Law Commons^™

Policing, Danger Narratives, And Routine Traffic Stops, Jordan Blair Woods

Michigan Law Review

This Article presents findings from the largest and most comprehensive study to date on violence against the police during traffic stops. Every year, police officers conduct tens of millions of traffic stops. Many of these stops are entirely unremarkable—so much so that they may be fairly described as routine. Nonetheless, the narrative that routine traffic stops are fraught with grave and unpredictable danger to the police permeates police training and animates Fourth Amendment doctrine. This Article challenges this dominant danger narrative and its centrality within key institutions that regulate the police.

The presented study is the first to offer an …

Shots Fired: Digging The Uniformed Services Employment And Reemployment Rights Act Out Of The Trenches Of Arbitration, Lisa Limb

Michigan Law Review

The Uniformed Services Employment and Reemployment Rights Act (USERRA) was enacted to protect servicemembers from discrimination by civilian employers and to provide servicemembers with reemployment rights. Recent circuit court decisions, however, have maimed these protections by ruling that mandatory arbitration is permissible under USERRA. This Note argues that such rulings conflict with USERRA’s plain language, statutory structure, and purpose. Ultimately, in light of strong public policy considerations, this Note contends that mandatory arbitration should not be permissible under USERRA and proposes that Congress amend the Act to explicitly prohibit arbitration.

More Than Birds: Developing A New Environmental Jurisprudence Through The Migratory Bird Treaty Act, Patrick G. Maroun

Michigan Law Review

This year marks the centennial of the Migratory Bird Treaty Act, one of the oldest environmental regulatory statutes in the United States. It is illegal to “take” or “kill” any migratory bird covered by the Act. But many of the economic and industrial assumptions that undergirded the Act in 1918 have changed dramatically. Although it is undisputed that hunting protected birds is prohibited, circuit courts split on whether so-called “incidental takings” fall within the scope of the Act. The uncertainty inherent in this disagreement harms public and private interests alike—not to mention migratory birds. Many of the most important environmental …

Digital Market Perfection, Rory Van Loo

Michigan Law Review

Google’s, Apple’s, and other companies’ automated assistants are increasingly serving as personal shoppers. These digital intermediaries will save us time by purchasing grocery items, transferring bank accounts, and subscribing to cable. The literature has only begun to hint at the paradigm shift needed to navigate the legal risks and rewards of this coming era of automated commerce. This Article begins to fill that gap by surveying legal battles related to contract exit, data access, and deception that will determine the extent to which automated assistants are able to help consumers to search and switch, potentially bringing tremendous societal benefits. Whereas …

Home-Field Disadvantage: How The Organization Of Soccer In The United States Affects Athletic And Economic Competitiveness, Carolina I. Velarde

Michigan Law Review

The United States men’s soccer team failed to qualify for the 2018 World Cup. In the aftermath, soccer followers questioned the organizational structure supervised by the United States Soccer Federation. An analysis of the relationships between professional soccer leagues reveals potentially anticompetitive practices that may contribute to the subpar performance of the U.S. Men’s National Team. This Note argues that the United States Soccer Federation is engaged in economically anticompetitive behavior that impedes the development of American soccer. Certain reforms, including an open-league system and player transfer fees at the youth development level, would enhance the economic and athletic competitiveness …

Books, Debate, Specificity, Neal Kumar Katyal

Michigan Law Review

Foreword to Volume 117, Issue 6 of the Michigan Law Review.

An Apology For Lawyers: Socrates And The Ethics Of Persuasion, Sherman J. Clark

Michigan Law Review

Review Plato's "Apology of Socrates" in Six Great Dialogues: Apology, Crito, Phaedo, Phaedrus, Symposium, and The Republic.

Small Crimes, Big Injustices, Stephanos Bibas

Michigan Law Review

Review of Alexandra Natapoff's Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal.

Abortion Talk, Clare Huntington

Michigan Law Review

Review of Carol Sanger's About Abortion: Terminating Pregnancy in Twenty-First-Century America.

Return Of The Campus Speech Wars, Thomas Healy

Michigan Law Review

Review of Erwin Chemerinsky and Howard Gillman's Free Speech on Campus.

Textualism For Realists, Ian Samuel

Michigan Law Review

Review of Richard L. Hasen's The Justice of Contradictions: Antonin Scalia and the Politics of Disruption.

Front Matter, Michigan Law Review

Michigan Law Review

Front matter for Volume 117, Issue 6 of the Michigan Law Review.

Privacy, Property, And Publicity, Mark A. Lemley

Michigan Law Review

Review of Jennifer E. Rothman's The Right of Publicity: Privacy Reimagined for a Public World.

The Outcome Of Influence: Hitler’S American Model And Transnational Legal History, Mary L. Dudziak

Michigan Law Review

Review of James Q. Whitman's Hitler's American Model: The United States and the Making of Nazi Race Law.

How Do We Get Along? International Economic Law And The Nation-State, Gregory Shaffer

Michigan Law Review

Review of Dani Rodrik's Straight Talk on Trade: Ideas for a Sane World Economy.

Failed Protectors: The Indian Trust And Killers Of The Flower Moon, Matthew L.M. Fletcher

Michigan Law Review

Review of David Grann's Killers of the Flower Moon: The Osage Murders and the Birth of the FBI.

Solitude, Leadership, And Lawyers, Amul R. Thapar, Samuel Rudman

Michigan Law Review

Review of Raymond M. Kethledge and Michael S. Erwin's Lead Yourself First: Inspiring Leadership Through Solitude.

Why Markets? Welfare, Autonomy, And The Just Society, Hanoch Dagan

Michigan Law Review

Review of Eric A. Posner's Radical Markets: Uprooting Capitalism and Democracy for a Just Society.

Separate And Unequal: The Law Of "Domestic" And "International" Terrorism, Shirin Sinnar

Michigan Law Review

U.S. law differentiates between two categories of terrorism. “International terrorism” covers threats with a putative international nexus, even when they stem from U.S. citizens or residents acting only within the United States. “Domestic terrorism” applies to political violence thought to be purely domestic in its origin and intended impact. The law permits broader surveillance, wider criminal charges, and more punitive treatment for crimes labeled international terrorism. Law enforcement agencies frequently consider U.S. Muslims “international” threats even when they have scant foreign ties. As a result, they police and punish them more intensely than white nationalists and other “domestic” threats. This …

Qualified Immunity And Constitutional Structure, Katherine Mims Crocker

Michigan Law Review

A range of scholars has subjected qualified immunity to a wave of criticism— and for good reasons. But the Supreme Court continues to apply the doctrine in ever more aggressive ways. By advancing two claims, this Article seeks to make some sense of this conflict and to suggest some thoughts toward a resolution.

First, while the Court has offered and scholars have rejected several rationales for the doctrine, layering in an account grounded in structural constitutional concerns provides a historically richer and analytically thicker understanding of the current qualified-immunity regime. For suits against federal officials, qualified immunity acts as a …

Plaintiff Personal Jurisdiction And Venue Transfer, Scott Dodson

Michigan Law Review

Personal jurisdiction usually focuses on the rights of the defendant. This is because a plaintiff implicitly consents to personal jurisdiction in the court where the plaintiff chooses to file. But what if the defendant seeks to transfer venue to a court in a state in which the plaintiff has no contacts and never consented to personal jurisdiction? Lower courts operate on the assumption that in both ordinary venue-transfer cases under 28 U.S.C. § 1404(a) and multidistrict-litigation cases under § 1407(a), personal-jurisdiction concerns for plaintiffs simply do not apply. I contest that assumption. Neither statute expands the statutory authorization of federal-court …

Carpenter's Legacy: Limiting The Scope Of The Electronic Private Search Doctrine, Sarah A. Mezera

Michigan Law Review

One of the most significant challenges confronting courts and legal scholars in the twenty-first century is the application of Fourth Amendment doctrine to new technology. The circuit split over the application of the private search doctrine to electronic devices exemplifies how courts struggle to apply old doctrines to new circumstances. Some courts take the position that the old doctrine should apply consistently in the new context. Other courts have changed the scope of the old doctrine in order to account for the change in circumstances. The Supreme Court took the latter position in Carpenter v. United States and held that …

Putting Accessible Expression To Bed, Jamila A. Odeh

Michigan Law Review

In 2011, the Occupy movement began. Occupiers seized space in dozens of public parks and in the American imagination, providing a compelling illustration of an inclusive format of political expression. In the courtroom, protesters sought injunctive relief on First Amendment grounds to protect the tent encampments where Occupiers slept. In 2017, the last of the Occupy litigation ended; but the ramifications the Occupy cases hold for the First Amendment and expressive conduct remain unexamined.

This Comment takes an in-depth look at the adjudication of Occupiers’ First Amendment interest in sleeping in public parks. It analyzes the adjudication of the Occupy …

Understanding State Agency Independence, Miriam Seifter

Michigan Law Review

Conflicts about the independence of executive branch officials are brewing across the states. Governors vie with separately elected executive officials for policy control; attorneys general and governors spar over who speaks for the state in litigation, and legislatures seek to alter governors’ influence over independent state commissions. These disputes over intrastate authority have weighty policy implications both within states and beyond them, on topics from election administration and energy markets to healthcare and welfare. The disputes also reveal a blind spot. At the federal level, scholars have long analyzed the meaning and effects of agency independence—a dialogue that has deepened …

Article Ii And Antidiscrimination Norms, Aziz Z. Huq

Michigan Law Review

The Supreme Court’s opinion in Trump v. Hawaii validated a prohibition on entry to the United States from several Muslim-majority countries and at the same time repudiated a longstanding precedent associated with the Japanese American internment of World War II. This Article closely analyzes the relationship of these twin rulings. It uses their dichotomous valences as a lens on the legal scope for discriminatory action by the federal executive. Parsing the various ways in which the internment of the 1940s and the 2017 exclusion order can be reconciled, the Article identifies a tension between the Court’s two holdings in Trump …

Promises Unfulfilled: How Investment Arbitration Tribunals Mishandle Corruption Claims And Undermine International Development, Andrew T. Bulovsky

Michigan Law Review

In recent years, the investment-arbitration and anti-corruption regimes have been in tension. Investment tribunals have jurisdiction to arbitrate disputes between investors and host states under international treaties that provide substantive protections for private investments. But these tribunals will typically decline to exercise jurisdiction over a dispute if the host state asserts that corruption tainted the investment. When tribunals close their doors to ag-grieved investors, tribunals increase the risks for investors and thus raise the cost of international investment. At the same time, the decision to decline jurisdiction creates a perverse incentive for host states to turn a blind eye to …

Making Rule 23 Ideal: Using A Multifactor Test To Evaluate The Admissibility Of Evidence At Class Certification, Cianan M. Lesley

Michigan Law Review

Circuit courts are split on whether and to what extent the Daubert standard should apply at class certification. Potential plaintiffs believe that application of Daubert would make it nearly impossible to obtain class certification. For potential defendants, the application of the standard is an important way to ensure that the certification process is fair. This Note examines the incentives underlying the push to apply the Daubert standard at class certification and the benefits and drawbacks associated with that proposal. It proposes a solution that balances the concerns of both plaintiffs and defendants by focusing on three factors: the obstacles to …

Improving Employer Accountability In A World Of Private Dispute Resolution, Hope Brinn

Michigan Law Review

Private litigation is the primary enforcement mechanism for employment discrimination laws like Title VII, the Americans with Disabilities Act, and many related state statutes. But the expansion of extrajudicial dispute resolution—including both arbitration and prelitigation settlement agreements—has compromised this means of enforcement. This Note argues that state-enacted qui tam laws can revitalize the enforcement capacity of private litigation and provides a roadmap for enacting such legislation.

Treading On Sacred Land: First Amendment Implications Of Ice's Targeting Of Churches, Gabriella M. D'Agostini

Michigan Law Review

In the last few years, Immigration and Customs Enforcement (ICE) has begun to target religious institutions—specifically churches—as a means to find and arrest undocumented immigrants. This technique is in legal tension with the First Amendment rights of free exercise of religion and free association. It is unclear, however, how these legal rights protect those most affected by this targeting tactic: undocumented immigrants. Undocumented immigrants may lack standing to challenge ICE’s tactics on their own and may require the help of related parties to protect their interests.

This Note explores a potential solution to the ambiguity surrounding undocumented immigrants’ protection under …

The Procedure Fetish, Nicholas Bagley

Michigan Law Review

The strict procedural rules that characterize modern administrative law are said to be necessary to sustain the fragile legitimacy of a powerful and constitutionally suspect administrative state. We are likewise told that they are essential to public accountability because they prevent factional interests from capturing agencies. Yet the legitimacy-and-accountability narrative at the heart of administrative law is both overdrawn and harmful. Procedural rules have a role to play in preserving legitimacy and discouraging capture, but they advance those goals more obliquely than is commonly assumed and may exacerbate the very problems they aim to fix. This Article aims to draw …