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Harms, Relationships, and the Contours of Liability for Emotional Distress
No full textIn Reasonableness and Risk, Greg Keating argues that the law of torts is “preoccupied” with harm—with safeguarding conditions of effective agency. In this comment, I ask whether Keating’s picture can make sense of the tort claims, like loss of consortium, that provide some measure of protection to relationships—and to marriage-like relationships, in particular. It would be awful if my life partner were seriously injured or killed—a serious setback to my interests—a harm by almost any measure. But in what sense would it impair my agency, as Keating’s account of harm seems to require? I explain the force of the question for Keating’s view and suggest an answer: Harm to one spouse can impair the other spouse’s agency, I’ll suggest, because their relationship essentially involves a shared project. A harm to one can be a harm to the other, then, insofar as it frustrates the life project they share. I will suggest, finally, that a view of this kind can help us better understand the contours of liability for emotional distress too
Beyond Congestion Pricing
Full text linkAfter years of political and legal efforts to block it, congestion pricing finally went into effect in New York City in January 2025. Early indications are positive, though threats to its continuation from the Trump administration and others remain. But its journey to this point has already made one thing clear: it is time for the Big Apple to seize more of its own destiny in transportation policy.
The battles that delayed and still imperil the Metropolitan Transportation Authority’s congestion pricing scheme underscore the need for policies that New York City can implement unilaterally. Making urban transportation policy in the shadow of an uncooperative gubernatorial or presidential administration is the norm, not the exception, and cities must be strategic. They should pursue policies that minimize the need for external buy-in—even from traditional allies like the MTA, a state agency. This call for increased city self-determination invokes Richard Briffault’s expansive, functional conception of city power and is not limited to New York. Cities already possess abundant untapped authority in transportation and should use it.
Through analysis of city-state transportation policy tensions, this Article applies Mancur Olson’s collective action framework to explain why accomplishing congestion pricing was so difficult despite its clear win-win potential. In casting the challenge as one of concentrated costs and diffuse benefits, it contributes a novel taxonomy of stakeholders affected by congestion pricing. It also proposes a series of actionable changes that New York City can implement independently. These have the virtue of offering meaningful reform without the need for the approval of outside officials. Beyond the particulars of congestion pricing, such a strategy is of general and enduring importance given the widely noted propensity of states and the federal government to prioritize the transportation needs of other areas over those of cities
Front Matter
Full text linkFront Matter for Volume 46, Issue 1 of Michigan Journal of International La
Abolition by Algorithm
Full text linkIn one sense, America’s newest abolitionist movement—advocating the elimination of policing and prison—has been a success. Following the 2020 Black Lives Matter protests, a small group of self-described radicals convinced a wide swath of ordinary liberals to accept a sweeping claim: Mere reforms cannot meaningfully reduce prison and policing’s serious harms. Only elimination can. On the other hand, abolitionists have failed to secure lasting policy change. The difficulty is crime. In 2021, following a nationwide uptick in homicides, liberal support for abolitionist proposals collapsed. Despite being newly “abolition curious,” left-leaning voters consistently rejected concrete abolitionist policies. Faced with the difficult choice between reducing prison and policing and controlling serious crime, voters consistently chose the latter.
This Article presents and analyzes a policy approach designed to accomplish both goals simultaneously: “Algorithmic Abolitionism.” Under Algorithmic Abolitionism, powerful machine learning algorithms would allocate policing and incarceration. They would maximally abolish both, up to the point at which crime would otherwise begin to rise. Results could be impressive. The best evidence evaluating modern machine learning models suggests that Algorithmic Abolitionist policies could: eliminate at least 40% of Terry stops, with highend estimates above 80%; free a similar share of incarcerated persons; eradicate most traffic stops; and potentially remove police patrols from at least half of city blocks—all without increasing crime.
Beyond these practical effects, Algorithmic Abolitionist thinking generates new and important normative insights in the debate over algorithmic discrimination. In short, in an Algorithmic Abolitionist world, traditional frameworks for understanding and measuring such discrimination fall apart. Traditional frameworks sometimes rate Algorithmic Abolitionist policies as unfair, even when those policies massively reduce the number of people mistreated because of their race. And they rate other policies as fair, even when those policies would cause far more discriminatory harm. To overcome these problems, this Article introduces a new framework for understanding—and a new quantitative tool for measuring—algorithmic discrimination: “bias-impact.” It then explores the complex array of normative trade-offs that bias-impact analyses reveal. As the Article shows, bias-impact analysis will be vital not just in the criminal enforcement context, but in the wide range of settings—healthcare, finance, employment— where Algorithmic Abolitionist designs are possible
From Relic to Relevance, The Resurgence of Tariffs
Full text linkModern legal scholarship has largely relegated tariffs to economic analysis, overlooking their legal and policy significance. This article challenges that view by examining tariffs as a potential pillar of fiscal policy, exploring their viability as a revenue source alongside or in place of traditional income and corporate taxation. While historically central to U.S. government funding, tariffs diminished in importance with the rise of income taxation and trade liberalization. However, their recent resurgence as a tool for trade protection raises broader questions about their role in national economic strategy. This article critically assesses the feasibility of a tariff-based tax system, drawing on historical lessons and economic modeling to evaluate its revenue potential, equity implications, and administrative challenges. It examines the legal constraints of such a system, including global trade compliance and the risks of economic retaliation. While tariffs alone cannot sustain a modern tax system, their strategic use, alongside excise and consumption-based taxes, offers a provocative alternative to existing revenue structures. By reframing tariffs as more than economic instruments, this Article situates them within broader debates on tax policy, sovereignty, and economic resilience in an era of shifting global trade dynamics
Front Matter
Full text linkFront Matter for Volume 46, Issue 3 of Michigan Journal of International La
The Invention of the Judicial Administrative State
Full text linkA review of The Taft Court: Making Law for a Divided Nation, 1921–1930. By Robert C. Post
Exorcising Hobbes’s Ghost: A Future for Constitutional and International Law
Full text linkA review of Law for Leviathan: Constitutional Law, International Law, and the State. By Daryl Levinson
Nanaboozhoo Died for Your Sins
Full text linkA review of Custer Died for Your Sins: An Indian Manifesto By Vine Deloria, Jr
Human Masters/Robot Servants: Highly Automated Vehicle Design, Intoxicated Drivers & Vicarious Liability
Full text linkA traditional engineering role is to design a safe product. Safety engineering is an exercise in harm avoidance ex ante. In contrast, liability attribution is an exercise to compensate for loss post hoc—traditionally viewed as a legal matter. We observe that, when a natural person incurs liability for a loss that exceeds insurance coverage, economic ruin can follow. Neither engineering nor law focus on the loss suffered by defendants considering law as a “safety risk.” The highly automated vehicle (HAV) design space, however, provides an opportunity to prevent this kind of economic harm from occurring ex ante just as attention to safe design can prevent loss from physical injury and property damage. Including legal outcomes as design specifications allows engineers to create a product with physical features that achieve legal outcomes for consumers. It also allows for identification of legal risks that corporate management can target for law reform, leading to changes in the design of the legal system. Importantly, the legal system is malleable in ways that physical systems are not.
This Article explains why HAV manufacturers and developers should consider law during the design process for an AV intended as “fit-for-purpose” to transport intoxicated persons. It suggests that management, marketing, engineering and legal functions collaborate to develop product requirements and specifications that shield owner/occupants from criminal liability for DUI manslaughter, negligent homicide and similar charges, as well as guard against civil liability. This collaboration should occur for HAV deployments in any state of the United States.
Beyond addressing HAV feature design, this Article recommends that the HAV industry pursue a legislative agenda, as an adjunct to feature design, to expressly provide legal protection from liability in various scenarios in which the mere capability to control the HAV or mere ownership of the HAV can result in liability without fault on the part of an occupant or owner. The specific recommendation consists of a series of amendments to federal law to protect owner occupants of HAVs much as the Graves Amendment provides protection to car rental companies from liability for accidents caused by their customers