Law Commons^™

Individuals As "Employees" Or "Contractors": Why It Matters What You Are Called When It Comes To Federal Taxes, Robert Eisentrout

Michigan Business & Entrepreneurial Law Review

When we file federal taxes, our individual tax burdens are affected by whether our employers and the IRS classify us as “employees” or “contractors.” Today, that distinction is not a neat one. Classifying workers as “employees” or “contractors” belies increasing similarities—like the ability to work remotely during the COVID-19 pandemic—between those classifications. With those increasing similarities in mind, this Note makes two arguments about the employee / contractor distinction in federal tax law. First, federal tax law draws an increasingly arbitrary and unfair line between employees and contractors given the modern substantive convergence of work done as an “employee” or …

Board Diversity Shareholder Suits: Diverging Materiality Tests Under Rules 10b-5 And 14a-9, John C. Friess

Michigan Business & Entrepreneurial Law Review

Environmental, social, and governance (ESG) investing has grown significantly as an investment strategy over the past decade, leading to intensified demands among investors for more ESG disclosures from publicly listed companies. Perhaps the most high-profile example of this trend is the recent widespread demand among institutional investors, proxy advisory firms, and exchanges for more disclosure and compliance as it relates to board and workplace diversity. Given these efforts and the signals coming from the SEC that it intends to take a more proactive approach to ESG disclosure and compliance, issuers can expect an environment of more specific and detailed diversity …

Six Scandals: Why We Need Consumer Protection Laws Instead Of Just Markets, Jeff Sovern

Michigan Business & Entrepreneurial Law Review

Markets are powerful mechanisms for serving consumers. Some critics of regulation have suggested that markets also provide consumer protection. For example, Nobel Prize-winning economist Milton Friedman said “Consumers don’t have to be hemmed in by rules and regulations. They’re protected by the market itself.” This Article’s first goal is to test the claim that the market provides consumer protection by examining several recent incidents in which companies mistreated consumers and then explores whether consumers stopped patronizing the companies, which would deter misconduct. The issue also has normative implications because if markets consistently protected consumers, society would need fewer regulations and …

Constructing The Yellow Brick Road: Preventing Discrimination In Financial Services Against The Lgbtq+ Community, Cyrus Mostaghim

Michigan Business & Entrepreneurial Law Review

The Lesbian, Gay, Bisexual, Transgender, Queer, and Questioning (“LGBTQ+”) community lacks explicit statutory protections from discrimination in financial services. After the Supreme Court held in Bostock that employment discrimination based on sexual orientation or gender identity was illegal, the Consumer Financial Protection Bureau (CFPB) issued an informal interpretive rule for the Equal Credit Opportunity Act (ECOA) and Regulation B that made discrimination in the access to credit based on sexual orientation or gender identity illegal.

However, this article argues that an informal interpretive rule is easily rescinded and does not provide sufficient protection. Thus, alternative action is needed to create …

Trademark Law Pluralism, Daniel J. Hemel, Lisa Larrimore

University of Chicago Law Review

In recent years, trademark scholars have come to recognize that the supply of words, sounds, and symbols available to designate new goods and services is an exhaustible resource. In certain sectors, the most common English words and syllables and the most common U.S. surnames are almost all claimed as marks. Some firms have responded by resorting to ever-more-unusual brand names so as to avoid trademark disputes. Scholars have proposed solutions ranging from raising registration fees to narrowing the scope of trademark rights.

In this Article, we frame trademark law’s governance of “linguistic space” as a balancing act between what we …

Defining Forced Labor: The Legal Battle To Protect Detained Immigrants From Private Exploitation, Samantha Sherman

University of Chicago Law Review

Privately run immigration detention facilities allegedly profit from a nation-wide system of forced labor. People detained in these for-profit facilities allege that they are compelled to work—often without pay—under threats of solitary confinement, deprivation of basic necessities, and other serious harms. Advocates have challenged these human rights abuses through a series of class action lawsuits under the Trafficking Victims Protection Act (TVPA). The TVPA’s forced labor provision, codified at 18 U.S.C. § 1589, prohibits the use of “labor or services” obtained by force or coercion. If successful, these lawsuits would not only help vindicate the rights of the hundreds of …

Arbitration And Title Vii Pattern-Or-Practice Claims After Epic Systems, Simon Jacobs

University of Chicago Law Review

In recent years, the Supreme Court has put up roadblocks for workers who seek relief in court for wrongs committed by their employers. This development is a con-sequence of the Court’s arbitration jurisprudence. Epic Systems Corp. v. Lewis, a 2018 decision, was par for the course. The Supreme Court held that employers could prevent group wage-and-hour claims by enforcing individual arbitration agreements. It rejected the plaintiffs’ argument that their litigation activity was protected by labor law. In dissent, Justice Ruth Bader Ginsburg questioned the application of the decision to Title VII pattern-or-practice cases. Indeed, Epic Systems puts potential Title VII …

Never Ask A Woman Her Wage: The Constitutionality Of Salary-History Bans, Tyler M. Wood

University of Chicago Law Review

For over a half-century, legislatures have struggled to close the pay gap be-tween men and women. Although the gap has shrunk substantially since Congress passed the Equal Pay Act in 1963, in recent years, progress has slowed to a near standstill. Why has the residual gap remained so persistent? Some argue that employers—by asking applicants to reveal their wage histories and then relying on that information to set future wages—have forced women to carry wage discrimination from job to job. Reacting to this argument, some states and cities have provided a simple solution: ban salary-history inquiries.

This Comment addresses whether …

From The Editors, Robert Dinerstein, Jeremy R. Paul, Sonia E. Rolland, Ezra Rosser

Journal of Legal Education

No abstract provided.

Toward Universal Design In The Classroom, Ruth Colker

Journal of Legal Education

No abstract provided.

“I’M Not Supposed To Be A Lawyer”, Matthew Cortland

Journal of Legal Education

No abstract provided.

How You Tell The Story: In Search Of Complex Disabled Narratives, Lilith A. Logan Siegel

Journal of Legal Education

No abstract provided.

Lessons From The Pandemic: Congress Must Act To Mandate Digital Accessibility For The Disabled Community, Shawn Grant

University of Michigan Journal of Law Reform

The upheaval and disruption created by the COVID-19 pandemic has left some of our most vulnerable, the disabled community, facing increased discrimination and hardship due in part to lack of access to websites and other digital technologies. The pandemic has laid bare the extent of our dependence on technology and the perils faced by those who are unable to access that technology. This Article identifies the regulatory, judicial, and legislative failures to resolve the issue of whether digital technologies are “places of public accommodation” under Title III of the Americans with Disabilities Act. It then calls on Congress to enact …

Law Students, Covid-19, And Big Feelings, Olivia Smith Schlinck

Library Staff Online Writings

It’s Fall 2021 and well . . . we’re back. Or rather – some of us are. Along with a patchwork of universities requiring vaccinations and/or masks for students comes a patchwork of modes of instruction: fully online, hybrid, fully in-person (and subject to change). Some employees have shifted to occasional work-from-home models while others are required to be in-person every day. It’s all very complicated. Honestly, right now everything is complicated. With big, complicated situations come big, complicated feelings, and our students’ feelings are certainly that: big.

An Extended Essay On Church Autonomy, Carl H. Esbeck

Faculty Publications

The doctrine of church autonomy has its own exclusive line of precedent running from Watson v. Jones (1872) through Kedroff v. St. Nicholas Cathedral (1952) - where the doctrine was first recognized as having First Amendment stature - and culminating with renewed vigor for religious institutional autonomy in the unanimous decision of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012). Attention to church autonomy has expanded rapidly since the Supreme Court’s decision in Hosanna-Tabor, and its scope is much disputed as it pushes aside other claims and interests. In its most familiar form—the “ministerial exception” - it is …

Death Penalty Keynote: Why Mitigation Matters, Now And For The Future, Stetler, Russell

Santa Clara Law Review

This Article examines the current state of the death penalty in California and nationally through the lens of mitigation—the empathy-evoking evidence that has been a constitutional requirement to ensure individualized sentencing in the era of the modern American death penalty. It situates the discussion in the context of the extraordinary events of 2020: the Covid-19 pandemic, the heightened awareness of racial inequities reflected in the Black Lives Matter movement, and the federal execution spree in the final six months of the Trump administration. The Article began as the keynote address at California’s annual Capital Case Defense Seminar on February 13, …

Review: Nevada Real Property Practice And Procedure Manual, Ngai Pindell

Scholarly Works

Professor Pindell's review of Nevada Real Property Practice and Procedure Manual (2021).

Providing Effective And Supportive Legal Career Guidance For Neurodivergent Law Students And Attorneys, Shain M. Neumeier

Journal of Legal Education

No abstract provided.

Book Review Of Integrating Doctrine And Diversity: Inclusion And Equity In The Law School Classroom, Ryan H. Nelson, Michael Ashley Stein

Journal of Legal Education

No abstract provided.

Nickels And Dimes? Rethinking The Imposition Of Special Assessment Fees On Indigent Defendants, Ndjuoh Mehchu

North Carolina Law Review

No abstract provided.

The Sound Of Death And "Shroud Of Secrecy": The Ninth Circuit's Inconsistent Application Of The History And Logic Test In First Amendment Coalition Of Arizona, Inc. V. Ryan, Isabela Palmieri

North Carolina Law Review

No abstract provided.

The Enemy Is The Knife: Native Americans, Medical Genocide, And The Prohibition Of Nonconsensual Sterilizations, Sophia Shepherd

Michigan Journal of Race and Law

This Article describes the legal history of how, twenty years after the sterilizations began, the U.S. Department of Health, Education, and Welfare, in 1978, finally created regulations that prohibited the sterilizations. It tells the heroic story of Connie Redbird Uri, a Native American physician and lawyer, who discovered the secret program of government sterilizations, and created a movement that pressured the government to codify provisions that ended the program. It discusses the shocking revelation by several Tribal Nations that doctors at the IHS hospitals had sterilized at least 25 percent of Native American women of childbearing age around the country. …

American Informant, Ramzi Kassem

Michigan Journal of Race and Law

Part of my childhood was spent in Baghdad, Iraq, during the rule of Saddam Hussein. At that time, the regime offered free and universal education and healthcare. Literacy rates in the country surpassed much of the Arabic-speaking world and, indeed, the Global South. As the celebrated Egyptian intellectual, Taha Hussein, famously put it: “Cairo writes; Beirut prints; and Baghdad reads.” Booksellers were everywhere in Baghdad. Its people read voraciously and passionately debated literature, poetry, and a range of other subjects.

But what struck me, even as a child, was the absence of sustained talk about politics in bookshops, markets, and …

The Ban And Its Enduring Bandwidth, Khaled Ali Beydoun

Michigan Journal of Race and Law

This Essay is a contribution the Michigan Journal of Race & Law’s special issue marking the 20th anniversary of September 11, 2001 and the ensuing War on Terror. It reflects on Executive Order 13769, widely known as the “Muslim Ban,” years after it was signed into law, as an extra-legal catalyst of state-sponsored and private Islamophobia that unfolded outside of the United States.

Law In The Shadows Of Confederate Monuments, Deborah R. Gerhardt

Michigan Journal of Race and Law

Hundreds of Confederate monuments stand across the United States. In recent years, leading historians have come forward to clarify that these statues were erected not just as memorials but to express white supremacist intimidation in times of racially oppressive conduct. As public support for antiracist action grows, many communities are inclined to remove public symbols that cause emotional harm, create constant security risks and dishonor the values of equality and unity. Finding a lawful path to removal is not always clear and easy. The political power brokers who choose whether monuments will stay or go often do not walk daily …

Re-Imagining Risk: The Role Of Resilience And Prevention, Timothy Malloy

Nevada Law Journal

No abstract provided.

Ruth Bader Ginsburg's Intellectual Property Jurisprudence, Ryan Vacca, Ann Bartow

Faculty Publications

On September 18, 2020, the world lost an irreplaceable leader. Justice Ruth Bader Ginsburg, after many years of battling cancer, had passed away. Although she will primarily be remembered for her work on gender equality—as both advocate and jurist—Justice Ginsburg signiicantly impacted other areas of the law. One such area is intellectual property. During her time on the U.S. Supreme Court, she authored 20 opinions in these areas—11 copyright, seven patent, and two trademark—and joined the opinions of her colleagues in many others.

Realigning The Clean Water Act: Comprehensive Treatment Of Nonpoint Source Pollution, Robin M. Rotman, Ashley A. Hollis, Kathleen M. Trauth

Faculty Publications

Nonpoint source pollution is the biggest threat to water quality in the United States today. This Article argues for stronger federal controls over nonpoint source pollution. It begins by examining the history of water quality regulation in the United States, including the passage and amendment of the Clean Water Act and the evolving definition of “navigable waters” over time. The Article then discusses recent rulemaking and litigation developments, including the Clean Water Rule, the Navigable Waters Protection Rule, and the County of Maui, Hawaii v. Hawaii Wildlife Fund case. It offers three recommendations. First, the Article calls for a congressional …

The Founders' Multi-Purpose Chief Justice: The English Origins Of The American Chief Justiceship, Justin W. Aimonetti, Jackson A. Myers

West Virginia Law Review

During the founding era, the American Chief Justice was nearly unrecognizable to modern eyes. Rather than a purely judicial officer, the Chief Justice was a multi-purpose minister, serving as a judge, an administrator, a diplomat, and an advisor. He was what we call the “multi-purpose Chief Justice.” The multi-purpose Chief Justice of the Early Republic originated with the ancient English office of the Lord Chief Justice. English judges historically served as multi-purpose ministers to the king, engaging in administrative and even political tasks. This was especially true for the Lord Chief Justice. Even as other English judges settled into more …

Securing Secrets: The Need For A Treaty Addressing State-Sponsored Economic Espionage, Jaylin Johnson

West Virginia Law Review

No abstract provided.