Law Commons^™

Suspect Spheres, Not Enumerated Powers: A Guide For Leaving The Lamppost, Richard Primus, Roderick M. Hills Jr.

Michigan Law Review

Despite longstanding orthodoxy, the Constitution’s enumeration of congressional powers does virtually nothing to limit federal lawmaking. That’s not because of some bizarrely persistent judicial failure to read the Constitution correctly. It’s because the enumeration of congressional powers is not a well-designed technology for limiting federal legislation. Rather than trying to make the enumeration do work that it will not do, decisionmakers should find better ways of thinking about what lawmaking should be done locally rather than nationally. This Article suggests such a rubric, one that asks not whether Congress has permission to do a certain thing but whether a certain …

Persuasion About/Without International Law: The Case Of Cybersecurity Norms, Steven R. Ratner

Book Chapters

International law on cybersecurity is characterized by at best a thin consensus on the existence of rules, their meaning, and the desirability and content of new rules. This legal landscape results in a unique pattern of argumentation and persuasion by states and non-state actors both in advocating for a regulatory scheme for cyber activity and in reacting to malicious cyber acts. By examining argumentation in the absence of a generally agreed legal framework, this chapter seeks to provide new insights into the motivations for and effects of international legal argumentation in shaping debates and behavior. After describing the legal landscape …

"Do Lawyers Need Economists?" Review Of Economic Transplants: On Lawmaking For Corporations And Capital Markets, Reuven S. Avi-Yonah

Reviews

Katja Langenbucher’s outstanding book seeks to address the question of why and in what ways have lawyers been importing economic theories into a legal environment, and how has this shaped scholarly research, judicial and legislative work? Since the financial crisis, corporate or capital markets law has been the focus of attention by academia and media. Formal modelling has been used to describe how capital markets work and, later, has been criticized for its abstract assumptions. Empirical legal studies and regulatory impact assessments offered different ways forward. This excellent book presents a new approach to the risks and benefits of interdisciplinary …

Soft And Hard Strategies: The Role Of Business In The Crafting Of International Commercial Law, Susan Block-Lieb

Michigan Journal of International Law

What motivates the choice between hard and soft law in the drafting of international commercial law, and what role does business play in the preference between the two? Broad disagreement exists in international law (IL) commentary as to motivations for reliance on soft international law. Traditionally, this commentary cast a wide gaze across both international public and private law, but debate about the use of hard or soft law is sharpened by focusing exclusively on international commercial lawmaking. Traditionally, IL commentary considered only on states' interests in crafting international law and ignored business interests. But recent scholarship has begun to …

Beyond Localism: Harnessing State Adaptation Lawmaking To Facilitate Local Climate Resilience, Sarah J. Adams-Schoen

Michigan Journal of Environmental & Administrative Law

Notwithstanding the need for adaptation lawmaking to address a critical gap between climate-change related risks and preparedness in the United States, no coherent body of law exists that is aimed at reducing vulnerability to climate change. As a result of this gap in the law, market failures, and various “super wicked” attributes of hazard mitigation planning, local communities remain unprepared for present and future climate-related risks. Many U.S. communities continue to employ land-use planning and zoning practices that, at best, fail to mitigate these hazards, and, at worst, increase local vulnerability. Even localities that have implemented otherwise robust adaptation plans …

Wilderness, Luck & Love: A Memoir And A Tribute, Neil Kagan

Michigan Journal of Environmental & Administrative Law

In 1984, Congress preserved 8.2 million acres of roadless federal lands as "wilderness," nearly matching the acreage set aside in the Wilderness Act of 1964. Congress also created the most new wilderness areas ever in a single year, by far. Wilderness Connect, Number of Wilderness Areas Designated by Year, https://wilderness.net/practitioners/wilderness-areas/summary-reports/wilderness-areas-designated-by-year.php.

I brought two lawsuits in 1983 that proved to be the catalyst responsible for breaking the years-long impasse that had previously stymied the protection of these pristine wildlands. The lawsuits also pushed Congress to preserve more wildlands as wilderness than it would have otherwise.

This article describes the lawsuits, …

Restoring Congress's Role In The Modern Administrative State, Christopher J. Walker

Michigan Law Review

A review of Josh Chafetzm Congress's Constitution: Legislative Authority and Separation of Powers.

Targeting The Targeted Killings Case - International Lawmaking In Domestic Contexts, Yahli Shereshevsky

Michigan Journal of International Law

The targeting of non-state armed groups members is perhaps the most debated legal issue in the law of contemporary armed conflicts between states and non-state actors. The 2006 Targeted Killings case of the Israeli Supreme Court (ISC) is a key reference point in this debate. Recently, without much scholarly or public attention, the government of Israel, in its report on the summer 2014 conflict in Gaza (the 2014 Gaza Conflict Report), dramatically diverged from the Targeted Killings case’s definition of legitimate targets in asymmetric conflicts. The Targeted Killings case held a conduct or functional membership-based approach to targeting. This approach …

Gerrymandering And The Constitutional Norm Against Government Partisanship, Michael S. Kang

Michigan Law Review

This Article challenges the basic premise in the law of gerrymandering that partisanship is a constitutional government purpose at all. The central problem, Justice Scalia once explained in Vieth v. Jubilerer, is that partisan gerrymandering becomes unconstitutional only when it “has gone too far,” giving rise to the intractable inquiry into “how much is too much.” But the premise that partisanship is an ordinary and lawful purpose, articulated confidently as settled law and widely understood as such, is largely wrong as constitutional doctrine. The Article surveys constitutional law to demonstrate the vitality of an important, if implicit norm against …

Expressive Law And The Americans With Disabilities Act, Alex C. Geisinger, Michael Ashley Stein

Michigan Law Review

The question of why people follow the law has long been a subject of scholarly consideration. Prevailing accounts of how law changes behavior coalesce around two major themes: legitimacy and deterrence. Advocates of legitimacy argue that law is obeyed when it is created through a legitimate process and its substance comports with community mores. Others emphasize deterrence, particularly those who subscribe to law-and-economics theories. These scholars argue that law makes certain socially undesirable behaviors more costly, and thus individuals are less likely to undertake them.

Customary International Law: An Instrument Choice Perspective, Laurence R. Helfer, Ingrid B. Wuerth

Michigan Journal of International Law

This Article proceeds as follows. Part II begins by considering custom’s design features, which the authors distinguish from the canonical elements of custom (state practice and opinio juris) and the individual doctrines associated with CIL. Specifically, they contend that, as an ideal-type, custom is non-negotiated, unwritten, and universal, three characteristics that distinguish CIL from both treaties and soft law, which are almost always negotiated, written, and rarely universal either in formation or application. These design features help to explain some of custom’s peculiar doctrinal characteristics, and they cut across the doctrinal divide which is said to distinguish “traditional” and …

Delegating Tax, James R. Hines Jr., Kyle D. Logue

Michigan Law Review

Congress delegates extensive and growing lawmaking authority to federal administrative agencies in areas other than taxation, but tightly limits the scope of Internal Revenue Service (IRS) and Treasury regulatory discretion in the tax area, specifically not permitting these agencies to select or adjust tax rates. This Article questions why tax policy does and should differ from other policy areas in this respect, noting some of the potential policy benefits of delegation. Greater delegation of tax lawmaking authority would allow administrative agencies to apply their expertise to fiscal policy and afford timely adjustment to changing economic circumstances. Furthermore, delegation of the …

Unfriendly Unilateralism, Monica Hakimi

Articles

This Article examines a category of conduct that I call “unfriendly unilateralism.” One state deprives another of a benefit (unfriendly) and, in some cases, strays from its own obligations (noncompliant), outside any structured international process (unilateral). Such conduct troubles many international lawyers because it looks more like the nastiness of power politics than like the order and stability of law. Worse, states can abuse the conduct to undercut the law. Nevertheless, international law tolerates unfriendly unilateralism for enforcement. A victim state may use unfriendly unilateralism against a scofflaw in order to restore the legal arrangement that existed before the breach. …

One Redeeming Quality About The 112th Congress: Refocusing On Descriptive Rather Than Evocative Short Titles, Brian Christopher Jones

Michigan Law Review First Impressions

The consensus with regard to the 112th Congress is that it was a massive failure: the Congress passed fewer laws than in previous years, and the contemptuous debates over the debt ceiling and the so-called "fiscal cliff" did not win this Congress many supporters. So what redeeming qualities could have been present in such an irredeemable Congress? I believe that there was at least one: a returning focus on descriptive short titles for laws, rather than a perpetuation of the evocative and tendentious short titles that have been commonplace over the past couple of decades. A recent publication of mine …

Environmental Law At The Crossroads: Looking Back 25, Looking Forward 25, Richard J. Lazarus

Michigan Journal of Environmental & Administrative Law

Twenty-five years used to seem like an exceedingly long time. It certainly did when I was graduating from law school and not yet twentyfive. My perspective on time, however, has (naturally) since evolved, much as environmental law itself and the controversies surrounding it have, too, evolved. The contrast between environmental law twenty-five years ago and environmental law today is remarkable and makes clear that environmental law and lawmaking were changing in fundamental ways a generation ago, but those changes are revealed only now with the aid of hindsight. To be sure, the statutory texts of domestic environmental law are strikingly …

Contextualing Regimes: Institutionalization As A Response To The Limits Of Interpretation And Policy Engineering, Charles F. Sabel, William H. Simon

Michigan Law Review

When legal language and the effects of public intervention are indeterminate, generalist lawmakers (legislatures, courts, top-level administrators) often rely on the normative output of contextualizing regimes-institutions that structure deliberative engagement by stakeholders and articulate the resulting understanding. Examples include the familiar practices of delegation and deference to administrative agencies in public law and to trade associations in private law. We argue that resorting to contextualizing regimes is becoming increasingly common across a broad range of issues and that the structure of emerging regimes is evolving away from the well-studied agency and trade association examples. The newer regimes mix public and …

Deruglatory Riders Redux, Thomas O, Mcgarity

Michigan Journal of Environmental & Administrative Law

Soon after the 2010 elections placed the Republican Party in control of the House of Representatives, the House took up a number of deregulatory bills. Recognizing that deregulatory legislation had little chance of passing the Senate, which remained under the control of the Democratic Party, or of being signed by President Obama, the House leadership reprised a strategy adopted by the Republican leaders during the 104th Congress in the 1990s. The deregulatory provisions were attached as riders to much-needed legislation in an attempt to force the Senate and the President to accept the deregulatory riders to avoid the adverse consequences …

Is A Substantive, Non-Positivist United States Environmental Law Possible?, Dan Tarlock

Michigan Journal of Environmental & Administrative Law

U.S. environmental law is almost exclusively positive and procedural. The foundation is the pollution control and biodiversity conservation statutes enacted primarily between 1969–1980 and judicial decisions interpreting them. This law has created detailed processes for making decisions but has produced few substantive constraints on private and public decisions which impair the environment. Several substantive candidates have been proposed, such as the common law, a constitutional right to a healthy environment, the public trust, and the extension of rights to fauna and flora. However, these candidates have not produced the hoped for substantive law. Many argue that a substantive U.S. environmental …

Legislative Intent And Legislative History In Michigan, Kincaid C. Brown

Law Librarian Scholarship

Determining legislative intent is one of the key roles that the judicial system plays in Michigan, and legislative history can be a useful tool for evaluating the intent of the legislature when enacting a law. However, legislative history resources can be difficult to gather and some resources may not be persuasive in Michigan courts. This article provides a brief description of the Michigan legislative process, the court’s view of using legislative history to determine legislative intent, and a list of Michigan legislative history resources.

Institutional Alliances And Derivative Legitimacy, Claire R. Kelly

Michigan Journal of International Law

Part I of this Article describes global lawmaking and the legitimacy challenge. It provides a typology of IOs that develop norms. It explains that legitimacy is a subjective belief, but it provides objective paradigms for assessing legitimacy claims. It demonstrates how pursuing legitimacy according to one set of criteria can sacrifice legitimacy claims under another. It also examines the competition among IOs, the push for democratic norms, and the resulting need for stronger legitimacy claims. Part II explains linkage and accommodation and gives specific examples of where these phenomena work to garner more legitimacy for specific organizations and the soft …

Not Just Doctrine: The True Motivation For Federal Incorporation And International Human Rights Litigation, Daniel Abebe

Michigan Journal of International Law

This Article challenges the universalist theory of international law upon which federal incorporation of CIL and international human rights litigation rely. It unpacks the international relations (IR) theory paradigms that support the universalist theory, and discusses a competing theory that views state compliance with international law as a function of national self-interest. Working from this perspective, it proposes a framework to evaluate the wisdom of federal incorporation of CIL and the wisdom of international human rights litigation. The framework suggests that federal incorporation of CIL generates sovereignty costs for the United States, and that international human rights litigation complicates the …

The Congressional Caucus For Women's Issues: An Inside Perspective On Lawmaking By And For Women, Julia L. Ernst

Michigan Journal of Gender & Law

This Article is written to inform constituencies who seek to advance the status of women through the federal legislative process- including lawmakers, Congressional staff, women's organizations, and interested individuals of the general public-about the inner workings of the Congressional Caucus for Women's Issues during the 108th Congress, particularly in the second session. Historians and academics studying women and the law may also find this Article useful. Commonly known as the Women's Caucus, this bipartisan group consists of women Representatives who work together to advance women's issues through raising awareness of and taking action on federal legislation and policy particularly affecting …

Global Administrative Law: The View From Basel, Michael S. Barr, Geoffrey P. Miller

Articles

International law-making by sub-national actors and regulatory networks of bureaucrats has come under attack as lacking in accountability and legitimacy. Global administrative law is emerging as an approach to understanding what international organizations and national governments do, or ought to do, to respond to the perceived democracy deficit in international law-making. This article examines the Basel Committee on Banking Supervision, a club of central bankers who meet to develop international banking capital standards and to develop supervisory guidance. The Basel Committee embodies many of the attributes that critics of international law-making lament. A closer examination, however, reveals a structure of …

Legal Durability, Omri Ben-Shahar

Articles

This paper develops a framework to study the effects of the durability of legal allocation decisions, such as trial outcomes, regulatory enactments and property entitlements. For a party favored by the legal allocation, a more durable decision is also more costly to secure, ex-ante. Thus, it is not the greater durability of the allocation that determines whether the “winner” is better-off, but other factors that are affected by the durability attribute, such as the cost of securing a favorable outcome and the ability of contesting parties to affect this cost. The paper develops conditions under which greater durability is irrelevant, …

The Foggy Road For Evaluating Punitive Damages: Lifting The Haze From The Bmw/State Farm Guideposts, Steven L. Chanenson, John Y. Gotanda

University of Michigan Journal of Law Reform

In this Article, Professors Chanenson and Gotanda propose that courts treat comparable maximum criminal or civil legislative fines as a presumptive due process limit on punitive damage awards. The Article reviews the manner in which courts have implemented the three-guidepost framework for constitutional review of punitive awards laid out by the Supreme Court in BMW of North America, Inc. v. Gore and in State Farm Mutual Automobile Insurance Co. v. Campbell. Finding that courts have struggled to articulate a coherent rationale and methodology for review of such awards, the authors propose a greater reliance on the third guidepost of …

Bridging Fragmentation And Unity: International Law As A Universe Of Inter-Connected Islands, Joost Pauwelyn

Michigan Journal of International Law

The fragmentation of the international legal system is not new. The consent-based nature of international law inevitably led to the creation of almost as many treaty regimes, composed of different constellations of states, as there are problems to be dealt with. Traditionally, these different regimes operated in virtual isolation from each other. Most importantly, the Bretton Woods institutions (World Bank, IMF, and GATT, now WTO) focused on the world's economic problems, while the UN institutions tackled the world's political problems. Both the IMF and World Bank articles of agreement, for example, explicitly state that political factors cannot be taken into …

Arbitral Law-Making, Thomas E. Carbonneau

Michigan Journal of International Law

Diversity--of a cultural, economic, religious, and political kind—exists not only among nation-states and in the sources and interpretation of international law, but also among the group of commentators who study the interactions of transborder actors and institutions. For example, sociologists interested in the global community seek to identify emerging entities and activities and to elaborate conceptual models that explain the new differentiations within the traditional pattern. Some of them have a mounting interest in the fashioning of transborder commercial justice by international arbitrators and private arbitral institutions. Who are these new players? How did they acquire their mandate? Further, how …

Where Is The "There" In Health Law? Can It Become A Coherent Field?, Mark A. Hall, Carl E. Schneider

Articles

Gerturde Stein complained of Oakland, "There is no there there." Churchill complained of his pudding that "it has no theme." And everybody complains of health law that it lacks an organizing principle. Health law scholars bemoan the "pathologies" of health law and its contradictory and competing "paradigms'. which form a "chaotic, dysfunctional patchwork." But it should not surprise us that any field which grows by accretion lacks a unifying idea or animating concern. And health law certainly grew by accretion. It began in the 1960s, when the Law-Medicine Center was established, concerned with medical proof in litigation, physicians' malpractice, and …

The Post-Conflict Transitional Administration Of Kosovo And The Lessons-Learned In Efforts To Establish A Judiciary And Rule Of Law, Wendy S. Betts, Scott N. Carlson, Gregory Grisvold

Michigan Journal of International Law

The study of post-conflict Kosovo presents an important opportunity to distill lessons that can provide guidance for future post-conflict, transitional administrations. The lessons-learned from an analysis of any post-conflict setting are many and varied. The goal of this short paper is limited to the identification of key lessons-learned in the effort to reestablish the judiciary and rule of law in post-conflict Kosovo. Even within this limited setting, this paper is not intended to provide exhaustive coverage of the issue. Rather, it is intended to provide the reader with basic information and central themes that are essential to a discussion of …

America, Defender Of Democratic Legitimacy?, James C. Hathaway

Articles

American exceptionalism - a belief that the United States has a unique mission to lead the world, but ought logically to be exempt from the rules it promotes - is at the root of much of the American academy's effort to rationalize the US government's increasing rejection of multilateralism as the cornerstone of modern public international law. Even American scholars who disagree fundamentally on the problems with multilateralism (Kenneth Anderson arguing that it favours anti-democratic intervention by unelected NGOs, Michael Reisman asserting that it privileges elitist state-based lawmaking in the face of more democratic non-state 'lawmaking' processes) can agree on …