Law Commons^™

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 …

Shareholder Engagement In The United States, Vikramaditya S. Khanna

Book Chapters

Shareholder voting and engagement in the US have undergone substantial changes over the last 50 years. They have moved from being relatively sleepy issues to those that trigger insomnia in even the most hardened executives. The changes in the ownership structure of US publicly traded firms are probably the most important reason for the shift, but so too are rule changes that have facilitated greater shareholder activism. This chapter explores these developments while describing the rules of the road for shareholder voting in the US by focusing on Delaware jurisprudence and changes in US federal securities regulations. It also examines …

International Law Rules On Treaty Interpretation, Steven R. Ratner

Book Chapters

International law is central to the interpretation of both of the Brexit-related treaties. The TCA explicitly requires the parties and any dispute settlement body to interpret it according to the rules of interpretation of public international law, notably the 1969 Vienna Convention on the Law of Treaties (VCLT). The WA, and thus the Protocol, by specifying that any of its provisions concerning Union law or concepts must be interpreted in accordance with EU law (including the case law of the CJEU), implies that its many provisions not concerning EU law will need to be interpreted by the default rules of …

Driving Diverse Representation Of Diverse Classes, Alissa Del Riego

University of Michigan Journal of Law Reform

Why have federal courts overwhelmingly appointed white men to represent diverse consumer classes? Rule 23(g) of the Federal Rules of Civil Procedure requires courts to appoint the attorneys “best able to represent the interests of class members” to serve as class counsel. But courts’ recurrent conclusion that white men best fit the federally mandated job description not only gives the appearance of discrimination, but harms class members that suffer from outcomes plagued by groupthink and cognitive biases. This Article sets out to uncover why white male repeat players continue to dominate class counsel appointments and proposes a practical and immediately …

Part I - Ai And Data As Medical Devices, W. Nicholson Price Ii

Other Publications

It may seem counterintuitive to open a book on medical devices with chapters on software and data, but these are the frontiers of new medical device regulation and law. Physical devices are still crucial to medicine, but they – and medical practice as a whole – are embedded in and permeated by networks of software and caches of data. Those software systems are often mindbogglingly complex and largely inscrutable, involving artificial intelligence and machine learning. Ensuring that such software works effectively and safely remains a substantial challenge for regulators and policymakers. Each of the three chapters in this part examines …

Preface, Margaret C. Hannon, Ruth Anne Robbins

Other Publications

The overarching theme of Volume 19 of Legal Communication & Rhetoric: JALWD is how legal communication shapes the law, and how doers of legal writing can use their resources to make it better. The volume begins with a fascinating article from Aaron Kirschenfeld and Alexa Chew, “Citation Stickiness, Computer-Assisted Legal Research, and the Universe of Thinkable Thoughts.” In their article, Professors Kirschenfeld and Chew shed light on whether the switch from print research to digital research has changed the way that law students and lawyers conduct research. To do so, the article uses the “citation stickiness” metric, which analyzes whether …

Willard Hurst's Unpublished Manuscript On Law, Technology, And Regulation, Bj Ard, William J. Novak

Other Publications

It is with a great deal of excitement ( and with thanks to so many contributing colleagues and collaborators over the years ) that we are able to present to the public for the first time a newly published work by one of the great originators of modem legal history and law and society scholarship-James Willard Hurst. Hurst published his last two books, Law and Markets in United States History and Dealing with Statutes, in 1982. And, fittingly, he published his last substantive article--.-a very short comment on "The Use of Case Histories"-in the Wisconsin Law Review in 1992. In …

Report Of The International Commission Of Human Rights Experts On Ethiopia, Kaari Betty Murungi, Steven Ratner, Radhika Comaraswamy

Other Publications

In the present report, submitted pursuant to Human Rights Council resolution S-33/1, the international Commission of Human Rights Experts on Ethiopia presents its initial findings. The Commission concludes that there are reasonable grounds to believe that violations such as extrajudicial killings, rape, sexual violence and starvation of the civilian population as a method of warfare have been committed in Ethiopia since 3 November 2020. The Commission finds reasonable grounds to believe that, in several instances, these violations amounted to war crimes and crimes against humanity. The Commission provides an assessment of transitional justice developments and makes urgent recommendations.

2022 Data Updates Accompanying Andrea Fenster & Margo Schlanger, Slamming The Courthouse Door: 25 Years Of Evidence For Repealing The Prison Litigation Reform Act, Prison Policy Initiative, Margo Schlanger, German Marquez Alcala

Other Publications

This entry is for underlying data, excel versions, and replication code for tables included in Fenster, Andrea and Margo Schlanger. "Slamming the Courthouse Door: 25 years of evidence for repealing the Prison Litigation Reform Act." Prison Policy Initiative (2021) found at https://repository.law.umich.edu/other/173/

This 2022 data update is supplemented by 2022 BJS Court Orders files and supercedes the 2021 data update found in this repository./

2022 Data Update For Slamming The Courthouse Door Table F: Incidence Of Court Orders, Margo Schlanger, German Marquez Alcala

Other Publications

This dataset encompasses Table F: Incidence of Court Orders, Local Jails and State Prisons, 1983-2006, 2019 and the underlying data, excel versions, and replication code for this table.

This data accompanies:

Fenster, Andrea and Margo Schlanger. "Slamming the Courthouse Door: 25 years of evidence for repealing the Prison Litigation Reform Act." Prison Policy Initiative (2021). https://repository.law.umich.edu/other/173/

Along with the 2022 Data Update Files, this file supersedes the 2021 Data update found in this repository.

To Participate And Elect: Section 2 Of The Voting Rights Act At 40, Ellen D. Katz, Brian Remlinger, Andrew Dziedzic, Brooke Simone, Jordan Schuler

Other Publications

This paper provides an overview of cases decided under Section 2 of the Voting Rights Act between September 1, 1982 and December 31, 2021. It updates our 2006 study documenting Section 2 litigation through 2005. Of note is the substantial decline in the number of Section 2 cases decided and diminished success for the plaintiffs who bring them. While recent litigation (including Brnovich and Merrill v. Milligan) suggests that Section 2 is likely to occupy, at best, a diminished role in future electoral disputes, this paper shows that Section 2’s reach had already declined significantly prior to recent disputes. …

White Paper: Effective Communication With Deaf, Hard Of Hearing, Blind, And Low Vision Incarcerated People, Tessa Bialek, Margo Schlanger

Other Publications

Tens of thousands of people incarcerated in jails and prisons throughout the United States have one or more communication disabilities, a term that describes persons who are deaf, hard of hearing, blind, low vision, deaf-blind, speech disabled, or otherwise disabled in ways that affect communication. Incarceration is not easy for anyone, but the isolation and inflexibility of incarceration can be especially challenging, dangerous, and further disabling, for persons with disabilities. Correctional entities must confront these challenges; persons with communication disabilities are overrepresented in jails and prisons and the population continues to grow. Federal antidiscrimination law obligates jails and prisons to …

Testimony Before The Commission On Native Children, Matthew L.M. Fletcher

Other Publications

This letter and powerpoint were prepared at the request of the Alyce Spotted Bear and Walter Soboleff Commission on Native Children in advance of a hearing on jurisdictional issues related to the Indian Child Welfare Act. I make several recommendations:

The Commission should recommend that Congress amend ICWA to provide for effective enforcement mechanisms. Those amendments could include (1) the establishment of express rights to bring interlocutory appellate court actions at more key points in state court child welfare matters, (2) the availability of attorney fees awards for Indian parents and Indian tribes in the event that a state or …

Mich. Ruling Widens Sentencing Protections For Young Adults, Kimberly A. Thomas

Other Publications

On July 28, the Michigan Supreme Court held that the mandatory imposition of a life-without-parole sentence on an 18-year-old violated the state constitution.

This decision expands the protections provided for young defendants by the U.S. Supreme Court in Miller v. Alabama and builds on a nascent trend that provides additional constitutional and statutory protections for young people over 17 years old who are charged with serious offenses.

Dissertation Submitted To Satisfy The Requirements Of The S.J.D. Program, Itay Peer

SJD Dissertations

This dissertation consists of the following articles:

• The Need to Modernize the Personal Services Income Source Rule
• To Be or Not To Be an American - The Million Dollar Question
• The Need for an International Tax Reform - Taxation of US Headquartered Multinationals

Appointing Arbitrators: Tenure, Public Confidence, And A Middle Road For Isds Reform, Thomas D. Grant, F. Scott Kieff

Michigan Journal of International Law

Many governments now join academics and activists in questioning whether ad hoc tribunals, which comprise private individuals holding no tenured role on a court, ought to be entrusted with deciding cases, where the resultant awards sometimes impose significant financial burdens on the respondent State, constrain the State’s regulatory choices, and affect the interests of third parties. Investor-State dispute settlement (ISDS), during the great expansion of its practice over the past quarter century, has relied on party-appointed arbitrators to constitute the ad hoc tribunals that hear and decide cases that investors bring. Moved by a turn of public sentiment in recent …

Listening To Dissonance At The Intersections Of International Human Rights Law, C. Cora True-Frost

Michigan Journal of International Law

Within the United Nations (UN) human rights system, there are ten human rights treaties, each with its own treaty body or “Committee” that claims to offer the most authoritative interpretation of its corresponding treaty. Rather than resolving contests for primacy, this arrangement often generates conflicting interpretations of certain human rights.

This Article is the first to shed light on conflicts between treaty bodies’ interpretations within the UN human rights system and to confront the question of how to resolve such conflicts at the intersections of international human rights law. The Article analyzes three case studies of such conflicts: 1) clashing …

Rejecting Customary Regression: Unilateral Humanitarian Intervention & The Evolution Of Customary International Law, Elisabeth J. Brennen

Michigan Journal of International Law

Humanitarian intervention is perhaps one of the most important topics in international affairs. It raises questions of morality and militarism, becoming a platform for sharp debate in international law. This note discusses both the moral and legal questions presented by unilateral humanitarian intervention (“UHI”). It argues that UHI is antithetical to the progression of customary international law due to customary international law’s evolutive nature and the ongoing importance of decolonization. UHI is not only normatively undesirable, but the particular normative criticisms of the doctrine – that it is regressively imperialist and neo-colonial – render it fundamentally incompatible with customary international …

The Messy History Of Michigan’S “Purity Clause”, Joshua Perry

Michigan Law Review Online

So it’s worth asking: What does the Purity Clause actually mean? Can contemporary courts properly invoke it to justify restrictions purportedly aimed at controlling “voter fraud”? Should they?

Part I diagnoses the problem: Recently, Michigan courts have invoked the Purity Clause to legitimize voting rights restrictions without applying their usual tools of constitutional interpretation or scrutinizing the Clause’s complex history. As a result, voting restrictions have been justified by reference to a badly underexamined constitutional provision.

Part II examines the Clause with the tools that Michigan courts use to interpret the state constitution. This Part argues that neither the original …

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 …

Evaporating Into Thin Air: The Prosecution Of Air Pollution Crimes During The Trump Administration, Joshua Ozymy, Melissa Jarrell Ozymy

Michigan Journal of Environmental & Administrative Law

Antagonistic to environmental regulation, the Trump Administration sought to significantly roll back federal clean air law enforcement. Yet, we know very little about the impact of the Administration on air pollution criminal enforcement. Through content analysis of all EPA criminal investigations leading to prosecution, we analyze patterns in charging and sentencing and draw out the broader themes in air pollution prosecutions during this period. Our results show a sizable drop in prosecutions compared to the Obama Administration. Although prosecutors managed to pursue serious crimes involving significant harm and criminal conduct and secure over $2.9 billion in monetary penalties, roughly 160 …

Un-Repeal: Reviving The Arms Control Impact Statements, David A. Koplow

Michigan Journal of Environmental & Administrative Law

From the late 1970s into the early 1990s, U.S. federal law mandated the executive branch to prepare annual analytical documents known as Arms Control Impact Statements (ACIS). These instruments – obviously patterned after the Environmental Impact Statements (EIS), which had been inaugurated only a few years previously – were intended to prod the national security community to undertake more rigorous, multi-dimensional study of major weapons programs, and to provide Congress and the American public with enhanced, timely information about key arms procurement decisions.

However, unlike the EIS process – which rapidly became institutionalized, and which has proliferated to multiple tiers …

Removing The State Opt-Out For Demand Response, Ben Carroll

Michigan Journal of Environmental & Administrative Law

In 1935, Congress enacted the Federal Power Act. The Act split jurisdiction over electricity generation and distribution between the Federal and state governments. The Act delegated to the Federal government jurisdiction over interstate wholesales and interstate transmission. The Act gave state governments jurisdiction over intrastate wholesales, intrastate transmission, generation, local distribution, and retail sales. Big, vertically-integrated monopoly utilities dominated the market before and for 60 years after the passage of the Act. However, over time, changes in technology and policy in the wholesale market eroded the dominance of those vertically-integrated monopoly utilities and complicated this jurisdictional bright line.

In 2011, …

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 …

Significant Impacts Under Nepa: The Social Cost Of Greenhouse Gases As A Tool To Mitigate Climate Change, Sydney Hofferth

Michigan Journal of Environmental & Administrative Law

The increased severity of the impacts of climate change demand a re-evaluation of the legal tools that could combat it. The National Environmental Policy Act (“NEPA”) was passed to force government agencies to account for the environmental impacts of their actions. However, as it exists today, NEPA fails to require agencies to consider how their actions will mitigate or exacerbate climate change. This Note argues that agencies should be required to consider the social cost of the greenhouse gases associated with potential major actions at various stages of NEPA analysis. This change would result in increased transparency and public engagement …

Plant Closings And Reductions In Force, Margaret Hannon

Book Chapters

This chapter examines the effect of federal discrimination laws on permanent layoffs caused by plant closings and reductions in force (RIFs) and discusses the federal Worker Adjustment and Retraining Notification Act (WARN Act), Pub.L. No. 100-379, 102 Stat. 890 (1988), and the Illinois Worker Adjustment and Retraining Notification Act (Illinois WARN Act), 820 ILCS 65/1, et seq. This chapter examines cases in which RIFs have been challenged as violating an employee’s rights under federal age discrimination law, the legal standards applied by the courts in reviewing such challenges, and some particular problems that have arisen in the context of company …

Gendered Normativities: The Role And Rule Of Law, Susanne Baer

Book Chapters

In the 21st century, human rights are as present as they are endangered. Specifically, sex/gender equality rights are contested, or actively abridged, which is to be understood as an attack on women and on people who do not fit a ‘normal’ pattern of gender relations. Yet in addition, these are attacks on democratic constitutionalism itself. The article argues that to properly understand the recent contestations of human rights, one must distinguish between critique and attack, and revisit the very form and content of human rights, to deal with law’s ambivalence, such as ‘legal colonialism’, and also take into account critical …

Susan Reynolds, John G. H. Hudson, David L. D'Avray

Book Chapters

Susan Reynolds was elected to the British Academy after she had worked out a new framework for the medieval history of England, France, Germany and northern Italy. The breakthrough book was her Kingdoms and Communities in Western Europe 900–1300 (1984); it brought all levels of society together in a synthesis, and was a stunning achievement. Her subsequent Fiefs and Vassals (Oxford, 1994) left a generation reluctant even to use the word ‘feudalism’, and other important contributions continued until not long before she died. In 2001 she was honoured with a Festschrift entitled Law, Laity and Solidarities.

Is The Shipwreck I Found In Lake Michigan Mine? Great Lakes Shipwreck Legal Research Basics And Sources, Kincaid C. Brown

Law Librarian Scholarship

There have been approximately 6,000 shipwrecks claiming an estimated 30,000 lives in the Great Lakes and new shipwrecks continue to be located, such as the recently discovered Atlanta. There are many opportunities for divers, boaters, and other users of the Great Lakes to come across found and new shipwrecks. This article discusses the basic framework of federal, state, and other law governing these shipwrecks.

The “License As Tax” Fallacy, Jonathan M. Barnett

Michigan Technology Law Review

Intellectual property licenses are commonly portrayed as a “tax” that limits access to technology assets, which in turn stunts innovation by intermediate users and inflates prices for end-users. Renewed skepticism toward IP licensing, and associated judicial and regulatory interventions that apply per se-like liability rules under patent and antitrust law to IP licensing, overlook the fact that IP licenses typically play a “positive-sum” enabling function, rather than a “zero-sum” exclusionary function, by mitigating expropriation risks that would otherwise frustrate transactions between the holders of complementary specialized IP and non-IP assets. As illustrated by paradigm examples of licensing and other IP-dependent …