Digital Commons Network^™

“Hey Stephen”, Leah M. Litman

Michigan Law Review

A Review of The Authority of the Court and the Peril of Politics. By Stephen Breyer.

The Truth About Property, Jessica A. Shoemaker

Michigan Law Review

A Review of Federal Ground: Governing Property and Violence in the First U.S. Territories. By Gregory Ablavsky.

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.

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.

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 …

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 120, Issue 5 of Michigan Law Review

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 …

Rent Strikes And Tenant Power: Supporting Rent Strikes In Residential Landlord-Tenant Law, Samantha Gowing

Michigan Law Review

For more than a century, low-income tenants across cities in the United States have protested and organized together against unjust housing conditions. Yet landlords continue to evade accountability, leaving mold, pests, lead paint, unclean water, and innumerable other issues unaddressed. On top of habitability concerns, the past several decades of gentrification have displaced hundreds of thousands of Black and brown residents from their communities. To address these issues, legal reforms have focused on either housing-market regulation or individual rights devoid of effective enforcement mechanisms. These reforms fall short. Tenant power, not just tenant-focused housing reform, should be a concern of …

Unfair Collection: Reclaiming Control Of Publicly Available Personal Information From Data Scrapers, Andrew M. Parks

Michigan Law Review

Rising enthusiasm for consumer data protection in the United States has resulted in several states advancing legislation to protect the privacy of their residents’ personal information. But even the newly enacted California Privacy Rights Act (CPRA)—the most comprehensive data privacy law in the country— leaves a wide-open gap for internet data scrapers to extract, share, and monetize consumers’ personal information while circumventing regulation. Allowing scrapers to evade privacy regulations comes with potentially disastrous consequences for individuals and society at large.

This Note argues that even publicly available personal information should be protected from bulk collection and misappropriation by data scrapers. …

Securing Gun Rights By Statute: The Right To Keep And Bear Arms Outside The Constitution, Jacob D. Charles

Michigan Law Review

In popular and professional discourse, debate about the right to keep and bear arms most often revolves around the Second Amendment. But that narrow reference ignores a vast and expansive nonconstitutional legal regime privileging guns and their owners. This collection of nonconstitutional gun rights confers broad powers and immunities on gun owners that go far beyond those required by the Constitution, like rights to bring guns on private property against an owner’s wishes and to carry a concealed firearm in public with no training or background check. This Article catalogues this set of expansive laws and critically assesses them. Unlike …

Searching For Truth In The First Amendment's True Threat Doctrine, Renee Griffin

Michigan Law Review

Threats of violence, even when not actually carried out, can inflict real damage. As such, state and federal laws criminalize threats in a wide range of circumstances. But threats are also speech, and free speech is broadly protected by the First Amendment. The criminalization of threats is nonetheless possible because of Supreme Court precedents denying First Amendment protection to “true threats.” Yet a crucial question remains unanswered: What counts as a true threat?

This Note examines courts’ attempts to answer this question and identifies the many ambiguities that have resulted from those attempts. In particular, this piece highlights three frontiers …

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, …

Eaters, Powerless By Design, Margot J. Pollans

Michigan Law Review

Food law, including traditional food safety regulation, antihunger programs, and food system worker protections, has received increased attention in recent years as a distinct field of study. Bringing together these disparate areas of law under a single lens provides an opportunity to understand the role of law in shaping what we eat (what food is produced and where it is distributed), how much we eat, and how we think about food. The food system is rife with problems— endemic hunger, worker exploitation, massive environmental externalities, and diet-related disease. Looked at in a piecemeal fashion, elements of food law appear responsive …

Air Pollution As Public Nuisance: Comparing Modern-Day Greenhouse Gas Abatement With Nineteenth-Century Smoke Abatement, Kate Markey

Michigan Law Review

Public nuisance allows plaintiffs to sue actors in tort for causing environmental harm that disrupts the public’s use and enjoyment of the land. In recent years, state and local governments have filed public nuisance actions against oil companies, hoping to hold them responsible for the harm of climate change. Since no plaintiff has prevailed on the merits so far, whether these lawsuits are worth bringing, given the other legal avenues available, remains an open question. This Comment situates these actions in their appropriate historical context to show that these lawsuits are neither unprecedented nor futile. In particular, it examines the …

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 …

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 120, Issue 4 of Michigan Law Review

A Theory Of Constitutional Norms, Ashraf Ahmed

Michigan Law Review

The political convulsions of the past decade have fueled acute interest in constitutional norms or “conventions.” Despite intense scholarly attention, existing accounts are incomplete and do not answer at least one or more of three major questions: (1) What must all constitutional norms do? (2) What makes them conventional? (3) And why are they constitutional?

This Article advances an original theory of constitutional norms that answers these questions. First, it defines them and explains their general character: they are normative, contingent, and arbitrary practices that implement constitutional text and principle. Most scholars have foregone examining how norms are conventional or …

The Imaginary Immigration Clause, Nikolas Bowie, Norah Rast

Michigan Law Review

The political convulsions of the past decade have fueled acute interest in constitutional For the past century, the Supreme Court has skeptically scrutinized Congress’s power to enact healthcare laws and other domestic legislation, insisting that nothing in the Constitution gives Congress a general power to “regulate an individual from cradle to grave.” Yet when Congress regulates immigrants, the Court has contradictorily assumed that Congress has “broad, undoubted power” to do whatever it thinks necessary—even though no clause of the Constitution gives Congress any specific immigration power. The Court has explained this discrepancy with reference to the Chinese Exclusion Case, …

More Than Just A Factfinder: The Right To Unanimous Jury Sentencing In Capital Cases, Richa Bijlani

Michigan Law Review

For some defendants, sentencing may be even more harrowing than a determination of guilt or innocence. Those facing capital punishment have the most to lose at the sentencing phase. The Supreme Court is not ignorant to this reality, finding in Ring v. Arizona that “the Sixth Amendment would be senselessly diminished” if it had no application to death penalty proceedings. Yet under its permissive jurisprudence, the Court has suggested that the Sixth Amendment is satisfied in the death penalty context even if its protections vanish postconviction. This Note argues instead that the Sixth Amendment—specifically the jury right—should protect defendants more …

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 120, Issue 3 of Michigan Law Review

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 …

Do Esg Funds Deliver On Their Promises?, Quinn Curtis, Jill Fisch, Adriana Z. Robertson

Michigan Law Review

Corporations have received growing criticism for contributing to climate change, perpetuating racial and gender inequality, and failing to address other pressing social issues. In response to these concerns, shareholders are increasingly focusing on environmental, social, and corporate governance (ESG) criteria in selecting investments, and asset managers are responding by offering a growing number of ESG mutual funds. The flow of assets into ESG is one of the most dramatic trends in asset management.

But are these funds giving investors what they promise? This question has attracted the attention of regulators, with the Department of Labor and the Securities and Exchange …

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 …

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 …

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 …

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 …

Failed Interventions: Domestic Violence, Human Trafficking, And The Criminalization Of Survival, Alaina Richert

Michigan Law Review

Over the last decade, state legislators have enacted statutes acknowledging the link between criminal behavior and trauma resulting from domestic violence and human trafficking. While these interventions take a step in the right direction, they still have major shortcomings that prevent meaningful relief for survivor-defendants. Until now, there has been no systematic overview of the statutes that require courts to consider a defendant’s history of trauma in the contexts of domestic violence and human trafficking. There has also been no attempt to explore how these statutes relate to each other. This Note fills those gaps. It also identifies essential elements …

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 …