Law Commons^™

Finding The Thinkable Thoughts, Beth H. Wilensky

Reviews

When John B. West developed his legal classification system in the 1880s, he likely didn’t anticipate that his system of indexing the law would persist into the twenty-first century. But persist it has, and flourished, most prominently in the form of Westlaw’s headnote and key number system. West’s index built on several precursors, but it was his version, West’s American Digest, that established the foundations of the classification system that most modern legal researchers use today, in one form or another.

This history—of the late-nineteenth-century fascination with indexing—and much more is told in charming detail in Dennis Duncan’s Index, A …

There Is No Helpful General Rule About Appealing Dismissals Without Prejudice, Bryan Lammon

Michigan Law Review Online

With some frequency, courts wrestle with whether litigants can appeal after dismissal without prejudice. But there is no helpful general rule to answer this question. That’s because the without-prejudice designation is more or less irrelevant to whether the dismissal is a final, appealable decision. In this Essay, I show that the nature of the underlying dismissal— what the dismissal did, not its without-prejudice nature—is what matters for appealability. Courts would do well to ignore whether an action was dismissed without prejudice when it comes to determining appealability.

Curbing Private Enforcement Of The Voting Rights Act: Thoughts On Recent Developments, Ellen D. Katz

Michigan Law Review Online

For decades, private plaintiffs have brought claims to enforce key provisions of the Voting Rights Act (VRA). Recent decisions have tossed out these claims on the ground that enforcement authority lies solely with the Attorney General of the United States. These decisions are deeply flawed. The VRA’s text and structure, history, precedent, and longstanding practice all support private enforcement of the VRA—including private enforcement of Sections 2 and 11(b). This Essay explains why.

A Fresh Look At Judicial Remedies In Eu Equality Law And Beyond: The Untapped Possibility Of Structural Injunctions., Daniel H. Halberstam, Sina Van Den Bogaert

Articles

This article proposes a shift in thinking about judicial remedies (or “sanctions”), from anti-discrimination law to equal pay and beyond.We suggest the currently preferred remedies – one-off declarations, compensation, fines, and simple orders to obey the law – may be insufficient when confronting a recalcitrant institution, complex violations, and broad, ongoing harm. In such cases, we suggest considering a remedy long overlooked in Europe: a “structural injunction”, i.e. ordering changes to an offending organization’s structure, processes, or rules. We argue that under certain circumstances, an injunction, including a structural injunction, may be appropriate or required under EU law to remedy …

Antitrust After The Coming Wave, Daniel A. Crane

Articles

A coming wave of general-purpose technologies, including artificial intelligence ("AI"), robotics, quantum computing, synthetic biology, energy expansion, and nanotechnology, is likely to fundamentally reshape the economy and erode the assumptions on which the antitrust order is predicated. First, AI-driven systems will vastly improve firms' ability to detect (and even program) consumer preferences without the benefit of price signals, which will undermine the traditional information-producing benefit of competitive markets. Similarly, these systems will be able to determine comparative producer efficiency without relying on competitive signals. Second, AI systems will invert the salient characteristics of human managers, whose intentions are opaque but …

Chenery Ii Revisited, Daniel T. Deacon

Articles

Ever since the Supreme Court’s 1947 decision in SEC v. Chenery Corporation, known as Chenery II, agencies have enjoyed wide latitude to develop policy through individual adjudications in addition to rulemaking. Chenery II has never been completely uncontroversial, and in recent years, calls to overturn or limit it have been expressed in increasingly fervent tones. Agency policymaking by adjudication has emerged as a new front in the struggle over the administrative state.

Against the backdrop of such calls, this Article revisits some of the fundamental questions concerning the Chenery II doctrine. I argue in favor of retaining Chenery II’s core …

The Origins Of The Major Questions Doctrine, Rachel Rothschild

Articles

In a series of recent cases, the Supreme Court has invoked the newly named “major questions doctrine” to strike down agency regulations that protect public health and the environment. Several Justices have argued that while the name “major questions” may be new, these decisions are simply the latest iteration in a longstanding effort of the courts to curtail the explosive growth of the administrative state since 1970. The first paradigmatic example of this line of cases is the 1980 “Benzene” case, in which the Supreme Court set aside the Occupational Safety and Health Administration (OSHA)’s new workplace standards for the …

A Global Wealth Tax?, Reuven S. Avi-Yonah

Articles

Mitt Romney famously said during his 2012 presidential campaign that “corporations are people.” Mindy Herzfeld’s column comparing the proposed 2 percent global wealth tax on billionaires with the corporate minimum tax (pillar 2) raises the opposite question: Are people like corporations for tax purposes? I would say no, for several reasons.

Crypto And The Exit Tax, Reuven S. Avi-Yonah

Articles

Robert Goulder has devoted one of his excellent columns to the fascinating case of “Bitcoin Jesus.” As explained by Goulder:

Another billionaire was in the news recently for reasons that relate to taxation, although it’s doubtful he will be accused of much virtue. The man known internationally as “Bitcoin Jesus” got himself arrested in Spain on April 27. He now faces extradition to the United States, where an eight-count criminal tax indictment awaits him. Bitcoin Jesus is coming home.

This is a far cry from the Jesus born in Bethlehem who once said that it was easier for a camel …

Regulating Algorithmic Harms, Sylvia Lu

Law & Economics Working Papers

In recent years, the rapid expansion of artificial intelligence (AI) innovations has led to a rise in algorithmic harms—harms emerging from AI operations that pose significant threats to civil rights and democratic values in today’s technological landscape. A facial recognition system for improving criminal detection wrongly collected sensitive personal data and flagged racial minorities as shoplifters. A risk-prediction algorithm adopted to identify patients denied medical treatment to Black individuals with poor health conditions. A social media algorithm intended to boost social engagement exacerbated addictive behavior and mental illness in teenagers. These harms are becoming increasingly ubiquitous yet often manifest in …

Sourcing Derivatives: Time To Reverse The Rule?, Reuven S. Avi-Yonah

Articles

In their excellent Tax Notes article on the application of withholding taxes on derivatives, Lorenz F. Haselberger and Michael B. Shulman write that:

A taxpayer entering into a derivative may derive income of a kind that is different from the kind of income that would have been realized had the taxpayer instead acquired the underlying asset, resulting in different U.S. withholding tax treatment.

For example, when a foreign taxpayer enters into a swap referencing an equity security or interest rate, amounts it receives that correspond to dividends or interest generally are characterized as periodic payments on a financial contract rather …

Consumer Privacy And The Dobbs Disruption, Mason R. Clark

University of Michigan Journal of Law Reform

The right to reproductive privacy is under attack in the United States, and it is losing ground. Dobbs v. Jackson Women’s Health Organization, the Supreme Court’s 2022 decision that overruled Roe v. Wade’s constitutional protection of abortion and jeopardized privacy rights by proxy, reflects this losing posture. Scholarship in reproductive privacy varyingly critiques federal privacy initiatives, evaluates regulatory interventions, and proposes civil rights frameworks in response to Dobbs. This Article, however, pinpoints how Dobbs created a gaping hole in state consumer privacy laws even as they propagated across the United States. Currently, there are no state consumer privacy …

Animals In Cost-Benefit Analysis, Andrew Stawasz

University of Michigan Journal of Law Reform

Federal agencies’ cost-benefit analyses do not capture nonhuman animals’ (animals’) interests. This omission matters. Cost-benefit analysis drives many regulatory decisions that substantially affect billions of animals. That omission creates a regulatory blind spot that is untenable as a matter of morality and of policy.

This Article advances two claims related to valuing animals in cost-benefit analyses, dubbed the “Weak Claim” and the “Strong Claim.” The Weak Claim argues that agencies typically may value animals in cost-benefit analyses. Usually, no legal prohibitions exist, and such valuation is within agencies’ legitimate discretion. The Strong Claim argues that agencies often must do so …

Shareholder Agreements In India: An Unsettled Jurisprudence., Vikramaditya S. Khanna

Book Chapters

Shareholder agreements (SAs) are becoming more common around the world as the ownership of companies become more concentrated. Larger investors— in particular, private equity investors— often document their understandings about their investments in increasingly sophisticated SAs. India has also witnessed a rise in SAs, usually with foreign private equity players, which reflects a level of sophistication and formality in contract negotiations that was not always present when such agreements were between family or affinity groups. This has placed increasing pressure on Indian case law to evolve in response to these agreements.

This chapter explores that response and finds that it …

Neutral Business Assistance And The Limits Of Complicity Under International Criminal Law, Nikola R. Hajdin

Michigan Journal of International Law

Business transactions between corporations and actors involved in grave human rights violations present significant challenges for the assessment of corporate criminal liability. This is particularly evident in cases of “neutral business assistance,” which refer to business conduct that appears legitimate on the surface and falls within day-to-day business operations but nonetheless contributes to the crime. An example of neutral business assistance is selling generic goods (for example, computer technology) legally at market rates, without the explicit intent to aid criminal activity, that increases the perpetrator’s capacity to carry out human rights violations. In such cases, discerning the point at which …

Aggressor State, Aggressor Individual, And What International Law Does/Should Protect, Nurbanu Hayır

Michigan Journal of International Law

This note examines the measures taken against Russian citizens in the context of the Russo-Ukrainian War in positive international law and analyzes the rationale for sanctioning individual citizens of an aggressor state. It questions whether the gravity of state aggression by Russia enables measures targeting individuals based solely on their Russian citizenship by investigating whether the blanket denial of asylum and imposition of travel bans for Russian citizens constitutes a breach of norms of international law. It further tests this citizenship link by turning to the legality of denationalization of pro-Russian Ukrainian citizens under international law. Building on this foundation, …

The Last Frontier: Fair Procedure In Informal Administrative Adjudication, Michael Asimow

Michigan Journal of Environmental & Administrative Law

The federal government engages in massive amounts of informal adjudication - a process that resolves a dispute between the government and a private party by making an individualized and legally binding decision without being required to conduct an evidentiary hearing if the dispute is not settled. This article sketches the highly diverse world of federal informal adjudication and surveys the procedural requirements imposed on it by due process and federal statutes. It proposes a set of best practices for conducting and improving informal adjudication that are rooted in those legal requirements. Agencies should adapt these practices to their individual circumstances …

Rewriting Nepa: Statutory Continuity And Disruption In A Polarized Era, Daniel A. Farber

Michigan Journal of Environmental & Administrative Law

For decades the National Environmental Policy Act (NEPA) of 1969 was a paradigm of statutory stability. In 2023 that changed overnight with a major rewrite of NEPA as part of the debt ceiling bill. The text of the statute was hurriedly negotiated between President Biden and House Speaker McCarthy, and then passed with virtually no debate.

This article is the first to analyze the amendments. Due to the frenzied enactment process, NEPA is now loaded with overlapping and partially conflicting language, provisions that seem nonsensical if taken literally, and perplexing gaps. The article teases apart these problems, concluding that the …

An Artificial Intelligence Report Card For Judicial Review, Zoe E. Niesel

Michigan Journal of Environmental & Administrative Law

The rapid advancement of technology, including artificial intelligence (AI), is creating new challenges for judicial review under the Administrative Procedure Act (APA). In late 2023, federal administrative agencies publicly disclosed over 700 use cases of AI that employ sophisticated techniques like machine learning and natural language processing. While the APA's flexible judicial review framework certainly allows agencies to utilize new technologies, the APA also requires explainability of agency decisions; thus, agencies must be able to articulate the reasoning and methodology behind AI-enabled decisions for the purpose of judicial review. This Article examines APA judicial review as it applies to agency …

From Columbus To Lansing: Exploring The Prosecution Of Environmental Crimes Within Epa Region 5, Joshua Ozymy, Melissa Jarrell Ozymy

Michigan Journal of Environmental & Administrative Law

Transgressions of federal environmental law involving significant harm or culpable conduct can result in criminal prosecution. However, we know very little about how such prosecutions have taken place within EPA Region 5, which includes Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin. We undertake a content analysis of 2,807 criminal prosecutions that resulted from U.S. EPA criminal investigations from 1983-2022, selecting all 392 prosecutions occurring within Region 5 for analysis. Results show that over $3.4 billion in monetary penalties, 1,039 years of probation, and over 492 years of incarceration were assessed at sentencing. 33 % of prosecutions centered on water pollution, …

Solving The Stranded Asset Problem Of Retiring Coal Plants: An Evaluation Of Regulatory Approaches, Matthew Appel

Michigan Journal of Environmental & Administrative Law

Meeting the Biden administration's goal of cutting greenhouse gases by at least 50 percent from 2005 levels by 2030 will necessarily require transitioning the U.S. energy system away from carbon-intensive fossil fuels like coal. However, coal plants that are retiring early in states with regulated electricity markets usually still have undepreciated book value that has not yet been recovered from ratepayers. If not handled correctly, these "stranded assets" could have financial consequences for utility companies and cause them to actively oppose the energy transition. This Note aims to evaluate possible solutions to this problem. Through the prism of ratemaking legal …

Child-Taking, Diane Marie Amann

Michigan Journal of International Law

A ruling group at times takes certain children out of their community and then tries to remake them in its image. It tries to rid the child of undesired differences, in ethnicity or nationality, religion or politics, race or ancestry, culture or class. There are too many examples: the colonialist residential schools that forced settler cultures on Indigenous children; the military juntas that kidnapped dissidents’ children; and today’s reports of abductions amid crises like that in Syria. Too often nothing is done, and the children are lost. But that may be changing, as the International Criminal Court (“ICC”) is seeking …

Investment Treaty Arbitration Caught In The Public-Private Law Divide, Catharine Titi

Michigan Journal of International Law

The ongoing reform of investor-state dispute settlement (“ISDS”) underlines the pertinence of an old question that has received various and conflicting answers: Is investment arbitration a public or private method of dispute settlement? A key criticism leveled at investment treaty arbitration is that public interest disputes are decided by a system of private justice. This article critically reviews the dominant interpretations of investment treaty arbitration as public, private, or hybrid. It argues that the subjective nature of each interpretation means that none of them can be definitively adopted. Rather, the real arguments in favor of or against arbitration lie beyond …

Evaluating The Elimination Of Peremptory Challenges In Arizona, Hailey Badger Gordon

University of Michigan Journal of Law Reform

The Supreme Court confronted racial discrimination in jury selection in Batson v. Kentucky by prohibiting the use of race as a factor in exercising peremptory challenges. But Batson challenges rarely succeed in overcoming a challenged peremptory strike and have long been criticized as insufficient to eliminate racial discrimination in jury selection. Justice Marshall correctly predicted in his concurring opinion in Batson that racial discrimination in jury selection would continue as long as peremptory challenges were permissible.

Recognizing Batson’s shortfalls, states have experimented with reforms ranging from lowering the required showing for a successful Batson challenge to enumerating presumptively impermissible …

Justifying Redistributive Regulations, Jack Lienke

University of Michigan Journal of Law Reform

Conventional cost-benefit analysis asks whether a regulation’s total benefits exceed its total costs but not whether those benefits and costs are distributed fairly across society. The traditional justification for this indifference to equity is that distributional concerns are most efficiently addressed through the tax-and-transfer system. Agencies issuing regulations, the story goes, should focus on growing the pie (i.e., increasing aggregate welfare). If the regulation that yields the largest pie also yields inequitably apportioned slices, Congress can correct the problem with taxes and transfers.

But Congress often asks agencies to fill in the details of its transfer programs with regulations, such …

Toward An Absolute Privilege From Defamation For Statements Made In Campus Sexual Misconduct Proceedings, Elizabeth Munoz-Smith

University of Michigan Journal of Law Reform

Title IX prohibits recipients of federal funding from discriminating on the basis of sex in their education programs and activities. The regulations implementing Title IX impose strict requirements on the procedures that institutions must follow in investigating and adjudicating complaints of sexual harassment. But survivors using campus processes are facing potential liability for defamation at an increasing rate. The existence of this threat leads to further underreporting of an already-underreported crime, a detrimental impact on survivors’ education, and psychological stress created by the re-traumatization of a civil suit that carries potential monetary liability for their report. This Note argues that …

Once More: Digital Services Taxes Should Be Creditable, Reuven S. Avi-Yonah

Articles

In a previous column, I argued that digital services taxes should be creditable as in-lieu-of taxes under section 903. A new analysis by Jane Gravelle sheds further light on this topic but does not change the outcome.

Gravelle makes three arguments against the creditability of DSTs. First, she argues that the whole concept underlying both pillar 1 and DSTs (allocating value to market jurisdictions) is wrong, and therefore they cannot be justified. Second, she argues that DSTs are passed on in full to consumers and that this precludes creditability. Finally, she argues that DSTs are discriminatory excise taxes on U.S. …

Shadow Banking And Securities Law, Gabriel Rauterberg, Jeffery Y. Zhang

Law & Economics Working Papers

Shadow banking may be the single greatest challenge facing financial regulation. Financial institutions that function like banks, but outside the scope of banking regulation—aptly termed “shadow banking”—were at the heart of the Global Financial Crisis and most episodes of serious financial stress since then. Scholars have largely focused on one response to this problem—extending traditional banking regulation to shadow banks. Yet more than fifteen years after the crisis, major regulatory efforts along this route have stalled.

In this Article, we explore the uneasy case for greater regulation of shadow banking through securities law. Our first contribution is analytical. We demonstrate …

Paying For Performance? Attorneys’ Fees In Securities Fraud Class Actions, Stephen J. Choi, Jessica M. Erickson, A. C. Pritchard

Law & Economics Working Papers

This Article studies whether plaintiffs' lawyers matter in securities class actions. We use inverse propensity score weighting (IPW) to compare the results in cases led by top-tier firms against those brought by lower-tier firms. This technique addresses case selection effects by using all of the cases led by a top-tier firm and then weighting the cases led by lower-tier firms based on how similar these cases are to the cases led by top-tier firms. We do find that top-tier lawyers obtain better outcomes for shareholders in a subset of securities class actions, specifically the cases against the larger (although not …

Defining Relevant Markets In Digital Ecosystems, Daniel A. Crane

Articles

Traditional market definition focuses on the substitutability of two products or geographies. In digital ecosystems, competition often occurs in important ways that elide definition in conventional substitutability terms. This Article considers three kinds of economic rivalry that do not fit the conventional market definition mold: (1) Single-side competition: In two sided markets, firms may compete on just one side of the market. For example, Google and Facebook compete for the same advertisers, but their users on the other side of the market do not necessarily think of the offerings (social media and universal search) as substitutes; (2) Ecosystem competition: Technology …