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Front Matter

Michigan Law Review

Front Matter for Volume 123, Issue 6 of Michigan Law Review

Younger And Older Abstention, Fred O. Smith Jr.

Michigan Law Review

When victims of systemic rights violations in state criminal proceedings seek federal court relief, governmental defendants often ask federal courts to abstain for reasons of federalism. These arguments frequently disregard the Supreme Court’s emphasis that abstention is a narrow exception to federal courts’ duty to exercise jurisdiction. Lower federal courts are increasingly employing a form of “free-floating federalism,” diverging from the Supreme Court’s careful balance between comity and individual rights. This has led to lower courts’ significant expansion of criminal abstention doctrine, leaving severe irreparable harm unaddressed in an increasingly broad range of settings, such as pretrial detention and child …

Spending Clause Standing, Edward Webre Plaut

Michigan Law Review

The Biden Administration’s American Rescue Plan Act allotted almost $220 billion to state, local, and tribal governments to help combat the COVID-19 pandemic. This money, the Coronavirus State and Local Fiscal Recovery Fund, gave recipients wide spending discretion to address their struggling economies. But the legislation had one key limitation: Recipients could not use the money to “directly or indirectly” cut their taxes. If a recipient violated this “Offset Provision,” the Department of the Treasury might recoup the funds.

Nearly two-dozen states alleged that the Offset Provision was unduly coercive and ambiguous, violating the Spending Clause. However, with no threatened …

Probate Standing, David Horton

Michigan Law Review

Few topics in civil justice have sparked as much criticism as the standing doctrine. The U.S. Constitution and some of its state counterparts require plaintiffs to allege that they suffered an “injury-in-fact” that the defendant caused and that a court can redress. A veritable ocean of commentary argues that this requirement [is confusing, ahistorical, and unmoored from its objectives.

Yet a different manifestation of the standing doctrine has long lurked in obscurity. Standing issues are also common in state probate courts, where the transmission of assets from the dead to the living can affect a variety of parties. But in …

Old, Not Odd: Running Laches Against The States And The Future Of Antitrust After New York V. Meta Platforms, Frank Schulze

Michigan Law Review

In New York v. Meta Platforms, Inc., the United States Court of Appeals for the D.C. Circuit applied equitable laches to an antitrust lawsuit brought by forty-six state attorneys general, holding that they had not brought their claims in their role as law enforcers. Meta Platforms is the latest in a line of cases that has characterized antitrust actions by state attorneys general as non-public and non-governmental. But this characterization is in tension with the historical role of state attorneys general in enforcing the antitrust laws and undermines the original design of the federal antitrust statutes as supplements to …

Debunking Criminal Restitution, Lula A. Hagos

Michigan Law Review

Criminal restitution—the money paid by a defendant to a victim—is often overlooked amidst growing scholarly consensus about the adverse impact of criminal court fines and fees. Restitution receives less attention because it is perceived as a fair and unobjectionable sanction with legitimate goals, while fines and fees are now widely condemned as primarily serving as a funding source for local and state governments. Consequently, the animated and extensive discourse around financial punishment largely excludes criminal restitution.

Though criminal restitution may appear to have legitimate penological purposes, it serves to perpetually punish defendants who are poor—the vast majority of those in …

The New Frontier Of Guidance Reviewability, Tomás Rios

Michigan Law Review

In the administrative context, agency actions must be “final” to trigger judicial review. The Supreme Court’s opinions in Sackett v. Environmental Protection Agency and U.S. Army Corps of Engineers v. Hawkes Co. marked an important shift in finality doctrine by emphasizing that the calculus of whether agency guidance is “final” may turn on its practical effects. For decades, agency guidance rarely warranted judicial review because it is not legally binding and, thus, not final. But the advent of the Sackett-Hawkes pragmatic analysis has changed the landscape, raising particular concerns for agencies relying on promulgating guidance documents to “softly” regulate. This …

Marriage, Courts, And Substantive Equality: A Transformative Interpretation, Kushagr Bakshi

Michigan Law Review

Courts in various jurisdictions have relied on either the right to privacy or the right to equality to offer protections to the LGBTQ+ community. The use of different rights to achieve similar ends may seem like an empty distinction. But the differences in the nature and function of each right evince the differences in the construction of rights across jurisdictions. In the traditional liberal method of conceptualizing rights, privacy is typically a negative right, restricting the state from interfering in intimate relationships between individuals. Courts operating within a transformative framework of rights interpretation, however, rely on the positive right to …

A Republic Of Spending, Jonathan S. Gould

Michigan Law Review

Large-scale spending measures make up many of Congress’s most important recent contributions to national policymaking. Congress has appropriated trillions of dollars to respond to emergencies, fight climate change, expand social safety net programs, spur technological innovation, and strengthen national infrastructure. While the contemporary Congress’s failure to enact landmark regulatory statutes causes many to characterize it as dysfunctional, Congress in fact remains quite active—its policymaking energy is simply concentrated in the spending domain.

Congress’s use of spending rather than regulatory legislation as its primary way of shaping national policy marks a significant shift in American governance. This Article examines the causes …

Antiracist Medicine In Colorblind Courts, Govind Persad

Michigan Law Review

This Article considers how health professionals’ efforts to combat racial health inequities interact with legal restrictions constraining their ability to consider race. In light of the Roberts Court’s recent invalidation of two university admissions programs, intensifying a “colorblind” judicial shift, the collision between antiracist medicine and colorblind law is a pressing concern. This Article anticipates the implications of this collision and explores how health professionals and systems can design programs that survive judicial examination.

In Part I, the Article examines the frameworks that will apply if antiracist medicine faces legal challenges. These include the Equal Protection Clause and federal statutes …

Postmortem Privacy, Anita L. Allen, Jennifer E. Rothman

Michigan Law Review

Since their inception in the late nineteenth century, privacy rights have been widely understood to terminate with a person’s death. The “no-privacy-rights-for- the-dead” doctrine has been repeated for nearly 130 years. As demonstrated in this Article, the reality on the ground deviated from this common pronouncement even early on. The divergence is so great today that sustained consideration of postmortem privacy is essential. This is especially so given urgent calls to protect the digital assets of the dead and evolving technology that allows for the reanimation of deceased performers and loved ones. This Article provides a theoretical foundation for determining …

Standing And Probabilistic Injury, Curtis A. Bradley, Ernest A. Young

Michigan Law Review

Standing to sue often turns on questions of probability. For example, public law plaintiffs must show that they are likely to be affected by allegedly unlawful government surveillance or environmental policies, and consumers may wish to sue private defendants over false credit reporting or data breaches that may or may not cause them financial or reputational harm in the future. This Article offers a framework for resolving a wide range of these “probabilistic standing” issues. Our core claim is that courts and commentators ask too much of standing doctrine in probabilistic cases. First, scholars sometimes seek a unified theory of …

Bounded Extraterritoriality, Ruth Mason, Michael S. Knoll

Michigan Law Review

Twenty-first-century politics has inspired a new mode of interstate rivalries and reprisals consisting not of the tariffs that plagued the Founding but rather of regulations with significant impacts outside the enacting state’s borders. Employing the dormant Commerce Clause doctrine of extraterritoriality, the Supreme Court has limited overbroad state regulations, but the extraterritoriality doctrine is unclear both in its normative grounding and practical application. This Article proposes a conceptual framework that situates the prohibition of extraterritoriality as an aspect of horizontal federalism. Our conceptualization of extraterritoriality enables us to distinguish it from two dormant Commerce Clause doctrines with which it is …

Original Public Meaning And Pregnancy’S Ambiguities, Evan D. Bernick, Jill Wieber Lens

Michigan Law Review

Relying on 1868 abortion statutes, the 2022 Supreme Court held in Dobbs v. Jackson Women’s Health Organization that no federal constitutional right to abortion exists. Mere months later, a petition for certiorari asked the Court to determine that “person” in the Fourteenth Amendment includes prenatal existence, which would require criminalization of abortion in all states. The petitioners cited Dobbs and claimed the authority of legal history in 1868 and before. These arguments will be heard again, and they are increasingly framed in terms of the “original public meaning” of the Fourteenth Amendment.

This Article refutes these arguments on their own …

On The Genealogy Of Intimate Digital Harm, Aziz Z. Huq

Michigan Law Review

A review of The Fight for Privacy: Protecting Dignity, Identity, and Love in the Digital Age. By Danielle Keats Citron.

Shutting Out Noise And Understanding Artificial Intelligence, Lauren J. Yu

Michigan Law Review

A review of Noise: A Flaw in Human Judgment. By Daniel Kahneman, Olivier Sibony and Cass R. Sunstein, and You Look Like a Thing and I Love You: How Artificial Intelligence Works and Why It’s Making the World a Weirder Place. By Janelle Shane.

Orders Without Law, Thomas P. Schmidt

Michigan Law Review

A review of The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. By Stephen Vladeck.

The Shadow Of The Law Of The Police, Adam A. Davidson

Michigan Law Review

A review of Shielded: How the Police Became Untouchable. By Joanna Schwartz.

Beyond Profit Motives, William J. Moon

Michigan Law Review

A review of The Profit Motive: Defending Shareholder Value Maximization By Stephen M. Bainbridge.

What Is A Prison?, Grace Y. Li

Michigan Law Review

A review of The Idea of Prison Abolition. By Tommie Shelby.

Care Reimagined: Transforming Law By Embracing Interdependence, Robyn M. Powell

Michigan Law Review

A review of All Our Families: Disability Lineage and the Future of Kinship. By Jennifer Natalya Fink.

A Democracy Story: Reframing A Free Speech Landmark, Thomas Healy

Michigan Law Review

A review of Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan. By Samantha Barbas.

Justice By Means Of The Administrative State, Glen Staszewski

Michigan Law Review

A review of Justice by Means of Democracy. By Danielle Allen.

Disability, Race, And Health Beyond The Carceral State, Benjamin A. Barsky, Craig Konnoth, Michael Ashley Stein

Michigan Law Review

A review of Embodied Injustice: Race, Disability, and Health. By Mary Crossley.

In Pursuit Of Collective Liberation In Feminist Constitutionalism, Yvette Butler

Michigan Law Review

A review of After Misogyny: How The Law Fails Women and What to Do About It. By Julie C. Suk.

Favoritism, Coercion, And The Establishment Clause, Christopher C. Lund

Michigan Law Review

A review of Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience. By Nathan S. Chapman and Michael W. McConnell.

The Profit Principle: Tracing The Moral Decline Of Corporate Law Firms, Sung Hui Kim

Michigan Law Review

A review of Servants of the Damned: Giant Law Firms, Donald Trump, and the Corruption of Justice. By David Enrich.

Still Searching For Zora Neale Hurston, Khiara M. Bridges

Michigan Law Review

A review of Their Eyes Were Watching God. By Zora Neale Hurston.

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, …

Peripheral Detention, Transfer, And Access To The Courts, Jessica Rofé

Michigan Law Review

In the last forty years, immigration detention in the U.S. has grown exponentially, largely concentrated in the southern states and outside of the country’s metropoles. In turn, federal immigration officials routinely transfer immigrants from their communities to remote jails and prisons hundreds, if not thousands, of miles away, often in jurisdictions where the law is more favorable to the government. These transfers are conducted without notice or process and frequently occur on weekends or in the predawn hours, when offices are closed and interested parties are lucky to access voicemail.

Federal immigration officials’ use of peripheral detention and transfer significantly …