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“Who\u27s The Fairest of Them All?” The Construction of Ethical Hierarchy in the Legal Profession
No full textAlthough ethical rules and other laws governing lawyers apply to the entire legal profession, each lawyer develops a personal understanding of them through norms observed in fields of practice. These norms vary considerably in different geographic locations, office settings, and legal fields. Any ranking indicating which lawyers are “the fairest of them all” reflects the profession\u27s historical biases, hierarchies of prestige, and differences across organizational settings and across fields of law. This chapter describes an ethical hierarchy of the legal profession based on lawyers’ views of other lawyers who work in those fields, using data from the University of Michigan Law School Alumni Survey. The Michigan data shows wide variation in lawyers’ observations of the ethical conduct of those with whom they work (outside of their own offices). Quantitative analysis of the data suggests this variation is due to the types of work that lawyers do, the clients they represent, and their organizational setting, legal fields, and office size. Perceptions of ethical conduct also appear to be related to lawyers’ job satisfaction and thus may affect the trajectory of lawyers’ careers as they self-select into more compatible areas of practice or organizational settings
Copyright Doctrine Before the Tribunal of Science: A Response to Professor Silbey
No full textThis is a response to Jessica Silbey’s article, A Matter of Facts: The Evolution of the Copyright Fact-exclusion and Its Implications for Disinformation and Democracy, which appeared in Volume 70(3) of the Journal of the Copyright Society
Law Enforcement Privilege
No full textYou can’t question a secret you haven’t been told. The criminal legal system depends on fair and open proceedings to expose and regulate unlawful and unconstitutional police conduct through the courts. If police can use claims of secrecy to systematically thwart criminal defendants’ access to evidence, judicial review will fail. And yet that is exactly what is happening under a common-law doctrine called the “law enforcement privilege.” The privilege empowers police and prosecutors to rely on the results of secret investigative methods while withholding information from the defense about how those methods work. It risks perpetuating unconstitutional conduct, enabling wrongful convictions, and rendering Fourth Amendment, Sixth Amendment, Brady, and statutory discovery laws moot. At the same time, it has a non-frivolous policy rationale. If all police investigative methods were public information, then more people committing crimes could evade detection.
How can a better balance be struck? This Article argues that current law enforcement privilege doctrine creates a dangerously boundless police secrecy power because of a subtle conceptual collapse: The policy rationale itself is mistakenly used as the test for assessing claims of privilege. The Article recommends that courts instead evaluate privilege claims by reference to the marginal risk of leaking posed by in-court disclosure. Specifically, judges should demand to know what conditions law enforcement previously imposed on access to the information. The answer to that question can be adjudicated publicly without jeopardizing a legitimate privilege claim and will help judges detect mistaken, exaggerated, pretextual, or fraudulent claims to the privilege. Further, even when law enforcement has taken care with the information, if a court-ordered protective order can match or exceed the safeguards that law enforcement itself previously maintained, then judges should default to ordering disclosure. The Article concludes by suggesting a theory of the role of confidentiality in privilege law
Taming the Kangaroos
No full textLow-level state courts frequently disregard federal law. And though the judgments of these courts have profound legal consequence for millions of Americans, they receive little oversight. Rather than bastions of justice, low-level state courts are too often sites of lawlessness, earning them the shameful label “kangaroo courts.” This article proposes a path forward by which advocates can curb that lawlessness and enforce critically important federal protections.
As part of the federal Coronavirus Aid, Relief, and Economic Security (CARES) Act, a broad legislative effort to protect the national economy and public health infrastructure, Congress altered mandatory procedures in eviction suits. Evictions are traumatic. They inflict long-lasting harms on the health and finances of low-income Americans. The experience of losing one’s home in near unintelligible legal proceedings is overwhelming and disempowering. The CARES Act effected an incremental yet historic adjustment of the balance of power between renters and landlords. The law guarantees the right to a thirty-day notice—critical time for low income renters to prepare and plan at a vulnerable life juncture. The new notice provision the CARES Act created has the potential to meaningfully impact the lives of millions of families.
Unfortunately, the CARES Act is inconsistently applied or completely ignored in the kangaroo courts where evictions are decided. Landlords and state court judges routinely fail to comply with the CARES Act’s mandates. Renters often lack information about their rights and are unable to obtain counsel who could assist. And, due to the landlord-friendly peculiarities of eviction suits, state appellate courts rarely intervene.
Fortunately, there may be a way forward for renters seeking to vindicate their rights. The Supreme Court’s recent decision in Health and Hospital Corporation of Marion County v. Talevski affirmed the ability of private litigants to use the Ku Klux Klan Act of 1871 to rein in state actors when they violate federal rights. I argue that failure to comply with the CARES Act notice provision is a violation of such a right. I therefore propose that advocates of renters’ rights bring affirmative claims in federal court, using this long-standing cause of action to bring clarity to the CARES Act and ensure its consistent application
Senior Day 2025
No full textProgram for the May 12, 2025 University of Michigan Law School Senior Day
Science and Politics in Public Health Regulation
No full textMuch of American public discourse takes for granted a distinction between science and politics. People describe and understand that distinction in contradictory ways, however. And those contradictions themselves underscore how closely entwined science and politics actually are
Perttu v. Richards: Brief of Law Professors as \u3cem\u3eAmici Curiae\u3c/em\u3e in Support of Respondent
No full textAmici are professors of law who have studied, taught, and written about prisoner litigation and about rights to jury trials. They submit this brief to share their views, based on that experience, on the proper interpretation of the Prison Litigation Reform Act) in light of the important jury trial rights at stake and the practical realities of prisoner litigation
The Federal General Counsel, Law, and Our Democracy at a Crossroads
No full textThis speech, given by the general counsel of the Consumer Financial Protection Bureau (CFPB) on January 7, 2025, examines how federal government lawyers can help ensure that laws are faithfully administered to address the contemporary challenges facing American citizens. Despite the CFPB’s successes in protecting consumers from predatory financial practices—particularly amid the rapid digital transformation of the economy—undemocratic forces have increasingly rigged the legal system to serve as both sword and shield for the powerful. The speech describes how judge-made doctrines like “major questions” have been weaponized to disempower Congress from writing statutes with enduring relevance. These challenges represent an existential threat to democratic self-governance
Do Specialized Medical LLMs Demand a Radically New Approach Under the EU\u27s Medical Device Regulation
No full textWe examine the arguments made by Onitiu and colleagues concerning the need to adopt a “backward-walking logic” to manage the risks arising from the use of Large Language Models (LLMs) adapted for a medical purpose. We examine what lessons can be learned from existing multi-use technologies and applied to specialized LLMs, notwithstanding their novelty, and explore the appropriate respective roles of device providers and regulators within the ecosystem of technological oversight
Commonsense Consent and Action Representation: What is “Essential” to Consent?
No full textRecent empirical work demonstrates that some instances of material deception are perceived by ordinary people as consent-defeating, whereas other instances are not. One hypothesized account of these divergent lay intuitions draws on the notion of “essence”: roughly speaking, lies that pertain to the “core” or “nature” of a consented-to act are perceived as precluding consent, whereas lies that pertain to features that are “nonessential” or “collateral” to the act are perceived as compatible with consent. To assess this hypothesized account, an independent measure of “essence”—one that does not rely with problematic circularity on notions of consent—is needed. This chapter draws on an emerging cognitive science literature that deploys linguistic probes to investigate how people intuitively represent human action. Here, we will consider two such probes, the “by” test and the “basically doing” test, and observe that whereas the former predicts judgments of consent, the latter does not