Digital Commons Network^™

The Problematic Structure Of Indigent Defense Delivery, Eve Brensike Primus

Michigan Law Review

The national conversation about criminal justice reform largely ignores the critical need for structural reforms in the provision of indigent defense. In most parts of the country, decisions about how to structure the provision of indigent defense are made at the local level, resulting in a fragmented patchwork of different indigent defense delivery systems. In most counties, if an indigent criminal defendant gets representation at all, it comes from assigned counsel or flat-fee contract lawyers rather than public defenders. In those assigned-counsel and flat-fee contract systems, the lawyers representing indigent defendants have financial incentives to get rid of assigned criminal …

Public Duties For The New City, Sarah L. Swan

Michigan Law Review

The first job of a government is to protect its people, and, in the United States, the government ostensibly performs this job through the police. But policing in America is deeply dysfunctional, as the police not only provide inadequate protection from violent crime, but simultaneously engage in outright acts of brutality against the citizenry. As awareness of these practices has swept across the nation, legal scholars and policymakers have offered numerous reforms and remedies to help solve policing’s problems. The responses have tended to focus on the top of the legal pyramid, using the big hammers of the federal government, …

The Impact Of Post-Dobbs Abortion Bans On Prenatal Tort Claims, Aviva K. Diamond

Michigan Law Review

In June 2022, the Supreme Court revoked Americans’ fundamental right to abortion in Dobbs v. Jackson Women’s Health Organization. However, the Court said nothing about how its decision would impact tort claims related to reproductive care. Many states have since adopted near-total or early-gestational- age abortion bans, which has not only diminished access to reproductive care, but has also incidentally impaired the ability of plaintiffs to bring long-recognized prenatal tort claims. Prenatal tort claims—wrongful pregnancy, birth, and life—allow victims to recover when a medical professional negligently performs reproductive or prenatal care. This Note identifies the impact that post-Dobbs …

Unraveling The International Law Of Colonialism: Lessons From Australia And The United States, Robert J. Miller, Harry Hobbs

Michigan Journal of Race and Law

In the 1823 decision of Johnson v. M’Intosh, Chief Justice John Marshall formulated the international law of colonialism. Known as the Doctrine of Discovery, Marshall’s opinion drew on the practices of European nations during the Age of Exploration to legitimize European acquisition of territory owned and occupied by Indigenous peoples. Two centuries later, Johnson—and the international law of colonialism—remains good law throughout the world. In this Article we examine how the Doctrine of Discovery was adapted and applied in Australia and the United States. As Indigenous peoples continue to press for a re-examination of their relationships with governments, …

Public Engagement, Equity, And Executive Order 14,094., Nina A. Mendelson

Articles

Executive Order 14,094 ("the Order"), signed by President Biden in April, 2023, breaks ground to make regulatory decisionmaking more equitable and inclusive, continuing a theme the Biden Presidency began with Executive Order 13,985, Advancing Racial Equity and Support for Underserved Communities Through the Federal Government. Agencies must, of course, hear from those who are regulated, but genuinely equitable decisionmaking also requires agencies to hear and engage the concerns of affected individuals and communities, including underserved communities. This recognizes that many Americans have a distinct and substantial interest in the benefits promised by legislatively created regulatory programs, whether those include safe …

De-Nazifying By De-Cartelizing, Daniel A. Crane

Book Chapters

In 1945, a group of zealous American trustbusters, freshly groomed in the Brandeisian tradition of “anti- Bigness,” descended on the smoldering ruins of Germany, eager to identify and then nullify the culprits behind Hitler’s rise to power. Their eyes were fixed on the enormous industrial combines and cartel organizations that had sprung up in the German economy since the time of Bismarck, grown exponentially during the Weimar era, and then served as the economic infrastructure of the Third Reich. To the trustbusters in the Office of Military Government US (“OMGUS”) Decartelization Branch, the monopolies and trusts were the prime culprits …

Allow Me To Transform: A Black Guy’S Guide To A New Constitution, Brandon Hasbrouck

Michigan Law Review

A Review of Allow Me to Retort: A Black Guy’s Guide to the Constitution. By Elie Mystal.

Mothers In Law, Melissa Murray

Michigan Law Review

A Review of Civil Rights Queen: Constance Baker Motley and the Struggle for Equality. By Tomiko Brown-Nagin.

Constitutional Review Of Federal Tax Legislation, Reuven S. Avi-Yonah, Yoseph M. Edrey

Articles

What does the Constitution mean when it says that “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States” (U.S. Const. Article I, Section 8, Clause 1)?

The definition of “tax” for constitutional purposes has become important considering the Supreme Court’s 2012 decision in National Federation of Independent Business v. Sebelius (“NFIB”), in which Chief Justice Roberts for the Court upheld the constitutionality of the individual mandate of the Patient Protection and Affordable Care Act (“ACA”) under the taxing …

The New Orleans Transformation: Foster Care As A Rare, Time-Limited Intervention, Josh Gupta-Kagan, Christopher Church, Melissa Carter, Vivek Sankaran, Andrew Barclay

Articles

This Article offers an initial evaluation of one reformed child protection system— New Orleans, Louisiana—and describes how a system that dramatically reduces the number of children in foster care might look. This system shows how a major metropolitan area can shrink its daily population of children in foster care to the low double digits, which would correspond to a reduction of the national daily foster care population by about 360,000. This reduction was mostly due to sending children home—usually to the homes from which they were removed—within days or weeks of removal, raising questions about the necessity of the original …

A New Framework For Taxing Cryptocurrencies, Reuven S. Avi-Yonah, Mohanad Salaimi

Articles

This Article explores the tax law challenges associated with the taxation of cryptocurrencies and offers proposals to address such challenges. The Article addresses the proper tax treatment of different cryptocurrency transactions and activities. It examines various aspects associated with the taxation of cryptocurrency through its life cycle, starting from earning cryptocurrency, through its disposal or exchange. The Article also examines the tax treatment of two special crypto events, hard forks and airdrops. Specifically, this Article describes a proposal to tax cryptocurrencies based on their unique features. It argues that various ways of earning or receiving crypto tokens (for example, mining …

Status Manipulation In Chae Chan Ping V. United States, Sam Erman

Michigan Law Review

A Review of Chae Chan Ping v. United States. By Rose Cuison-Villazor in Critical Race Judgments: Rewritten U.S. Court Opinions on Race and the Law 74, 84. Edited by Bennett Capers, Devon W. Carbado, R.A. Lenhardt and Angela Onwuachi-Willig.

The Not-So-Standard Model: Reconsidering Agency-Head Review Of Administrative Adjudication Decisions, Rebecca S. Eisenberg, Nina A. Mendelson

Articles

The Supreme Court has invalidated multiple legislative design choices for independent agency structures in recent years, citing Article II and the need for political accountability through presidential control of agencies. In United States v. Arthrex, Inc., the Court turned to administrative adjudication, finding an Appointments Clause violation in the assignment of certain final patent adjudication decisions to appellate panels of unconfirmed administrative patent judges. As a remedy, a different majority declared unenforceable a statutory provision that had insulated Patent and Trademark Office (PTO) administrative adjudication decisions from political review for almost a century. The Court thereby enabled the politically appointed …

Hierarchy, Race & Gender In Legal Scholarly Networks, Nicholson W. Price, Keerthana Nunna, Jonathan Tietz

Articles

A potent myth of legal academic scholarship is that it is mostly meritocratic and mostly solitary. Reality is more complicated. In this Article, we plumb the networks of knowledge co-production in legal academia by analyzing the star footnotes that appear at the beginning of most law review articles. Acknowledgments paint a rich picture of both the currency of scholarly credit and the relationships among scholars. Building on others’ prior work characterizing the potent impact of hierarchy, race, and gender in legal academia more generally, we examine the patterns of scholarly networks and probe the effects of those factors. The landscape …

The Early Years Of Congress’S Anti-Removal Power, Aaron Nielson, Christopher J. Walker

Articles

Judges and scholars have long debated whether the Constitution provides the President with a power to remove executive officials. The Constitution, however, undoubtedly gives Congress tools to discourage the President’s use of such power. Perhaps most notably, the Appointments Clause makes it more difficult for the President to remove principal officers—even those whose views are out of the step with the President’s—because the President cannot know whether the Senate will consent to a preferred replacement. This is an example of what we dub Congress’s anti-removal power: Even if the President can remove, a motivated Congress can discourage the President’s use …

Gentlewomen Of The Jury, Vivian N. Rotenstein, Valerie P. Hans

Michigan Journal of Gender & Law

This Article undertakes a contemporary assessment of the role of women on the jury. In 1946, at a time when few women served on U.S. juries, the all-male Supreme Court opined in Ballard v. United States: “The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of influence of one on the other is among the imponderables.” Three-quarters of a century later, women’s legal and social status has changed dramatically, with increased participation in the labor force, expanded leadership roles, and the …

Litigation, Referendum Or Legislation? The Road To Becoming The First In Asia To Institutionalize Same-Sex Marriage, Tzu-Chiang Huang

Michigan Journal of Gender & Law

In the pursuit of same-sex marriage, advocates in each country evaluate the appropriate decision-making process for addressing this highly disputed issue—litigation, legislation, or referendum. The choice may be partially based on the institutional advantages of each approach, but more importantly, the choice is also conditioned by the legal and political context of each country, such as the authority of the court, the framing of public opinion, and the dynamics between movement and countermovement. Uniquely, all three decision-making processes are involved in the course of the institutionalization of same-sex marriage in Taiwan. This Article, focusing on the experience in Taiwan, examines …

Making Mandates Last: Increasing Female Representation On Corporate Boards In The U.S., Nikki Williams

Michigan Journal of Gender & Law

A lack of female representation on corporate boards has plagued our country for decades. Until a few years ago, there was not a single state or federal regulation that required corporations to fill board seats with female directors. Instead, the federal government talked around the issue. In 2010, the SEC established an optional reporting structure for corporations to communicate their hiring practices, but did little else. With no national plan in place, many states implemented legislation that urged corporations to hire female directors. But this legislation barely moved the needle. The country needed a mandate. And in 2018, California implemented …

The Death Of Amateurism In The Ncaa: How The Ncaa Can Survive The New Economic Reality Of College Sports, Claire Haws

Michigan Business & Entrepreneurial Law Review

In October 2019, the National Collegiate Athletic Association (NCAA) announced it would be making a major change to its rules: student-athletes would soon be permitted to receive compensation for the use of their name, image and likeness (NIL). The announcement came in response to an increasing volume of state legislation allowing for student-athlete NIL compensation. On July 1, 2021, student-athletes finally had the opportunity to receive NIL benefits as the NCAA’s interim NIL policy went into effect. This change represents a nail in the coffin for traditional notions of amateurism.

For decades, the NCAA defended its rules from antitrust challenges …

The Judicial System’S Unjust Relationship With Attorney-Client Privilege: How Judges Knowingly (And Erroneously) Abrogate Important Contractual Arrangements In Corporate Transactions, Edward S. Adams

Michigan Business & Entrepreneurial Law Review

A Delaware court has recently recognized the need to enforce contracts that delineate where the attorney-client privilege rests after an asset transfer. This Article will argue that courts across the country should recognize the important and legitimate reasons for this type of decision. Part I will review how the attorney-client privilege functions for corporations and how courts respect the importance of the privilege in other contexts. Part II will review the fundamental corporate changes in which these questions can arise and situations in which courts choose to recognize the importance of protecting the attorney-client privilege. Part III will argue that …

Closing The Auditor Loophole: Towards A More Perfect Work-Product Waiver Doctrine, Evan Mulbry

Michigan Business & Entrepreneurial Law Review

The Supreme Court created strong protections for the attorney’s thought processes and analysis in Hickman v. Taylor. However, the Court in Arthur Young & Co. created a loophole enabling opposing lawyers to access the lawyer’s thought processes and legal strategies. This loophole was created when the Court allowed discovery of an auditor’s tax workpapers, and lower courts then interpreted this decision to imply that disclosing information to the outside auditor constitutes a waiver of attorney work-product protections. This loophole can be corrected through a Congressional statute that impacts the Federal Rules of Evidence, which would protect communications between outside auditors …

Critical Race Feminism, Health, And Restorative Practices In Schools: Centering The Experiences Of Black And Latina Girls, Thalia González, Rebecca Epstein

Michigan Journal of Gender & Law

Restorative practices (RP) in K-12 schools in the United States have grown exponentially since the early 1990s. Developing against a backdrop of systemic racism, RP has become embedded in education practice and policy to counteract the harmful and persistent patterns of disparities in school discipline experienced by students of color. Within this legal, social, and political context, the empirical evidence that has been gathered on school-based restorative justice has framed and named RP as a behavioral intervention aimed at reducing discipline incidents—that is, an “alternative” to punitive and exclusionary practices. While this view of RP is central to dismantling discriminatory …

Gender And Corporate Crime: Do Women On The Board Of Directors Reduce Corporate Bad Behavior?, Ido Baum, Dalit Gafni, Ruthy Lowenstein Lazar

Michigan Journal of Gender & Law

Public debate on mandating gender representation on boards of directors in the United States is close to a boiling point. California introduced a mandatory quota in 2018 only to see it constitutionally disqualified in 2022, and the Nasdaq Stock Market followed suit with new diversity rules in 2021 for all corporations listed on the exchange. While public discourse focuses on corporate performance, not much is known about the link between gender diversity and corporate normative obedience.

In this study we explore the relationship between boardroom gender representation and corporate compliance with the law. We examine the impact of gender diversity …

Weathering State And Local Budget Storms: Fiscal Federalism With An Uncooperative Congress, David Gamage, Darien Shanske, Gladriel Shobe, Adam Thimmesch

University of Michigan Journal of Law Reform

Throughout most of 2020, state and local governments faced severe budget crises as a result of the COVID-19 pandemic. Increased demand for state welfare services and rising state expenses related to controlling the spread of COVID-19 stretched state and local budgets to their breaking points. At the same time, layoffs, business closures, and social distancing measures reduced states’ primary sources of tax revenues. The traditional practice of American fiscal federalism is for the federal government to step in to provide aid during a national emergency of this magnitude, because state and local governments lack the federal government’s monetary and fiscal …

Keeping Counsel: Challenging Immigration Detention Transfers As A Violation Of The Right To Retained Counsel, Natasha Phillips

Michigan Journal of Race and Law

In 2019 U.S. Immigration and Customs Enforcement (“ICE”) incarcerated nearly 500,000 individuals. More than half of the individuals detained by ICE were transferred between detention facilities, and roughly thirty percent of those transferred were moved between federal circuit court jurisdictions. Detention transfers are isolating, bewildering, and scary for the detained noncitizen and their family. They can devastate the noncitizen’s legal defense by destroying an existing attorney-client relationship or the noncitizen’s ability to obtain representation. Transfers also obstruct the noncitizen’s ability to gather evidence and may prejudicially change governing case law. This Note describes the legal framework for transfers and their …

Delegation At The Founding: A Response To Critics, Julian Davis Mortenson, Nicholas Bagley

Articles

This essay responds to the wide range of commentary on Delegation at the Founding, published previously in the Columbia Law Review. The critics’ arguments deserve thoughtful consideration and a careful response. We’re happy to supply both. As a matter of eighteenth-century legal and political theory, “rulemaking” could not be neatly described as either legislative or executive based on analysis of its scope, subject, or substantive effect. To the contrary: Depending on the relationships you chose to emphasize, a given act could properly be classified as both legislative (from the perspective of the immediate actor) and also executive (from the perspective …

Textualism And The Indian Canons Of Statutory Construction, Alex Tallchief Skibine

University of Michigan Journal of Law Reform

When interpreting statutes enacted for the benefit or regulation of Indians or construing treaties signed with Indian nations, courts are supposed to apply any of five specific canons of construction relating to Indian Affairs. Through examining the modern line of Supreme Court cases involving statutory or treaty interpretation relating to Indian nations, this Article demonstrates that the Court has generally been faithful in applying canons relating to treaty interpretation or abrogation. The Court has also respected the canon requiring unequivocal expression of congressional intent before finding an abrogation of tribal sovereign immunity. However, there are two other canons that the …

The Times They Are A-Changin’?: #Metoo And Our Movement Forward, Terry Morehead Dworkin, Cindy A. Schipani

University of Michigan Journal of Law Reform

Social movements like #MeToo have gained public traction like never before. In this Article, we place those developments within their historical context and chart a path forward. First, we provide a history of the prior unsuccessful attempts to ratify an Equal Rights Amendment, and we discuss that effort’s current legal status and prospects. Then, we briefly review the history of sexual harassment law. Having outlined this historical context, we move to contemporary developments. We describe actions that state legislatures and local municipalities have taken to address the concerns raised by the #MeToo movement. Finally, we discuss how inflection points can …

The Fed Of The Future: A Framework To Optimize Short-Term Lending Practices, Emma Macfarlane, Karin Thrasher

University of Michigan Journal of Law Reform

Underbanked individuals currently face significant risk when accessing short-term credit. While payday loans are the least expensive short-term credit option when compared to alternatives like overdraft fees, they can also have an extraordinarily high cost of borrowing. Unable to pay the cost of the loan, borrowers often find themselves in a vicious cycle that drives them further into debt. This Note sets forth a proposal as to how payday loans can be better regulated to create affordable access to short-term credit. Specifically, this Note advocates for congressional and Federal Reserve intervention in the payday lending market.

This Note first analyzes …

Territoriality In American Criminal Law, Emma Kaufman

Michigan Law Review

It is a bedrock principle of American criminal law that the authority to try and punish someone for a crime arises from the crime’s connection to a particular place. Thus, we assume that a person who commits a crime in some location— say, Philadelphia—can be arrested by Philadelphia police for conduct deemed criminal by the Pennsylvania legislature, prosecuted in a Philadelphia court, and punished in a Pennsylvania prison. The idea that criminal law is tied to geography in this way is called the territoriality principle. This idea is so familiar that it usually goes unstated.

This Article foregrounds and questions …