Law Commons^™

Why Do Corporations Merge And Why Should Law Care?, Chris Sagers

University of Michigan Journal of Law Reform

Mergers and acquisitions are extraordinarily prevalent in the United States, generating massive expenditures every year. However, a serious empirical puzzle lies at the heart of all that activity. That empirical phenomenon’s most remarkable feature by far is that even though it is well established in an extensive literature and implies far-reaching policy consequences, American law ignores it entirely.

Generations of researchers have failed to find evidence that merger and acquisition activity generates any lasting benefits for the combining firms’ owners or anyone else. No one seriously doubts that efficiencies of scale or technological integration are real or that acquisitions sometimes …

Policies For Expanding Hepatitis C Testing And Treatment In United States Prisons And Jails, Tessa Bialek, Dr. Matthew J. Akiyama M.D.

University of Michigan Journal of Law Reform

Hepatitis C virus (HCV) is highly prevalent in United States prisons and jails. In prisons and jails, rates of infection are ten to twenty times greater than national levels. And, more than thirty percent of all people living with HCV in the United States will spend time in prisons and jails in any given year. Rates are especially high among people who inject drugs (PWID), a population whose members are also likely to move between carceral settings and the community. Thus, addressing HCV among incarcerated populations would have a significant effect on the virus’s transmission both in and out of …

Did The Superbowl Ad Curse Heighten Defined Contribution Plan Fiduciary Duties?: Deciphering The Legal And Ethical Landscape Of Cryptocurrency Options In 401(K)S, Lauren K. Valastro

University of Michigan Journal of Law Reform

Regulating cryptocurrency’s place in America’s most popular retirement savings vehicle generates thorny legal, ethical, and social justice dilemmas. Too little regulation could hurt those at highest risk of underfunded retirement. Too much could exacerbate existing racial, ethnic, and gender inequities.

Though recent regulatory efforts suggest 401(k) administrators violate their fiduciary duty of care by offering cryptocurrency investment options to plan participants, the established fiduciary regime protects 401(k) plan participants from cryptocurrency risk while respecting their savings preferences. Yet, the current framework falls short of ethically and equitably serving all plan participants, particularly members of underserved communities— a problem largely unaddressed …

The Relationship Between Schizophrenia Spectrum Disorder And Criminal Responsibility, Taylor A. Chille

Psychology Doctoral Specialization Projects

This original contribution to practice explores the significance of schizophrenia spectrum disorder, one of the most severe psychiatric disorders recognized in the DSM-5. This condition affects over 50 million people worldwide and is amongst one of the most common psychiatric illnesses diagnosed in criminal responsibility evaluations to date. Nonetheless, there is limited comprehensive literature specifically examining the relationship between schizophrenia and the insanity defense. Information provided in this literature review aims to fill that gap and act as a resource for clinical forensic practitioners who may encounter related cases. Specifically, this document will begin by introducing schizophrenia spectrum disorder and …

Constitutional Limits On The Imposition And Revocation Of Probation, Parole, And Supervised Release After Haymond, Nancy J. King

Vanderbilt Law Review

In its Apprendi line of cases, the Supreme Court has held that any fact found at sentencing (other than prior conviction) that aggravates the punishment range otherwise authorized by the conviction is an “element” that must be proved beyond a reasonable doubt to a jury. Whether Apprendi controls factfinding for the imposition and revocation of probation, parole, and supervised release is critically important. Seven of ten adults under correctional control in the United States are serving terms of state probation and post-confinement supervision, and roughly half of all prison admissions result from revocations of such terms. But scholars have yet …

Pathways To Justice: Positive Rights, State Constitutions, And Untapped Potential, Dustin Coffman

Marquette Benefits and Social Welfare Law Review

Positive rights, as a concept, are nothing new. Though they may not have always had such a deceptively unequivocal name, positive rights have existed in various forms and mediums throughout history. They've been utilized, underutilized, and, in some cases, outright ignored. At their core, positive rights are the imposition of an obligation upon the state to fulfill some declared right or benefit. One basis for this imposition is that because citizens give up certain rights by being parties to the "social contract," they should be entitled to certain positive protections guaranteed by the state created by way of said "contract." …

Who Bears The Burden? A Collectivist Approach To Resolving Pandemic Relief Overpayments, Allison R. Mastrangelo

Marquette Benefits and Social Welfare Law Review

Unemployment rates soared when COVID-19 hit the U.S. While pandemic relief programs allowed millions to meet their basic needs, a new problem emerged: overpayments. Overpayments occur when state agencies give claimants benefits they were not entitled to. While most claimants were not at fault for these mistakes, millions are now expected to repay benefits they spent months ago. Thus far, the U.S. has prioritized fraud detection over this overpayment crisis. This misguided effort is representative of the destructive, individualistic American welfare culture at large. This note advocates for a solution rooted in collectivist European values: amending the Coronavirus Aid, Relief, …

Gender Confirmation Surgery And The Federal Prison System: Eighth Amendment Framework And Proposed Alternatives, Julie Barnett

Marquette Benefits and Social Welfare Law Review

As reform for individuals with gender dysphoria has developed, the prison system's accommodation of those individuals' needs has underperformed. There have been a number of cases in the past few years where inmates who are experiencing gender dysphoria have not received adequate care in the form of gender confirmation surgery. Four of the Federal Appellate Circuit Courts have decided that a physician's refusal to provide an inmate with gender confirmation surgery is not a violation of the 8th Amendment. One circuit ruled differently and held that denial of the surgery to an inmate experiencing gender dysphoria does violate the 8th …

Nysrpa V. Bruen And New York: A Lost Opportunity For Racial Equity In The Polarizing Gun Conversation, Zamir Ben-Dan

City University of New York Law Review

On June 23, 2022, the United States Supreme Court handed down its decision in New York State Rifle and Pistol Association, Inc. v. Bruen,1 which invalidated the “proper cause” requirement of New York’s “Sullivan Law,” its gun licensing statute. Reactions to this deci-sion were predictably mixed, largely drawn along the regular partisan lines.2 For those concerned about racial justice, this decision created an opportunity for honest dialogue about how to enhance public safety in a nondiscriminatory way while being consistent with the Supreme Court’s interpretation of the Second Amendment. Unfortunately, this was bound to be a lost opportunity in New …

Extradition In Post-Roe America, Alejandra L. Caraballo, Cynthia Conti-Cook, Yveka Pierre, Michelle Mcgrath, Hillary Aarons

City University of New York Law Review

The United States is on the brink of a crisis brought on by the Supreme Court overturning Roe v. Wade in Dobbs v. Jackson Women’s Health. Eliminating the constitutional right to abortion will create a massive discordance in the criminal laws between states not seen since before the Civil War. This discordance in criminal laws will create tension between states that criminalize abortion and those that protect it as a state constitutional right. States such as Connecticut are already passing shield laws for abortion access and gender affirming care, while states such as Louisiana are proposing to classify abortion as …

Made For Export: How U.S. And Philippine Policies Commodify And Traffick Filipino Nurses, Emlyn Dy-Cok Medalla

City University of New York Law Review

Filipino nurses have been celebrated as heroes over the course of the ongoing COVID-19 pandemic. Some publications used this time to highlight the experiences of Filipino healthcare workers and the legacy behind the migration of Filipino nurses. However, the mass migration of Filipino nurses is a phenomenon that has grown out of a legacy of colonialism and imperialism. The United States relies on the exploitation of Filipino nurses as a band-aid solution to the nursing shortage that started in the 1970s. In response to two recent federal court decisions that make clear the practice of human trafficking in U.S.-Philippine employment …

High Risk Hustling: Payment Processors Sexual Proxies And Discrimination By Design, Zahra Stardust, Danielle Blunt, Gabriella Garcia, Lorelei Lee, Kate D'Adamo, Rachel Kuo

City University of New York Law Review

Sex workers are increasingly documenting financial discrimination when accessing banks, payment processors and financial providers. As hustle economy workers, barriers to digital financial infrastructure impact sex workers’ abilities to maintain their livelihoods, resulting in structural marginalization and vulnerability to violence. Internationally, peer-led sex worker organizations have documented payment processors that discriminate, collating public policies and user experiences. They report refusals of merchant services, being unable to open accounts, being denied loans, finance or insurance, higher premiums, and having money frozen, withheld or forfeited.

In this article, we examine the policies of banks and payment providers who refuse service to sex …

This Article Is Considered Terrorism In The Philippines: The Role Of People's Lawyers In Class Struggle, Amanda Katapang

City University of New York Law Review

Lawyers do not need to be confined to simply supporting the fight for liberation but can and should be part and parcel to the struggle. Legal theory and practice do not need to be divorced from revolutionary theory and practice. In the National Democratic (ND) Movement in the Philippines, people’s lawyers do not just participate in legal defense or campaigns but ultimately in class struggle against the exploiters and oppressors. This Comment explores these principles and lessons from the Philippines and their application in the ND Movement’s overseas component, building upon the canon of movement lawyering.

Reducing Multigenerational Poverty In New York Through Sentencing Reform, Jared Trujillo

City University of New York Law Review

The relationship between incarceration and poverty is circular, cyclical, and symbiotic – poverty is a cause of incarceration, and incarceration causes poverty. In the 1970’s and 1990’s, New York led the country in enacting draconian sentencing laws that required judges to sentence children and adults to longer periods of incarceration, while also reducing the ability of incarcerated people to earn time off of their sentences for participation in rehabilitative, vocational, and educational programming. For the past half century, these harsh sentencing laws have been the primary driver of mass incarceration in New York. As a result, generations of families with …

"Inherently Expressive": Bds Organizing For Palestinian Liberation At Cuny School Of Law And Beyond, Students For Justice In Palestine (Sjp), Jewish Law Students Association (Jlsa), City University Of New York (Cuny) School Of Law

City University of New York Law Review

No abstract provided.

Footnote Forum’S Moderated Conversation With The Authors Of The Domestic Violence Survivors Justice Act And Criminalized Immigrant Survivors, Assia Serrano And Nathan Yaffe, Assia Serrano, Nathan Yaffe

City University of New York Law Review

No abstract provided.

Front Matter

City University of New York Law Review

No abstract provided.

The Heirs' Property Problem: Racial Caste Origins And Systemic Effects In The Black Community, Brenda Gibson

City University of New York Law Review

This article enters the conversation about Black poverty in a new way—discussing the phenomenon of the heirs’ property ownership model as an impediment to Black wealth. Though heirs’ property seems a rather innocuous concept in property law, juxtaposed with the history of Black people in the United States, particularly through the lens of the South Carolina Low Country and American systems that have birthed and nurtured incalculable inequities for us, it becomes clear that heirs’ property ownership is much more. It is both cause and effect: cause as it was birthed out of America’s racial caste system; and effect in …

No Settled Law On Settled Land: Legal Struggles For Native American Land And Sovereignty Rights, Laura Waldman

City University of New York Law Review

Since the early years of colonization, Native American people have engaged in continuous legal struggles for land and sovereignty, which have exposed the colonial underpinnings and white supremacist worldview that are the root cause of their ongoing subjugation. In modern times, that often takes the form of government-backed corporate control over natural resources. This note traces the historical links from treaty violations by early white settlers for the purpose of usurping plantation land and gold, to recent incursions by companies building unwanted oil and gas pipelines on Native American lands.

Both then and now, using law as a tool of …

Sexual Intimacy As A Fundamental, Human Right: Conjugal Visits And The Right To Be Unmarried, Deema Nagib

City University of New York Law Review

The United States incarcerates approximately 2 million people on any given day, more than any other country in the world. Over the years, we’ve seen growing emphasis on the rights and human needs of the incarcerated. Specifically, there have been growing movements to end the use of solitary confinement; reduce or eliminate the costs of phone calls, visits, and other methods of communication; end prison slavery and implement living wages for incarcerated people; and increase opportunities for education and other meaningful programming. However, little emphasis has been placed on an incarcerated person’s right and ability to be sexual. A desire …

An Asian American Challenge To Restrictive Voting Laws: Enforcing Section 208 Of The Voting Rights Act In Texas, Kyuwon Shim, Michelle David, Susana Lorenzo-Giguere

City University of New York Law Review

Under Section 208 of the Voting Rights Act (“VRA”), any voter who is blind, disabled, or unable to read or write is entitled to assistance to vote by a person of the voter’s choice. Section 208 guarantees that such voter may choose a person they trust to assist them in navigating the voting process and cast a ballot, with only two limitations: To prevent financial influence on the voter’s ballot choices, the assistor cannot be the voter’s employer or union representative. In Texas, this law protects millions of limited-English proficient (“LEP”), disabled, and illiterate citizens. In 2015, the Asian American …

Women's Dignity, Women's Prisons: Combatting Sexual Abuse In America's Prisons, Erin Daly, Paul Stanley Holdorf, Kelly Harnett, Jane Doe, Domonique Grimes

City University of New York Law Review

Staff sexual abuse is rampant throughout the American prison system. This is true despite a federal law—the aspirationally titled Prison Rape Elimination Act (“PREA”)—that has been in place for 20 years and despite the rare conviction of prison officials who are found guilty of rape or sexual abuse of people who are incarcerated. Sexual contact between prison staff and incarcerated people is by definition illegal because the power imbalance between people in custody and those who are under their control makes consent impossible as a matter of law. Staff-on-prisoner sexual abuse takes many forms, including sexual humiliation, sexually degrading language …

Search And Seizure Budgets, Kiel Brennan-Marquez, Stephen E. Henderson

Faculty Articles

This article proposes a new means of restraining police power: quantitative limits on the number of law enforcement intrusions—searches and seizures—that may occur over a given period of time. Like monetary constraints, search and seizure budgets would aim to curb abusive policing and improve democratic oversight. But unlike their monetary counterparts, budgets would be indexed directly to the specific police activities that most enable escalation and abuse. What is more, budgets are a tool that finds support, conceptually, in the American framing experience. The Fourth Amendment has long been understood to require procedural limits, such as probable cause, on specific …

Private Sanctions, Public Harm?, Jon J. Lee

Faculty Articles

The legal profession has a secret. In response to widespread public distrust in the profession’s ability to regulate itself, state disciplinary authorities have undertaken modest efforts over the last several decades to make their activities more transparent. They have opened up their formal proceedings, publicized the identities of sanctioned attorneys, and shared information about their work online. But at the same time, most have quietly continued to resolve cases of ostensibly “minor” and “isolated” misconduct through the use of private sanctions, keeping the identities of disciplined attorneys—and their misconduct—hidden from view. This Article provides the first comprehensive scholarly contribution on …

The Undemocratic Class Action, Nicholas Almendares

Articles by Maurer Faculty

Class actions can have profound effects. But theorists, policymakers, and judges have long worried that attorneys can use them for their own advantage, reaping generous rewards for themselves while class members receive next to nothing. Unlike citizens or shareholders, members of a class cannot exercise democratic control over the attorney that nominally works on their behalf. I label this the democratic critique of class actions, and it has been the dominant framework for understanding class actions, shaping both case law and reform proposals.

The democratic critique is based on a false premise, though, because it does not take into account …

Constrained Income Redistribution And Inequality: Legal Rules Compared To Taxes And Transfers, David A. Weisbach

Coase-Sandor Institute for Law & Economics Research Paper Series

A widely accepted result, associated with Louis Kaplow and Steve Shavell, is that it is more costly to use legal rules to redistribute income than to use the tax and transfer system (the income-tax only result). An assumption behind this result is that if a legal rule is changed to eliminate its income-redistributive effects, the tax and transfer system can be adjusted to counteract the effects of those changes on the distribution of income. A number of commentators have questioned this assumption, suggesting that political constraints may limit the ability of the tax and transfer system to adjust to changes …

Real-World Prior Art, Jonathan S. Masur, Lisa Larrimore Ouellette

Coase-Sandor Institute for Law & Economics Research Paper Series

The most fundamental requirement of patent law is that a patented invention must be new. Given the longstanding, foundational nature of this novelty requirement, one might expect its contours to be well settled. And yet some of its most basic aspects remain unresolved. At the center of these unresolved issues lie what we term “real-world prior art.” In patent law, prior art is something that predates an invention and may render it not new. “Real-world” prior art activities involve using or selling real-world embodiments of the invention. Consider a few examples. Suppose Aleida demonstrates her invention to members of the …

The Flawed Arguments Against Bankruptcy Releases, Anthony Casey

Coase-Sandor Institute for Law & Economics Research Paper Series

As the bankruptcy of Purdue Pharma heads to the United States Supreme Court, the bankruptcy world is once again in a frenzied debate about “third-party” or “nondebtor” releases. This debate often devolves, unfortunately, into one of rhetoric producing, as they say, more heat than light.

It can be difficult to address all the nuances in short form. I have laid out a long-form academic argument in favor of nondebtor releases elsewhere. And I have addressed some of the policy considerations here and here. But it may be useful to use this space to counter two of the weaker arguments against …

The Geography Of Unfreedom, Ann M. Eisenberg

Michigan Law Review

A Review of Coal, Cages, Crisis: The Rise of the Prison Economy in Central Appalachia. By Judah Schept.

The Indian Child Welfare Act In The Multiverse, M. Alexander Pearl

Michigan Law Review

A Review of Adoptive Couple v. Baby Girl By Matthew L.M. Fletcher and Kathryn E. Fort, in Critical Race Judgments: Rewritten U.S. Court Opinions on Race and the Law 452, 471. Edited by Bennett Capers, Devon W. Carbado, R.A. Lenhardt and Angela Onwuachi-Willig.