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University of Michigan Law School

2016

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Articles 1 - 30 of 241

Full-Text Articles in Law

Senior Day 2016, University Of Michigan Law School Dec 2016

Senior Day 2016, University Of Michigan Law School

Commencement and Honors Materials

Program for the December 16, 2016 University of Michigan Law School Senior Day.


Social Facts, Legal Fictions, And The Attribution Of Slave Status: The Puzzle Of Prescription, Rebecca J. Scott Dec 2016

Social Facts, Legal Fictions, And The Attribution Of Slave Status: The Puzzle Of Prescription, Rebecca J. Scott

Articles

In case after case, prosecutors, judges and juries therefore still struggle to come up with a definition of slavery, looking for some set of criteria or indicia that will enable them to discern whether the phenomenon they are observing constitutes enslavement. In this definitional effort, contemporary jurists may imagine that in the past, surely the question was simpler: someone either was or was not a slave. However, the existence of a set of laws declaring that persons could be owned as property did not, even in the nineteenth century, answer by itself the question of whether a given person was ...


Gender Discrimination And Statelessness In The Gulf Cooperation Council States, Betsy L. Fisher Dec 2016

Gender Discrimination And Statelessness In The Gulf Cooperation Council States, Betsy L. Fisher

Michigan Journal of Gender & Law

Using the Gulf Cooperation Council countries as a case study, this Article outlines the ways in which gender and birth status discrimination create new cases of statelessness. These occur when women are legally unable to convey their nationality to their children. This Article studies gender and birth status discrimination in nationality laws and in civil registration, family, and criminal law in each GCC state: Bahrain, Kuwait, Oman, Qatar, Saudi Arabia, and the United Arab Emirates. Ending statelessness will require these states to end discrimination against women and non-marital children in all of its forms in law and practice.


The Tax Definition Of "Medical Care:" A Critique Of The Startling Irs Arguments In O'Donnabhain V. Commissioner, Katherine Pratt Dec 2016

The Tax Definition Of "Medical Care:" A Critique Of The Startling Irs Arguments In O'Donnabhain V. Commissioner, Katherine Pratt

Michigan Journal of Gender & Law

This Article critiques the startling arguments made by the Internal Revenue Service (“IRS”) in O’Donnabhain v. Commissioner, a case in which the issue was whether a person diagnosed with gender identity disorder (“GID”) could take a federal tax deduction for the costs of male-to-female medical transition, including hormone treatment, genital surgery, and breast augmentation. Internal Revenue Code § 213 allows a deduction for the costs of “medical care,” which (1) includes costs incurred for “the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body,” but (2) generally excludes ...


R-Egg-Ulation: A Call For Greater Regulation Of The Big Business Of Human Egg Harvesting, Danielle A. Vera Dec 2016

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.


Country By Country Reporting And Corporate Privacy: Some Unanswered Questions, Reuven S. Avi-Yonah Dec 2016

Country By Country Reporting And Corporate Privacy: Some Unanswered Questions, Reuven S. Avi-Yonah

Articles

Corporate privacy is an oxymoron. Individuals have a right to privacy, which the Supreme Court has recognized at least since Griswold v. Connecticut (1965). Warren and Brandeis’ famous defense of the right to privacy (1890) clearly applied only to individuals, because only individuals have the kind of feelings that are affected by invasions of privacy. Corporations are legal entities, and the concept of privacy does not apply to them, as the Supreme Court held in 1906. Thus, any objection to making corporate tax returns public cannot rest on the right to privacy. In fact, corporate returns were made public in ...


Private Actors And Public Corruption: Why Courts Should Adopt A Broad Interpretation Of The Hobbs Act, Megan Demarco Dec 2016

Private Actors And Public Corruption: Why Courts Should Adopt A Broad Interpretation Of The Hobbs Act, Megan Demarco

Michigan Law Review

Federal prosecutors routinely charge public officials with “extortion under color of official right” under a public-corruption statute called the Hobbs Act. To be prosecuted under the Hobbs Act, a public official must promise official action in return for a bribe or kickback. The public official, however, does not need to have actual authority over that official action. As long as the victim reasonably believed that the public official could deliver or influence government action, the public official violated the Hobbs Act. Private citizens also solicit bribes in return for influencing official action. Yet most courts do not think the Hobbs ...


State-Action Immunity And Section 5 Of The Ftc Act, Daniel A. Crane, Adam Hester Dec 2016

State-Action Immunity And Section 5 Of The Ftc Act, Daniel A. Crane, Adam Hester

Michigan Law Review

The state-action immunity doctrine of Parker v. Brown immunizes anticompetitive state regulations from preemption by federal antitrust law so long as the state takes conspicuous ownership of its anticompetitive policy. In its 1943 Parker decision, the Supreme Court justified this doctrine, observing that no evidence of a congressional will to preempt state law appears in the Sherman Act’s legislative history or context. In addition, commentators generally assume that the New Deal court was anxious to avoid re-entangling the federal judiciary in Lochner-style substantive due process analysis. The Supreme Court has observed, without deciding, that the Federal Trade Commission ...


Why Arrest?, Rachel A. Harmon Dec 2016

Why Arrest?, Rachel A. Harmon

Michigan Law Review

Arrests are the paradigmatic police activity. Though the practice of arrests in the United States, especially arrests involving minority suspects, is under attack, even critics widely assume the power to arrest is essential to policing. As a result, neither commentators nor scholars have asked why police need to make arrests. This Article takes up that question, and it argues that the power to arrest and the use of that power should be curtailed. The twelve million arrests police conduct each year are harmful not only to the individual arrested but also to their families and communities and to society as ...


How And Why International Law Binds International Organizations, Kristina Daugirdas Nov 2016

How And Why International Law Binds International Organizations, Kristina Daugirdas

Articles

For decades, controversy has dogged claims about whether and to what extent international law binds international organizations (“IOs”) like the United Nations and the International Monetary Fund. The question has important consequences for humanitarian law, economic rights, and environmental protection. In this Article, I aim to resolve the controversy by supplying a theory about when and how international law binds IOs. I conclude that international law binds IOs to the same degree that it binds states. That is, IOs are not more extensively or more readily bound; nor are they less extensively or less readily bound. This means that IOs ...


Optimal Property Rights For Emerging Natural Resources: A Case Study On Owning Atmospheric Moisture, Jianlin Chen Nov 2016

Optimal Property Rights For Emerging Natural Resources: A Case Study On Owning Atmospheric Moisture, Jianlin Chen

University of Michigan Journal of Law Reform

This Article critically examines the design of property rights for emerging natural resources—naturally occurring substances that humans have only recently come to be able to exploit viably—through a case study of how the fifty states allocate ownership in, and regulate the use of, atmospheric moisture, an issue that has emerged in the context of weather modification (particularly cloud seeding). Building on the surprising finding that legislative declarations of state ownership have not resulted in greater regulatory control or other substantial restrictions on private use, this Article highlights a dimension of property rights design that has yet to receive ...


Resolving The Divided Patent Infringement Dilemma, Nathanial Grow Nov 2016

Resolving The Divided Patent Infringement Dilemma, Nathanial Grow

University of Michigan Journal of Law Reform

This Article considers cases of divided patent infringement: those in which two or more parties collectively perform all the steps of a patented claim, but where no single party acting alone has completed the entire patented invention. Despite the increasing frequency with which such cases appear to be arising, courts have struggled to equitably resolve these lawsuits under the constraints of the existing statutory framework because of the competing policy concerns they present. On the one hand, any standard that holds two or more parties strictly liable whenever their combined actions infringe a patent risks imposing liability on countless seemingly ...


Using Advanced Conflict Waivers To Teach Drafting, Ethics, And Professionalism, Edward R. Becker Nov 2016

Using Advanced Conflict Waivers To Teach Drafting, Ethics, And Professionalism, Edward R. Becker

Articles

On a substantive and ethical level, I tell my students to take on faith that if you were to do all of this and take all this into account, if you were to apply the conflict of interest and the disqualifications rules, it could make it extremely difficult or many of the firms involved in these matters to avoid being conflicted out; especially, if the parties and the kind of firms involved were not dealing with these conflicts and issues until a problem arose. The question I ask my students again at this point is what could be done. What ...


It Is Time For Washington State To Take A Stand Against Holmes's Bad Man: The Value Of Punitive Damages In Deterring Big Business And International Tortfeasors, Jackson Pahlke Nov 2016

It Is Time For Washington State To Take A Stand Against Holmes's Bad Man: The Value Of Punitive Damages In Deterring Big Business And International Tortfeasors, Jackson Pahlke

University of Michigan Journal of Law Reform

In Washington State, tortfeasors get a break when they commit intentional torts. Instead of receiving more punishment for their planned bad act, intentional tortfeasors are punished as if they committed a mere accident. The trend does not stop in Washington State—nationwide, punitive damage legislation inadequately deters intentional wrongdoers through caps and outright bans on punitive damages. Despite Washington State’s one hundred and twenty-five year ban on punitive damages, it is in a unique and powerful position to change the way courts across the country deal with intentional tortfeasors. Since Washington has never had a comprehensive punitive damages framework ...


Amendment Creep, Jonathan L. Marshfield Nov 2016

Amendment Creep, Jonathan L. Marshfield

Michigan Law Review

To most lawyers and judges, constitutional amendment rules are nothing more than the technical guidelines for changing a constitution’s text. But amendment rules contain a great deal of substance that can be relevant to deciding myriad constitutional issues. Indeed, judges have explicitly drawn on amendment rules when deciding issues as far afield as immigration, criminal procedure, free speech, and education policy. The Supreme Court, for example, has reasoned that, because Article V of the U.S. Constitution places no substantive limitations on formal amendment, the First Amendment must protect even the most revolutionary political viewpoints. At the state level ...


Big Data In Finance, University Of Michigan Law School Oct 2016

Big Data In Finance, University Of Michigan Law School

Event Materials

Program for the Big Data in Finance conference.


The Misunderstood Right To Be Forgotten: The Future Of Free Expression And Privacy In The Online World, University Of Michigan Law School Oct 2016

The Misunderstood Right To Be Forgotten: The Future Of Free Expression And Privacy In The Online World, University Of Michigan Law School

Event Materials

Program for the 26th Annual University of Michigan Senate's Davis, Markert, Nickerson Lecture on Academic and Intellectual Freedom.


Who Speaks The Culture Of The Corporation?, Gwendolyn Gordon Oct 2016

Who Speaks The Culture Of The Corporation?, Gwendolyn Gordon

Michigan Business & Entrepreneurial Law Review

Recent cases – Burwell v Hobby Lobby Stores and Citizens United chief among them – evince a new understanding of the nature of the corporation and its place in society. Whether a corporation has rights – such as those of religious exercise – is not, however, just a question of legal interpretation. To answer this question requires a theory of group or cultural identity, that is, a theory of how a group may have “culture” separate and apart from those of the individuals that comprise it. And such a theory must address how to understand the meaning of culture when the beliefs of people ...


Audience Participation: Crowdfunding Large Scale Theatrical Productions Through Regulation A+, Christopher Johnson Oct 2016

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 ...


Am I My Client? Revisited: The Role Of Race In Intra-Race Legal Representation, Julie D. Lawton Oct 2016

Am I My Client? Revisited: The Role Of Race In Intra-Race Legal Representation, Julie D. Lawton

Michigan Journal of Race and Law

This Article examines the challenges of intra-race legal representation for lawyers of color, law students of color, and those teaching law students of color by analyzing how the dynamics of the lawyer’s and client’s racial sameness impact legal representation. This Article brings together three strands of lawyering theory – the role of race in lawyering, critical race theory, and the role of the lawyer in intra-race legal representation. In doing so, this Article explores a number of provocative questions: Does being the same race as their clients make lawyers better legal representatives? Should lawyers of color embrace or resist ...


Pushing An End To Sanctuary Cities: Will It Happen?, Raina Bhatt Oct 2016

Pushing An End To Sanctuary Cities: Will It Happen?, Raina Bhatt

Michigan Journal of Race and Law

Sanctuary jurisdictions refer to city, town, and state governments (collectively, localities or local governments) that have passed provisions to limit their enforcement of federal immigration laws. Such local governments execute limiting provisions in order to bolster community cooperation, prevent racial discrimination, focus on local priorities for enforcement, or even to a show a local policy that differs from federal policy. The provisions are in the forms of executive orders, municipal ordinances, and state resolutions. Additionally, the scope of the provisions vary by locality: some prohibit law enforcement from asking about immigration status, while others prohibit the use of state resources ...


The Tyranny Of Small Things, Yxta Maya Murray Oct 2016

The Tyranny Of Small Things, Yxta Maya Murray

Michigan Journal of Race and Law

In this legal-literary essay, I recount a day I spent watching criminal sentencings in an Alhambra, California courthouse, highlighting the sometimes mundane, sometimes despairing, imports of those proceedings. I note that my analysis resembles that of other scholars who tackle state over-criminalization and selective law enforcement. My original addition exists in the granular attention I pay to the moment-by-moment effects of a sometimes baffling state power on poor and minority people. In this approach, I align myself with advocates of the law and literature school of thought, who believe that the study (or, in this case, practice) of literature will ...


Will We Ever Close The Gaap?: A Look Into The International Convergence Of Accounting Standards, Melanie Rosin Oct 2016

Will We Ever Close The Gaap?: A Look Into The International Convergence Of Accounting Standards, Melanie Rosin

Michigan Business & Entrepreneurial Law Review

This Note examines the trend toward the international convergence of accounting standards and then identifies the factors contributing to the process of this trend as well as the obstacles standard setters face in moving to one high quality, unified set of standards. The Note next identifies the possible outcomes for the future of convergence, including the mandatory adoption of International Financial Reporting Standards (IFRS) by the United States, the Securities & Exchange Commission’s (SEC) encouragement of the voluntary of adoption of IFRS by the United States, requiring public companies to comply with both U.S. Generally Accepted Accounting Principles (U ...


Superfund Chaos Theory: What Happens When The Lower Federal Courts Don't Follow The Supreme Court, Steven Ferrey Oct 2016

Superfund Chaos Theory: What Happens When The Lower Federal Courts Don't Follow The Supreme Court, Steven Ferrey

Michigan Journal of Environmental & Administrative Law

There is legal chaos in the national Superfund. The Supreme Court reversed decisions of eleven federal circuit courts in United States v. Atlantic Research Corp. There is no instance in modern Supreme Court history where the Court reversed every federal circuit court in the country, as it did in Atlantic Research. The Supreme Court’s reversal was through a unanimous decision. This was extraordinary: It not only reversed the entire legal interpretation of one of America’s most critical statutes, but also re-allocated billions of dollars among private parties.

The Supreme Court, when it rendered its decision, seemed to be ...


Consumer Preferences For Performance Defaults, Franklin G. Snyder, Ann M. Mirabito Oct 2016

Consumer Preferences For Performance Defaults, Franklin G. Snyder, Ann M. Mirabito

Michigan Business & Entrepreneurial Law Review

Commercial law in the United States is designed to facilitate private transactions, and thus to enforce the presumed intent of the parties, who generally are free to negotiate the terms they choose. But these contracts inevitably have gaps, both because the parties cannot anticipate every situation that might arise from their relationship, and because negotiation is not costless. When courts are faced with these gaps in a litigation context, they supply default terms to fill them. These defaults usually are set to reflect what courts believe similar parties would have agreed to if they had addressed the issue. These “majoritarian ...


Regulating Secondary Markets In The High Frequency Age: A Principled And Coordinated Approach, Michael Morelli Oct 2016

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 ...


Basel Iii And The Future Of Project Finance Funding, Tianze Ma Oct 2016

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.


Using Proactive Legal Strategies For Corporate Environmental Sustainability, Gerlinde Berger-Walliser, Paul Shrivastava, Adam Sulkowski Oct 2016

Using Proactive Legal Strategies For Corporate Environmental Sustainability, Gerlinde Berger-Walliser, Paul Shrivastava, Adam Sulkowski

Michigan Journal of Environmental & Administrative Law

We argue that proactive law can help organizations be more sustainable. Toward that end, this Article first summarizes proactive law literature as it pertains to corporate sustainability. Next, it examines a series of cases on the pivotal nexus between proactive law and corporate sustainability. It then advances novel propositions that connect proactive law to central organizational design elements. The discussion traces further implications and suggests fruitful avenues for research and ways of using proactive law for firms to become more sustainable.


Comma But Differentiated Responsibilities: Punctuation And 30 Other Ways Negotiators Have Resolved Issues In The International Climate Change Regime, Susan Biniaz Oct 2016

Comma But Differentiated Responsibilities: Punctuation And 30 Other Ways Negotiators Have Resolved Issues In The International Climate Change Regime, Susan Biniaz

Michigan Journal of Environmental & Administrative Law

International climate change negotiations have a long history of being contentious, and much has been written about the grand trade-offs that have allowed countries to reach agreement. Issues have often involved, for example, the level of ambition, differentiated treatment of Parties, and various forms of financial assistance to developing countries.

Lesser known are the smaller, largely language-based tools negotiators have used to resolve differences, sometimes finding a solution as subtle as a shift in the placement of a comma. These tools have operated in different ways. Some, such as deliberate imprecision or postponement, have “resolved” an issue by sidestepping it ...


The Deepwater Horizon Oil Spill Litigation: Proof Of Concept For The Manual For Complex Litigation And The 2015 Amendments To The Federal Rules Of Civil Procedure, John C. Cruden, Steve O'Rourke, Sarah D. Himmelhoch Oct 2016

The Deepwater Horizon Oil Spill Litigation: Proof Of Concept For The Manual For Complex Litigation And The 2015 Amendments To The Federal Rules Of Civil Procedure, John C. Cruden, Steve O'Rourke, Sarah D. Himmelhoch

Michigan Journal of Environmental & Administrative Law

On April 20, 2010, the oil rig Deepwater Horizon exploded in the Gulf of Mexico, killing eleven people and injuring seventeen more. Efforts to stop the spill failed. For the next eighty-seven days, hundreds of millions of barrels of oil poured into the Gulf. This catastrophe not only changed the lives of the families of the dead and injured and the communities who experienced the economic and social disruption of the spill – it challenged the survival of the ecosystem of the ninth largest water body in the world. The oil spill extended fifty miles offshore from Louisiana in the Gulf ...