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Articles 1 - 30 of 43
Full-Text Articles in Law
Establishing A More Effective Safmr System: The Cost And Benefits Of Hud's 2016 Small Area Fair Market Rent Rule, John Treat
University of Michigan Journal of Law Reform
This Note analyzes the new HUD rule finalized in November 2016, which dramatically changed the structure of the Housing Choice Voucher program in select metropolitan areas. In August 2017, HUD suspended automatic implementation of the rule until 2020 for twenty-three of the twenty-four selected metropolitan areas, but in December 2017, a preliminary injunction was granted requiring HUD to implement the rule as of January 1, 2018. The rule as written changes the method for calculating the vouchers from using a metropolitan area-wide average to calculating a separate level for each zip code. Such a change could greatly deconcentrate poverty and …
Making Treaty Implementation More Like Statutory Implementation, Jean Galbraith
Making Treaty Implementation More Like Statutory Implementation, Jean Galbraith
Michigan Law Review
Both statutes and treaties are the “supreme law of the land,” and yet quite different practices have developed with respect to their implementation. For statutes, all three branches have embraced the development of administrative law, which allows the executive branch to translate broad statutory directives into enforceable obligations. But for treaties, there is a far more cumbersome process. Unless a treaty provision contains language that courts interpret to be directly enforceable, they will deem it to require implementing legislation from Congress. This Article explores and challenges the perplexing disparity between the administration of statutes and treaties. It shows that the …
A Comment On Privacy And Accountability In Black-Box Medicine, Carl E. Schneider
A Comment On Privacy And Accountability In Black-Box Medicine, Carl E. Schneider
Michigan Telecommunications & Technology Law Review
Human institutions and activities cannot avoid failures. Anxiety about them often provokes governments to try to prevent those failures. When that anxiety is vivid and urgent, government may do so without carefully asking whether regulation’s costs justify their benefits. Privacy and Accountability in Black Box Medicine admirably labors to bring discipline and rationality to thinking about an important development — the rise of “black-box medicine” — before it causes injuries regulation should have prevented and before it is impaired by improvident regulation. That is, Privacy and Accountability weighs the costs against the benefits of various forms of regulation across the …
San Manuel'S Second Exception: Identifying Treaty Provisions That Support Tribal Labor Sovereignty, Briana Green
San Manuel'S Second Exception: Identifying Treaty Provisions That Support Tribal Labor Sovereignty, Briana Green
Michigan Journal of Environmental & Administrative Law
Inspired by the holding in WinStar World Casino, this Note considers the potential for tribes to make treaty-based arguments when facing the threat of National Labor Relations Board jurisdiction. This Note presents the results of a survey of U.S. government treaties with Native Americans to identify those treaties with language similar to that interpreted by the Board in WinStar World Casino. The survey identified four treaties and four tribes that could make treaty-based arguments like those made in Winstar World Casino: the Confederated Tribes of the Umatilla Indian Reservation, the Muscogee (Creek) Nation, the Seminole Nation of …
The New Front In The Clean Air Wars: Fossil-Fuel Influence Over State Attorneys General- And How It Might Be Checked, Eli Savit
Michigan Law Review
Review of Struggling for Air: Power and the "War On Coal" by Richard L. Revesz and Jack Leinke, and Federalism on Trial: State Attorneys General and National Policymaking in Contemporary America by Paul Nolette.
The Limits Of Performance-Based Regulation, Cary Coglianese
The Limits Of Performance-Based Regulation, Cary Coglianese
University of Michigan Journal of Law Reform
Performance-based regulation is widely heralded as a superior approach to regulation. Rather than specifying the actions regulated entities must take, performance-based regulation instead requires the attainment of outcomes and gives flexibility in how to meet them. Despite nearly universal acclaim for performance-based regulation, the reasons supporting its use remain largely theoretical and conjectural. Owing in part to a lack of a clear conceptual taxonomy, researchers have yet to produce much empirical research documenting the strengths and weaknesses of performance-based regulation. In this Article, I provide a much-needed conceptual framework for understanding and assessing performance-based regulation. After defining performance-based regulation and …
A Survey Of Legal Issues Arising From The Deployment Of Autonomous And Connected Vehicles, Daniel A. Crane, Kyle D. Logue, Bryce C. Pilz
A Survey Of Legal Issues Arising From The Deployment Of Autonomous And Connected Vehicles, Daniel A. Crane, Kyle D. Logue, Bryce C. Pilz
Michigan Telecommunications & Technology Law Review
With concerns rising over the number and variety of state regulations, companies are increasingly looking to the federal government for guidance. Representatives from Google, GM, Lyft, and Delphi testified before Congress on March 15, urging Congress to pass a federal law concerning autonomous vehicles. While the passage of any federal legislation is unclear at this time, other parts of the federal government have been extremely active in recent months. In January 2016, the Obama administration proposed a 10-year, $4 billion investment in autonomous vehicle technology. In that same announcement, the Department of Transportation (“DOT”) committed to developing model state policy …
The Crime Lab In The Age Of The Genetic Panopticon, Brandon L. Garrett
The Crime Lab In The Age Of The Genetic Panopticon, Brandon L. Garrett
Michigan Law Review
Review of Unfair: The New Science of Criminal Injustice by Adam Benforado, Inside the Cell: The Dark Side of Forensic DNA by Erin E. Murphy, and Cops in Lab Coats: Curbing Wrongful Convictions Through Independent Forensic Laboratories by Sandra Guerra Thompson.
The Effect Of Legislation On Fourth Amendment Protection, Orin S. Kerr
The Effect Of Legislation On Fourth Amendment Protection, Orin S. Kerr
Michigan Law Review
When judges interpret the Fourth Amendment, and privacy legislation regulates the government’s conduct, should the legislation have an effect on the Fourth Amendment? Courts are split three ways. Some courts argue that legislation provides the informed judgment of a coequal branch that should influence the Fourth Amendment. Some courts contend that the presence of legislation should displace Fourth Amendment protection to prevent constitutional rules from interfering with the legislature’s handiwork. Finally, some courts treat legislation and the Fourth Amendment as independent and contend that the legislation should have no effect. This Article argues that courts should favor interpreting the Fourth …
R-Egg-Ulation: A Call For Greater Regulation Of The Big Business Of Human Egg Harvesting, Danielle A. Vera
R-Egg-Ulation: A Call For Greater Regulation Of The Big Business Of Human Egg Harvesting, Danielle A. Vera
Michigan Journal of Gender & Law
When it comes to young healthy women “donating” their eggs, America has a regulation problem. This Note explains the science behind the harvesting of human eggs, focusing on potential egg donors, and describes the specific factors that make egg donation a unique type of transaction. It describes the current regulatory status of the assisted reproductive technology industry in the United States and highlights the ways in which this scheme fails to protect egg “donors.” This Note concludes with a call for comprehensive regulation of the assisted reproductive technology industry.
Basel Iii And The Future Of Project Finance Funding, Tianze Ma
Basel Iii And The Future Of Project Finance Funding, Tianze Ma
Michigan Business & Entrepreneurial Law Review
This paper seeks to analyze the new requirements in the Basel III banking regulatory framework and explore their impact on commercial banks’ project finance portfolio. The paper begins with a general introduction of the Basel Accords, followed by an analysis of the changes in the Basel III requirements and their potential impact on project finance, in particular the effects of the liquidity coverage ratio (LCR) and the net stable funding ratio (NSFR). The paper ends with a discussion of alternative sources of project finance funding that emerged as a result of the new regulatory regime.
Regulating Secondary Markets In The High Frequency Age: A Principled And Coordinated Approach, Michael Morelli
Regulating Secondary Markets In The High Frequency Age: A Principled And Coordinated Approach, Michael Morelli
Michigan Business & Entrepreneurial Law Review
Technological developments in securities markets, most notably high frequency trading, have fundamentally changed the structure and nature of trading over the past 50 years. Policymakers both domestically and abroad now face many new challenges impacting the secondary market’s effectiveness as a generator of economic growth and stability. Faced with these rapid structural changes, many are quick to denounce high frequency trading as opportunistic and parasitic. This article, however, instead argues that while high frequency trading presents certain general risks to secondary market efficiency, liquidity, stability, and integrity, the practice encompasses a wide variety of strategies, many of which can enhance, …
Audience Participation: Crowdfunding Large Scale Theatrical Productions Through Regulation A+, Christopher Johnson
Audience Participation: Crowdfunding Large Scale Theatrical Productions Through Regulation A+, Christopher Johnson
Michigan Business & Entrepreneurial Law Review
Theatrical financing has been conducted in much the same way for the better part of a century. This method, however, has consistently provided only the shows with access to the deepest of pockets a path to Broadway. The advent of Internet-based crowdfunding provides producers access to a potential source of capital that was previously unavailable. Prior to the promulgation of the SEC regulations regarding Title IV of the JOBS Act, this capital could only be accessed through donation or reward based financing campaigns, but with the introduction of Regulation A+, there is finally a practical method for the widespread solicitation …
Nfib V. Sebelius And The Individual Mandate: Thoughts On The Tax/Regulation Distinction, Kyle D. Logue
Nfib V. Sebelius And The Individual Mandate: Thoughts On The Tax/Regulation Distinction, Kyle D. Logue
Michigan Business & Entrepreneurial Law Review
When Chief Justice John Roberts wrote the opinion of the Court in National Federation of Independent Businesses v. Sebelius (NFIB) explaining the constitutionality of the Affordable Care Act’s (ACA) minimum essential coverage provision (sometimes referred to as the individual mandate), he reasoned that the mandate—or, more precisely, the enforcement provision that accompanied the mandate (the Shared Responsibility Payment or SRP)—could be understood as a tax on the failure to purchase health insurance. According to this view, the enactment of the mandate and its accompanying enforcement provisions fell within Congress’s virtually unlimited power to “lay and collect taxes.” This tax-based interpretation …
What We Talk About When We Talk About Tax Complexity, Andrea Monroe
What We Talk About When We Talk About Tax Complexity, Andrea Monroe
Michigan Business & Entrepreneurial Law Review
I learned most of what I know about being a lawyer, a teacher, and a scholar from Professor Douglas Kahn. For four months in the spring of 1997, Doug mesmerized and terrified me in the class that I feared would be my academic downfall—Partnership Taxation. In the years that followed, Doug has been a mentor and friend, encouraging and supporting me at every stage of my professional career. And my experience is not unique: Doug has inspired generations of law students in just the same way. There is no adequate way to thank Doug for everything he has given to …
Incentive Regulation, New Business Models, And The Transformation Of The Electric Power Industry, Inara Scott
Incentive Regulation, New Business Models, And The Transformation Of The Electric Power Industry, Inara Scott
Michigan Journal of Environmental & Administrative Law
The electric utility sector is in the midst of paradigmatic change. Market forces include decreased load growth, technological advances in distributed energy resources, pressures for decarbonization, and demands for increased efficiency and new utility services. Meanwhile, as the utility monopoly is undermined and profits slow, financial analysts signal increasing risk to potential utility investors. Suggestions for transforming the existing regulatory structure abound. At the broadest level, such proposals reflect an established divide between energy policy, which traditionally focuses on economics and markets, and environmental law, which is based in the protection of natural resources and ecosystems. To marry the two …
Economic Solutions To Nuclear Energy's Financial Challenges, Zachary Robock
Economic Solutions To Nuclear Energy's Financial Challenges, Zachary Robock
Michigan Journal of Environmental & Administrative Law
This Note presents a legal, economic, and regulatory roadmap to drive long-term innovation in sustainable energy generation. Next-generation nuclear power, which fundamentally mitigates many safety and nuclear waste issues, is the focus of this Note; however, the economic concepts can be applied to encourage solar, wind, advanced battery, and other sustainable technologies with high upfront costs and low long-term variable costs. Advanced nuclear energy generation is economically competitive on a long-term levelized cost basis, but suffers from a timing issue—a large amount of capital is needed upfront, with repayment over several decades, during which time significant capital costs can accrue …
Valuing Spectrum Allocations, Thomas W. Hazlett, Michael Honig
Valuing Spectrum Allocations, Thomas W. Hazlett, Michael Honig
Michigan Telecommunications & Technology Law Review
Observing trends in which Wi-Fi and Bluetooth have become widely popular, some argue that unlicensed allocations hosting such wireless technologies are increasingly valuable and that administrative spectrum allocations should shift accordingly. We challenge that policy conclusion. A core issue is that the social value of a given spectrum allocation is widely assumed to equal the gains of the applications it is likely to host. This thinking is faulty, as vividly seen in what we deem the Broadcast TV Spectrum Valuation Fallacy – the idea that because wireless video, or broadcast network programs are popular, TV channels are efficiently defined. This …
What Common Law And Common Sense Teach Us About Corporate Cybersecurity, Stephanie Balitzer
What Common Law And Common Sense Teach Us About Corporate Cybersecurity, Stephanie Balitzer
University of Michigan Journal of Law Reform
This Note examines the challenges of corporate cyberdefense and suggests an approach to mitigate them. Part I outlines the background of the corporate cyberdefense quandary and various cyberdefense strategies. Part II explores the current landscape of cybersecurity law in the United States and the regulatory infrastructure that governs cybercrimes. Part II also surveys case law that illustrates the legal loopholes and ambiguities corporations face when implementing cybersecurity measures. Finally, Part III argues that the proposed active defense model fails to comport with practical concerns and established legal principles. This Note’s comparative analysis of common law ‘defense of property’ principles and …
Adverse Possession, Private-Zoning Waiver & Desuetude: Abandonment & Recapture Of Property And Liberty Interests, Scott Andrew Shepard
Adverse Possession, Private-Zoning Waiver & Desuetude: Abandonment & Recapture Of Property And Liberty Interests, Scott Andrew Shepard
University of Michigan Journal of Law Reform
Adverse-possession doctrine labors under a pair of disabilities: a hesitancy by theorists to embrace the abandonment-and-recapture principle that informs the doctrine, and a substantial unwillingness of governments to abandon an antiquated and outmoded maxim shielding them from the doctrine's important work. Removing these disabilities will allow a series of positive outcomes. First, it will demonstrate that all would-be adverse possessors, not just those acting "in good faith" or with possessory intent, should enjoy the fruits of the doctrine. Second, it will provide valuable additional means by which the public may monitor the performance of government employees, and additional discipline to …
Parenting And Pregnant Students: An Evaluation Of The Implementation Of The Other Title Ix, Michelle Gough
Parenting And Pregnant Students: An Evaluation Of The Implementation Of The Other Title Ix, Michelle Gough
Michigan Journal of Gender & Law
Title IX of the Education Amendments of 1972 prohibits gender discrimination. Although pregnancy has been described as the "quintessential sex difference," Title IX's prohibition of gender discrimination in the context of parenting and pregnant students has often been left out of the discussion, and therefore the understanding, of the implementation of Title IX Regulations. The scholarship discussing the topic shows general agreement that the language and spirit of Title IX has not been given effect thus far by our schools or by some courts. This Article begins by looking to the Title IX regulations themselves and then to the research …
Our Not-So-Great Depression, Craig Green
Our Not-So-Great Depression, Craig Green
Michigan Law Review
A Failure of Capitalism by Richard Posner is not a great book, and it does not pretend to be one. Posner summarizes the economic crisis of 2008-09 and considers proposals to reduce current suffering and avoid future recurrence (p. xvi). But when the book's final edits were made in February 2009, it was still too soon for authoritative solutions or full accounts of what had happened. Instead, Posner wrote a conspicuously contemporary-and thus incomplete-description of the crisis as it looked to him at the time (p. xvii). Now one year later, readers may need a reminder about the value of …
Rationalism In Regulation, Christopher C. Demuth, Douglas H. Ginsburg
Rationalism In Regulation, Christopher C. Demuth, Douglas H. Ginsburg
Michigan Law Review
Retaking Rationality: How Cost-Benefit Analysis Can Better Protect the Environment and Our Health, by Richard L. Revesz and Michael A. Livermore, aims to convince those who favor more government regulation-in particular environmental groups-that they should embrace cost-benefit analysis and turn it to their purposes. Coauthored by a prominent law school dean and a recent student with a background in environmental advocacy, the book is a jarring combination of roundhouse political polemics and careful academic argument. Sweeping pronouncements are followed by qualifications that leave the sweep of the pronouncements in doubt- rather like the give-and-take of the law school classroom …
A Portrait Of The Internet As A Young Man, Ann Bartow
A Portrait Of The Internet As A Young Man, Ann Bartow
Michigan Law Review
In brief, the core theory of Jonathan Zittrain's 2008 book The Future of the Internet-And How to Stop It is this: good laws, norms, and code are needed to regulate the Internet, to prevent bad laws, norms, and code from compromising its creative capabilities and fettering its fecund flexibility. A far snarkier if less alliterative summary would be "We have to regulate the Internet to preserve its open, unregulated nature." Zittrain posits that either a substantive series of unfortunate Internet events or one catastrophic one will motivate governments to try to regulate cyberspace in a way that promotes maximum stability, …
Negligence And Insufficient Activity: The Missing Paradigm In Torts, David Gilo, Ehud Guttel
Negligence And Insufficient Activity: The Missing Paradigm In Torts, David Gilo, Ehud Guttel
Michigan Law Review
Conventional wisdom in tort law maintains that the prevention of undesirable risks mandates restriction of harmful conduct. Against this widely held conviction, this Article shows that undesirable risks often stem from insufficient, rather than excessive, activity. Because negligence requires investments in only cost-justified care, parties might deliberately limit their activity so that the size of the ensuing risk would be lower than the cost of welfare-enhancing precautions. Parties' incentives to strategically restrict their activity levels have striking implications for the inducement of efficient harm prevention. The overlooked paradigm of insufficient activity calls for the imposition of a new form of …
Unsettling Drug Patent Settlements: A Framework For Presumptive Illegality, Michael A. Carrier
Unsettling Drug Patent Settlements: A Framework For Presumptive Illegality, Michael A. Carrier
Michigan Law Review
A tidal wave of high drug prices has recently crashed across the U.S. economy. One of the primary culprits has been the increase in agreements by which brand-name drug manufacturers and generic firms have settled patent litigation. The framework for such agreements has been the Hatch-Waxman Act, which Congress enacted in 1984. One of the Act's goals was to provide incentives for generics to challenge brand-name patents. But brand firms have recently paid generics millions of dollars to drop their lawsuits and refrain from entering the market. These reverse-payment settlements threaten significant harm. Courts nonetheless have recently blessed them, explaining …
Fault At The Contract-Tort Interface, Roy Kreitner
Fault At The Contract-Tort Interface, Roy Kreitner
Michigan Law Review
The formative period in the history of contract and tort (in the second half of the nineteenth century) may be characterized by the cleavage of contract and tort around the concept of fault: tort modernized by moving from strict liability to a regime of "no liability without fault," while contract moved toward strict liability. The opposing attitudes toward fault are puzzling at first glance. Nineteenth-century scholars of private law offered explanations for the opposition, reasoning that alternative ideas about fault account for the different character of state involvement in enforcing private law rights: tort law governs liabilities imposed by law …
Conditions On Taking The Initiative: The First Amendment Implications Of Subject Matter Restrictions On Ballot Initiatives, Anna Skiba-Crafts
Conditions On Taking The Initiative: The First Amendment Implications Of Subject Matter Restrictions On Ballot Initiatives, Anna Skiba-Crafts
Michigan Law Review
Nearly half of U.S. states offer a ballot initiative process that citizens may use to pass legislation or constitutional amendments by a popular vote. Some states, however, impose substantive restrictions on the types of initiatives citizens may submit to the ballot for a vote-precluding, for example, initiatives lowering drug penalties or initiatives related to religion. Circuit courts are split on whether and how such restrictions implicate the First Amendment. This Note argues that-rather than limiting "expressive conduct" protected only minimally by the First Amendment, or limiting pure conduct that does not garner any First Amendment protectionsubject matter restrictions on ballot …
Rationing The Infinite, Leonard M. Niehoff
Rationing The Infinite, Leonard M. Niehoff
Michigan Law Review
This Review raises a number of objections to Baker's arguments and proposals. Furthermore, this Review raises the fundamental question of whether Baker's central operating assumption-that media is a scarce resource that should be fairly distributed-remains timely in light of the far-reaching and fast-paced changes wrought by the internet. Nevertheless, this Review also recognizes that, as with Baker's prior works, Media Concentration and Democracy makes a serious contribution to the discussion of the political, social, and economic dynamics that challenge the existence of a strong and independent media. Media Concentration and Democracy does a better job of raising questions than of …
Supreme Neglect Of Text And History, William Michael Treanor
Supreme Neglect Of Text And History, William Michael Treanor
Michigan Law Review
Since his classic book Takings appeared in 1985, Richard Epstein's ideas have profoundly shaped debate about the Fifth Amendment's Takings Clause to a degree that no other scholar can even begin to approach. His broad, original, and stunningly ambitious reading of the clause has powerfully influenced thinking in academia, in the judiciary, and in the political arena. The firestorm of controvery that followed the Supreme Court's recent decision in Kelo - in which the Supreme Court upheld the constitutionality of a municipal urban renewal plan that displaced long-time homeowners and conveyed their land to developers - is in critical part …