MSLR Online Forum Archives
Bretton Woods, Vulture Funds, and an International Bankruptcy Court: The Past, Present, and Future of Sovereign Debt Law
Nicholas Langenberg is a J.D. candidate at Michigan State University College of Law. He currently serves as the Executive Editor of the Michigan State Law Review, and he will be participating in the Duberstein Bankruptcy Moot Court competition in Spring of 2025.
Decoding Emojis: Lessons from Abroad
Emojis, small, colorful symbols, originally designed for simple expression, have become a staple in the world of digital communication. 😜🫶 Emojis present a unique challenge to the courts largely due to their ambiguous nature. In this comparative analysis, I aim to expand on my previous work by embarking on a journey to explore how foreign courts interpret emojis and draw insights from these diverse global perspectives.
Unraveling Enforceability: Contractual Ethics in the Wizarding World of Harry Potter and the Goblet Of Fire
To put one’s name in the Goblet of Fire for consideration as each school’s “champion” would establish a binding magical contract. Once chosen, the champions could not have a change of heart; they would have to compete until the end—or die trying. This Note uses Harry Potter and the Goblet of Fire as a case study on contract enforceability. What this Note aims to illustrate is that creative case studies can take a set of facts that are familiar to millions and use them as a way to discuss complex legal topics and to keep legal minds churning.
The Laws of War in the Southern Plains and Custer at Washita in 1868
The debate is charged by the controversy over the Custer statute in his hometown of Monroe, Michigan and allegations that Custer’s actions against Native Americans in the Plains Wars were “war crimes.” The answer to the question of whether Custer’s conduct was a “war crime” depends, as it often does in a historical analysis, on what standards are imposed on the established or even-disputed facts of Custer’s conduct as a soldier and commander almost 150 years ago. This article seeks to analyze the trends in the development of the rules of war during the mid-19th Century, the Civil War, and the Plains Wars and examines Custer’s conduct at Washita under that contemporary lens.
Missing the IDEA: Expanding the Availability of Judicial Relief for Aggrieved Special Education Students
Regardless of their background, upbringing, abilities, or any other uniqueness, every child deserves a chance at an adequate education. But an adequate education is different for every student. In its 2022–2023 Term, the Supreme Court revived its interest in special education law under the Individuals with Disabilities Act (IDEA) in Luna Perez v. Sturgis Public Schools. While the Court correctly determined that relief that is available under the IDEA must be exhausted, the Court’s definition of “available” was too narrow. Rather, the Court should have relied on its precedent analyzing a nearly identical mandatory exhaustion provision to further define and extend when relief is not available under the IDEA.
Constitutional Dread, Meet Fourteenth Amendment, Section Three: A Postscript* to How Leaders Come and Go
While I was finishing my last Article on this Forum, scholars and court filings began to argue that the rarely used Fourteenth Amendment, Section Three, by its explicit language would bar Former President Trump from being placed on a presidential ballot. Sounds like formal application of a constitutional method to remove a President from office. Faster than scholars could theorize, leaders and judges have unsurprisingly found ways to evade application of the Section. Sounds like dread. What can we learn from dread-induced fear of the formal rule? Why is it likely that – yet again – the formal rule will fail? And finally, what scars might this leave behind?
Harmonizing Accessibility and Cybersecurity: A Comparative Analysis of the Digital Divide
As the digital world becomes the default mode of operation, the importance of accessible and inclusive cybersecurity measures is evident. People with disabilities, low socioeconomic status, or age differences face several challenges with ensuring their own security where there is a lack of supportive software and general technological education. From a regulatory standpoint, there are several different approaches to cybersecurity, particularly in the areas of privacy and certification prioritization. Considering these differences, it is evident that cybersecurity is a significant priority from a governmental perspective, as regulatory schemes enact different laws and programs to offer individuals and entities digital protection. Moreover, it is imperative for policymakers and industry stakeholders to collaborate and harmonize their approaches to cybersecurity to close the digital divide.
How Leaders Come and Go: The Role of Improvisation and the Limitations of Formal Rules
This Essay focuses on the disuse of the formal process of removal of a U.S. President and compares it to other, less-formal methods. What does the historical record tell us about formal process as a means for removing bad leaders? Is there a cost to a seeming reluctance to deploy formal rules and thus to create a fully developed public record of executive behavior meriting formal condemnation and removal? What is the benefit substituting improvisation for formal processes? Does improvisation provide adequate protection from a corrupt executive in an emergency? Even if the answer is yes to improvisation as rescue in crisis, does improvisation come at the expense of an adequate public advancement and recordation of norms governing leadership positions?
Major Questions and the Ecosystems of Regulatory Jurisprudence
In a recent essay and longer companion piece, Professor Jim Chen traces the origins and development of the Supreme Court’s recently coined “major questions doctrine.” He trenchantly criticizes the doctrine on numerous grounds, including that federal courts have seized authority to make policy decisions that are better resolved by administrative agencies with greater technical and subject matter expertise. Chen also draws on lessons from the biological sciences to argue that the major questions doctrine modifies the ecosystem of regulatory jurisprudence in ways that could lead to both Chevron’s and textualism’s extinction. And while I agree that the Court has harmed both Chevron and textualism, such assessments are complicated by the highly complex and diverse nature of regulatory jurisprudence’s ecosystem(s).
Scalia’s Major Mousetrap: The Modest Origins of the Major Questions Doctrine
The rhetoric if not the reasoning of the Supreme Court’s newly recognized “major questions doctrine” originates in the jurisprudence of Justice Antonin Scalia. The major questions doctrine rests on little more than Justice Scalia’s exercises in Latin etymology and his felicitous announcement that Congress “does not . . . hide elephants in mouseholes.” This doctrine threatens to eclipse textualist statutory interpretation. Textualism, which had long lived by the ipse dixit, now dies by the ipse dixit. But one must mourn for the Constitution. Justice Scalia’s major mousetrap comes not as a mouse, but as a wolf.
Displaying and Evidencing Contract Terms in a Post-Visual Era
Technological developments increasingly force us to reconsider core assumptions and approaches. How will we make contract terms available and accessible in understandable ways when contracting happens in a non-visual context? How will we evidence and document agreements without visual forms of contracts? Will our approaches change how we contract in the visual world? In this article, I consider these questions, given the history of contracting and the issues new technologies have raised, and review some promising current and future approaches to addressing problems posed by traditional contract delivery methods when they meet new and evolving technologies.
Holding Independent Certification Firms Responsible for Their Misrepresentations
Certification of foreign materials may come from a firm sponsored by the U.S. government or from an independent firm. The certification is important for U.S. builders; it tells the builders whether the material is up to building codes across the country. There is no national standard for plywood, thus independent firms are able to issue their own certifications. If it was found that the plywood was intentionally or negligently certified, builders could rely on that certification, causing faulty plywood to make its way into U.S. construction. When a builder relies on an independent certification firm to designate the quality of materials, and the certification turns out to be faulty—whether intentionally or negligently—the builder should not be liable to the owner for breach of warranty. Instead, the certification firm should be liable for either actual or constructive fraud in the certification of the materials.
Due Process and Equal Protection in Michigan Anishinaabe Courts
This essay opens with a short description of why tribal governments have the duty and opportunity to interpret the obligations to provide “due process” and guarantee “equal protection” to persons under tribal jurisdiction. The next part delves into federal and state interpretations of those principles. The third part introduces and summarizes some Anishinaabe legal philosophies. The final part offers suggestions on how those legal philosophies can be used by tribal governments to interpret “due process” and “equal protection” in light of Anishinaabe culture.
The NCAA Gave Mental Health the Old College Try and Failed: Why Federal Regulation of Student Athletes' Mental Health Should Be Enacted
As the national concern for mental health grows, the NCAA and member schools should actively address this problem. However, as current law stands, the NCAA and member schools are not always held accountable for the mental health of their student-athletes. Accordingly, federal regulations to oversee the mental health and well-being of student-athletes should be implemented, and universities and the NCAA should be obligated to comply with these regulations in order to protect the health and well-being of all student-athletes.
Partial Recusal and the Supreme Court
The newest justice on the United States Supreme Court, Justice Kentaji Brown Jackson, stated during her confirmation hearing that she planned to recuse herself from two consolidated affirmative action cases scheduled for the Supreme Court’s upcoming term. The cases involved constitutional and statutory challenges to admissions policies at Harvard and the University of North Carolina. Justice Jackson served on Harvard’s Board of Overseers for six years prior to her confirmation. This essay uses the framework of the affirmative action litigation to introduce and preliminarily explore the concept of “partial recusal” at the Court. Part I briefly introduces judicial recusal, including the unique features of recusal at the Supreme Court. Part II addresses the idea of partial recusal, which has been generally undertheorized and effectively overlooked with respect to the justices’ recusal practices. It then distinguishes between two types of partial recusal—horizontal and vertical—and makes a case for why each could be useful for the Court.
With Little Evidence to Support the Current Bar Exam's Claimed Objective, It's Time to Seriously Consider the Various Alternatives
Minimum competence and protecting the profession are the objectives that supporters of the bar exam say it accomplishes. However, there is little to no credible evidence that support these claims. In fact, overwhelming evidence shows that the bar exam fails to meet these objectives. First, supporters of the bar exam have failed to provide a reasonable definition of minimum competence. Thus claiming that the bar exam attains this is a baseless assertion. Second, the bar exam only tests a narrow range of skills and cannot purport to ensure minimum competence when it overlooks so many important aspects of competent lawyering. Third, the bar exam is unnecessarily broad and forces hopeful attorneys to spend innumerable hours studying subjects that they will never use in practice. Fourth, it fails to take into account and incorporate current competency issues afflicting the legal profession, which only bolsters these underlying issues. Lastly, the bar exam perpetuates prejudice against minorities attempting to enter the legal profession and consequently works against establishing equal opportunity and diversity in the profession.
The Psychological Consequences of a Wrongful Conviction and How Compensation Statutes Can Mitigate the Harms
The United States has few safeguards in place to ensure exonerees can get back on their feet following their release. Inmates on parole are provided support through reentry programs, but similar networks are unavailable to exonerees. Thirty-seven states and the District of Columbia have compensation statutes, but the remaining thirteen have nothing at all. This paper explores the psychological challenges faced by wrongfully convicted people and provides an analysis of how compensation statutes can be improved to better meet the needs of wrongfully convicted people.
Rethinking the “Wall of Separation Between Church and State” Through Carson v. Makin
The Constitution demands a wall of separation between Church and State: No other phrase has so deeply perverted our Nation’s history, ignored our traditions, and denigrated the role that religion plays in promoting the Common Good. Unmoored from its original meaning, this phrase has been transformed into a justification to discriminate against religious adherents, and it has found safe harbor in today’s culture amongst those who would expel religion to the outer edges of society.
The Code: Cybersecurity Issues Surrounding Automated and Autonomous Vehicle Technology
Just imagine the possibilities a driver could experience with the arrival of autonomous vehicles. The assistance drivers will get by “driving” cars equipped with autonomous vehicle technology are so appealing that it will become a pleasure rather than a burden to drive. Indeed, the advantages are highly appealing, but unfortunately, there are concerns over technological vulnerabilities that may arise as autonomous vehicles become more prominent. Eventually, vehicles will become fully autonomous. These cars will use built-in sensors that detect and monitor other vehicles and receive input regarding its surroundings. Moreover, autonomous vehicles will also share data with each other and “learn” from each other. Nevertheless, system outages because of misconfiguration, ransomware attacks, and threats are important risks that need to be addressed. Otherwise, the technology will do more harm to the public than good. Therefore, this essay will address the vulnerabilities arising from potential ransomware attacks and the susceptibility of misconfiguration.