Digital Commons Network^™

Tax Policy And Our Democracy, Clinton G. Wallace

Michigan Law Review

Review of Anthony C. Infanti's Our Selfish Tax Laws: Toward Tax Reform That Mirrors Our Better Selves.

Antitrust's "Curse Of Bigness" Problem, D. Daniel Sokol

Michigan Law Review

Review of Tim Wu's The Curse of Bigness: Antitrust in the New Gilded Age.

Symmetry's Mandate: Constraining The Politicization Of American Administrative Law, Daniel E. Walters

Michigan Law Review

Recent years have seen the rise of pointed and influential critiques of deference doctrines in administrative law. What many of these critiques have in common is a view that judges, not agencies, should resolve interpretive disputes over the meaning of statutes—disputes the critics take to be purely legal and almost always resolvable using lawyerly tools of statutory construction. In this Article, I take these critiques, and the relatively formalist assumptions behind them, seriously and show that the critics have not acknowledged or advocated the full reform vision implied by their theoretical premises. Specifically, critics have extended their critique of judicial …

Front Matter, Michigan Law Review

Michigan Law Review

Front matter for Volume 117, Issue 8 of the Michigan Law Review.

Front Matter, Michigan Law Review

Michigan Law Review

Front matter for Volume 117, Issue 7 of the Michigan Law Review.

Textualism For Realists, Ian Samuel

Michigan Law Review

Review of Richard L. Hasen's The Justice of Contradictions: Antonin Scalia and the Politics of Disruption.

How Do We Get Along? International Economic Law And The Nation-State, Gregory Shaffer

Michigan Law Review

Review of Dani Rodrik's Straight Talk on Trade: Ideas for a Sane World Economy.

Solitude, Leadership, And Lawyers, Amul R. Thapar, Samuel Rudman

Michigan Law Review

Review of Raymond M. Kethledge and Michael S. Erwin's Lead Yourself First: Inspiring Leadership Through Solitude.

Article Ii And Antidiscrimination Norms, Aziz Z. Huq

Michigan Law Review

The Supreme Court’s opinion in Trump v. Hawaii validated a prohibition on entry to the United States from several Muslim-majority countries and at the same time repudiated a longstanding precedent associated with the Japanese American internment of World War II. This Article closely analyzes the relationship of these twin rulings. It uses their dichotomous valences as a lens on the legal scope for discriminatory action by the federal executive. Parsing the various ways in which the internment of the 1940s and the 2017 exclusion order can be reconciled, the Article identifies a tension between the Court’s two holdings in Trump …

Forensic Border Searches After Carpenter Require Probable Cause And A Warrant, Christopher I. Pryby

Michigan Law Review

Under the border search doctrine, courts have upheld the federal government's practice of searching people and their possessions upon entry into or exit from the United States, without any requirement of suspicion, as reasonable under the Fourth Amendment. Since the advent of electronic devices with large storage capacities, courts have grappled with whether this definition of reasonableness continues to apply. So far, courts have consistently characterized “nonforensic” border inspections of electronic devices (for example, paging through photos on a phone) as “routine” searches that, like inspecting luggage brought across international lines, require no suspicion. But there is a circuit split …

A Post-Spokeo Taxonomy Of Intangible Harms, Jackson Erpenbach

Michigan Law Review

Article III standing is a central requirement in federal litigation. The Supreme Court’s Spokeo decision marked a significant development in the doctrine, dividing the concrete injury-in-fact requirement into two subsets: tangible and intangible harms. While tangible harms are easily cognizable, plaintiffs alleging intangible harms can face a perilous path to court. This raises particular concern for the system of federal consumer protection laws where enforcement relies on consumers vindicating their own rights by filing suit when companies violate federal law. These plaintiffs must often allege intangible harms arising out of their statutorily guaranteed rights. This Note demonstrates that Spokeo’s …

Policing, Danger Narratives, And Routine Traffic Stops, Jordan Blair Woods

Michigan Law Review

This Article presents findings from the largest and most comprehensive study to date on violence against the police during traffic stops. Every year, police officers conduct tens of millions of traffic stops. Many of these stops are entirely unremarkable—so much so that they may be fairly described as routine. Nonetheless, the narrative that routine traffic stops are fraught with grave and unpredictable danger to the police permeates police training and animates Fourth Amendment doctrine. This Article challenges this dominant danger narrative and its centrality within key institutions that regulate the police.

The presented study is the first to offer an …

The New Impartial Jury Mandate, Richard Lorren Jolly

Michigan Law Review

Impartiality is the cornerstone of the Constitution’s jury trial protections. Courts have historically treated impartiality as procedural in nature, meaning that the Constitution requires certain prophylactic procedures that secure a jury that is more likely to reach verdicts impartially. But in Peña- Rodriguez v. Colorado, 137 S. Ct. 855 (2017), the Supreme Court recognized for the first time an enforceable, substantive component to the mandate. There, the Court held that criminal litigants have a Sixth Amendment right to jury decisions made without reliance on extreme bias, specifically on the basis of race or national origin. The Court did not …

Shots Fired: Digging The Uniformed Services Employment And Reemployment Rights Act Out Of The Trenches Of Arbitration, Lisa Limb

Michigan Law Review

The Uniformed Services Employment and Reemployment Rights Act (USERRA) was enacted to protect servicemembers from discrimination by civilian employers and to provide servicemembers with reemployment rights. Recent circuit court decisions, however, have maimed these protections by ruling that mandatory arbitration is permissible under USERRA. This Note argues that such rulings conflict with USERRA’s plain language, statutory structure, and purpose. Ultimately, in light of strong public policy considerations, this Note contends that mandatory arbitration should not be permissible under USERRA and proposes that Congress amend the Act to explicitly prohibit arbitration.

More Than Birds: Developing A New Environmental Jurisprudence Through The Migratory Bird Treaty Act, Patrick G. Maroun

Michigan Law Review

This year marks the centennial of the Migratory Bird Treaty Act, one of the oldest environmental regulatory statutes in the United States. It is illegal to “take” or “kill” any migratory bird covered by the Act. But many of the economic and industrial assumptions that undergirded the Act in 1918 have changed dramatically. Although it is undisputed that hunting protected birds is prohibited, circuit courts split on whether so-called “incidental takings” fall within the scope of the Act. The uncertainty inherent in this disagreement harms public and private interests alike—not to mention migratory birds. Many of the most important environmental …

Digital Market Perfection, Rory Van Loo

Michigan Law Review

Google’s, Apple’s, and other companies’ automated assistants are increasingly serving as personal shoppers. These digital intermediaries will save us time by purchasing grocery items, transferring bank accounts, and subscribing to cable. The literature has only begun to hint at the paradigm shift needed to navigate the legal risks and rewards of this coming era of automated commerce. This Article begins to fill that gap by surveying legal battles related to contract exit, data access, and deception that will determine the extent to which automated assistants are able to help consumers to search and switch, potentially bringing tremendous societal benefits. Whereas …

Moral Diversity And Efficient Breach, Matthew A. Seligman

Michigan Law Review

Most people think it is morally wrong to breach a contract. But sophisticated commercial parties, like large corporations, have no objection to breaching contracts and paying the price in damages when doing so is in their self-interest. The literature has ignored the profound legal, economic, and normative implications of that asymmetry between individuals’ and firms’ approaches to breach. To individuals, a contract is a promise that cannot be broken regardless of the financial stakes. For example, millions of homeowners refused to breach their mortgage contracts in the aftermath of the housing crisis even though doing so could have saved them …

The Preliminary Injunction Standard: Understanding The Public Interest Factor, M Devon Moore

Michigan Law Review

Under Winter v. NRDC, federal courts considering a preliminary injunction motion look to four factors, including the public interest impact of the injunction. But courts do not agree on what the public interest is and how much it should matter. This Note describes the confusion over the public interest factor and characterizes the post-Winter circuit split as a result of this confusion. By analyzing the case law surrounding the public interest factor, this Note identifies three aspects of a case that consistently implicate the direction and magnitude of this factor: the identity of the parties, the underlying cause of action, …

Home-Field Disadvantage: How The Organization Of Soccer In The United States Affects Athletic And Economic Competitiveness, Carolina I. Velarde

Michigan Law Review

The United States men’s soccer team failed to qualify for the 2018 World Cup. In the aftermath, soccer followers questioned the organizational structure supervised by the United States Soccer Federation. An analysis of the relationships between professional soccer leagues reveals potentially anticompetitive practices that may contribute to the subpar performance of the U.S. Men’s National Team. This Note argues that the United States Soccer Federation is engaged in economically anticompetitive behavior that impedes the development of American soccer. Certain reforms, including an open-league system and player transfer fees at the youth development level, would enhance the economic and athletic competitiveness …

Books, Debate, Specificity, Neal Kumar Katyal

Michigan Law Review

Foreword to Volume 117, Issue 6 of the Michigan Law Review.

An Apology For Lawyers: Socrates And The Ethics Of Persuasion, Sherman J. Clark

Michigan Law Review

Review Plato's "Apology of Socrates" in Six Great Dialogues: Apology, Crito, Phaedo, Phaedrus, Symposium, and The Republic.

Review By Justice John Paul Stevens (Ret.), John Paul Stevens

Michigan Law Review

Review of Noah Feldman's The Three Lives of James Madison: Genius, Partisan, President.

Abortion Talk, Clare Huntington

Michigan Law Review

Review of Carol Sanger's About Abortion: Terminating Pregnancy in Twenty-First-Century America.

Return Of The Campus Speech Wars, Thomas Healy

Michigan Law Review

Review of Erwin Chemerinsky and Howard Gillman's Free Speech on Campus.

The Supreme Court And Public Schools, Erwin Chemerinsky

Michigan Law Review

Review of Justin Driver's The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind.

Is The Exclusionary Rule A Prohibition-Era Relic?, Thomas M. Hardiman, Lauren Gailey

Michigan Law Review

Review of Wesley M. Oliver's The Prohibition Era and Policing: A Legacy of Misregulation.

Privacy, Property, And Publicity, Mark A. Lemley

Michigan Law Review

Review of Jennifer E. Rothman's The Right of Publicity: Privacy Reimagined for a Public World.

The Outcome Of Influence: Hitler’S American Model And Transnational Legal History, Mary L. Dudziak

Michigan Law Review

Review of James Q. Whitman's Hitler's American Model: The United States and the Making of Nazi Race Law.

What Corporate Veil?, Joshua C. Macey

Michigan Law Review

Review of Adam Winkler's We the Corporations: How American Business Won Their Civil Rights.

Which Radicals?, Cass R. Sunstein

Michigan Law Review

Review of Jeremy McCarter's Young Radicals: In the War for American Ideals.