Digital Commons Network^™

Remembering Financial Crises: The Risk Implications Of The Rise Of Institutional Investors In Project Finance, David J. Park

Michigan Law Review

Barely a decade ago, a cascading sequence of market failures threatened to topple the global financial system. Public responses to the recent Financial Crisis were immediate and drastic to resuscitate the global economy while attempting to make the markets safer. Many financial services sectors have since recovered to pre-crisis levels. One such industry is project finance, which comprises various financing arrangements often used to fund long-term infrastructure or industrial projects. Curiously, significant post-crisis banking regulations and other global credit enhancement initiatives are pushing banks out of project finance and giving rise to institutional investors. This Comment argues that animated institutional …

Front Matter

Michigan Law Review

No abstract provided.

Neither Limited Nor Simplified: A Proposal For Reform Of Illinois Supreme Court Rule 222(B), Michael S. Smith

Michigan Law Review

A limited and simplified discovery system should broaden access to courts, resolve disputes quickly, and expedite relief to injured parties. It should not incentivize procedural gamesmanship or increase the system’s complexity. Regrettably, Illinois’s “limited and simplified” discovery system does both. The initiation procedure for the simplified system, Rule 222(b), creates procedural traps and perverse incentives for both plaintiffs and defendants, and conflicting appellate interpretations of the Rule intensify the problem. This Note examines the flaws underlying the current simplified discovery scheme and argues for reform. It examines simplified discovery schemes in other states to recommend a new system for initiating …

The Uneasy Case For Patent Law, Rachel E. Sachs

Michigan Law Review

A central tenet of patent law scholarship holds that if any scientific field truly needs patents to stimulate progress, it is pharmaceuticals. Patents are thought to be critical in encouraging pharmaceutical companies to develop and commercialize new therapies, due to the high costs of researching diseases, developing treatments, and bringing drugs through the complex, expensive approval process. Scholars and policymakers often point to patent law’s apparent success in the pharmaceutical industry to justify broader calls for more expansive patent rights.

This Article challenges this conventional wisdom about the centrality of patents to drug development by presenting a case study of …

The Commodification Of Cryptocurrency, Neil Tiwari

Michigan Law Review

Cryptocurrencies are digital tokens built on blockchain technology. This allows for a product that is fully decentralized, with no need for a third-party intermediary like a government or financial institution. Cryptocurrency creators use initial coin offerings (ICOs) to raise capital to build their tokens. Cryptocurrency ICOs are problematic because they do not fit neatly within either of two traditional categories—securities or commodities. Each of these categories has their own regulatory agency: the SEC for securities and the CFTC for commodities. At first blush, ICOs seem to be a sale of securities subject to regulation by the SEC, but this is …

Is The First Amendment Obsolete?, Tim Wu

Michigan Law Review

The First Amendment was brought to life in a period, the twentieth century, when the political speech environment was markedly different than today’s. With respect to any given issue, speech was scarce and limited to a few newspapers, pamphlets or magazines. The law was embedded, therefore, with the presumption that the greatest threat to free speech was direct punishment of speakers by government.

Today, in the internet and social media age, it is no longer speech that is scarce—rather, it is the attention of listeners. And those who seek to control speech use new methods that rely on the weaponization …

Gerrymandering And The Constitutional Norm Against Government Partisanship, Michael S. Kang

Michigan Law Review

This Article challenges the basic premise in the law of gerrymandering that partisanship is a constitutional government purpose at all. The central problem, Justice Scalia once explained in Vieth v. Jubilerer, is that partisan gerrymandering becomes unconstitutional only when it “has gone too far,” giving rise to the intractable inquiry into “how much is too much.” But the premise that partisanship is an ordinary and lawful purpose, articulated confidently as settled law and widely understood as such, is largely wrong as constitutional doctrine. The Article surveys constitutional law to demonstrate the vitality of an important, if implicit norm against …

Regulating Black-Box Medicine, W. Nicholson Price Ii

Michigan Law Review

Data drive modern medicine. And our tools to analyze those data are growing ever more powerful. As health data are collected in greater and greater amounts, sophisticated algorithms based on those data can drive medical innovation, improve the process of care, and increase efficiency. Those algorithms, however, vary widely in quality. Some are accurate and powerful, while others may be riddled with errors or based on faulty science. When an opaque algorithm recommends an insulin dose to a diabetic patient, how do we know that dose is correct? Patients, providers, and insurers face substantial difficulties in identifying high-quality algorithms; they …

Protecting Whistleblowing (And Not Just Whistleblowers), Evan J. Ballan

Michigan Law Review

When the government contracts with private parties, the risk of fraud runs high. Fraud against the government hurts everyone: taxpayer money is wasted on inferior or nonexistent products and services, and the public bears the burdens attendant to those inadequate goods. To combat fraud, Congress has developed several statutory frameworks to encourage whistleblowers to come forward and report wrongdoing in exchange for a monetary reward. The federal False Claims Act allows whistleblowers to file an action in federal court on behalf of the United States, and to share in any recovery. Under the Dodd- Frank Act, the SEC Office of …

Opening The Gates Of Cow Palace: Regulating Runoff Manure As A Hazardous Waste Under Rcra, Reed J. Mccalib

Michigan Law Review

In 2015, a federal court held for the first time that the Environmental Protection Agency (“EPA”) may regulate runoff manure as a “solid waste” under the Resource Conservation and Recovery Act (“RCRA”). The holding of Community Ass’n for Restoration of the Environment, Inc. v. Cow Palace, LLC opened the gates to regulation of farms under the nation’s primary toxic waste statute. This Comment argues that, once classified as a “solid waste,” runoff manure fits RCRA’s definition of “hazardous waste” as well. This reclassification would expand EPA’s authority to monitor and respond to the nation’s tragically common groundwater-contamination emergencies.

Corpus Linguistics: Misfire Or More Ammo For The Ordinary - Meaning Canon?, John D. Ramer

Michigan Law Review

Scholars and judges have heralded corpus linguistics—the study of language through collections of spoken or written texts—as a novel tool for statutory interpretation that will help provide an answer in the occasionally ambiguous search for “ordinary meaning” using dictionaries. In the spring of 2016, the Michigan Supreme Court became the first to use corpus linguistics in a majority opinion. The dissent also used it, however, and the two opinions reached different conclusions. In the first true test for corpus linguistics, the answer seemed to be just as ambiguous as before.

This result calls into question the utility of corpus linguistics. …

Rationing Criminal Justice, Richard A. Bierschbach, Stephanos Bibas

Michigan Law Review

Of the many diagnoses of American criminal justice’s ills, few focus on externalities. Yet American criminal justice systematically overpunishes in large part because few mechanisms exist to force consideration of the full social costs of criminal justice interventions. Actors often lack good information or incentives to minimize the harms they impose. Part of the problem is structural: criminal justice is fragmented vertically among governments, horizontally among agencies, and individually among self-interested actors. Part is a matter of focus: doctrinally and pragmatically, actors overwhelmingly view each case as an isolated, short-term transaction to the exclusion of broader, long-term, and aggregate effects. …

Understanding Nautilus's Reasonable-Certainty Standard: Requirements For Linguistic And Physical Definiteness Of Patent Claims, Gary M. Fox

Michigan Law Review

Patent applicants must satisfy a variety of requirements to obtain a patent from the U.S. Patent and Trademark Office (USPTO). The definiteness requirement forces applicants to describe their inventions in unambiguous terms so that other inventors will understand the scope of granted patent rights. Although the statutory provision for the definiteness requirement has been stable for many years, the Supreme Court’s decision in Nautilus v. Biosig Instruments altered the doctrine. The Court abrogated the Federal Circuit’s insoluble-ambiguity standard and replaced it with a new reasonable-certainty standard. Various district courts have applied the new standard in different ways, indicating the need …

Saving Title Ix: Designing More Equitable And Efficient Investigation Procedures, Emma Ellman-Golan

Michigan Law Review

In 2011, the Department of Education’s Office of Civil Rights (OCR) issued guidance on Title IX compliance. This guidance has resulted in the creation of investigative and adjudicatory tribunals at colleges and universities receiving federal funds to hear claims of sexual assault, harassment, and violence. OCR’s enforcement efforts are a laudable response to an epidemic of sexual violence on college campuses, but they have faced criticism from administrators, law professors, and potential members of the Trump Administration. This Note suggests ways to alter current Title IX enforcement mechanisms to placate critics and to maintain OCR enforcement as a bulwark against …

Chevron In The Circuit Courts, Kent Barnett, Christopher J. Walker

Michigan Law Review

This Article presents findings from the most comprehensive empirical study to date on how the federal courts of appeals have applied Chevrondeference— the doctrine under which courts defer to a federal agency’s reasonable interpretation of an ambiguous statute that it administers. Based on 1,558 agency interpretations the circuit courts reviewed from 2003 through 2013 (where they cited Chevron), we found that the circuit courts overall upheld 71% of interpretations and applied Chevrondeference 77% of the time. But there was nearly a twenty-five-percentage-point difference in agency-win rates when the circuit courts applied Chevrondeference than when they did …

Humanizing The Corporation While Dehumanizing The Individual: The Misuse Of Deferred-Prosecution Agreements In The United States, Andrea Amulic

Michigan Law Review

American prosecutors routinely offer deferred-prosecution and nonprosecution agreements to corporate defendants, but not to noncorporate defendants. The drafters of the Speedy Trial Act expressly contemplated such agreements, as originally developed for use in cases involving low-level, nonviolent, noncorporate defendants. This Note posits that the almost exclusive use of deferrals in corporate cases is inconsistent with the goal that these agreements initially sought to serve. The Note further argues that this exclusivity can be attributed to prosecutors’ tendency to only consider collateral consequences in corporate cases and not in noncorporate cases. Ultimately, this Note recommends that prosecutors evaluate collateral fallout when …

Internal Administrative Law, Gillian E. Metzger, Kevin M. Stack

Michigan Law Review

For years, administrative law has been identified as the external review of agency action, primarily by courts. Following in the footsteps of pioneering administrative law scholars, a growing body of recent scholarship has begun to attend to the role of internal norms and structures in controlling agency action. This Article offers a conceptual and historical account of these internal forces as internal administrative law. Internal administrative law consists of the internal directives, guidance, and organizational forms through which agencies structure the discretion of their employees and presidents control the workings of the executive branch. It is the critical means for …

Making Treaty Implementation More Like Statutory Implementation, Jean Galbraith

Michigan Law Review

Both statutes and treaties are the “supreme law of the land,” and yet quite different practices have developed with respect to their implementation. For statutes, all three branches have embraced the development of administrative law, which allows the executive branch to translate broad statutory directives into enforceable obligations. But for treaties, there is a far more cumbersome process. Unless a treaty provision contains language that courts interpret to be directly enforceable, they will deem it to require implementing legislation from Congress. This Article explores and challenges the perplexing disparity between the administration of statutes and treaties. It shows that the …

The New Unconstitutionality Of Juvenile Sex Offender Registration: Suspending The Presumption Of Constitutionality For Laws That Burden Juvenile Offenders, Spencer Klein

Michigan Law Review

In Smith v. Doe, the Supreme Court held that Alaska’s sex offender registration and notification statute did not constitute punishment and was therefore not susceptible to challenge under the Ex Post Facto Clause. In reaching that conclusion, the Court looked to the seven factors articulated in Kennedy v. Mendoza-Martinez. To evaluate those factors, the Court applied a presumption of constitutionality, conducting the sort of narrow factual inquiry characteristic of rational basis review. Since Smith, courts have disagreed as to whether sex offender laws are punitive when applied to juveniles, and the Supreme Court has not yet addressed …

The Essential Structure Of Property Law, James Y. Stern

Michigan Law Review

This Article examines a characteristic of property entitlements fundamental to the structure of property systems that has received scant academic attention, a characteristic referred to as the mutual exclusivity principle. According to this principle, a property system does not allow for the existence of incompatible rights. Two people cannot separately be the owners of the same resource, for instance. By contrast, two people can each hold valid but contradictory contract rights to the resource. Although the existing property literature has stressed the “exclusive” nature of property, the various ways in which property is imagined to be exclusive, such as by …

The New Front In The Clean Air Wars: Fossil-Fuel Influence Over State Attorneys General- And How It Might Be Checked, Eli Savit

Michigan Law Review

Review of Struggling for Air: Power and the "War On Coal" by Richard L. Revesz and Jack Leinke, and Federalism on Trial: State Attorneys General and National Policymaking in Contemporary America by Paul Nolette.

Linnaean Taxonomy And Globalized Law, Ronald J. Krotoszynski Jr.

Michigan Law Review

Review of The Court and the World: American Law and the New Global Realities by Stephen Breyer.

Foreword: The Books Of Justices, Linda Greenhouse

Michigan Law Review

For this Michigan Law Review issue devoted to recently published books about law, I thought it would be interesting to see what books made an appearance in the past year’s work of the Supreme Court. I catalogued every citation to every book in those forty opinions in order to see what patterns emerged: what books the justices cited, which justices cited which books, and what use they made of the citations. To begin with, I should define what I mean by “books". For the purposes of this Foreword, I excluded some types of reading matter that may have a book-like …

Justice Scalia And The Idea Of Judicial Restraint, John F. Manning

Michigan Law Review

Review of A Matter of Interpretation: Federal Courts and the Law by Antonin Scalia .

The Tragedy Of Justice Scalia, Mitchell N. Berman

Michigan Law Review

Review of A Matter of Interpretation: Federal Courts and the Law by Antonin Scalia .

Frontiers Of Sex Discrimination Law, Jessica A. Clarke

Michigan Law Review

Review Gender Nonconformity and the Law by Kimberly A. Yuracko.

Slaves As Plaintiffs, Alfred L. Brophy

Michigan Law Review

Review of Redemption Songs: Suing for Freedom Before Dred Scott by Lea VanderVelde.

Digging Into The Foundations Of Evidence Law, David H. Kaye

Michigan Law Review

Review of The Psychological Foundations of Evidence Law by Michael J. Saks and Barbara A. Spellman.

An Invisible Crisis In Plain Sight: The Emergence Of The "Eviction Economy," Its Causes, And The Possibilities For Reform In Legal Regulation And Education, David A. Dana

Michigan Law Review

Review of Evicted: Poverty and Profit in the American City by Matthew Desmond.

Troubled Waters Between U.S. And European Antitrust, D. Daniel Sokol

Michigan Law Review

Review of The Atlantic Divide in Antitrust: An Examination of US and EU Competition Policy by Daniel J. Gifford and Robert T. Kudrle.