Michigan Law Review

Michigan Law Review The Michigan Law Review is the flagship journal of legal scholarship at the University of Michigan Law School.

The Michigan Law Review is a journal of legal scholarship. Eight issues are published annually. Seven of each volume's eight issues ordinarily are composed of two major parts: Articles by legal scholars and practitioners, and Notes written by the student editors. One issue in each volume is devoted to book reviews. Occasionally, special issues are devoted to symposia or colloquia. First Impressions, the online companion to the Michigan Law Review, publishes op-ed length articles by academics, judges, and practitioners on current legal issues. This extension of the printed journal facilitates quick dissemination of the legal community’s initial impressions of important judicial decisions, legislative developments, and timely legal policy issues. You may visit MLR's website at http://www.michiganlawreview.org/information/about or follow us on Twitter at https://twitter.com/michlawreview Feel free to invite other past MLR editors to join this group. The previous mastheads have been uploaded to this group.

The #midterm elections are just two weeks away– but are you being represented? Total population is not the only way to a...
10/23/2018
Is Groton the Next Evenwel? | Michigan Law Review

The #midterm elections are just two weeks away– but are you being represented? Total population is not the only way to apportion representation in a democracy.

Prof. Paul Edelman of Vanderbilt University Law School examines a fascinating system of representation happening in the small town of Groton, Connecticut.
READ: "Is Groton the Next Evenwel?" http://michiganlawreview.org/is-groton-the-next-evenwel/
#vote #OPOV

In Evenwel v. Abbott the Supreme Court left open the question of whether states could employ population measures other than total population as a basis for drawing representative districts so as to meet the requirement of “one person, one vote” (OPOV). It was thought that there was little prospe...

New #MLROnline Essay Alert! After hearing oral argument this week, how should the #SupremeCourt rule in Knick v. Townshi...
10/05/2018
A Prudential Take on a Prudential Takings Doctrine | Michigan Law Review

New #MLROnline Essay Alert! After hearing oral argument this week, how should the #SupremeCourt rule in Knick v. Township of Scott? Duke Law School Fellow Katherine Mims Crocker has a #prudential idea.
READ: A Prudential Take on the Prudential Takings Doctrine.
http://michiganlawreview.org/a-prudential-take/

The Supreme Court is set to decide a case requesting reconsideration of a doctrine that has long bedeviled constitutional litigants and commentators. The case is Knick v. Township of Scott, and the doctrine is the “ripeness” rule from Williamson County Regional Planning Commission v. Hamilton Ba...

Please welcome our new Associate Editor class of Vol. 117. GO BLUE!
08/27/2018

Please welcome our new Associate Editor class of Vol. 117. GO BLUE!

Prof. Richard Primus places a historical lens on what he identifies as current threats to the Republic as we know it. Re...
08/27/2018
The Republic In Long-Term Perspective | Michigan Law Review

Prof. Richard Primus places a historical lens on what he identifies as current threats to the Republic as we know it. Read the very first publication of #MLR Vol. 117: "The Republic in Long-Term Perspective."

“Constitutional government is like playground basketball: if you care more about winning each round than you do about respecting your opponent in the spirit of the game, pretty soon the game will break down completely.”

http://michiganlawreview.org/the-republic/
University of Michigan Law School

Every system of government eventually passes away. That’s a feature of the human condition. The United States has been an unusually stable polity by the standards of world civilizations, and for that stability Americans should be deeply grateful. But no nation is exempt from the basic forces of hi...

Are prosecutors important to #MassIncarceration in the US? Prof. John Pfaff of Fordham Law responds to a critique of his...
08/24/2018
Prosecutors Matter: A Response to Bellin’s Review of Locked In | Michigan Law Review

Are prosecutors important to #MassIncarceration in the US? Prof. John Pfaff of Fordham Law responds to a critique of his influential book #LockedIn.
READ: http://michiganlawreview.org/prosecutors-matter/

In this year’s Book Review issue, Jeffrey Bellin reviews my book, Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform, and he finds much to disagree with.[1] I appreciate the editors of the Law Review providing me with the opportunity to correct a significant error he m...

Busy reading #SCOTUS Opinions today? Take a look back at the #TrinityLutheran decision with this fantastic essay from Pr...
05/21/2018
Is There Any Silver Lining to Trinity Lutheran Church, Inc. v. Comer? | Michigan Law Review

Busy reading #SCOTUS Opinions today? Take a look back at the #TrinityLutheran decision with this fantastic essay from Professor Caroline Mala Corbin:
"Is There Any Silver Lining to Trinity Lutheran Church, Inc. v. Comer?"
Find out here: http://michiganlawreview.org/silverlining/ University of Miami School of Law

Trinity Lutheran Church, Inc. v. Comer is a significant setback for a strong separation of church and state. Missouri denied a playground grant to Trinity Lutheran because of a state constitutional provision that bans financial aid to churches. The church sued. The Supreme Court held not only that t...

We have an exciting new #MLROnline essay from Prof. Effron of Brooklyn Law School : "Solving the Nonresident Alien Due P...
05/17/2018
Solving the Nonresident Alien Due Process Paradox in Personal Jurisdiction | Michigan Law Review

We have an exciting new #MLROnline essay from Prof. Effron of Brooklyn Law School : "Solving the Nonresident Alien Due Process Paradox in Personal Jurisdiction."
READ HERE: http://michiganlawreview.org/solving-the-nonresident-alien-due-process-paradox/

Personal jurisdiction has a nonresident alien problem. Or, more accurately, personal jurisdiction has two nonresident alien problems. The first is the extent to which the specter of the nonresident alien defendant has overshadowed—if not unfairly driven—the discourse and doctrine over constituti...

Our annual Book Review issue is now online, featuring 19 reviews of prominent legal books spanning topics like Criminal ...
04/13/2018
Current Issue | Michigan Law Review

Our annual Book Review issue is now online, featuring 19 reviews of prominent legal books spanning topics like Criminal Justice, LGBTQ rights, Admin Law, the Constitution (of course), and even Insider Trading, Michigan Law's own are well-represented – a review of Don Herzog's book, a review by Adam Pritchard, and a foreword by Barb McQuade. Must-read!

http://michiganlawreview.org/category/current-issue/

Barbara McQuade* In our digital information age, news and ideas come at us constantly and from every direction—newspapers, cable television, podcasts, online media, and more. It can be difficult to keep up with ...

Curious about the upcoming #SCOTUS case South Dakota v. Wayfair? Prof. Adam Thimmesch of University of Nebraska College ...
03/28/2018
A Unifying Approach To Nexus Under The Dormant Commerce Clause | Michigan Law Review

Curious about the upcoming #SCOTUS case South Dakota v. Wayfair? Prof. Adam Thimmesch of University of Nebraska College of Law has an interesting idea. Read #MLROnline’s new publication “A Unifying Approach to Nexus Under the Dormant Commerce Clause.”
http://michiganlawreview.org/a-unifying-approach-to-nexus-under-the-dormant-commerce-clause/

The Supreme Court has long debated the existence and scope of its power to restrict state regulation under the so-called negative or dormant Commerce Clause. The Court took a broad view of that power in the late 1800s, but it has refined and restricted its role over time.[1] One area where the Court...

New week, new issue of the #MLR! Please enjoy Vol. 116 Issue 5Articles: “Use Your Words: On the ‘Speech’ in Freedom of S...
03/19/2018
Current Issue | Michigan Law Review

New week, new issue of the #MLR! Please enjoy Vol. 116 Issue 5
Articles:

“Use Your Words: On the ‘Speech’ in Freedom of Speech” Prof. Leslie Kendrick, University of Virginia School of Law.

“The Lottery Docket” Prof. Daniel Epps, Washington University School of Law &
Prof. William Ortman, Wayne State University Law School.

And notes from our own Paul A. Hoversten and Adam R. Kleven!

READ IT HERE: http://michiganlawreview.org/category/current-issue/

Leslie Kendrick* Freedom of speech occupies a special place in American society. But what counts as “speech” is a contentious issue. In countless cases, courts struggle to distinguish highly protected speech ...

02/21/2018
www.opn.ca6.uscourts.gov

Last week, Emma Ellman-Golan's note, Saving Title IX: Designing More Equitable and Efficient Investigation Procedures, 116 Mich L. Rev. 155 (2017), was cited (one might say extensively) BY THE 6th CIRCUIT! GO EMMA!
You can read Judge Moore's Opinion here:

Congratulations to the new editorial board for Volume 117 of the Michigan Law Review!
01/24/2018

Congratulations to the new editorial board for Volume 117 of the Michigan Law Review!

US trade policy has been a topic of considerable debate and some have even argued that it is currently in a state of dis...
01/17/2018
Restoring Trade’s Social Contract | Michigan Law Review

US trade policy has been a topic of considerable debate and some have even argued that it is currently in a state of disarray. Professors Frank J. Garcia and Timothy Meyer address how NAFTA can be put back on track and ensure that the least well off among us are not harmed. Read the Online Article “Restoring Trade’s Social Contract” here: http://michiganlawreview.org/restoring-trades-social-contract/

As we write this, U.S. trade policy is falling into deeper and deeper disarray. The United States, Canada, and Mexico are holding frenzied meetings to renegotiate the North American Free Trade Agreement (NAFTA). As recently as October 11, 2017, President Donald Trump warned that he will withdraw the...

A Note can be a unique opportunity to dive into a legal controversy and propose a solution. The Michigan Law Review Note...
01/11/2018
Notes | Michigan Law Review

A Note can be a unique opportunity to dive into a legal controversy and propose a solution. The Michigan Law Review Notes Office has accepted and published interesting and compelling pieces that have gone on to be cited in various forums. If you are interested in submitting a Note, check out the Notes Call deadlines for Volume 117:

Thursday, January 4, 2018

Thursday, February 15, 2018

Thursday, March 15, 2018

Thursday, April 12, 2018

Thursday, September 6, 2018

For more information, visit: http://michiganlawreview.org/notes/

Associate Editors are required to write a piece of legal scholarship of publishable quality. This is a unique opportunity to explore an interesting legal controversy and propose a creative solution to the problem. Authoring and publishing a dynamic, well-reasoned piece of scholarship can be personal...

Volume 116 Issue 3 is now online! Read Professor Michael Kang’s Article “Gerrymandering and the Constitutional Norm Agai...
12/05/2017
Current Issue | Michigan Law Review

Volume 116 Issue 3 is now online!

Read Professor Michael Kang’s Article “Gerrymandering and the Constitutional Norm Against Government Partisanship,” which challenges the constitutionality of partisan gerrymandering and proposes a new approach to redistricting centered on legitimate state interests and partisan purpose. Professor Nicholson Price’s Article “Regulating Black-Box Medicine” provides a look at the role of algorithms in modern medicine and argues that the FDA should take an adaptive and collaborative approach to regulating algorithms.

Issue 3 also features Evan Ballan’s Note “Protecting Whistleblowing (and Not Just Whistleblowers),” which advocates for Congress to use SEC Rule 21F-17 as a model to expand whistleblowing protections under the False Claims Act. Reed McCalib’s Comment “Opening the Gate of Cow Palace: Regulating Runoff Manure as a Hazardous Waste Under RCRA” is also online and suggests that the holding of Community Association for Restoration of the Environment, Inc. v. Cow Palace, LLC could expand the EPA’s authority in groundwater-contamination emergencies.

Read them all here: http://michiganlawreview.org/category/current-issue/

Michael S. Kang* This Article challenges the basic premise in the law of gerrymandering that partisanship is a constitutional government purpose at all. The central problem, Justice Scalia once explained in Vieth v. ...

Federal law requires states to report the standardized assessment scores of their students in order to receive federal f...
11/29/2017
Counting Zeros: The Every Student Succeeds Act and the Testing Opt-Out Movement | Michigan Law Review

Federal law requires states to report the standardized assessment scores of their students in order to receive federal funding. But what happens when certain states allow students to opt out of these standardized assessments? To find out more, read Paul A. Hoversten’s Online Article:

Counting Zeros: The Every Student Succeeds Act and the Testing Opt-Out Movement

http://michiganlawreview.org/counting-zeros/

The story begins with threatening letters. In October 2014, the U.S. Department of Education reminded Colorado’s chief state school officer that the department “ha[d], in fact, withheld Title I, Part A administrative funds . . . from a number of States for failure to comply with the assessment r...

TOMORROW:Understanding Nautilus’s Reasonable-Certainty StandardTues. 11/21 | 12 - 1 pm | 218 HutchinsGary M. Fox, 3L, wi...
11/20/2017
Understanding Nautilus’s Reasonable-Certainty Standard: Requirements for Linguistic and Physical Definiteness of Patent Claims | Michigan Law Review

TOMORROW:

Understanding Nautilus’s Reasonable-Certainty Standard
Tues. 11/21 | 12 - 1 pm | 218 Hutchins

Gary M. Fox, 3L, will talk about the subject of his recent publication (Understanding Nautilus’s Reasonable-Certainty Standard: Requirements for Linguistic and Physical Definiteness of Patent Claims) in the Michigan Law Review. His work involves looking at how courts have recently viewed the requirement that patent claims must be definite to be valid, and how the Supreme Court's holding in Nautilus v. Biosig Instruments changed the doctrinal landscape.

Lunch will be provided.

Read the Note here: http://michiganlawreview.org/understanding-nautiluss-reasonable-certainty-standard/

Patent applicants must satisfy a variety of requirements to obtain a patent from the U.S. Patent and Trademark Office (USPTO). The definiteness requirement forces applicants to describe their inventions in unambiguous terms so that other inventors will understand the scope of granted patent rights.…

11/07/2017
Unduly Burdening Women’s Health: How Lower Courts Are Undermining Whole Woman’s Health v. Hellerstedt | Michigan Law Review

About a year ago, the US Supreme Court's decision in Whole Woman's Health v. Hellerstedt reaffirmed that the government may not place an undue burden on a woman's right to end a pregnancy. But various states and courts of appeals are not following the standard set in the case. For a detailed analysis, read Professor Leah M. Litman's Online Article:

"Unduly Burdening Women’s Health: How Lower Courts Are Undermining Whole Woman’s Health v. Hellerstedt"
http://michiganlawreview.org/unduly-burdening-womens-health-how-lower-courts-are-undermining-whole-womans-health-v-hellerstedt/

At the end of the Supreme Court’s 2016 Term, the Court issued its decision in Whole Woman’s Health v. Hellerstedt.[1] One of the more closely watched cases of that Term, Hellerstedt asked whether the Supreme Court would adhere to its prior decision in Planned Parenthood v. Casey, which reaffirmed th...

11/06/2017
Current Issue | Michigan Law Review

Vol. 116 Issue 2 is now available online!

Read Dean Richard A. Bierschbach’s and Judge Stephanos Bibas’s article “Rationing Criminal Justice,” which proposes tools to help incorporate externalities into criminal laws, as well as Professor Andrew Verstein’s “Enterprise Without Entities,” which argues that reciprocal exchanges operate without any meaningful use of a legal entity. Also online are John Ramer’s Note “Corpus Linguistics: Misfire or More Ammo for the Ordinary-Meaning Canon?” and Gary Fox’s Note “Understanding Nautilus’s Reasonable Certainty Standard: Requirements for Linguistic and Physical Definiteness of Patent Claims.”

All available here: http://michiganlawreview.org/category/current-issue/

Richard A. Bierschbach* & Stephanos Bibas** Of the many diagnoses of American criminal justice’s ills, few focus on externalities. Yet American criminal justice systematically overpunishes in large part ...

10/24/2017
MS-13 as a Terrorist Organization: Risks for Central American Asylum Seekers | Michigan Law Review

Attorney General Jeff Sessions announced on Monday that he will use every lawful tool to investigate MS-13. But not every lawful tool can be an effective solution. For a more in depth discussion about how designating MS-13 as a terrorist organization could be harmful, read Jillian Blake’s Online Article “MS-13 as a Terrorist Organization: Risks for Central American Asylum Seekers.” Available here: http://michiganlawreview.org/ms-13-as-a-terrorist-organization-risks-for-central-american-asylum-seekers/

In its first year, the Trump Administration has used aggressive rhetoric in a crusade against the transnational gang MS‑13. In April, Attorney General Jeff Sessions called MS‑13 “one of the most violent gangs in the history of our country” and said that the gang “could qualify” as a terrorist organi...

10/20/2017

Watch the First Mondays podcast here...We'll be kicking off at 3:15PM!

10/09/2017
The Fourth Amendment Categorical Imperative | Michigan Law Review

In November, the Supreme Court will be hearing Carpenter v. United States. This is a momentous case, which is sure to have a huge impact on the future of surveillance law. Read more about how the court can change its current doctrine to adapt to the reality of new age technology in Professor David Gray's Online Article:

"The Fourth Amendment Categorical Imperative."

http://michiganlawreview.org/the-fourth-amendment-categorical-imperative/

The vast majority of current Fourth Amendment doctrine is unfounded, incoherent, and dangerous. The culprit is the Supreme Court’s 1967 decision in Katz v. United States, which defines “search” as government conduct that violates subjectively manifested expectations of privacy “that society is prepa...

10/03/2017
Michigan Law Review

Vol. 116 Issue 1 is now available online!

Read the newest from Professor Eve Brensike Primus, "Federal Review of State Criminal Convictions: A Structural Approach to Adequacy Doctrine," as well as Professor Kent Barnett's and Professor Christopher J. Walker's "Chevron in the Circuit Courts." Also online are Emma Ellman-Golan's Note "Saving Title IX: Designing More Equitable and Efficient Investigation Procedures," and Andrea Amulic's Note "Humanizing the Corporation While Dehumanizing the Individual: The Misuse of Deferred-Prosecution Agreements in the United States."

These are all available here:

http://michiganlawreview.org/

Gillian E. Metzger* & Kevin M. Stack** For years, administrative law has been identified as the external review of agency action, primarily by courts. ...

We are excited to welcome our new Associate Editors to Volume 116!
08/25/2017

We are excited to welcome our new Associate Editors to Volume 116!

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“The White Man’s happiness cannot be purchased by the Black Man’s misery.” ~ Frederick Douglass Socratic Dialectical Inquiry – Is Megan Brown’s appointment as the first Black Editor-in-Chief of the Michigan Law Review Good News or Affirmative Action Propaganda cynically used to obscure existential IDEOLOGICAL RACISM rampant throughout all institutions in America…including the Academy? You decide! Here is my response sent to about 100 University of Michigan Departments, Faculty, and Student organizations including to Ms. Megan Brown (via the Michigan Law Review page): ...
Congrats Meagan Brown for your appointment as the first Black Editor-in-Chief of the Michigan Law Review. I was a Staff Editor on the Michigan Law Review 30 years ago (May-Aug. 1989) literally from off the streets. Yet because I'm a Black Conservative Academic I've been blacklisted for over 30 years. (The U of M libraries refuse to even carry any of my 11 books which have been translated in over a dozen languages on 4-5 CONTINENTS!) What will your appointment do the combat this existential academic treachery by Marxist & Alinsky Academics who reign supreme at the 95-100% percentile in American Colleges and Universities in America....? Throughout the WORLD? -- Here's my latest lecture essay review of John Birch Society CEO Art Thompson's lecture series, "Myths vs. Facts" @ http://www.elliswashingtonreport.com/2019/10/19/myths-vs-facts-part-19-spiritualism-influence-on-america/ Please share with others... especially our Youth who are miseducated with Spiritualism (Drug abuse) & the Occult, Socialism Slavery, Liberal Fascism, Evolution Atheism, Eugenics Racialism, Communist Democide, Liberal Fascism, Gestapo Globalism, Judicial Activism, and many, many other damnable Heresies of unredeemed Mankind. ~ U of M (Class of 1986, MM)