Law Commons^™

Medical Marijuana, Taxation, And Internal Revenue Code Section 280e, Douglas A. Kahn, Howard J. Bromberg

Articles

Congress enacted § 280E of the Internal Revenue Code in 1982 to punish businesses engaged in illegal drug trafficking, including marijuana. Section 280E denies all credits and deductions, including ordinary business expenses, from gross income of businesses illegally trafficking in a Schedule I or II controlled substance. This provision violates the principle that the tax code should foster a consistent treatment of income, regardless of source; and that the income tax is ill-used for punitive measures. Now that marijuana has been legalized in some form in at least 46 states for therapeutic purposes, this federal tax penalty transgresses principles of …

Sharp Lines And Sliding Scales In Tax Law, Edward Fox, Jacob Goldin

Articles

The law is full of sharp lines, where small changes in one’s circumstances lead to significant changes in legal treatment. In many cases, a sharp line can be smoothed out by replacing it with a sliding scale. Under a sliding scale, small changes in one’s circumstances lead to small changes in legal treatment. In this paper, we study the policy choice between sharp lines and sliding scales in tax law. We focus on considerations relating to efficiency, complexity, administration, tax planning, and the objectives of specific provisions. Although sharp lines are currently widespread in tax law, we argue that sliding …

May The State Punish What It May Not Prevent?, Gabriel S. Mendlow

Articles

In Why Is It Wrong To Punish Thought? I defended an overlooked principle of criminalization that I called the Enforceability Constraint. The Enforceability Constraint holds that the state may punish transgressions of a given type only if the state in principle may forcibly disrupt such transgressions on the ground that they are criminal wrongs. As I argued in the essay, the reason why the state is forbidden from punishing thought is that the state is forbidden from forcibly disrupting a person’s mental states on the ground that they are criminally wrongful (as opposed to, say, on the ground that they …

International Megan's Law As Compelled Speech, Alexandra R. Genord

Michigan Law Review

“The bearer was convicted of a sex offense against a minor, and is a covered sex offender pursuant to 22 United States Code Section 212b(c)(l).” International Megan’s Law (IML), passed in 2016, prohibits the State Department from issuing passports to individuals convicted of a sex offense against a minor unless those passports are branded with this phrase. The federal government's decision to brand its citizens’ passports with this stigmatizing message is novel and jarring, but the sole federal district court to consider a constitutional challenge to the passport identifier dismissed the plaintiffs’ First Amendment claim, deeming the provision government speech. …

Making Sense Of Customary International Law, Monica Hakimi

Michigan Law Review

This Article addresses a longstanding puzzle about customary international law (CIL): How can it be, at once, so central to the practice of international law—routinely invoked and applied in a broad range of settings—and the source of such persistent confusion and derision? The centrality of CIL suggests that, for the many people who use it, it is not only comprehensible but worthwhile. They presumably use it for a reason. But then, what accounts for all the muddle and disdain?

The Article argues that the problem lies less in the everyday operation of CIL than in the conceptual baggage that is …

Civil Rights Ecosystems, Joanna C. Schwartz

Michigan Law Review

The Philadelphia and Houston Police Departments are similarly sized, but over a recent two-year period, ten times more civil rights suits were filed against Philadelphia and its officers than were filed against Houston and its officers. Plaintiffs in cases brought against Philadelphia and its officers were awarded one hundred times more in settlements and judgments. What accounts for these differences? Although the frequency and severity of misconduct and injury may play some role, I contend that the volume and outcome of civil rights litigation against any given jurisdiction should be understood as a product of what I call its civil …

Accommodating Absence: Medical Leave As An Ada Reasonable Accommodation, Sean P. Mulloy

Michigan Law Review

The Americans with Disabilities Act (ADA) is widely regarded as one of the most significant pieces of civil rights legislation in American history. Among its requirements, Title I of the ADA prohibits employers from discriminating against people with disabilities and requires that employers make reasonable accommodations for qualified individuals. Many questions about the scope of the reasonable-accommodation mandate remain, however, as federal circuit courts disagree over whether extended medical leave may be considered a reasonable accommodation and whether an employee on leave is a qualified individual. This Note argues that courts should presume finite unpaid medical leaves of absence are …

Commonsense Consent, Roseanna Sommers

Articles

Consent is a bedrock principle in democratic society and a primary means through which our law expresses its commitment to individual liberty. While there seems to be broad consensus that consent is important, little is known about what people think consent is. This Article undertakes an empirical investigation of people’s ordinary intuitions about when consent has been granted. Using techniques from moral psychology and experimental philosophy, it advances the core claim that most laypeople think consent is compatible with fraud, contradicting prevailing normative theories of consent. This empirical phenomenon is observed across over two dozen scenariosspanning numerous contexts in which …

Who Gets The Ventilator? Disability Discrimination In Covid-19 Medical-Rationing Protocols, Samuel Bagenstos

Articles

The coronavirus pandemic has forced us to reckon with the possibility of having to ration life-saving medical treatments. In response, many health systems have employed protocols that explicitly de-prioritize people for these treatments based on pre-existing disabilities. This Essay argues that such protocols violate the Americans with Disabilities Act, the Rehabilitation Act, and the Affordable Care Act. Such explicit discrimination on its face violates these statutes. Nor can medical providers simply define disabled patients as being “unqualified” because of disabilities that do not affect the ability to ameliorate the condition for which treatment is sought. A proper interpretation of the …

Taxes In The Time Of Coronavirus: Is It Time To Revive The Excess Profits Tax?, Reuven S. Avi-Yonah

Law & Economics Working Papers

A recent NY Times headline summarizes one of the biggest economic impacts of the current pandemic: “Big Tech Could Emerge From Coronavirus Crisis Stronger Than Ever.” At a time when most American citizens and businesses suffer catastrophic economic damage from the Coronavirus Recession, some corporations such as Amazon, 3M, Gilead, and Zoom see their profits rise dramatically because of the pandemic. Given that most corporations are losing money but some are now earning excess profits due to the crisis, it is time to revive the wartime excess profits taxes that the US deployed in WW1 and WW2 to prevent the …

California V. Texas: Brief For Jonathan H. Adler, Nicholas Bagley, Abbe R. Gluck, And Ilya Somin As Amici Curiae Supporting Petitioner, Nicholas Bagley

Appellate Briefs

Amici are experts in constitutional law, legislation, statutory interpretation, and administrative law. They disagree on many legal and policy questions concerning the Affordable Care Act (“ACA”), Pub. L. No. 111-148, 124 Stat. 119 (2010), including many questions about how to interpret it and whether the plaintiff States have standing in the present case. Yet they agree on this: even assuming the insurance mandate is unconstitutional, it is severable from the other provisions of the ACA. Any contrary conclusion would be inconsistent with settled law and Congress’s clearly expressed intent. Amici respectfully submit this amicus brief to explain this point.<\p>

Amici’s …

Importing Prescription Drugs From Canada — Legal And Practical Problems With The Trump Administration's Proposal, Rachel E. Sachs, Nicholas Bagley

Articles

As Americans report ever-growing difficulty affording their prescription drugs, President Donald Trump has come under increasing pressure to act. To date, the Trump administration has attempted to advance a number of policy initiatives by means of executive action, but it has not yet adopted a program that would meaningfully assist patients. Most recently, the administration proposed a rule that, if finalized, would allow states to develop programs to import lower-priced prescription drugs from Canada, with the intent of reducing spending on drugs by U.S. patients and states and increasing access for patients.

Revisiting Immutability: Competing Frameworks For Adjudicating Asylum Claims Based On Membership In A Particular Social Group, Talia Shiff

University of Michigan Journal of Law Reform

The Immigration and Nationality Act (INA) defines a refugee as any person who has a “well-founded fear of persecution on account of race, religion, nationality, membership of a particular social group or political opinion.” An emerging issue in U.S. asylum law is how to define the category “membership of a particular social group.” This question has become ever-more pressing in light of the fact that the majority of migrants seeking asylum at the U.S.-Mexico border are claiming persecution on account of their “membership in a particular social group.” The INA does not define the meaning of “particular social group” and …

Calculating Compensation Sums For Private Law Wrongs: Underlying Imprecisions, Necessary Questions, And Toward A Plausible Account Of Damages For Lost Years Of Life, Michael Pressman

University of Michigan Journal of Law Reform

The ubiquitous corrective-justice goals of “making a party whole” or “returning a party to the position she was in” are typically understood in monetary terms, and in this context, it is fairly clear what these terms mean. If, as this Article argues, these corrective-justice goals should instead be understood in terms of something that has intrinsic value, such as happiness, various imprecisions come to the fore. This Article identifies and explores these imprecisions and, in so doing, articulates a novel framework that can be used for understanding and systematizing our approach to private law remedies. This is the Article’s first …

The Coronavirus And The Risks To The Elderly In Long-Term Care, William Gardner, David States, Nicholas Bagley

Articles

The elderly in long-term care (LTC) and their caregiving staff are at elevated risk from COVID-19. Outbreaks in LTC facilities can threaten the health care system. COVID-19 suppression should focus on testing and infection control at LTC facilities. Policies should also be developed to ensure that LTC facilities remain adequately staffed and that infection control protocols are closely followed. Family will not be able to visit LTC facilities, increasing isolation and vulnerability to abuse and neglect. To protect residents and staff, supervision of LTC facilities should remain a priority during the pandemic.

From Inactivity To Full Enforcement: The Implementation Of The "Do No Harm" Approach In Initial Coin Offerings, Marco Dell'erba

Michigan Technology Law Review

This Article analyzes the way the Securities and Exchange Commission (“SEC”) has enforced securities laws with regard to Initial Coin Offerings (“ICOs”). In a speech held in 2016, the U.S. Commodities Futures Trading Commission (“CFTC”) Chairman Christopher Giancarlo emphasized the similarities between the advent of the blockchain technology and the Internet era. He offered the “do no harm” approach as the best way to regulate blockchain technology. The Clinton administration implemented the “do no harm” approach at the beginning of the Internet Era in the 1990s when regulators sought to support technological innovations without stifling them with burdensome rules.

This …

Healthy Data Protection, Lothar Determann

Michigan Technology Law Review

Modern medicine is evolving at a tremendous speed. On a daily basis, we learn about new treatments, drugs, medical devices, and diagnoses. Both established technology companies and start-ups focus on health-related products and services in competition with traditional healthcare businesses. Telemedicine and electronic health records have the potential to improve the effectiveness of treatments significantly. Progress in the medical field depends above all on data, specifically health information. Physicians, researchers, and developers need health information to help patients by improving diagnoses, customizing treatments and finding new cures.

Yet law and policymakers are currently more focused on the fact that health …

Digitizing Scent And Flavor: A Copyright Perspective, Amara Lopez

Michigan Technology Law Review

Should the flavor of a cheese fall under copyright protection? The Court of Justice of the European Union recently confronted this question in Levola Hengelo BV v. Smilde Foods. Although the court ultimately denied protection, its reasoning opened many doors for those seeking intellectual property protection for scents and flavors. The court implied that it was the subjective nature of a cheese flavor that bars it from enjoying the protection copyright affords, which begs the question of what would happen if there were a sufficiently objective way to describe a flavor.

Recent developments in technology have led to the digitization …

Exploring Lawful Hacking As A Possible Answer To The "Going Dark" Debate, Carlos Liguori

Michigan Technology Law Review

The debate on government access to encrypted data, popularly known as the “going dark” debate, has intensified over the years. On the one hand, law enforcement authorities have been pushing for mandatory exceptional access mechanisms on encryption systems in order to enable criminal investigations of both data in transit and at rest. On the other hand, both technical and industry experts argue that this solution compromises the security of encrypted systems and, thus, the privacy of their users. Some claim that other means of investigation could provide the information authorities seek without weakening encryption, with lawful hacking being one of …

When Worlds Collide: Protecting Physical World Interests Against Virtual World Malfeasance, Hilary Silvia, Nanci K. Carr

Michigan Technology Law Review

If a virtual-world-game character is cast upon real-world property without the consent of the landowner, inducing or encouraging players to trespass, is the virtual-world creator liable for damages? The United States Supreme Court has recognized that digital technology presents novel issues, the resolution of which must anticipate its further rapid development. It is beyond dispute that protective legislation will be unable to keep up with rapidly evolving technology. The burden of anticipating and addressing issues presented by emerging technologies will ultimately fall upon the businesses responsible for generating them. This duty was most notably adopted by the creators of Pokémon …

Expungement Of Criminal Convictions: An Empirical Study, J.J. Prescott, Sonja B. Starr

Articles

Laws permitting the expungement of criminal convictions are a key component of modern criminal justice reform efforts and have been the subject of a recent upsurge in legislative activity. This debate has been almost entirely devoid of evidence about the laws’ effects, in part because the necessary data (such as sealed records themselves) have been unavailable. We were able to obtain access to de-identified data that overcome that problem, and we use it to carry out a comprehensive statewide study of expungement recipients and comparable nonrecipients in Michigan. We offer three key sets of empirical findings. First, among those legally …

Understanding Violent-Crime Recidivism, J.J. Prescott, Benjamin Pyle, Sonja B. Starr

Articles

People convicted of violent crimes constitute a majority of the imprisoned population but are generally ignored by existing policies aimed at reducing mass incarceration. Serious efforts to shrink the large footprint of the prison system will need to recognize this fact. This point is especially pressing at the time of this writing, as states and the federal system consider large-scale prison releases motivated by the COVID-19 pandemic. Those convicted of violent crimes constitute a large majority of older prisoners, who are extremely vulnerable to the spread of the virus behind bars. Excluding them from protective measures will deeply undermine those …

Antitrust And The Corporate Tax: Why We Need Progressive Corporate Tax Rates, Reuven S. Avi-Yonah, Lior Frank

Articles

In this article, Avi-Yonah and Frank explore how progressive corporate tax rates could address the abuse of power by monopolistic big tech companies.

Making Employment Arbitration Fair And Accessible, Theodore J. St. Antoine

Articles

Mandatory arbitration agreements require employees, as a condition of employment, to agree to arbitrate all employment disputes instead of filing court suits. The Supreme Court has approved such agreements but many labor experts oppose them. The U.S. House of Representatives has passed a bill to prohibit pre-dispute agreements, the common form for mandatory arbitrations. This article argues that the House bill would have the practical effect of virtually eliminating employment arbitration. Instead, proposals are presented for either legislative or judicial steps to ensure that employment arbitration is fair and accessible. Requirements would include: (1) voluntary agreements on the part of …

A More Perfect Pickering Test: Janus V. Afscme Council 31 And The Problem Of Public Employee Speech, Alexandra J. Gilewicz

University of Michigan Journal of Law Reform

In June 2018, the Supreme Court issued its long-awaited—and, for the American labor movement, long-feared—decision in Janus v. AFSCME Council 31. The decision is expected to have a major impact on public sector employee union membership, but could have further impact on public employees’ speech rights in the workplace. Writing for the majority, Justice Samuel Alito’s broad interpretation of whether work-related speech constitutes a “matter of public concern” may have opened the floodgates to substantially more litigation by employees asserting that their employers have violated their First Amendment rights. Claims that would have previously been unequivocally foreclosed may now …

Dignity Transacted: Emotional Labor And The Racialized Workplace, Lu-In Wang, Zachary W. Brewster

University of Michigan Journal of Law Reform

In interactive customer service encounters, the dignity of the parties becomes the currency of a commercial transaction. Service firms that profit from customer satisfaction place great emphasis on emotional labor, the work that service providers do to make customers feel cared for and esteemed. But performing emotional labor can deny dignity to workers by highlighting their subservience and requiring them to suppress their own emotions in an effort to elevate the status and experiences of their customers. Paradoxically, the burden of performing emotional labor may also impose transactional costs on some customers by facilitating discrimination in service delivery. Drawing on …

Resolving Alj Removal Protections Problem Following Lucia, Spencer Davenport

University of Michigan Journal of Law Reform

When the Supreme Court decided Lucia v. SEC and held that administrative law judges (ALJs) are Officers under the Constitution, the Court opened a flood of constitutional issues around the status of ALJs and related government positions. One central issue relates to ALJs’ removal protections. ALJs currently have two layers of protection between them and the President. In an earlier Supreme Court decision, the Court held that two layers of tenure protection between an “Officer of the United States” and the President was unconstitutional as it deprived the President the power to hold his officers accountable. As impartial adjudicators, ALJs …

Editors' Note, Michigan Law Review

Michigan Law Review

A reflection on the origins of the Michigan Law Review book review issue.

Translating The Constitution, Jack M. Balkin

Michigan Law Review

Review of Lawrence Lessig's Fidelity and Constraint: How the Supreme Court Has Read the American Constitution.

Coin, Currency, And Constitution: Reconsidering The National Bank Precedent, David S. Schwartz

Michigan Law Review

Review of Eric Lomazoff's Reconstructing the National Bank Controversy: Politics and Law in the Early American Republic.