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Articles 1 - 21 of 21
Full-Text Articles in Law
Discovery As Regulation, Diego A. Zambrano
Discovery As Regulation, Diego A. Zambrano
Michigan Law Review
This article develops an approach to discovery that is grounded in regulatory theory and administrative subpoena power. The conventional judicial and scholarly view about discovery is that it promotes fair and accurate outcomes and nudges the parties toward settlement. While commonly held, however, this belief is increasingly outdated and suffers from limitations. Among them, it has generated endless controversy about the problem of discovery costs. Indeed, a growing chorus of scholars and courts has offered an avalanche of reforms, from cost shifting and bespoke discovery contracts to outright elimination. Recently, Judge Thomas Hardiman quipped that if he had absolute power, …
In Praise Of Law Books And Law Reviews (And Jargon-Filled Academic Writing), Cass R. Sunstein
In Praise Of Law Books And Law Reviews (And Jargon-Filled Academic Writing), Cass R. Sunstein
Michigan Law Review
Many people, including many lawyers and judges, disparage law reviews and the books that sometimes result from them on the ground that they often deal with abstruse topics, of little interest to the bar, and are sometimes full of jargon, including excessively academic and impenetrable writing. Some of the objections are warranted, but at their best, law books and law reviews show a high level of rigor, discipline, and care; they have a kind of internal morality. What might seem to be jargon is often a product of specialization, similar to what is observed in other fields (such as economics, …
Medicine As A Public Calling, Nicholas Bagley
Medicine As A Public Calling, Nicholas Bagley
Michigan Law Review
The debate over how to tame private medical spending tends to pit advocates of government-provided insurance—a single-payer scheme—against those who would prefer to harness market forces to hold down costs. When it is mentioned at all, the possibility of regulating the medical industry as a public utility is brusquely dismissed as anathema to the American regulatory tradition. This dismissiveness, however, rests on a failure to appreciate just how deeply the public utility model shaped health law in the twentieth century— and how it continues to shape health law today. Closer economic regulation of the medical industry may or may not …
Comparative Effectiveness Research As Choice Architecture: The Behavioral Law And Economics Solution To The Health Care Cost Crisis, Russell Korobkin
Comparative Effectiveness Research As Choice Architecture: The Behavioral Law And Economics Solution To The Health Care Cost Crisis, Russell Korobkin
Michigan Law Review
With the Patient Protection and Affordable Care Act (“ACA”) set to dramatically increase access to medical care, the problem of rising costs will move center stage in health law and policy discussions. “Consumer directed health care” proposals, which provide patients with financial incentives to equate marginal costs and benefits of care at the point of treatment, demand more decisionmaking ability from consumers than is plausible due to bounded rationality. Proposals that seek to change the incentives of health care providers threaten to create conflicts of interest between doctors and patients. New approaches are desperately needed. This Article proposes a government-facilitated …
Information Escrows, Ian Ayres, Cait Unkovic
Information Escrows, Ian Ayres, Cait Unkovic
Michigan Law Review
A variety of information escrows - including allegation escrows, suspicion escrows, and shared-interest escrows - hold the promise of reducing the first-mover disadvantage that can deter people with socially valuable private information from disclosing that information to others. Information escrows allow people to transmit sensitive information to a trusted intermediary, an escrow agent, who only forwards the information under prespecified conditions. For example, an allegation escrow for sexual harassment might allow a victim to place a private complaint into escrow with instructions that the complaint be lodged with the proper authorities only if the escrow agent receives at least one …
Efficient Breach Of International Law: Optimal Remedies, 'Legalized Noncompliance,' And Related Issues, Eric A. Posner, Alan O. Sykes
Efficient Breach Of International Law: Optimal Remedies, 'Legalized Noncompliance,' And Related Issues, Eric A. Posner, Alan O. Sykes
Michigan Law Review
In much of the scholarly literature on international law, there is a tendency to condemn violations of the law and to leave it at that. If all violations of international law were indeed undesirable, this tendency would be unobjectionable. We argue in this Article, however that a variety of circumstances arise under which violations of international law are desirable from an economic standpoint. The reasons why are much the same as the reasons why nonperformance of private contracts is sometimes desirable- the concept of "efficient breach," familiar to modern students of contract law, has direct applicability to international law. As …
A Comparative Fault Defense In Contract Law, Ariel Porat
A Comparative Fault Defense In Contract Law, Ariel Porat
Michigan Law Review
This Article calls for the recognition of a comparative fault defense in contract law. Part I sets the framework for this defense and suggests the situations in which it should apply. These situations are sorted under two headings: cases of noncooperation and cases of overreliance. Part II unfolds the main argument for recognizing the defense and recommends applying the defense only in cases where cooperation or avoidance of overreliance is low cost.
Confidence In The Nonprofit Sector Through Sarbanes-Oxley-Style Reforms, Joseph Mead
Confidence In The Nonprofit Sector Through Sarbanes-Oxley-Style Reforms, Joseph Mead
Michigan Law Review
Over the past several years, the nonprofit sector suffered a series of highly visible scandals that shook the public's confidence in charitable organizations. Concerned politicians and nonprofit leaders responded with a variety of reforms inspired by the Sarbanes-Oxley Act. The Note focuses on three such reforms: requiring nonprofit officers certify financial statements, mandating audits of nonprofits' financial statements, and imposing independent audit committees on nonprofit boards of directors. This Note argues that, contrary to the conclusions of many commentators, these reforms will provide a net benefit to the nonprofit sector by increasing donor confidence while imposing minimal costs.
Patients As Consumers: Courts, Cotnracts, And The New Medical Marketplace, Mark A. Hall, Carl E. Schneider
Patients As Consumers: Courts, Cotnracts, And The New Medical Marketplace, Mark A. Hall, Carl E. Schneider
Michigan Law Review
The persistent riddle of health-care policy is how to control the costs while improving the quality of care. The riddle's oncepromising answer-managed care-has been politically ravaged, and consumerist solutions are now winning favor This Article examines the legal condition of the patient-as-consumer in today's health-care market. It finds that insurers bargain with some success for rates for the people they insure. The uninsured, however, must contract to pay whatever a provider charges and then are regularly charged prices that are several times insurers'pricesa nd providers' actual costs. Perhaps because they do not understand the healthcare market, courts generally enforce these …
Rewarding Outside Directors, Assaf Hamdani, Reinier Kraakman
Rewarding Outside Directors, Assaf Hamdani, Reinier Kraakman
Michigan Law Review
While they often rely on the threat of penalties to produce deterrence, legal systems rarely use the promise of rewards. In this Article, we consider the use of rewards to motivate director vigilance. Measures to enhance director liability are commonly perceived to be too costly. We, however demonstrate that properly designed reward regimes could match the behavioral incentives offered by negligence-based liability regimes but with significantly lower costs. We further argue that the market itself cannot implement such a regime in the form of equity compensation for directors. We conclude by providing preliminary sketches of two alternative reward regimes. While …
The Social Construction Of Sarbanes-Oxley, Donald C. Langevoort
The Social Construction Of Sarbanes-Oxley, Donald C. Langevoort
Michigan Law Review
Part I will take a close look at the legitimacy of SOX by examining the two plausible stories of SOX's origins and considering the early post-SOX evidence on its costs and benefits. There is no clear-cut answer to the question of how much SOX benefits investors; both positive and critical positions are plausible. Costs have been far greater than expected, but more from SOX's implementation than from the legislative text. Before turning to how and why implementation has occurred that way-which to me is the central question of interpretation-Part II considers whether there is an alternative interpretation of SOX that …
Now, Later, Or Never: Applying Asymmetric Discount Rates In Nuisance Remedies And Federal Regulations, Yang Wang
Michigan Law Review
Part I of this Note reviews recent literature on the need for asymmetric discount rates in cost-benefit analysis. It observes that even though scholars disagree on the precise value of the appropriate discount rate, many agree that future costs and benefits must be discounted at different rates. Part II then constructs a simple model, consisting of two activities competing for the same resource, and analyzes the consequences of asymmetric discounting under this model. This Part proposes that, to maximize the joint social utility, the resource should be time divided between the competing activities rather than permanently allocated to one or …
Legal Fictions In Pierson V. Post, Andrea Mcdowell
Legal Fictions In Pierson V. Post, Andrea Mcdowell
Michigan Law Review
American courts and citizens generally take the importance of private property for granted. Scholars have sought to explain its primacy using numerous legal doctrines, including natural law, the Lockean principle of a right to the product of one's labor, Law & Economics theories about the incentives created by property ownership, and the importance of bright line rules. The leading case on the necessity of private property, Pierson v. Post, makes all four of these points. This Article argues that Pierson has been misunderstood. Pierson was in fact a defective torts case that the judges shoe-horned into a property mold …
Fixing 404, Joseph A. Grundfest, Steven E. Bochner
Fixing 404, Joseph A. Grundfest, Steven E. Bochner
Michigan Law Review
Although debate persists as to whether the costs of Sarbanes-Oxley's Section 404 regulations exceed their benefits, there is broad consensus that the rules have been inefficiently implemented. Substantive and procedural factors contribute to the rules' inefficiency. From a substantive perspective, the terms "material weakness" and "significant deficiency" are central to the implementing regulations and are easily interpreted to legitimize audits of controls that have only a remote probability of causing an inconsequential effect on the issuer's financial statements. As a quantitative matter the literature suggests that a control with a remote probability of causing an inconsequential effect has an expected …
Mitigation And The Americans With Disabilities Act, Jill Elaine Hasday
Mitigation And The Americans With Disabilities Act, Jill Elaine Hasday
Michigan Law Review
It is an open question whether the prohibition on employment discrimination in the Americans with Disabilities Act (ADA) protects plaintiffs who have not attempted to mitigate the effect of their disability on their ability to work. Suppose, for example, that a job applicant has severely impaired vision because of a corneal disease. He can have corneal transplant surgery that his doctors recommend and expect will allow him to see much more clearly, but he does not want to have the surgery because of the complications sometimes associated with the operation and the possibility that the surgery will not work. He …
Incommensurability And Valuation In Law, Cass R. Sunstein
Incommensurability And Valuation In Law, Cass R. Sunstein
Michigan Law Review
In this article I explore two claims and discuss their implications for law. The first claim is that human values are plural and diverse. By this I mean that we value things, events, and relationships in ways that are not reducible to some larger and more encompassing value. The second claim is that human goods are not commensurable. By this I mean that such goods are not assessed along a single metric. For reasons to be explored, the two claims, though related, are importantly different.
Road Signs And The Goals Of Justice, Joseph Sanders
Road Signs And The Goals Of Justice, Joseph Sanders
Michigan Law Review
Review of Ideals, Beliefs, Attitudes, and the Law: Private Law Perspectives on a Public Law Problem by Guido Calabresi
Redefining The "Cost Of Suit" Under Section Four Of The Clayton Act, Michigan Law Review
Redefining The "Cost Of Suit" Under Section Four Of The Clayton Act, Michigan Law Review
Michigan Law Review
This Note explores the possible interpretations of the "cost of suit" provision and the policies which it implicates. It concludes that the Copper Liquor interpretation best advances the goals of the antitrust laws set forth by Congress and the courts. Part I examines the development of the present controversy among the circuits. Part II analyzes and refutes the arguments which have been set forth in support of the traditional rule. Part III explores the policy considerations which underlie private treble damage actions and concludes that the Copper Liquor interpretation of the "cost of suit" provision serves them better than does …
Perspectives On The Jurisprudence Of International Trade: Costs And Benefits Of Legal Procedures In The United States, John H. Jackson
Perspectives On The Jurisprudence Of International Trade: Costs And Benefits Of Legal Procedures In The United States, John H. Jackson
Michigan Law Review
In this brief article I will confine myself to an analysis of the U.S. legal system pertaining to regulation of imports, deferring to other works an exploration of similar questions relating to regulation of exports or other international economic activities. First, however, I wish to touch on policies related to the legal structure of international rules for trade. This will help put the subject of this article in broader perspective, and although I will focus on U.S. domestic law measures, it will readily be seen that the international system depends greatly on national legal systems for its efficacy, and that …
Beyond The Limits Of Executive Power: Presidential Control Of Agency Rulemaking Under Executive Order 12,291, Morton Rosenberg
Beyond The Limits Of Executive Power: Presidential Control Of Agency Rulemaking Under Executive Order 12,291, Morton Rosenberg
Michigan Law Review
This Article addresses the substantial legal problems posed by Executive Order 12,291. Part I argues that the Order, taken as a whole or separated into its procedural and substantive components, violates the constitutional separation of powers. Drawing on the analytic framework outlined by Justice Jackson in the Steel Seizure case, Part I maintains that courts should demand clear congressional support for the Order's requirements. The available evidence, however, conclusively demonstrates Congress's intent to deny the President formalized, substantive control over administrative policymaking. As interpreted by the Supreme Court, moreover, the informal rulemaking provisions of the Administrative Procedure Act (AP A) …
Reimbursement Of Defense Costs As A Condition Of Probation For Indigents, Michigan Law Review
Reimbursement Of Defense Costs As A Condition Of Probation For Indigents, Michigan Law Review
Michigan Law Review
It is extremely difficult to obtain precise information concerning the prevalence of this practice. There is only one reported case on the subject, and empirical evidence is almost wholly lacking because of the wide discretion granted sentencing courts in imposing probation conditions, and because of the reluctance of appellate courts to review the exercise of that discretion. However, courts have frequently imposed costs on nonindigent probationers, and in many jurisdictions the statutes which authorize such a probation condition with respect to solvent probationers seem broad enough to include indigents as well. Moreover, two recent studies have unearthed specific data which …