Law Commons^™

Race And Wrongful Convictions In The United States, Samuel R. Gross, Maurice Possley, Klara Stephens

Other Publications

African Americans are only 13% of the American population but a majority of innocent defendants wrongfully convicted of crimes and later exonerated. They constitute 47% of the 1,900 exonerations listed in the National Registry of Exonerations (as of October 2016), and the great majority of more than 1,800 additional innocent defendants who were framed and convicted of crimes in 15 large-scale police scandals and later cleared in “group exonerations.” We see this racial disparity for all major crime categories, but we examine it in this report in the context of the three types of crime that produce the largest numbers …

Risk And Resilience In Health Data Infrastructure, Nicholson Price

Law & Economics Working Papers

Today’s health system runs on data. However, for a system that generates and requires so much data, the health care system is surprisingly bad at maintaining, connecting, and using those data. In the easy cases of coordinated care and stationary patients, the system works — sometimes. But when care is fragmented, fragmented data often result.

Fragmented data create risks both to individual patients and to the system. For patients, fragmentation creates risks in care based on incomplete or incorrect information, and may also lead to privacy risks from a patched-together system. For the system, data fragmentation hinders efforts to improve …

A Modest Memo, Yxta Maya Murray

Michigan Journal of Race and Law

A Modest Memo is a satire in the form of a legal memo written for President-Elect Donald Trump circa November 2016. It counsels Mr. Trump to obtain Mexican funding for a United States-Mexico “Wall” via United Nations Security Council sanctions. These sanctions would freeze remittances (that is, “hold them hostage”) until Mexican President Enrique Peña Nieto wired the United States sufficient monies for construction. The memo, which is entirely the product of my imagination and legal study, contemplates one of the many possible worst case scenarios threatened by the Trump presidency. Through the arts of law and literature, I aim …

The Limits Of Performance-Based Regulation, Cary Coglianese

University of Michigan Journal of Law Reform

Performance-based regulation is widely heralded as a superior approach to regulation. Rather than specifying the actions regulated entities must take, performance-based regulation instead requires the attainment of outcomes and gives flexibility in how to meet them. Despite nearly universal acclaim for performance-based regulation, the reasons supporting its use remain largely theoretical and conjectural. Owing in part to a lack of a clear conceptual taxonomy, researchers have yet to produce much empirical research documenting the strengths and weaknesses of performance-based regulation. In this Article, I provide a much-needed conceptual framework for understanding and assessing performance-based regulation. After defining performance-based regulation and …

Short Fall Arguments In Court: A Probabilistic Analysis, Maria Cuellar

University of Michigan Journal of Law Reform

A discussion about how statistical arguments are used in court, specifically in cases of Abusive Head Trauma in which the defendant has claimed that an accidental short fall, and not shaking or child abuse, has caused the child’s injuries.

Bias, Subjectivity, And Wrongful Conviction, Katherine Judson

University of Michigan Journal of Law Reform

A talk about bias, subjectivity and wrongful convictions.

Reforming Sec Alj Proceedings, Joanna Howard

University of Michigan Journal of Law Reform

This Note considers the current constitutional challenges to SEC administrative proceedings and suggests process reforms to enhance fairness for respondents. Challenges have developed since the Dodd-Frank Act expanded the SEC’s ability to use administrative proceedings. Arguments that there is a pre-existing flaw in the method of appointing administrative law judges provide the most potential for success. The Tenth Circuit’s December 2016 decision against the SEC in Bandimere has created a split, diverging from the D.C. Circuit’s analysis of that question in Lucia. Resolution by the Supreme Court may be inevitable. Even if the challengers do ultimately succeed, this will …

Show Me The Money: Determining A Celebrity’S Fair Market Value In A Right Of Publicity Action, Cody Reaves

University of Michigan Journal of Law Reform

As the power of celebrity continues to grow in the age of social media, so too does the price of using a celebrity’s name and likeness to promote a product. With the newfound ease of using Twitter, Facebook, and even print media to use a celebrity’s identity in conjunction with a product or company, right of publicity concerns arise. When a company uses a celebrity’s name and likeness without the celebrity’s authorization to market or sell a product, companies open themselves up to right of publicity suits. Many of these cases settle out of court. But when these cases do …

Evidence Of Child Abuse: Inferring The Causes Of Effects, Stephen E. Fienberg

University of Michigan Journal of Law Reform

A statistician's take on evidence of child abuse.

Rethinking Criminal Contempt In The Bankruptcy Courts, John A. E. Pottow, Jason S. Levin

Law & Economics Working Papers

A surprising number of courts believe that bankruptcy judges lack authority to impose criminal contempt sanctions. We attempt to rectify this misunderstanding with a march through the historical treatment of contempt-like powers in bankruptcy, the painful statutory history of the 1978 Bankruptcy Code (including the exciting history of likely repealed 28 U.S.C. § 1481), and the various apposite rules of procedure. (Fans of the All Writs Act will delight in its inclusion.) But the principal service we offer to the bankruptcy community is dismantling the ubiquitous and persistent belief that there is some form of constitutional infirmity with "mere" bankruptcy …

Executive Disorder: The Muslim Ban, Emergency Advocacy, And The Fires Next Time, Abed Ayoub, Khaled Beydoun

Michigan Journal of Race and Law

On January 27, 2017, one week into his presidency, Donald Trump enacted Executive Order No. 13769, popularly known as the “Muslim Ban.” The Order named seven Muslim-majority nations and restricted, effective immediately, the reentry into the United States of visa and green card holders from these states. With the Muslim Ban, President Trump delivered on a central campaign promise, and as a result, injected Islamophobia into American immigration law and policy.

The Muslim Ban had an immediate impact on tens of thousands of Muslims, directly affecting U.S. visa and green card holders currently outside of the country, while exacerbating fear …

“Why Should I Go Vote Without Understanding What I Am Going To Vote For?” The Impact Of First Generation Voting Barriers On Alaska Natives, James Thomas Tucker, Natalie A. Landreth, Erin Dougherty Lynch

Michigan Journal of Race and Law

This article explores the many forms of discrimination that have persisted in Alaska, the resulting first generation voting barriers faced by Alaska Native voters, and the two contested lawsuits it took to attain a measure of equality for those voters in four regions of Alaska: Nick v. Bethel and Toyukak v. Treadwell. In the end, the court’s decision in Toyukak came down to a comparison of just two pieces of evidence: (1) the Official Election Pamphlet that English-speaking voters received that was often more than 100 pages long; and (2) the single sheet of paper that Alaska Native language …

Concealed Motives: Rethinking Fourteenth Amendment And Voting Rights Challenges To Felon Disenfranchisement, Lauren Latterell Powell

Michigan Journal of Race and Law

Felon disenfranchisement provisions are justified by many Americans under the principle that voting is a privilege to be enjoyed only by upstanding citizens. The provisions are intimately tied, however, to the country’s legacy of racism and systemic disenfranchisement and are at odds with the values of American democracy. In virtually every state, felon disenfranchisement provisions affect the poor and communities of color on a grossly disproportionate scale. Yet to date, most challenges to the provisions under the Equal Protection Clause and Voting Rights Act have been unsuccessful, frustrating proponents of re-enfranchisement and the disenfranchised alike.

In light of those failures, …

The Case For State Attorney General Enforcement Of The Voting Rights Act Against Local Governments, Perry Grossman

University of Michigan Journal of Law Reform

The summer of 2016 showed that racial discrimination in voting is alive and well, as federal courts across the country struck down state statutes that disproportionately disenfranchise minority voters, including voter ID laws, restrictions on early voting, and racially gerrymandered legislative districts. However, at the local level, discriminatory practices in the nation’s approximately 89,000 political subdivisions have gone largely uninvestigated and challenged. Recent conflicts between communities of color and law enforcement have highlighted the failure of local governments in places like Ferguson, Missouri to adequately represent the interests of minority voters. These failures of representation, which occur in progressive states …

Police Interrogations, False Confessions, And Alleged Child Abuse Cases, Richard Leo

University of Michigan Journal of Law Reform

A discussion on false confession cases in the United States.

Child Abuse--Nonaccidental Injury (Nai) And Abusive Head Trauma (Aht)--Medical Imaging: Issues And Controversies In The Era Of Evidence-Based Medicine, Patrick Barnes

University of Michigan Journal of Law Reform

A look at nonaccidental injury and abusive head trauma in children with a focus on Shaken Baby Syndrome.

Bail Nullification, Jocelyn Simonson

Michigan Law Review

This Article explores the possibility of community nullification beyond the jury by analyzing the growing and unstudied phenomenon of community bail funds, which post bail for strangers based on broader beliefs regarding the overuse of pretrial detention. When a community bail fund posts bail, it can serve the function of nullifying a judge’s determination that a certain amount of the defendant’s personal or family money was necessary to ensure public safety and prevent flight. This growing practice—what this Article calls “bail nullification”—is powerful because it exposes publicly what many within the system already know to be true: that although bail …

Retaliatory Rico And The Puzzle Of Fraudulent Claiming, Nora Freeman Engstrom

Michigan Law Review

Over the past century, the allegation that the tort liability system incentivizes legal extortion and is chock-full of fraudulent claims has dominated public discussion and prompted lawmakers to ever-more-creatively curtail individuals’ incentives and opportunities to seek redress. Unsatisfied with these conventional efforts, in recent years, at least a dozen corporate defendants have “discovered” a new fraud-fighting tool. They’ve started filing retaliatory RICO suits against plaintiffs and their lawyers and experts, alleging that the initiation of certain non meritorious litigation constitutes racketeering activity— while tort reform advocates have applauded these efforts and exhorted more “courageous” companies to follow suit. Curiously, though, …

The Resilience Of Noxious Doctrine: The 2016 Election, The Marketplace Of Ideas, And The Obstinacy Of Bias, Leonard M. Niehoff, Deeva Shah

Michigan Journal of Race and Law

The Supreme Court has recognized the central role that free expression plays in our democratic enterprise. In his dissenting opinion in United States v. Abrams, Justice Holmes offered a theory of how free expression advances our search for truth and our cultivation of an informed electorate. That model—often called the “marketplace of ideas,” based upon the metaphor used by Holmes—has proven to be one of the most persistent and influential concepts in First Amendment jurisprudence.

The marketplace of ideas model essentially holds that free expression serves our democratic goals by allowing differing proposed truths and versions of the facts …

Legacy In Paradise: Analyzing The Obama Administration’S Efforts Of Reconciliation With Native Hawaiians, Troy J.H. Andrade

Michigan Journal of Race and Law

This Article analyzes President Barack Obama’s legacy for an indigenous people—nearly 125 years in the making—and how that legacy is now in considerable jeopardy with the election of Donald J. Trump. This Article is the first to specifically critique the hallmark of Obama’s reconciliatory legacy for Native Hawaiians: an administrative rule that establishes a process in which the United States would reestablish a government-to-government relationship with Native Hawaiians, the only indigenous people in America without a path toward federal recognition. In the Article, Obama’s rule—an attempt to provide Native Hawaiians with recognition and greater control over their own affairs to …

Random If Not "Rare"? The Eighth Amendment Weaknesses Of Post-Miller Legislation, Kimberly Thomas

Articles

First, this Article surveys the U.S. Supreme Court's decision to analogize life without parole for juveniles to the death penalty for adults, and discusses the Eighth Amendment law regarding the parameters around death penalty statutory schemes. Second, this Article examines the state legislative response to Miller, and scrutinizes it with the Court's Eighth Amendment death penalty law-and the states' responses to this case law-in mind. This Article highlights the failure of juvenile homicide sentencing provisions to: 1) narrow offenses that are eligible for life without parole sentences; 2) further limit, once a guilty finding is made, the categories of …

The Gibbons Fallacy, Richard A. Primus

Articles

In Gibbons v. Ogden, Chief Justice John Marshall famously wrote that "the enumeration presupposes something not enumerated." Modern courts use that phrase to mean that the Constitutions enumeration of congressional powers indicates that those powers are, as a whole, less than a grant of general legislative authority. But Marshall wasn't saying that. He wasn't talking about the Constitution's overall enumeration of congressional powers at all. He was writing about a different enumeration - the enumeration of three classes of commerce within the Commerce Clause. And Marshall's analysis of the Commerce Clause in Gibbons does not imply that the enumerated …

Toward A Theory Of Motion Practice And Settlement: Comment, Adam C. Pritchard

Articles

"Scott Baker (2017) has provided a thought-provoking contribution to this symposium volume, helping us to better understand the strategic game of litigation. In terms of both resources and actual disputes resolved, pretrial practice is vastly more important than actual trials. Trials are a rarity in the American civil justice system, as the overwhelming majority of disputes are resolved via settlement. Indeed, rational-choice scholars have struggled to explain why all disputes are not resolved via settlement, as settlement avoids the expense of a trial, which is a dead-weight loss to both sides of the dispute. The parties’ mutual incentive toward settlement …

Speaking Law: Towards A Nuanced Analysis Of 'Cases', Susanne Baer

Articles

“The headscarf case” is more than just a case. Talking law is often talking cases, but we need to understand law more specifically as a powerful practice of regulation. Law is also not only another discourse, or just text, or politics, with fundamental rights as “an issue,” or a promise, or just an idea. Instead, to protect fundamental rights, it is necessary to understand how in reacting to a conflict, we in fact speak rights today—Rechtsprechung—as a form of practice. The German Federal Constitutional Court’s decision in the conflict about female teachers wearing headscarves in German public schools may be …

The Downside Of Requiring Additional Experiential Courses In Law School, Douglas A. Kahn

Articles

In recent years, the bar has expressed dissatisfaction with what is considered by some to be inadequate preparation of law students to begin practicing law immediately after graduation. There are several reasons why this has become a matter of concern for the legal profession. The profession itself has undergone significant changes. Although there are a few exceptions, most law firms no longer wish to spend time training their young associates or allowing them much time to develop the skills they need. First, clients are unwilling to pay for the time a young lawyer spends in acquiring needed skills. Second, the …

The Return Of Protectionism To Japan And The United States, Hisashi Harata

Event Materials

PowerPoint presentation which accompanied a discussion with Hisashi Harata, Associate Professor at the University of Tokyo.

The Return Of Protectionism To Japan And The United States: The Manchurian Example, Hisashi Hirata

Event Materials

Event handout from a discussion with Hisashi Harata, Associate Professor at the University of Tokyo.

The Deformation Of Contract In The Information Society, Margaret Jane Radin

Law & Economics Working Papers

The HLA Hart Memorial Lecture delivered at Oxford on May 24, 2016. The Lecture considers how the advent and growth of the information society is posing challenges for the traditional theories of contract, and for the duties of the State with regard to contractual ordering. In particular, the Lecture considers the lack of ‘fit’ between certain prevalent uses of contract and the underlying justification for contract enforcement.

Precedent And Speech, Randy J. Kozel

Michigan Law Review

The U.S. Supreme Court has shown a notable willingness to reconsider its First Amendment precedents. In recent years, the Court has departed from its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has changed its positions on corporate electioneering and aggregate campaign contributions. In short, it has revised the ground rules of expressive freedom in ways large and small. The Court generally describes its past decisions as enjoying a presumption of validity through the doctrine of stare decisis. This Article contends that within the context …

Complexity's Shadow: American Indian Property, Sovereignty, And The Future, Jessica A. Shoemaker

Michigan Law Review

This Article offers a new perspective on the challenges of the modern American Indian land tenure system. While some property theorists have renewed focus on isolated aspects of Indian land tenure, including the historic inequities of colonial takings of Indian lands, this Article argues that the complexity of today’s federally imposed reservation property system does much of the same colonizing work that historic Indian land policies—from allotment to removal to termination—did overtly. But now, these inequities are largely overshadowed by the daunting complexity of the whole land tenure structure. This Article introduces a new taxonomy of complexity in American Indian …