Law Commons^™

J Mich Dent Assoc January 2025

The Journal of the Michigan Dental Association

Each month, the Journal of the Michigan Dental Association provides news, information, and features about Michigan dentistry to our state's oral health community and the MDA's 6,200+ members. It is the primary publication reaching Michigan dentists. The January issue sets the tone for February, the observance of Children’s Dental Health Month.

Michigan Academy of Pediatric Dentistry President Jessica Bentoski welcomes readers to this special issue, which features a cover feature on “Approaches to Care for Children with Special Needs in Dental Settings: Desensitization and Teledentistry” and a supporting article on “General Dentists’ Education, Knowledge, Attitudes, and Behavior Concerning the Effects …

Automating International Human Rights Adjudication, Veronika Fikfak, Laurence R. Helfer

Faculty Scholarship

International human rights courts and treaty bodies are increasingly turning to automated decision-making (“ADM”) technologies to expedite and enhance their review of individual complaints. These tribunals have yet to consider many of the legal, normative, and practical issues raised by the use of different types of automation technologies for these purposes. This article offers a comprehensive and balanced assessment of the benefits and challenges of introducing ADM into international human rights adjudication. We argue in favor of using ADM to digitize documents and for internal case management purposes and to make straightforward recommendations regarding registration, inadmissibility, and the calculation of …

The Solicitor General, Consistency, And Credibility, Margaret H. Lemos, Deborah A. Widiss

Faculty Scholarship

This Article offers the first comprehensive look at cases in which the Solicitor General (SG) rejects a legal argument offered on behalf of the United States in prior litigation. Such reversals have received considerable attention in recent years, as shifts in presidential administrations have produced multiple high-profile “flip-flops”—as the Justices sometimes call them—by the SG. Even those observers who defend the SG, including veterans of the office, caution that inconsistency in legal argument poses a threat to the SG’s credibility with the Court. Our goal is to better understand the circumstances that lead the SG to change its position on …

Collective Management Of Copyrights And Human Rights In An Age Of Technological Automation, Laurence R. Helfer, Giulia Priora

Faculty Scholarship

Collective management organizations (CMOs) across the world have remained key to the exercise and enforcement of copyrights and neighbouring rights of individual creators notwithstanding the rapid development of digital technologies and their decentralizing potential. This chapter provides an up-to-date legal analysis on the role and activities carried out by CMOs vis-à-vis the protection of creators’ rights as international human rights. By scrutinizing key treaty provisions and interpretative documents, the analysis reveals how a human rights framework supports numerous functions performed by CMOs. However, significant conflicts may arise from certain practices and policies of CMOs concerning, for example, mandatory membership, promotion …

The Credit Markets Go Dark, Jared A. Ellias, Elisabeth De Fontenay

Faculty Scholarship

Over the past generation, conflicting trends have reshaped the ownership of corporate equity on the one hand and corporate debt on the other. In equity, the two great trends have been the shift from public markets to private ownership and the consolidation of American companies’ stock in the hands of powerful investment funds. In debt, by contrast, the great trends have been a shift from private loans to quasi-public markets and dispersed ownership.

In this Article, we chronicle the recent and dramatic reversal of these trends in the debt markets. Private investment funds executing a “private credit” strategy have become …

Racial Disparities In Crime-Based Removal Proceedings, Emily Ryo, Ian Peacock, Weston Ley, Christopher Levesque

Faculty Scholarship

Whether and to what extent racial minorities experience harsher treatment or face worse outcomes in court are questions of fundamental importance for any justice system. Questions of racial inequality are especially salient in the context of removal proceedings that are triggered by immigrants’ criminal history. Many individuals in crime-based removal proceedings are immigrants of color who face a host of legal disadvantages that are tantamount to double penalties for the same crime for which they have already been punished through the criminal justice system. This Article offers, for the first time, systematic empirical analyses of crime-based removal proceedings decided between …

Bankruptcy Appeal Barriers, Jonathan M. Seymour

Faculty Scholarship

Appeals in bankruptcy do not look like appeals elsewhere in the federal court system. In particular, bankruptcy appeal barriers are strikingly distinctive. These barriers serve outright to block an appeal from being decided. An appellate court may dismiss an appeal, rather than consider the merits, if facts on the ground have changed so much since the original decision that providing a remedy to an appellant, even if victorious, would not be prudent. Take ongoing litigation in the Boy Scouts bankruptcy case. A plan of reorganization was confirmed fixing the entitlements of victims to compensation. Dissenting creditors argued bitterly the plan …

Cost–Benefit Analysis, Matthew D. Adler

Faculty Scholarship

This chapter will address the place of cost–benefit analysis (CBA) in constitutional law, by way of a case study. I’ll describe, and puzzle over, CBA’s absence from most U.S. constitutional doctrines, notwithstanding its major role in U.S. administrative law. The general questions that I seek to illuminate are by no means limited to the U.S. How might CBA figure within the tests that constitutional courts use to adjudicate alleged violations of constitutional rights? How might it serve to determine the structure of constitutional institutions? Would it be justified for CBA to play these doctrinal roles? But these general questions are …

Reconstructing The Meaning Of "Forty Acres And A Mule", Cynthia Nicoletti

Faculty Scholarship

This article offers a new interpretation of the land grant to freedpeople contained in General William T. Sherman’s Special Field Orders No. 15. Issued in January 1865 at the end of the Civil War, Sherman’s Orders are widely considered to be the origin of the government promise to endow freedpeople with “forty acres and a mule” as they transitioned from slavery to freedom. As such, the Special Field Orders have played a central role in shaping the cultural memory of the Civil War, historical accounts of Reconstruction, and contemporary debates over reparations for slavery. They have also been misunderstood and …

Affording Oral Tradition Evidence Due Weight Before The International Court Of Justice, Terrence Neal

Faculty Scholarship

Oral traditions are irreplaceable sources of historical information, particularly with regard to Indigenous Peoples’ histories and cultures. However, when states have submitted oral traditions as evidence of historical practices, events, and circumstances in cases before the International Court of Justice (“Court”), the Court has been reluctant to afford them significant weight. This Article, which is the first detailed study on the Court’s treatment of oral traditions, examines whether the Court is failing to provide them due or appropriate weight. Based on historical, archaeological, and anthropological research, it establishes that oral traditions can be as reliable as written documents for reconstructing …

Artificial Intelligence And Procedural Due Process, Brandon L. Garrett

Faculty Scholarship

Artificial intelligence (AI) violates procedural due process rights if the government uses it to deprive people of life, liberty, and property without adequate notice or an opportunity to be heard. A wide range of government agencies deploy AI systems, including in courts, law enforcement, public benefits administration, and national security. If the government refuses to disclose the reasons why it denied a person bail, public benefits, or immigration status, serious due process concerns arise. If the government delegates such tasks to an AI system, the due process analysis does not change. One asks whether a person received adequate notice and …

Presidential Regulation, Timothy Meyer, Ganesh Sitaraman

Faculty Scholarship

This Article documents and analyzes the rise of a new mode of economic governance: presidential regulation. Today, the President regularly bypasses not only Congress but also the executive branch’s own administrative agencies and directly imposes sweeping new economic regulations. President Biden, for instance, created new regulatory regimes governing producers of artificial-intelligence technologies, companies that trade in or hold the personal information of U.S. citizens, and companies that can increase the production of energy-efficient equipment and technology. During his first term, President Trump regulated the kinds of technologies that U.S. telecommunications companies can buy and sell, placed restrictions on the electrical …

Money: A Functional Analysis, Steven L. Schwarcz

Faculty Scholarship

Most people currently think of money as government-issued paper certificates or coins that specify units of currency, such as dollars or euros. The advent of digital currencies, which appear abstract because of their intangibility, is therefore confounding almost everyone.

This Article argues that money should also be viewed functionally—as a “right” that serves one or more of the generally accepted functions of money. The Article focuses on two of money’s most generally accepted functions: to serve as a medium of exchange to facilitate the sale of goods and services, and to serve as a store of value. To perform these …

Die Wirkliche Gefahr Liegt In Der Erosion Der Autonomie: Ein E-Mail-Interview Über Kognitive Freiheit Und Die Problematische Nutzung Neuronaler Daten, Nita Farahany, James Kennaway, Bernd Bösel

Faculty Scholarship

In this interview, James Kennaway and Bernd Bösel talk to Nita Farahany about significant themes related to the idea of mind control, as discussed in her book "The Battle for Your Brain" (2023). The book outlines the risks that neurotechnology poses to "cognitive freedom". EEG and EMG data are increasingly used in consumer products, raising concerns about potential misuse. Companies and governments could exploit cognitive biometric data for manipulation or control. Farahany calls for clear legal protections and highlights differences between U.S. and European regulations. She warns of neurotechnological warfare and advocates for global bans. While full mind control remains …

The Social Cost Of Plastic To The United States, Nancy Lauer, Tibor Vegh, Michelle Nowlin, John Virdin, Jason Somarelli

Faculty Scholarship

No abstract provided.

Recent Changes In Discretionary Denials Of Drug Patent Challenges, S. Sean Tu, Arti K. Rai, Aaron S. Kesselheim

Faculty Scholarship

Recent policy shifts at the U.S. Patent and Trademark Office (USPTO) have sharply limited the use of two administrative pathways for patent reviews, inter partes review (IPR) and post-grant review (PGR). Congress created these administrative pathways to provide a faster and less costly way to challenge weak patents. Recently, the USPTO has expanded the use of “discretionary denials,” invoking a new “settled expectations” rationale that blocks IPR petitions for patents more than about six years old. From May to September 2025, 60% of 506 requests for discretionary denial were granted, triple historical levels, including one-third involving drug patents. These changes …

The Reliability Response To Patent Law’S Ai Challenges, Arti K. Rai

Faculty Scholarship

Pervasive AI use adds newfound importance to longstanding debates over patent timing and reliability. Patent claims on speculative ideas generated by AI, or even the infusion of speculative AI-generated ideas into the public domain, may defeat patent incentives for more careful research. Although challenges that AI use poses for patent validity requirements like human inventorship and nonobviousness have received more attention, reliability is equally important.

Indeed, as this Article argues, the issues are linked. If requirements for inventorship and nonobviousness were adjusted to emphasize reliability, a human role could be preserved, and AI use would not necessarily threaten patents. Currently, …

Brief Of Professors Julian Arato, Rachel Brewster, Harlan Grant Cohen, David Singh Grewal, J. Benton Heath, Timothy Meyer, Gregory Shaffer, And Chantal Thomas As Amici Curiae In Support Of Petitioners In No. 24-1287 And Respondents In No. 25-250, Julian Arato, Rachel Brewster, Harlan Grant Cohen, David Singh Grewal, J. Benton Heath, Timothy Meyer, Gregory Shaffer, Chantal Thomas

Faculty Scholarship

No abstract provided.

Judicial Reform From The Inside Out, Daniel Epps, Marin K. Levy

Faculty Scholarship

The Judiciary Act of 1925, the subject of this Symposium, is known as “the Judges Bill” for a reason. The Justices of the Supreme Court, and Chief Justice Taft in particular, produced the Act and persuaded Congress to enact it. To modern eyes, such efforts seem indecorous, perhaps even scandalous. But in fact, Supreme Court Justices and other federal judges have been extensively involved in judicial reform throughout American history. This Essay examines participation by federal judges in judicial reform efforts—what we call judicial reform from the inside out.

We survey examples of judges participating in reform debates from across …

Interplanetary Risk Regulation, Jonathan B. Wiener, Charles (Chase) Hamilton

Faculty Scholarship

Space exploration promises new opportunities but also new risks. After centuries of national settlements and international conflicts on Earth, and the Cold War era of two great power states racing to the Moon, today we see a rapidly proliferating arena of actors, both governmental and non-governmental, undertaking bold new ventures off-Earth while posing an array of new risks. These multiple activities, actors, and risks raise the prospects of regulatory gaps, costs, conflicts, and complexities that warrant reconsideration and renovation of legacy legal regimes such as the international space law agreements. New approaches are needed, beyond current national and international law, …

Civilian Harm And Military Legitimacy: Evidence From The Battle Of Mosul, Benjamin Krick, Jonathan Petkun, Mara R. Revkin

Faculty Scholarship

The legitimacy of armed forces in the eyes of civilians is increasingly recognized as crucial not only for battlefield effectiveness but also for conflict resolution and peace building. However, the concept of “military legitimacy” remains under-theorized and its determinants poorly understood. We argue that perceptions of military legitimacy are shaped by two key dimensions of warfare: just cause and just conduct. Leveraging naturally occurring variation during one of the deadliest urban battles in recent history—the multinational campaign to defeat the Islamic State in Mosul, Iraq—we evaluate our theory using a mixed-methods design that combines original survey data, satellite imagery, and …

“Murder The Media”: Press Freedom, Violence, And The Public Sphere, Joseph Blocher

Faculty Scholarship

The first goal of this chapter is to argue that the press as an institution is entitled to special solicitude under the First Amendment, not only because it is textually specified in the Constitution or because it serves important roles such as checking public and private power, but because it can contribute to the marketplace of ideas in ways that a healthy democracy needs. In other words, the press as an institution can provide an important link between the First Amendment’s epistemic and democratic values. The chapter’s second goal is to provide a rough and preliminary sketch of the relationship …

Interlocking Directorates In The United States, Yaron Nili

Faculty Scholarship

In corporate America, directors wield increasing influence across multiple companies, often within the same industry (“horizontal directors”), which creates tension between antitrust laws and corporate governance. Horizontal directors are well-positioned to bring industry expertise and potentially increase higher profits, benefiting shareholders but also possibly enabling potential collusion. This chapter provides an overview of the prevalence of horizontal directors, the regulatory grey space in which they exist and the connection to some recently debated issues, including that of common ownership by institutional investors. To inform this debate, this chapter provides a thorough overview of horizontal directors from corporate and antitrust perspectives …

Rethinking Human Rights Treaty Withdrawals: A Process-Based Approach, Laurence R. Helfer, Başak Çalı

Faculty Scholarship

This article presents the case for reconsidering the rules governing withdrawals from human rights treaties that permit unilateral exit. Once a rarity, such withdrawals have been on the rise across the globe. We propose a process-based approach to address this trend. The heart of our proposal focuses on sequenced domestic and international processes to publicise and scrutinise the nearly unfettered authority of executive branch officials to exit from such human rights treaties. This approach requires that national executives explain and justify a decision to withdraw, which can then be evaluated by a wide range of domestic and international actors. Drawing …

A Critique Of Findings On Gun Ownership, Use, And Imagined Use From The 2021 National Firearms Survey: Response To William English, Deborah Azraek, Joseph Blocher, Philip J. Cook, David Hemenway, Matthew Miller

Faculty Scholarship

For a paper that has not yet been through peer review or even been formally published, William English’s “2021 National Firearms Survey” has been remarkably prominent in gun rights advocacy and scholarship. As of December 2024, it has been cited in roughly sixty-five briefs, invoked at oral argument in the Supreme Court and multiple courts of appeals, and regularly cited in public writings and published academic work.

This response is offered in the spirit of a peer review. Our focus is on methodological issues, questionable statistical results, and problematic conclusions. Because of serious methodological issues, English’s draft fails to provide …

The Invention Of The Judicial Administrative State, Marin K. Levy

Faculty Scholarship

No abstract provided.

Listening On Campus: Academic Freedom And Its Audiences, Joseph Blocher

Faculty Scholarship

Current debates about campus speech often conflate two related but importantly distinct values: free speech and academic freedom. Both are widely perceived to be in crisis, but they are not interchangeable, and slippage between the two makes it even harder to frame, let alone address, difficult questions about speech in university settings. Many of the most fundamental challenges—indeed, much of what makes campus speech unique in the first place—arise from the need to accommodate both values. In doing so, defenders of academic freedom must, as advocates of free speech have, more clearly articulate an account of listener interests. The basic …

Defining The Field Of Judicial Administration, Marin K. Levy

Faculty Scholarship

This Keynote address, as part of a symposium on "Theorizing the Judicial Process," aims to make a case for the field of judicial administration and to define the field more generally. Specifically, it seeks to raise the organizing questions of the field and to note the kind of work--descriptive, empirical, and theoretical--that is needed to answer them. The hope is to map out a collective research agenda for courts scholars to pursue into the future for the benefit of the academy and judiciary, both.

Judge–Scholar Collaboration And The Second Amendment, Andrew Willinger, Eric Ruben

Faculty Scholarship

Legal scholarship is overly abstract and theoretical, making it unhelpful to judges and lawyers. That, at least, is the classic critique from the bench. When it comes to the Second Amendment, however, a different pattern has emerged: judges consistently cite law review articles and look to the academy for guidance. Most recently, in United States v. Rahimi, some Justices went further, implicitly inviting more scholarly work to help the Court answer open questions raised by its novel methodological approach to the Second Amendment. This Article explores this aberrant trend.

We raise several explanations for the distinctive scholarly role in …

Multi-Risk Governance Of Solar Radiation Modification, Jonathan B. Wiener, Tyler Felgenhauer, Mark E. Borsuk

Faculty Scholarship

Solar radiation modification (SRM) presents important challenges to risk regulation and governance, arising from the array of multiple risks that SRM may influence. SRM would not simply reverse climate change, but could pose further ancillary impacts, depending on the method of SRM, such as stratospheric aerosol injection (SAI), marine cloud brightening (MCB), or a space-based planetary sunshade system (PSS). We identify multiple risks that SRM may influence, both biophysical and sociopolitical, to be compared to the multiple risks that may be affected by greenhouse gas (GHG) mitigation and climate adaptation. This multi-risk framework helps analysts and decision makers identify, evaluate, …