Law Commons^™

New Textualism And The Thirteenth Amendment, Leah Litman

Articles

Michele Goodwin’s piece raises important questions about whether troubling modern-day labor practices in jails and prisons are consistent with the Thirteenth Amendment. In Goodwin’s telling, the ratification of the Thirteenth Amendment formally ended the institution of slavery, but the Amendment allowed practices resembling slavery to continue, perhaps reflecting the extant stereotypes and racism that formally amending the Constitution cannot root out. Indeed, Goodwin excavates historical materials that suggest the people who drafted and ratified the Amendment understood and expected that it would allow the perpetuation of slavery in another form. As Goodwin explains, most historians have argued that the Thirteenth …

Response To: How Should We Respond To Pregnancy And Substance Use?, Frank E. E. Vandervort, Vincent J. Palusci

Articles

We begin our reply by asking the reader to consider this typical case taken from Professor Vandervort’s current practice. It is one of several similar cases currently being handled by the clinic he works in and similar to many dozens—perhaps hundreds—of cases handled over the past 30 years.

To Protect And Provide For Children, Prenatal Substance Use Must Be Considered Abuse., Frank E. E. Vandervort, Vincent J. Palusci

Articles

The use of drugs and alcohol during pregnancy is harmful to the developing child. When children are born having been exposed to these substances, children’s protective services should uniformly substantiate child maltreatment in order to ensure that the child’s parent(s) and the child receive the treatment and services necessary to address the child’s immediate safety, protect the government’s compelling interest in the child’s welfare, and ensure the best long-term outcome for the child.

The Indian Child Welfare Act: A Brief Overview To Contextualize Current Controversies., Frank E. E. Vandervort

Articles

Congress passed and the president signed the Indian Child Welfare Act (ICWA) into federal law in 1978. Because the Constitution grants to Congress the authority to make law regarding Indian tribes, ICWA’s provisions are mandatory, unlike other federal child welfare legislation such as the Child Abuse Prevention and Treatment Act, which are voluntary. State authorities handling any case involving an “Indian child” must comply with ICWA.

Banister V. David: Brief Of Amici Curiae Law Professors With Expertise In Habeas Corpus And Civil Procedure In Support Of Petitioner, Eve Brensike Primus

Appellate Briefs

Amici curiae, listed in the Appendix, are law professors and legal scholars who study federal post-conviction law and civil procedure. Amici curiae have no personal interest in the outcome of this case. They all share an interest in seeing habeas law applied in a way that ensures the just and timely adjudication of claims while preserving the traditional and intended operation of the Federal Rules of Civil Procedure.

Spoiler Alert: When The Supreme Court Ruins Your Brief Problem Mid-Semester, Margaret Hannon

Articles

Partway through the winter 2019 semester,1 the Supreme Court ruined my favorite summary judgment brief problem while my students were working on it. I had decided to use the problem despite the Court granting cert and knowing it was just a matter of time before the Court issued its decision. In this Article, I share some of the lessons that I learned about the risks involved in using a brief problem based on a pending Supreme Court case. I conclude that, while I have not typically set out to base a problem on a pending Supreme Court case, doing so …

Us And Capital Flight, Reuven S. Avi-Yonah

Articles

The recent leaks of the Panama and Paradise Papers have highlighted the difficulty of taxing the income of residents of developed and developing offshore countries. The basic problem is that such income is subject to neither withholding at source nor information reporting. In the absence of both withholding and reporting, it is easy to use tax havens to hide such income from tax authorities. Estimates of the scope of the problem vary widely, but it is certainly larger than the $200 billion in estimated losses from legal corporate tax avoidance.

This article explains the historic roots of this problem, which …

Medical Ai And Contextual Bias, W. Nicholson Price Ii

Articles

Artificial intelligence will transform medicine. One particularly attractive possibility is the democratization of medical expertise. If black-box medical algorithms can be trained to match the performance of high-level human experts — to identify malignancies as well as trained radiologists, to diagnose diabetic retinopathy as well as board-certified ophthalmologists, or to recommend tumor-specific courses of treatment as well as top-ranked oncologists — then those algorithms could be deployed in medical settings where human experts are not available, and patients could benefit. But there is a problem with this vision. Privacy law, malpractice, insurance reimbursement, and FDA approval standards all encourage developers …

Hamama V. Adducci: Petition For A Writ Of Certiorari, Margo Schlanger

Appellate Briefs

Question Presented:

Petitioners are Iraqis with final orders of removal who lived for years or decades in the United States under orders of supervision, because Iraq would not accept their repatriation. In 2017 Iraq indicated it might change its policy; it allowed repatriation of several Iraqis with final orders. Petitioners and others similarly situated were suddenly detained and threatened with immediate removal, without the opportunity to challenge their removal in immigration court. Petitioners, who include Christians, Yezidis, Kurds, and other religious and ethnic minorities in Iraq, faced likely torture and death in Iraq. After their final orders of removal were …

Toward A 21st-Century International Tax Regime, Reuven S. Avi-Yonah

Law & Economics Working Papers

The OECD has been struggling to respond to countries that wish to tax large US technology companies on the basis of where their consumers live. The current OECD work program on digitalization is unlikely to produce a stable consensus or prevent countries from following the lead of France, India, Italy and the United Kingdom toward digital services taxes. The United States response should not be to target French, Indian, Italian or British companies for retaliation. Instead, the United States should consider adopting a sales-based formulary apportionment (SFA) solution that would apply to all large enterprises. Such a move is more …

Allen V. Cooper: Brief Of Public Law Scholars As Amici Curiae In Support Of Petitioners, Samuel Bagenstos

Appellate Briefs

Amici are scholars of constitutional law, federal jurisdiction, and civil rights law who have taught and written about the Eleventh Amendment and state sovereign immunity for many years. We present this brief in an effort to make our scholarship and experience useful to the Court.

This brief suggests a path for resolving this important case that is faithful to the Constitution's text and history, minimizes disruption to this Court's state sovereign immunity jurisprudence, and maximizes the chance for consensus on the Court. The key is this Court's unanimous decision, authored by Justice Antonin Scalia, in United States v. Georgia, …

Response To 'Reverse Al Capone-Ism' And The Tax Treatment Of Marijuana Businesses, Douglas A. Kahn, Howard J. Bromberg

Other Publications

Mr. Silverberg’s comment stresses that the proponents of the legalization of marijuana have not been able to convince Congress to legalize it, and so it is appropriate for Congress to penalize trafficking in that drug. Apparently, he sees our contention that the penalty adopted in I.R.C. § 280E is irrational and contravenes established punitive jurisprudence as a backdoor attempt to accomplish indirectly, by weakening the penalties on the marijuana businesses, what has not been able to be accomplished by those seeking its federal legalization. That was not the motive for our proposal and is not a fair reading of our …

Response To Dude, Where's My Deduction?, Douglas A. Kahn, Howard J. Bromberg

Other Publications

Mr. Pullin’s thesis is that marijuana should be excluded from § 280E when it is operated legally under state law. However, his preferred solution is that the federal government remove marijuana from Schedules I and II of the Controlled Substances Act of 1970 (CSA), thereby legalizing it for federal law purposes. Either action would exclude the marijuana business from § 280E.

Political Views Of Graduates Of University Of Michigan Law School, Classes Of 1952-2001, David L. Chambers

Bibliography of Research Using UMLS Alumni Survey Data

In 1966, the University of Michigan Law School initiated an annual survey its graduating classes five and fifteen years after graduation. In 1981, with the survey of the graduates of the class of 1976 after they had been out of law school 5 years and the graduates of the class of 1966 after they been out 15 years, the survey instrument added questions about graduates’ current political views and their recollection of their political views when they began law school. In all years since, graduates have been asked to place themselves on a 7-point scale from “extremely liberal (left)” to …

The University Of Michigan Law School Alumni Survey Project: Description, Scope And Limits, David L. Chambers

Bibliography of Research Using UMLS Alumni Survey Data

For 41 consecutive years, from 1966 through 2006, the University of Michigan Law School surveyed by mail its graduates after they had been out of law school for 15 years, asking questions about their lives since law school and particularly about their careers as lawyers. Beginning in 1973, the graduates five years out of law school were added to the survey and beginning in 1997, the classes twenty-five, thirty-five and forty-five years out were added as well. Across the years of surveying, 79 percent of the law school’s graduates in the classes of 1952 through 2001 responded to at least …

Satisfaction With Law School Among Graduates Of The University Of Michigan Law School, Classes Of 1952-2001, David L. Chambers

Bibliography of Research Using UMLS Alumni Survey Data

The University of Michigan Law School conducted mail surveys of selective classes of its alumni each year from 1966 and 2006. The survey was revived online in 2014 and has continued to the present. This memo relates to the surveys through 2006.

For many years, the survey instrument has included questions about graduates’ satisfaction with their law school experience “overall” as well as specific questions about their satisfaction with law school “intellectually,” “as career training” and “socially.” Strongly related to overall satisfaction with law school is the length of time that graduates have been out of law school – the …

Finding A Mentor In The Practice Of Law: An Empirical Inquiry, David L. Chambers

Bibliography of Research Using UMLS Alumni Survey Data

For many years the University of Michigan Law School has surveyed its graduates after they have been out of law school five, fifteen, twenty-five, thirty-five and forty-five years. This paper about finding mentors focuses on Michigan Law School alumni surveyed five years after graduation during the sixteen year period between 1985 and 2000 and particularly on those who have ever worked in a private law firm, a setting in which it is commonly believed that having a mentor is critical for a young lawyer’s success.

Our central findings are these: Among alumni who had worked in a law firm within …

The Increasing Reliance On Educational Loans By University Of Michigan Law School Graduates, David L. Chambers

Bibliography of Research Using UMLS Alumni Survey Data

Among graduates of the University of Michigan Law School in the classes of 1970 through 1979, about half borrowed to pay for their college or legal education. By the early 1980s the portion who borrowed had risen to about 80 percent and has remained at that level through the classes of early twenty-first century. Even greater growth has occurred in the average debt of those who incurred debt. In actual dollars, average debts among those with debt have increased twenty-fold from the 1970s to the early 2000s. Even in CPI-adjusted dollars, average debts have tripled. By the classes of 2000-2001, …

The Changing Student Body At The University Of Michigan Law School, David L. Chambers

Bibliography of Research Using UMLS Alumni Survey Data

Most of the content of the memo that follows has been previously published in the article "Who We Were and Who We Are: How Michigan Law Students Have Changed Since the 1950s: Findings from 40 Years of Alumni Surveys." T. K. Adams, co-author. Law Quad. Notes 51, no. 1 (2009): 74-80, available through this website. This memo provides more detail about changing entry credentials and about the great expansion beginning in the 1970s in the numbers of women students and of racial/ethnic minority students. It also provides information not in the article about the patterns over time in students’ …

Mathena V. Malvo: Brief Amici Curiae Of Erwin Chemerinsky, Aziz Huq, Leah Litman, David Strauss, Carlos Vazquez, And Larry Yackle In Support Of Respondent, Leah Litman

Appellate Briefs

Amici Erwin Chemerinsky, Aziz Huq, Leah Litman, David Strauss, Carlos Vazquez, and Larry Yackle are federal courts scholars, studying the operation and purposes of federal jurisdiction and criminal law. Although they have divergent legal and political outlooks, amici share a keen interest in the federal courts, having published extensively on these topics and collected decades of experience examining issues implicated in this case.

This case concerns the scope of the constitutional rule announced in Miller v. Alabama, 567 U.S. 460 (2012), and held applicable on collateral review in Montgomery v. Louisiana, 136 S. Ct. 718 (2016). Respondent Lee …

Fascism And Monopoly, Daniel A. Crane

Law & Economics Working Papers

The recent revival of political interest in antitrust has resurfaced a longstanding debate about the role of industrial concentration and monopoly in enabling Hitler’s rise to power and the Third Reich’s wars of aggression. Proponents of stronger antitrust enforcement argue that monopolies and cartels brought the Nazis to power and warn that rising concentration in the American economy could similarly threaten democracy. Skeptics demur, observing that German big business largely opposed Hitler during the crucial years of his ascent. Drawing on business histories and archival material from the U.S. Office of Military Government’s Decartelization Unit, this Article assesses the historical …

Financing The World Health Organization: What Lessons For Multilateralism?, Kristina Daugirdas, Gian Luca Burci

Articles

When it comes to financing the work of international organizations, voluntary contributions from both state and nonstate actors are growing in size and importance. The World Health Organization (WHO) is an extreme case from this perspective, with voluntary contributions - mostly earmarked for particular purposes - comprising more than 80 percent of its funds. Moreover, nonstate actors are by now supplying almost half of WHO’s funds, with the Bill and Melinda Gates Foundation ranking as the second-highest contributor after the United States. A number of public-health and international relations scholars have expressed alarm over these trends, arguing that heavy reliance …

The Effects Of Educational Debts On Career Choices Of Graduates Of The University Of Michigan Law School, David L. Chambers

Bibliography of Research Using UMLS Alumni Survey Data

In 1966, the University of Michigan Law School began an annual survey of selected classes of its graduates. Beginning in the early 1980s, annual surveys of those five and fifteen years after law school included questions about educational debts incurred during college and law school as well as about career plans at the beginning and end of law school and actual job held in the years since law school. This paper, written in 2009, examines the possible effects of debts on career decisions and job choices made before, during and after law school by the graduating classes of 1976 through …

Law School Grades And Their Effects: The University Of Michigan Law School Alumni Survey, David L. Chambers

Bibliography of Research Using UMLS Alumni Survey Data

This short paper is based on a study of graduates of the University of Michigan Law School that was initiated in 1966 and continues today. The paper draws upon information about graduates’ grades in law school as recorded in the law school’s records and combines it with data from surveys of the graduates conducted by mail five, fifteen, twenty-five, thirty-five and forty-five years after graduation. Among the central findings reported are the following. (1) grades and gradepoint averages of Michigan law students rose hugely during the 1960s and 1970s, which can be explained in part by simple grade inflation but …

Retirement, Partial Retirement, And Working Into Old Age: Michigan Law School Graduates 45 Years Out Of Law School, David L. Chambers

Bibliography of Research Using UMLS Alumni Survey Data

In 1966, the University of Michigan Law School began an annual survey of selected classes of its graduates. For the first few decades of the survey, only the graduating classes five and fifeen years out of law school were included in the survey. Beginning in 1997, graduates 25, 35, and 45 years out of law school were added. This memorandum focuses primarily on surveys conducted between 1997 and 2006 of the living graduates of the classes of 1952 through 1961, who had by then been out of law school for 45 years. After 45 years, the great majority were 69 …

Women And Men Graduates Of The University Of Michigan Law School: Career Patterns And Adjustments For Children, David L. Chambers

Bibliography of Research Using UMLS Alumni Survey Data

The University of Michigan Law School conducted mail surveys of classes of its alumni each year from 1966 and 2006. This memorandum builds upon the mail surveys conducted through 2006 and in particular survey questions asked about the sex of the respondent, the settings in which they have worked since law school, the hours they work and their earnings in their current settings, whether they have children and the various adjustments they have made in order to care for children, such as working part-time or leaving the work force altogether for periods of time. The memorandum has two principal focuses: …

Advocating For Children With Disabilities In Child Protection Cases, Joshua B. Kay

Articles

Children with disabilities are maltreated at a higher rate than other children and overrepresented in child protection matters, yet most social service caseworkers, judges, child advocates, and other professionals involved in these cases receive little to no training about evaluating and addressing their needs. Child protection case outcomes for children with disabilities tend to differ from those of nondisabled children, with more disabled children experiencing a termination of their parents' rights and fewer being reunified with their parents or placed with kin. They also tend to experience longer waits for adoption. Furthermore, the poor outcomes that plague youth who age …

If Not Now, When? U.S. Tax Treaties With Latin America After Tcja, Reuven S. Avi-Yonah

Articles

Since the 1990s, the US tax treaty network has expanded to include most large developing countries. However, there remains a glaring exception: The US only has two tax treaties in Latin America (Mexico and Venezuela), and one pending tax treaty (Chile). The traditional explanation for why the US has no treaty with, for example, Argentina or Brazil is the US refusal since 1957 to grant tax sparing credits to developing countries. Before the Tax Cuts and Jobs Act of 2017 (TCJA), this explanation was wrong, because the combination of deferral and cross-crediting meant that tax holidays in a source country …

Toward A 21st-Century International Tax Regime, Reuven S. Avi-Yonah, Kimberly A. Clausing

Articles

The international tax regime is almost a century old, and it is showing its age. In recent decades, the regime could be maintained despite increasing evidence that some of its key components, such as the arm’s-length standard or permanent establishment threshold, were unfit for a 21st-century economy. However, starting with the U.K. diverted profits tax (2015), Australia’s multinational anti-tax-avoidance law (2015), and India’s equalization levy (2016), it has become clear that many countries are unwilling to live with a situation in which large U.S. technology companies (such as Amazon, Apple, Facebook, Google, and Netflix) earn billions in profits by exploiting …

Imaginary Bottles, Jessica Litman

Articles

This essay, written for a symposium commemorating John Perry Barlow, who died on February 7, 2018, revisits Barlow's 1994 essay for WIRED magazine, "The Economy of Ideas: A Framework for patents and copyrights in the Digital Age (everything you know about intellectual property is wrong)." Barlow observed that networked digital technology posed massive and fundamental challenges for the markets for what Barlow termed “the work we do with our minds” and for the intellectual property laws designed to shape those markets. He predicted that those challenges would melt extant intellectual property systems into a smoking heap within a decade, and …