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Tort Justice Reform, Paul David Stern

University of Michigan Journal of Law Reform

This Article calls for a comprehensive reform of public tort law with respect to law enforcement conduct. It articulates an effective and equitable remedial regime that reconciles the aspirational goals of public tort law with the practical realities of devising payment and disciplinary procedures that are responsive to tort settlements and judgments. This proposed statutory scheme seeks to deter law enforcement misconduct without disincentivizing prudent officers from performing their duties or overburdening them with extensive litigation. Rather than lamenting the dissolution of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics or the insurmountability of qualified immunity, reform …

21st Century Cures Act: The Problem With Preemption In Light Of Deregulation, Megan C. Andersen

University of Michigan Journal of Law Reform

The 21st Century Cures Act introduced innovative changes to the Food and Drug Administration’s regulatory processes. In an effort to address the slow, costly, and burdensome approval process for high-risk devices, the Cures Act modernized clinical trial data by allowing reviewers to determine whether devices merit expedited review and to consider post-market surveillance data in the premarket approval process. These changes will get life-saving devices to the people who need them faster than ever before. But the tradeoff is a greater risk of injury to the patient. The 2008 Supreme Court decision Riegel v. Medtronic, Inc., held that any …

The 34th Annual Juan Luis Tienda Scholarship Banquet., University Of Michigan Law School

Event Materials

In addition to remembering Juan Luis and honoring his contribution to the Latino community, the Banquet is also an opportunity to recognize the newest members of the Latino Law Student Association (LLSA) family. The Class of 2021 LLSA members have been very active at our events this year; their individual and collective enthusiasm, leadership, and great ideas have been essential to LLSA's success. In addition to remembering Juan Luis and honoring his contribution to the Latino community, the Banquet is also an opportunity to recognize the newest members of the LLSA family. The Class of 2021 LLSA embers have been …

The 41st Annual Alden J. "Butch" Carpenter Memorial Scholarship Gala, Black Law Students Association

Event Materials

Each year, the Black Law Students Association (BLSA) hosts this memorial banquet to promote the Alden J. "Butch" Carpenter Memorial Scholarship Fund and to refelct upon the principles that Butch personified. As a part of the annual banquet, the Fund awards scholarships to outstanding first-year BLSA members who have demonstrated commitment to combining business and law to promote community development. Last year, in 2018, the Fund awarded a total of $60,000 in scholarships to three deserving students.

Consumer Protection In An Age Of Uncertainty, University Of Michigan Law School

Event Materials

Program for a 2019 Conference on consumer protection.

Welcome To The Block Party: Sff Auction, Student Funded Fellowship

Event Materials

Student Funded Fellowship became a student organization at the University of Michigan Law School in 1979, making this the 40th year of SFF at Michigan Law. We're proud to carry on the tradition as one of the most successful student-run fundraising programs of its kind in the country - with this auction capping off another outstanding year of fundraising.

The Americans With Disabilities Act: Legal And Practical Applications In Child Protection Proceedings, Joshua B. Kay

Articles

Parents with disabilities, particularly those with intellectual disability and/or mental illness, are disproportionately represented in the child protection system.1 Once involved in the system, they are far more likely than parents without disabilities to have their children removed and their parental rights terminated. The reasons for this are many. Parents with disabilities are relatively likely to experience other challenges that are themselves risk factors for child protection involvement. In addition, child protection agencies, attorneys, courts, and related professionals often lack knowledge and harbor biases about parents with disabilities, increasing the likelihood of more intrusive involvement in the family. Yet research …

The Cost Of Novelty, W. Nicholson Price Ii

Law & Economics Working Papers

Patent law tries to spur the development of new, better, innovative technology. But it focuses much more on “new” than “better” — and it turns out that “new” carries real social costs. I argue that patent law promotes innovation that diverges from existing technology, either a little (what I call “differentiating innovation”) or a lot (“exploring innovation”), at the expense of innovation that tells us more about existing technology (“deepening innovation”). Patent law’s focus on newness is unsurprising, and fits within a well-told narrative of innovative diversity accompanied by market selection of the best technologies. Unfortunately, innovative diversity brings not …

Transferability: Helping Students And Attorneys Apply What They Already Know To New Situations (Part 2), Edward R. Becker

Articles

Part 1 of this column (January 2019) described several ways that professors and supervisors can help young attorneys transfer their knowledge of legal skills and legal practice to new situations. The pedagogical techniques discussed in Part 1 look forward, helping novice lawyers make connections between what they learn today and how to put those lessons into play tomorrow. This month’s column changes direction. Successful knowledge transfer also looks to the past. When young lawyers and law students are introduced to what might first appear to be brand-new legal skills, their ability to quickly make sense of that new information is …

Branch Rickey, Affirmative Action And 'Merit' In Baseball And Education, Evan H. Caminker

Book Chapters

When General Manager Wesley Branch Rickey broke Organized Baseball’s longstanding color barrier on October 23, 1945, by signing Jackie Robinson to a contract to play for the Montreal Royals, a minor league affiliate of the Brooklyn Dodgers, Rickey catalyzed the movement for racial justice. Millions of people saw, heard, and read about black and white men playing side-by-side. Integrating the national pastime helped challenge segregationist norms across the land, facilitating the integration of military troops and public schools soon thereafter.

Rickey’s stirring call in his 1956 Atlanta address to judge people on their merits rather than their pigmentation still resonates …

Targeting Poverty In The Courts: Improving The Measurement Of Ability To Pay, Meghan M. O'Neil, Jj Prescott

Law & Economics Working Papers

Ability-to-pay determinations are essential when governments use money-based alternative sanctions, like fines, to enforce laws. One longstanding difficulty in the U.S. has been the extreme lack of guidance on how courts are to determine a litigant’s ability to pay. The result has been a seat-of-the-pants approach that is inefficient and inaccurate, and, as a consequence, very socially costly. Fortunately, online platform technology presents a promising avenue for reform. In particular, platform technology offers the potential to increase litigant access, reduce costs, and ensure consistent and fair treatment—all of which should lead to more accurate sanctions. We use interviews, surveys, and …

Cannabis For Medical Use: Fda And Dea Regulation In The Hall Of Mirrors, Rebecca S. Eisenberg, Deborah B. Leiderman

Articles

A majority of Americans now live in states that purport to authorize medical use of cannabis, although federal law continues to prohibit both recreational and medical use. The current legal regime for cannabis is unstable and may be more effective at deterring research than it is at deterring medical use. Lack of data on medical cannabis products poses public health risks as well as policy and legal challenges. Modified regulatory approaches for other kinds of products provide alternative models for encouraging safety and effectiveness research and providing better information about cannabis products already in clinical use.

Alpha Duties: The Search For Excess Returns And Appropriate Fiduciary Duties, Ian Ayres, Edward Fox

Articles

Modern finance theory and investment practice have shifted toward “passive investing.” The current consensus is that most savers should invest in mutual funds or ETFs that are (i) well-diversified, (ii) low-cost, and (iii) expose their portfolios to age-appropriate stock market risk. The law governing trustees, investment advisers, broker–dealers, 401(k) plan managers, and other investment fiduciaries has evolved to push them gently toward this consensus. But these laws still provide broad scope for fiduciaries to recommend that clients invest instead in specific assets that they believe will produce “alpha” by outperforming the market. Seeking alpha comes at a cost, however, in …

Assigning Protection: Can Refugee Rights And State Preferences Be Reconciled?, James C. Hathaway

Articles

The theoretically global responsibility to protect refugees is today heavily skewed, with just ten countries – predominantly very poor – hosting more than half of the world’s refugee population. Refugee protection has moreover become tantamount to warehousing for most refugees, with roughly half of the world’s refugees stuck in “protracted refugee situations” for decades with their lives on hold. Both concerns – the unprincipled allocation of responsibility based on accidents of geography and the desperate need for greater attention to resettlement as a core protection response – cry out for a global, managed system to protect refugees.

Google Llc V. Oracle America, Inc.: Brief Of 65 Intellectual Property Scholars As Amici Curiae In Support Of Petitioner, Jessica Litman

Appellate Briefs

Amici curiae are intellectual property scholars (listed in Appendix A) who are alarmed that the Federal Circuit's copyrightability ruling has deepened splits in circuit court interpretations of several major copyright doctrines as applied to computer programs. That ruling disrupted the relative equilibrium of more than two decades of software copyright precedents and upset settled expectations within the software industry. This Court's guidance is urgently needed to address and resolve circuit conflicts affecting this $564 billion industry? Amici's sole interest in this case lies in their concern for the proper application of traditional principles of copyright law to computer programs. Because …

Artificial Intelligence In The Medical System: Four Roles For Potential Transformation, W. Nicholson Price Ii

Articles

Artificial intelligence (AI) looks to transform the practice of medicine. As academics and policymakers alike turn to legal questions, including how to ensure high-quality performance by medical AI, a threshold issue involves what role AI will play in the larger medical system. This Article argues that AI can play at least four distinct roles in the medical system, each potentially transformative: pushing the frontiers of medical knowledge to increase the limits of medical performance, democratizing medical expertise by making specialist skills more available to non-specialists, automating drudgery within the medical system, and allocating scarce medical resources. Each role raises its …

Complete Distributive Rules And The Single Tax Principle: A Review Of Recent Italian Case Law, Reuven S. Avi-Yonah, Gianluca Mazzoni

Articles

The authors, in this article, examine the application of complete distributive rules as set out in various tax treaties as it relates to the single tax principle by reference to recent Italian case law.

On 11 October 2018, in Decision No. 25219, the Italian Corte Suprema di Cassazione (Supreme Court, CSC) confirmed that treaty provisions limiting the exercise of the domestic power to tax by the source state also apply where the residence state does not actually tax the relevant item of income. In that case, where a tax treaty attributes exclusive tax jurisdiction over an item of income to …

The Games They Will Play: Tax Games, Roadblocks, And Glitches Under The 2017 Tax Legislation, David Kamin, David Gamage, Ari Glogower, Rebecca Kysar, Darien Shanske, Reuven S. Avi-Yonah, Lily Batchelder, J. Clifton Fleming, Daniel Hemel, Mitchell Kane, David Miller, Daniel Shaviro, Manoj Viswanathan

Articles

The 2017 tax legislation brought sweeping changes to the rules for taxing individuals and business, the deductibility of state and local taxes, and the international tax regime. The complex legislation was drafted and passed through a rushed and secretive process intended to limit public comment on one of the most consequential pieces of domestic policy enacted in recent history. This Article is an effort to supply the analysis and deliberation that should have accompanied the bill’s consideration and passage, and describes key problem areas in the new legislation. Many of the new changes fundamentally undermine the integrity of the tax …

The Best Of Times And The Worst Of Times: The Current Landscape Of Mandatory Arbitration Clause Enforcement In Domestic Arbitration, Virginia Neisler

Law Librarian Scholarship

There is nothing new about arbi­tration, a method of alternative dispute resolution designed to settle disputes more efficiently, cheaper, and faster than litigation. Today, mandatory arbitration clauses are ubiquitous in commercial contracts, social media terms and conditions, employment contracts, and more. These contracts, where one party in the weaker position (often a consumer or an employee) must either accept or reject the terms as written with no power to negotiate, are known as contracts of adhesion. The widespread use of arbitration clauses—specifically, pre­dispute, forced arbitration agreements, often including class­action waiv ers found in adhesion contracts—has come under pressure.

Good Sentences, Patrick Barry

Articles

To write good sentences, you need to read good sentences. Skilled writers and editors know this, so they seek out good sentences wherever they can find them—the short stories of Alice Munro, the political essays of William F. Buckley, even well-crafted cartoons, speeches, and advertisements. They read not just with voracity but also with an eye toward larceny, always on the lookout for moves that they can learn and repurpose.

Reckless Juveniles, Kimberly Thomas

Articles

Modern doctrine and scholarship largely take it for granted that offenders should be criminally punished for reckless acts.1 Yet, developments in our understanding of human behavior can shed light on how we define and attribute criminal liability, or at least force us to grapple with the categories that have existed for so long. This Article examines recklessness and related doctrines in light of the shifts in understanding of adolescent behavior and its biological roots, to see what insights we might attain, or what challenges these understandings pose to this foundational mens rea doctrine. Over the past decade, the U.S. Supreme …

United States V. Haymond: Brief Of Social Science And Law Scholars As Amici Curiae In Support Of Respondent, J. J. Prescott

Appellate Briefs

Amici are eighteen scholars across six disciplines whose work includes the leading empirical studies of persons convicted of sexual offenses and the laws applied to them. The Appendix identifies them and describes their work.

Amici believe it critical that judicial decisions affecting constitutional rights be grounded on an accurate understanding of empirical realities. At the very least, they should not propagate misunderstandings. Unfortunately, such misunderstandings about the re-offense risk posed by people who have been convicted of sexual offenses are not only commonplace, but often traceable to language in early opinions of this Court. The Government invites the Court to …

Transferability: Helping Students And Attorneys Apply What They Already Know To New Situations (Part 1), Edward R. Becker

Articles

Every fall, I work with my first year law students to begin developing their legal writing skills. They work hard learning how to analyze cases objectively, predict how a court might resolve a dispute, and convey their assessments to an experienced attorney. Their improvement from September to December is noticeable. They have only one semester of law school behind them and still have much to learn, but they’re on their way…In the second semester, we begin focusing on advocacy. The first assignment asks students to draft a pretrial brief. When I review the drafts, I’m struck by how many problems …

Second Redemption, Third Reconstruction, Richard A. Primus

Articles

In The Accumulation of Advantages, the picture that Professor Owen Fiss paints about equality during and since the Second Reconstruction is largely a picture in black and white. That makes some sense. The black/white experience is probably the most important throughline in the story of equal protection. It was the central theme of both the First and Second Reconstructions. In keeping with that orientation, the picture of disadvantage described by Fiss’s theory of cumulative responsibility is largely drawn from the black/white experience. Important as it is, however, the black/white experience does not exhaust the subject of constitutional equality. So in …

Beps, Atap And The New Tax Dialogue: A Transatlantic Competition?, Reuven S. Avi-Yonah, Gianluca Mazzoni

Book Chapters

The Tax Cuts and Jobs Act (TRA17) signed into law by President Trump on 22 December 2017 contains multiple provisions that incorporate the principles of the OECD/G20 Base Erosion and Profit Shifting Action Plan (BEPS) into domestic US tax law. Together with the changes in the 2016 US Model Tax Treaty, 1 these provisions mean that the United States is following the European Union in implementing BEPS and particularly its underlying principle, the single tax principle (all income should be subject to tax once at the rate derived from the benefits principle, i.e., active income at a minimum source tax …

Michigan Guidelines On The International Protection Of Refugees, James C. Hathaway

Books

The Michigan Guidelines on the International Protection of Refugees are the result of a collective endeavor of hundreds of scholars, advocates, judges, and international officials to tackle some of the most important and challenging questions in international refugee law. This volume presents 20 years of the Guidelines — the consensus work of senior Michigan Law students and experts from around the world on cutting-edge refugee law concerns — in five languages (English, French, Spanish, Arabic, and Russian).

The Guidelines address five of the most difficult issues of refugee status: what is the meaning of a “well-founded fear”; when may refugee …

Contracting Around Gender Constructs: Transgender Men At Women's Colleges, Elizabeth A. Heise

Michigan Journal of Gender & Law

As the transgender community gains increasing visibility in society, women’s colleges have begun to address new questions about who is eligible to attend. One such question is whether students who come out as transgender men after matriculation are eligible to remain enrolled and graduate from these institutions. The main claims relevant to this discussion are (1) colleges’ right to retain their identity as all-women’s institutions; (2) the parallel rights of cisgender female students who explicitly choose to attend an all-women’s institution, and (3) transgender students’ competing right to avoid arbitrary or capricious dismissal based on gender identity. This Note posits …

A Fresh View On The Hard/Soft Law Divide: Implications For International Insolvency Of Enterprise Groups, Irit Mevorach

Michigan Journal of International Law

It is the orthodox belief that treaties and—within the EU—directly applicable regulations represent hard, binding international law, while other international instruments—including model laws—are forms of soft law. In a previous publication(The Future of Cross-Border Insolvency: Overcoming Biases and Closing Gaps), I discussed how the traditional distinction between hard and soft law is less firm, due particularly to economic and behavioural implications of instrument choice and design. Building on that analysis, this Article focuses on the new rules for the international insolvency of enterprise groups in the Recast EU Insolvency Regulation 2015 (the “EIR”) and in the forthcoming UNCITRAL model law …

Foundations: Curriculum & Faculty, University Of Michigan Law School

Miscellaneous Law School History & Publications

Michigan Law Faculty are the best of the best. As you look through these pages, you will see some of their accomplishments: They serve as senior advisers to policymakers and governments around the world, they argue important cases in courts of every level, and they produce superb research that addresses society's greatest problems.

Our faculty also take teaching very seriously. They are dedicated to using their research and experience to help create a curriculum that will challenge and transform you. Michigan Law's rich curriculum features foundational courses that evolve with the needs of the profession, a wide array of upper-level …

Unraveling China's Capital Market Growth: A Political Economy Account, Tamar Groswald Ozery

SJD Dissertations

With modern, successful firms that operate globally and a capital market that is the second largest in the world, corporate governance in China has long passed the point of an “adjust or perish” prognostic. Yet its firm governance and capital market functions maintain strong idiosyncrasies that go against many fundamentals in economics and legal thought. These idiosyncrasies are products of the underlying configurations of China’s political economy and the shifts within it. Political economy in China has a determinant role on the ways corporate ownership is organized, firms operate, and the capital market functions. It is responsible for many of …