Digital Commons Network^™

Designing Sanctuary, Rick Su

Michigan Law Review

In recent decades, a growing number of cities in the United States have adopted “sanctuary policies” that limit local participation in federal immigration enforcement. Existing scholarship has focused on their legality and effect, especially with respect to our nation’s immigration laws. Largely overlooked, however, is the local process through which sanctuary policies are designed and the reasons why cities choose to adopt them through city ordinances, mayoral orders, or employee handbooks. This Article argues that municipal sanctuary policies are far from uniform, and their variation reflects the different local interests and institutional actors behind their adoption and implementation. More specifically, …

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 …

Sidewalk Government, Michael C. Pollack

Michigan Law Review

This Article is about one of the most used, least studied spaces in the country: the sidewalk.

It is easy to think of sidewalks simply as spaces for pedestrians, and that is exactly how most scholars, policymakers, and laws treat them. But this view is fundamentally mistaken. In big cities and small towns, sidewalks are also where we gather, demonstrate, dine, exercise, rest, and shop. They are host to commerce and infrastructure. They are spaces of public access and sources of private obligation. And in all of these things, sidewalks are sites of underappreciated conflict. The centrality of sidewalks in …

A Revisionist History Of Products Liability, Alexandra D. Lahav

Michigan Law Review

Increasingly courts, including the Supreme Court, rely on ossified versions of the common law to decide cases. This Article demonstrates the risks of this use of the common law. The main contribution of the Article is to demonstrate that the traditional narrative about early products law—that manufacturers were not liable for injuries caused by their products because the doctrine of privity granted producers immunity from suit by the ultimate consumers of their goods—is incorrect. Instead, the doctrinal rule was negligence liability for producers of injurious goods across the United States in the nineteenth century. Courts routinely ignored or rejected privity …

Who Owns Children’S Dna?, Nila Bala

Michigan Law Review

In recent years, DNA has become increasingly easy to collect, test, and sequence, making it far more accessible to law enforcement. While legal scholars have examined this phenomenon generally, this Article examines the control and use of children’s DNA, asking who ultimately owns children’s DNA. I explore two common ways parents—currently considered “owners” of children’s DNA— might turn over children’s DNA to law enforcement: (1) “consensual” searches and (2) direct-to-consumer testing. My fundamental thesis is that parental consent is an insufficient safeguard to protect a child’s DNA from law enforcement. At present, the law leaves parents in complete control of …

The Oligarchic Courthouse: Jurisdiction, Corporate Power, And Democratic Decline, Helen Hershkoff, Luke Norris

Michigan Law Review

Jurisdiction is foundational to the exercise of judicial power. It is precisely for this reason that subject matter jurisdiction, the species of judicial power that gives a court authority to resolve a dispute, has today come to the center of a struggle between corporate litigants and the regulatory state. In a pronounced trend, corporations are using jurisdictional maneuvers to manipulate forum choice. Along the way, they are wearing out less-resourced parties, circumventing hearings on the merits, and insulating themselves from laws that seek to govern their behavior. Corporations have done so by making creative arguments to lock plaintiffs out of …

The National Security Consequences Of The Major Questions Doctrine, Timothy Meyer, Ganesh Sitaraman

Michigan Law Review

The rise of the major questions doctrine—the rule that says that in order to delegate to the executive branch the power to resolve a “question of ‘deep economic and political significance’ that is central to [a] statutory scheme,” Congress must do so expressly—threatens to unmake the modern executive’s authority over foreign affairs, especially in matters of national security and interstate conflict. In the twenty-first century, global conflicts increasingly involve economic warfare, rather than (or in addition to) the force of arms.

In the United States, the executive power to levy economic sanctions and engage in other forms of economic warfare …

Telegraph Torts: The Lost Lineage Of The Public Service Corporation, Evelyn Atkinson

Michigan Law Review

At the turn of the twentieth century, state courts were roiled by claims against telegraph corporations for mental anguish resulting from the failure to deliver telegrams involving the death or injury of a family member. Although these “telegraph cases” at first may seem a bizarre outlier, they in fact reveal an important and understudied moment of transformation in the nature of the relationship between the corporation and the public: the role of affective relations in the development of the category of the public utility corporation. Even as powerful corporations were recast as private, rights-bearing, profit-making market actors in constitutional law, …

Error Aversions And Due Process, Brandon L. Garrett, Gregory Mitchell

Michigan Law Review

William Blackstone famously expressed the view that convicting the innocent constitutes a much more serious error than acquitting the guilty. This view is the cornerstone of due process protections for those accused of crimes, giving rise to the presumption of innocence and the high burden of proof required for criminal convictions. While most legal elites share Blackstone’s view, the citizen jurors tasked with making due process protections a reality do not share the law’s preference for false acquittals over false convictions.

Across multiple national surveys sampling more than 12,000 people, we find that a majority of Americans consider false acquittals …

Disabling Lawyering: Buck V. Bell And The Road To A More Inclusive Legal Practice, Jacob Izak Abudaram

Michigan Law Review

A Review of Demystifying Disability: What to Know, What to Say, and How to Be and Ally. By Emily Ladau and Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell By Paul A. Lombardo.

An Order, Most Fixed, Alexandra D. Lahav

Michigan Law Review

A Review of Rules: A Short History of What We Live By. By Lorraine Daston.

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.

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 …

Deinstitutionalization, Disease, And The Hcbs Crisis, Jacob Abudaram

Michigan Law Review

Primarily funded by Medicaid, home- and community-based services (HCBS) allow disabled people and seniors to receive vital health and personal services in their own homes and communities rather than in institutions like nursing homes and other congregant care facilities. The HCBS system is facing a growing crisis of care nationwide; more than 600,000 people are waitlisted for services, thousands of direct care workers are leaving the industry, and states are not committed to deinstitutionalization. The COVID-19 pandemic has highlighted and exacerbated these problems, as people in institutional settings face infection and death at far higher rates than those housed outside …

Policing Queer Sexuality, Ari Ezra Waldman

Michigan Law Review

A Review of Vice Patrol: Cops, Courts, and the Struggle over Urban Gay Life Before Stonewall. By Anna Lvovsky.

Beyond More Accurate Algorithms: Takeaways From Mccleskey Revisited, Ngozi Okidegbe

Michigan Law Review

A Review of McCleskey v. Kemp. By Mario Barnes, in Critical Race Judgments: Rewritten U.S. Court Opinions on Race and the Law 557, 581. Edited by Bennett Capers, Devon W. Carbado, R.A. Lenhardt and Angela Onwuachi-Willig.

Akhil Amar’S Unusable Past, Gregory Ablavsky

Michigan Law Review

A Review of The Words That Made Us: America’s Constitutional Conversation, 1760–1840. By Akhil Reed Amar.

The Gloss Of War: Revisiting The Korean War’S Legacy, Mary L. Dudziak

Michigan Law Review

In war powers analysis, reliance on the interpretive method of historical practice, also called the “gloss of history,” has made history a technology of the forever war. This approach draws upon the history of U.S. military conflict to interpret the scope of presidential war power and embeds past actions into the separation of powers. There is a crucial flaw in this methodology, however. The understanding of history in historical gloss is not informed by the changing historiography of war. This has led to a divergence between the “history” in legal authority and the revised historical understanding in scholarly works of …

Algorithmic Elections, Sarah M.L. Bender

Michigan Law Review

Artificial intelligence (AI) has entered election administration. Across the country, election officials are beginning to use AI systems to purge voter records, verify mail-in ballots, and draw district lines. Already, these technologies are having a profound effect on voting rights and democratic processes. However, they have received relatively little attention from AI experts, advocates, and policymakers. Scholars have sounded the alarm on a variety of “algorithmic harms” resulting from AI’s use in the criminal justice system, employment, healthcare, and other civil rights domains. Many of these same algorithmic harms manifest in elections and voting but have been underexplored and remain …

The Particle Problem: Using Rcra Citizen Suits To Fill Gaps In The Clean Air Act, Kurt Wohlers

Michigan Law Review

While the Clean Air Act has done a substantial amount for the environment and the health of individuals in the United States, there is still much to be done. For all its complexity, the Act has perpetuated systemic inequities and allowed harms to fall more heavily on low-income communities and communities of color. This is no less true for particulate matter pollution, which is becoming worse by the year and is a significant cause of illness and premature death. This Note argues that particulate pollution, traditionally only regulated on the federal level within the ambit of the Clean Air Act, …

The Ascension Of Indigenous Cultural Property Law, Angela R. Riley

Michigan Law Review

Indigenous Peoples across the world are calling on nation-states to “decolonize” laws, structures, and institutions that negatively impact them. Though the claims are broad based, there is a growing global emphasis on issues pertaining to Indigenous Peoples’ cultural property and the harms of cultural appropriation, with calls for redress increasingly framed in the language of human rights. Over the last decade, Native people have actively fought to defend their cultural property. The Navajo Nation sued Urban Outfitters to stop the sale of “Navajo panties,” the Quileute Tribe sought to enjoin Nordstrom’s marketing of “Quileute Chokers,” and the descendants of Tasunke …

Bigotry, Civil Rights, And Lgbtq Child Welfare, Jordan Blair Woods

Michigan Law Review

A Review of Who’s the Bigot? Learning from Conflicts over Marriage and Civil Rights Law. By Linda C. McClain.

Ability Apartheid And Paid Leave, Ryan H. Nelson, Michael Ashley Stein

Michigan Law Review

A Review of Ableism at Work: Disablement and Hierarchies of Impairment. By Paul David Harpur.

Charting The Reform Path, Sanjukta Paul

Michigan Law Review

A Review of Inequality and the Labor Market: The Case for Greater Competition. Edited by Sharon Block and Benjamin H. Harris.

Whither Rationality?, Shi-Ling Hsu

Michigan Law Review

A Review of Reviving Rationality: Saving Cost-Benefit Analysis for the Sake of the Environment and Our Health. By Michael A. Livermore and Richard L. Revesz.

The Politics Of Proportionality, Nelson Tebbe, Micah Schwartzman

Michigan Law Review

A Review of How Rights Went Wrong: Why Our Obsession With Rights Is Tearing America Apart. By Jamal Greene.

Reconstructing Rural Discourse, Bailey Tulloch

Michigan Law Review

A Review of Where the Crawdads Sing. By Delia Owens.

Contractual Inequality, Manisha Padi

Michigan Law Review

Most individuals strive to satisfy every obligation laid out in standard form contracts such as mortgages, insurance plans, or credit agreements. Sophisticated parties, however, adapt and modify their obligations during contract performance by negotiating for lenient treatment and taking advantage of unclear terms. The common law explicitly authorizes variance from standardized contract terms during performance. When the same standard terms create value for sophisticated individuals and destroy value for others, the result is contractual inequality. Contractual inequality has grown without scrutiny by courts or scholars, enabling regressive redistribution of resources and creating economic inefficiency by sowing distrust in markets for …

Administrative Sabotage, David L. Noll

Michigan Law Review

Government can sabotage itself. From the president’s choice of agency heads to agency budgets, regulations, and litigating positions, presidents and their appointees have undermined the very programs they administer. But why would an agency try to put itself out of business? And how can agencies that are subject to an array of political and legal checks sabotage statutory programs?

This Article offers an account of the “what, why, and how” of administrative sabotage that answers those questions. It contends that sabotage reflects a distinct mode of agency action that is more permanent, more destructive, and more democratically illegitimate than more-studied …

The Impact Of Amex And Its Progeny On Technology Platforms, Kacyn H. Fujii

Michigan Law Review

Big Tech today faces unprecedented levels of antitrust scrutiny. Yet antitrust enforcement against Big Tech still faces a major obstacle: the Supreme Court’s 2018 decision in Ohio v. American Express. Popularly called Amex, the case imposed a higher initial burden on antitrust plaintiffs in cases involving two-sided markets. Two-sided markets connect two distinct, noncompeting groups of customers on a shared platform. These platforms have indirect network effects, meaning that one group of customers benefits when more of the second group of customers joins the platform. Two-sided markets are ubiquitous in the technology sector, encompassing social media, search engines, …