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Optimal Tax Compliance And Penalties When The Law Is Uncertain, Kyle D. Logue

Law & Economics Working Papers Archive: 2003-2009

This Article examines the optimal level of tax compliance and the optimal penalty for noncompliance in circumstances in which the tax law is substantively uncertain – that is, when the precise application of the Internal Revenue Code to a particular situation is not clear. In such situations, two interesting questions arise: First, as a normative matter, how certain should a taxpayer be before she relies on a particular interpretation of a substantively uncertain tax rule? That is, if a particular position is not clearly prohibited, but neither is it clearly allowed, under the tax law, what is the appropriate threshold …

Independent Invention As A Defense To Patent Infringement, Samson Vermont

Michigan Law Review

Under current law, independent invention is no defense to patent infringement. This Article argues that independent invention should be a defense, provided the independent inventor creates the invention before receiving actual or constructive notice that someone else already created it. The defense reduces wasteful duplication of effort and enhances dissemination of inventions without lowering the incentive to invent below the necessary minimum. To be sure, the defense lowers the incentive for inventions that face significant odds of being invented by more than one inventor By enabling a second inventor to compete with a first inventor the defense essentially breaks up …

Party On: The Right To Voluntary Blanket Primaries, Margaret P. Aisenbrey

Michigan Law Review

Political parties have unique associational rights. In party primaries, party members associate to further their common political beliefs, and more importantly, to nominate candidates. These candidate are the "standard bearer[s]" for the political party-the people who "best represent[ ] the party's ideologies and preferences." The primary represents a "crucial juncture at which the appeal to common principles may be translated into concerted action, and hence to political power in the community." Because the primary is such a critical moment for the political party, the party's asso-ciational rights are most important at this time.

The Disgorgement Interest In Contract Law, Melvin A. Eisenberg

Michigan Law Review

Restatement Second of Contracts provided that contract law serves to protect one or more of three interests: the expectation interest, the reliance interest, and the restitution interest. There is, however a fourth interest that contract law should and does protect: the disgorgement interest, which is the promisee's interest in requiring the promisor to disgorge a gain that was made possible by the promisor's breach, but did not consist of a benefit conferred on the promisor by the promisee. It is not clear why Restatement Second excluded the disgorgement interest. Perhaps the drafters believed that this position was compelled by positive …

Vol. 57, No. 6, November 21, 2006, University Of Michigan Law School

Res Gestae

•Students, Administration Respond to Prop. 2 •Sarbanes-Oxley Symposium •Focus on Public Interest: Betsey Wiegman •1L Job Search •Take it From Me: Law School Bathrooms •Photos from Bar Night, Jenny Runkles •Adam Dubinsky

Vol. 57, No. 5, November 7, 2006, University Of Michigan Law School

Res Gestae

•Colorado Senator Speaks About Career, Politics •Open Letter •Debriefing the Halloween Ticket Snafu •Take It From Me •Lipton's New Pyramid Tea Put to the Test •Coffee Cart Arrives in 200 HH •LSSS Fall Wine and Cheese Pics •A Layman's Guide to Pass/Fail •Nannes 3L Challenge Hits its Target •BLSA Date Auction Pics •LSSS Halloween Party Pics •Navigating the PRS with Priorities in Hand

The Cognitive Psychology Of Circumstantial Evidence, Kevin Jon Heller

Michigan Law Review

Empirical research indicates that jurors routinely undervalue circumstantial evidence (DNA, fingerprints, and the like) and overvalue direct evidence (eyewitness identifications and confessions) when making verdict choices, even though false-conviction statistics indicate that the former is normally more probative and more reliable than the latter The traditional explanation of this paradox, based on the probability-threshold model of jury decision-making, is that jurors simply do not understand circumstantial evidence and thus routinely underestimate its effect on the objective probability of the defendant's guilt. That may be true in some situations, but it fails to account for what is known in cognitive psychology …

"Eggshell" Victims, Private Precautions, And The Societal Benefits Of Shifting Crime, Robert A. Mikos

Michigan Law Review

Individuals spend billions of dollars every year on precautions to protect themselves from crime. Yet the legal academy has criticized many private precautions because they merely shift crime onto other, less guarded citizens, rather than reduce crime. The conventional wisdom likens such precaution-taking to rent-seeking: citizens spend resources to shift crime losses onto other victims, without reducing the size of those losses to society. The result is an unambiguous reduction in social welfare. This Article argues that the conventional wisdom is flawed because it overlooks how the law systematically understates the harms suffered by some victims of crime, first, by …

Burkean Minimalism, Cass R. Sunstein

Michigan Law Review

Burkean minimalism has long played an important role in constitutional law. Like other judicial minimalists, Burkeans believe in rulings that are at once narrow and theoretically unambitious; what Burkeans add is an insistence on respect for traditional practices and an intense distrust of those who would renovate social practices by reference to moral or political reasoning of their own. An understanding of the uses and limits of Burkean minimalism helps to illuminate a number of current debates, including those involving substantive due process, the Establishment Clause, and the power of the president to protect national security. Burkean minimalists oppose, and …

The Glucksberg Renaissance: Substantive Due Process Since Lawrence V. Texas, Brian Hawkins

Michigan Law Review

On their faces, Washington v. Glucksberg and Lawrence v. Texas seem to have little in common. In Glucksberg, the Supreme Court upheld a law prohibiting assisted suicide and rejected a claim that the Constitution protects a "right to die"; in Lawrence, the Court struck down a law prohibiting homosexual sodomy and embraced a claim that the Constitution protects homosexual persons' choices to engage in intimate relationships. Thus, in both subject matter and result, Lawrence and Glucksberg appear far apart. The Lawrence Court, however, faced a peculiar challenge in reaching its decision, and its response to that challenge brings …

Vol. 57, No. 4, October 24, 2006, University Of Michigan Law School

Res Gestae

•An Interview with Alex Joel •Double Booking Problems •Learning the Dual Degree Tango •How to Distinguish Between Law Firms •Harvard Law Changes First-Year Curriculum •Bar Night Pics •Headnotes Pics •Michigan Civil Rights Initiative •Take It from Me •Caminker "Hottest" Dean in the Nation

Vol. 57, No. 3, October 4, 2006, University Of Michigan Law School

Res Gestae

•Interview with Christine Gregory •Letter to the Editor •U.S. Solicitor General Speaks on SCOTUS •Mainstreaming Feminism in Legal Education •3Ls Stepping Up to the Nannes Challenge •Environmental Law Symposium •The Etiquette of Wrong •Focus on Public Service •Michigan Civil Rights Initiative Lecture Series Schedule •MCRI and Affirmative Action •Banned Book Day Pics •Grabbing a Bite •Pining for Piven •Crossword

Front Cover, University Of Michigan Law School

Law Quadrangle (formerly Law Quad Notes)

No abstract provided.

Front Matter, University Of Michigan Law School

Law Quadrangle (formerly Law Quad Notes)

No abstract provided.

Message From The Dean, University Of Michigan Law School

Law Quadrangle (formerly Law Quad Notes)

A message from Dean Caminker.

Faculty, University Of Michigan Law School

Law Quadrangle (formerly Law Quad Notes)

Samuel D. Estep, '46; Recent books by James Boyd White; New faculty; Rebecca Scott's Degrees of Freedom wins multiple honors; New Business Law Faculty Fellows Program; Niehoff, '84, cited in ruling against warrantless surveillance; Miller to visit St. Andrews as Carnegie Centenary Professor; An evening of recognition; Activities.

Alumni, University Of Michigan Law School

Law Quadrangle (formerly Law Quad Notes)

Michigan Law alumni directory moves ahead; Matt Meyer, '02: Michigan Law known worldwide for service; Class of 2009 snapshot; Graduates' books offer tips for practitioners; John Warner Fitzgerald, '54; Reunion: A time to come back home; Peter G. Fitzgerald, '86: I care; Frank H. Wu, '91: Affirmative action brought me back; Classnotes; In Memoriam.

Briefs, University Of Michigan Law School

Law Quadrangle (formerly Law Quad Notes)

U.S. Solicitor General Paul D. Clement: O'Connor, Alito, Roberts made for "historic" Supreme Court term; Inspiring Paths speakers discuss careers; Faculty and students share interests.

Special Section: An Eye On The World, University Of Michigan Law School

Law Quadrangle (formerly Law Quad Notes)

Why Japan? A Rube Goldberg experiment in comparative law; Why China? A startling transformation; Why Europe? Let me count the ways; Why India? World's largest democracy, with an Anglo-American common law system; Why globalization? International law and informal norms; Why Sudan? Ambiguous identities forge persistent conflict; Human rights should know neither gender nor border; A beacon in refugee law; Affiliated Overseas Faculty; People, times, Law School leadership join to launch South Africa program; A new way to understand human rights; From Hutchins Hall to The Hague; Reflections of an ICJ Law Clerk; DeRoy Visiting Professors offer international insights; Conferences, symposia …

Teaching Adr In The Labor Field In China, Theodore J. St. Antoine

Law Quadrangle (formerly Law Quad Notes)

Working in China from 2002-06, six University of Michigan faculty members introduced Chinese labor specialists to American techniques of alternative dispute resolution (ADR) in the labor field. Theodore J. St. Antoine details the experience.

Back Cover, University Of Michigan Law School

Law Quadrangle (formerly Law Quad Notes)

No abstract provided.

Refugees' Human Rights And The Challenge Of Political Will, James C. Hathaway

Law Quadrangle (formerly Law Quad Notes)

The following essay is excerpted from the Epilogue to The Rights of Refugees Under International Law by James C. Hathaway.© James c. Hathaway 2005 (Cambridge University Press). Reprinted with the permission of Cambridge University Press. Totaling nearly 1,200 pages and a decade in the making, The Rights of Refugees Under International Law links standards of the UN Refugee Convention to norms of international human rights law and applies this to empirical analyses of some of the world's most difficult protection challanges.

Governments in all parts of the world are withdrawing in practice from meeting the legal duty to provide refugees …

Events, University Of Michigan Law School

Law Quadrangle (formerly Law Quad Notes)

No abstract provided.

Europe's Evolving 'Constitution', Eric Stein

Law Quadrangle (formerly Law Quad Notes)

The following essay is an updated excerpt based on the keynote address the author delivered at the ninth International Conference of the European Union Studies Association last year in Austin, Texas, at which he was awarded EUSA’s Lifetime Contribution to the Field Prize. Stein was the first lawyer to receive the prize, which had been awarded three times previously. The complete address appears in the summer 2005 issue of EUSA Review, Vol. 18, No. 3.

Three Reactions To Mgm V. Grokster, Pamela Samuelson

Michigan Telecommunications & Technology Law Review

It was prescient of the Michigan Telecommunications and Technology Law Review to have organized a conference to discuss the Supreme Court's decision in Metro-Goldwyn-Mayer, Inc. v. Grokster, Inc. As the articles in this issue reveal, commentators have had somewhat mixed reactions to the Grokster decision. Perhaps I am the most mixed (or mixed up) about Grokster among its commentators, for I have had not just one but three reactions to the Grokster decision. My first reaction was to question whether MGM and its co-plaintiffs really won the Grokster case, or at least won it in the way they had hoped. …

File Sharing, Copyright, And The Optimal Production Of Music, Gerald R. Faulhaber

Michigan Telecommunications & Technology Law Review

Much economic, political, judicial and legal attention has been showered on the significant changes currently taking place within the music production and distribution business forced by the use of the Internet for both file sharing (of unauthorized copyrighted material) and more recent online (legal) music distribution. The strong demand for music, coupled with the low cost of distributing illegal copies via peer-to-peer (P2P) systems, is unraveling the business model by which music has traditionally been created, developed, and distributed. Application of traditional copyright law has been ineffective in stopping the loss of business in the traditional channels. Producers have implemented …

The Intent Element Of Inducement To Infringe Under Patent Law: Reflections On Grokster, Lynda J. Oswald

Michigan Telecommunications & Technology Law Review

In June, 2005, the United States Supreme Court set forth an "inducement" rule in MGM Studios, Inc. v. Grokster, Ltd. that imposes secondary liability on "one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement." The Court emphasized the limitations of the liability standard it was setting forth, stating that the target was only "purposeful, culpable expression and conduct, and thus does nothing to compromise legitimate commerce or discourage innovation having a lawful promise." Yet, the liability standard set forth in Grokster …

Trends In Protection For Informational Works Under Copyright Law During The 19th And 20th Centuries, Miriam Bitton

Michigan Telecommunications & Technology Law Review

The debate over databases protection has failed to identify and discuss some of its most basic and preliminary assumptions, accepting instead many of the historical aspects involved as given. This Article therefore seeks to challenge these underlying assumptions by providing a fresh look at the historical dimension of the debate. One common argument regarding database protection is that the U.S. Supreme Court decision in Feist v. Rural Publications Inc. brought about a dramatic change in the legal landscape, displacing the then-accepted "sweat of the brow" rationale for protecting rights in databases. This Article's historical analysis therefore thoroughly examines the treatment …

Why Pharmaceutical Firms Support Patent Trolls: The Disparate Impact Of Ebay V. Mercexchange On Innovation, Jeremiah S. Helm

Michigan Telecommunications & Technology Law Review

Before the unanimous decision in eBay v. MercExchange, patent holders were almost always granted an injunction against an infringer. In fact, the Federal Circuit, in deciding eBay, noted that, upon a finding of infringement, an injunction would issue unless there were extraordinary circumstances. The Court, in a brief opinion, disagreed with the Federal Circuit and explained that the injunction issue in a patent case must be analyzed under the traditional four-factor test.[...] Is the four-factor test fairer or better than the Federal Circuit's near-automatic injunction rule? It is certainly more difficult to administer a factor test as compared to a …

The Temporal Dynamics Of Capable Of Substantial Noninfringing Uses, R. Anthony Reese

Michigan Telecommunications & Technology Law Review

The copyright issues raised by "dual-use" technologies--equipment that can be used both in ways that infringe copyright and in ways that do not--first gained prominence in connection with the litigation over videocassette recorders that culminated in the Supreme Court's decision in Sony in 1984. Copyright owners had asserted that Sony's manufacture and distribution of VCRs rendered it liable for copyright infringement committed by customers using their Sony VCRs. The Supreme Court in Sony concluded that copyright law did not impose such secondary liability where the device in question was capable of substantial noninfringing uses (and that the VCR was such …