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Full-Text Articles in Law

Why We Should Stop Talking About Violent Offenders: Storytelling And Decarceration, Mira Edmonds May 2024

Why We Should Stop Talking About Violent Offenders: Storytelling And Decarceration, Mira Edmonds

Articles

The movement to decarcerate risks foundering because of its failure to grapple with so-called violent offenders, who make up nearly half of U.S. prisoners. The treatment of people serving sentences for offenses categorized as violent is a primary reason for the continued problem of mass incarceration, despite widespread awareness of the phenomenon and significant bipartisan interest in its reduction. People convicted of “violent offenses” are serving historically anomalous and excessively long sentences, are generally denied clemency and compassionate release, and are excluded from a wide array of legal reform and policy changes with decarceral aims. Keeping these people in prison …


Medical-Legal Partnerships Reinvigorate Systems Lawyering Using An Upstream Approach, Kate L. Mitchell, Debra Chopp May 2024

Medical-Legal Partnerships Reinvigorate Systems Lawyering Using An Upstream Approach, Kate L. Mitchell, Debra Chopp

Articles

The upstream framework presented in public health and medicine considers health problems from a preventive perspective, seeking to understand and address the root causes of poor health. Medical-legal partnerships (MLPs) have demonstrated the value of this upstream framework in the practice of law and engage in upstream lawyering by utilizing systemic advocacy to address root causes of injustices and health inequities. This article explores upstreaming and its use by MLPs in reframing legal practice.


Congress Could Soon Spell The End Of Employment Arbitration—But It’S Not All Good News For American Workers., Lewis L. Maltby, Theodore J. St. Antoine May 2024

Congress Could Soon Spell The End Of Employment Arbitration—But It’S Not All Good News For American Workers., Lewis L. Maltby, Theodore J. St. Antoine

Other Publications

Employment arbitration has become a dirty word on Capitol Hill. Congressman Hank Johnson claims that arbitration allows employers to "stack the deck against the little guy" for the 60 million employees bound by arbitration agreements. The Economic Policy Institute calls it an epidemic that is "undermining decades of progress in labor rights."


Whose International Law Is It Anyway? The Battle Over The Gatekeepers Of Voluntarism, Shelly Aviv Yeini May 2024

Whose International Law Is It Anyway? The Battle Over The Gatekeepers Of Voluntarism, Shelly Aviv Yeini

Michigan Journal of International Law

International law has been ruled by the theory of voluntarism for the course of the last two centuries. It is currently being challenged by competing theories, which do not see states’ consent as the main justification for international law. The theories of naturalism, international constitutionalism, and communitarianism all consider justification for international law to lie elsewhere than the realm of consent. While each theory provides a different framework for explaining the validity of international law, they all seek to justify their dissent from consent. Naturalism, international constitutionalism, and communitarianism view states as participators in the making of international law alongside …


The Humanization Of War Reparations: Combatant Deaths And Compensation In Unlawful Wars, Hannes Jöbstl, Dean Rosenberg May 2024

The Humanization Of War Reparations: Combatant Deaths And Compensation In Unlawful Wars, Hannes Jöbstl, Dean Rosenberg

Michigan Journal of International Law

Recent events have sparked a renewed interest in the law and practice of war reparations. While today it is uncontroversial that unlawful uses of force, including acts of aggression, entail the obligation of the wrongdoing state to make reparations, including by way of compensation, the precise extent of this obligation remains subject to debate. One particularly contentious aspect is whether, and to what extent, states that violate the prohibition on the use of force are obligated to pay compensation not only for harm caused to civilians and civilian objects, but also for damage caused to the armed forces of the …


Power Shift, The South China Sea Dispute, And The Role Of International Law, Youngmin Seo May 2024

Power Shift, The South China Sea Dispute, And The Role Of International Law, Youngmin Seo

Michigan Journal of International Law

The arena of the law of the sea has become a battlefield for Sino-American legal warfare, commonly referred to as “lawfare,” and it is in the tumultuous waters of the South China Sea where this fierce contest of great powers rages. The divergent perspectives on international law, particularly regarding maritime law, between China and the United States stem from the countries’ distinct historical experiences, memories, and outlooks. This inherent disparity in epistemology shapes their comprehension of the fundamental tenets of the United Nations Convention on the Law of the Sea (“UNCLOS”), specifically the conflicting notions of mare clausum and mare …


Revising The Indian Plenary Power Doctrine, M. Henry Ishtani, Alexandra Fay Apr 2024

Revising The Indian Plenary Power Doctrine, M. Henry Ishtani, Alexandra Fay

Michigan Journal of Race and Law

The federal Indian law doctrine of Congressional plenary power is long overdue for an overhaul. Since its troubling nineteenth-century origins in Kagama v. United States (1886), plenary power has justified invasive Congressional interventions and undermined Tribal sovereignty. The doctrine's legal basis remains a constitutional conundrum. This Article considers the Court's recent engagement with plenary power in Haaland v. Brackeen (2023). It argues that the Brackeen opinions may signal judicial readiness to reevaluate the doctrine. The Article takes ahold of Justice Gorsuch's critical assessment and runs with it, ultimately proposing a method for cleaning up this destructive and constitutionally dubious line …


A Framework For Managing Disputes Over Intellectual Property Rights In Traditional Knowledge, Stephen R. Munzer Apr 2024

A Framework For Managing Disputes Over Intellectual Property Rights In Traditional Knowledge, Stephen R. Munzer

Michigan Journal of Race and Law

Major controversies in moral and political theory concern the rights, if any, Indigenous peoples should have over their traditional knowledge. Many scholars, including me, have tackled these controversies. This Article addresses a highly important practical issue: Can we come up with a solid framework for resolving disputes over actual or proposed intellectual property rights in traditional knowledge?

Yes, we can. The framework suggested here starts with a preliminary distinction between control rights and income rights. It then moves to four categories that help to understand disputes: nature of the traditional knowledge under dispute; dynamics between named parties to disputes; unnamed …


Abolition Economics, Jessica Wolpaw Reyes, René Reyes Apr 2024

Abolition Economics, Jessica Wolpaw Reyes, René Reyes

Michigan Journal of Race and Law

Over the past several decades, Law & Economics has established itself as one of the most well-known branches of interdisciplinary legal scholarship. The tools of L&E have been applied to a wide range of legal issues and have even been brought to bear on Critical Race Theory in an attempt to address some of CRT’s perceived shortcomings. This Article seeks to reverse this dynamic of influence by applying CRT and related critical perspectives to the field of economics. We call our approach Abolition Economics. By embracing the abolitionist ethos of “dismantle, change, and build,” we seek to break strict …


Reviving Indian Country: Expanding Alaska Native Villages’ Tribal Land Bases Through Fee-To-Trust Acquisitions, Alexis Studler Apr 2024

Reviving Indian Country: Expanding Alaska Native Villages’ Tribal Land Bases Through Fee-To-Trust Acquisitions, Alexis Studler

Michigan Journal of Race and Law

For the last fifty years, the possibility of fee-to-trust acquisitions in Alaska has been precarious at best. This is largely due to the Alaska Native Claims Settlement Act of 1971 (ANCSA), which eschewed the traditional reservation system in favor of corporate land ownership and management. Despite its silence on trust acquisitions, ANCSA was and still is cited as the primary prohibition to trust acquisitions in Alaska. Essentially, ANCSA both reduced Indian Country in Alaska and prohibited any opportunities to create it, leaving Alaska Native Villages without the significant territorial jurisdiction afforded to Lower 48 tribes. However, recent policy changes from …


The Complicit Canon Of Criminal Law: A Critical Survey Of Syllabi, Casebooks, And Supplemental Materials, Robin Peterson Apr 2024

The Complicit Canon Of Criminal Law: A Critical Survey Of Syllabi, Casebooks, And Supplemental Materials, Robin Peterson

University of Michigan Journal of Law Reform

This Note analyzes the learning objectives, casebook readings, and supplemental sources that thirteen criminal law professors assigned over fifteen years and argues that the current approach to teaching criminal law is complicit in perpetuating the injustices of the American criminal legal system because it fails to adequately interrogate the carceral state and does not prepare students to become ethical practitioners or policymakers of criminal law. This paper calls for a fundamental rethinking of the purpose of teaching criminal law and recommends a reform orientation, which could be implemented through a variety of course structures.


Crystalizing Community: “Communities Of Interest” And The 2020 Michigan Independent Citizens Redistricting Commission, Edward Webre Plaut, Elizabeth Powers Apr 2024

Crystalizing Community: “Communities Of Interest” And The 2020 Michigan Independent Citizens Redistricting Commission, Edward Webre Plaut, Elizabeth Powers

University of Michigan Journal of Law Reform

The Michigan Independent Citizens Redistricting Commission (MICRC) met for the first time in 2020 after it was created via ballot initiative in 2018. The MICRC included thirteen Michiganders tasked with drawing state house, senate, and congressional districts. The newly amended Michigan Constitution charged the MICRC with incorporating a new criterion previously unknown to Michigan redistricting: communities of interest. Communities of interest (COIs) have played a role in redistricting law across several states, gaining prominence after the Supreme Court’s landmark decision in Shaw v. Reno as an ostensibly race-neutral “traditional districting principle.” However, the concept is difficult to define. This Note …


Subsidizing The Microchip Race: The Expanding Use Of National Security Arguments In International Trade, Victoria Walker Apr 2024

Subsidizing The Microchip Race: The Expanding Use Of National Security Arguments In International Trade, Victoria Walker

University of Michigan Journal of Law Reform

In 2018, China, India, the European Union, Canada, Mexico, Norway, Russia, Switzerland, and Turkey lodged complaints with the World Trade Organization’s (WTO) Dispute Settlement Body (DSB) in the case of Certain Measures on Steel and Aluminium Products. Each State alleged that the United States had violated international trade law by imposing a series of aggressive tariffs on steel and aluminum imports. President Donald Trump’s administration responded to these allegations by claiming that its actions were permissible under Article XXI of the General Agreement on Tariffs and Trade (GATT); a long-standing exception built into the international trade law framework that …


The "Bounds" Of Moore: Pluralism And State Judicial Review, Leah M. Litman, Katherine Shaw Mar 2024

The "Bounds" Of Moore: Pluralism And State Judicial Review, Leah M. Litman, Katherine Shaw

Articles

In Moore v. Harper, the Supreme Court rejected a maximalist version of the “independent state legislature theory” (ISLT), invoking state judicial practices both before and after the Constitution was ratified. This piece uses Moore’s method to examine another variation on the ISLT, one pushed most recently by Justice Brett Kavanaugh and before him by Chief Justice William Rehnquist. The Rehnquist-Kavanaugh version of the ISLT would empower federal courts to review state officers’ interpretation of state laws regarding federal elections. But the logic of Moore is fatal to that potential version of the ISLT. The Rehnquist-Kavanaugh version of the ISLT contemplates …


The Mismatched Goals Of Bankruptcy And Mass Tort Litigation, Maureen Carroll Mar 2024

The Mismatched Goals Of Bankruptcy And Mass Tort Litigation, Maureen Carroll

Reviews

By the end of this Term, SCOTUS must decide what to do about the mammoth Purdue Pharma bankruptcy settlement. If allowed to go forward, the $10 billion deal will not only resolve claims against the company, it will shield the Sackler family—the company’s former owners—from any further liability for their role in the opioid crisis. The deal has generated a great deal of discussion, much of it focused on the legality and wisdom of that third-party release. The authors of Against Bankruptcy take a broader view, asking a set of critical questions about the proper role of bankruptcy in the …


Federal Indian Law As Method, Matthew L. M. Fletcher Mar 2024

Federal Indian Law As Method, Matthew L. M. Fletcher

Articles

Morton v. Mancari is well-known in Indian law circles as a foundation for the tribal self-determination era, which is generally understood to have begun in the late 1960s and early 1970s. The case involved an Act of Congress that required the federal “Indian Office” (now called the Bureau of Indian Affairs) to grant preference in employment to “Indians.” The case is typically understood as the basis for analyzing how federal statutes that apply exclusively to Indian people do not implicate the anti-discrimination principles of the United States Constitution. This understanding of the case, while correct, is too narrow.


Feedback Loops: Going Negative, Patrick Barry Mar 2024

Feedback Loops: Going Negative, Patrick Barry

Articles

Aelet Fishbach is a professor at the University of Chicago Booth School of Business who has studied how people seek out and process negative feedback. One of the ways she has done this is through a classroom exercise in which she divides the students into two groups: feedback givers and feedback receivers. The givers are told to pair up with a receiver and communicate the following feedback in a one-on-one setting: The person's performance s unsatisfactory; improvement is needed; and there are concrete ways they can get on the right track.


Peripheral Detention, Transfer, And Access To The Courts, Jessica Rofé Mar 2024

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 …


Chevron And Stare Decisis, Kent Barnett, Christopher J. Walker Mar 2024

Chevron And Stare Decisis, Kent Barnett, Christopher J. Walker

Articles

This Term, in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. U.S. Department of Commerce, the Supreme Court will expressly consider whether to overrule Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.—a bedrock precedent in administrative law that a reviewing court must defer to a federal agency’s reasonable interpretation of an ambiguous statute that the agency administers. In our contribution to this Chevron on Trial Symposium, we argue that the Court should decline this invitation because the pull of statutory stare decisis is too strong to overcome.


Designing Sanctuary, Rick Su Mar 2024

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, …


Voting While Trans: How Voter Id Laws Unconstitutionally Compel The Speech Of Trans Voters, Emmy Maluf Mar 2024

Voting While Trans: How Voter Id Laws Unconstitutionally Compel The Speech Of Trans Voters, Emmy Maluf

Michigan Law Review

Thirty-five states currently request or require identification documents for in-person voting, and these requirements uniquely impact transgender voters. Of the more than 697,800 voting-eligible trans people living in states that conduct primarily in-person elections, almost half (43 percent) lack documents that correctly reflect their name or gender. When an ID does not align with a trans voter’s gender presentation, the voter may be disenfranchised—either because a poll worker denies them the right to cast a ballot or because the voter ID requirement chills their participation in the first place. Further, when a trans voter presents an ID that does not …


In Citizenship We Trust? The Citizenship Question Need Not Impede Puerto Rican Decolonization, Jimmy Mcdonough Mar 2024

In Citizenship We Trust? The Citizenship Question Need Not Impede Puerto Rican Decolonization, Jimmy Mcdonough

Michigan Law Review

Puerto Rico is an uncomfortable reminder of the democratic deficits within the world’s oldest constitutional democracy. Puerto Ricans are U.S. citizens who live in a U.S. territory that is subject to the plenary authority of Congress, to which they cannot elect voting members. In 2022, under unified Democratic control for the first time in a decade, Congress considered the Puerto Rico Status Act, legislation that would finally decolonize Puerto Rico. The Status Act offered Puerto Rican voters three alternatives to the colonial status quo—statehood, independence, or sovereignty in free association—and committed Congress to implementing whichever alternative won majority support from …


Calculating The Harms Of Political Use Of Popular Music, Jake Linford, Aaron Perzanowski Feb 2024

Calculating The Harms Of Political Use Of Popular Music, Jake Linford, Aaron Perzanowski

Articles

When Donald Trump descended the escalator of Trump Tower to announce his 2016 presidential bid, Neil Young’s “Rockin’ in the Free World” blared from the loudspeakers. Almost immediately, Young’s management made clear that the campaign’s use of the song was unauthorized. Neil Young was not alone. Trump drew similar objections from dozens of artists during his first two presidential bids. But as a matter of copyright law, it is unclear whether artists can prevent their songs from being played at campaign rallies.


Covid-19 Risk Factors And Boilerplate Disclosure, Stephen J. Choi, Mitu Gulati, Xuan Liu, Adam C. Pritchard Feb 2024

Covid-19 Risk Factors And Boilerplate Disclosure, Stephen J. Choi, Mitu Gulati, Xuan Liu, Adam C. Pritchard

Law & Economics Working Papers

The SEC mandates that public companies assess new information that changes the risks that they face and disclose these if there has been a “material” change. Does that theory work in practice? Or are companies copying and repeating the same generic disclosures? Using the shock of the COVID-19 pandemic, we explore these questions. Overall, we find considerable rote copying of boilerplate disclosures. Further, the factors that correlate with deviations from the boilerplate seem related more to the resources that companies have (large companies change updated disclosures more) and litigation risks (companies vulnerable to shareholder litigation update more) rather than general …


Sidewalk Government, Michael C. Pollack Feb 2024

Sidewalk Government, Michael C. Pollack

Michigan Law Review

This Article is about one of the most used, least studied spaces in the country: the sidewalk.

It is easy to think of sidewalks simply as spaces for pedestrians, and that is exactly how most scholars, policymakers, and laws treat them. But this view is fundamentally mistaken. In big cities and small towns, sidewalks are also where we gather, demonstrate, dine, exercise, rest, and shop. They are host to commerce and infrastructure. They are spaces of public access and sources of private obligation. And in all of these things, sidewalks are sites of underappreciated conflict. The centrality of sidewalks in …


Responding To Alternatives, Daniel T. Deacon Feb 2024

Responding To Alternatives, Daniel T. Deacon

Michigan Law Review

This Article is the first to comprehensively analyze administrative agencies’ obligation to respond to alternatives to their chosen course of action. The obligation has been around at least since the Supreme Court’s decision in Motor Vehicle Manufacturers Ass’n of the United States, Inc. v. State Farm, and it has mattered in important cases. Most recently, the Supreme Court invoked the obligation as the primary ground on which to invalidate the Trump Administration’s rescission of the Deferred Action for Childhood Arrivals (DACA) program. The obligation to respond to alternatives is also frequently invoked in the lower courts and in the …


Retail Investors And Corporate Governance: Evidence From Zero-Commission Trading, Dhruv Aggarwal, Albert H. Choi, Yoon-Ho Alex Lee Feb 2024

Retail Investors And Corporate Governance: Evidence From Zero-Commission Trading, Dhruv Aggarwal, Albert H. Choi, Yoon-Ho Alex Lee

Law & Economics Working Papers

We examine the effects of the sudden abolition of trading commissions by major online brokerages in 2019, which lowered stock market entry costs for retail investors, on corporate governance. Firms already popular with retail investors experienced positive abnormal returns around the abolition of commissions. Firms with positive abnormal returns in response to commission-free trading subsequently saw a decrease in institutional ownership, a decrease in shareholder voting, and a deterioration in environmental, social, and corporate governance (ESG) metrics. Finally, these firms were more likely to adopt bylaw amendments to reduce the percentage of shares needed for a quorum at shareholder meetings. …


What Do Consumers Understand About Predispute Arbitration Agreements? An Empirical Investigation, Roseanna Sommers Feb 2024

What Do Consumers Understand About Predispute Arbitration Agreements? An Empirical Investigation, Roseanna Sommers

Articles

The results of a survey of 1,071 adults in the United States reveal that most consumers do not pay attention to, let alone understand, arbitration clauses in their everyday lives. The vast majority of survey respondents (over 97%) report having opened an account with a company that requires disputes to be submitted to binding arbitration (e.g., Netflix, Hulu, Cash App, a phone or cable company), yet most are unaware that they have, in fact, agreed to mandatory arbitration (also known as “forced arbitration”). Indeed, over 99% of respondents who think they have never entered into an arbitration agreement likely have …


On Behalf Of All Others Similarly Situated: Class Representation & Equitable Compensation, Alexander J. Noronha Feb 2024

On Behalf Of All Others Similarly Situated: Class Representation & Equitable Compensation, Alexander J. Noronha

Michigan Law Review

Class actions require class representation. In class actions, plaintiffs litigate not only on their own behalf but “on behalf of all others similarly situated.” For almost fifty years, federal courts have routinely exercised their inherent equitable authority to award modest compensation to deserving class representatives who help recover common funds benefiting the plaintiff class. These discretionary “incentive awards” are generally intended to compensate class representatives for shouldering certain costs and risks—which are not borne by absent class members—during the pendency of class litigation.

The ubiquity of permitting class action incentive awards ended in 2020. In an extraordinary ruling, the Eleventh …


Destined To Deceive: The Need To Regulate Deepfakes With A Foreseeable Harm Standard, Matthew D. Weiner Feb 2024

Destined To Deceive: The Need To Regulate Deepfakes With A Foreseeable Harm Standard, Matthew D. Weiner

Michigan Law Review

Political campaigns have always attracted significant attention, and politicians have often been the subjects of controversial—even outlandish—discourse. In the last several years, however, the risk of deception has drastically increased due to the rise of “deepfakes.” Now, practically anyone can make audiovisual media that are both highly believable and highly damaging to a candidate. The threat deepfakes pose to our elections has prompted several states and Congress to seek legislative remedies that ensure recourse for victims and hold bad actors liable. These recent attempts at deepfake laws are open to attack from two different loci. First, there is a question …