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University of Michigan Law School

2016

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Articles 61 - 90 of 282

Full-Text Articles in Law

Rent-Seeking And Inter Partes Review: An Analysis Of Invalidity Assertion Entities In Patent Law, W. Michael Schuster Jul 2016

Rent-Seeking And Inter Partes Review: An Analysis Of Invalidity Assertion Entities In Patent Law, W. Michael Schuster

Michigan Telecommunications & Technology Law Review

This Essay is the first analysis of a recent entrant on the patent landscape: the Invalidity Assertion Entity (IAE). IAEs engage in rent-seeking by demanding payment from patent holders in exchange for not attempting to invalidate their patents through administrative action before the U.S. Patent and Trademark Office. The response to IAEs has been uniformly negative. Reflexive proposals have been raised in Congress (unsurprisingly) to terminate the IAE business model. In contrast to the common response to IAEs, this Essay discusses how profit-driven IAEs may generate socially beneficial externalities and why legislating to end the IAE business model is imprudent.

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Branded: Trademark Tattoos, Slave Owner Brands, And The Right To Have "Free" Skin, Shontavia Johnson Jul 2016

Branded: Trademark Tattoos, Slave Owner Brands, And The Right To Have "Free" Skin, Shontavia Johnson

Michigan Telecommunications & Technology Law Review

Though existing for several millennia in various cultures, body modification through tattooing is becoming more popular in the United States. Twenty percent of Americans have at least one tattoo, and among Millennials this number grows to almost forty percent. As the popularity of tattoos has increased in recent years, so too have questions revolving around concepts of intellectual property and the plausible limitations of any rights stemming therefrom. This Article addresses the implications, for both the tattooist and the tattooed, of using trademarked designations as tattoos. Neither the courts nor Congress have definitively answered the question of how traditional trademark …

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Plausible Pleading In Patent Suits: Predicting The Effects Of The Abrogation Of Form 18, Kyle R. Williams Jul 2016

Plausible Pleading In Patent Suits: Predicting The Effects Of The Abrogation Of Form 18, Kyle R. Williams

Michigan Telecommunications & Technology Law Review

On December 1, 2015, amendments to the Federal Rules of Civil Procedure took effect. The changes included, among other things, the abrogation of the Appendix of Forms, which contained templates for summons, complaints, answers, and other litigation documents. Prior to its abrogation, Form 18—a template for a “Complaint for Patent Infringement”—was widely utilized by patent plaintiffs in crafting infringement complaints. Form 18 was created during the Conley pleading regime, when conclusory allegations were generally sufficient to survive a motion to dismiss. Accordingly, the sample allegations in Form 18 were conclusory and bare-bones in nature. Under Conley, plaintiffs who followed this …

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A New Take On An Old Problem: Employee Misclassification In The Modern Gig-Economy, Jennifer Pinsof Jul 2016

A New Take On An Old Problem: Employee Misclassification In The Modern Gig-Economy, Jennifer Pinsof

Michigan Telecommunications & Technology Law Review

For decades, U.S. labor and employment law has used a binary employment classification system, labeling workers as either employees or independent contractors. Employees are granted a variety of legal protections, while independent contractors are not. However, the explosion of the gig-economy—which connects consumers with underutilized resources—has produced a growing number of workers who do not seem to fit into either category. Though far from traditional employees, gig-workers bear little resemblance to independent contractors. Forced to choose, however, most gig-economy companies label their workers as independent contractors, depriving them of many basic worker-protections. Gig-workers have turned to the courts, hoping to …

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A Complainant-Oriented Approach To Unconscionability And Contract Law, Nicholas Cornell Jun 2016

A Complainant-Oriented Approach To Unconscionability And Contract Law, Nicholas Cornell

Articles

This Article draws attention to a conceptual point that has been overlooked in recent discussions about the theoretical foundations of contract law. I argue that, rather than enforcing the obligations of promises, contract law concerns complaints against promissory wrongs. This conceptual distinction is easy to miss. If one assumes that complaints arise whenever an obligation has been violated, then the distinction does not seem meaningful. I show, however, that an obligation can be breached without giving rise to a valid complaint. This Article illustrates the importance of this conceptual distinction by focusing first on the doctrine of substantive unconscionability. I …

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What Bankruptcy Law Can And Cannot Do For Puerto Rico, John A. E. Pottow Jun 2016

What Bankruptcy Law Can And Cannot Do For Puerto Rico, John A. E. Pottow

Articles

This article is based on a February 2016 keynote address given at the University of Puerto Rico Law Review Symposium “Public Debt and the Future of Puerto Rico.” Thus, much of it remains written in the first person, and so the reader may imagine the joy of being in the audience. (Citations and footnotes have been inserted before publication ‒ sidebars that no reasonable person would ever have inflicted upon a live audience, even one interested in bankruptcy law. Rhetorical accuracy thus yields to scholarly pedantics.) The analysis explains how bankruptcy law not only can but will be required to …

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Mismatch And Science Desistance: Failed Arguments Against Affirmative Action, Richard O. Lempert Jun 2016

Mismatch And Science Desistance: Failed Arguments Against Affirmative Action, Richard O. Lempert

Articles

When I attended Michigan Law School in 1966, as a 2L Harvard transfer, there was only one, or perhaps two, African Americans in a student body of about 1100 students, and if there were any students of Latino heritage their presence went unnoticed. When I began teaching at Michigan in the fall of 1968, the situation had begun to change. There were eight or nine African American students in the first year class, the first cohort to be admitted under a newly approved racially sensitive affirmative action program. Since then, Michigan has graduated more than 1500 minority students, most of …

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The Uneasy Case For The Retirement Of Douglas Kahn, Jeffrey H. Kahn Jun 2016

The Uneasy Case For The Retirement Of Douglas Kahn, Jeffrey H. Kahn

Michigan Business & Entrepreneurial Law Review

In the fall semester of 1964, a young Douglas Kahn joined the faculty of the University of Michigan Law School. During the spring semester of 2016, he will teach his final course as a full-time faculty member. For the interim fifty two years, he has been a fixture of the Michigan law school community. As a tax professor, former student, and his son, I am pleased and honored to write this introduction for an edition of the Michigan Business & Entrepreneurial Law Review honoring Professor Kahn’s tenure at the University of Michigan.

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What We Talk About When We Talk About Tax Complexity, Andrea Monroe Jun 2016

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 …

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Doug Kahn: Class Master, Dennis E. Ross Jun 2016

Doug Kahn: Class Master, Dennis E. Ross

Michigan Business & Entrepreneurial Law Review

Doug has always been a bit of a departure from the professorial norm. Teaching for Doug was no accommodation to the job, no activity collateral to his true ambition, but rather an openly genuine attempt to engage his students and pull them into a subject that he obviously loved. His evident joy when in front of a class closed any distance with his students, no small feat considering the subject matter. Tax is forbidding territory for many, and Doug was justifiably known for his refusal to dumb the material down. Thus, much of his class may have been there reluctantly, …

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A Note, Robert T. Pelinka Jr. Jun 2016

A Note, Robert T. Pelinka Jr.

Michigan Business & Entrepreneurial Law Review

I find it quite meaningful that heartwarming reflections about Douglas Kahn come very naturally to me. Perhaps that, in and of itself, says something about this incredible man. For context, my time in physical proximity to Professor Kahn came during my years as a student-athlete at the University of Michigan, where I graduated from the Ross School of Business, and the Law School. I was also a member of The Michigan Wolverines Basketball Team, where I participated in three NCAA Final Fours, and earned an NCAA Championship Title. I mention these things, not to tout my own accomplishments, but rather …

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Where Does One Begin To Describe A Professor Who Literally Changed Your Life?, Kelli Turner Jun 2016

Where Does One Begin To Describe A Professor Who Literally Changed Your Life?, Kelli Turner

Michigan Business & Entrepreneurial Law Review

A bit of background to set the stage, if you’ll indulge me. Growing up in West Bloomfield, Michigan, I was never overly ambitious, nor did I have any lofty academic goals. In particular, I never had any desire to go to law school or, for that matter, to become a lawyer. I come from a family of trial attorneys and it never interested me much. I was a numbers person and didn’t enjoy a lot of deep reading and essay writing (somewhat ironic as I’m writing this for a law journal). But when I started in public accounting and developed …

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A Grateful Testimonial To Doug Kahn, Terrence G. Perris Jun 2016

A Grateful Testimonial To Doug Kahn, Terrence G. Perris

Michigan Business & Entrepreneurial Law Review

It is difficult for me to accept the reality that Doug Kahn is about to retire after a triumphant fifty-two year tenure as a professor at the University of Michigan Law School. For much of the nearly forty-seven years of my association with the Law School, first as a student and then as an alumnus, Doug has practically symbolized the Law School for me, as he went from being a revered teacher, to a valued mentor, to a dear friend, to a colleague and co-author, and, dare I say, to virtually a member of the family. But I am only …

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Doug Kahn - A Personal Appreciation, Patricia D. White Jun 2016

Doug Kahn - A Personal Appreciation, Patricia D. White

Michigan Business & Entrepreneurial Law Review

Doug Kahn has a booming laugh and an infectious enthusiasm for his subject. I am one of the legions of students who were infected by the tax bug—thanks to Doug. It is appropriate that, on the occasion of his retirement, some of us who were most infected reflect on Doug’s influence in our lives. In my case this is easy. I owe the basic contours of my career to Doug. I graduated from Michigan Law in 1974. Times were different then. I graduated never having had a female instructor. There were no women on the faculty. Only thirteen percent of …

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Doug Kahn: The Pied Piper Of Tax Law, Barrie Lawson Loeks, Burt P. Rosen Jun 2016

Doug Kahn: The Pied Piper Of Tax Law, Barrie Lawson Loeks, Burt P. Rosen

Michigan Business & Entrepreneurial Law Review

Doug Kahn’s love of tax law appears to be contagious. His wife was a tax lawyer, his son is now a tax law professor, and even his daughter in law is a tax lawyer. Doug may have caught the “tax disease” from his elder brother, who was also a leading tax lawyer. In politics, we have the Kennedys, the Bushes, and the Clintons; in the world of tax law, we have the Kahn family dynasty. One can only assume that the discussions around the family Thanksgiving table sliced and diced tax regulations and policies right along with the turkey and …

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Nfib V. Sebelius And The Individual Mandate: Thoughts On The Tax/Regulation Distinction, Kyle D. Logue Jun 2016

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 …

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Proposed Regulatory Change Of Treatment Of A Guaranteed Payment From A Partnership To A Partner, Douglas A. Kahn Jun 2016

Proposed Regulatory Change Of Treatment Of A Guaranteed Payment From A Partnership To A Partner, Douglas A. Kahn

Michigan Business & Entrepreneurial Law Review

A partnership pays no federal income tax. Instead, its income, deductions, and credits are allocated among its partners at the end of its taxable year. A partnership’s distribution of cash or property in kind to a partner will be characterized as one of three distinct transactions, each of which has its own tax consequences.

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Taxing Sales Of Depreciable Assets, James R. Hines Jr. Jun 2016

Taxing Sales Of Depreciable Assets, James R. Hines Jr.

Michigan Business & Entrepreneurial Law Review

Investors in depreciable assets used in a trade or business claim depreciation deductions following investment, and upon sale or other disposition of their assets are taxed on gain or loss equal to differences between amounts realized and adjusted basis. The taxation of these realized gains and losses is asymmetric: losses are deductible against ordinary income, whereas a portion of the gain on sales of personal property, and virtually all gains on sales of real property, are taxed at more favorable capital gain tax rates. Evidence from U.S. tax returns in 2012 indicates that the aggregate annual magnitude of the tax …

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Hanging Together: A Multilateral Approach To Taxing Multinationals, Reuven S. Avi-Yonah Jun 2016

Hanging Together: A Multilateral Approach To Taxing Multinationals, Reuven S. Avi-Yonah

Michigan Business & Entrepreneurial Law Review

The recent revelation that many multinational enterprises (MNEs) pay very little tax to the countries they operate in has led to various proposals to change the ways they are taxed. Most of these proposals, however, do not address the fundamental flaws in the international tax regime that allow companies like Apple or Starbucks to legally avoid taxation. In particular, the Organization for Economic Co-operation and Development (OECD) has been working on a Base Erosion and Profit Shifting (BEPS) project and is supposed to make recommendations to the G20, but it is not clear yet whether this will result in a …

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Predicate Offenses, Foreign Convictions, And Trusting Tribal Courts, Alexander S. Birkhold Jun 2016

Predicate Offenses, Foreign Convictions, And Trusting Tribal Courts, Alexander S. Birkhold

Michigan Law Review Online

Concerns about the reliability of criminal justice systems in foreign countries have resulted in uneven treatment of foreign convictions in U.S. courts. Federal courts, however, have historically accepted tribal court convictions as predicate offenses under recidivist statutes. But the Ninth Circuit Court of Appeals recently rejected the uncounseled convictions obtained against Michael Bryant, Jr., a serial domestic abuser, in the Northern Cheyenne Tribal Court. The court dismissed a federal indictment that had been brought against Bryant under 18 U.S.C § 117, which makes it a felony to commit domestic violence against a spouse or partner in Indian country if the …

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Marriage Is On The Decline And Cohabitation Is On The Rise: At What Point, If Ever, Should Unmarried Partners Acquire Marital Rights?, Lawrence W. Waggoner Jun 2016

Marriage Is On The Decline And Cohabitation Is On The Rise: At What Point, If Ever, Should Unmarried Partners Acquire Marital Rights?, Lawrence W. Waggoner

Articles

This article draws attention to the cultural shift in the formation of families that has been and is taking place in this country: Marriage is on the decline and cohabitation is on the rise. Part II documents this cultural shift by using recent government data to trace the decline of marriage and the rise of cohabitation. Between 2000 and 2010, the population grew by 9.71%, but the husband-and-wife households only grew by 3.7%, while the unmarried-couple households grew by 41.4%. Because of the Supreme Court's decidion in Obergefell v. Hodges, marriage is now universally available to same-sex couples. Part …

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Rescued From The Grave And Then Covered With Mud: Justice Scalia And The Unfinished Restoration Of The Confrontation Right, Richard D. Friedman Jun 2016

Rescued From The Grave And Then Covered With Mud: Justice Scalia And The Unfinished Restoration Of The Confrontation Right, Richard D. Friedman

Articles

Some years before his death, when asked which was his favorite among his opinions, Antonin Scalia named Crawford v. Washington. It was a good choice. Justice Scalia's opinion in Crawford reclaimed the Confrontation Clause of the Sixth Amendment to the Constitution and restored it to its rightful place as one of the central protections of our criminal justice system. He must have found it particularly satisfying that the opinion achieved this result by focusing on the historical meaning of the text, and that it gained the concurrence of all but two members of the Court, from all ideological positions.

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Carrot Or Stick? The Shift From Voluntary To Mandatory Disclosure Of Risk Factors, Karen K. Nelson, Adam C. Pritchard Jun 2016

Carrot Or Stick? The Shift From Voluntary To Mandatory Disclosure Of Risk Factors, Karen K. Nelson, Adam C. Pritchard

Articles

This study investigates risk factor disclosures, examining both the voluntary, incentive-based disclosure regime provided by the safe harbor provision of the Private Securities Litigation Reform Act as well as the SEC's subsequent mandate of these disclosures. Firms subject to greater litigation risk disclose more risk factors, update the language more from year to year, and use more readable language than firms with lower litigation risk. These differences in the quality of disclosure are pronounced in the voluntary disclosure regime, but converge following the SEC mandate as low-risk firms improved the quality of their risk factor disclosures. Consistent with these findings, …

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Improving Patent Quality Through Post-Grant Claim Amendments: A Comparison Of European Opposition Proceedings And U.S. Post-Grant Proceedings, Jennifer Turchyn Jun 2016

Improving Patent Quality Through Post-Grant Claim Amendments: A Comparison Of European Opposition Proceedings And U.S. Post-Grant Proceedings, Jennifer Turchyn

Michigan Law Review

Congress enacted the Leahy-Smith America Invents Act to encourage innovation, strengthen U.S. patents, and achieve greater uniformity with foreign patent systems. The America Invents Act introduced two new post-grant patent validity proceedings: inter partes review and post-grant review. The new U.S. proceedings are similar to European opposition proceedings, but there are significant differences in the extent of the patent owner’s ability to amend claims, the patent’s claim construction, the patent owner’s evidentiary burden, and the procedural requirements. The U.S. proceedings result in a very limited opportunity for amendment and a high percentage of invalidated patents. In contrast, European opposition proceedings …

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Thin Rationality Review, Jacob Gersen, Adrian Vermeule Jun 2016

Thin Rationality Review, Jacob Gersen, Adrian Vermeule

Michigan Law Review

Under the Administrative Procedure Act, courts review and set aside agency action that is “arbitrary [and] capricious.” In a common formulation of rationality review, courts must either take a “hard look” at the rationality of agency decisionmaking, or at least ensure that agencies themselves have taken a hard look. We will propose a much less demanding and intrusive interpretation of rationality review—a thin version. Under a robust range of conditions, rational agencies have good reason to decide in a manner that is inaccurate, nonrational, or arbitrary. Although this claim is seemingly paradoxical or internally inconsistent, it simply rests on an …

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A Day In Court For Data Breach Plaintiffs: Preserving Standing Based On Increased Risk Of Identity Theft After Clapper V. Amnesty International Usa, Thomas Martecchini Jun 2016

A Day In Court For Data Breach Plaintiffs: Preserving Standing Based On Increased Risk Of Identity Theft After Clapper V. Amnesty International Usa, Thomas Martecchini

Michigan Law Review

Following a data breach, consumers suffer an increased risk of identity theft because of the exposure of their personal information. Limited protection by data-breach statutes has made it difficult for consumers to seek compensation for these injuries and penalize the companies that fail to protect their information, leading consumers to bring common law claims in court. Yet courts have disagreed about whether an increased risk of identity theft qualifies as an injury-in-fact under Article III standing principles: the Seventh and Ninth Circuits have approved of increased risk standing, while the Third Circuit has rejected it. The Supreme Court has further …

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Foiled By The Banks? How A Lender's Decision May Support Or Undermine A Jurisdiction's Environmental Policies That Promote Green Buildings, Darren A. Prum May 2016

Foiled By The Banks? How A Lender's Decision May Support Or Undermine A Jurisdiction's Environmental Policies That Promote Green Buildings, Darren A. Prum

Michigan Journal of Environmental & Administrative Law

A United Nations Environmental Programme report addressing climate change states that the built environment in both emerging and developed countries accounts for more than forty percent of global energy usage and at least one third of the world’s greenhouse gas emissions. The report further asserts that the built environment offers an unsurpassed opportunity to supply cost effective, lasting, and meaningful reductions in greenhouse gas emissions. In response to this call to action, state and local governments in the U.S. have turned to a variety of policies to ensure that real estate developments within their jurisdictions further green building objectives. However, …

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Incentive Regulation, New Business Models, And The Transformation Of The Electric Power Industry, Inara Scott May 2016

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 …

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The Water-Energy-Climate Nexus Under International Law: A Central Asian Perspective, Anatole Boute May 2016

The Water-Energy-Climate Nexus Under International Law: A Central Asian Perspective, Anatole Boute

Michigan Journal of Environmental & Administrative Law

Water, energy, and climate change are intrinsically related to each other but are nonetheless subject to different international legal regimes. The fragmented nature of water, energy, and climate governance represents a challenge for the sustainable management of resources in the energy and water landscape of the 21st century. Regulatory choices in one field can potentially undermine the policy objectives pursued in the other fields. Promoting conventional and unconventional energy production for energy security purposes increases pressure on the availability of fresh water resources and contributes to climate change. Climate change exacerbates the scarcity of water resources, which leads to increasing …

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Major Questions About The "Major Questions" Doctrine, Kevin O. Leske May 2016

Major Questions About The "Major Questions" Doctrine, Kevin O. Leske

Michigan Journal of Environmental & Administrative Law

After over a decade of hibernation, the United States Supreme Court has awoken the “major questions” doctrine, which has re-emerged in an expanded form. Under the doctrine, a court will not defer to an agency’s interpretation of a statutory provision in circumstances where the case involves an issue of deep economic or political significance or where the interpretive question could effectuate an enormous and transformative expansion of the agency’s regulatory authority. While the doctrine’s re-emergence in recent Supreme Court cases has already raised concerns, a subtle shift in its application has gone unnoticed. Unlike in earlier cases, where the Court …

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