Law Commons^™

Winter 2025 - Judicial Analytics, University Of Michigan Law Library

Legal Tech Series

Applying to a clerkship? Client asking the likelihood a judge will grant their motion? Writing a brief and need to find citations a judge prefers? Curious what other attorneys think of that judge? In this session, you will gain hands-on experience using analytics databases to understand why each is critical to ensuring your success in the courtroom.

Resources covered: Lex Machina, Context, Almanac of the Federal Judiciary, Westlaw Litigation Analytics

Should The United States Abandon Citizenship-Based Taxation?, Reuven S. Avi-Yonah

Law & Economics Working Papers

President Trump proposed during the election campaign to end the "double taxation" of American citizens living overseas. To which the answer is, what double taxation? Americans living overseas already benefit from three significant provisions that in most cases prevent any double taxation, and because of these most of them do not have any U.S. tax liability. Those who do are typically wealthier, derive income from investments or from high wages, and are not subject to foreign tax because they live in tax havens or in countries that do not tax rich immigrants on foreign source income, and they do not …

Sanctioning Negligent Bankers, Kyle D. Logue, W. Robert Thomas, Jeffery Y. Zhang

Law & Economics Working Papers

Over just one week in 2023, depositor runs at a few U.S. banks threatened a worldwide banking crisis. Afterwards, the United States would suffer three of the biggest bank failures in the nation’s history; in Europe, Credit Suisse became the largest financial institution to fail since the 2007-2008 Global Financial Crisis. Stunned by this lightning-fast panic, lawmakers, regulators, and academics have called for significant changes to the U.S. financial regulatory framework. Leading among these proposals are calls to improve supervisory oversight of banks, to tighten existing regulations on banks, and to increase deposit insurance limits. But these proposals alone are …

Bank Fragility After Mergers, Jeffrey Jou, Teng Wang, Jeffery Y. Zhang

Law & Economics Working Papers

Do banks become more fragile after merging? By constructing a novel forward-looking measure of fragility and exploiting staggered interstate banking deregulation as exogenous shocks to bank mergers, we show that the loan portfolios of merged U.S. banks become more vulnerable to adverse economic conditions. However, merger size matters. The increase in fragility is driven almost entirely by mega-mergers of large banks, suggesting the presence of moral hazard. In addition, we find that increased geographic or portfolio diversification following mergers does not offset the increase in fragility. If anything, mergers between large banks that have significantly dissimilar portfolios can actually worsen …

Designing Contract Modification, Albert H. Choi, George Triantis

Law & Economics Working Papers

For long-term commercial contracts, modification tends to be the norm rather than the exception. While modification often takes place in response to an arrival of new information, contracting parties frequently modify the terms in response to a shift in bargaining power. In this paper, we explain how the flexibility to renegotiate in response to a shift in bargaining power can facilitate long-term contracting and thereby beneficial reliance investments and risk allocation. The prospect of modification can induce contracting parties who expect their bargaining power to improve, such as from the emergence of outside opportunities, to enter into contracts earlier and …

Confronting Catastrophic Risk: The International Obligation To Regulate Artificial Intelligence, Bryan Druzin, Anatole Boute, Michael Ramsden

Michigan Journal of International Law

While artificial intelligence (“AI”) holds enormous promise, many experts in the field are warning that there is a non-trivial chance that the development of AI poses an existential threat to humanity. Existing regulatory initiatives do not address this threat but instead merely focus on discrete AI-related risks such as consumer safety, cybersecurity, data protection, and privacy. In the absence of regulatory action to address the possible risk of human extinction by AI, the question arises: What obligations, if any, does public international law impose on states to regulate its development?

At present there is no scientific consensus as to the …

Civil Jury Trial Discussions In Colorado: Perspectives From Judees And Attorneys After Twenty-Five Years Of Jury Reform, Juan G. Villaseñor

University of Michigan Journal of Law Reform Caveat

In the United States, the overwhelming practice in civil jury trials (and certainly in criminal trials) is that jurors must wait to deliberate until they have heard all the evidence, the attorneys’ closing arguments, and received the instructions on the law from the court. Generally, jurors may not discuss the evidence they are hearing or seeing as the trial progresses, and the judge, at multiple points during the trial, typically instructs jurors not to do so, especially before any recess.

Colorado, among a handful of other jurisdictions, is an exception to that practice. In civil jury trials in district court, …

Reforming The Medical Expense Income Tax Deduction To Better Reflect "Crip Time", Diane Kemker

University of Michigan Journal of Law Reform Caveat

Extraordinary medical expenses— whether due to a one-time occurrence or a chronic condition— happen on their own time. These expenses, their causes, and their consequences (medical, personal, financial, or all of these) can rarely be neatly cabined into a single calendar year. Treatment requiring an expensive prescription medication or complex surgery not covered by insurance may address a condition that arose over years. That condition may have interfered with a taxpayer’s ability to work in prior years, the current year, and perhaps for years to come, even for the rest of the taxpayer’s earning life. The medical condition of a …

The Allure Of Trade And Sustainable Development Chapters, Jeesae Kim

Michigan Journal of International Law

Beginning in 2011, the European Union (“EU”) began to include independent Trade and Sustainable Development (“TSD”) chapters in its trade agreements. These chapters seek to protect international labor standards, environmental laws, and corporate social responsibility practices within the scope of the EU’s trade agreements. Trading states that sign onto TSD chapters are meant to engage in ongoing dialogue regarding the substantive commitments outlined in the chapters. If one of the states fails to uphold its substantive commitments, the other state may invoke a unique enforcement mechanism contained within TSD chapters. But unlike arbitration proceedings for non-TSD trade disputes, the TSD …

Rewriting Precedent: How International Adjudicators Influence Compliance, Jeffrey Kucik, Lauren Peritz, Sergio Puig

Michigan Journal of International Law

International cooperation depends on adaptation to changing conditions. International dispute settlement bodies can play a key role in maintaining cooperation over time. Evidence suggests that when legal bodies successfully adapt the law through the reinterpretation of rules, they can promote state compliance. However, this process is incremental and may not happen quickly enough, which can lead to backlash against international courts. In this article, we analyze these dynamics at the World Trade Organization (“WTO”), the global institution regulating international trade. Relying on data and case studies, we show how the Appellate Body modified its interpretations to promote compliance. Because this …

Economic Sanctions As Legal Ordering, J. Benton Heath

Michigan Journal of International Law

This article recovers a critical episode in the history of economic sanctions and considers its implications for international legal order. Beginning in 1905, a group of Chinese citizens launched a series of protests targeting American, British, and Japanese goods. These boycotts caused economic damage, disrupted international relations, and at times won significant political victories. At the same time, they captured the imaginations of peace advocates, lawyers, and scholars, who saw in the boycotts either a fundamental threat to legal ordering, a promising avenue for enforcing interstate peace, or, most radically, an engine for new kinds of political organization outside the …

Integrating The Workforce: A Proposed Expansion Of The Lane V. Kitzhaber Rule, Dean Farmer

Michigan Law Review

Sheltered workshops are workplaces that employ, and may legally pay subminimum wages to, individuals with disabilities. Though these workshops have historically been a large part of disability employment services in the United States, many policymakers have advocated for a shift from sheltered workshops to integrated disability employment services, in which individuals with disabilities work alongside other workers for an equal wage that meets or exceeds the minimum wage. In Lane v. Kitzhaber, the U.S. District Court for the District of Oregon applied Title II of the Americans with Disabilities Act (ADA) to sheltered workshop programs, holding that states must …

Public Patent Powers, Laura E. Dolbow

Michigan Law Review

Congress has created multiple structures for agencies to control how patents are used, but that institutional design choice has received little academic attention. This Article provides the first comprehensive survey of existing laws that expressly authorize agencies to control patents. I locate 113 express conditions across 68 laws that expressly authorize executive actors to make some form of decision about patents. These powers, which I refer to as “public patent powers,” allow the government to use patented inventions, to obtain patents, to authorize third parties to use patented inventions, and to regulate how patents are used. Agencies have used many …

Retrenchment By Diversion: The New Politics Of Parental Rights, Mary Ziegler, Maxine Eichner, Naomi Cahn

Michigan Law Review

For the past century, the Supreme Court has repeatedly affirmed the importance of parents’ rights to direct their children’s upbringing and education. Yet suddenly the rhetoric of parental rights is being used to ground a broad range of claims on issues such as what can be taught in public schools, when minors can access gender-affirming care, or who will be punished for helping minors travel for abortion care. Why have parental-rights claims surged so visibly in contemporary law and politics? And are all the new arguments made under the banner of parental rights equally rooted in constitutional precedent?

This Article …

Toward An Economic Fair Housing Act, Nat Jordan

Michigan Law Review

This Note evaluates the prospect of an “Economic Fair Housing Act” through the framework of antidiscrimination law. The proposed bill—a brainchild of housing expert Richard Kahlenberg—would amend the Fair Housing Act to make economic status a protected class alongside race, national origin, religion, sex, and disability. Currently, fair housing lawsuits against local governments rarely succeed. Plaintiffs must present resounding statistical evidence of blatant racial disparities directly caused by exclusionary policies. Simultaneously, many local governments deter homebuilding through restrictive zoning ordinances that prevent lower-income people from moving in.

An Economic Fair Housing Act (EFHA) could help address these twin shortcomings of …

Read But Not Understood? An Empirical Analysis Of Consumer Comprehension In Homeowners Insurance, Daniel Schwarcz, Brenda J. Cude, Kyle D. Logue, German Marquez Alcala

Law & Economics Working Papers

Modern contract law assumes that consumers meaningfully assent to the standard forms that govern their daily lives. However, this assumption is widely regarded as a legal fiction for two key reasons: first, most consumers do not read standard forms, and second, even those who do often struggle to fully comprehend their terms and implications. While the lack of consumer reading has been well-documented through empirical research, consumers’ ability to comprehend standard form contracts has received surprisingly little attention.

This Article addresses the latter issue by empirically examining whether providing excerpts from the dominant standard form homeowners insurance policy improves consumer …

The Role Of Unrealized Gains And Borrowing In The Taxation Of The Rich, Edward Fox, Zachary Liscow

Law & Economics Working Papers

As deficits rise and concerns about tax avoidance by the rich increase, we study how unrealized gains and borrowing affect Americans’ income taxes. We have four main findings: First, measuring “economic income” as currently-taxed income plus new unrealized gains, the income tax base captures 60% of economic income of the top 1% of wealth-holders (and 71% adjusting for inflation) and the vast majority of income for lower wealth groups. Second, adjusting for unrealized gains substantially lessens the degree of progressivity in the income tax, although it remains largely progressive. Third, we quantify for the first time the amount of borrowing …

Winter 2025 - Finding Briefs & Other Court Filings, University Of Michigan Law Library

Legal Tech Series

The judicial opinion is the last chapter of a long story. The key to a case’s history is its docket. This program will guide you through the steps to finding complaints, briefs, motions, and other filings by searching and finding court dockets. Get the whole story Underground!

Resources covered: CourtLink, Bloomberg Dockets, PACER, CourtListener/RECAP

Perttu V. Richards: Brief Of Law Professors As Amici Curiae In Support Of Respondent, Margo Schlanger

Appellate Briefs

Amici are professors of law who have studied, taught, and written about prisoner litigation and about rights to jury trials. They submit this brief to share their views, based on that experience, on the proper interpretation of the Prison Litigation Reform Act) in light of the important jury trial rights at stake and the practical realities of prisoner litigation.

Perttu V. Richards: Brief Of Law Professors As Amici Curiae In Support Of Respondent, Margo Schlanger

Appellate Briefs

Amici are professors of law who have studied, taught, and written about prisoner litigation and about rights to jury trials. They submit this brief to share their views, based on that experience, on the proper interpretation of the Prison Litigation Reform Act) in light of the important jury trial rights at stake and the practical realities of prisoner litigation.

Altering Rules: The New Frontier For Corporate Governance, Gabriel Rauterberg, Sarath Sanga

Law & Economics Working Papers

Corporate law has taken a contractarian turn. Shareholders are increasingly contracting around its foundational rules—statutory rights, the fiduciary duty of loyalty, even the central role of the board—and Delaware courts are increasingly enforcing these contracts. In the one case where they did not, the legislature swiftly overruled the decision and adopted a new statutory provision permitting boards to completely cede their powers to a shareholder by contract. These developments have sparked a polarized debate, with some calling for a return to mandatory rules, while others push for total contractual freedom.

We argue, however, that the solution lies neither in rigid …

Three Implications Of Moore., Reuven S. Avi-Yonah

Articles

In his majority opinion in Moore, Justice Brett Kavanaugh listed several provisions of the code that could be subject to a constitutional challenge if realization were a constitutional requirement, as suggested by Justices Amy Coney Barrett, Samuel A. Alito Jr., Clarence Thomas, and Neil M. Gorsuch. Kavanaugh wrote: In short, the Moores cannot meaningfully distinguish the [mandatory repatriation tax] from similar taxes such as taxes on partnerships, on S corporations, and on subpart F income. The upshot is that the Moores’ argument, taken to its logical conclusion, could render vast swaths of the Internal Revenue Code unconstitutional. See, e.g., 26 …

Federal Communications Commission V. Consumers' Research: Brief Of Julian Davis Mortenson And Nicholas Bagley As Amici Curiae In Support Of Petitioners, Julian Mortenson, Nicholas Bagley

Appellate Briefs

Julian Davis Mortenson and Nicholas Bagley are professors at the University of Michigan Law School. Mortenson is a specialist on the history of executive authority and the separation of powers. Bagley is a leading scholar in administrative law. They are the co-authors of Delegation at the Founding, 121 Colum. L. Rev. 277 (2021), a leading article examining Founding- era constitutional principles regarding legislative delegations of authority, and Delegation at the Founding: A Response to the Critics, 122 Colum. L. Rev. 2323 (2022).

Copyright Doctrine Before The Tribunal Of Science: A Response To Professor Silbey, Matt Blaszczyk

Fellow, Adjunct, Lecturer, and Research Scholar Works

This is a response to Jessica Silbey’s article, A Matter of Facts: The Evolution of the Copyright Fact-exclusion and Its Implications for Disinformation and Democracy, which appeared in Volume 70(3) of the Journal of the Copyright Society.

100th Henry M. Campbell Moot Court Competition: Final Round, University Of Michigan Law School

Event Materials

Nearly a century has passed since Henry Munroe Campbell’s law partners met with the dean of the University of Michigan Law School to establish a memorial for their friend and colleague. As a result, the Law School’s nascent “case club competition” was named in Mr. Campbell’s honor, a fitting way to combine his love for Michigan Law, oral advocacy, and the training of young lawyers.

I do not know what Mr. Campbell’s law partners envisioned when they met with the dean. They couldn’t have envisioned this beautiful room we are in today for the Final Round—Hutchins Hall didn’t even exist …

Law In Society: Defending Hart, Alma Diamond

Fellow, Adjunct, Lecturer, and Research Scholar Works

I revisit the debate between Joseph Raz and H. L. A. Hart concerning the nature of legal content and reasoning. Raz contended that legal reasoning should be analyzed as a form of moral reasoning. In contrast, Hart emphasized the distinction between legal and moral content, proposing that legal reasoning is a form of what I will call social-institutional reasoning. I characterize social-institutional reasoning in terms of the agent-relative, domain-specific, universal, and content-insensitive justifications it draws upon. I evaluate Raz’s moralized analysis and argue that it obscures the distinctive contribution that law’s social and institutional grounds play in our understanding of …

Empirical Essays On Mobility-Restricting Covenants, Lorenzo G. Luisetto

SJD Dissertations

This thesis, which consists of four essays, uses empirical methods to study questions on the use of mobility-restricting covenants in business and employment contracts.

The first chapter investigates the spillover effects of the so-called “No-Poach Initiative,” an enforcement action launched by the Antitrust Division of the State of Washington Attorney General’s Office in January 2018 that led 237 franchisors to agree to stop using no-poaching clauses—i.e., provisions in franchise contracts that prohibit franchisees from hiring each other’s employees—nationwide. I document that approximately one third of the franchisors not targeted by the No-Poach Initiative removed the no-poaching clause from their franchise …

Identifying The Guilty, Protecting The Innocent: Amending The Federal Rules Of Evidence To Address Admissibility Of Eyewitness Identification, Louisa M. A. Heiny

University of Michigan Journal of Law Reform

Mistaken eyewitness identification is among the most common factors in wrongful conviction cases. Indeed, hundreds of innocent defendants have been convicted for a crime they did not commit, their fate sealed by an eyewitness who convincingly, but mistakenly, testified, “That’s the one!”

Scientific researchers have documented the fallibility of eyewitness identification for decades. Their collective work has produced recommendations for eyewitness identification reform, focusing on procedural problems most likely to result in mistaken identification. The law in this area, however, has not kept pace with the science. Rather than representing a cohesive series of safeguards against inaccurate eyewitness identifications, federal …

Accessibility For All?, Jessica Pasquale

Law Librarian Scholarship

There are new Americans with Disabilities Act requirements for state and local governments, so as employees of the University of Michigan, my colleagues and I have been preparing to meet them for over a year. Recently, I began wondering about the accessibility of websites for law firms in Michigan, so I conducted a brief and informal survey of randomly selected firms based on affiliations listed in the State Bar of Michigan’s ‘Find a Lawyer’ directory. I ran each site through the automated tool offered by AccessibilityChecker.org and found that 100% of the sites I checked were rated as noncompliant with …

Generative Artificial Intelligence: Legal Ethics Issues, Kincaid Brown

Law Librarian Scholarship

Generative artificial intelligence (GenAI) is transforming nearly every sector of society including the practice of law. Legal professionals are increasingly using AI tools for research, drafting, contract review, and even predicting judicial outcomes with as many as one third of respondents to a survey using GenAI daily. But with this rapid adoption come questions that go beyond efficiency and instead point to the core of legal ethics including issues such as competence, confidentiality, and professional judgment.