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2017

University of Michigan Law School

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Full-Text Articles in Law

Senior Day 2017, University Of Michigan Law School Dec 2017

Senior Day 2017, University Of Michigan Law School

Commencement and Honors Materials

Program for the December 22, 2017 University of Michigan Law School Senior Day.


Tit For Tat: How Will Other Countries React To The Tax Cuts And Jobs Act?, Reuven S. Avi-Yonah, Gianluca Mazzoni Dec 2017

Tit For Tat: How Will Other Countries React To The Tax Cuts And Jobs Act?, Reuven S. Avi-Yonah, Gianluca Mazzoni

Law & Economics Working Papers

The Tax Cuts and Jobs Act of 2017 (TRA17) represents the most comprehensive reform of US international tax rules since 1962. An important question in evaluating TRA17 is how US trading partners will respond to its provisions. In general, US trading partners may take steps to negate the competitive advantage gained by the US from the lower rate of corporate tax, expensing and the “patent box”. They may also take advantage of the participation exemption and the cross-crediting feature of GILTI to increase taxes on US multinationals. Finally, they are likely to copy the BEAT and apply it to US ...


Should I Stay Or Should I Go? Gender Gaps In The Lateral Market For Sec Lawyers, Stephen J. Choi, G. Mitu Gulati, Adam C. Pritchard Dec 2017

Should I Stay Or Should I Go? Gender Gaps In The Lateral Market For Sec Lawyers, Stephen J. Choi, G. Mitu Gulati, Adam C. Pritchard

Law & Economics Working Papers

This article examines the gender gap in the lateral market for government lawyers. Using data on lawyers from the Enforcement Division of the Securities and Exchange Commission (SEC), from 2004 to 2016, we find the following: First, gender gaps in pay and promotion appear to be minimal. Second, and confounding the first finding, we find significant gaps in assignments, with men receiving the more challenging and career-enhancing projects. Third, men are more likely than women to move laterally; and when they do, are more likely than the women to move to lucrative private sector jobs.


Moving Beyond Lassiter: The Need For A Federal Statutory Right To Counsel For Parents In Child Welfare Cases, Vivek S. Sankaran Dec 2017

Moving Beyond Lassiter: The Need For A Federal Statutory Right To Counsel For Parents In Child Welfare Cases, Vivek S. Sankaran

Articles

In New York City, an indigent parent can receive the assistance of a multidisciplinary legal team—an attorney, a social worker, and a parent advocate—to defend against the City’s request to temporarily remove a child from her care. But in Mississippi, that same parent can have her rights to her child permanently terminated without ever receiving the assistance of a single lawyer. In Washington State, the Legislature has ensured that parents ensnared in child abuse and neglect proceedings will receive the help of a well-trained and well-compensated attorney with a reasonable caseload. Yet in Tennessee, its Supreme Court ...


Stable And Integrated Housing For America's Working Poor, University Of Michigan Law School Dec 2017

Stable And Integrated Housing For America's Working Poor, University Of Michigan Law School

Event Materials

Program for a presentation of work from the Problem Solving Initiative. Working as a group, students were tasked with designing a comprehensive plan to tackle the crisis in affordable housing in Detroit, Issues of law, policy, public health, urban planning, financing, and other matters.


How Does The Law Put A Historical Analogy To Work?: Defining The Imposition Of "A Condition Analogous To That Of A Slave" In Modern Brazil, Rebecca J. Scott, Leonardo Augusto De Andrade Barbosa, Carlos Henrique Borlido Haddad Dec 2017

How Does The Law Put A Historical Analogy To Work?: Defining The Imposition Of "A Condition Analogous To That Of A Slave" In Modern Brazil, Rebecca J. Scott, Leonardo Augusto De Andrade Barbosa, Carlos Henrique Borlido Haddad

Articles

Over the last decades, the Brazilian state has engaged in concerted legal efforts to identify and prosecute cases of what officials refer to as “slave labor” (trabalho escravo). At a conceptual level, the campaign has paired the constitutional protection of human dignity and the “social value of labor” with an expansive interpretation of the offense described in Article 149 of the Criminal Code as “the reduction of a person to a condition analogous to that of a slave.” At the operational level, mobile teams of inspectors and prosecutors have intervened in thousands of work sites, and labor prosecutors have obtained ...


The Triumph Of Beps: Us Tax Reform And The Single Tax Principle, Reuven S. Avi-Yonah Dec 2017

The Triumph Of Beps: Us Tax Reform And The Single Tax Principle, Reuven S. Avi-Yonah

Law & Economics Working Papers

The Tax Cut and Jobs Act (TRA17) as passed by the House on November 16 and by the Senate on December 2, 2017, contains multiple provisions that incorporate the principles of the OECD/G20 Base Erosion and Profit Shifting (BEPS) into domestic US tax law. Together with the changes in the 2016 model US tax treaty, these provisions mean that the US is following the EU and China in implementing BEPS and in particular its underlying principle, the single tax principle (i.e., all income should be subject to tax once: passive income at the residence state rate and active ...


Running From The Gender Police: Reconceptualizing Gender To Ensure Protection For Non-Binary People, Katie Reineck Dec 2017

Running From The Gender Police: Reconceptualizing Gender To Ensure Protection For Non-Binary People, Katie Reineck

Michigan Journal of Gender & Law

Non-binary people who are discriminated against at work or school are in a unique and demoralizing position. Not only have some courts expressed reluctance to use existing antidiscrimination law to protect plaintiffs who are discriminated against based on their gender identity and not simply because they are men or women, in most states non-binary genders are not legally recognized. I argue that a fundamental right to self-identification grounded in the Due Process Clause of the Fourteenth Amendment would provide non-binary plaintiffs with the ability to assert their gender in court and have that assertion carry legal weight, regardless of how ...


Working Sex Words, Anita Bernstein Dec 2017

Working Sex Words, Anita Bernstein

Michigan Journal of Gender & Law

Imagine yourself tasked to speak for a few minutes about legal controls on sex-selling in the United States, or any other country you choose. You need not have thought about the particulars. As someone willing to read a law review article, you have enough to say because sex-selling overlaps with the subject knowledge you already have. Criminal law, contracts, employment law, immigration law, tort law, zoning, commercial law, and intellectual property, among other legal categories, all intersect with this topic. In your brief remarks on how law attempts to mediate the sale and purchase of sex, you have only one ...


Customer Domination At Work: A New Paradigm For The Sexual Harassment Of Employees By Customers, Einat Albin Dec 2017

Customer Domination At Work: A New Paradigm For The Sexual Harassment Of Employees By Customers, Einat Albin

Michigan Journal of Gender & Law

This Article introduces a novel legal paradigm—customer domination at work—to address the sexual harassment of employees by customers. This new approach challenges the prevailing paradigm, which focuses on the employer-employee binary relationship. I show how, under current Title VII law, the prevailing paradigm leads to a weaker form of employer liability than other instances where employers are liable for the sexual harassment of their employees. The protection for workers is also limited. The same is true of two other legal regimes discussed in the Article: Germany and Britain. More importantly, I argue that the prevailing paradigm precludes a ...


Disability, Universalism, Social Rights, And Citizenship, Samuel R. Bagenstos Dec 2017

Disability, Universalism, Social Rights, And Citizenship, Samuel R. Bagenstos

Articles

The 2016 election has had significant consequences for American social welfare policy. Some of these consequences are direct. By giving unified control of the federal government to the Republican Party for the first time in a decade, the election has potentially empowered conservatives to ram through a bill to repeal the Affordable Care Act—the landmark “Obamacare” law that marked the most significant expansion of the social welfare state since the 1960s. Other consequences are more indirect. Both the election result itself, and Republicans’ actions since, have spurred a renewed debate within the left-liberal coalition regarding the politics of social ...


Fundamental Rights, Federal States, And Sovereignty: Some Random Remarks, Donald H. Regan Dec 2017

Fundamental Rights, Federal States, And Sovereignty: Some Random Remarks, Donald H. Regan

Articles

I am not an EU lawyer. The days are long gone when I could know a substantial fraction of EU law just by knowing about the free movement of goods. I get a fleeting glimpse of where the EU is going every year at the Jean Monnet Seminar in Dubrovnik, but no more than a glimpse. Still, when the editors invited me to write this Editorial Note, I could not refuse. Looking for inspiration, I read or reread all the previous twelve Notes. This was an enjoyable and informative exercise in itself, but only a few of the essays suggested ...


Risk And Resilience In Health Data Infrastructure, W. Nicholson Price Ii Dec 2017

Risk And Resilience In Health Data Infrastructure, W. Nicholson Price Ii

Articles

Today’s health system runs on data. However, for a system that generates and requires so much data, the health care system is surprisingly bad at maintaining, connecting, and using those data. In the easy cases of coordinated care and stationary patients, the system works—sometimes. But when care is fragmented, fragmented data often result. Fragmented data create risks both to individual patients and to the system. For patients, fragmentation creates risks in care based on incomplete or incorrect information, and may also lead to privacy risks from a patched together system. For the system, data fragmentation hinders efforts to ...


Regulating Black-Box Medicine, W. Nicholson Price Ii Dec 2017

Regulating Black-Box Medicine, W. Nicholson Price Ii

Michigan Law Review

Data drive modern medicine. And our tools to analyze those data are growing ever more powerful. As health data are collected in greater and greater amounts, sophisticated algorithms based on those data can drive medical innovation, improve the process of care, and increase efficiency. Those algorithms, however, vary widely in quality. Some are accurate and powerful, while others may be riddled with errors or based on faulty science. When an opaque algorithm recommends an insulin dose to a diabetic patient, how do we know that dose is correct? Patients, providers, and insurers face substantial difficulties in identifying high-quality algorithms; they ...


Gerrymandering And The Constitutional Norm Against Government Partisanship, Michael S. Kang Dec 2017

Gerrymandering And The Constitutional Norm Against Government Partisanship, Michael S. Kang

Michigan Law Review

This Article challenges the basic premise in the law of gerrymandering that partisanship is a constitutional government purpose at all. The central problem, Justice Scalia once explained in Vieth v. Jubilerer, is that partisan gerrymandering becomes unconstitutional only when it “has gone too far,” giving rise to the intractable inquiry into “how much is too much.” But the premise that partisanship is an ordinary and lawful purpose, articulated confidently as settled law and widely understood as such, is largely wrong as constitutional doctrine. The Article surveys constitutional law to demonstrate the vitality of an important, if implicit norm against government ...


Protecting Whistleblowing (And Not Just Whistleblowers), Evan J. Ballan Dec 2017

Protecting Whistleblowing (And Not Just Whistleblowers), Evan J. Ballan

Michigan Law Review

When the government contracts with private parties, the risk of fraud runs high. Fraud against the government hurts everyone: taxpayer money is wasted on inferior or nonexistent products and services, and the public bears the burdens attendant to those inadequate goods. To combat fraud, Congress has developed several statutory frameworks to encourage whistleblowers to come forward and report wrongdoing in exchange for a monetary reward. The federal False Claims Act allows whistleblowers to file an action in federal court on behalf of the United States, and to share in any recovery. Under the Dodd- Frank Act, the SEC Office of ...


Opening The Gates Of Cow Palace: Regulating Runoff Manure As A Hazardous Waste Under Rcra, Reed J. Mccalib Dec 2017

Opening The Gates Of Cow Palace: Regulating Runoff Manure As A Hazardous Waste Under Rcra, Reed J. Mccalib

Michigan Law Review

In 2015, a federal court held for the first time that the Environmental Protection Agency (“EPA”) may regulate runoff manure as a “solid waste” under the Resource Conservation and Recovery Act (“RCRA”). The holding of Community Ass’n for Restoration of the Environment, Inc. v. Cow Palace, LLC opened the gates to regulation of farms under the nation’s primary toxic waste statute. This Comment argues that, once classified as a “solid waste,” runoff manure fits RCRA’s definition of “hazardous waste” as well. This reclassification would expand EPA’s authority to monitor and respond to the nation’s tragically ...


Once More, With Feeling: The 'Tax Cuts And Jobs' Act And The Original Intent Of Subpart F, Reuven S. Avi-Yonah, Nir Fishbien Nov 2017

Once More, With Feeling: The 'Tax Cuts And Jobs' Act And The Original Intent Of Subpart F, Reuven S. Avi-Yonah, Nir Fishbien

Law & Economics Working Papers

For the first time since 1913, Congress is considering abandoning the principle that US residents should be subject to tax on all income “from whatever source derived.” Specifically, the House proposed tax reform legislation, the so-called “Tax Cuts and Jobs Act”, would completely exempt from US taxation dividends from “Controlled Foreign Corporations”. This is therefore a good occasion for considering the reasons we tax such dividends in the first place.

In the course of investigating the Stanley Surrey papers at the Harvard Law School Library, we discovered a remarkable report that support the view that the main impetus behind Subpart ...


What A Difference Thirty Years Make: A Comparison Of The Tax Reforms Of 1986, 2014 And 2017, Reuven S. Avi-Yonah Nov 2017

What A Difference Thirty Years Make: A Comparison Of The Tax Reforms Of 1986, 2014 And 2017, Reuven S. Avi-Yonah

Law & Economics Working Papers

This paper compares the Tax Cuts and Jobs Act of 2017, as passed by the House (TRA17H) and under consideration by the Senate (TRA17S) with two major previous efforts at comprehensive tax reform: The Tax Reform Act of 1986 (TRA86) and the draft tax reform proposed by former Ways and Means Chair David Camp (R-MI) (TRA14). It shows that TRA14 was quite similar to TRA86, but that TRA17 is very different than both. Congress should abandon TRA17 and go back to considering TRA14 on a bipartisan basis.


Third Annual Financial Stability Conference, University Of Michigan Law School Nov 2017

Third Annual Financial Stability Conference, University Of Michigan Law School

Event Materials

Program for the Third Annual Financial Stability Conference.


Educational Equality For Children With Disabilities: The 2016 Term Cases, Samuel R. Bagenstos Nov 2017

Educational Equality For Children With Disabilities: The 2016 Term Cases, Samuel R. Bagenstos

Book Chapters

One of the most longstanding debates in educational policy pits the goal of equality against the goal of adequacy: Should we aim to guarantee that all children receive an equal education? Or simply that they all receive an adequate education? The debate is vexing in part because there are many ways to specify “equality” and “adequacy.” Are we talking about equality of inputs (which inputs?), equality of opportunity (to achieve what?), or equality of results (which results?)? Douglas Rae and his colleagues famously argued that there are no fewer than 108 structurally distinct conceptions of equality. And how do we ...


Artificial Intelligence In Health Care: Applications And Legal Implications, W. Nicholson Price Ii Nov 2017

Artificial Intelligence In Health Care: Applications And Legal Implications, W. Nicholson Price Ii

Articles

Artificial intelligence (AI) is rapidly moving to change the healthcare system. Driven by the juxtaposition of big data and powerful machine learning techniques—terms I will explain momentarily—innovators have begun to develop tools to improve the process of clinical care, to advance medical research, and to improve efficiency. These tools rely on algorithms, programs created from healthcare data that can make predictions or recommendations. However, the algorithms themselves are often too complex for their reasoning to be understood or even stated explicitly. Such algorithms may be best described as “black-box.” This article briefly describes the concept of AI in ...


Treating Wrongs As Wrongs: An Expressive Argument For Tort Law, Scott Hershovitz Nov 2017

Treating Wrongs As Wrongs: An Expressive Argument For Tort Law, Scott Hershovitz

Articles

The idea that criminal punishment carries a message of condemnation is as commonplace as could be. Indeed, many think that condemnation is the mark of punishment, distinguishing it from other sorts of penalties or burdens. But for all that torts and crimes share in common, nearly no one thinks that tort has similar expressive aims. And that is unfortunate, as the truth is that tort is very much an expressive institution, with messages to send that are different, but no less important, than those conveyed by the criminal law. In this essay, I argue that tort liability expresses the judgment ...


Piling On? An Empirical Study Of Parallel Derivative Suits, Stephen J. Choi, Jessica Erickson, Adam C. Pritchard Nov 2017

Piling On? An Empirical Study Of Parallel Derivative Suits, Stephen J. Choi, Jessica Erickson, Adam C. Pritchard

Articles

Using a sample of all companies named as defendants in securities class actions between July 1, 2005 and December 31, 2008, we study parallel suits relying on state corporate law arising out of the same allegations as the securities class actions. We test several ways that parallel suits may add value to a securities class action. Most parallel suits target cases involving obvious indicia of wrongdoing. Moreover, we find that although a modest percentage of parallel suits are filed first, over 80 percent are filed after a securities class action (termed “follow-on” parallel suits). We find that parallel suits and ...


Lamarck Revisited: The Implications Of Epigenetics For Environmental Law, Michael P. Vandenbergh, David J. Vandenbergh, John G. Vandenbergh Nov 2017

Lamarck Revisited: The Implications Of Epigenetics For Environmental Law, Michael P. Vandenbergh, David J. Vandenbergh, John G. Vandenbergh

Michigan Journal of Environmental & Administrative Law

For generations, a bedrock concept of biology was that genetic mutations are necessary to pass traits from one generation to the next, but new developments in genetics are challenging this fundamental assumption. A growing body of scientific evidence demonstrates that chemical alteration of the way a gene functions, whether through exposure to chemicals, foods or even traumatic experiences, may not only affect the exposed individual, but also the individual’s offspring for two generations or more. This interaction between genes and the environment, known as epigenetics, has revolutionized the understanding of how genes are expressed within an individual and how ...


Assessing The Climate Impacts Of U.S. Trade Agreements, Matthew C. Porterfield, Kevin P. Gallagher, Judith Claire Schachter Nov 2017

Assessing The Climate Impacts Of U.S. Trade Agreements, Matthew C. Porterfield, Kevin P. Gallagher, Judith Claire Schachter

Michigan Journal of Environmental & Administrative Law

Meeting the ambitious goals of the Paris Agreement will require the United States and other major greenhouse gas (GHG) emitters to integrate climate change considerations into all relevant areas of economic policy. The United States, however, has conspicuously failed to do so with regard to international trade negotiations. International trade agreements tend to increase GHG emissions due to the economic effects of trade liberalization, including increases in the scale of economic activity and changes in the composition of the affected economies. Trade agreements can also affect climate change in less quantifiable but potentially more significant ways by restricting the ability ...


Technology-Based? Cost Factoring In U.S. Environmental Standards, Jamison E. Colburn Nov 2017

Technology-Based? Cost Factoring In U.S. Environmental Standards, Jamison E. Colburn

Michigan Journal of Environmental & Administrative Law

Environmental controls in the United States are often said to be “technology-based” because the polluter’s duties are determined by the available technology for controlling that pollution rather than by the social costs and benefits of doing so. Indeed, this is much of what distinguishes U.S. environmental law post-1970 from that which preceded it. But technology-based standards have in fact weighed the costs of controlling pollution in unique, often obscure ways, yielding an analysis that defies standardization and basic notions of transparency. Often lumped under an umbrella heading called “feasibility” analysis and justified on the grounds that it avoids ...


Making Bureaucracies Think Distributively: Reforming The Administrative State With Action-Forcing Distributional Review, Kenta Tsuda Nov 2017

Making Bureaucracies Think Distributively: Reforming The Administrative State With Action-Forcing Distributional Review, Kenta Tsuda

Michigan Journal of Environmental & Administrative Law

This Article proposes that agencies analyze the distributional impacts of major regulatory actions, subject to notice-and-comment procedures and judicial review. The proposal responds to the legitimacy crisis that the administrative state currently faces in a period of widening economic inequality. Other progressive reform proposals emphasize the need for democratization of agencies. But these reforms fail to address the two fundamental pitfalls of bureaucratic governance: the “knowledge problem”—epistemic limitations on centrally coordinated decision making—and the “incentives problem”—the challenge of aligning the incentives of administrative agents and their political principals.

A successful administrative reform must address both problems. Looking ...


Brexit And The Wto: What Happens Next, Andrea Xu Nov 2017

Brexit And The Wto: What Happens Next, Andrea Xu

Michigan Journal of Environmental & Administrative Law

In the summer of 2016, the United Kingdom (the “UK”) announced its decision to leave the European Union (the “EU”). This decision, more commonly known as “Brexit,” subsequently stirred British politics, which included Theresa May replacing David Cameron as Prime Minister. Brexit created a unique situation in European and global politics, and instigated a discussion among politicians, academics, economists, and the likes about how the UK will leave the EU and Brexit’s implications in the UK, Europe, and the world as a whole.

This Note analyzes one specific aspect of Brexit: the administrative procedures the UK must undergo to ...


Energy-Water Nexus, The Clean Power Plan, And Integration Of Water Resource Concerns Into Energy Decision-Making, Sarah Ladin Nov 2017

Energy-Water Nexus, The Clean Power Plan, And Integration Of Water Resource Concerns Into Energy Decision-Making, Sarah Ladin

Michigan Journal of Environmental & Administrative Law

Energy regulation in the United States is now at a crossroads. The EPA has begun the process to officially repeal the Clean Power Plan and currently has no plan to replace it with new rulemaking to regulate carbon emissions from the U.S. energy sector. Even though the Clean Power Plan is more or less at its end, its regulatory structure stands as a model of the way decision-makers in the United States regulate the energy sector and the environment. Since the beginning of the modern environmental legal system, decision-makers have chosen to silo the system. Statutes and agencies focus ...