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Articles 1 - 30 of 1055
Full-Text Articles in Law
A Revisionist History Of Products Liability, Alexandra D. Lahav
A Revisionist History Of Products Liability, Alexandra D. Lahav
Michigan Law Review
Increasingly courts, including the Supreme Court, rely on ossified versions of the common law to decide cases. This Article demonstrates the risks of this use of the common law. The main contribution of the Article is to demonstrate that the traditional narrative about early products law—that manufacturers were not liable for injuries caused by their products because the doctrine of privity granted producers immunity from suit by the ultimate consumers of their goods—is incorrect. Instead, the doctrinal rule was negligence liability for producers of injurious goods across the United States in the nineteenth century. Courts routinely ignored or rejected privity …
The Historical Origins And Current Prospects Of The Multilateral Tax Convention, Reuven S. Avi-Yonah, Eran Lempert
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 …
Telegraph Torts: The Lost Lineage Of The Public Service Corporation, Evelyn Atkinson
Telegraph Torts: The Lost Lineage Of The Public Service Corporation, Evelyn Atkinson
Michigan Law Review
At the turn of the twentieth century, state courts were roiled by claims against telegraph corporations for mental anguish resulting from the failure to deliver telegrams involving the death or injury of a family member. Although these “telegraph cases” at first may seem a bizarre outlier, they in fact reveal an important and understudied moment of transformation in the nature of the relationship between the corporation and the public: the role of affective relations in the development of the category of the public utility corporation. Even as powerful corporations were recast as private, rights-bearing, profit-making market actors in constitutional law, …
Inventing Deportation Arrests, Lindsay Nash
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 …
The Short Unhappy Life Of The Negotiation Class, Linda S. Mullenix
The Short Unhappy Life Of The Negotiation Class, Linda S. Mullenix
University of Michigan Journal of Law Reform
On September 11, 2019, Judge Dan Aaron Polster of the United States District Court for the Northern District of Ohio, Eastern Division, approved a novel negotiation class certification in the massive Opiate multidistrict litigation (MDL). Merely one year later on September 24, 2020, the Sixth Circuit reversed Judge Polster’s certification order. While the Opiate MDL has garnered substantial media and academic attention, less consideration has been directed to analyzing the significance of the negotiation class model and the appellate repudiation of this innovative procedural mechanism.
This Article focuses on the development and fate of the negotiation class and considers the …
Capograssi, Imperdonabile, Andrew J. Cecchinato
Capograssi, Imperdonabile, Andrew J. Cecchinato
Fellow, Adjunct, Lecturer, and Research Scholar Works
When reviewing the history of early twentieth century thought, it is not uncommon to read reflections concerning the crisis of contemporary states. Less frequent – but not unheard of – is coming across meditations regarding the very end of the state. Among the latter, those of Giuseppe Capograssi (1889-1956) stand out like a lightning flash, for the eschatological meaning they flare upon the relationship between statehood and the law. «All true research on the state is a profound meditation on its ending», he writes concluding the introduction of his first book in 1918. Like a seal yet to be broken, …
What Would Surrey Say? The Long Reach Of Stanley S. Surrey, Reuven S. Avi-Yonah, Nir Fishbien
What Would Surrey Say? The Long Reach Of Stanley S. Surrey, Reuven S. Avi-Yonah, Nir Fishbien
Law & Economics Working Papers
This essay examines the extent of Surrey’s influence on developments in tax law after his death. It argues that his ideas clearly impacted the tax reform of 1986, but can even be seen in later enactments like the Tax Cuts and Jobs Act of 2017 and contemporary developments in international taxation. This in turn enables us to get a clearer perspective on what Surrey aimed to achieve and what the goals of these later developments are.
Framing The Framer: A Commentary On Treanor’S Gouverneur Morris As “Dishonest Scrivener”, David S. Schwartz
Framing The Framer: A Commentary On Treanor’S Gouverneur Morris As “Dishonest Scrivener”, David S. Schwartz
Michigan Law Review Online
Dean William Treanor’s masterful article, The Case of the Dishonest Scrivener: Gouverneur Morris and the Creation of the Federalist Constitution, makes a major contribution to scholarship on the founding, one that will have a profound impact on how we read and understand the Constitution. Treanor’s keen analyses and his presentation of important-but-overlooked historical details support the article’s central and historically significant arguments. Treanor’s research is at the forefront of emerging scholarship seeking to recover “the Federalist Constitution,” a body of constitutional interpretations favored by those Framers who advocated a strong national government. These nationalist interpretations were subsequently emphasized by …
Policing Queer Sexuality, Ari Ezra Waldman
Policing Queer Sexuality, Ari Ezra Waldman
Michigan Law Review
A Review of Vice Patrol: Cops, Courts, and the Struggle over Urban Gay Life Before Stonewall. By Anna Lvovsky.
Beyond “Big Government”: Toward New Legal Histories Of The New Deal Order’S End, Gabriel L. Levine
Beyond “Big Government”: Toward New Legal Histories Of The New Deal Order’S End, Gabriel L. Levine
Michigan Law Review
A Review of Public Citizens: The Attack on Big Government and the Remaking of American Liberalism. By Paul Sabin.
The Gloss Of War: Revisiting The Korean War’S Legacy, Mary L. Dudziak
The Gloss Of War: Revisiting The Korean War’S Legacy, Mary L. Dudziak
Michigan Law Review
In war powers analysis, reliance on the interpretive method of historical practice, also called the “gloss of history,” has made history a technology of the forever war. This approach draws upon the history of U.S. military conflict to interpret the scope of presidential war power and embeds past actions into the separation of powers. There is a crucial flaw in this methodology, however. The understanding of history in historical gloss is not informed by the changing historiography of war. This has led to a divergence between the “history” in legal authority and the revised historical understanding in scholarly works of …
The Not-So-Standard Model: Reconsidering Agency-Head Review Of Administrative Adjudication Decisions, Rebecca S. Eisenberg, Nina A. Mendelson
The Not-So-Standard Model: Reconsidering Agency-Head Review Of Administrative Adjudication Decisions, Rebecca S. Eisenberg, Nina A. Mendelson
Articles
The Supreme Court has invalidated multiple legislative design choices for independent agency structures in recent years, citing Article II and the need for political accountability through presidential control of agencies. In United States v. Arthrex, Inc., the Court turned to administrative adjudication, finding an Appointments Clause violation in the assignment of certain final patent adjudication decisions to appellate panels of unconfirmed administrative patent judges. As a remedy, a different majority declared unenforceable a statutory provision that had insulated Patent and Trademark Office (PTO) administrative adjudication decisions from political review for almost a century. The Court thereby enabled the politically appointed …
Akhil Amar’S Unusable Past, Gregory Ablavsky
Akhil Amar’S Unusable Past, Gregory Ablavsky
Michigan Law Review
A Review of The Words That Made Us: America’s Constitutional Conversation, 1760–1840. By Akhil Reed Amar.
An Appeal To Books, Amir H. Ali
An Appeal To Books, Amir H. Ali
Michigan Law Review
This feels a fit, even urgent, moment to celebrate our books and the role they play vis-à-vis the law, the courts, and the truth.
As this issue goes to print, our nation’s highest court faces forceful criticism that some of its most significant decisions have been detached from objective fact. In recent Terms, the Supreme Court’s majority has doubled down on deciding major constitutional questions based on “history and tradition”—that is, the majority’s understanding of what the nation was like centuries ago. Just as quickly as these justices praised the objectivity of their fealty to history, they met widespread rebuke …
Africana Legal Studies: A New Theoretical Approach To Law & Protocol, Angi Porter
Africana Legal Studies: A New Theoretical Approach To Law & Protocol, Angi Porter
Michigan Journal of Race and Law
“African people have produced the same general types of institutions for understanding and ordering their worlds as every other group of human beings. Though this should be obvious, the fact that we must go to great lengths to recognize and then demonstrate it speaks to the potent and invisible effect of the enslavement and colonization of African people over the last 500 years.” – Greg Carr
Delegation At The Founding: A Response To Critics, Julian Davis Mortenson, Nicholas Bagley
Delegation At The Founding: A Response To Critics, Julian Davis Mortenson, Nicholas Bagley
Articles
This essay responds to the wide range of commentary on Delegation at the Founding, published previously in the Columbia Law Review. The critics’ arguments deserve thoughtful consideration and a careful response. We’re happy to supply both. As a matter of eighteenth-century legal and political theory, “rulemaking” could not be neatly described as either legislative or executive based on analysis of its scope, subject, or substantive effect. To the contrary: Depending on the relationships you chose to emphasize, a given act could properly be classified as both legislative (from the perspective of the immediate actor) and also executive (from the perspective …
From Four Horsemen To The Rule Of Six: The Deconstruction Of Judicial Deference, Keith W. Rizzardi
From Four Horsemen To The Rule Of Six: The Deconstruction Of Judicial Deference, Keith W. Rizzardi
Michigan Journal of Environmental & Administrative Law
In its tumultuous 2022 term, the Supreme Court rebalanced the separation of powers, again. A tradition of self-restraint has evolved through case law and statutes when the judiciary reviews the actions of the other branches of government. The judiciary often accepts congressional judgments as to whether laws are necessary and proper and defers to executive agency interpretations of those congressional acts. The historical notion of judicial deference, however, earned criticism due to concerns about the potential unchecked decision-making power of unelected executive agency bureaucrats. The emerging alternative system might be worse.
History offers parallels. During the New Deal, a core …
Remarks, Andrea Dennis
Remarks, Andrea Dennis
University of Michigan Journal of Law Reform
Over the course of one week, the Michigan Journal of Law Reform presented its annual Symposium, this year titled Reimagining Police Surveillance: Protecting Activism and Ending Technologies of Oppression. During this week, the Journal explored complicated questions surrounding the expansion of police surveillance technologies, including how police and federal agencies utilize their extensive resources to identify and surveil public protest, the ways in which technology employed by police is often flawed and disparately impacts people of color, and potential reforms of police surveillance technology. Before delving into these complicated questions, I presented remarks on the history of police surveillance …
Enduring Exclusion, Daiquiri J. Steele
Enduring Exclusion, Daiquiri J. Steele
Michigan Law Review
Economic justice has long been a part of the civil rights agenda, and minimum labor standards statutes play a crucial role in eradicating the exploitation and subordination of historically marginalized workers. While statutes establishing labor standards are characterized as “universal,” their effect has been anything but universal. Racial and ethnic minorities, women, and those at the intersection experience disproportionate violations of labor standards laws concerning minimum wage, overtime, and occupational safety and health. Through legislative maneuvering dating back to the New Deal era, Congress carved out many female workers and workers of color from core protections of minimum labor standards …
The Public Trust And The Chicago Lakefront: Review Of Kearney & Merrill’S Lakefront: Public Trust And Private Rights In Chicago (Cornell U. Press, 2021), Michael C. Blumm
The Public Trust And The Chicago Lakefront: Review Of Kearney & Merrill’S Lakefront: Public Trust And Private Rights In Chicago (Cornell U. Press, 2021), Michael C. Blumm
Michigan Journal of Environmental & Administrative Law
Joseph Kearney and Thomas Merrill’s brilliantly illustrated LAKEFRONT is sure to win American legal history awards for its riveting history of the machinations behind the preservation of the magnificent Chicago lakefront, now dominated by public spaces. The authors weave together a compelling account of how the law affected the development of the post-fire Chicago in the late 19th and 20th centuries—largely made by lawyers and courts and only ratified by legislatures. The book’s title suggests that the story is largely about the public trust doctrine (PTD). But the doctrine is hardly the centerpiece of the authors’ story. What they have …
Black Women & Women's Suffrage: Understanding The Perception Of The Nineteenth Amendment Through The Pages Of The Chicago Defender, Tamar Anna Alexanian
Black Women & Women's Suffrage: Understanding The Perception Of The Nineteenth Amendment Through The Pages Of The Chicago Defender, Tamar Anna Alexanian
Michigan Journal of Gender & Law
Susan B. Anthony once famously stated, “I will cut off this right arm of mine before I will ever work for or demand the ballot for the Negro and not the woman.” The racism of many early suffragettes has been well documented and discussed; Black suffragettes and other suffragettes of color were, at best, relegated to the margins of the movement and, at worst, scorned and turned away by white suffragettes. Moreover, part of white suffragettes’ strategy for passage of the Nineteenth Amendment was based on racist appeals to white men; white suffragettes claimed that passage of the Nineteenth Amendment …
Unreasonable Risk: The Failure To Ban Asbestos And The Future Of Toxic Substances Regulation, Rachel Rothschild
Unreasonable Risk: The Failure To Ban Asbestos And The Future Of Toxic Substances Regulation, Rachel Rothschild
Law & Economics Working Papers
Every day, Americans are exposed to hundreds of chemicals in the air we breathe, the water we drink, and the products we use. The vast majority of these chemicals have never been tested for safety. Many have been shown to cause serious health harms, ranging from cancer to autoimmune illness to IQ loss. They also have disproportionate effects on some of the most vulnerable populations in our society, such as children, minorities, and industrial workers.
The law that is supposed to protect Americans from dangerous chemical exposures – the Toxic Substances Control Act (TSCA) – was long considered a dead …
The Imaginary Immigration Clause, Nikolas Bowie, Norah Rast
The Imaginary Immigration Clause, Nikolas Bowie, Norah Rast
Michigan Law Review
The political convulsions of the past decade have fueled acute interest in constitutional For the past century, the Supreme Court has skeptically scrutinized Congress’s power to enact healthcare laws and other domestic legislation, insisting that nothing in the Constitution gives Congress a general power to “regulate an individual from cradle to grave.” Yet when Congress regulates immigrants, the Court has contradictorily assumed that Congress has “broad, undoubted power” to do whatever it thinks necessary—even though no clause of the Constitution gives Congress any specific immigration power. The Court has explained this discrepancy with reference to the Chinese Exclusion Case, …
Air Pollution As Public Nuisance: Comparing Modern-Day Greenhouse Gas Abatement With Nineteenth-Century Smoke Abatement, Kate Markey
Michigan Law Review
Public nuisance allows plaintiffs to sue actors in tort for causing environmental harm that disrupts the public’s use and enjoyment of the land. In recent years, state and local governments have filed public nuisance actions against oil companies, hoping to hold them responsible for the harm of climate change. Since no plaintiff has prevailed on the merits so far, whether these lawsuits are worth bringing, given the other legal avenues available, remains an open question. This Comment situates these actions in their appropriate historical context to show that these lawsuits are neither unprecedented nor futile. In particular, it examines the …
Of Rights And Regulation, Stephen W. Sawyer, William J. Novak
Of Rights And Regulation, Stephen W. Sawyer, William J. Novak
Book Chapters
This chapter explores the development of social provisioning as a matter not of right but of democratic administration in France and the United States in the nineteenth century. The authors take issue with conventional chronologies of rights development, which see civil and political rights being developed in the eighteenth and nineteenth centuries, with social rights appearing in the twentieth. Such categories and sequencing obscure the ways in which democratic administrations took the problem of social provisioning seriously. A history of socio-economic rights cannot be distinguished from the less formal technologies of socio-economic regulation that were an integral part of the …
Edward S. Rogers, The Lanham Act, And The Common Law, Jessica Litman
Edward S. Rogers, The Lanham Act, And The Common Law, Jessica Litman
Book Chapters
This book chapter is a deep dive into the story of Edward Sidney Rogers's authorship of the legislation that became the Lanham Act. Because Rogers believed that Congress lacked the power to alter the substantive law of trademark and unfair competition, he crafted draft legislation that focused on registration and other procedural details rather than substantive rights and defenses. He sought to advance two incompatible goals: he hoped to preserve the robust common law of unfair competition while requiring, or at least encouraging, all trademark owners to register their marks. Both the supporters and the opponents of the bills that …
Willard Hurst, Technological Changes, And The Transformation Of American Public Law, William J. Novak
Willard Hurst, Technological Changes, And The Transformation Of American Public Law, William J. Novak
Articles
As Sociobiologist E.O. Wilson once famously framed the “problem of humanity”: “We have paleolithic emotions; medieval institutions; and god-like technology.” America’s greatest philosopher John Dewey similarly placed this yawning gap between rapidly expanding technological change and slowly evolving human emotions and institutions at the heart of what he called The Public and Its Problems. Indeed, Dewey traced the origins of the modern American state as well as what he termed “the Great Society” to the new and modern technologies in production and commerce and steam and electricity that “resulted in a social revolution.” Without warning, Dewey argued, traditional local communities …
Chapter Eight - Technology And The Law: The Automobile (By James Willard Hurst), Bj Ard, William J. Novak
Chapter Eight - Technology And The Law: The Automobile (By James Willard Hurst), Bj Ard, William J. Novak
Articles
In this chapter we are going to talk about some of the automobile effects that it has had. Upon the law, and some of the effects that the law has had upon the automobile. We could undoubtedly open up some worthwhile lines of thought, if we talked about the automobile in relation to, certain brooder problems of which it is a part: for example, the effects of the internal combustion the growth engine, or of all types of communication. But we shall have enough on our hands if we stick to the automobile, and even so in the limits of …
On Time, (In)Equality, And Death, Fred O. Smith Jr.
On Time, (In)Equality, And Death, Fred O. Smith Jr.
Michigan Law Review
In recent years, American institutions have inadvertently encountered the bodies of former slaves with increasing frequency. Pledges of respect are common features of these discoveries, accompanied by cultural debates about what “respect” means. Often embedded in these debates is an intuition that there is something special about respecting the dead bodies, burial sites, and images of victims of mass, systemic horrors. This Article employs legal doctrine, philosophical insights, and American history to both interrogate and anchor this intuition.
Law can inform these debates because we regularly turn to legal settings to resolve disputes about the dead. Yet the passage of …
The Case Of The Dishonest Scrivener: Gouverneur Morris And The Creation Of The Federalist Constitution, William Michael Treanor
The Case Of The Dishonest Scrivener: Gouverneur Morris And The Creation Of The Federalist Constitution, William Michael Treanor
Michigan Law Review
At the end of the Constitutional Convention, the delegates appointed the Committee of Style and Arrangement to bring together the textual provisions that the Convention had previously agreed to and to prepare a final constitution. Pennsylvania delegate Gouverneur Morris drafted the document for the Committee, and, with few revisions and little debate, the Convention adopted Morris’s draft. For more than two hundred years, questions have been raised as to whether Morris covertly altered the text in order to advance his constitutional vision, but modern legal scholars and historians studying the Convention have either ignored the issue or concluded that Morris …