Digital Commons Network^™

Disparate Discrimination, Leah M. Litman

Michigan Law Review

This Article explains and analyzes a recent trend in the Supreme Court’s cases regarding unintentional discrimination, where the argument is that a law has the effect of producing a disadvantage on members of a particular group. In religious discrimination cases, the Court has held that a law is presumptively unconstitutional if the law results in a comparable secular activity being treated more favorably than religious activity. Yet in racial discrimination cases, the Court has said the mere fact that a law more severely disadvantages racial minorities as a group does not suffice to establish unlawful discrimination.

The two tracks for …

Exclusion Cycles: Reinforcing Disparities In Medicine, Ana Bracic, Shawneequa L. Callier, Nicholson Price

Articles

Minoritized populations face exclusion across contexts from politics to welfare to medicine. In medicine, exclusion manifests in substantial disparities in practice and in outcome. While these disparities arise from many sources, the interaction between institutions, dominant-group behaviors, and minoritized responses shape the overall pattern and are key to improving it. We apply the theory of exclusion cycles to medical practice, the collection of medical big data, and the development of artificial intelligence in medicine. These cycles are both self-reinforcing and other-reinforcing, leading to dismayingly persistent exclusion. The interactions between such cycles offer lessons and prescriptions for effective policy.

Tightening The Legal ‘Net’: The Constitution’S Supremacy Clause Straddle Of The Power Divide, Steven Ferrey

Michigan Journal of Environmental & Administrative Law

This article analyzes Constitutional Supremacy Clause tensions in preempting state law that addresses climate change and the rapid warming of the Planet. Net metering laws, enacted in 80% of U.S. states, are a primary legal mechanism to control and mitigate climate warming. This article analyzes three recent federal court decisions creating a preemptive Supremacy Clause stand-off between federal and state law and presents a detailed state-by-state analysis of which those 80% of states’ laws could be preempted by legal challenge.

If state net metering laws affected only ordinary technologies, this issue would not be front and center with global warming. …

Adding Bite To The Zone Of Twilight: Applying Kisor To Revitalize The Youngstown Tripartite, Zachary W. Singer

Michigan Journal of Environmental & Administrative Law

In the half century and more since Justice Jackson’s famous concurrence in Youngstown Sheet & Tube Co. v. Sawyer, the fog surrounding acceptable executive power in national security and foreign affairs has only thickened. Today, whether presidents are responding to the challenges of an amorphous global war on terrorism or a global pandemic, they act against a backdrop of ambiguous constitutional and statutory authorization and shifting precedent. While Justice Jackson outlined zones of presidential power by tying that power to congressional acts, the Court subsequently watered down the test by looking to other factors, like legislative intent. At other …

Eia Directive Procedural Guarantees As Substantive Individual Rights In Il V. Land Nordrhein-Westfalen, Alexis Haddock

Michigan Journal of Environmental & Administrative Law

Environmental impact assessments serve as a necessary tool for attaining the goals of the Aarhus Convention and the EIA Directive (2011/92). The Aarhus Convention and EIA Directive aim to guarantee the public’s right to participate in environmental decision-making, to be provided information necessary to effectively participate, and to have access to a procedure to challenge a decision. The ECJ’s recent case IL v. Land Nordrhein-Westfalen articulates the current interpretation of the European Union Member States’ obligations under the EIA Directive to provide individuals standing to challenge impact assessment decisions. This opinion reaffirmed that in cases where the procedural defect did …

A Solution To The Hard Problem Of Soft Law, Keagan Potts

Michigan Journal of Environmental & Administrative Law

Administrative Agencies often rely on guidance documents to carry out their statutory mandate. Over the past few decades, the Food and Drug Administration (FDA) has been criticized for using soft law guidance documents to exercise powers beyond those authorized by Congress. Since attacks on the use of guidance documents persist and agencies need soft law to respond quickly and flexibly to rapid technological growth, it is essential to develop a solution that preserves this crucial regulatory mechanism and prevents its abuse. The most likely alternative to soft law guidance is formal regulation, which must be developed through the notice-and-comment process. …

Arms Control 2.0: Updating The Cyberweapon Arms Control Framework, Evan Mulbry

Michigan Technology Law Review

This Note analyzes multiple problems with the existing arms control framework for cyberweapons as well as surveillance technology and calls for four specific areas of reform. First, the existing framework does not specifically enumerate the software controlled under existing arms control treaties, which can lead to gaps in international export control compliance. Cyberweapons should be enumerated with greater specificity to prevent confusing and disjointed implementation by states. Second, the divide between Wassenaar and Shanghai Cooperation Organization conceptions of what constitutes a cyberweapon reduces the effectiveness of international control because nations do not share an agreed upon cyberweapon definition. States should …

Content Moderation Remedies, Eric Goldman

Michigan Technology Law Review

This Article addresses a critical but underexplored aspect of content moderation: if a user’s online content or actions violate an Internet service’s rules, what should happen next? The longstanding expectation is that Internet services should remove violative content or accounts from their services as quickly as possible, and many laws mandate that result. However, Internet services have a wide range of other options—what I call “remedies”—they can use to redress content or accounts that violate the applicable rules. This Article describes dozens of remedies that Internet services have actually imposed. It then provides a normative framework to help Internet services …

Nhtsa Up In The Clouds: The Formal Recall Process & Over-The-Air Software Updates, Emma Himes

Michigan Technology Law Review

Software updates are pushed to vehicles “over-the-air” (OTA) with increasing frequency as they reduce costs of visiting dealerships and auto shops to receive maintenance. These updates, pushed from the cloud, have been used to remedy safety defects in vehicles and improve software controlling all aspects of vehicles from steering to rearview mirrors. Remedies of vehicle safety defects are overseen by the National Highway Traffic Safety Administration (NHTSA); however, because many OTA software updates do not remedy issues officially deemed safety defects, they are pushed straight from the manufacturer to drivers with little government oversight or transparency. NHTSA’s recall process was …

An Empirical Study: Willful Infringement & Enhanced Damages In Patent Law After Halo, Karen E. Sandrik

Michigan Technology Law Review

For decades, companies and attorneys have instructed teams of engineers, researchers, and computer scientists to ignore patents. The reasoning for this advice: if there is no pre-suit knowledge of a patent, then it is nearly impossible for a patent holder to prove that enhanced damages are warranted. Pre-suit knowledge is a prerequisite for a finding of willful infringement, which is itself a prerequisite for awarding enhanced damages. The median patent damages award is around ten million dollars, and large companies like Intel, Teva Pharmaceuticals, Microsoft, and Abbott Laboratories have all recently faced billion-dollar patent infringement judgments. In this landscape, a …

The Myth Of The Great Writ, Leah M. Litman

Articles

Habeas corpus is known as the “Great Writ” because it supposedly protects individual liberty against government overreach and guards against wrongful detentions. This idea shapes habeas doctrine, federal courts theories, and habeas-reform proposals.

It is also incomplete. While the writ has sometimes protected individual liberty, it has also served as a vehicle for the legitimation of excesses of governmental power. A more complete picture of the writ emerges when one considers traditionally neglected areas of public law that are often treated as distinct—the law of slavery and freedom, Native American affairs, and immigration. There, habeas has empowered abusive exercises of …

Front Matter, Michigan Journal Of Environmental & Administrative Law

Michigan Journal of Environmental & Administrative Law

Front Matter for Volume 10, Issue 2 of Michigan Journal of Environmental & Administrative Law

Through A Glass, Darkly: Systemic Racism, Affirmative Action, And Disproportionate Minority Contact, Robin Walker Sterling

Michigan Law Review

This Article is the first to describe how systemic racism persists in a society that openly denounces racism and racist behaviors, using affirmative action and disproportionate minority contact as contrasting examples. Affirmative action and disproportionate minority contact are two sides of the same coin. Far from being distinct, these two social institutions function as two sides of the same ideology, sharing a common historical nucleus rooted in the mythologies that sustained chattel slavery in the United States. The effects of these narratives continue to operate in race-related jurisprudence and in the criminal legal system, sending normative messages about race and …

Vacatur Pending En Banc Review, Ruby Emberling

Michigan Law Review

When a case becomes moot on appeal, as when the parties settle, two primary Supreme Court cases guide the appellate court’s decision about whether to vacate the lower-court opinion. The Court has said that vacatur, an equitable remedy, promotes fairness to parties who were not responsible for the mootness because it erases adverse legal outcomes the litigants were prevented from appealing. Beyond this, vacatur is inadvisable since it eliminates precedential decisions and harms the judiciary’s efficiency and legitimacy. Yet this doctrinal order has not been uniformly brought to bear on the highly similar question of whether to vacate when a …

Young And Dangerous: The Role Of Youth In Risk Assessment Instruments, Ingrid Yin

Michigan Law Review

States are increasingly adopting risk assessment instruments (RAIs) to help judges determine the appropriate type and length of punishment for an offender. Although this sentencing practice has been met with a wide variety of scholarly criticism, there has been virtually no discussion of how RAIs treat youth as a strong factor contributing to a high risk score. This silence is puzzling. Not only is youth undoubtedly the most powerful risk factor in most RAIs, but youth also holds a special place in the criminal justice system as a “mitigating factor of great weight.” This Comment presents the first in-depth critique …

Garland V. Gonzalez: Brief For Amici Curiae Law Professors In Support Of Respondents, Leah Litman

Appellate Briefs

Amici are a group of philosophically diverse law school professors who offer a unique perspective about federal courts’ equitable powers and principles of statutory interpretation. Together, amici share an interest in ensuring that federal law be construed in accordance with its text and longstanding background principles regarding review of executive action.<\p>

From our Nation’s Founding, federal courts have exercised broad equitable authority to issue injunctions prohibiting executive officials from acting beyond their lawfully conferred authority. This bedrock power to restrain ultra vires acts by the executive branch is a foundational tenet of the American legal system. This Court has long …

Introducing David Lefkowitz’S Philosophy And International Law, Andreas Follesdal, Steven R. Ratner

Reviews

David Lefkowitz’s new book Philosophy and International Law: A Critical Introduction (Cambridge University Press, 2020) comes at a critical time in the conversation between international law scholars and practitioners, on the one hand, and philosophers, whether legal, moral, or political, on the other. Until about fifteen years ago, philosophical inquiry related to the international legal order was generally limited to a few issues within political and moral philosophy, notably distributive justice and just war theory. Since that time, an expansion has taken place in two directions. First, political and moral philosophers are writing about other aspects of the global political …

Love Hertz: Corporate Groups And Insolvency Forum Selection, John A. E. Pottow

Articles

The Hertz bankruptcy got a lot of attention, including for its bizarre equity trading. A less heralded but more significant legal aspect of that insolvency, however, was its complex interaction of cross-border insolvency proceedings.

This article discusses the “centripetal” and “centrifugal” forces in the Hertz case that counselled a U.S.-based centralized solution for an international enterprise comprising over 10,000 branches centripetally but also accommodated centrifugal European resistance to subject directors to the consequences of filing their entities in a foreign jurisdiction. This not uncommon constellation of incentives required not a COMI shift but what this article terms a jurisdiction shift …

Editing And Interleaving, Patrick Barry

Articles

This essay suggests that a powerful learning strategy called "interleaving"--which involves strategically switching between cognitive tasks--is being underused. It can do more than make study sessions more productive; it can also make editing sessions more productive.

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 120, Issue 2 of Michigan Law Review

On Time, (In)Equality, And Death, Fred O. Smith Jr.

Michigan Law Review

In recent years, American institutions have inadvertently encountered the bodies of former slaves with increasing frequency. Pledges of respect are common features of these discoveries, accompanied by cultural debates about what “respect” means. Often embedded in these debates is an intuition that there is something special about respecting the dead bodies, burial sites, and images of victims of mass, systemic horrors. This Article employs legal doctrine, philosophical insights, and American history to both interrogate and anchor this intuition.

Law can inform these debates because we regularly turn to legal settings to resolve disputes about the dead. Yet the passage of …

Municipal Reparations: Considerations And Constitutionality, Brooke Simone

Michigan Law Review

Demands for racial justice are resounding, and in turn, various localities have considered issuing reparations to Black residents. Municipalities may be effective venues in the struggle for reparations, but they face a variety of questions when crafting legislation. This Note walks through key considerations using proposed and enacted reparations plans as examples. It then presents a hypothetical city resolution addressing Philadelphia’s discriminatory police practices. Next, it turns to a constitutional analysis of reparations policies under current Fourteenth Amendment jurisprudence, discussing both race-neutral and race-conscious plans. This Note argues that an antisubordination understanding of the Equal Protection Clause would better allow …

Social Norms In Fourth Amendment Law, Matthew Tokson, Ari Ezra Waldman

Michigan Law Review

Courts often look to existing social norms to resolve difficult questions in Fourth Amendment law. In theory, these norms can provide an objective basis for courts’ constitutional decisions, grounding Fourth Amendment law in familiar societal attitudes and beliefs. In reality, however, social norms can shift rapidly, are constantly being contested, and frequently reflect outmoded and discriminatory concepts. This Article draws on contemporary sociological literatures on norms and technology to reveal how courts’ reliance on norms leads to several identifiable errors in Fourth Amendment jurisprudence.

Courts assessing social norms generally adopt what we call the closure principle, or the idea that …

United States V. Texas: Brief Of Legal Scholars Leah Litman, Erwin Chemerinsky, Michael C. Dorf, Barry Friedman, And Fred O. Smith As Amici Curiae In Support Of Petitioner, Leah Litman

Appellate Briefs

Amici curiae are constitutional law scholars who teach and write in the fields of constitutional law and federal courts. They share an interest in promoting the appropriate role of the federal courts in maintaining the supremacy of federal law, and in preserving our federal constitutional system and the rule of law.<\p>

In this case, this Court is asked to consider whether the United States may seek relief in federal court to protect constitutional rights in the face of state subterfuge designed to undercut those rights. Texas’s efforts to evade judicial review of Senate Bill 8 (“S.B. 8”) are central to …

Regulating New Fossil-Fuel Appliances Under Section 111(B) Of The Clean Air Act, Jack Lienke, Rachel Rothschild, Henry Engelstein, Nardos Girma

Other Publications

The majority of residential and commercial buildings use appliances powered with fossil fuels for space and/or water heating. Collectively, these appliances—most of which run on natural gas—emit substantial quantities of a variety of harmful air pollutants, including particulate matter, nitrogen oxides (“NOx”), and carbon dioxide. Fossil-fuel appliances in the U.S. emitted over 425,000 tons of NOx in 2017—almost three times the amount attributable to gas-fired power plants in that year. And fossil-fuel combustion in residential and commercial buildings accounted for almost 10% of the nation’s greenhouse gas emissions in 2019—only slightly less than gas power plants. Yet while the U.S. …

Is The Net Investment Income Tax A Treaty Override? Reflections On Toulouse, Reuven S. Avi-Yonah

Articles

In this article, AviYonah examines the U.S. Tax Court's judgment in Toulouse that the denial of foreign tax credits against the net investment income tax imposed by the Affordable Care Act was not a violation of U.S. tax treaties with France and Italy and its implications for whether the base erosion and antiabuse tax is a treaty override.

Funding Global Governance, Kristina B. Daugirdas

Law & Economics Working Papers

Funding is an oft-overlooked but critically important determinant of what public institutions are able to accomplish. This article focuses on the growing role of earmarked voluntary contributions from member states in funding formal international organizations such as the United Nations and the World Health Organization. Heavy reliance on such funds can erode the multilateral governance of international organizations and poses particular risks for two kinds of undertakings: normative work, such as setting standards and identifying best practices; and evaluating the conduct of member states and holding those states accountable, including through public criticism, when they fall short. International organizations have …

2021 Fall Class Schedule, University Of Michigan Law School

Class Schedules

Class schedule for the 2021 Fall semester at the University of Michigan Law School

Why Are You Here? Modeling Illicit Massage Business Location Characteristics With Machine Learning, Anna White, Seth Guikema, Bridgette Carr

Articles

Illicit massage businesses are a venue for sex and labor trafficking in the United States. Though many of their locations are made publicly available through online advertising, little is known about why they choose to locate where they do. In this work, we use inferential modeling to better understand the spatial distribution of illicit massage businesses within the U.S. Based on addresses web-scraped weekly from online advertisements over 6 months, we modeled illicit massage business prevalence at the census tract and county levels. We used publicly available data to characterize census tracts and counties, finding that the state in which …

Contract Schemas, Roseanna Sommers

Articles

This review draws on the notion of “contract schemas” to characterize what ordinary people think is happening when they enter into contractual arrangements. It proposes that contracts are schematically represented as written documents filled with impenetrable text containing hidden strings, which are routinely signed without comprehension. This cognitive template, activated whenever people encounter objects with these characteristic features, confers certain default assumptions, associations, and expectancies. A review of the literature suggests that contract schemas supply (a) the assumption that terms will be enforced as written, (b) the feeling that one is obligated to perform, and (c) the sense that one …