Law Commons^™

Reducing Prejudice Through Law: Evidence From Experimental Psychology, Sara Emily Burke, Roseanna Sommers

Articles

Can antidiscrimination law effect changes in public attitudes toward minority groups? Could learning, for instance, that employment discrimination against people with clinical depression is legally prohibited cause members of the public to be more accepting toward people with mental health conditions? In this Article, we report the results of a series of experiments that test the effect of inducing the belief that discrimination against a given group is legal (versus illegal) on interpersonal attitudes toward members of that group. We find that learning that discrimination is unlawful does not simply lead people to believe that an employer is more likely …

Public Client Contingency Fee Contracts As Obligation, Seth Mayer

Michigan Law Review

Contingency fee contracts predicate an attorney’s compensation on the outcome of a case. Such contracts are widely accepted when used in civil litigation by private plaintiffs who might not otherwise be able to afford legal representation. However, such arrangements are controversial when government plaintiffs like attorneys general and local governments retain private lawyers to litigate on behalf of the public in return for a percentage of any recovery from the lawsuit. Some commentators praise such public client contingency fee contracts, which have become commonplace, as an efficient way to achieve justice. Critics, however, view them as corrupt, undemocratic, and unethical. …

The Ascension Of Indigenous Cultural Property Law, Angela R. Riley

Michigan Law Review

Indigenous Peoples across the world are calling on nation-states to “decolonize” laws, structures, and institutions that negatively impact them. Though the claims are broad based, there is a growing global emphasis on issues pertaining to Indigenous Peoples’ cultural property and the harms of cultural appropriation, with calls for redress increasingly framed in the language of human rights. Over the last decade, Native people have actively fought to defend their cultural property. The Navajo Nation sued Urban Outfitters to stop the sale of “Navajo panties,” the Quileute Tribe sought to enjoin Nordstrom’s marketing of “Quileute Chokers,” and the descendants of Tasunke …

Non-Lawyer Judges In Devalued Courts, Maureen Carroll

Reviews

Recent legal scholarship has shed needed light on the vast universe of litigation that occurs without lawyers. Large majorities of civil litigants lack representation, even in weighty matters such as eviction and termination of parental rights, raising a host of issues worthy of scholarly attention. For example, one recent article has examined racial and gendered effects of the lack of constitutionally guaranteed counsel in civil matters, and another has shown that judges tend not to reduce the complexity of the proceedings for the benefit of unrepresented parties. In Judging Without a J.D., Sara Greene and Kristen Renberg add an important …

Brief Of Amicus Curiae Conference Of Chief Justices In Support Of Neither Party, Moore V. Harper, No. 21-1271 (U.S. Sept. 6, 2022), Evan Caminker, Carter G. Phillips, Virginia A. Seitz, Kathleen M. Mueller

Appellate Briefs

Founded in 1949, amicus curiae Conference of Chief Justices (the “Conference”) is comprised of the Chief Justices or Chief Judges of the courts of last resort in all 50 states, the District of Columbia, the Commonwealths of Puerto Rico and the Northern Mariana Islands, and the Territories of American Samoa, Guam, and the Virgin Islands. For over 70 years, the Conference has been a leading national voice on important issues concerning the administration of justice in state courts, the operation of state courts and judicial systems, and the role of state courts in our federal system.

The Conference files briefs …

Shareholder Appraisal Rights: Delaware's Flawed Market-Out Exception, Lynn Bai, William A. Murphy

University of Michigan Journal of Law Reform Caveat

State statutes give dissenting shareholders an appraisal right in some, but not all corporate mergers. With varying specifics, a widely adopted market-out exception denies appraisal if the shares are publicly traded. The rationale for market-out is that the public market offers a reliable valuation of the shares and a convenient exit to dissenting shareholders. A major criticism of market-out is that market prices may not reflect the full value of the shares due to information asymmetry in mergers involving conflicts of interests. Delaware’s market-out approach is drastically different from that adopted by the Model Business Corporation Act (MBCA), but both …

Environmental Governance By Contract: The Growing Role Of Supply Chain Contracting, Michael P. Vandenburgh, Patricia A. Moore

Michigan Journal of Environmental & Administrative Law

Corporate net zero climate commitments and environmental, social, and governance (ESG) policies have the potential to bypass barriers to international, national, and subnational government action on climate change and other environmental issues. This Article presents the results of a new empirical study that demonstrates the remarkably widespread use of environmental supply chain contracting requirements. The study finds that roughly 80% of the ten largest firms in seven global sectors include environmental requirements in supply chain contracting, a substantial increase over the 50% reported by a comparable study fifteen years ago. The Article concludes that the prevalence of environmental supply chain …

From Four Horsemen To The Rule Of Six: The Deconstruction Of Judicial Deference, Keith W. Rizzardi

Michigan Journal of Environmental & Administrative Law

In its tumultuous 2022 term, the Supreme Court rebalanced the separation of powers, again. A tradition of self-restraint has evolved through case law and statutes when the judiciary reviews the actions of the other branches of government. The judiciary often accepts congressional judgments as to whether laws are necessary and proper and defers to executive agency interpretations of those congressional acts. The historical notion of judicial deference, however, earned criticism due to concerns about the potential unchecked decision-making power of unelected executive agency bureaucrats. The emerging alternative system might be worse.

History offers parallels. During the New Deal, a core …

Cultural Resources, Conquest, And Courts: How State Court Approaches To Statutory Interpretation Diminish Indigenous Cultural Resources Protections In California, Hawai‘I, And Washington, Lauren Ashley Week

Michigan Journal of Environmental & Administrative Law

Critical Race Theory identifies two of the United States’ original sins: slavery and conquest; yet, while the former is well known, the latter is simultaneously obvious and unknown, creating a disconnect between the history of violent conquest to the disparities that continue to afflict indigenous communities today. This lack of understanding and acknowledgement also permeates the federal courts—an issue extensively documented by Critical Race Theory and federal Indian law academics. Yet, limited scholarship has interrogated if and how state judicial systems may parallel the failures of federal benches. This Note examines the “hidden,” yet enduring impact of conquest by applying …

Cloud Gaming Demystified: An Introduction To The Legal Implications Of Cloud-Based Videogames, Mitchell Longan, Gaetano Dimita, Johan David Michels, Christopher Millard

Michigan Technology Law Review

In this paper, we “demystify” cloud-based videogaming and its legal implications, in two stages. First, we describe the videogame sector; explain the basics of cloud computing and traditional videogame technologies and set out how the two converge in cloud-based videogame systems. Based on this analysis, we distinguish three separate models for cloud gaming services: (i) the “layered” model of Gaming-as-a-Service (‘GaaS’); (ii) the ‘integrated’ model of GaaS; and (iii) the ‘consumer infrastructure-as-a-service’ model. We argue that these three models are key to analyzing how intellectual property rights, contractual rights, and regulatory issues will develop in this novel environment for videogame …

Private Censorship, Disinformation And The First Amendment: Rethinking Online Platforms Regulation In The Era Of A Global Pandemic, Tzu- Chiang Huang

Michigan Technology Law Review

The proliferation of online disinformation and the rise of private censorship are paradigmatic examples of the challenges to traditional First Amendment jurisprudence in an algorithmic society. The limitations of traditional First Amendment jurisprudence are amplified by the impact of the COVID-19 pandemic in two ways. On the one hand, in the wake of the pandemic, we have entered an “infodemic” era where the volume of disinformation, as well as the harm it causes have reached unprecedented levels. For example, health disinformation has contributed to vaccine hesitancy. On the other hand, even though the proliferation of online disinformation seems to suggest …

Degrees Of Confidence As A Legal Tool To Assess Ai System Liability, Joshua Song

Michigan Technology Law Review

AI systems have become increasingly integrated into our everyday lives, and harms caused by these systems have graduated from raising hypothetical ethical concerns to questions of actual legal liability. Civil liability schemes are generally designed to address harms caused by humans; thus, it may be tempting to analogize new types of harms caused by AI systems to familiar harms caused by humans in order to justify commandeering existing human-centered legal tools to assess AI liability. However, the analogy is inappropriate and misrepresents salient legal differences in how harms are committed by humans and AI systems. Thus, “as is often the …

Beyond True And False: Fake News And The Digital Epistemic Divide, Gilad Abiri, Johannes Buchheim

Michigan Technology Law Review

The massive fact-checking, flagging, and content removal campaigns run by major digital platforms during the 2020 elections and the Covid-19 pandemic did some good. However, they failed to prevent substantial portions of the population from believing that the election was stolen or that vaccinations are dangerous.

In this Article, we argue that the reason for the ineffectiveness of truth-based solutions—such as fact-checking— is that they do not reach the heart of the problem. Both scholars and policymakers share the implicit or explicit belief that the rise of digital fake news is harmful mainly because it spreads false information, which lays …

Taxing Risky Development: A New Tool For Increasing Coastal Resilience, James Daher

Michigan Journal of Environmental & Administrative Law

Coastal overdevelopment in the United States is a persistent issue. Climate change continues to increase the risk of flooding and other damage from natural disasters facing many coastal communities. Yet, development in some of the most at-risk areas has not slowed. Policies at the federal government level have encouraged such development by shifting costs of flood-related property damage from the property owner to taxpayers. At the same time, government actors at all levels are actively trying to protect their coastlines through coastal resilience projects. However, there are not enough funds to protect coastal property, especially at the state and local …

The Good-Faith Doubt Test And The Revival Of Joy Silk Bargaining Orders, Brandon R. Magner

University of Michigan Journal of Law Reform

The last fifty-two years have borne witness to the swift degradation and virtual irrelevance of the bargaining order. By the end of the twentieth century even pro-enforcement officials in the NLRB were acknowledging the difficulty of obtaining an enforceable bargaining order, and the remedy rarely appears these days in the agency’s published decisions.

This is not the product of the usual economic or political factors cited as reasons for the labor movement’s and its attendant regulating schema’s diminishment. Rather, the decline of the bargaining order can be explained almost entirely by the disappearance of the so-called Joy Silk doctrine from …

Liability For Toxic Workplace Cultures, Dana Florczak

University of Michigan Journal of Law Reform

Title VII is meant to protect employees from discrimination and has historically been a crucial tool for creating social change in the workplace. But when considering modern-day workplace discrimination wrought by “toxic workplace cultures” defined herein, Title VII’s frameworks for confronting systemic discrimination prove outdated and ineffective. This Note proposes the codification of a new theory of discrimination under Title VII targeting toxic workplace cultures, with substantive and procedural elements working in tandem to better enable plaintiffs to collectively bring actions to hold employers accountable for fostering discriminatory environments. Part I defines toxic workplace cultures and walks through case studies …

Wrong Line: Proposing A New Test For Discrimination Under The National Labor Relations Act, Joshua D. Rosenberg Daneri, Paul A. Thomas

University of Michigan Journal of Law Reform

There has long been a consensus among scholars and union-side practitioners that the National Labor Relations Act (NLRA) is under-enforced. As a result, employers often treat violations of the NLRA as a cost of doing business rather than a serious violation of a federal statute. Calls for reform have historically tended to propose legislative amendments to the NLRA to constrain employer conduct and impose greater consequences for discrimination violations. However, little attention has been given to improving the flawed legal test by which such discrimination is analyzed, Wright Line, 251 N.L.R.B. 1083 (1980), enforced 662 F.2d 899 (1st Cir. 1981), …

Sexual Orientation, Gender Identity, And Homelessness Post-Bostock, Alaina Richert

University of Michigan Journal of Law Reform

Housing discrimination on the basis of sexual orientation and gender identity is a critical problem facing LGBTQ+ people in the United States. In addition, LGBTQ+ people, particularly transgender people, disproportionately suffer from homelessness and face discrimination by homeless shelters on the basis of sexual orientation and gender identity. This homelessness and discrimination both disproportionately affect transgender people of color. This Note makes two contributions that would enable courts to grant meaningful relief in these contexts. First, it argues that “sex” in the Fair Housing Act includes sexual orientation and gender identity after the holding in Bostock v. Clayton County. Second, …

Wandering Into Psychology And Law, Phoebe C. Ellsworth

Book Chapters

Some people have a passion for a single topic that motivates and engages them for life. I’m not one of them. I can get interested in almost anything, and my career looks more like a random walk through a candy store than a single-minded pursuit of a goal. I am both a theorist and researcher in the field of emotion and a contributor to the application of psychology to legal issues. In this piece I will focus on my work in psychology and law. A review of my research on emotion can be found in Ellsworth and Scherer (2003).

Fenceposts Without A Fence, Katherine E. Dr Lucido, Nicholas K. Tabor, Jeffery Y. Zhang

Articles

Banking organizations in the United States have long been subject to two broad categories of regulatory requirements. The first is permissive: a “positive” grant of rights and privileges, typically via a charter for a corporate entity, to engage in the business of banking. The second is restrictive: a “negative” set of conditions on those rights and privileges, limiting conduct and imposing a program of oversight and enforcement, by which the holder of that charter must abide. Together, these requirements form a legal cordon, or “regulatory perimeter,” around the U.S. banking sector.

On Firms, Sanjukta Paul

Law & Economics Working Papers

This paper is about firms as an instance of economic coordination, and about how we think about them in relation to other forms of coordination as well as in relation to competition and markets. The dominant frame for thinking about firms--which has strongly influenced contemporary competition law as well as serving as a vital adjunct to the fundamental concepts of neoclassical price theory that guide many areas of law and policy--implicitly or explicitly explains and justifies the centralization of both decision-making rights and flows of income from economic activity on productive efficiency grounds. We have very good reasons to doubt …

Haaland V. Brackeen, Et Al.: Brief Of Indian Law Professors As Amici Curiae In Support Of Federal And Tribal Defendants, Matthew L.M. Fletcher

Appellate Briefs

Amici are professors and scholars of federal Indian law whose scholarship and clinical practice focus on the subject matter areas of Indian law, tribal powers, and federal- and state-court jurisdiction. Amici possess expertise in this area and an interest in ensuring that cases concerning these issues are decided consistently with the text of the United States Constitution, foundational principles in this area of law, and the express intent of Congress. Amici respectfully submit this brief to provide the Court history and context behind the Constitution’s use of Indian status classifications and the inherently political determinations that the legislative and executive …

Haaland V. Brackeen, Et Al.: Brief Of Amici Curiae Administrative Law And Constitutional Law Professors In Support Of Deb Haaland, Secretary Of The Interior, Et Al., And Cherokee Nation, Et Al., Leah Litman, Daniel T. Deacon

Appellate Briefs

Amici curiae are professors of administrative law, constitutional law, and related public law subjects at institutions around the United States. They have extensive experience studying and teaching the text, history, and structure of the Constitution, as well Supreme Court decisions relating to Congress’s legislative powers and the supremacy of federal law. Their legal expertise thus bears directly on the constitutional issues in this case. Amici share an interest in the proper application of constitutional limits on Congress’s authority to enact supreme federal law and state courts’ obligations to decide properly presented federal questions.<\p>

The Indian Child Welfare Act (ICWA or …

National Pork Producers Council V. Ross: Brief Of Professors Barry Friedman And Daniel T. Deacon As Amici Curiae In Support Of Respondents, Daniel T. Deacon

Appellate Briefs

Barry Friedman is the Jacob D. Fuchsberg Professor of Law and Affiliated Professor of Politics at New York University Law School and is one of the country’s leading authorities on constitutional law and the federal courts. Daniel T. Deacon is a Lecturer at the University of Michigan Law School and has published extensively on topics that include constitutional and administrative law. Professors Friedman and Deacon are the authors of A Course Unbroken: The Constitutional Legitimacy of the Dormant Commerce Clause, 97 Va. L. Rev. 1877 (2011), a leading article examining the origins of the Commerce Clause and defending the validity …

Decolonizing The Corpus: A Queer Decolonial Re-Examination Of Gender In International Law's Origins, David Eichert

Michigan Journal of International Law

This article builds upon queer feminist and decolonial/TWAIL interventions into the history of international law, questioning the dominant discourses about gender and sexual victimhood in the laws of armed conflict. In Part One, I examine how early European international law writers (re)produced binary and hierarchical ideas about gender in influential legal texts, discursively creating a world in which wartime violence only featured men and women in strictly defined roles (a construction which continues to influence the practice of law today). In Part Two, I decenter these dominant discourses by looking outside Europe, questioning what a truly “international” law would look …

Asylum-Seekers Are Not Bananas Either: Limitations On Transferring Asylum-Seekers To Third Countries, Tally Kritzman-Amir

Michigan Journal of International Law

Despite the similarities between the movement of people and the movement of goods, many developed nations have maintained high barriers to migration even as barriers to trade have fallen sharply. However, as Jennifer Gordon points out, both bilateral and multilateral treaties governing migration have proliferated within this weaker global patchwork of regulation. For example, the ability of developed states to gain concessions on other matters such as trade or investment has led to the proliferation multilateral agreements, while bilateral agreements have arisen due to a desire to refrain from integrating migrant workers in destination states.

This paper focuses on a …

Implications Of The Selection Of Islamic Law In European Private International Law, Grace Brody

Michigan Journal of International Law

The English Court of Appeal in Beximco v. Shamil Bank chose to apply only English law in a breach of contract case, even though the choice of law clause in the contract at issue also selected Islamic law. The court cited three main reasons for this decision. First, article 3(1) of the Rome I Convention “contemplates” that a contract can be governed only by the “law of a country,” and there is no mention of the application of a “non-national system of law such as Sharia law.” Second, Islamic law does not consist of “principles of law” but instead a …

Litigating Terror In The Sinai After The Egyptian Spring Revolution: Should States Be Liable To Foreign Investors For Failure To Prevent Terrorist Attacks?, Robert Howse, Amin R. Yacoub

Michigan Journal of International Law

The ambiguity of the due diligence standard of the Full Protection and Security obligation in investment treaties persists to this day. A recent ICSID tribunal found a developing state liable for breaching the Full Protection and Security obligation due to its inability to protect a foreign investment against terrorist attacks in a remote deserted area. In this article, we analytically criticize the Ampal v. Egypt arbitral award against the comprehensive factual matrix behind the case. Based on our criticism of Ampal, we argue that developing states should not be liable for failing to prevent or stop terrorist attacks under the …

Pacta Sunt Servanda And Empire: A Critical Examination Of The Evolution, Invocation, And Application Of An International Law Axiom, Jiang Zhifeng

Michigan Journal of International Law

In public international law, pacta sunt servanda is the foundational principle that international agreements are binding on treaty parties and must be kept. Insufficient attention, however, has been given to the role played by this international law axiom in organizing and shaping the international legal order. Accordingly, this note undertakes a critical historical analysis of how pacta sunt servanda was, and continues to be, applied as a legal basis and used as an argumentative method for the formation and maintenance of empire despite its conceptual evolution across time. Importantly, it does not argue that pacta sunt servanda should be abandoned …

The Psychology Of Taxing Capital Income: Evidence From A Survey Experiment On The Realization Rule, Zachary Liscow, Edward G. Fox

Articles

We conduct the first survey experiment to understand public attitudes about the capital gains realization rules. These rules requires that assets usually must be sold before gains on them are taxed and thus makes taxing capital income much harder. We have three main findings. First, respondents strongly prefer to wait to tax gains on stocks until sale: 75% to 25%. But the flip side is that there is surprisingly strong support for taxing gains on assets at sale or transfer, including at death, in areas where current law never taxes those gains. Second, these stated views change only modestly when …