Digital Commons Network^™

Recognizing The Right To Family Unity In Immigration Law, Eugene Lee

Michigan Law Review

The Trump Administration’s travel ban and separation of families at the U.S.- Mexico border drew newfound attention to the constitutional due process right to family unity. But even before then, the right to family unity has had a substantial history. Rooted in the Supreme Court’s line of privacy rights cases, the right to family unity is amorphous. This ambiguity has given rise to disagreement regarding not only legal doctrine surrounding the right but also whether the right even exists. This Note clarifies this disagreement by offering a historical account of the right to family unity and an overview of three …

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 …

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 …

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 …

An Appeal To Books, Amir H. Ali

Michigan Law Review

This feels a fit, even urgent, moment to celebrate our books and the role they play vis-à-vis the law, the courts, and the truth.

As this issue goes to print, our nation’s highest court faces forceful criticism that some of its most significant decisions have been detached from objective fact. In recent Terms, the Supreme Court’s majority has doubled down on deciding major constitutional questions based on “history and tradition”—that is, the majority’s understanding of what the nation was like centuries ago. Just as quickly as these justices praised the objectivity of their fealty to history, they met widespread rebuke …

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.

Disrupting Carceral Logic In Family Policing, Cynthia Godsoe

Michigan Law Review

A Review of Torn Apart: How the Child Welfare System Destroys Black Families and How Abolition Can Build a Safer World, By Dorothy Roberts.

Heeding The Voices Of Migrant Youth: The Need For Action, Randi Mandelbaum

Michigan Law Review

A Review of Unaccompanied: The Plight of Immigrant Youth at the Border. By Emily Ruehs-Navarro.

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 “Big Government”: Toward New Legal Histories Of The New Deal Order’S End, Gabriel L. Levine

Michigan Law Review

A Review of Public Citizens: The Attack on Big Government and the Remaking of American Liberalism. By Paul Sabin.

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.

Sisters Gonna Work It Out: Black Women As Reformers And Radicals In The Criminal Legal System, Paul Butler

Michigan Law Review

A Review of Becoming Abolitionists: Police, Protests, and the Pursuit of Freedom. By Derecka Purnell and a review of Progressive Prosecution: Race and Reform in Criminal Justice. Edited by Kim Taylor-Thompson and Anthony C. Thompson.

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 Indian Child Welfare Act In The Multiverse, M. Alexander Pearl

Michigan Law Review

A Review of Adoptive Couple v. Baby Girl By Matthew L.M. Fletcher and Kathryn E. Fort, in Critical Race Judgments: Rewritten U.S. Court Opinions on Race and the Law 452, 471. Edited by Bennett Capers, Devon W. Carbado, R.A. Lenhardt and Angela Onwuachi-Willig.

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.

Nepantla/Coatlicue/Conocimiento, Gerald Torres

Michigan Law Review

A Review of Borderlands/La Frontera: The New Mestiza. By Gloria Anzaldúa.

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 Geography Of Unfreedom, Ann M. Eisenberg

Michigan Law Review

A Review of Coal, Cages, Crisis: The Rise of the Prison Economy in Central Appalachia. By Judah Schept.

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.

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 …

Federal Pleading Standards In State Court, Marcus Gadson

Michigan Law Review

Most state courts cannot follow both their state constitutions and federal pleading standards. Even if they could, policy considerations unique to states compel state courts to reject federal pleading standards. This is because federal courts have changed pleading standards to allow judges to make factual determinations on a motion to dismiss and to require more factual detail in complaints. While scholars have vigorously debated whether these changes are wise, just, and permissible under the federal rules and the Constitution, they have ignored the even more important questions of whether state courts can and should adopt those pleading standards. The oversight …

Risk And Reputation, Taylor J. Wilson

Michigan Law Review

Direct listing is an innovative alternative to a traditional initial public offering. Since direct listing was revived in 2018, there have been many lingering questions, particularly about the liability of financial advisors involved in the process. In a traditional IPO, a company retains an investment bank as an underwriter; the underwriter takes on a degree of financial risk and lends credibility to the company’s offering, often directly marketing the offering to potential investors. In a direct listing, however, investment banks act as financial advisors but do not assume financial risk or market the sale of securities. Section 11 is an …

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

Michigan Law Review

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 …

Catch And Kill Jurisdiction, Zachary D. Clopton

Michigan Law Review

In catch and kill journalism, a tabloid buys a story that could be published elsewhere and then deliberately declines to publish it. In catch and kill jurisdiction, a federal court assumes jurisdiction over a case that could be litigated in state court and then declines to hear the merits through a nonmerits dismissal. Catch and kill journalism undermines the free flow of information. Catch and kill jurisdiction undermines the enforcement of substantive rights. And, importantly, because catch and kill jurisdiction relies on jurisdictional and procedural law, it is often able to achieve ends that would be politically unpalatable by other …

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, …

Public Client Contingency Fee Contracts As Obligation, Seth Mayer

Michigan Law Review

Contingency fee contracts predicate an attorney’s compensation on the outcome of a case. Such contracts are widely accepted when used in civil litigation by private plaintiffs who might not otherwise be able to afford legal representation. However, such arrangements are controversial when government plaintiffs like attorneys general and local governments retain private lawyers to litigate on behalf of the public in return for a percentage of any recovery from the lawsuit. Some commentators praise such public client contingency fee contracts, which have become commonplace, as an efficient way to achieve justice. Critics, however, view them as corrupt, undemocratic, and unethical. …

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 …