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Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 124, Issue 4 of Michigan Law Review

Standard Textualism, James A. Macleod

Michigan Law Review

For as long as legal scholars have been writing about the rules-versus-standards distinction, textualism has been understood to produce characteristically rule-like law. This Article argues for the opposite view. Far from generating the “law of rules” that Scalia famously envisioned, the rule of modern textualism produces a law of standards—much more so than anybody, proponent of textualism or critic, appears to have recognized.

Two aspects of today’s textualism produce this result. The first is its emphasis on ordinary language and communication. Modern textualism typically produces standards because ordinary language and communication are typically standard-like. The second is modern textualism’s drive …

The Law Of The Mid-Transition, Alison Gocke

Michigan Law Review

To address climate change, our energy systems need to transition from fossil fuels to clean energy resources. There is a tendency to think this transition will occur in a linear, seamless progression: We will move from the (old) fossil fuel system at Time A to a (new) clean energy system at Time B. But this belies the reality that an energy transition involves not just building a new energy system, but also unwinding an old one. Crucially, both processes will take time. That means there will be a significant period in which both energy systems coexist.

In the engineering literature, …

Algorithmic Medicine And The Duty To Disclose: Informed Consent Through The Lens Of Radiology, Lee Rodriguez

Michigan Law Review

Informed consent is the law’s mechanism for protecting patient autonomy by requiring disclosure of facts that bear on the decision to accept or refuse care. Artificial intelligence now helps decide what is medically true for patients, yet informed consent law still assumes that diagnostic judgment is rendered by a human mind whose reasoning is at least in principle communicable. Radiology has become the leading setting for this tension. AI systems triage worklists, flag suspected abnormalities, and anchor first-pass impressions in ways that guide radiologists’ attention and, in practice, can coauthor diagnostic conclusions while remaining invisible to patients. When patients are …

Presumption Of Creditworthiness, Nakita Q. Cuttino

Michigan Law Review

Creditworthiness, or the likelihood that one will repay one’s debts, is typically signaled through a three-digit number known as a credit score. Yet, over thirty-two million adult-aged consumers lack adequate consumer credit reports and therefore do not have a traditional credit score. As a result of being unscored, these consumers are generally presumed uncreditworthy and foreclosed from mainstream credit markets. Unscored consumers are often relegated to extractive, fringe credit markets that neither require nor build credit scores. More insidiously, however, a growing number of non-credit contexts, including rental housing, utility services, and employment markets, look to creditworthiness to determine eligibility …

Disability Rights On Probation And Parole, Alexis Karteron

Michigan Law Review

This Article addresses disability discrimination in community supervision programs, a large—but frequently overlooked—component of the criminal legal system and important contributor to America’s mass incarceration crisis. The long-standing concerns of legal scholars and advocates about disability discrimination in prisons and policing, particularly against people with mental health disabilities, apply with equal measure to probation and parole. This Article examines the experiences of people with intellectual/developmental, cognitive, and mental health disabilities to understand how disability discrimination manifests in probation and parole programs and identifies numerous policies and practices that likely run afoul of two major federal disability rights laws: the Americans …

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 124, Issue 3 of Michigan Law Review

From Medical Exceptions To Reproductive Freedom, David S. Cohen, Greer Donley

Michigan Law Review

Since the Supreme Court overruled Roe v. Wade in 2022, there has been a significant focus on pregnancy complications. This focus has created some risks. Highlighting medically indicated abortion stories could stigmatize the vast majority of abortion seekers who lack medical reasons for abortion and result in narrow remedies that do nothing to undermine abortion bans. This Article presents a way to convert these risks into an opportunity: to use pregnancy complications as a wedge to challenge abortion bans more generally and make abortion more accessible for everyone. We present a long-term strategy to dismantle abortion bans, using several legal …

The Victims’ Rights Mismatch, Lee Kovarsky

Michigan Law Review

A puzzling mismatch lurks inside victims’ rights law. Victims’ rights are most easily justified when held by living victims, but the cultural movement has triumphed largely as a response to crime-caused death. This Article identifies the mismatch between victims’ rights and their justifications in dead-victim cases, analyzes the normative questions involved, and recommends an institutional response. The mismatch persists because American jurisdictions assign a single bundle of rights to all people denominated as “victims.” In dead-victim cases, however, the primary bearers of interpersonal harm are gone. Instead, their rights are assumed by aggrieved family members and legal estates. In those …

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 124, Issue 2 of Michigan Law Review

Reforming Abolition, Daniel Fryer

Michigan Law Review

Abolition is an elusive concept, which allows people with various political views to identify with the idea. This Article unpacks some of the conceptual features that lead to its elusiveness. This imprecision has empowered some to point out the diverse—if not inconsistent—positions that self-identified abolitionists take when articulating the contemporary abolition movement’s demands. The question then becomes whether the movement could protect itself from being a rootless position with insufficient tools to guide change. I suggest that it can. Rather than getting caught up in debates about abolition’s ends, I propose that more attention be paid to abolition’s grounds. By …

Third-Party Accommodations, Doron Dorfman

Michigan Law Review

Does disability rights law impose an obligation on employers, schools, and other places of public accommodation to control the behavior of coworkers, students, or other third parties to accommodate an individual with disabilities? This Article examines that unexplored legal question and shows that the law frequently fails to protect people with disabilities from the choices and behaviors of third parties. Judges often consider these major barriers to access beyond the reach of the Americans with Disabilities Act’s reasonable accommodation mandate. This Article argues that this problem results from improperly imposing the privity paradigm, a doctrine that limits the inquiry about …

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 124, Issue 1 of Michigan Law Review

Legal Insurance And Its Limits, Nora Freeman Engstrom

Michigan Law Review

Courts are buckling under the weight of a staggering access-to-justice crisis. In three-quarters of cases, at least one side lacks a lawyer, default judgments are on the rise, and most Americans with valid claims never take legal action. The situation is dire, and it understandably has policymakers casting about for a fix. On the menu are a range of uncontroversial reform ideas, such as expanding legal aid, supporting system simplification, and promoting pro bono. But it is increasingly clear that those measures—even if accomplished—would not make a dent in the problem. Attention is thus turning to other reform ideas, such …

Tort Law In A World Of Scarce Compensatory Resources, Mark A. Geistfeld

Michigan Law Review

Large corporations facing extensive tort liabilities have often gone into bankruptcy, forcing tort plaintiffs to accept pennies on the dollar as compensation for their injuries. Bankruptcy painfully illustrates the social fact that the compensatory properties of tort law depend on the availability of compensatory resources. Although this feature of tort law is self-evident, no one has adequately analyzed whether it matters for substantive tort doctrine, and if so, how.

Wealth would seem to be substantively irrelevant given the rule that excludes evidence concerning the defendant’s financial resources when determining breach or compensatory damages. The antecedent tort duty, however, depends on …

Good Cause For Goodness’ Sake: A New Approach To Notice-And-Comment Rulemaking, Hazel Rosenblum-Sellers

Michigan Law Review

Notice and comment is a public participation process, first articulated in the Administrative Procedure Act (APA), that was heralded at the time as a critical innovation to engage the general population in the administrative agency rulemaking process. It has been crippled in the past fifty years, first by a series of cases—primarily at the circuit court level—which imposed new procedural requirements on agencies outside the text of the APA itself, and then by technological advancements that have enabled sophisticated parties to game the system while boxing others out. Rather than creating a democratic open-door process, notice and comment has become …

Citizen Shareholders: The State As A Fiduciary In International Investment Law, Eleanor L. Thompson

Michigan Law Review

International investment law provides stability for investors, helps capital flow across the globe, and can be a critical tool for sustainable development. This regime, however, has become increasingly controversial, in part due to its inability to reconcile investor obligations with competing human rights obligations. International investment treaties provide substantive guarantees to investors, including submission to binding arbitration in the event of breach. When found in breach of one of these guarantees, international investment arbitral tribunal awards are often in the hundreds of millions of dollars, potentially creating “regulatory chill” for states that may otherwise take affirmative action to protect human …

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 123, Issue 8 of Michigan Law Review

All The President's Men: Congressional Appointment Restrictions At The Founding, Nicholas Holmes, Eric Walker

Michigan Law Review

The appointment power is exercised through a unique unicameral process. The Founders emphasized its distinctiveness from our system’s general bicameral legislative process, yet the power has largely been overlooked by scholars and jurists. This Note reveals that appointment discretion is the crucial, but understudied, flipside of the removal-power coin and is essential for presidential administration. Constitutional text, structure, and history indicate that there is a line beyond which congressional restrictions on who is eligible to hold federal office exceed Congress’s delegated powers and infringe on the president’s nomination and appointment power under Article II. The conventional wisdom on this line, …

The Imposition Of Constitutional Rights, Alvin Padilla-Babilonia

Michigan Law Review

One of the central principles of constitutionalism is that citizenship stands for equal rights under the law. According to this ideal, a U.S. citizen living in Puerto Rico or Guam should have the same constitutional rights as a citizen living on the mainland. However, throughout U.S. history, constitutional rights have been neither uniform nor centralized. While constitutional rights held importance, they coexisted with ideals of democratic self-governance and legal pluralism. Today, Supreme Court justices and legal scholars argue that all constitutional rights should apply in the territories. This view upholds citizenship, equal rights, and the rule of law. But the …

Build Public Renewables, Again, Sandeep Vaheesan

Michigan Law Review

A review of The Price Is Wrong: Why Capitalism Won’t Save the Planet. By Brett Christophers.

Every Relevant Detail, Salomé Viljoen

Michigan Law Review

A review of The Ordinal Society. By Marion Fourcade and Kieran Healy.

Taking Revolution Seriously, Zohra Ahmed

Michigan Law Review

A review of Tip of the Spear: Black Radicalism, Prison Repression, and the Long Attica Revolt. By Orisanmi Burton.

Front Matter, Michigan Law Review

Michigan Law Review

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

Democratizing Constitutional Memory, Reva B. Siegel

Michigan Law Review

The Court regularly makes claims on the past—claims that have grown in prominence since conservatives on the Roberts Court invoked “history and tradition” to overrule longstanding case law on religious free exercise, the right to bear arms, and the right to abortion in its 2021 term and to threaten other rights since. The Court claims its historically based approach constrains judges by focusing interpretation on objective and impersonal facts in the past.

Truth, Fiction, And Abolition, Xiao Wang, Samuel Weiss

Michigan Law Review

A review of Chain-Gang All-Stars. By Nana Kwame Adjei-Brenyah.

The Invention Of The Judicial Administrative State, Marin K. Levy

Michigan Law Review

A review of The Taft Court: Making Law for a Divided Nation, 1921–1930. By Robert C. Post.

Constitutional Iconoclasm, Andrew J. Lanham

Michigan Law Review

A review of The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them. By Aziz Rana.

Pictures Of A Revolution: Administrative Law In A Time Of Change, Shalev Gad Roisman, Oren Tamir

Michigan Law Review

A review of multiple supplements and updates to several different titles and editions.

Some Realism About Originalism, William J. Novak

Michigan Law Review

A review of Memory and Authority: The Uses of History in Constitutional Interpretation. By Jack M. Balkin.