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Michigan Law Review

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Full-Text Articles in Law

Standing And Probabilistic Injury, Curtis A. Bradley, Ernest A. Young Jun 2024

Standing And Probabilistic Injury, Curtis A. Bradley, Ernest A. Young

Michigan Law Review

Standing to sue often turns on questions of probability. For example, public law plaintiffs must show that they are likely to be affected by allegedly unlawful government surveillance or environmental policies, and consumers may wish to sue private defendants over false credit reporting or data breaches that may or may not cause them financial or reputational harm in the future. This Article offers a framework for resolving a wide range of these “probabilistic standing” issues. Our core claim is that courts and commentators ask too much of standing doctrine in probabilistic cases. First, scholars sometimes seek a unified theory of …


Bounded Extraterritoriality, Ruth Mason, Michael S. Knoll Jun 2024

Bounded Extraterritoriality, Ruth Mason, Michael S. Knoll

Michigan Law Review

Twenty-first-century politics has inspired a new mode of interstate rivalries and reprisals consisting not of the tariffs that plagued the Founding but rather of regulations with significant impacts outside the enacting state’s borders. Employing the dormant Commerce Clause doctrine of extraterritoriality, the Supreme Court has limited overbroad state regulations, but the extraterritoriality doctrine is unclear both in its normative grounding and practical application. This Article proposes a conceptual framework that situates the prohibition of extraterritoriality as an aspect of horizontal federalism. Our conceptualization of extraterritoriality enables us to distinguish it from two dormant Commerce Clause doctrines with which it is …


Agency Use Of Indirect Benefits To Justify Regulation, Abe Eichner Jun 2024

Agency Use Of Indirect Benefits To Justify Regulation, Abe Eichner

Michigan Law Review

Executive agencies have long used indirect benefits—meaning benefits beyond the express purpose of a regulation—to justify their rulemakings. However, the statutes that provide agencies with regulatory authority rarely explicitly direct agencies to consider indirect benefits. Lower courts disagree over whether consideration of indirect benefits is permissible, and the Supreme Court has reserved the question for a future case. Courts and existing scholarship have largely asked whether particular statutory provisions authorize consideration of indirect benefits. This Note contends that, even without such statutory authorization, indirect benefits are presumptively permissible because they further three traditional administrative law values: rational decisionmaking, transparency, and …


Original Public Meaning And Pregnancy’S Ambiguities, Evan D. Bernick, Jill Wieber Lens May 2024

Original Public Meaning And Pregnancy’S Ambiguities, Evan D. Bernick, Jill Wieber Lens

Michigan Law Review

Relying on 1868 abortion statutes, the 2022 Supreme Court held in Dobbs v. Jackson Women’s Health Organization that no federal constitutional right to abortion exists. Mere months later, a petition for certiorari asked the Court to determine that “person” in the Fourteenth Amendment includes prenatal existence, which would require criminalization of abortion in all states. The petitioners cited Dobbs and claimed the authority of legal history in 1868 and before. These arguments will be heard again, and they are increasingly framed in terms of the “original public meaning” of the Fourteenth Amendment.

This Article refutes these arguments on their own …


What Is A Prison?, Grace Y. Li Apr 2024

What Is A Prison?, Grace Y. Li

Michigan Law Review

A review of The Idea of Prison Abolition. By Tommie Shelby.


Favoritism, Coercion, And The Establishment Clause, Christopher C. Lund Apr 2024

Favoritism, Coercion, And The Establishment Clause, Christopher C. Lund

Michigan Law Review

A review of Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience. By Nathan S. Chapman and Michael W. McConnell.


The Art Of The Review, Don Herzog Apr 2024

The Art Of The Review, Don Herzog

Michigan Law Review

What’s a book review for?

You might think it’s to supply a summary of the book. Time is short. We’re drowning in stuff to read; it’s hard to keep up even if you dutifully apply the seat of your pants to the seat of your chair and read very fast. Courts are constantly publishing new opinions. And—even though you’re used to this familiar feature of American law, you should still notice how startling it is—they’re also publishing unpublished opinions, with indefensible rules about whether or how they count as precedents lawyers can cite. Legislatures are publishing floor debates, not to …


In Pursuit Of Collective Liberation In Feminist Constitutionalism, Yvette Butler Apr 2024

In Pursuit Of Collective Liberation In Feminist Constitutionalism, Yvette Butler

Michigan Law Review

A review of After Misogyny: How The Law Fails Women and What to Do About It. By Julie C. Suk.


Orders Without Law, Thomas P. Schmidt Apr 2024

Orders Without Law, Thomas P. Schmidt

Michigan Law Review

A review of The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. By Stephen Vladeck.


The Profit Principle: Tracing The Moral Decline Of Corporate Law Firms, Sung Hui Kim Apr 2024

The Profit Principle: Tracing The Moral Decline Of Corporate Law Firms, Sung Hui Kim

Michigan Law Review

A review of Servants of the Damned: Giant Law Firms, Donald Trump, and the Corruption of Justice. By David Enrich.


On The Genealogy Of Intimate Digital Harm, Aziz Z. Huq Apr 2024

On The Genealogy Of Intimate Digital Harm, Aziz Z. Huq

Michigan Law Review

A review of The Fight for Privacy: Protecting Dignity, Identity, and Love in the Digital Age. By Danielle Keats Citron.


The Shadow Of The Law Of The Police, Adam A. Davidson Apr 2024

The Shadow Of The Law Of The Police, Adam A. Davidson

Michigan Law Review

A review of Shielded: How the Police Became Untouchable. By Joanna Schwartz.


Beyond Profit Motives, William J. Moon Apr 2024

Beyond Profit Motives, William J. Moon

Michigan Law Review

A review of The Profit Motive: Defending Shareholder Value Maximization By Stephen M. Bainbridge.


Consumerist Waste: Looking Beyond Repair, Roy Shapira Apr 2024

Consumerist Waste: Looking Beyond Repair, Roy Shapira

Michigan Law Review

A review of The Right to Repair: Reclaiming the Things We Own. By Aaron Perzanowski.


Care Reimagined: Transforming Law By Embracing Interdependence, Robyn M. Powell Apr 2024

Care Reimagined: Transforming Law By Embracing Interdependence, Robyn M. Powell

Michigan Law Review

A review of All Our Families: Disability Lineage and the Future of Kinship. By Jennifer Natalya Fink.


A Democracy Story: Reframing A Free Speech Landmark, Thomas Healy Apr 2024

A Democracy Story: Reframing A Free Speech Landmark, Thomas Healy

Michigan Law Review

A review of Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan. By Samantha Barbas.


Justice By Means Of The Administrative State, Glen Staszewski Apr 2024

Justice By Means Of The Administrative State, Glen Staszewski

Michigan Law Review

A review of Justice by Means of Democracy. By Danielle Allen.


Disability, Race, And Health Beyond The Carceral State, Benjamin A. Barsky, Craig Konnoth, Michael Ashley Stein Apr 2024

Disability, Race, And Health Beyond The Carceral State, Benjamin A. Barsky, Craig Konnoth, Michael Ashley Stein

Michigan Law Review

A review of Embodied Injustice: Race, Disability, and Health. By Mary Crossley.


In Citizenship We Trust? The Citizenship Question Need Not Impede Puerto Rican Decolonization, Jimmy Mcdonough Mar 2024

In Citizenship We Trust? The Citizenship Question Need Not Impede Puerto Rican Decolonization, Jimmy Mcdonough

Michigan Law Review

Puerto Rico is an uncomfortable reminder of the democratic deficits within the world’s oldest constitutional democracy. Puerto Ricans are U.S. citizens who live in a U.S. territory that is subject to the plenary authority of Congress, to which they cannot elect voting members. In 2022, under unified Democratic control for the first time in a decade, Congress considered the Puerto Rico Status Act, legislation that would finally decolonize Puerto Rico. The Status Act offered Puerto Rican voters three alternatives to the colonial status quo—statehood, independence, or sovereignty in free association—and committed Congress to implementing whichever alternative won majority support from …


Designing Sanctuary, Rick Su Mar 2024

Designing Sanctuary, Rick Su

Michigan Law Review

In recent decades, a growing number of cities in the United States have adopted “sanctuary policies” that limit local participation in federal immigration enforcement. Existing scholarship has focused on their legality and effect, especially with respect to our nation’s immigration laws. Largely overlooked, however, is the local process through which sanctuary policies are designed and the reasons why cities choose to adopt them through city ordinances, mayoral orders, or employee handbooks. This Article argues that municipal sanctuary policies are far from uniform, and their variation reflects the different local interests and institutional actors behind their adoption and implementation. More specifically, …


Peripheral Detention, Transfer, And Access To The Courts, Jessica Rofé Mar 2024

Peripheral Detention, Transfer, And Access To The Courts, Jessica Rofé

Michigan Law Review

In the last forty years, immigration detention in the U.S. has grown exponentially, largely concentrated in the southern states and outside of the country’s metropoles. In turn, federal immigration officials routinely transfer immigrants from their communities to remote jails and prisons hundreds, if not thousands, of miles away, often in jurisdictions where the law is more favorable to the government. These transfers are conducted without notice or process and frequently occur on weekends or in the predawn hours, when offices are closed and interested parties are lucky to access voicemail.

Federal immigration officials’ use of peripheral detention and transfer significantly …


Voting While Trans: How Voter Id Laws Unconstitutionally Compel The Speech Of Trans Voters, Emmy Maluf Mar 2024

Voting While Trans: How Voter Id Laws Unconstitutionally Compel The Speech Of Trans Voters, Emmy Maluf

Michigan Law Review

Thirty-five states currently request or require identification documents for in-person voting, and these requirements uniquely impact transgender voters. Of the more than 697,800 voting-eligible trans people living in states that conduct primarily in-person elections, almost half (43 percent) lack documents that correctly reflect their name or gender. When an ID does not align with a trans voter’s gender presentation, the voter may be disenfranchised—either because a poll worker denies them the right to cast a ballot or because the voter ID requirement chills their participation in the first place. Further, when a trans voter presents an ID that does not …


Responding To Alternatives, Daniel T. Deacon Feb 2024

Responding To Alternatives, Daniel T. Deacon

Michigan Law Review

This Article is the first to comprehensively analyze administrative agencies’ obligation to respond to alternatives to their chosen course of action. The obligation has been around at least since the Supreme Court’s decision in Motor Vehicle Manufacturers Ass’n of the United States, Inc. v. State Farm, and it has mattered in important cases. Most recently, the Supreme Court invoked the obligation as the primary ground on which to invalidate the Trump Administration’s rescission of the Deferred Action for Childhood Arrivals (DACA) program. The obligation to respond to alternatives is also frequently invoked in the lower courts and in the …


On Behalf Of All Others Similarly Situated: Class Representation & Equitable Compensation, Alexander J. Noronha Feb 2024

On Behalf Of All Others Similarly Situated: Class Representation & Equitable Compensation, Alexander J. Noronha

Michigan Law Review

Class actions require class representation. In class actions, plaintiffs litigate not only on their own behalf but “on behalf of all others similarly situated.” For almost fifty years, federal courts have routinely exercised their inherent equitable authority to award modest compensation to deserving class representatives who help recover common funds benefiting the plaintiff class. These discretionary “incentive awards” are generally intended to compensate class representatives for shouldering certain costs and risks—which are not borne by absent class members—during the pendency of class litigation.

The ubiquity of permitting class action incentive awards ended in 2020. In an extraordinary ruling, the Eleventh …


Sidewalk Government, Michael C. Pollack Feb 2024

Sidewalk Government, Michael C. Pollack

Michigan Law Review

This Article is about one of the most used, least studied spaces in the country: the sidewalk.

It is easy to think of sidewalks simply as spaces for pedestrians, and that is exactly how most scholars, policymakers, and laws treat them. But this view is fundamentally mistaken. In big cities and small towns, sidewalks are also where we gather, demonstrate, dine, exercise, rest, and shop. They are host to commerce and infrastructure. They are spaces of public access and sources of private obligation. And in all of these things, sidewalks are sites of underappreciated conflict. The centrality of sidewalks in …


Destined To Deceive: The Need To Regulate Deepfakes With A Foreseeable Harm Standard, Matthew D. Weiner Feb 2024

Destined To Deceive: The Need To Regulate Deepfakes With A Foreseeable Harm Standard, Matthew D. Weiner

Michigan Law Review

Political campaigns have always attracted significant attention, and politicians have often been the subjects of controversial—even outlandish—discourse. In the last several years, however, the risk of deception has drastically increased due to the rise of “deepfakes.” Now, practically anyone can make audiovisual media that are both highly believable and highly damaging to a candidate. The threat deepfakes pose to our elections has prompted several states and Congress to seek legislative remedies that ensure recourse for victims and hold bad actors liable. These recent attempts at deepfake laws are open to attack from two different loci. First, there is a question …


Revocation At The Founding, Jacob Schuman Jan 2024

Revocation At The Founding, Jacob Schuman

Michigan Law Review

The Supreme Court is divided over the constitutional law of community supervision. The justices disagree about the nature of a defendant’s liberty under supervision, the rights that apply when the government punishes violations, and the relationship between parole, probation, and supervised release. These divisions came to a head in 2019’s United States v. Haymond, where the justices split 4–1–4 on whether the right to a jury trial applies to revocation of supervised release. Their opinions focused on the original understanding of the jury right at the time the Constitution was ratified.

This Article aims to settle the debate over …


Front Matter, Michigan Law Review Jan 2024

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 122, Issue 6 of Michigan Law Review


Of Might And Men, Leah M. Litman, Melissa Murray, Katherine Shaw Jan 2024

Of Might And Men, Leah M. Litman, Melissa Murray, Katherine Shaw

Michigan Law Review

A review of Manhood: The Masculine Virtues America Needs By Josh Hawley.


Scrutinizing The Bathroom Binary: Equal Protection Theories For Nonbinary Students, Annie Schuver Jan 2024

Scrutinizing The Bathroom Binary: Equal Protection Theories For Nonbinary Students, Annie Schuver

Michigan Law Review

Over the past decade, transgender students have challenged discriminatory school bathroom policies under the Equal Protection Clause with varying success. But another group of students, facing similar discrimination, has yet to see its day in court. Like their transgender peers, nonbinary students often lack access to gender-appropriate restrooms at school. Many K–12 schools offer only “boys” and “girls” restrooms, ignoring the needs of students who identify as neither boys nor girls, as both of those genders, or as something else entirely. Forced to use sex-segregated bathrooms (or no bathroom at all), nonbinary students suffer adverse health, safety, and educational outcomes. …