Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 30 of 260

Full-Text Articles in Law

Optimal Tax Compliance And Penalties When The Law Is Uncertain, Kyle D. Logue Dec 2006

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 of ...


Independent Invention As A Defense To Patent Infringement, Samson Vermont Dec 2006

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 ...


The Disgorgement Interest In Contract Law, Melvin A. Eisenberg Dec 2006

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 ...


Party On: The Right To Voluntary Blanket Primaries, Margaret P. Aisenbrey Dec 2006

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.


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

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 Nov 2006

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


"Eggshell" Victims, Private Precautions, And The Societal Benefits Of Shifting Crime, Robert A. Mikos Nov 2006

"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 ...


The Glucksberg Renaissance: Substantive Due Process Since Lawrence V. Texas, Brian Hawkins Nov 2006

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 Lawrence and ...


The Cognitive Psychology Of Circumstantial Evidence, Kevin Jon Heller Nov 2006

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 ...


Burkean Minimalism, Cass R. Sunstein Nov 2006

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 ...


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

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 Oct 2006

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


Common Law Property Metaphors On The Internet: The Real Problem With The Doctrine Of Cybertrespass, Shyamkrishna Balganesh Oct 2006

Common Law Property Metaphors On The Internet: The Real Problem With The Doctrine Of Cybertrespass, Shyamkrishna Balganesh

Michigan Technology Law Review

The doctrine of cybertrespass represents one of the most recent attempts by courts to apply concepts and principles from the real world to the virtual world of the Internet. A creation of state common law, the doctrine essentially involved extending the tort of trespass to chattels to the electronic world. Consequently, unauthorized electronic interferences are deemed trespassory intrusions and rendered actionable. The present paper aims to undertake a conceptual study of the evolution of the doctrine, examining the doctrinal modifications courts were required to make to mould the doctrine to meet the specificities of cyberspace. It then uses cybertrespass to ...


Why Pharmaceutical Firms Support Patent Trolls: The Disparate Impact Of Ebay V. Mercexchange On Innovation, Jeremiah S. Helm Oct 2006

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

Michigan 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 ...


The Half-Fairness Of Google's Plan To Make The World's Collection Of Books Searchable, Steven Hetcher Oct 2006

The Half-Fairness Of Google's Plan To Make The World's Collection Of Books Searchable, Steven Hetcher

Michigan Technology Law Review

Google's major new initiative is to undertake the task of digitizing the world's collection of books so as to make them searchable. The very idea is audacious, but what is more so is that Google plans to copy without first seeking the permission of the owners of these works. Google Print would make available what is, by conventional measures at least, the highest grade of information--books produced by millions of the world's leading scholars. This is in stark contrast to the inconsistent quality spectrum one encounters through other online sources such as peer-to-peer networks and blogs, where ...


File Sharing, Copyright, And The Optimal Production Of Music, Gerald R. Faulhaber Oct 2006

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

Michigan 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 ...


Trends In Protection For Informational Works Under Copyright Law During The 19th And 20th Centuries, Miriam Bitton Oct 2006

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

Michigan 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 ...


Three Reactions To Mgm V. Grokster, Pamela Samuelson Oct 2006

Three Reactions To Mgm V. Grokster, Pamela Samuelson

Michigan 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 ...


The Temporal Dynamics Of Capable Of Substantial Noninfringing Uses, R. Anthony Reese Oct 2006

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

Michigan 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 ...


The Intent Element Of Inducement To Infringe Under Patent Law: Reflections On Grokster, Lynda J. Oswald Oct 2006

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

Michigan 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 ...


21st Century Copyright Law In The Digital Domain Symposium Transcript, Symposium Panelists Oct 2006

21st Century Copyright Law In The Digital Domain Symposium Transcript, Symposium Panelists

Michigan Technology Law Review

21st Century Copyright Law in the Digital Domain Symposium held at Universtiy of Michigan Law School Friday, March 24, 2006


Intellectual Property Rights In Advertising, Lisa P. Ramsey Oct 2006

Intellectual Property Rights In Advertising, Lisa P. Ramsey

Michigan Technology Law Review

Before the twentieth century, U.S. courts refused to protect copyright in advertisements. Until the middle of the twentieth century, advertising slogans generally were not registered or protected under U.S. trademark law. Today, firms can acquire copyright protection in advertising and there is no categorical rule against trademark registration or protection of slogans. This Article questions whether this extension of copyright protection to advertising and trademark protection to slogans has a satisfactory utilitarian justification[...] If it is too difficult to completely eliminate copyright protection of advertising, Congress should at least consider reducing such protection to increase the free flow ...


Password Theft: Rethinking An Old Crime In A New Era, Daniel S. Shamah Oct 2006

Password Theft: Rethinking An Old Crime In A New Era, Daniel S. Shamah

Michigan Technology Law Review

By putting themselves out in front as the victims, the Recording Industry Association of America (RIAA) helped reshape the governing norms of the times, and as a result, people viewed the act of file-sharing differently. By forcing people to see music downloading as a form of theft, the RIAA was quite successful in deterring it. In the process, they also proposed a radical view of theft that changes our basic economic understandings of the action[...] This paper argues that the RIAA's model for deterring music theft could be successfully used to deter many other forms of computer theft, and ...


Inside The Administrative State: A Critical Look At The Practice Of Presidential Control, Lisa Schultz Bressman, Michael P. Vandenbergh Oct 2006

Inside The Administrative State: A Critical Look At The Practice Of Presidential Control, Lisa Schultz Bressman, Michael P. Vandenbergh

Michigan Law Review

From the inception of the administrative state, scholars have proposed various models of agency decision-making to render such decision-making accountable and effective, only to see those models falter when confronted by actual practice. Until now, the "presidential control" model has been largely impervious to this pattern. That model, which brings agency decision-making under the direction of the president, has strengthened over time, winning broad scholarly endorsement and bipartisan political support. But it, like prior models, relies on abstractions - for example, that the president represents public preferences and resists parochial pressures that do not hold up as a factual matter. Although ...


The Neglected Political Economy Of Eminent Domain, Nicole Stelle Garnett Oct 2006

The Neglected Political Economy Of Eminent Domain, Nicole Stelle Garnett

Michigan Law Review

This Article challenges a foundational assumption about eminent domain- namely, that owners are systematically undercompensated because they receive only fair market value for their property. In fact, scholars may have overstated the undercompensation problem because they have focused on the compensation required by the Constitution, rather than on the actual mechanics of the eminent domain process. The Article examines three ways that "Takers" (i.e., nonjudicial actors in the eminent domain process) minimize undercompensation. First, Takers may avoid taking high subjective value properties. (By way of illustration, Professor Garnett discusses evidence that Chicago's freeways were rerouted in the 1950s ...


There's No "I" In "League": Professional Sports Leagues And The Single Entity Defense, Nathaniel Grow Oct 2006

There's No "I" In "League": Professional Sports Leagues And The Single Entity Defense, Nathaniel Grow

Michigan Law Review

This Note argues that outside of labor disputes, sports leagues should be presumed to be single entities. Part I argues that professional sports leagues are single entities in disputes regarding league-wide, non-labor policy. In particular, the focus of the Supreme Court's jurisprudence on economic reality rather than organizational form necessitates a finding that professional sports leagues are single entities in non-labor disputes. Part II argues that professional sports leagues are not single entities for purposes of labor disputes; sports leagues, on the whole, do not involve a unity of interest for labor matters. More importantly, existing precedent outside of ...


Conscripting Attorneys To Battle Corporate Fraud Without Shields Or Armor? Reconsidering Retaliatory Discharge In Light Of Sarbanes-Oxley, Kim T. Vu Oct 2006

Conscripting Attorneys To Battle Corporate Fraud Without Shields Or Armor? Reconsidering Retaliatory Discharge In Light Of Sarbanes-Oxley, Kim T. Vu

Michigan Law Review

This Note advocates that federal courts should allow attorneys to bring retaliatory discharge claims under SOX. Traditional rationales prohibiting the claims of retaliatory discharge by attorneys do not apply in the context of Sarbanes-Oxley. This Note contends that the Department of Labor and the federal courts should interpret the whistleblower provisions of § 806 as protecting attorneys who report under § 307. Assuring reporting attorneys that they have protection from retaliation will encourage them to whistleblow and thereby advance SOX's policy goal of ferreting out corporate fraud. Part I explores the legal landscape of retaliatory discharge suits by attorneys. This Part ...


Just Say "No Fishing": The Lure Of Metaphor, Elizabeth G. Thornburg Oct 2006

Just Say "No Fishing": The Lure Of Metaphor, Elizabeth G. Thornburg

University of Michigan Journal of Law Reform

The phrase "fishing expedition" is widely used in popular culture and in the law. In the legal setting, reliance on the metaphor can act as a substitute for rigorous analysis, disguising the factors that influence the result in a case. At best, it is uninformative. Worse, the fishing metaphor may itself shape the court's attitude toward the issue or claim in a lawsuit.

This Article begins by tracing the development of the "fishing expedition" metaphor in civil cases, demonstrating how its changing uses reflect and contribute to the legal controversies of each era. The policies that originally supported limited ...


The Nsa Domestic Surveillance Program: An Analysis Of Congressional Oversight During An Era Of One-Party Rule, Tara M. Sugiyama, Marisa Perry Oct 2006

The Nsa Domestic Surveillance Program: An Analysis Of Congressional Oversight During An Era Of One-Party Rule, Tara M. Sugiyama, Marisa Perry

University of Michigan Journal of Law Reform

On December 16, 2005, the New York Times sounded a fire alarm when it revealed that, in response to the September 11, 2001 attacks, President George W Bush had issued a secret executive order permitting the National Security Agency (NSA) to conduct warrantless surveillance on individuals to unearth nascent terrorist activity. Congress responded to the disclosure of the NSA domestic surveillance program largely by shirking its oversight duties. This Note argues that when a single party controls both the executive and the legislative branches, the fire-alarm model fails to provide sufficient congressional oversight. Short of future elections altering the balance ...


Protecting Abused, Neglected, And Abandoned Children: A Proposal For Provisional Out-Of-State Kinship Placements Pursuant To The Interstate Compact On The Placement Of Children, John C. Lore Iii Oct 2006

Protecting Abused, Neglected, And Abandoned Children: A Proposal For Provisional Out-Of-State Kinship Placements Pursuant To The Interstate Compact On The Placement Of Children, John C. Lore Iii

University of Michigan Journal of Law Reform

The Interstate Compact on the Placement of Children deals with the interstate placement of abused, neglected and abandoned children. This article addresses the critical need for reform of the Interstate Compact and attempts to tackle its most serious flaw-the lack of a provisional placement for children awaiting approval of out-of-state kinship placements. The recently enacted Safe and Timely Interstate Placement of Foster Children Act of 2006 (the "Act") is seriously flawed to the detriment of one of our country's most vulnerable groups and the very population it is designed to protect-children who have been abused, neglected and abandoned. This ...