Law Commons^™

Reparations For Colonialism: Beyond Legal Responsibility, Steven R. Ratner

Articles

Reparations for colonialism and colonial-era atrocities have moved from an unrealized demand of citizens, politicians, and thinkers in the Global South to a project with some results in the real world. Key markers include the return of numerous art objects from museums in the Global North to their countries of origin; the release of the Caribbean Community and Common Market’s (CARICOM) proposal for reparations; and Namibia’s agreement with Germany on compensation for the German genocide against the Herero people in 1904–08 —along with the resultant controversy. These developments follow earlier claims for reparations directed to—and their eventual acceptance by—the governments …

Neo-Brandeis Goes To Washington: A Provisional Assessment Of The Biden Administration’S Antitrust Record, Daniel A. Crane

Articles

In early 2021, a new coterie of trustbusters came to Washington with the stated purpose of radically overhauling the antitrust status quo. The three central figures—Federal Trade Commission (“FTC”) Chair Lina Khan, Department of Justice (“DOJ”) Antitrust Division Assistant Attorney General (“AAG”) Jonathan Kanter, and Special Assistant to the President for Technology and Competition Policy in the White House Tim Wu—were self-identified neo-Brandeisians, committed to returning antitrust policy to a contemporary version of Justice Louis Brandeis’s ideas. At the urging of Senator Elizabeth Warren, President Biden turned over his Administration’s antitrust policy to the neo-Brandeisians, who vowed to break antitrust’s …

Reckoning With Social Policy In Utility Regulation, Alexandra B. Klass, Gabriel Chan

Articles

State public utility regulation in the energy sector is undergoing a rapid transformation driven by public and private investment in clean energy deployment, the corresponding threat to incumbent fossil fuel interests, and growing demands for energy justice. This transformation will impact many aspects of societal well-being—from energy insecurity in disadvantaged communities to dramatic shifts in energy-sector employment—so it is unsurprising that public utility commissions would engage with social policy concerns. However, for decades, state courts and utility stakeholders have admonished commissions that they are economic regulators and that their jurisdiction does not include social policy. This Article shows that state …

Fletcher's Uncertainty Principle, Matthew L.M. Fletcher

Articles

am here to talk about the equal protection challenges facing Indian Country. I am going to give you my thesis right off the bat, which is that Haaland v. Brackeen decided the equal protection issue for us already, and we should behave as if it is decided.

I will explain what I mean by that. But first, let’s talk about what we will call the Mancari rule. The Mancari rule is fundamentally what Indian law is about, and it goes something like this—I am going to more or less paraphrase the guiding principle of Morton v. Mancari from 1974. Any …

The Sovereignty Problem In Federal Indian Law, Matthew L.M. Fletcher

Articles

There is a sovereignty problem in federal Indian law-namely, that the federal government's sovereign defenses prevent tribal nations and individual Indian people from realizing justice in the courts. Often, compelling tribal and Indian claims go nowhere as the judiciary defers to the interests of the United States, even where Congress has expressly stated its support for tribal interests. Conversely, tribal judiciaries allow claims to proceed to the merits, invoking customary and traditional law to hold tribal governments accountable.

Sovereignty theory helps to explain why justice can be done in one court system but not another. But federal, state, and tribal …

Understanding Federal Rule Of Evidence 104(B) On Building Walls And Missing Bricks, Len Niehoff, Shannon Hickey

Articles

We use individual pieces of evidence to construct our cases, recognizing that no one of them, taken in isolation, suffices to get the job done. As Professor McCormick famously said of evidence, “a brick is not a wall.” Federal Rule of Evidence 104(b) explains the logical relationship between those various pieces of evidence and how they help us build our proofs. Or perhaps we should say that the rule tries to explain it, without much success.

Environment Scan Of Generative Ai Infrastructure For Clinical And Translational Science, Hua Xu, Jiang Bian, Chunhua Weng, Yifan Peng, Betina Idnay, Zihan Xu, William G. Adams, Mohammad Adibuzzaman, Nicholas R. Anderson, Neil Bahroos, Douglas S. Bell, Cody Bumgardner, Thomas Campion, Mario Castro, James J. Cimino, I. Glenn Cohen, David Dorr, Peter L. Elkin, Jungwei W. Fan, Todd Ferris, David J. Foran, David Hanauer, Mike Hogarth, Kun Huang, Jayashree Kalpathy-Cramer, Manoj Kandpal, Niranjan S. Karnik, Avnish Katoch, Albert M. Lai, Christophe G. Lambert, Lang Li, Christopher Lindsell, Jinze Liu, Zhiyong Lu, Yuan Luo, Peter Mcgarvey, Eneida A. Mendonca, Parsa Mirhaji, Shawn Murphy, John D. Osborne, Ioannis C. Paschalidis, Paul A. Harris, Fred Prior, Nicholas J. Shaheen, Nawar Shara, Ida Sim, Umberto Tachinardi, Lemuel R. Waitman, Rosalind J. Wright, Adrian H. Zai, Kai Zheng, Sandra Soo-Jin Lee, Bradley A. Malin, Karthik Natarajan, Nicholson Price, Rui Zhang, Yiye Zhang

Articles

This study reports a comprehensive environmental scan of the generative AI (GenAI) infrastructure in the national network for clinical and translational science across 36 institutions supported by the CTSA Program led by the National Center for Advancing Translational Sciences (NCATS) of the National Institutes of Health (NIH) at the United States. Key findings indicate a diverse range of institutional strategies, with most organizations in the experimental phase of GenAI deployment. The results underscore the need for a more coordinated approach to GenAI governance, emphasizing collaboration among senior leaders, clinicians, information technology staff, and researchers. Our analysis reveals that 53% of …

Voter Harassment And The Limits Of State And Federal Power, Ellen D. Katz

Articles

Acts of voter harassment are often difficult to prevent. One longstanding, albeit underused, tool for addressing such harassment is found in section 11(b) of the Voting Rights Act (VRA). Continued use of the provision, however, is threatened by recent decisions restricting private enforcement of the VRA. This Essay examines one challenge to such enforcement, exploring the linkage between section 11(b)’s prohibition on voter intimidation and the enforcement of constitutional voting guarantees, on which private enforcement of the provision presently depends. It invites consideration of the idea that this linkage is sufficient and private enforcement is appropriate because section 11(b) provides …

Creditors, Shareholders, And Losers In Between: A Failed Regulatory Experiment, Albert H. Choi, Jeffery Zhang

Articles

In the aftermath of the 2007–08 Global Financial Crisis, regulators encouraged many of the world’s largest banks to hold a new type of regulatory instrument with the goal of improving their safety and soundness. The regulatory instrument was known as a “CoCo,” short for contingent convertible bond. CoCos are neither debt nor equity. They are something in between, designed to give the bank a shot in the arm during times of stress. Many of the largest international banks have issued CoCos worth hundreds of billions of dollars. After more than ten years—a decade that includes the collapse of Credit Suisse …

Memory, Resistance, And Doubt, Richard Primus

Articles

Burroughs v. United States is not a famous case. But it could be. Its central character was a famous man. James Cannon, Jr., was a bishop in the Methodist church, a player in the worlds of business and banking, a ruthless political power broker, and a zealous Prohibitionist. In Virginia, where he lived, his role within the Democratic Party earned him the informal title of “the dry boss of the state,” and his influence extended well beyond the Old Dominion. Indeed, the essayist H.L. Mencken identified Cannon as the most important Prohibitionist in the country. “More than any other man,” …

Physicists As Environmental Experts, Rachel Rothschild

Articles

The question of which scientists are qualified to provide expert guidance in legal controversies is a perennial debate among scholars, judges, and lawyers. Scientists who participate in legal disputes can achieve enormous power and influence, not only over the case at hand but over long-term developments in legal doctrine. While these issues arise in many areas of the law, environmental litigation has been a particularly active site of contestations over epistemic authority. Courts have frequently relied on scientists to understand whether the government is justified in regulating pollution and who may be liable for environmental and public health harms.

This …

Gregory, Textualism, And Tax Shelters, Reuven S. Avi-Yonah

Articles

In this installment of Reflections With Reuven Avi-Yonah, Avi-Yonah suggests that courts should adopt a consequentialist approach to tax shelter litigation that would acknowledge the long- term risks of enabling tax shelters and seek to prevent their recurrence. In his excellent article on Gregory v. Helvering, David Elkins says that the common assumption that the case was about abuse of the tax-free reorganization provisions of the code is mistaken. Therefore, he argues, both Judge Learned Hand and the Supreme Court were wrong when they focused on whether the transaction was a “reorganization” as intended by Congress. Instead, they should have …

The Future Of Ai Regulation In Drug Development: A Comparative Analysis, Gabriela Lenarczyk, Timo Minssen, W. Nicholson Price Ii, Arti Rai

Articles

As artificial intelligence (AI) transforms drug development, regulatory frameworks are evolving to oversee its implementation, particularly at the US Food and Drug Administration (FDA) and the European Medicines Agency (EMA). This paper makes three contributions to understanding emerging regulatory approaches. First, we offer a comparative analysis of how these agencies have responded to AI-driven advances, incorporating new US executive orders and the European Union (EU)’s AI Act. Second, we propose a novel analytical framework to understand regulatory divergence: the FDA’s flexible, dialog-driven model contrasts with the EMA’s structured, risk-tiered approach, reflecting broader institutional and political-economic differences. While the former encourages …

Lunar Refueling: Legal Issues And Suggested Solutions, Francesca Giannoni-Crystal

Journal of Law and Mobility

The establishment of settlements and economic activities on the Moon is expected to occur in the near future, positioning the Moon as a critical hub for continued exploration of the Solar System. Central to this development is the creation of a lunar refueling industry, which will play a pivotal role in supporting lunar activities and fostering further exploration.

Lunar refueling, which includes extracting local resources like lunar ice water to obtain hydrogen, offers key benefits, such as reducing the need for resupply missions from Earth, lowering launch costs, extending mission capabilities, and enabling launches from the Moon, which are more …

Pave Outer Space And Put Up A Parking Lot: Lagrange Points Should Be The Common Heritage Of Mankind, David A. Koplow

Michigan Journal of International Law

Outer space offers a vast array of opportunities, with different locations or regions available for exploitation by diverse users for a growing variety of satellite functions. But not all sectors of space are equally valuable for all applications, and the most desirable venues can become crowded, affording a premium for those who gain access first and impeding the development of a fair and efficient all-inclusive international legal regime.

This article focuses on Lagrange points, a finite series of special locations in space where the gravitational forces from a pair of large celestial bodies interact in unusual ways. These points afford …

Man On Mars: How Can International Space Law Limit The Environmental Consequences Of The Coming Rush For Resources In Space, Elizabeth Anne Henderson

Michigan Journal of International Law

The body of international law governing space has stood at a standstill for decades. The five central treaties regulating this area of law are not only vague, but they have also become a hindrance to the global community’s ability to address the rapidly intensifying second space race. The treaties do not adequately state who space belongs to, who is entitled to take advantage of the natural resources of celestial bodies, or what protections are afforded to celestial environments in the face of impending mining and resource extraction projects. This impasse within international law has not stopped entrepreneurs and corporations from …

Next In Line: Addressing The Constitutional And Policy Problems With The Current Presidential Line Of Succession, Arian Carlo Rubio

University of Michigan Journal of Law Reform

The presidential line of succession is a critical component of the United States government, designed to ensure continuity and stability in the executive leadership during crises. This Note examines the current statutory provisions concerning presidential succession to identify constitutional ambiguities and practical challenges that could undermine governmental operations during unforeseen emergencies.

Through a detailed analysis of historical instances, such as the incapacitation scenarios of past presidents and recent threats to government officials, including the COVID-19 pandemic and a rise in political violence, this Note highlights the risks posed by the existing succession framework. The ambiguity primarily revolves around the roles …

Lawyers And The Abuse Of Government Power, Margaret Tarkington

University of Michigan Journal of Law Reform

The legal profession needs to amend the rules of professional conduct to protect our constitutional system of government from those most likely to effectively undermine it: lawyers. The historic federal indictment against President Donald Trump for conspiring to stay in power after losing the 2020 presidential election included five attorney co-conspirators: Rudy Giuliani, John Eastman, Sidney Powell, Jeffrey Clark, and Kenneth Chesebro. Eight lawyers were indicted in Georgia on similar charges.

Lawyers weren’t just involved in Trump’s plot; they devised and enabled it. Rather than accurately advise Trump that he had lost and needed to concede, lawyers crafted a plan …

Court Forms And Court Reforms: Pro Se Litigants And The Limited Success Of Standardized Family Court Forms, Caroline Rogus

University of Michigan Journal of Law Reform

The first step in any civil lawsuit, long before a court will contemplate awarding relief, is initiating the court matter: a plaintiff must always start by effectively pleading their case. The court system rests upon the presumption that an attorney will create and file the requisite court documents—including complaints, answers, and motions—on behalf of their client. The reality, however, is that an extraordinarily high number of litigants do not have legal representation and must therefore proceed pro se and submit these documents on their own. Most jurisdictions offer pro se litigants standardized, fillable court forms. These forms are intended to …

The Carceral State(S), Esther K. Hong

Michigan Journal of Race and Law

The carceral state is everywhere. Legal and social science scholars are increasingly using the carceral state concept to criticize various aspects, or even the entirety, of the United States. But despite how popular and common this term has become in writings about mass incarceration, criminal processes and punishments, and other forms of social control, the definition, conceptualization, and theorization of the carceral state are far from settled. This Article analyzes and contributes to this discussion by highlighting the diversity and fluidity of ideas surrounding the carceral state.

Although the term often appears without an express definition, the limited ones that …

Reformed But Not Repaired, Nia Johnson

Michigan Journal of Race and Law

Traditionally, scholars and policymakers concerned with making improvements to health care systems and structures have focused on insurance reform. The ACA— the United States’ most recent and substantial healthcare reform—was hoped to be an intervention that would help provide equity to all Americans. Indeed, scholars and policymakers viewed increasing access to health care through insurance coverage as a victory. And yet, despite these interventions, the COVID-19 pandemic revealed a number of policy gaps that disproportionately impacted racial minorities. Specifically, racially marginalized Americans still experienced the starkest disparities in COVID-19 complications and mortality. This has left scholars and policymakers to answer …

Was The Niit A Treaty Override?, Reuven S. Avi-Yonah

Articles

Three court decisions have recently addressed the interaction of the NetInvestment Income Tax (NIIT) and U.S. tax treaties. The issue waswhether the treaty provided an independent basis for crediting a foreigntax against the NIIT, because no such credit is available under the Code.First,in Toulouse, the Tax Court held that there was no treaty-based credit.Second,in Christensen, the Court of Federal Claims held that a treaty-based credit wasavailable, distinguishing Toulouse.Third, in Bruyea, the Court of Federal Claimsissued a broader opinion that allowed the credit.

Who Speaks For The State?, Robert Young, Kristina Daugirdas, Diem Ho, Duncan Pickard, Larry D. Johnson

Articles

Who speaks for the state is a critical question in international relations. Statements by government representatives have normative force—capable of binding the state in numerous ways, from norm formation to staking out a litigation position. Governments choose their representatives carefully, and typically vet positions and even statements in advance. Indeed, the stability of international relations hinges on the assumption that state representatives act with governmental authority. The stakes of disputes over who speaks for the state are thus high.

Several such contestations have emerged in recent years, in a variety of international fora. At the United Nations General Assembly, the …

Examining State Climate Superfund Legislation, Madison Calhoun, Rachel Rothschild, Jonathan Binder, Elenda Mihaly, Justin Mankin, Ben Lippard, Mary Wood

Articles

There has been an influx of “climate superfund” bills introduced and adopted in state legislatures across the country. Modeled after the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), these laws are designed to recover costs from large emitters of greenhouse gases (GHGs) to pay for climate adaptation infrastructure. Following CERCLA’s strict liability framework, major polluters in New York and Vermont would be required to pay into state-managed funds in proportion to their shares of total GHG emissions; California, Maryland, Massachusetts, New Jersey, and Oregon have proposed similar bills. On March 19, 2025, the Environmental Law Institute hosted a …

The State Capacity Crisis, David Schleicher, Nicholas Bagley

Articles

Crumbling infrastructure, inadequate housing supply, failing schools, public disorder—few government services seem to work as they should. For a decade, a nascent scholarly movement has been warning that America faces a crisis of state capacity. Although the major figures in this “state capacity movement” have identified the right problem, they concentrate almost exclusively on the federal government. That yields a misdiagnosis of why the American government lacks capacity and leads to solutions that are unlikely to accomplish much. In the United States, it is state and local governments that do most of what “the state” does, and they suffer from …

The New Substantive Due Process, Leah M. Litman

Articles

After the Supreme Court overruled Roe v. Wade, commentators made much about the possible demise of substantive due process—the idea that the Constitution safeguards certain substantive liberties that are not specifically or explicitly spelled out in the Constitution. Judges and scholars are debating which substantive due process decisions are next on the chopping block and whether the entire domain of substantive due process is in jeopardy. But a curious thing happened as the Court scaled back and openly questioned the traditional individual-rights line of substantive due process: Rather than eliminating it entirely, the Court seems to have transposed it elsewhere. …

The Three Lives Of Mamengwaa: Toward An Indigenous Canon Of Construction, Matthew L.M. Fletcher

Articles

For too long, tribal judiciaries have been an afterthought in the story of tribal selfdetermination. Until the last half-century, many tribal nations relied on federally administered courts or had no court systems at all. As tribal nations continue to develop their law-enforcement and police powers, tribal justice systems now play a critical role in tribal self-determination. But because tribal codes and constitutions tend to borrow extensively from federal and state law, tribal judges find themselves forced to apply and enforce laws that are poor cultural fits for Indian communities—an unfortunate reality that hampers tribal judges’ ability to regulate and improve …

Inventing Birthright: The Nineteenth-Century Fabrication Of Jus Soli And Jus Sanguinis, Sam Erman, Nathan Perl-Rosenthal

Articles

Formal membership in a state has been an essential political status for well over a century. It is typically gained at birth, either jus soli or jus sanguinis. Jus soli assigns nationality by birth in a nation's territory; jus sanguinis assigns children their parents’ nationality. This article provides an alternative intellectual history of the modern dominance of these principles for attributing nationality. Contrary to prior scholarship, soli and sanguinis were not restatements of existing principles. The soli/sanguinis binary was a nineteenth-century invention. Old-regime European empires attributed membership in the community under one or another single natural law principle. Parentage and …

Feedback Loops: Challenge & Recovery, Patrick Barry

Articles

About halfway through the course on feedback I teach to law students, I tell them to take out their calendar and look over their recent schedule. How many days in the previous few weeks, I ask them, felt like "challenge days"? I explain that challenge days are days when you have to perform at a high level, whether because a major task requires a lot of your energy and mental bandwidth-studying for a big test, preparing for a tough negotiation, dealing with an unexpected family crisis-or because the time available to handle a lot of minor tasks seems cruelly inadequate. …

Labor Law, Ownership, And The Firm, Sanjukta Paul

Articles

In shaping economic coordination within and across both firms and markets, one significant action of law is to allocate privileges or rights between people or groups of people. These include the right to coordinate with other people or groups of people in particular ways regarding core economic decisions-a type of activity that is not always or in all circumstances legally permissible. An area that makes this more general action of law especially concrete is antitrust or competition law, with its collection of "exemptions." Antitrust's formal and informal exemptions quite directly allocate economic coordination rights, for particular kinds of activity, and …