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Pretext, Reality, And Verisimilitude: Truth-Seeking In The Supreme Court, Robert N. Weiner

University of Michigan Journal of Law Reform

The assault on truth in recent public discourse makes it especially important that judicial decisions about Executive actions reflect the world as it is. Judges should not assume some idealized reality where good faith prevails, the motives of public officials are above reproach, and administrative processes are presumptively regular. Unfortunately, however, the Supreme Court has acted on naïve or counterfactual assumptions that limit judicial review of administrative or Presidential action. Such intentional judicial blindness or suspension of justified disbelief—such lack of verisimilitude—can sow doubt regarding the Court’s candor and impartiality.

In analyzing the Court’s fealty to objective reality in its …

Modernizing Notice Of Breach Rules To Preserve Contract Remedies, Stephen Plass

University of Michigan Journal of Law Reform

Recently, the legal community has scrutinized the capacity of mandatory arbitration rules to deter or foreclose claims for breach of contract. But little attention has been paid to express and constructive notice of breach rules that are just as effective at foreclosing contractual remedies. While four-year statutes of limitations are typically viewed as the default cutoff time for breach of contract claims, contracting parties, particularly buyers of goods, must act much sooner to preserve their legal remedies. It is now common practice for sellers to require notice of breach within days or weeks of their performance as an express condition …

Hard Truths: Libel By Implication Doctrine And The Need For A Uniform Standard, Carly Ryan

University of Michigan Journal of Law Reform

Since the inception of the tort of libel, claims against the media have created a tension between the First Amendment’s commitment to a free press and the desire to prevent reputational harm to individuals. Further complicating the issue are cases in which plaintiffs allege that literally true statements are defamatory based on implications created through juxtapositions or omissions of facts. This is known as libel by implication, a tort currently governed by states through a patchwork of varying standards and interpretations. Not only does the lack of uniformity leave journalists without due notice of the law in the jurisdictions they …

Sacred Children, Taboo Tradeoffs, And Distorted Discourses, Sean Hannon Williams

University of Michigan Journal of Law Reform

This Article brings together three literatures—bioethics, psychological research on taboo tradeoffs, and family law—to reveal pervasive distortions in current family law scholarship and judicial reasoning. Empirical work in bioethics shows that child welfare occupies a unique moral sphere. People routinely resist making tradeoffs between spheres. Just as sacrificing adult lives for money is taboo, so too is sacrificing child welfare for adult welfare. When faced with the prospect of these tradeoffs, people engage in a predictable set of avoidance and moral mitigation strategies. Across five case studies, this Article shows how child welfare has talismanic qualities which, even in the …

(Re)Building The Master's House: Dismantling America's Colonial Politics Of Extraction And Exclusion, Marissa Jackson Sow

Michigan Law Review Online

On February 10, 2021, and in the days thereafter, liberal American commentators showered Congresswoman Stacey Plaskett with superlatives and praise due to her masterful takedown of former President Donald Trump during his impeachment trial for incitement of the January 6, 2021 Capitol Riot. Referring to a picture of Plaskett wearing a knee-length blue dress with draped sleeves, the political strategist (and daughter of House Majority Leader Nancy Pelosi) Christine Pelosi took to Twitter to note that “[n]ot all superheroes wear capes. This one does!”

Illegality Defense To Contractual And Restitutionary Claims: A Comparative And Philosophical Study, Dingyurui Bao

SJD Dissertations

The aim of this dissertation is to study the practice and theories regarding the law of illegality, in the context of contract and unjustified enrichment.

Illegality (and immorality) is universally seen as a ground for invalidating contracts. It is widely acknowledged that the courts have the "prerogative to limit enforcement of contracts that transgress the boundaries of public policy". In both Common Law and the Civil Law systems, it is usually in the law of contract that the problem of illegality is dealt with. An illegal contract is invalid, but it may be performed, either in full or in part. …

The Digital Millennium Copyright Act – In Need Of A Major Software Update, Sabrina Ortega

Michigan Business & Entrepreneurial Law Review

The Digital Millennium Copyright Act (DMCA) unfairly discriminates against copyright holders by allowing online service providers to employ inadequate and outdated takedown protocols of copyright infringement. These protocols promote piracy resulting in illegal advertisement revenue streams. Congress must reform the DMCA to ensure online service providers are held properly accountable when copyright infringement occurs on their platforms. Specifically, the DMCA’s existing takedown protocols should be reformed to ensure online service providers cannot benefit from issues associated with advertisements attached to posts containing infringing material. This Note examines the pertinent sections of the DMCA; relevant caselaw concerning the DMCA, online service …

2023 Winter Class Schedule, University Of Michigan Law School

Class Schedules

Class schedule for the 2023 Winter semester at the University of Michigan Law School

Framing The Framer: A Commentary On Treanor’S Gouverneur Morris As “Dishonest Scrivener”, David S. Schwartz

Michigan Law Review Online

Dean William Treanor’s masterful article, The Case of the Dishonest Scrivener: Gouverneur Morris and the Creation of the Federalist Constitution, makes a major contribution to scholarship on the founding, one that will have a profound impact on how we read and understand the Constitution. Treanor’s keen analyses and his presentation of important-but-overlooked historical details support the article’s central and historically significant arguments. Treanor’s research is at the forefront of emerging scholarship seeking to recover “the Federalist Constitution,” a body of constitutional interpretations favored by those Framers who advocated a strong national government. These nationalist interpretations were subsequently emphasized by …

Catch And Release Jurisdiction, Adam B. Sopko

Michigan Law Review Online

In Catch and Kill Jurisdiction, Professor Zachary Clopton sheds light on an increasingly common phenomenon in which federal courts are expanding the power of the federal judiciary in a way that frustrates the enforcement of substantive rights. Federal courts expansively interpret their jurisdiction to reach cases that arguably belong in state court, then apply federal procedural doctrines to dismiss the cases on non-merits grounds. First catch, then kill. Clopton argues we find catch and kills when the federal court system is not overly burdened and in areas where federal judges are “hostile” to a class of claims or litigants. Catch …

Copyright Infringement And Enforcement In Ghana: A Comparative Study, Doreen Adoma Agyei

SJD Dissertations

Copyright infringement is a widespread problem in developed and developing nations and particularly concerning in Ghana. Many talented creators in Ghana have a strong desire to produce original creative works and are enthusiastic about committing themselves to this pursuit. Additionally, many more aspire to pursue these endeavours into professional careers. However, upon releasing their works, they are unfortunately immediately faced with infringements in nearly all copyright industries. These violations have become so common that they have unfairly placed rightsholders’ original works in competition with the infringers. Within this context, many talented creators, mostly self-funded, lack the incentive to pursue their …

Report Of The International Commission Of Human Rights Experts On Ethiopia, Mohamed Chande Othman, Steven Ratner, Radhika Coomaraswamy

Other Publications

In the present report, submitted pursuant to Human Rights Council resolution 51/27, the International Commission of Human Rights Experts on Ethiopia provides an overview of the human rights situation in Ethiopia. It identifies grave and systematic violations of international law and crimes committed in Tigray, as well as in Amhara, Afar and Oromia. Violations include mass killings, rape, starvation, forced displacement and arbitrary detention. The conflict in Tigray has not ended, with Eritrean troops and Amhara militias engaging in ongoing violations. Past and current violations and abuses in the four regions mentioned above demand further investigation. The Government of Ethiopia …

Editing And Advocacy, Patrick Barry

Books

Good editors don’t just see the sentence that was written. They see the sentence that might have been written. They know how to spot words that shouldn’t be included and summon up ones that haven’t yet appeared. Their value comes not just from preventing mistakes but from discovering new ways to improve a piece of writing’s style, structure, and overall impact.

This book— which is based on a popular course taught at the University of Chicago Law School, the University of Michigan Law School, and the UCLA School of Law— is designed to help you become one of those editors. …

The Syntax Of Sports Class 5: Rhetorical Repetition, Patrick Barry

Books

Here are some of the words that the people who have attended Patrick Barry's classes and workshops have used to describe his unique, multidisciplinary approach to teaching writing:

"Fantastic"
"Phenomenal"
"Very engaging and informative:
"Incredibly useful
"Full of practical lessons for both my career and life generally"

This fifth book in his Syntax of Sports series gives you a chance to experience his creative (and capacious) mind for yourself. Whether you've already read the previous four books in the series or are trying one out for the very first time, you're in for quite the educational treat.

Reforming Shareholder Claims In Isds, Julian Arato, Kathleen Claussen, Jaemin Lee, Giovanni Zarra

Articles

ISDS stands alone in empowering shareholders to bring claims for reflective loss (SRL) – meaning claims over harms allegedly inflicted upon the company, but which somehow affect share value. National systems of corporate law and public international law regimes generally bar SRL claims for strong policy reasons bearing on the efficiency and fairness of the corporate form. Though not necessitated by treaty text, nor beneficial in policy terms, ISDS tribunals nevertheless allow shareholders broad and regular access to seek relief for reflective loss. The availability of SRL claims in ISDS ultimately harms States and investors alike, imposing surprise ex post …

Terrible Freedom, Ambiguous Authenticity, And The Pragmatism Of The Endangered: Why Free Speech In Law School Gets Complicated, Leonard M. Niehoff

Articles

We idealize colleges and universities as places of unfettered inquiry, where freedom of expression flourishes. The Supreme Court has described the university classroom as “peculiarly the ‘marketplace of ideas.’” It declared: “The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, [rather] than through any kind of authoritative selection.” The exchange of competing ideas takes place not only in classrooms, but also in public spaces, dormitories, student organizations, and in countless other campus contexts.

Designing A Fulfilling Life In The Law, Bridgette Carr, Vivek Sankaran, Taylor J. Wilson

Articles

There is a mental health crisis in the legal profession. This isn’t news; in 2017, the National Task Force on Lawyering Well-Being acknowledged that the profession has failed to give adequate regard to the well-being of lawyers. High rates of chronic stress, depression, and substance use suggest that “the current state of lawyers’ health cannot support a profession dedicated to client service and dependent on the public trust.”

Responding To The New Major Questions Doctrine, Christopher J. Walker

Articles

The new major questions doctrine has been a focal point in administrative law scholarship and litigation over the past year. One overarching theme is that the doctrine is a deregulatory judicial power grab from both the executive and legislative branches. It limits the president’s ability to pursue a major policy agenda through regulation. And in the current era of political polarization, Congress is unlikely to have the capacity to pass legislation to provide the judicially required clear authorization for agencies to regulate major questions. Especially considering the various “vetogates” imposed by Senate and House rules, it is fair to conclude …

Interpreting The Administrative Procedure Act: A Literature Review, Christopher J. Walker

Articles

The modern administrative state has changed substantially since Congress enacted the Administrative Procedure Act (APA) in 1946. Yet Congress has done little to modernize the APA in those intervening seventy-seven years. That does not mean the APA has remained unchanged. Federal courts have substantially refashioned the APA’s requirements for administrative procedure and judicial review of agency action. Perhaps unsurprisingly, calls to return to either the statutory text or the original meaning (or both) have intensified in recent years. “APA originalism” projects abound.

As part of the Notre Dame Law Review’s Symposium on the History of the Administrative Procedure Act and …

Assessing Visions Of Democracy In Regulatory Policymaking, Shoba Sivaprasad Wadhia, Christopher J. Walker

Articles

Motivated in part by Congress’s failure to legislate, presidents in recent years seem to have turned even more to the regulatory process to make major policy. It is perhaps no coincidence that the feld of administrative law has similarly seen a resurgence of scholarship extolling the virtues of democratic accountability in the modern administrative state. Some scholars have even argued that bureaucracy is as much as if not more democratically legitimate than Congress, either in the aggregative or deliberative sense, or both.

Toward Self-Determination In The U.S. Territories: The Restorative Justice Implications Of Rejecting The Insular Cases, Sarah M. Kelly

Michigan Journal of Race and Law

Conservatives and liberals alike are increasingly calling for condemnation of the Insular Cases—a series of U.S. Supreme Court cases from the early 1900s, in which the Court developed the doctrine of territorial incorporation to license the United States’ indefinite holding of overseas colonial possessions. In March 2021, members of the U.S. House of Representatives introduced House Resolution 279, which declares that the Insular Cases should be rejected as having no place in U.S. constitutional law. Moreover, in 2022, Justice Gorsuch called for the Supreme Court to squarely overrule the cases.

For many, rejecting the Insular Cases is a long-overdue reckoning …

Bankruptcy In Black And White: The Effect Of Race And Bankruptcy Code Exemptions On Wealth, Matthew Bruckner, Raphaël Charron-Chénier, Jevay Grooms

Michigan Journal of Race and Law

Bankruptcy law in the United States is race-neutral on its face but, in practice, race matters in bankruptcy outcomes. Our original research provides an empirical look at how the facially neutral laws that allow debtors to retain assets in bankruptcy cases result in disparate outcomes for Black and white debtors. Racial differences in asset retention in bankruptcy cases play a role in perpetuating wealth inequality between Black and white debtors.

Existing bankruptcy data lacks individual-level characteristics such as race, which inhibits researchers’ ability to adequately assess biases or unintended consequences of laws and policies on subsets of the population. Thus, …

Trade Rules Of State Enterprises: A Lawmaking Perspective, Shixue Hu

Michigan Journal of International Law

State Enterprises are important actors in global trade, yet their regulation is a highly contentious issue that presently troubles the WTO and U.S.-China trade talks. This article proposes a typological framework of the multinational, regional, and bilateral trade rules concerning state enterprises. It compares their similarities and divergences from a lawmaking perspective, analyzing how lawmakers mix and match legal elements of ownership, control, purpose, authorization, function, activity, and industry of state enterprises with diverse policy ends. It reveals that some elements regulate behaviors while others pay more regulatory attention to the firm’s identity. These action-oriented and actor-focused approaches provide different …

Equitable Ecosystem: A Two-Pronged Approach To Equity In Artificial Intelligence, Rangita De Silva De Alwis, Amani Carter, Govind Nagubandi

Michigan Technology Law Review

Lawmakers, technologists, and thought leaders are facing a once-in-a-generation opportunity to build equity into the digital infrastructure that will power our lives; we argue for a two-pronged approach to seize that opportunity. Artificial Intelligence (AI) is poised to radically transform our world, but we are already seeing evidence that theoretical concerns about potential bias are now being borne out in the market. To change this trajectory and ensure that development teams are focused explicitly on creating equitable AI, we argue that we need to shift the flow of investment dollars. Venture Capital (VC) firms have an outsized impact in determining …

Article 3, Christine Chinkin, Lisa Gormley

Book Chapters

Article 3 is located in Part I of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) as one of the provisions that describe States parties' general obligations under the Convention. Read in conjunction with Articles 1, 2, 4, 5, and 24, it forms part of the overarching interpretative framework for the application of the specific obligations set out in Articles 6-16. Article 24 in Part VI is somewhat repetitive of Article 3. The obligations and concepts introduced in these initial articles apply to all other articles in the Convention. The Committee has, on occasion, viewed …

Constitutionalism Today: The Prospects Of The European Constituional Community, Susanne Baer, Kriszta Kovacs, Maya Vogel

Book Chapters

In the late 1940s a consensus emerged: a post-World War II, post-colonial, post-authoritarian, grand consensus in Europe and beyond. Dignity, liberty, and equality should not merely be promises on paper or an elitist privilege for the few, and representative democracy should be the way to run societies. This consensus certainly gave birth to a variety of legal regimes, but it also defined a baseline for the political systems we call constitutional democracies: first, power should be distributed to parliament and representative government via fair elections that ensure equal voting rights and a realistic option of a peaceful change of government …

A Comparative Look At Various Countries' Legal Regimes Governing Automated Vehicles, Brittany Eastman, Shay Collins, Ryan Jones, Jj Martin, Marjory S. Blumenthal, Karlyn D. Stanley

Journal of Law and Mobility

News and commentary about automated vehicles (AVs) focus on how they look and appear to operate, along with the companies developing and testing them. Behind the scenes are legal regimes—laws, regulations, and implementing bodies of different kinds—that literally and figuratively provide the rules of the road for AVs. Legal regimes matter because public welfare hinges on aspects of AV design and operation. Legal regimes can provide gatekeeping for AV developers and operators seeking to use public roads, and they can allocate liability when something goes wrong. Guiding and complementing legal regimes is public policy. Policy documents such as articulations of …

Regulatory Frameworks For Smart Mobility: Current U.S. Regulation Of Connected And Automated Vehicles And The Road Ahead, Olivia Dworkin, Jorge Ortiz, Nicholas Xenakis

Journal of Law and Mobility

On June 7, 2023, Senator Gary Peters from Michigan gave an interview about autonomous vehicle technology where he stated that: “From a competitive standpoint, there’s no question that it is absolutely essential that this technology get developed here and deployed here in the United States. We’re facing significant international competition from other countries that understand that autonomy represents not only the future of mobility, but it drives other technologies in a significant way.” Just last year, Senator Peters and eleven of his colleagues had also written a letter to Secretary of Transportation Pete Buttigieg that: “The federal government has the …

The Failed Federalism Of Affordable Housing: Why States Don't Use Housing Vouchers, Noah Kazis

Articles

This Article uncovers a critical disjuncture in our system of providing affordable rental housing. At the federal level, the oldest, fiercest debate in low-income housing policy is between project-based and tenant-based subsidies: should the government help build new affordable housing projects or help renters afford homes on the private market? But at the state and local levels, it is as if this debate never took place. The federal government (following most experts) employs both strategies, embracing tenant-based assistance as more cost-effective and offering tenants greater choice and mobility. But this Article shows that state and local housing voucher programs are …

Cryptic Patent Reform Through The Inflation Reduction Act., Arti K. Rai, Rachel E. Sachs, Price W. Nicholson

Articles

If a statute substantially changes the way patents work in an industry where patents are central, but says almost nothing about patents, is it patent reform? We argue the answer is yes — and it’s not a hypothetical question. The Inflation Reduction Act (“IRA”) does not address patents, but its drug pricing provisions are likely to prompt major changes in how patents work in the pharmaceutical industry. For many years scholars have decried industry’s ever-evolving strategies that use combinations of patents to block competition for as long as possible, widely known as “evergreening,” but legislators have not been receptive to …