identity. This Article argues that, for the same reasons that a surrogacy arrangement permits the parties to it to define for themselves who are the legal parents of the child …

Don't Call It 'Privacy': Data Protection, From Ideas To Constitutional Law, Raphaël Beauregard-Lacroix

SJD Dissertations

Data protection law has been subject to various criticisms, among which is one of a fundamental kind: devoted to procedures, it lost sight of its privacy-bound origins. This dissertation aims to provide a novel historical and comparative account of the transatlantic development of data protection law, from the origins to this day, identifying how it may yet succeed in reaching the policy goals its original proponents imagined, and untangling key legal concepts along the way.

The regulatory concept of data protection was founded on three basic principles: purpose limitation, universality, and institutional supervision and enforcement. These three principles trace their …

Crawford's Revolutions, Edward K. Cheng, Monica A. Miecznikowski

University of Michigan Journal of Law Reform

Crawford v. Washington, the starting point for the Supreme Court’s modern Confrontation Clause jurisprudence, has long been described as a “revolution.” At the time of the Crawford decision, it was perfectly natural for commentators to view it as revolutionary: The case upended the existing doctrinal framework under Ohio v. Roberts, which grounded Confrontation in hearsay doctrine. In its place, the Supreme Court placed Confrontation doctrine on originalist underpinnings, requiring that any “testimonial” statement be subject to cross-examination. The resulting uncertainty was destabilizing, and in the intervening years, courts, practitioners, and commentators alike have struggled to predict and interpret …

Decentralized Autonomous Organizations And Regulatory Competition: A Race Without A Cause, Matt Blaszczyk

Fellow, Adjunct, Lecturer, and Research Scholar Works

Several states have enacted specialized limited liability company legislation in an attempt to attract decentralized autonomous organizations. In this way, the regulatory competition debate surrounding states such as Wyoming, Tennessee, and Vermont, attempting to dethrone Delaware, has found a new battleground. According to Professor Lynn LoPucki, this will entail a regulatory race to the bottom, that is, a race to “laxity.” I disagree. In fact, deregulation has already been achieved in the traditional limited liability company form. The decentralized autonomous organization limited liability company is no laxer or more attractive to investors, who will likely prefer the traditional limited liability …

Impossibility Of Artificial Inventors, Matt Blaszczyk

Fellow, Adjunct, Lecturer, and Research Scholar Works

Recently, the United Kingdom Supreme Court decided that only natural persons can be considered inventors. A year before, the United States Court of Appeals for the Federal Circuit issued a similar decision. In fact, so have many the courts all over the world. This Article analyses these decisions, argues that the courts got it right, and finds that artificial inventorship is at odds with patent law doctrine, theory, and philosophy. The Article challenges the intellectual property (IP) post-humanists, exposing the analytical and normative perils of their argumentation, and recommends against getting rid of the nominally central place of humans in …

Rethinking Crime And Punishment: Women Who Kill Their Abusers In South Africa, Rebecca Gore

Michigan Journal of Gender & Law

The battered women’s movement in the United States was galvanized in the 1970s and ushered in a paradigm shift in how we understand domestic violence. For women who kill their abusers, the movement attempted to incorporate their lived experiences of domestic violence into legal doctrine. Decades later, the battered women’s movement has generated criticisms such as stereotyping women, failing to take an intersectional lens, and over-reliance on the carceral system. These lessons from feminists in the United States present cautionary tales for other contexts, especially for unequal societies impacted by domestic violence, crime, and mass incarceration. Prompted by personal experiences …

Senior Day 2024, University Of Michigan Law School

Commencement and Honors Materials

Program for the May 6, 2024 University of Michigan Law School Senior Day.

99th Henry M. Campbell Moot Court Competition: Final Round, University Of Michigan Law School

Event Materials

Henry Munroe Campbell was a distinguished lawyer who served as legal counsel to the University of Michigan’s Board of Regents for several years.

He was born in 1854, the son of famed Michigan Supreme Court Justice James V. Campbell. He graduated from the University of Michigan in 1876 and later from the University of Michigan Law School. In 1878, he established a law partnership in Detroit with Henry Russell. Over the years, the firm prospered and continues today as the Detroit-based firm Dickinson Wright PLLC.

Campbell became an attorney of considerable eminence in Michigan and was widely regarded as a …

Edward S. Rogers, The Lanham Act, And The Common Law, Jessica Litman

Book Chapters

This book chapter is a deep dive into the story of Edward Sidney Rogers's authorship of the legislation that became the Lanham Act. Because Rogers believed that Congress lacked the power to alter the substantive law of trademark and unfair competition, he crafted draft legislation that focused on registration and other procedural details rather than substantive rights and defenses. He sought to advance two incompatible goals: he hoped to preserve the robust common law of unfair competition while requiring, or at least encouraging, all trademark owners to register their marks. Both the supporters and the opponents of the bills that …

The First New Deal: Planning, Market Coordination, And The National Industrial Recovery Act Of 1933, Sanjukta Paul

Other Publications

In 1933, four years into the Great Depression, Congress enacted the National Industrial Recovery Act (NIRA) in close cooperation with the Roosevelt administration. The central action of the statute was to facilitate price coordination across a given market or industry. Its rationale was to contain the destructive competition and below-cost pricing that were exacerbating the problems already roiling the economy as a result of the initial stock market crash, and subsequent cascading credit and liquidity crises. In addition to addressing the credit crisis directly through banking and monetary reform, the Roosevelt administration thus sought to buoy up purchasing power by …

Are Race-Based Environmental Justice Policies Safe?, Oday Salim

Other Publications

In recent years, we have seen a signiicant volume of federal and state environmental justice policy with attorneys general developing enforcement plans focused on environmental justice. Environmental and conservation agencies have adopted limited English proiciency (LEP) plans to ensure that LEP individuals are not let out of decision-making processes. And, in some states, there are environmental justice laws on the books that impact public hearings, siting, and permitting. Many of these recent policies require the government to consider race directly or indirectly when making decisions. In light of recent jurisprudence on the legality of race-conscious state action—particularly the U.S. Supreme …

Closing The Billionaire Borrowing Loophole Would Strengthen The Progressivity Of The U.S. Tax Code, Edward Gellis Fox, Zachary Liscow

Other Publications

The vast majority of Americans are concerned that some wealthy people don’t pay their “fair share” of federal taxes. They’re right to be bothered: Loopholes in the U.S. tax code allow some billionaires to pay taxes equal to only 1 percent of the increases in their wealth, which tax textbooks across the country consider “income.”

How is this possible? The low effective tax rate arises in part because U.S. billionaires with large stock portfolios and other appreciated assets can borrow money using their considerable financial assets as collateral and then pay little to no taxes on the cash they use …

Synthetic Health Data: Real Ethical Promise And Peril, W. Nicholson Price Ii, Daniel Susser

Other Publications

Modern health research and development faces a dilemma. On the one hand, there is more data than ever — in electronic health records, in lab research, in public datasets, and on the internet — from which to extract potentially transformative scientific insights and to use as the basis for developing breakthrough health care technologies. On the other hand, using this data entails various risks: threats to patient privacy, skewed samples and approaches to analysis that can perpetuate demographic and other biases, and uneven access to data about rare conditions and small patient subgroups. Generating synthetic data has emerged as one …

The Right To Remove In Agency Adjudication, Christopher J. Walker, David Zaring

Articles

In SEC v. Jarkesy, the Supreme Court will decide the constitutional future of agency adjudication, especially in the context of agency enforcement actions and the imposition of civil penalties. If the Court agrees with the Fifth Circuit on any of its three independent reasons for unconstitutionality, agency enforcement and adjudication schemes across the federal regulatory state will be severely disrupted, in ways that are detrimental to both the regulator and the regulated. In this Essay, we propose a path forward: In certain circumstances, the regulated party should have a right to remove an enforcement action from an in-house agency adjudication …

Research Access To Social Media Data: Lessons From Clinical Trial Data Sharing, Christopher J. Morten, Gabriel Nicholas, Salomé Vilgoen

Articles

For years, social media companies have sparred with lawmakers over how much independent access to platform data they should provide researchers. Sharing data with researchers allows the public to better understand the risks and harms associated with social media, including areas such as misinformation, child safety, and political polarization. Yet researcher access is controversial. Privacy advocates and companies raise the potential privacy threats of researchers using such data irresponsibly. In addition, social media companies raise concerns over trade secrecy: the data these companies hold and the algorithms powered by that data are secretive sources of competitive advantage. This Article shows …

Tying Law For The Digital Age, Daniel A. Crane

Articles

Tying arrangements, a central concern of antitrust policy since the early days of the Sherman and Clayton Acts, have come into renewed focus with re-spect to the practices of dominant technology companies. Unfortunately, tying law’s doctrinal structure is a self-contradictory and incoherent wreck. A con-ventional view holds that this mess is due to errant Supreme Court precedents, never fully corrected, that expressed hostility to tying based on faulty economic understanding. That is only part of the story. Examination of tying law’s origins and development shows that tying doctrine was built on a now-dated paradigm of what constitutes a tying arrangement. …

Valuing Social Data, Amanda Parsons, Salome Viljoen

Articles

Social data production—accumulating, processing, and using large volumes of data about people—is a unique form of value creation that characterizes the digital economy. Social data production also presents critical challenges for the legal regimes that encounter it. This Article provides scholars and policymakers with the tools to comprehend this new form of value creation through two descriptive contributions. First, it presents a theoretical account of social data, a mode of production that is cultivated and exploited for two distinct (albeit related) forms of value: prediction value and exchange value. Second, it creates and defends a taxonomy of three “scripts” that …