Law Commons^™

Age Of Unreason: Rationality And The Regulatory State, Louise Weinberg

University of Michigan Journal of Law Reform

A curious phenomenon, not previously remarked, appears in current international and interstate cases in a common configuration. These are cases in which a nonresident sues a company at the company’s home; the plaintiff would almost certainly win there on stipulated facts; and judgment is for the defendant as a matter of law. In cases in this familiar configuration it appears that courts will struggle to find rationales. Judges attempt to rely on arguments which ordinarily would be serviceable, but which, in cases so configured, seem to become irrational. Because the relevant configuration of cases is common, the problem is widespread. …

Searching For Humanitarian Discretion In Immigration Enforcement: Reflections On A Year As An Immigration Attorney In The Trump Era, Nina Rabin

University of Michigan Journal of Law Reform

This Article describes one of the most striking features of the Trump Administration’s immigration policy: the shift in the way discretion operates in the legal immigration system. Unlike other high-profile immigration policies that have been the focus of class action lawsuits and public outcry, the changes to the role of discretion have attracted little attention, in part because they are implemented through low-visibility individualized decisions that are difficult to identify, let alone challenge systemically. After providing historical context regarding the role of discretion in the immigration system before the Trump Administration, I offer four case studies from my immigration practice …

Policing Corporate Conduct Toward Minority Communities: An Insurance Law Perspective On The Use Of Race In Calculating Tort Damages, Dhruti J. Patel

University of Michigan Journal of Law Reform

Courts commonly use U.S. Department of Labor actuarial tables, which explicitly take into account the race of the tort victim, to determine average national wage, work-life expectancy, and life expectancy. This practice has led to wide discrepancies between average damage awards for minority plaintiffs compared to white plaintiffs even if both plaintiffs are similarly situated. While recent legal scholarship criticizes the use of race-based tables and addresses the Equal Protection and incentive concerns such tables present, few courts have deviated from the explicit use of race in determining tort damages.

Though the use of demographic features, such as race, to …

Forensic Border Searches After Carpenter Require Probable Cause And A Warrant, Christopher I. Pryby

Michigan Law Review

Under the border search doctrine, courts have upheld the federal government's practice of searching people and their possessions upon entry into or exit from the United States, without any requirement of suspicion, as reasonable under the Fourth Amendment. Since the advent of electronic devices with large storage capacities, courts have grappled with whether this definition of reasonableness continues to apply. So far, courts have consistently characterized “nonforensic” border inspections of electronic devices (for example, paging through photos on a phone) as “routine” searches that, like inspecting luggage brought across international lines, require no suspicion. But there is a circuit split …

A Post-Spokeo Taxonomy Of Intangible Harms, Jackson Erpenbach

Michigan Law Review

Article III standing is a central requirement in federal litigation. The Supreme Court’s Spokeo decision marked a significant development in the doctrine, dividing the concrete injury-in-fact requirement into two subsets: tangible and intangible harms. While tangible harms are easily cognizable, plaintiffs alleging intangible harms can face a perilous path to court. This raises particular concern for the system of federal consumer protection laws where enforcement relies on consumers vindicating their own rights by filing suit when companies violate federal law. These plaintiffs must often allege intangible harms arising out of their statutorily guaranteed rights. This Note demonstrates that Spokeo’s …

Mdl As Public Administration, David L. Noll

Michigan Law Review

From the Deepwater Horizon disaster to the opioid crisis, multidistrict litigation—or simply MDL—has become the preeminent forum for devising solutions to the most difficult problems in the federal courts. MDL works by refusing to follow a regular procedural playbook. Its solutions are case specific, evolving, and ad hoc. This very flexibility, however, provokes charges that MDL violates basic requirements of the rule of law.

At the heart of these charges is the assumption that MDL is simply a larger version of the litigation that takes place every day in federal district courts. But MDL is not just different in scale …

Policing, Danger Narratives, And Routine Traffic Stops, Jordan Blair Woods

Michigan Law Review

This Article presents findings from the largest and most comprehensive study to date on violence against the police during traffic stops. Every year, police officers conduct tens of millions of traffic stops. Many of these stops are entirely unremarkable—so much so that they may be fairly described as routine. Nonetheless, the narrative that routine traffic stops are fraught with grave and unpredictable danger to the police permeates police training and animates Fourth Amendment doctrine. This Article challenges this dominant danger narrative and its centrality within key institutions that regulate the police.

The presented study is the first to offer an …

The New Impartial Jury Mandate, Richard Lorren Jolly

Michigan Law Review

Impartiality is the cornerstone of the Constitution’s jury trial protections. Courts have historically treated impartiality as procedural in nature, meaning that the Constitution requires certain prophylactic procedures that secure a jury that is more likely to reach verdicts impartially. But in Peña- Rodriguez v. Colorado, 137 S. Ct. 855 (2017), the Supreme Court recognized for the first time an enforceable, substantive component to the mandate. There, the Court held that criminal litigants have a Sixth Amendment right to jury decisions made without reliance on extreme bias, specifically on the basis of race or national origin. The Court did not …

Shots Fired: Digging The Uniformed Services Employment And Reemployment Rights Act Out Of The Trenches Of Arbitration, Lisa Limb

Michigan Law Review

The Uniformed Services Employment and Reemployment Rights Act (USERRA) was enacted to protect servicemembers from discrimination by civilian employers and to provide servicemembers with reemployment rights. Recent circuit court decisions, however, have maimed these protections by ruling that mandatory arbitration is permissible under USERRA. This Note argues that such rulings conflict with USERRA’s plain language, statutory structure, and purpose. Ultimately, in light of strong public policy considerations, this Note contends that mandatory arbitration should not be permissible under USERRA and proposes that Congress amend the Act to explicitly prohibit arbitration.

More Than Birds: Developing A New Environmental Jurisprudence Through The Migratory Bird Treaty Act, Patrick G. Maroun

Michigan Law Review

This year marks the centennial of the Migratory Bird Treaty Act, one of the oldest environmental regulatory statutes in the United States. It is illegal to “take” or “kill” any migratory bird covered by the Act. But many of the economic and industrial assumptions that undergirded the Act in 1918 have changed dramatically. Although it is undisputed that hunting protected birds is prohibited, circuit courts split on whether so-called “incidental takings” fall within the scope of the Act. The uncertainty inherent in this disagreement harms public and private interests alike—not to mention migratory birds. Many of the most important environmental …

Digital Market Perfection, Rory Van Loo

Michigan Law Review

Google’s, Apple’s, and other companies’ automated assistants are increasingly serving as personal shoppers. These digital intermediaries will save us time by purchasing grocery items, transferring bank accounts, and subscribing to cable. The literature has only begun to hint at the paradigm shift needed to navigate the legal risks and rewards of this coming era of automated commerce. This Article begins to fill that gap by surveying legal battles related to contract exit, data access, and deception that will determine the extent to which automated assistants are able to help consumers to search and switch, potentially bringing tremendous societal benefits. Whereas …

Moral Diversity And Efficient Breach, Matthew A. Seligman

Michigan Law Review

Most people think it is morally wrong to breach a contract. But sophisticated commercial parties, like large corporations, have no objection to breaching contracts and paying the price in damages when doing so is in their self-interest. The literature has ignored the profound legal, economic, and normative implications of that asymmetry between individuals’ and firms’ approaches to breach. To individuals, a contract is a promise that cannot be broken regardless of the financial stakes. For example, millions of homeowners refused to breach their mortgage contracts in the aftermath of the housing crisis even though doing so could have saved them …

The Preliminary Injunction Standard: Understanding The Public Interest Factor, M Devon Moore

Michigan Law Review

Under Winter v. NRDC, federal courts considering a preliminary injunction motion look to four factors, including the public interest impact of the injunction. But courts do not agree on what the public interest is and how much it should matter. This Note describes the confusion over the public interest factor and characterizes the post-Winter circuit split as a result of this confusion. By analyzing the case law surrounding the public interest factor, this Note identifies three aspects of a case that consistently implicate the direction and magnitude of this factor: the identity of the parties, the underlying cause of action, …

Home-Field Disadvantage: How The Organization Of Soccer In The United States Affects Athletic And Economic Competitiveness, Carolina I. Velarde

Michigan Law Review

The United States men’s soccer team failed to qualify for the 2018 World Cup. In the aftermath, soccer followers questioned the organizational structure supervised by the United States Soccer Federation. An analysis of the relationships between professional soccer leagues reveals potentially anticompetitive practices that may contribute to the subpar performance of the U.S. Men’s National Team. This Note argues that the United States Soccer Federation is engaged in economically anticompetitive behavior that impedes the development of American soccer. Certain reforms, including an open-league system and player transfer fees at the youth development level, would enhance the economic and athletic competitiveness …

Front Matter, Michigan Law Review

Michigan Law Review

Front matter for Volume 117, Issue 6 of the Michigan Law Review.

Books, Debate, Specificity, Neal Kumar Katyal

Michigan Law Review

Foreword to Volume 117, Issue 6 of the Michigan Law Review.

An Apology For Lawyers: Socrates And The Ethics Of Persuasion, Sherman J. Clark

Michigan Law Review

Review Plato's "Apology of Socrates" in Six Great Dialogues: Apology, Crito, Phaedo, Phaedrus, Symposium, and The Republic.

Review By Justice John Paul Stevens (Ret.), John Paul Stevens

Michigan Law Review

Review of Noah Feldman's The Three Lives of James Madison: Genius, Partisan, President.

Abortion Talk, Clare Huntington

Michigan Law Review

Review of Carol Sanger's About Abortion: Terminating Pregnancy in Twenty-First-Century America.

Return Of The Campus Speech Wars, Thomas Healy

Michigan Law Review

Review of Erwin Chemerinsky and Howard Gillman's Free Speech on Campus.

The Supreme Court And Public Schools, Erwin Chemerinsky

Michigan Law Review

Review of Justin Driver's The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind.

Doors To Safety: Exit West, Refugee Resettlement, And The Right To Asylum, Betsy L. Fisher

Michigan Law Review

Review of Mohsin Hamid's Exit West.

Privacy, Property, And Publicity, Mark A. Lemley

Michigan Law Review

Review of Jennifer E. Rothman's The Right of Publicity: Privacy Reimagined for a Public World.

The Outcome Of Influence: Hitler’S American Model And Transnational Legal History, Mary L. Dudziak

Michigan Law Review

Review of James Q. Whitman's Hitler's American Model: The United States and the Making of Nazi Race Law.

What Corporate Veil?, Joshua C. Macey

Michigan Law Review

Review of Adam Winkler's We the Corporations: How American Business Won Their Civil Rights.

Which Radicals?, Cass R. Sunstein

Michigan Law Review

Review of Jeremy McCarter's Young Radicals: In the War for American Ideals.

Why Markets? Welfare, Autonomy, And The Just Society, Hanoch Dagan

Michigan Law Review

Review of Eric A. Posner's Radical Markets: Uprooting Capitalism and Democracy for a Just Society.

Looking Backward And Forward At The Suspension Clause, G. Edward White

Michigan Law Review

Review of Amanda L. Tyler's Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay.

Separate And Unequal: The Law Of "Domestic" And "International" Terrorism, Shirin Sinnar

Michigan Law Review

U.S. law differentiates between two categories of terrorism. “International terrorism” covers threats with a putative international nexus, even when they stem from U.S. citizens or residents acting only within the United States. “Domestic terrorism” applies to political violence thought to be purely domestic in its origin and intended impact. The law permits broader surveillance, wider criminal charges, and more punitive treatment for crimes labeled international terrorism. Law enforcement agencies frequently consider U.S. Muslims “international” threats even when they have scant foreign ties. As a result, they police and punish them more intensely than white nationalists and other “domestic” threats. This …

Qualified Immunity And Constitutional Structure, Katherine Mims Crocker

Michigan Law Review

A range of scholars has subjected qualified immunity to a wave of criticism— and for good reasons. But the Supreme Court continues to apply the doctrine in ever more aggressive ways. By advancing two claims, this Article seeks to make some sense of this conflict and to suggest some thoughts toward a resolution.

First, while the Court has offered and scholars have rejected several rationales for the doctrine, layering in an account grounded in structural constitutional concerns provides a historically richer and analytically thicker understanding of the current qualified-immunity regime. For suits against federal officials, qualified immunity acts as a …