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Yes, You\u27re About to Meet Your Maker, but Did You Really See That Guy? : The Common Law and the \u3cem\u3eCrawford\u3c/em\u3e Dying Declaration Exception
Get PDFI had the privilege of getting to see the creation of the Crawford v. Washington revolution up close. Less than two months after I argued my first case before the Court, it granted Jeffrey Fisher’s petition for writ of certiorari in Crawford. Richard Friedman, who had taught me Evidence when I was a student at Michigan a decade earlier and who is rightfully credited as the intellectual architect of the Crawford revolution, asked me in the fall of 2003 to help moot Jeff, who was also a Michigan alumnus. I went to Washington to hang out with Jeff and Rich (who authored an amicus brief and second-chaired Jeff) and watch the argument. I celebrated with Jeff and Rich the big victory in Crawford, in which the Court held that the Confrontation Clause guaranteed a criminal defendant the right to cross-examine witnesses who made “testimonial” statements that the prosecution wished to introduce at trial. I went back with Jeff and Rich two terms later, to sit with them at counsel’s table and watch them argue the consolidated cases of Hammon v. Indiana (Rich) and Davis v. Washington (Jeff), which helped flesh out the definition of a “testimonial” statement. But I write this short article not to express how cool it was to see the Court overturn decades of precedent and revive the Confrontation Clause right of a defendant to, well, actually confront the witnesses against them instead of allowing the prosecution to introduce out-of-court testimonial statements to prove guilt, even if those statements would be admissible under modern hearsay doctrine. Instead, I write to point out the unsurprising fact that, twenty years later, the Crawford revolution is not quite complete
Marriage, Courts, and Substantive Equality: A Transformative Interpretation
Get PDFCourts in various jurisdictions have relied on either the right to privacy or the right to equality to offer protections to the LGBTQ+ community. The use of different rights to achieve similar ends may seem like an empty distinction. But the differences in the nature and function of each right evince the differences in the construction of rights across jurisdictions. In the traditional liberal method of conceptualizing rights, privacy is typically a negative right, restricting the state from interfering in intimate relationships between individuals. Courts operating within a transformative framework of rights interpretation, however, rely on the positive right to equality to impose duties upon the state to guarantee equal moral membership to all individuals in society. This is not a mere theoretical distinction: The remedies granted by these courts vary based on their conceptualization of constitutional rights guarantees. This Note examines various legal regimes’ divergent applications of the two frameworks through the right to privacy and the right to equality, specifically within the context of the legalization of same-sex marriage. It shows that courts using the transformative prism have interpreted equality to abandon default verticality, that is, the legal tradition of situating private relationships and community conventions outside of the constitutional mold. Using the transformative prism, courts have instead subjected societal mores to constitutional morality. In doing so, these courts have been able to offer better remedies to LGBTQ+ people, allowing them to exercise their rights and freedoms in a substantive—and not merely formal— manner
There\u27s No Such Thing as a Free Bet: How to Stop Misleading the Public in Gambling Advertisments
Get PDFFor many years, gambling was limited to lottery tickets and casinos in select states and Nevada was the only state where sports gambling was legal. In 2018, the Supreme Court ushered in a new era of gambling when it struck down the federal Professional and Amateur Sports Protection Act (PASPA) in Murphy v. National Collegiate Athletic Ass’n.
States are now free to regulate sports gambling, including mobile gambling on cell phones. Thirty-six states have legalized sports gambling, and twenty-nine of those states allow for mobile betting. Online casino games such as slots and blackjack have been legalized in six states.
If you have watched a sporting event on TV in the time since the Murphy decision, there is a good chance you have seen an ad for sports gambling as numerous companies work to grab market share in the new industry. These ads promote the possibility of big wins and offer attractive sign-up inducements such as “risk-free” and “no-sweat” bets. Some online promotions even tout the opportunity to win “guaranteed” money. These ads mislead individuals on their likelihood of winning by playing on cognitive biases. Research shows that people are overly confident in predicting events, which can cause them to misunderstand the risks of gambling. It is estimated that less than 5% of gamblers win money in the long-term. For the rare person that does make money in the long term, many gambling websites will restrict winning users’ ability to bet. Unsurprisingly, the increased prevalence of gambling has led to increases in addiction that comes with financial and social costs. Some states have begun to prohibit misleading promotions for “risk-free” and “free bets” to protect the public, but the volume of ads continues.
In Part I, this article will describe the current state of gambling advertisements and the negative effects of legalized mobile gambling on the public. Part II will examine and propose reforms to the regulation of online gambling, drawing lessons from solutions developed in response to the public health crisis created by the tobacco industry. This article proposes closer regulation of misleading advertisements and requirements that gambling companies inform consumers of the risk of addiction and the likelihood of loss, rather than falsely glamorizing their product
Front Matter
Get PDFFront Matter for Volume 13, Issue 1 of Michigan Business & Entrepreneurial Law Revie
Anticipating the Effects of the Brazilian New Business Environment Law\u27s Corporate Governance Provisions on Minority Shareholder Protection
Get PDFTo encourage minority shareholder protections and public investment in Brazilian corporations, Brazil passed the New Business Environment Law. The New Business Environment Law’s Corporate Governance Provisions require that all corporations have at least one independent board member, have different individuals serving as their CEO and board chairperson, and grant increased power to the general shareholders’ meeting. This Note predicts that the New Business Environment Law’s Corporate Governance Provisions will have an inconsequential effect on Brazilian minority shareholder protections. Traditional American means of achieving minority shareholder protections may be ineffective in Brazil, due to legal, institutional, and cultural differences between the United States and Brazil. Therefore, this Note recommends that Brazil implement higher independent board member requirements, require that corporations select independent nominating committees to choose corporate board and executive management candidates, mandate larger boards, and stagger policy changes pursuant to the existing Novo Mercado system
The Last Frontier: Fair Procedure in Informal Administrative Adjudication
Get PDFThe federal government engages in massive amounts of informal adjudication - a process that resolves a dispute between the government and a private party by making an individualized and legally binding decision without being required to conduct an evidentiary hearing if the dispute is not settled. This article sketches the highly diverse world of federal informal adjudication and surveys the procedural requirements imposed on it by due process and federal statutes. It proposes a set of best practices for conducting and improving informal adjudication that are rooted in those legal requirements. Agencies should adapt these practices to their individual circumstances and then adopt them as procedural regulations. The process by which federal agencies engage in informal adjudication should be accurate, efficient, and perceived by stakeholders to be fair
Infrastructure Finance for the Public Good: How Asset Recycling Can Untangle the New York MTA\u27s $50 Billion Debt Load
Get PDFSystematic infrastructure underinvestment – a 50 billion of debt, COVID-19-related losses exceeding 33 to 1.1 trillion opportunity. The Article concludes with a discussion of normative and policy considerations, as well as areas for future research, including multi-stakeholder governance frameworks for imperfect public goods, ESG-based contractual mechanisms and the interplay between infrastructure policy and climate change, with an emphasis on broad-based social and allocative equity
Fall 2024 - Gen AI for Legal Research
Get PDFGenerative AI is a transformative technology that will impact your legal career. Learn about the benefits and pitfalls of tools you can use for legal research now.https://repository.law.umich.edu/legaltechseries/1001/thumbnail.jp
Edward S. Rogers, the Lanham Act, and the Common Law
Get PDFThis book chapter is a deep dive into the story of Edward Sidney Rogers\u27s authorship of the legislation that became the Lanham Act. Because Rogers believed that Congress lacked the power to alter the substantive law of trademark and unfair competition, he crafted draft legislation that focused on registration and other procedural details rather than substantive rights and defenses. He sought to advance two incompatible goals: he hoped to preserve the robust common law of unfair competition while requiring, or at least encouraging, all trademark owners to register their marks. Both the supporters and the opponents of the bills that Rogers drafted expressed deep affection for the extant common law of trademarks and unfair competition. They appear to have assumed that the statute would supplement the common law rather than replacing it. Except to the extent that the statute expressly abrogated common law doctrine, most members of the trademark bar believed that even after the statute\u27s effective date, common law rules would continue to control most determinations.Along the way, the chapter recounts other interesting if not-very-consequential details. For example, Rogers’s representation of drug companies at the turn of the century familiarized him with the 1906 Pure Food and Drug Act. When he wanted to include a provision in his legislation that enabled recovery for false representation, he turned to the Pure Food and Drug Act for a model. When Representative William Sirovich, then one of only ten Jews in Congress, assumed the chairmanship of the House Patent Committee in 1931, he decided that instead of continuing to rely on Rogers and the ABA for trademark legislation, he would ask Frank Schechter to draft an alternative bill. Part of the reason may have been the ABA’s efforts in the early 20th century to block Jews from practicing law. Finally, the notion that federal law controlled infringement of registered trademarks but state law controlled unfair competition arose in the 1940s in the wake of the Supreme Court’s decision in Erie Railroad v. Tompkins. Before that, trademark lawyers agreed that the two sorts of actions arose from a single body of law
Digital Lawyering: Advocacy in the Age of AI
Get PDFAll lawyers are now digital lawyers. From Zoom hearings, to e-discovery, to AI-enhanced research and writing, the practice of law increasingly requires the skillful navigation of a wide range of technological tools. It’s no longer enough to be book smart and street smart. More and more, you also have to be byte-smart.
To help future lawyers navigate this transition, I recently created a course at both the University of Michigan Law School and the University of Chicago Law School called “Digital Lawyering: Advocacy in the Age of AI.” The course takes a skill-building approach to artificial intelligence. Which tools are worth using? What questions are worth asking? And how do advocates of all kinds continue to add value to clients—and promote justice—in a world increasingly populated by chatbots, algorithms, and a wide range of other powerful digital products?
This paper collects thoughts from the presentation about the course that I delivered at the Law and Justice in the Age of AI symposium organized by the Michigan Technology Law Review on November 18, 2023