Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

PDF

University of Michigan Law School

Discipline
Keyword
Publication Year
Publication
Publication Type

Articles 1 - 30 of 20113

Full-Text Articles in Law

Biophilic Design And Biophilic Cities: An Explainer, Kincaid Brown Jan 2024

Biophilic Design And Biophilic Cities: An Explainer, Kincaid Brown

Law Librarian Scholarship

The COVID-19 pandemic brought into focus that outdoor activities in natural settings have a positive impact on mental health, and individuals participating in outdoor activity report higher rates of emotional well-being than individuals who do not participate in such activity. Biophilic design is an architectural practice that aims to connect people to nature through design concepts with one of the benefits being psychological. Other benefits of biophilic design include improvements to environmental quality, physical health, support of animal species and habitats, and more resilient and energy-efficient cities.


Pricing Corporate Governance, Albert Choi Dec 2023

Pricing Corporate Governance, Albert Choi

Articles

Scholars and practitioners have long theorized that by penalizing firms with unattractive governance features, the stock market incentivizes firms to adopt the optimal governance structure at their initial public offerings (IPOs). This theory, however, does not seem to match with practice. Not only do many IPO firms offer putatively suboptimal governance arrangements, such as staggered boards and dual-class structures, but these arrangements have been gaining popularity among IPO firms. This Article argues that the IPO market is unlikely to provide the necessary discipline to incentivize companies to adopt the optimal governance package. In particular, when the optimal governance package differs …


Consent Searches And Underestimation Of Compliance: Robustness To Type Of Search, Consequences Of Search, And Demographic Sample, Roseanna Sommers, Vanessa K. Bohns Dec 2023

Consent Searches And Underestimation Of Compliance: Robustness To Type Of Search, Consequences Of Search, And Demographic Sample, Roseanna Sommers, Vanessa K. Bohns

Articles

Most police searches today are authorized by citizens' consent, rather than probable cause or reasonable suspicion. The main constitutional limitation on so-called “consent searches” is the voluntariness test: whether a reasonable person would have felt free to refuse the officer's request to conduct the search. We investigate whether this legal inquiry is subject to a systematic bias whereby uninvolved decision-makers overstate the voluntariness of consent and underestimate the psychological pressure individuals feel to comply. We find evidence for a robust bias extending to requests, tasks, and populations that have not been examined previously. Across three pre-registered experiments, we approached participants …


States’ Duty Under The Federal Elections Clause And A Federal Right To Education, Evan Caminker Dec 2023

States’ Duty Under The Federal Elections Clause And A Federal Right To Education, Evan Caminker

Articles

Fifty years ago, in San Antonio Independent School District v. Rodriguez, the Supreme Court failed to address one of the preeminent civil rights issues of our generation—substandard and inequitable public education—by holding that the federal Constitution does not protect a general right to education. The Court didn’t completely close the door on a narrower argument that the Constitution guarantees “an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process.” Both litigants and scholars have been trying ever since to push that door open, pressing …


The War In Ukraine And Legal Limitations On Russian Vetoes, Anne Peters Oct 2023

The War In Ukraine And Legal Limitations On Russian Vetoes, Anne Peters

Articles

A veto exercised by a permanent member of the UN Security Council to shield that state’s own manifest and prima facie aggression from condemnation and collective action by the Council is legally flawed. The UN Charter can be reasonably interpreted as prohibiting such a veto and depriving it of legal force. This flows from Article 27(3) of the Charter, in conjunction with the prohibition of the abuse of rights, as a manifestation of the principle of good faith, and the obligation to respect the right to life, against the background that the prohibition has the status of jus cogens. These …


The Oligarchic Courthouse: Jurisdiction, Corporate Power, And Democratic Decline, Helen Hershkoff, Luke Norris Oct 2023

The Oligarchic Courthouse: Jurisdiction, Corporate Power, And Democratic Decline, Helen Hershkoff, Luke Norris

Michigan Law Review

Jurisdiction is foundational to the exercise of judicial power. It is precisely for this reason that subject matter jurisdiction, the species of judicial power that gives a court authority to resolve a dispute, has today come to the center of a struggle between corporate litigants and the regulatory state. In a pronounced trend, corporations are using jurisdictional maneuvers to manipulate forum choice. Along the way, they are wearing out less-resourced parties, circumventing hearings on the merits, and insulating themselves from laws that seek to govern their behavior. Corporations have done so by making creative arguments to lock plaintiffs out of …


The Death Knell And The Wild West: Two Dangers Of Domestic Discovery In Foreign Adjudications, Shay M. Collins Oct 2023

The Death Knell And The Wild West: Two Dangers Of Domestic Discovery In Foreign Adjudications, Shay M. Collins

Michigan Law Review

Under 28 U.S.C. § 1782(a), parties to foreign legal proceedings can obtain discovery orders from United States federal courts. In other words, if a foreign party needs physical evidence located in—or testimony from a person residing in—the United States to support their claim or defense, they can ask a district court to order the production of that evidence. For almost two decades, § 1782(a) practice has operated as a procedural Wild West. Judges routinely consider § 1782(a) applications ex parte—that is, without giving the parties subject to the resulting discovery orders a chance to oppose them—and grant those applications at …


The National Security Consequences Of The Major Questions Doctrine, Timothy Meyer, Ganesh Sitaraman Oct 2023

The National Security Consequences Of The Major Questions Doctrine, Timothy Meyer, Ganesh Sitaraman

Michigan Law Review

The rise of the major questions doctrine—the rule that says that in order to delegate to the executive branch the power to resolve a “question of ‘deep economic and political significance’ that is central to [a] statutory scheme,” Congress must do so expressly—threatens to unmake the modern executive’s authority over foreign affairs, especially in matters of national security and interstate conflict. In the twenty-first century, global conflicts increasingly involve economic warfare, rather than (or in addition to) the force of arms.

In the United States, the executive power to levy economic sanctions and engage in other forms of economic warfare …


Revisiting The “Tradition Of Local Control” In Public Education, Carter Brace Oct 2023

Revisiting The “Tradition Of Local Control” In Public Education, Carter Brace

Michigan Law Review

In Milliken v. Bradley, the Supreme Court declared “local control” the single most important tradition of public education. Milliken and other related cases developed this notion of a tradition, which has frustrated attempts to achieve equitable school funding and desegregation through federal courts. However, despite its significant impact on American education, most scholars have treated the “tradition of local control” as doctrinally insignificant. These scholars depict the tradition either as a policy preference with no formal legal meaning or as one principle among many that courts may use to determine equitable remedies. This Note argues that the Supreme Court …


A Theory Of Racialized Judicial Decision-Making, Raquel Muñiz Sep 2023

A Theory Of Racialized Judicial Decision-Making, Raquel Muñiz

Michigan Journal of Race and Law

In this Article, I introduce a theory of racialized judicial decision-making as a framework to explain how judicial decision-making as a system contributes to creating and maintaining the racial hierarchy in the United States. Judicial decision-making, I argue, is itself a racialized systemic process in which judges transpose racially-bounded cognitive schemas as they make decisions. In the process, they assign legal burdens differentially across ethnoracial groups, to the disproportionate detriment of ethnoracial minorities. After presenting this argument, I turn to three mechanisms at play in racialized judicial decision-making: (1) whiteness as capital that increases epistemic advantages in the judicial process, …


Taming Wildcat Stablecoins, Gary B. Gorton, Jeffery Y. Zhang Sep 2023

Taming Wildcat Stablecoins, Gary B. Gorton, Jeffery Y. Zhang

Articles

Cryptocurrencies, including stablecoins, are all the rage. Investors are exploring ways to profit off of them. Governments are considering ways to regulate them. While the technology underlying cryptocurrencies is new, the economics is centuries old. Oftentimes, lawmakers are so focused on understanding a new technological innovation that they fail to ask what exactly is being created.

In this case, the new technology has recreated circulating private money in the form of stablecoins, which are similar to the banknotes that circulated in many countries during the nineteenth century. The implication is that stablecoin issuers are unregulated banks. Based on lessons learned …


Sovereign Debt Speculation: A Necessary Restraint Justified By A Concern For Debt Sustainability, Justin Vanderschuren Sep 2023

Sovereign Debt Speculation: A Necessary Restraint Justified By A Concern For Debt Sustainability, Justin Vanderschuren

Fellow, Adjunct, Lecturer, and Research Scholar Works

The actions of funds speculating in sovereign debt, frequently nicknamed “vulture funds”, are often roundly criticized. These funds purchase distressed debts on the secondary market at reduced prices and then seek payment in court at face value plus interest and fees. Although their actions are legally justified, so-called “vulture funds” are vilified due to the negative impact of their activities on sovereign debtors and their population. While there is a strong demand for regulating sovereign debt speculation, various solutions already exist but are, in many ways, insufficient. This article argues for the adoption of a tailored regulation of the speculative …


Proposal For A New Regulation Of Speculation In Sovereign Debt, Justin Vanderschuren Sep 2023

Proposal For A New Regulation Of Speculation In Sovereign Debt, Justin Vanderschuren

Fellow, Adjunct, Lecturer, and Research Scholar Works

Over the past few years, several countries have undertaken to regulate the speculation in sovereign debt pursued by so-called “vulture funds.” The various realizations and attempts present a series of loopholes that make a new regulation of this speculation advisable. A proposal for a new regulation, legally justified and precisely framed, is all the more desirable given that some legislators, in particular from the New York State Legislature, have recently taken up the issue of speculation.

Debt sustainability is the only realistic regulation benchmark. It is inconceivable to ban debt purchases on the secondary market as this would significantly impact …


Valuing Social Data, Amanda Parsons, Salomé Viljoen Aug 2023

Valuing Social Data, Amanda Parsons, Salomé Viljoen

Law & Economics Working Papers

Social data production is a unique form of value creation that characterizes informational capitalism. Social data production also presents critical challenges for the various legal regimes that are encountering it. This Article provides legal scholars and policymakers with the tools to comprehend this new form of value creation through two descriptive contributions. First, it presents a theoretical account of social data, a mode of production which is cultivated and exploited for two distinct (albeit related) forms of value: prediction value and exchange value. Second, it creates and defends a taxonomy of three “scripts” that companies follow to build up and …


Modular Bankruptcy: Toward A Consumer Scheme Of Arrangement, John A. E. Pottow Aug 2023

Modular Bankruptcy: Toward A Consumer Scheme Of Arrangement, John A. E. Pottow

Law & Economics Working Papers

The world of international bankruptcy has seen increasing use of the versatile scheme of arrangement, a form of corporate reorganization available under English law. A key feature of the scheme is its modularity, whereby a debtor can restructure only a single class of debt, such as bond indentures, without affecting other debt, such as trade. This is the opposite of chapter 11 of the U.S. Bankruptcy Code’s comprehensive reckoning of all financial stakeholders. This article considers a novel idea: could the scheme be transplanted into the consumer realm? It argues that it could and should. Substantial benefits of more individually …


Fee Shifting, Nominal Damages, And The Public Interest, Maureen Carroll Aug 2023

Fee Shifting, Nominal Damages, And The Public Interest, Maureen Carroll

Law & Economics Working Papers

As the Supreme Court recognized in its 2021 decision in Uzuegbunam v. Preczewski, nominal damages can redress violations of “important, but not easily quantifiable, nonpecuniary rights.” For some plaintiffs who establish a violation of their constitutional rights, nominal damages will be the only relief available. In its 1992 decision in Farrar v. Hobby, however, the Court disparaged the nominal-damages remedy. The case involved the interpretation of federal fee-shifting statutes, which enable prevailing civil rights plaintiffs to recover a reasonable attorney’s fee from the defendant. According to Farrar, a plaintiff can prevail by obtaining the “technical” remedy of nominal damages, but …


Covid-19 Pandemic’S Impact On Online Sex Advertising And Sex Trafficking, Coxen O. Julia, Vanessa Castro, Bridgette Carr, Glen Redin Aug 2023

Covid-19 Pandemic’S Impact On Online Sex Advertising And Sex Trafficking, Coxen O. Julia, Vanessa Castro, Bridgette Carr, Glen Redin

Articles

Disruptive social events such as the COVID-19 pandemic can have a significant impact on sex trafficking and the working conditions of victims, yet these effects have been little understood. This paper examines the effect of the COVID-19 pandemic on sex trafficking in the United States, based on analysis of over one million sexual service advertisements from the online platform Rubratings.com, using indicators of third-party management as potential proxies for trafficking. Our results show that there have been measurable changes in online commercial sexual service advertising, both with and without third-party management indicators, in the United States, with a significant decrease …


Learning From Land Use Reforms: Housing Outcomes And Regulatory Change, Noah Kazis Aug 2023

Learning From Land Use Reforms: Housing Outcomes And Regulatory Change, Noah Kazis

Law & Economics Working Papers

This essay serves as the introduction for an edited, interdisciplinary symposium of articles studying recent land use reforms at the state and local level. These papers provide important descriptive analyses of a range of policy interventions, using quantitative and qualitative methods to provide new empirical insights into zoning reform strategies.

After situating and summarizing the collected articles, the Introduction draws out shared themes. For example, these essays demonstrate the efficacy of recent reforms, not only at facilitating housing production but at doing so in especially difficult contexts (like when producing affordable housing and redeveloping single-family neighborhoods). They point to the …


Interpreting The Administrative Procedure Act: A Literature Review, Christopher J. Walker, Scott Macguidwin Jul 2023

Interpreting The Administrative Procedure Act: A Literature Review, Christopher J. Walker, Scott Macguidwin

Law & Economics Working Papers

The modern administrative state has changed substantially since Congress enacted the Administrative Procedure Act (APA) in 1946. Yet Congress has done little to modernize the APA in those intervening seventy-seven years. That does not mean the APA has remained unchanged. Federal courts have substantially refashioned the APA’s requirements for administrative procedure and judicial review of agency action. Perhaps unsurprisingly, calls to return to either the statutory text or the original meaning (or both) have intensified in recent years. “APA originalism” projects abound.

As part of the Notre Dame Law Review’s Symposium on the History of the Ad- ministrative Procedure Act …


Missed Connections In The U.N. Agenda: Applying The Women, Peace And Security Framework To The Feminization Of Poverty, Lauren A. Fleming Jul 2023

Missed Connections In The U.N. Agenda: Applying The Women, Peace And Security Framework To The Feminization Of Poverty, Lauren A. Fleming

Michigan Journal of Gender & Law

Women, Peace and Security, a multifaceted agenda intended to address the particular ways in which conflict affects women, has been on the United Nations agenda since the landmark Security Council Resolution 1325 passed in 2000. The unequal burden of poverty on women, a phenomenon that has been coined “the feminization of poverty,” has been on the United Nations agenda for even longer, since the 1995 Beijing Conference on Women. Yet, despite the fact that poverty and inequality both cause and result in conflict in a violent cycle, the problem of the feminization of poverty has not been integrated into the …


The Preservation Of The Separate Spheres Doctrine In Congress And The Federal Courts, Arjun Parikh Jul 2023

The Preservation Of The Separate Spheres Doctrine In Congress And The Federal Courts, Arjun Parikh

Michigan Journal of Gender & Law

In Bradwell v. State, an 1872 decision upholding an Illinois law prohibiting women from practicing law, the United States Supreme Court reasoned that the law was justified because women belonged in the “domestic sphere.” While today’s sex-based workplace exclusions are not as explicit as they once were, women still face barriers to remaining in the workforce and advancing in the workplace despite the existence of major federal legislation in the areas of pregnancy discrimination and family leave policy. Congress passed the Pregnancy Discrimination Act (PDA) in 1978 to stop pregnancy discrimination, but the PDA has not come close to …


Right To Informed Consent, Right To A Doula: An Evidence-Based Solution To The Black Maternal Mortality Crisis In The United States, Cecilia Landor Jul 2023

Right To Informed Consent, Right To A Doula: An Evidence-Based Solution To The Black Maternal Mortality Crisis In The United States, Cecilia Landor

Michigan Journal of Gender & Law

This Note seeks to build on existing research about how to improve childbirth in the United States for women, particularly for Black women, given the United States’ extremely high maternal mortality rate. Through examining the history and characteristics of American and Western childbirth, it seeks to explore how the current birth framework contributes to maternal mortality. To fight this ongoing harm, I suggest increasing access to doulas— nonmedical support workers who provide “continuous support” to the birthing person.

Through this Note I seek to build on the research of others by identifying the ways medicalized birth practices fail women, particularly …


Title Ix And "Menstruation Or Related Conditions", Marcy L. Karin, Naomi Cahn, Elizabeth B. Cooper, Bridget J. Crawford, Margaret E. Johnson, Emily Gold Waldman Jul 2023

Title Ix And "Menstruation Or Related Conditions", Marcy L. Karin, Naomi Cahn, Elizabeth B. Cooper, Bridget J. Crawford, Margaret E. Johnson, Emily Gold Waldman

Michigan Journal of Gender & Law

Title IX of the Education Amendments Act of 1972 (“Title IX”) prohibits sex discrimination in educational programs or activities receiving federal financial assistance. Neither the statute nor its implementing regulations explicitly define “sex” to include discrimination on the basis of menstruation or related conditions such as perimenopause and menopause. This textual absence has caused confusion over whether Title IX must be interpreted to protect students and other community members from all types of sex-based discrimination. It also calls into question the law’s ability to break down systemic sex-based barriers related to menstruation in educational spaces. Absent an interpretation that there …


Constructing Race And Gender In Modern Rape Law: The Abandoned Category Of Black Female Victims, Jacqueline Pittman Jul 2023

Constructing Race And Gender In Modern Rape Law: The Abandoned Category Of Black Female Victims, Jacqueline Pittman

Michigan Journal of Gender & Law

Despite the successes of the 1960s Anti-Rape Movement, modern state rape statutes continue to prioritize white male perspectives and perceptions of race, ultimately ignoring the intersectional identity of Black women and leaving these victims without legal protection. This Note examines rape law’s history of allocating agency along gendered and racialized lines through statutory construction and other discursive techniques. Such legal constructions both uphold and cultivate the white victim/Black assailant rape dyad primarily by making the Black male the “ultimate” and most feared assailant. Rape law’s adherence to a white baseline sustains stereotypes of Black men as criminals and predators, which …


The Historical Origins And Current Prospects Of The Multilateral Tax Convention, Reuven S. Avi-Yonah, Eran Lempert Jun 2023

The Historical Origins And Current Prospects Of The Multilateral Tax Convention, Reuven S. Avi-Yonah, Eran Lempert

Articles

This article has three aims. First, it surveys the pre-BEPS efforts to create a multilateral tax convention (MTC) from the 19th century onward, and explains why these efforts have failed, leading to an international tax regime dominated by unilateralism and bilateralism. Second, it contrasts the success of multilateralism in investment and trade law. Third, it examines the BEPS era efforts to create an MTC and suggests that, while there has been more convergence of the tax laws of countries, a fundamental divergence of interests persists that will likely doom any such efforts to failure. The article concludes that, at this …


Fact-Finding Without Rules: Habermas's Communicative Rationality As A Framework For Judicial Assessments Of Digital Open-Source Information, Matthew Gillett Jun 2023

Fact-Finding Without Rules: Habermas's Communicative Rationality As A Framework For Judicial Assessments Of Digital Open-Source Information, Matthew Gillett

Michigan Journal of International Law

Jürgen Habermas’s theory of “communicative rationality” (also known as “communicative action”) provides a promising conceptual apparatus through which to justify and validate the International Criminal Court’s consideration of the emerging phenomenon of digital open-source information. Because of its process-based and inclusive qualities, Habermas’s communicative rationality is particularly apposite for the dynamic nature of digital open-source information and the heterogenous range of actors and institutions which have relevant experiences and skills to contribute to the generation of norms and determinations regarding its role before the Court. This is important, as the International Criminal Court’s procedural framework is largely silent on digital …


Rebraiding Frayed Sweetgrass For Niijaansinaanik: Understanding Canadian Indigenous Child Welfare Issues As International Atrocity Crimes, Alyssa Couchie Jun 2023

Rebraiding Frayed Sweetgrass For Niijaansinaanik: Understanding Canadian Indigenous Child Welfare Issues As International Atrocity Crimes, Alyssa Couchie

Michigan Journal of International Law

The unearthing of the remains of Indigenous children on the sites of former Indian Residential Schools (“IRS”) in Canada has focused greater attention on anti-Indigenous atrocity violence in the country. While such increased attention, combined with recent efforts at redressing associated harms, represents a step forward in terms of recognizing and addressing the harms caused to Indigenous peoples through the settler-colonial process in Canada, this note expresses concern that the dominant framings of anti-Indigenous atrocity violence remain myopically focused on an overly narrow subset of harms and forms of violence, especially those committed at IRSs. It does so by utilizing …


Reforming World Bank Dispute Resolution: Icsid In Context, Susan Franck Jun 2023

Reforming World Bank Dispute Resolution: Icsid In Context, Susan Franck

Michigan Journal of International Law

During a tumultuous moment in history with shifts in power and politics, international dispute settlement stands at a crossroads. In theory, international dispute settlement should not institutionalize abuses of power, rely upon a monolithic one-size-fits-all model, or be a waste of resources, which will inevitably generate stakeholder dissatisfaction. Rather, dispute resolution should reflect both a commitment to the rule of law and equal treatment that sustains nuanced, fair, and just procedures most likely to provide results of substantive quality. Against this backdrop and with the major reforms concluded in July 2022, this article explores the reality of dispute resolution at …


Trade-Based Solutions For Revitalizing Post-Conflict Economies, Ryan R. Migeed Jun 2023

Trade-Based Solutions For Revitalizing Post-Conflict Economies, Ryan R. Migeed

Michigan Journal of International Law

International trade improves efficiency in home markets, creates new sources of demand for domestic industries, and boosts worker productivity. However, some types of trade are better than others for reviving the economies of countries emerging from internal or international armed conflicts. This note evaluates existing trade mechanisms that ostensibly help developing countries but fail to actually do so. It ultimately recommends the use of investor-state partnerships over trade-based mechanisms as the appropriate tool for improving the economies of post-conflict states. Part I evaluates a number of these existing trade mechanisms, including preferential trade agreements and the General System of Preferences. …


Inventing Deportation Arrests, Lindsay Nash Jun 2023

Inventing Deportation Arrests, Lindsay Nash

Michigan Law Review

At the dawn of the federal deportation system, the nation’s top immigration official proclaimed the power to authorize deportation arrests “an extraordinary one” to vest in administrative officers. He reassured the nation that this immense power—then wielded by a cabinet secretary, the only executive officer empowered to authorize these arrests—was exercised with “great care and deliberation.” A century later, this extraordinary power is legally trivial and systemically exercised by low-level enforcement officers alone. Consequently, thousands of these officers—the police and jailors of the immigration system— now have the power to solely determine whether deportation arrests are justified and, therefore, whether …