Legal Writing and Research Commons^™

A Survey Of Legal Issues Arising From The Deployment Of Autonomous And Connected Vehicles, Daniel A. Crane, Kyle D. Logue, Bryce C. Pilz

Michigan Telecommunications & Technology Law Review

With concerns rising over the number and variety of state regulations, companies are increasingly looking to the federal government for guidance. Representatives from Google, GM, Lyft, and Delphi testified before Congress on March 15, urging Congress to pass a federal law concerning autonomous vehicles. While the passage of any federal legislation is unclear at this time, other parts of the federal government have been extremely active in recent months. In January 2016, the Obama administration proposed a 10-year, $4 billion investment in autonomous vehicle technology. In that same announcement, the Department of Transportation (“DOT”) committed to developing model state policy …

Update Your Bookmarks! Great Sites For Effective Research, Nancy E. Vettorello

Articles

There are more than one billion websites available online. Many are useful tools for attorneys, so it makes sense to review and refresh your favorite bookmarks regularly. While none of the many free sites offer the sophisticated search abilities of fee-based research services, a few minutes spent exploring free sites can help researchers significantly narrow their searches once they turn to a fee-based system. Remember to always take advantage of the advancesearch option when available on a free site. Free sites are offering increasingly sophisticated search options, such as Boolean and proximity searches, which were previously exclusive to paid services.

Resurrecting (And Modernizing) The Research Treasure Hunt, Nancy E. Vettorello

Articles

First-year associates will spend forty-five percent of their time on legal research; second- and third-year associates will spend thirty percent. And unfortunately, employers find their associates’ research skills lacking. This is not a new complaint. Employers have been complaining for more than a hundred years that recent law graduates cannot research well. None of this is lost on those who teach legal research, who have long debated the best way to do so. Techniques for teaching research have changed over time, and methods once thought appropriate were sometimes later disfavored. Changes were driven both by pedagogy and by the ever-changing …

A Partial View Of China's Governance Trajectory, Nicholas Calcina Howson

Reviews

Minxin Pei’s new book China’s Crony Capitalism: The Dynamics of Regime Decay recites in detail the morass of corruption and collusion in which the People’s Republic of China (PRC) party-state finds itself. Encyclopedic in scope, the book addresses corruption, extraction, and network formation in many of modern China’s formal settings—including in the Chinese Communist Party (CCP), the nomenklatura system, state institutions, enterprises, the investment sector, and the real property market, among others—but also in nonformal contexts such as the rise of the “local mafia state.” The book’s basic storyline is this: the PRC’s radical devolution of intertwined political power and …

Using Advanced Conflict Waivers To Teach Drafting, Ethics, And Professionalism, Edward R. Becker

Articles

On a substantive and ethical level, I tell my students to take on faith that if you were to do all of this and take all this into account, if you were to apply the conflict of interest and the disqualifications rules, it could make it extremely difficult or many of the firms involved in these matters to avoid being conflicted out; especially, if the parties and the kind of firms involved were not dealing with these conflicts and issues until a problem arose. The question I ask my students again at this point is what could be done. What …

Consumer Preferences For Performance Defaults, Franklin G. Snyder, Ann M. Mirabito

Michigan Business & Entrepreneurial Law Review

Commercial law in the United States is designed to facilitate private transactions, and thus to enforce the presumed intent of the parties, who generally are free to negotiate the terms they choose. But these contracts inevitably have gaps, both because the parties cannot anticipate every situation that might arise from their relationship, and because negotiation is not costless. When courts are faced with these gaps in a litigation context, they supply default terms to fill them. These defaults usually are set to reflect what courts believe similar parties would have agreed to if they had addressed the issue. These “majoritarian” …

Comma But Differentiated Responsibilities: Punctuation And 30 Other Ways Negotiators Have Resolved Issues In The International Climate Change Regime, Susan Biniaz

Michigan Journal of Environmental & Administrative Law

International climate change negotiations have a long history of being contentious, and much has been written about the grand trade-offs that have allowed countries to reach agreement. Issues have often involved, for example, the level of ambition, differentiated treatment of Parties, and various forms of financial assistance to developing countries.

Lesser known are the smaller, largely language-based tools negotiators have used to resolve differences, sometimes finding a solution as subtle as a shift in the placement of a comma. These tools have operated in different ways. Some, such as deliberate imprecision or postponement, have “resolved” an issue by sidestepping it …

Can Prostitution Law Reform Curb Sex Trafficking? Theory And Evidence On Scale Substitution, And Replacement Effects, Simon Hedlin

University of Michigan Journal of Law Reform

Sex trafficking, a pervasive problem in many parts of the world, has become increasingly salient to policymakers and the general public. Activists, politicians, and scholars continue to engage in debates about how best to curb it. This Article discusses one especially contentious dimension of these debates: does banning prostitution reduce sex trafficking? Or is legalizing prostitution the optimal approach? Or is there a third, better way? Proceeding both theoretically and empirically, this Article seeks to cast light on the relationship between different types of prostitution laws and the prevalence of sex trafficking and human trafficking. It attempts to make three …

The Uneasy Case For The Retirement Of Douglas Kahn, Jeffrey H. Kahn

Michigan Business & Entrepreneurial Law Review

In the fall semester of 1964, a young Douglas Kahn joined the faculty of the University of Michigan Law School. During the spring semester of 2016, he will teach his final course as a full-time faculty member. For the interim fifty two years, he has been a fixture of the Michigan law school community. As a tax professor, former student, and his son, I am pleased and honored to write this introduction for an edition of the Michigan Business & Entrepreneurial Law Review honoring Professor Kahn’s tenure at the University of Michigan.

Doug Kahn: The Pied Piper Of Tax Law, Barrie Lawson Loeks, Burt P. Rosen

Michigan Business & Entrepreneurial Law Review

Doug Kahn’s love of tax law appears to be contagious. His wife was a tax lawyer, his son is now a tax law professor, and even his daughter in law is a tax lawyer. Doug may have caught the “tax disease” from his elder brother, who was also a leading tax lawyer. In politics, we have the Kennedys, the Bushes, and the Clintons; in the world of tax law, we have the Kahn family dynasty. One can only assume that the discussions around the family Thanksgiving table sliced and diced tax regulations and policies right along with the turkey and …

Sources Of Information On The Trans-Pacific Partnership, Barbara H. Garavaglia

Articles

The Trans-Pacific Partnership Agreement (TPP) is a free trade agreement between 12 countries in the Asia Pacific region: Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States, and Vietnam. The agreement, signed by the U.S. and other participating countries in Auckland, New Zealand on February 4, 2016, “promotes economic integration to liberalise trade and investment” and “bring economic growth” to the region and participating countries. One reason for the sense of uncertainty, unease, and concern surrounding free trade agreements in general and the TPP in particular is that the negotiations are not public and …

In Praise Of Law Books And Law Reviews (And Jargon-Filled Academic Writing), Cass R. Sunstein

Michigan Law Review

Many people, including many lawyers and judges, disparage law reviews and the books that sometimes result from them on the ground that they often deal with abstruse topics, of little interest to the bar, and are sometimes full of jargon, including excessively academic and impenetrable writing. Some of the objections are warranted, but at their best, law books and law reviews show a high level of rigor, discipline, and care; they have a kind of internal morality. What might seem to be jargon is often a product of specialization, similar to what is observed in other fields (such as economics, …

The Changing Market For Criminal Law Casebooks, Jens David Ohlin

Michigan Law Review

Criminal law is a nasty business. The field takes as its point of departure the indignities that human beings visit upon each other—each one worse than the one before. A book or article about criminal law often reads like a parade of horribles, an indictment of humanity’s descent into moral weakness. For those who teach criminal law, everything else pales in comparison. Neither the business disputes of contract law nor the physical injuries described in a torts casebook can compare with the depravity of what we teach in criminal law. Criminal law professors are often addicted to their subject. Nothing …

What Is Criminal Law About?, Guyora Binder, Robert Weisberg

Michigan Law Review

In “The Changing Market for Criminal Casebooks,” Jens David Ohlin offers an appreciative, but nevertheless critical review of established criminal law casebooks. He then introduces his own offering by describing “a vision for a new casebook” that will better serve the needs and wants of contemporary students. Ohlin begins with the arresting claim that criminal law professors are passionate about their subject because they are fascinated by human depravity. Then, throughout his essay, he stresses efficient, consumer-focused delivery of doctrinal instruction as the defining task of a successful casebook. Moreover, he argues, casebooks should devote less attention to academic theories …

Custom's Method And Process: Lessons From Humanitarian Law, Monica Hakimi

Book Chapters

A central question in the literature on customary international law (CIL) goes to method: what is the proper method for "finding" CIL - that is, for determining that particular norms qualify as ClL? The traditional method is to identify a widespread state practice, plus evidence that states believe that the practice reflects the law (opinio juris). That method has long been criticized as incoherent, unworkable, and out of touch with modern sensibilities. Thus, much of the CIL literature addresses its perceived problems. The principal goals of this literature are to help resolve whether norms that are claimed to be CIL …

Dual-Class Capital Structures: A Legal, Theoretical & Empirical Buy-Side Analysis, Christopher C. Mckinnon

Michigan Business & Entrepreneurial Law Review

“The advantage of a dual-class share structure is that it protects entrepreneurial management from the demands of ordinary shareholders. The disadvantage of a dual-class share structure is that it protects entrepreneurial management from the demands of shareholders.” Issuing dual classes of stock has become hotly debated since two major events transpired in 2014: (1) Facebook acquired WhatsApp for $19 billion and (2) Alibaba chose to list its shares on the New York Stock Exchange (NYSE) instead of the Hong Kong Exchange. Because dual-class managers, like those at Facebook and Alibaba, retain a controlling voting block, their decisions are immune from …

How Cosmopolitan Are International Law Professors?, Ryan Scoville, Milan Markovic

Michigan Journal of International Law

This Article offers an empirical answer to a question of interest among scholars of comparative international law: why do American views about international law appear at times to differ from those of other countries? We contend that part of the answer lies in legal education. Conducting a survey of the educational and professional backgrounds of nearly 150 legal academics, we reveal evidence that professors of international law in the United States often lack significant foreign legal experience, particularly outside of the West. Sociological research suggests that this tendency leads professors to teach international law from predominantly nationalistic and Western perspectives, …

Rejected For Exposure, Jessica Hanes, Seth Quidachay-Swan

Law Librarian Scholarship

A story published recently in the Detroit News about a Michigan man “asserting a constitutional right to take ‘ballot selfies’ by challenging the state’s long-standing ban on voting station and polling place photography” sparked our interest in whether generational social media preferences might be the driving force for citizens who seek to overturn such laws. After all, the plaintiff is among the earliest born into the Millennial generation, over half of which (55%) have shared a selfie on social media as of 2014, a practice that has become ubiquitous even in politics.

Minimizing Probate-Error Risk, Mark Glover

University of Michigan Journal of Law Reform

Probate-error risk is the possibility that a court will incorrectly assess the authenticity of a will. By prescribing the method courts use to evaluate the authenticity of wills, the law of will-execution allocates probate-error risk between false-positive outcomes and false-negative outcomes. When a court validates an inauthentic will, it creates a false-positive outcome. When a court invalidates an authentic will, it creates a false-negative outcome. Because false-positive outcomes result in the admission to probate of inauthentic wills and false-negative outcomes result in the denial of probate of genuine wills, both can be characterized as probate errors. This framework has been …

Think Of The Children: Using Iied To Reformulate Disturbing Speech Restrictions, Richard Lorren Jolly

University of Michigan Journal of Law Reform

The Colorado State Court of Appeals recently upheld an injunction restricting public displays of aborted fetuses. The court held that the restriction passed strict scrutiny because the state had a compelling interest in protecting children from the psychological harm of “disturbing images” and the injunction was narrowly tailored. This marked the first time an injunction had been upheld on this rationale. This Note critiques that holding and others. It contends that while some federal and state courts have recognized the interest in protecting the psychological wellbeing of children from disturbing speech as compelling, the interest is not supported by precedent. …

Assignments With Intrinsic Lessons On Professionalism (Or, Teaching Students To Act Like Adults Without Sounding Like A Parent), Beth H. Wilensky

Articles

There is little question that law schools ought to teach their students professionalism – indeed, they are required to do so to maintain accreditation. And there is little question that the required legal writing and research course is one of the places it ought to be taught. But teaching students to adopt the norms of professional behavior — both in law school and after graduation — is a challenge to law faculties, and particularly to the experiential learning faculty who frequently are on the front lines of teaching professionalism. While there are many ways to teach students what professional and …

When Should We Teach Our Students To Pay Attention To The Costs Of Legal Research?, Beth H. Wilensky

Articles

It is axiomatic in legal research pedagogy that law schools should teach students how to conduct cost-effective legal research. To do that, we need to teach students to consider the amount of time and money their research requires, how paid legal research platforms like Westlaw and Lexis charge for their services, and how to research in an efficient and cost-sensitive way. But we shouldn’t do those things. Or at least, we shouldn’t do them at first. Instead, we should tell students not to worry about the costs of legal research during their first year of law school—with the possible exception …

Introducing Marijuana Law Into The Legal Writing Curriculum, Howard Bromberg, Mark K. Osbeck

Articles

Interest in marijuana law continues to grow, due in large part to the complicated and rapidly evolving landscape of marijuana laws in the United States. Nearly every day, newspapers report on new or proposed legislation and the legal controversies that have arisen with regard to this evolving landscape. There are now several marijuana-law blogs on the Internet, Congress is considering sweeping legislation that would essentially grant significant deference to the individual states, and public opinion continues to move in favor of increased legalization. For the last two years, Newsweek magazine has published special editions devoted exclusively to marijuana law and …

Law School Institutional Repositories: A Survey, Kincaid C. Brown

Law Librarian Scholarship

There has been a dramatic rise in the number of law libraries managing institutional repositories for their law schools. In 2011, there were some 30 law schools with such repositories; now, 80 of the top 100 law schools have their own or participate in a university-wide repository wherein the law school has an identifiable, school-specific collection or community. This article discusses a survey of the of the top 101 law schools, in hopes of facilitating an understanding of the breadth of material to be found in law school institutional repositories.

Discovering The Knowledge Monopoly Of Law Librarianship Under The Dikw Pyramid, Xiaomeng Zhang

Law Librarian Scholarship

Historical debates demonstrated that knowledge monopoly is a key to a profession. This article explores the exclusive knowledge base of the law librarianship profession through the lens of the Data-Information-Knowledge-Wisdom (DIKW) paradigm.

Bridging Bisexual Erasure In Lgbt-Rights Discourse And Litigation, Nancy C. Marcus

Michigan Journal of Gender & Law

LGBT rights are at the forefront of current legal news, with “gay marriage” and other “gay” issues visible beyond dispute in social and legal discourse in the 21st Century. Less visible are the bisexuals who are supposedly encompassed by the umbrella phrase “LGBT” and by LGBT-rights litigation, but who are often left out of LGBTrights discourse entirely. This Article examines the problem of bisexual invisibility and erasure within LGBT-rights litigation and legal discourse. The Article surveys the bisexual erasure legal discourse to date, and examines the causes of bisexual erasure and its harmful consequences for bisexuals, the broader LGBT community, …

Inside Regulatory Interpretation: A Research Note, Christopher J. Walker

Michigan Law Review First Impressions

We now live in a regulatory world, where the bulk of federal lawmaking takes place at the bureaucratic level. Gone are the days when statutes and common law predominated. Instead, federal agencies—through rulemaking, adjudication, and other regulatory action—have arguably become the primary lawmakers, with Congress delegating to its bureaucratic agents vast swaths of lawmaking power, the President attempting to exercise some control over this massive regulatory apparatus, and courts struggling to constrain agency lawmaking within statutory and constitutional bounds. This story is not new. Over two decades ago, for instance, Professor Lawson lamented the rise of the administrative state and …

Foreword: Reflections On Our Founding, Guy-Uriel Charles, Luis Fuentes-Rohwer

Michigan Journal of Race and Law

Law Journals have been under heavy criticism for as long as we can remember. The criticisms come from all quarters, including judges, law professors, and even commentators at large. In an address at the Fourth Circuit Judicial Conference almost a decade ago, for example, Chief Justice Roberts complained about the “disconnect between the academy and the profession.” More pointedly, he continued, “[p]ick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something, which I’m sure was …

Reasoned Awards In International Commercial Arbitration: Embracing And Exceeding The Common Law-Civil Law Dichotomy, S. I. Strong

Michigan Journal of International Law

Unlike many types of domestic arbitration where unreasoned awards (often called “standard awards”) are the norm, international commercial arbitration routinely requires arbitrators to produce fully reasoned awards. However, very little information exists as to what constitutes a reasoned award in the international commercial context or how to write such an award. This lacuna is extremely problematic given the ever-increasing number of international commercial arbitrations that arise every year and the significant individual and societal costs that can result from a badly written award. Although this Article is aimed primarily at specialists in international commercial arbitration, the material is also useful …

The Enduring Value Of Books Related To The Law: A Librarian's Perspective, Linda S. Maslow

Michigan Law Review

In the 1979 inaugural issue of the Michigan Law Review’s annual survey of books related to the law, Professor Cavers wrote an enthusiastic and hopeful introduction. He characterized the journal’s effort as a “bold innovation” that would benefit lawyers; law professors, both domestic and foreign; scholars in other disciplines, such as the social sciences; and the marketplace of ideas generally. As the annual survey approached its twentieth anniversary, Professor Schneider provided a fascinating, frank description of the Book Review issue’s origins during his tenure as the Michigan Law Review’s Editor- in-Chief. Happily, this annual Book Review issue continues to thrive. …