Digital Commons Network^™

Reverse Breakup Fees And Antitrust Approval, Albert H. Choi, Abraham L. Wickelgren

Law & Economics Working Papers

The paper examines the antitrust implications of use of reverse breakup (termination) fees in mergers. By promising to pay a reverse breakup fee to the target if the proposed merger does not get the necessary antitrust approval, the acquirer can signal to the antitrust authority that the merger is more likely to be pro-competitive. A large reverse breakup fee can also function as a commitment device by the acquirer to spend more resources in case the merger is challenged by the antitrust authority. While the first, signaling function is efficiency enhancing, the second, commitment function can lead to an efficiency …

Should Single-Sales-Factor Formulas Be Constitutional?, Reuven S. Avi-Yonah

Articles

On October 28, 2025, Florida sued California in the Supreme Court over its application of a single-sales-factor (SSF) formula to exclude large out-of-state asset sales. But Florida couched its critique in much broader terms, seemingly attacking the validity of the SSF altogether. Florida Attorney General James Uthmeier (R) stated that: California has created a tax system that punishes economic freedom. We will not tolerate California over-taxing revenue earned in Florida. The Newsom regime is obviously attempting to punish business owners who have fled California due to its disastrous policies. Given that multitudes of California businesses and residents are moving to …

Law And The Self-Coordinating Market Idea, Sanjukta Paul

Articles

Much of the focus of the live Symposium was on comparing existing scholarship associated with two intellectual communities. I have no objection to that enterprise in the abstract, though I think it is a bit premature where law and political economy (LPE) is concerned and sets up an apples-to-oranges comparison to the decades-old streams of work and thinking in law and economics (L&E). But I would rather use the privilege of the space in this written Symposium to sketch what I believe is the ultimate substantive nub of contestation in this conversation about the core subject matter of “the economy” …

Religious Riders And The Sherman Act, Bailey Sanders

Michigan Law Review

Can corporations engage in anticompetitive behavior on the basis of religious belief? While the answer may seem like an obvious no, in fact this question has largely been overlooked. It has hovered at the margins of the debate over religious exemptions: Proponents of religious exemptions have essentially argued that there is no harm in providing such exemptions to businesses because a competitive market will ensure consumers who might be denied services or goods by a religious firm can still obtain those goods and services elsewhere. But what if religiously minded businesses act in ways that are specifically designed to limit …

Courts Of Indian Offenses, Courts Of Indian Resistance, Alexandra Fay

Michigan Law Review

In the late nineteenth century, the Department of the Interior created the Courts of Indian Offenses with the express goal of eliminating elements of Native culture through the coercive power of criminal law. The courts stood on dubious constitutional grounds, were almost universally replaced by tribal courts in the twentieth century, and have been widely derided as crude assimilationist tools.

This Article examines the Courts of Indian Offenses to study how law and legal institutions operate as sites of colonial struggle. The Courts of Indian Offenses were formally created to criminalize Native culture. In practice, they were more complicated. Native …

Pornographic Deepfakes And Ugly Social Facts: The Costs Of A Normative Approach To Defamation, Kathleen Ross

Michigan Law Review

Around the world, women and girls are being victimized by pornographic deepfakes— alarmingly convincing, sexually exploitative images and videos generated using artificial intelligence (AI). Facing statutory gaps, victims may turn to traditional tort law claims to recover for the injuries inflicted by pornographic deepfakes. Defamation law, which protects against reputational injuries caused by false statements, is a particularly compelling arena for vindicating the interests invaded by a pornographic deepfake—interests which are, at their heart, social and reputational. Fortunately for deepfake victims, a pornographic deepfake will often satisfy defamation’s basic elements: A false and defamatory communication that concerns the victim and …

Digital Services Taxes And The Wto, Reuven S. Avi-Yonah, Doron Narotzki

Articles

In an excellent Tax Notes article, Claudio Cipollini argues that the United States has adopted a paradoxical stance regarding digital services taxes. On one hand, the United States has repeatedly characterized DSTs as discriminatory trade barriers that unfairly target U.S. technology firms. On the other, it has systematically obstructed appointments to the Appellate Body of the WTO, leaving the dispute settlement mechanism effectively inoperative and ineffective. Cipollini presents this as a “missed WTO route,” suggesting that a functioning WTO system would primarily serve U.S. interests by disciplining European DSTs under the General Agreement on Trade in Services (GATS).

This article …

Subsidiarity Municipalism In Action: On Vincent V. Adams, Gregory E. Louis

University of Michigan Journal of Law Reform Caveat

Building on the author’s recent article Protecting Commoners’ Goods: Pluralist Coexistence Through the Common Good Constitution’s Subsidiarity Municipalism (PCG), this Essay deconstructs the recent New York appellate opinion in Vincent v. Adams. That case reverses a trial court opinion that PCG criticizes as an example of how current law misunderstands the proper relationship between local government and federal and state authorities. This Essay uses the appellate court decision in Vincent v. Adams to reinforce PCG’s thesis of subsidiarity municipalism, to offer another illustration of subsidiarity municipalism’s progressive potential, and to suggest how subsidiarity municipalism can inform the relationship between …

A Finding Aid To The Sam Zell Automata Collection, 1994-2015, University Of Michigan Law School

Automata Files

A Finding Aid to the Sam Zell Automata Collection, 1994-2015, in The Joseph and Edythe Jackier Rare Book Room at the University of Michigan Law Library.

Finding aid written by Madison Schnell, 2026

Dates: 1994-2015

Extent: 21 automata

Creators: Samuel "Sam" Zell; Michael Speaker; Creative Model Services; Accurate Sound Corporation; Interior Specialties; Elwood Industries; Grant McCune Design; McCune Masterworks; Synergy Design Concepts Languages and Scripts of the Material: English and Latin

Library E-Book Licensing And State Law Reform, Kincaid Brown

Law Librarian Scholarship

Libraries don’t “buy” most e-books the way they buy print books; they license them. That reality is at the crossroads of budgetary constraints and patron satisfaction in modern libraries. With print, a library typically pays once, owns the copy, and lends it until it wears out. With e-books, publishers and intermediaries, like platforms such as OverDrive, commonly offer time-limited or loan-limit-ed terms (for example, a license that expires after a set number of checkouts or after a set period), can impose embargoes, and can set prices far above consumer retail. Libraries argue these terms frustrate their public mission and make …

Ai Tips And Traps, Patrick Barry

Books

Based on a series of popular courses and workshops that Professor Patrick Barry has created for students, professionals, and anyone else interested in taking a skills-based approach to artificial intelligence, this book gives you a chance to engage with important AI concepts, experiment with exploratory AI exercises, and then ultimately develop your own customized list of AI traps to try as well as AI traps to avoid.

Native American Law Explainer, Kincaid Brown

Law Librarian Scholarship

Native American tribes are the original sovereign peoples of the lands that now comprise the United States, with histories, governments, and cultures that predate the founding of the nation by thousands of years. Long before European colonization, hundreds of distinct tribal nations exercised independent political authority over their territories. Although the United States entered hundreds of treaties recognizing tribes as distinct political entities, federal Indian policy evolved over time through periods of treaty-making, forced removal, allotment, assimilation, termination, and, since the 1970s, tribal self-determination. The legal relationship between tribes and the federal government is grounded in the U.S. Constitution, as …

Ten Commandments Cases: Learning From Reformation Coercion, Paul E. Mcgreal

Michigan Law Review Online

The Supreme Court’s recent embrace of “historical practices and understandings” in interpreting the Establishment Clause has emboldened states to challenge forty-five years of precedent prohibiting Ten Commandments displays in public schools. Yet, these states advance a version of history that mistakenly ignores European religious persecution that shaped how the Founders understood the establishment of religion. This Essay remedies that error through a novel historical analogy: sixteenth-century Catholic processions that forced Protestants to choose between betraying their conscience or marking themselves for persecution. Like modern students confronting state-mandated religious texts, Reformation-era dissenters faced orchestrated tests of faith designed to identify and …

Tax Laws And Proportionality: Analyzing Implementation And Advocating For Reform, Moshe A. Jaffe

SJD Dissertations

The application of judicial review to tax legislation presents unique challenges and inconsistencies. This study contends that the proportionality doctrine, widely used in numerous legal systems, offers the best framework for reviewing the constitutionality of tax laws. By examining the implementation of proportionality in countries such as Germany, Israel, and Canada, this research argues that adopting this doctrine—excluding the Stricto Sensu sub-test—could provide a more consistent and fair method for judicial review of tax legislation. Specifically, this approach avoids the indeterminacy and subjectivity often associated with open-ended balancing, while still ensuring that tax measures serve legitimate aims and employ means …

International Declaration On Gender Apartheid And Its Destructive Consequences, Georges Abi-Saab, Belquis Ahmadi, Hala Alkarib, Waheeda Amien, Penelope Andrews, Zainah Anwar, Marzia Babakarkhail, Cecilia Bailliet, Manizha Bakhtari, Karima Bennoune, Laurence Boisson De Chazournes, Roya Boroumand, Terry Boullata, Charlotte Bunch, Rebecca J. Cook, Roberta Clarke, Radhika Coomaraswamy, Suraya Dalil, Wesahl Domingo, Shirin Ebadi, Yakin Ertük, Alda Facio, Stephanie Farrior, Hannah Garry, James Thuo Gathii, Richard Goldstone, Pablo De Greiff, Mozn Hassan, Yoko Hayashi, Helena Kennedy, Sisi Khampepe, Fawzia Koofi, Viviana Krsticevic, Joanna Lewis, Marina Mahathir, Haanya Malik, Elham Manea, Gay J. Mcdougall, Juan E. Méndez, Davood Moradian, Denis Mukwege, Nadia Murad, Elizabeth Odio Benito, Thandi Orleyn, Mikiko Otani, Tamana Zaryab Paryani, Pragna Patel, Fausto Pocar, Javaid Rehman, Mary Robinson, Kenneth Roth, Albie Sachs, Mariam Safi, Gita Sahgal, Sima Samar, Habiba Sarabi, Fatou Sou, Leigh Toomey, Melanne Verveer, Zarqa Yaftali, Ganna Yudkivska

Other Publications

The Declaration is the result of an 18-month process of global consultation with leading experts, including a series of virtual consultations with women human rights defenders (WHRDs) from Afghanistan in spring 2025 and an in-person convening of United Nations (UN) experts, Afghan and South African WHRDs, civil society representatives, and international law experts at the University of Michigan Law School in September 2025.

This effort builds on the precedent of other experts’ declarations, signed on to by leading international legal and human rights experts, which were very influential in developing a human rights jurisprudence on a range of issues, and …

Reading Wars, Don Herzog

Books

Once again, we’re fighting wars over reading. Who gets to read? What do they get to read? These days, the right is obsessed with removing LGBTQ books from school and public library shelves and ensuring students read only the Correct version of American history. The left is obsessed with eradicating right-wing fantasies, not to mention outright lies, from the internet, and with airbrushing or even purging racist texts. You don’t have to stoop to whataboutery to notice a suspicious resemblance. But once again is wrong. We’ve always fought these wars, even if the enemies come and go. In this book, …

China’S Shift Towards Data Openness: Integrating Security With Trade In Cross-Border Data Transfer, Yichen Huang

Michigan Technology Law Review

As the world's second-largest economy, China's stringent cross-border data transfer laws have deterred numerous multinational investments. To address this issue, China has prioritized data openness in its legislative agenda. The passage of the Provisions on Facilitating and Standardizing Cross-Border Data Transfer (the “New Cross-Border Data Transfer Regulation”) in March 2024 marked a significant milestone in this effort. Despite this progress, investors continue to express concerns about enforcing the new law. This article analyzes these recent legal developments and argues that they signal the government's determination to relax data control measures. China's stance is shifting from prioritizing security over trade to …

What Is Hate Speech? A Proposal For An Ordinary And Legal Definition, Hannah Van Dijcke

SJD Dissertations

The term “hate speech” has been stretched in legal and public debates to cover speech ranging from insults to Holocaust denial. This definitional stretching has consequences beyond mere conceptual confusion: it risks obscuring the profound harm that hate speech does, and it facilitates the term’s misuse.

In this dissertation, I aim to precisely define hate speech and its harm, both in an ordinary (colloquial or non-legal) sense and in a legal sense. To do so, I examine real-world examples of speech widely understood to express hate, including texts from the context of the Holocaust and the Rwandan genocide, and conduct …

States As Gatekeepers In Global Governance, Kristina Daugirdas

Articles

Over the last several decades, private actors—corporations, philanthropic foundations, and non-governmental organizations—have increasingly contributed to the development and implementation of public international law. In some cases, private actors are developing standards that serve as substitutes for public regulation. In other cases, private actors have been “invited in” to public international organizations as funders, accredited observers and consultants, and even representatives of member states. According to one estimate, 56 percent of international organizations offered some form of access to private actors in 1990; two decades later, more than 90 percent did.

What we are witnessing, in other words, is the growing …

Interpretive Facts: Textualism, Empiricism, And The Law-Fact Divide, Hannah Walser

Articles

This Article offers the first systematic examination of where empirical linguistic evidence should fit in the federal court system's division of labor based on law and fact. I begin by identifying interpretive facts : generalized empirical evidence about how a particular word or phrase has been used by a population of speakers, understood by a population of listeners, or both. Thanks to technological advances in corpus linguistics permitting the quantitative analysis of large numbers of texts, as well as methodological shifts that frame ordinary meaning as an empirical question, such facts are increasingly prominent in statutory and constitutional interpretation cases. …

The International Order, International Law, And The Definition Of Security, Harlan Grant Cohen

Michigan Journal of International Law

As economic security has seemingly moved to the center of American and European foreign policy, both the United States and the European Union have broadened their interpretation of international law rules governing security, coercion, and intervention. But these interpretations are not exactly new, echoing developing state interpretations of international law that developed states had long ago seemingly rejected. How are these once moribund interpretations of security, force, and coercion being brought back to life?

This article argues that these interpretative shifts highlight the role of the international order as an interpretative mechanism within international law. Borrowing from the work of …

Revolutionizing The Cross-Border Payment System, Muhui Shi

Michigan Technology Law Review

When you bought your coffee this morning, you probably didn’t notice that many cross-border payments were hidden in the process of shipping beans in Ethiopia to the barista in your neighborhood. Comprising more than ten percent of what U.S. consumers spend, cross-border payments are an essential part of U.S. dollar dominance and commercial competitiveness. Yet, the outdated cross-border payment system—shrinking constantly in reach and struggling with structural changes—is demanding a complete upgrade.

What is the best path forward? Cryptocurrencies? E-money? Stablecoins? Central bank digital currencies (CBDCs)? In this article, I answer the question by uncovering the core needs of the …

Regulating Ai Beyond Product Liability, Shruti Trikanad

Michigan Technology Law Review

Artificial Intelligence (AI) is being used by governments across the world to enforce regulatory mandates, adjudicate benefits and privileges, predict and analyze risks, and much more. Although this has significant potential to increase efficiency and responsiveness, it also comes with several risks of transparency, government accountability, and the amplification of discrimination and bias. It is crucial we oversee and regulate these AI systems effectively. This essay argues against the models that current regulatory frameworks are adopting to govern AI use: those resembling product liability.

Through the lens of the European Union's AI Act and Liability Directive, it highlights the unsuitability …

Health, Patents, And Path Dependence: India's Pharmaceutical Crossroads, Jacie Bissell

Michigan Technology Law Review

This paper examines how India’s historical commitment to affordable medicine and public health continues to shape its pharmaceutical patent regime, even as the country aspires to become an innovation-driven economy. Through the lens of path dependence, the paper explores how India’s legal and institutional frameworks have created structural constraints on policy reform. Focusing on key moments such as the Patents Act of 1970, the landmark Novartis decision, and India’s evolving stance on the TRIPS waiver during the COVID-19 pandemic, the paper analyzes the tensions between fostering pharmaceutical innovation and maintaining access to affordable medicines. While recent procedural reforms and judicial …

Recovering From The Ego Death Of The Internet: How The Communications Decency Act Has Shattered Cyber-Libertarianism And The Non-Exceptionalist Move Toward A Brighter Digital World, Peyton Friedlander

Michigan Technology Law Review

For nearly thirty years, the legal framework for analyzing liability for claims of tortious wrongdoing on the Internet has been governed by Section 230 of the Communications Decency Act (“CDA”). However, much has changed since the Act’s inception. Since Congress enacted the CDA, courts have interpreted its provisions far beyond their original meaning, creating a regime that ultimately destroys a prospective plaintiff’s ability to recover the equitable remedies once available to those seeking redress for online invasions of privacy and reputational harms.

As the Internet continues to grow and changes in technology rapidly develop, it is time to re-center equitable …

Conversational Ai And Human-Centered First Amendment, Inyoung Cheong

Michigan Technology Law Review

Human-centered artificial intelligence (AI) is premised on the idea that humans must remain the ultimate locus of agency in technological systems. First Amendment jurisprudence has displaced this commitment. By extending speech protection to algorithmic architectures, the judiciary has forged a doctrinal shield that insulates corporate actors from the consequences of their products. Conversational AI deepens this crisis through intimate incursions into the epistemic and emotional registers of the self. Emerging approaches that anchor First Amendment coverage to the controllability or traceability of AI outputs offer no stable solution. Policy-level design choices such as safety guardrails and alignment processes can readily …

The Justice For Victims Of War Crimes Act: A Dangerous Expansion Of Universal Jurisdiction To Non-International Armed Conflicts, Yuyan (Nicole) Zhang

Michigan Journal of International Law

Universal jurisdiction over war crimes committed in noninternational armed conflict (“NIACs”) has yet to develop a firm legal foundation under international law. The Justice for the Victims of War Crimes Act of 2023, however, amended the War Crimes Statute (18 U.S.C. § 2441) and extended universal jurisdiction to NIACs. This overreach risks infringing on the sovereignty of NIAC-affected states and destabilizing their ongoing peace processes. Many such states prioritize reconciliation through mechanisms like truth commissions over retributive justice through criminal trials. The prosecution of their nationals under U.S. law could undermine their sovereign decisions and unravel delicate efforts toward peace. …

Regulating Drone Delivery Networks, Ramsay Eyre

Journal of Law and Mobility

For over a decade, drone delivery has been heralded as the next frontier of commercial transportation and logistics. However, drone delivery companies have been unable to scale their operations. Part of the problem, from the perspective of the companies invested in drone delivery, were federal regulations that in effect prohibited drones from making deliveries. In 2025, following years of effort by industry and allies in Congress to create new rules governing drones, the second Trump Administration proposed a new set of drone regulations pursuant to the FAA Reauthorization Act of 2024. These rules are intended to significantly expand the number …

The Internet At War: An Empirical And Legal Analysis Of Harmful Narratives On Social Media During Armed Conflict, Bailey Ulbricht, Allen Weiner

Michigan Technology Law Review

This Article empirically investigates the connection between harmful narratives on social media and violent acts perpetrated against persons protected under international humanitarian law (IHL) during armed conflict, and then examines the legal implications of such a relationship. First, examining comprehensive datasets from two inter-state armed conflicts (Russia-Ukraine and Armenia-Azerbaijan) as case studies, this Article documents patterns in Telegram data indicating that more violent acts are preceded by increases in harmful narratives than decreases in such content. This suggests that harmful narratives on social media platforms may plausibly contribute to the incidence of real-world violence committed against protected persons during armed …

The New Legal Tender Debate: Surveying State-Level Attempts To Regulate Central Bank Digital Currencies, Jacob Gerszten

Michigan Technology Law Review

This Note explores the growing wave of state-level legislation aimed at regulating Central Bank Digital Currencies (CBDCs). CBDCs, digital forms of central bank-issued money, have sparked intense political debates between proponents who see them as the logical next development in monetary technology and critics who perceive them as threats to privacy and financial system stability. Although a widely available CBDC appears unlikely without Congressional authorization, sixteen states have enacted laws designed to preempt its development, with more statutes likely to follow. These state statutes employ various legal mechanisms, including redefining terms in the Uniform Commercial Code, prohibiting CBDC-related payments to …