Law Commons^™

Machiavelli And The Bar: Ethical Limitations On Lying In Negotiation, James J. White

Book Chapters

This article addresses the general question of truthfulness in the process of negotiation, as that question is faced in Rule 4.2 of the Model Rules of Professional Conduct. The obligation to behave truthfully in negotiation is embodied in the requirement of Rule 4.2(a) that directs the lawyer to “be fair in dealing with other participants.” The article then presents five cases which show that one does not and cannot intend that a negotiator be “truthful” in the broadest sense of that term. It would be unfortunate, therefore, for the rule that requires “fairness” to be interpreted to require that a …

Deal Protection Devices, Albert H. Choi

Articles

In mergers and acquisitions transactions, a buyer and a seller will often agree to contractual mechanisms (deal protection devices) to deter third parties from jumping the deal and to compensate a disappointed buyer. With the help of auction theory, this Article analyzes various deal protection devices, while focusing on the two most commonly used mechanisms: match rights and target termination fees. A match right gives the buyer a right to “match” a third party’s offer so as to prevent the third party from snatching the target away, while a termination fee compensates the buyer when a third party acquires the …

Researching Marijuana Law, Seth Quidachay-Swan

Law Librarian Scholarship

This article provides a brief overview of the current legal framework governing the regulation of marijuana at the federal and state levels in the United States. It also provides an overview of the state of Michigan’s current regulatory framework and resources for attorneys interested in learning more about marijuana regulation.

The Separation Of Voting And Control: The Role Of Contract In Corporate Governance, Gabriel V. Rauterberg

Articles

The default rules of corporate law make shareholders’ control rights a function of their voting power. Whether a director is elected or a merger is approved depends on how shareholders vote. Yet, in private corporations shareholders routinely alter their rights by contract. This phenomenon of shareholder agreements—contracts among the owners of a firm— has received far less attention than it deserves, mainly because detailed data about the actual contents of shareholder agreements has been lacking. Private companies disclose little, and shareholder agreements are thought to play a trivial or nonexistent role in public companies. I show that this is false—fifteen …

Contract Design When Relationship-Specific Investment Produces Asymmetric Information, Albert H. Choi, George Triantis

Articles

Under conventional contract theory, contracts may be efficient by protecting relationship specific investment from holdup in subsequent (re)negotiation over terms of trade. This paper demonstrates a different problem when specific investment also provides significant private information to the investing party. This is fairly common: for example, a manufacturer invests to learn about its buyer's idiosyncratic needs or a collaborator invests to learn about a joint venture. We show how such private information can lead to subsequent bargaining failure and suboptimal ex ante relationship-specific investment. We also show that this inefficiency is worse if the parties enter into a binding and …

Illegal Sex Toy Patents, W. Nicholson Price Ii

Reviews

In Patenting Pleasure, Professors Sarah Rajec and Andrew Gilden highlight a surprising incongruity: while many areas of U.S. law are profoundly hostile to sexuality in general and the technology of sex in particular, the patent system is not. Instead, the U.S. Patent and Trademark Office (USPTO) has over the decades issued thousands of patents on sex toys—from vibrators to AI, and everything in between. This incongruity is especially odd because patent law has long incorporated a doctrine that specifically tied patentability to the usefulness of the invention, and up until the end of the 20th century one strand of that …

Senior Day 2021, University Of Michigan Law School

Commencement and Honors Materials

Program for the May 7, 2021 University of Michigan Law School Senior Day.

Has Tax Competition Been Curbed? Reaction To L.Ahrens, L. Hakelberg & T. Rixen, Reuven Avi-Yonah

Articles

This excellent article shows that contrary to the dire predictions of many observers, tax cooperation is still possible among OECD member countries and that such cooperation can overcome the trilemma of maintaining democracy, sustaining globalization and accepting some tax competition. Specifically, the authors show that in the realm of individual tax evasion, the advent of Automatic Exchange of Information (AEol) after the financial crisis of 2008-9 has enabled OECD countries to maintain a higher level of tax on capital than was possible before the crisis. This, in turn, enabled such countries to reduce inequality and maintain the social safety net …

Slamming The Courthouse Door: 25 Years Of Evidence For Repealing The Prison Litigation Reform Act, Andrea Fenster, Margo Schlanger

Other Publications

Twenty-five years ago today, in 1996, President Bill Clinton signed the Prison Litigation Reform Act. The “PLRA,” as it is often called, makes it much harder for incarcerated people to file and win federal civil rights lawsuits. For two-and-a-half decades, the legislation has created a double standard that limits incarcerated people’s access to the courts at all stages: it requires courts to dismiss civil rights cases from incarcerated people for minor technical reasons before even reaching the case merits, requires incarcerated people to pay filing fees that low-income people on the outside are exempt from, makes it hard to find …

Lecture In Human Rights: Tax Policy, Global Economics, Labor And Justice In Light Of Covid-19, Reuven S. Avi-Yonah

Articles

International Tax Law has extensive ramifications on the wealth gap between wealthy developed nations and poor developing nations. This divide in prosperity has been made clear again in the global response to the COVID-19 pandemic. Developing nations are currently ill-equipped to adapt to, and regulate, an equitable system of taxation on a domestic level. A further challenge is the difficulty of ensuring that foreign investors, especially multinational corporations, are able to comply with tax regulations. Developed nations such as the United States and members of the European Union must continue to work with developing nations to reduce tax evasion and …

Brief For Plaintiff-Appellee, Carroll V. Trump, No. 20-3977 (2nd Cir. Apr. 16, 2021), Leah Litman, Roberta A. Kaplan, Joshua A. Matz, Raymond P. Tolentino

Appellate Briefs

Introduction

In June 2019, E. Jean Carroll revealed that former President Donald J. Trump had sexually assaulted her decades earlier. Trump denied it, saying he did not know who Carroll was and had never met her. But he did not stop there. He launched a series of vicious, personal attacks. He implied that she was too ugly to rape; that she had falsely accused other men of sexual assault; and that she had invented her story for money, or to sell books, or to advance a political plot. None of this was true. Trump knew that he had assaulted Carroll. …

Rural Social Safety Nets For Migrant Farmworkers In Michigan, 1942–1971, Emily A. Prifogle

Articles

In the 1960s, farmers pressed trespass charges against aid workers providing assistance to agricultural laborers living on the farmers’ private property. Some of the first court decisions to address these types of trespass, such as the well-known and frequently taught State v. Shack (1971), limited the property rights of farmers and enabled aid workers to enter camps where migrants lived. Yet there was a world before Shack, a world in which farmers welcomed onto their land rural religious groups, staffed largely by women from the local community, who provided services to migrant workers. From the 1940s through the 1960s, federal, …

Recollections Refreshed And Recorded, Len Niehoff

Articles

Witnesses forget stuff. When they do, the evidence rules give us two tools to help solve the problem. Lawyers call one "refreshed recollection" and the other "past recollection recorded," labels just similar enough to guarantee confusion. Nevertheless, these principles get at very different things and are well worth the effort necessary to distinguish and understand them. So how do we get there?

The Federalist Constitution: Foreword, David S. Schwartz, Jonathan Gienapp, John Mikhail, Richard A. Primus

Articles

Over the past twenty years, constitutional law has taken a decidedly historical turn, both in academia and in the courts. The U.S. Supreme Court’s constitutional decisions are increasingly filled with extended historical inquiries, and not just by self-described originalists. Yet much of this historical inquiry is severely distorted. Twenty-first-century lawyers and judges enjoy improved and ever-widening access to a rich array of primary sources from the founding era and the early republic, but the ability of modern interpreters to make sense of these materials is pervasively affected by present biases. Many of these biases stem directly from long-standing received narratives …

Reframing Article I, Section 8, Richard Primus

Articles

Constitutional lawyers usually think of the Constitution's enumeration of congressional powers as a device for limiting the federal government's legislative jurisdiction. And there's something to that. But considered from the point of view of the Constitution's drafters, it makes more sense to think of the enumeration of congressional powers as primarily a device for empowering Congress, not limiting it. The Framers wanted both to empower and to limit the general government, and the Constitution's enumeration of congressional powers makes more sense as a means of empowerment than as a means of limitation. The major exception--that is, the one significant way …

Stanley Surrey, The 1981 Us Model, And The Single Tax Principle, Reuven S. Avi-Yonah, Gianluca Mazzoni

Law & Economics Working Papers

2021 marks the 40th anniversary of the 1981 U.S. Model Tax Treaty as well as the 5th anniversary of the 2016 US Model Tax Treaty. The first author has repeatedly argued that the 1981 Model gave life to the single tax principle (“STP”). The 2016 Model updates effectively implemented the principle that cross-border income should be taxed once – that is not more and but also not less than once. For example, the 2016 Model does not reduce withholding taxes on payments of highly mobile income that are made to related persons that enjoy low or no taxation with respect …

Using Random Assignment To Measure Court Accessibility For Low-Income Divorce Seekers, James D. Greiner, Ellen L. Degnan, Thomas Ferriss, Roseanna Sommers

Articles

We conducted a field experiment in which 311 low-income individuals seeking a divorce were randomly assigned to receive access to a pro bono lawyer (versus minimal help) to assist with filing for divorce. Examining court records, we found that assignment to an attorney made a large difference in whether participants filed for and obtained a divorce. Three years after randomization, 46% of the treated group had terminated their marriages in the proper legal venue, compared to 9% of the control group. Among “compliers”—participants who obtained representation only if assigned to receive it—those with lawyers were far more likely to file …

Rebellion, Rascals, And Revenue: Pleasingly Gaudy And Preposterous, Reuven S. Avi-Yonah

Law & Economics Working Papers

Michael Keen and Joel Slemrod’s REBELLION, RASCALS AND REVENUE: TAX FOLLIES AND WISDOM THROUGH THE AGES (Princeton University Press, 2021) is a wonderful book, which should be read by any student of taxation. To most tax policy makers and academics, tax history may seem a bit arcane, because they believe that the study of taxation and especially public finance economics is a story of progress and that we know better how to design good tax systems than our ancestors. To this attitude, Keen and Slemrod offer a decisive rejoinder: We do not necessarily understand taxation better than our predecessors, and …

Tax Treaties, The Constitution, And The Noncompulsory Payment Rule, Reuven S. Avi-Yonah

Law & Economics Working Papers

US Tax treaties have been regarded as self-executing since the first treaty (with France) was ratified in 1932. Rebecca Kysar has argued this raises a doubt on whether the treaties are constitutional, because tax treaties (like other treaties) are negotiated by the executive branch and ratified by the Senate with no involvement by the House, and all tax-raising measures must originate in the House under the Origination Clause (U.S. Const. Art I, section 7, clause 7). Her preferred solution is to make tax treaties non-self executing, but that would reverse the universal practice since 1932, and is therefore unlikely. Moreover, …

The Economics Of Class Action Waivers, Albert H. Choi, Kathryn E. Spier

Law & Economics Working Papers

Many firms require consumers, employees, and suppliers to sign class action waivers as a condition of doing business with the firm, and the US Supreme Court has endorsed companies' ability to block class actions through mandatory individual arbitration clauses. Are class action waivers serving the interests of society or are they facilitating socially harmful business practices?

This paper synthesizes and extends the existing law and economics literature by analyzing the firms' incentive to impose class action waivers. While in many settings the firms’ incentive to block class actions may be aligned with maximizing social welfare, in many other settings it …

Suicide Prevention And Mood Disorders: Self-Exclusion Agreements For Firearms As A Suicide Prevention Strategy, Melvin G. Mcinnis, Stephen B. Thompson, Sofia D. Merajver, Carl E. Schneider

Articles

Suicide involves a complex set of behaviors and emotions that lead up to actions that may be based on planning and forethought or the result of impulse. While there are a host of antecedent circumstances the presence of a mood disorder, primarily depression, is the most common factor in suicide. While management of depression is recognized as important prevention strategy in depression, the means by which suicide occurs must be a critical element of prevention. Policies that lower access to the means for suicide will decrease the fatality. Guns are associated with half of suicides and the case fatality rate …

Problematic Interactions Between Ai And Health Privacy, W. Nicholson Price Ii

Law & Economics Working Papers

The interaction of artificial intelligence (“AI”) and health privacy is a two-way street. Both directions are problematic. This Article makes two main points. First, the advent of artificial intelligence weakens the legal protections for health privacy by rendering deidentification less reliable and by inferring health information from unprotected data sources. Second, the legal rules that protect health privacy nonetheless detrimentally impact the development of AI used in the health system by introducing multiple sources of bias: collection and sharing of data by a small set of entities, the process of data collection while following privacy rules, and the use of …

Reforming Michigan Vehicle Direct Sales Laws, Daniel A. Crane

Law & Economics Working Papers

Michigan stands at a crossroads with respect to the way that electrical vehicles (“EVs”) are sold and serviced. For many decades, Michigan—like many other states—mandated that cars could be sold and serviced only through independent, franchised dealers and prohibited car manufacturers from selling or servicing directly. Historically, those laws were put in place to protect dealers from the superior bargaining power, and sometimes unfair practices, of the Big Three car companies—General Motors (“GM”), Ford, and Chrysler. With the advent of EV technology, it became clear that these decades-old restrictions on direct sales and servicing needed to be reconsidered. Tesla, the …

The Economics Of Class Action Waivers, Albert H. Choi, Kathryn E. Spier

Articles

Many firms require consumers, employees, and suppliers to sign class action waivers as a condition of doing business with the firm, and the U.S. Supreme Court has endorsed companies’ ability to block class actions through mandatory individual arbitration clauses. Are class action waivers serving the interests of society or are they facilitating socially harmful business practices? This paper synthesizes and extends the existing law and economics literature by analyzing the firms’ incentive to impose class action waivers. While in many settings the firms’ incentive to block class actions may be aligned with maximizing social welfare, in many other settings it …

Delegation At The Founding, Julian Davis Mortenson, Nicholas Bagley

Articles

This article refutes the claim that the Constitution was originally understood to contain a nondelegation doctrine. The founding generation didn’t share anything remotely approaching a belief that the constitutional settlement imposed restrictions on the delegation of legislative power---let alone by empowering the judiciary to police legalized limits. To the contrary, the overwhelming majority of Founders didn’t see anything wrong with delegations as a matter of legal theory. The formal account just wasn’t that complicated: Any particular use of coercive rulemaking authority could readily be characterized as the exercise of either executive or legislative power, and was thus formally valid regardless …

Acknowledgements As A Window Into Legal Academia, Jonathan Tietz, W. Nicholson Price Ii

Articles

Legal scholarship in the United States is an oddity—an institution built on student editorship, a lack of peer review, and a dramatically high proportion of solo authorship. It is often argued that this makes legal scholarship fundamentally different from scholarship in other fields, which is largely peer-reviewed by academics. We use acknowledgments in biographical footnotes from law review articles to probe the nature of legal knowledge co-production and de facto peer review in the legal literature. Using a survey and a textual analysis of about thirty thousand law review articles from 2008 to 2017, we examined the nature of knowledge …

The Reincorporation Of Prisoners Into The Body Politic: Eliminating The Medicaid Inmate Exclusion Policy, Mira K. Edmonds

Articles

Incarcerated people are excluded from Medicaid coverage due to a provision in the Social Security Act Amendments of 1965 known as the Medicaid Inmate Exclusion Policy (“MIEP”). This Article argues for the elimination of the MIEP as an anachronistic remnant of an earlier era prior to the massive growth of the U.S. incarcerated population and the expansion of Medicaid eligibility under the Patient Protection and Affordable Care Act of 2010. It explores three reasons for eliminating the MIEP. First, the inclusion of incarcerated populations in Medicaid coverage would signify the final erasure from the Medicaid regime of the istinction between …

The Moral Ambiguity Of Public Prosecution, Gabriel S. Mendlow

Articles

Classic crimes like theft and assault are in the first instance wrongs against individuals, not against the state or the polity that it represents. Yet our legal system denies crime victims the right to initiate or intervene in the criminal process, relegating them to the roles of witness or bystander—even as the system treats prosecution as an institutional analog of the interpersonal processes of moral blame and accountability, which give pride of place to those most directly wronged. Public prosecution reigns supreme, with the state claiming primary and exclusive moral standing to call offenders to account for their wrongs. Although …

The Rights Of Refugees Under International Law, James C. Hathaway

Book Chapters

The universal rights of refugees are today derived from two primary sources - general standards of international human rights law, and the Refugee Convention itself. As the analysis in Chapter 1 makes clear, the obligations derived from the Refugee Convention remain highly relevant, despite the development since 1951 of a broad-ranging system of international human rights law. In particular, general human rights norms do not address many refugee-specific concerns; general economic rights are defined as duties of progressive implementation and may legitimately be denied to non-citizens by less developed countries; not all civil rights are guaranteed to non-citizens, and most …

The Aggravating Duty Of Non-Aggravation, Steven R. Ratner

Articles

International law's duty of non-aggravation requires states to avoid actions that might inflame an international dispute, both to maintain international peace and to preserve the effectiveness of judicial or arbitral proceedings. Yet parties on the receiving end of calls for non-aggravation --whether from the Security Council or at tribunal -- have little idea of what conduct they are expected to avoid. This state of affairs is most unfortunate in light of the centrality of this norm to the peaceful resolution of disputes and, in particular, examples of seemingly provocative and aggravating acts in recent years. This article attempts to give …