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Articles 31 - 60 of 157
Full-Text Articles in Law
Summary And Recommendations (Symposium On Designing A Federal Vat, Part I), Reuven S. Avi-Yonah
Summary And Recommendations (Symposium On Designing A Federal Vat, Part I), Reuven S. Avi-Yonah
Articles
For the past thirty-five years, the debate on fundamental tax reform in the United States has centered on whether some type of consumption tax would replace all or part of the federal income tax. In my opinion, this debate has now been decided. Given recent budgetary developments and the impending eligibility of the baby boom generation for Social Security and Medicare, we cannot dispense with the revenue from the corporate and individual income tax. Moreover, we will need huge amounts of additional revenue, and most informed observers believe that the only plausible source for such revenues is a federal value-added …
The Fault Principle As The Chameleon Of Contract Law: A Market Function Approach, Stefan Grundmann
The Fault Principle As The Chameleon Of Contract Law: A Market Function Approach, Stefan Grundmann
Michigan Law Review
This Article begins with a comparative law survey showing that all legal systems do not opt exclusively for fault liability or strict liability in contract law, but often adopt a more nuanced approach. This approach includes intermediate solutions such as reversing the burden of proof, using a market ("objective") standard of care, distinguishing between different types of contracts, and providing a "second chance" to breaching parties. Taking this starting point seriously and arguing that it is highly unlikely that all legal systems err, this Article argues that the core question is how and when each liability regime should prevail or …
The Appropriations Power And Sovereign Immunity, Paul F. Figley, Jay Tidmarsh
The Appropriations Power And Sovereign Immunity, Paul F. Figley, Jay Tidmarsh
Michigan Law Review
Discussions of sovereign immunity assume that the Constitution contains no explicit text regarding sovereign immunity. As a result, arguments about the existence-or nonexistence-of sovereign immunity begin with the English and American common-law doctrines. Exploring political, fiscal, and legal developments in England and the American colonies in the seventeenth and eighteenth centuries, this Article shows that focusing on common-law developments is misguided. The common-law approach to sovereign immunity ended in the early 1700s. The Bankers' Case (1690- 1700), which is often regarded as the first modern common-law treatment of sovereign immunity, is in fact the last in the line of English …
Canada-United States Cooperative Approaches To Shared Marine Fishery Resources: Territorial Subversion?, Ted L. Mcdorman
Canada-United States Cooperative Approaches To Shared Marine Fishery Resources: Territorial Subversion?, Ted L. Mcdorman
Michigan Journal of International Law
This Essay will focus on how Canada and the United States have both succeeded and failed in adopting cooperative approaches to managing ocean fishery resources. A critical factor that has influenced these efforts is the introduction of an international legal construct dictating that States have exclusive sovereign rights respecting all marine living resources within 200 nautical miles of their shores. Cooperative approaches to managing transboundary marine living resources between Canada and the United States are necessary for two reasons. First, in the case of marine living resources, the resource pays scant attention to human-constructed national boundaries. Put another way, marine …
Competences Of The "Union" And Sex Equality: A Comparative Look At The European Union And The United States, Barbara Havelková
Competences Of The "Union" And Sex Equality: A Comparative Look At The European Union And The United States, Barbara Havelková
Michigan Law Review First Impressions
The delivery of substantive sex equality guarantees in the European Union and the United States is substantially affected by the division of powers ("competences" in European terminology) between the constituent units and the center. This Commentary compares the technical similarities and differences between the structures of competence of the federal systems of the United States and the European Union. This Commentary also briefly sketches their impact on substantive sex equality law.
Assemblage-Oriented Ocean Resource Management: How The Marine Environment Washes Over Traditional Territorial Lines, John A. Duff
Assemblage-Oriented Ocean Resource Management: How The Marine Environment Washes Over Traditional Territorial Lines, John A. Duff
Michigan Journal of International Law
This Essay assesses challenges that arise when marine territorial boundaries do not encompass the appropriate assemblage of resources and relationships necessary for effective authority and management. It reviews the manner in which certain offshore resource uses have been "quasi-territorialized" by the application of other forms of jurisdiction. It also highlights regime-jurisdiction-private interest-oriented responses to territory-oriented challenges in the form of assemblages of authority, interests, space, and time. Given the scalar progression of the links in the discussion, the assessment moves from international principles to exercises of national sovereignty to domestic administration of space and resources to private legal interests.
The Myth And The Reality Of American Constitutional Exceptionalism, Stephen Gardbaum
The Myth And The Reality Of American Constitutional Exceptionalism, Stephen Gardbaum
Michigan Law Review
This Article critically evaluates the widely held view inside and outside the United States that American constitutional rights jurisprudence is exceptional. There are two dimensions to this perceived American exceptionalism: the content and the structure of constitutional rights. On content, the claim focuses mainly on the age, brevity, and terseness of the text and on the unusually high value attributed to free speech. On structure, the claim is primarily threefold. First, the United States has a more categorical conception of constitutional rights than other countries. Second, the United States has an exceptionally sharp public/private division in the scope of constitutional …
Corporate Taxation And International Charter Competition, Mitchell A. Kane, Edward B. Rock
Corporate Taxation And International Charter Competition, Mitchell A. Kane, Edward B. Rock
Michigan Law Review
Corporate charter competition has become an increasingly international phenomenon. The thesis of this Article is that this development in corporate law requires a greater focus on corporate tax law. We first demonstrate how a tax system's capacity to distort the international charter market depends both upon its approach to determining corporate location and upon the extent to which it taxes foreign source corporate profits. We also show, however, that it is not possible to remove all distortions through modifications to the tax system alone. We present instead two alternative methods for preserving an international charter market. The first-best solution involves …
Free Speech And The Case For Constitutional Exceptionalism, Roger P. Alford
Free Speech And The Case For Constitutional Exceptionalism, Roger P. Alford
Michigan Law Review
Embodied in the Universal Declaration of Human Rights is the evocative proposition that "[e]veryone has the right to freedom of opinion and expression." Beneath that abstraction there is anything but universal agreement. Modern democratic societies disagree on the text, content, theory, and practice of this liberty. They disagree on whether it is a privileged right or a subordinate value. They disagree on what constitutes speech and what speech is worthy of protection. They disagree on theoretical foundations, uncertain if the right is grounded in libertarian impulses, the promotion of a marketplace of ideas, or the advancement of participatory democracy. They …
The Citizenship Paradox In A Transnational Age, Cristina M. Rodríguez
The Citizenship Paradox In A Transnational Age, Cristina M. Rodríguez
Michigan Law Review
Through Americans in Waiting, Hiroshi Motomura tells us three different stories about how U.S. law and policy, over time, have framed the relationship between immigrants and the American body politic. He captures the complexity, historical contingency, and democratic urgency of that relationship by canvassing the immigration law canon and teasing from it the three frameworks that have structured immigrants' social status, their interactions with the state, and the processes of immigrant integration and naturalization. In so doing, he illuminates how popular mythologies about the assimilative capacity of the American melting pot obscure myriad political and social conflicts over how …
Scandal, Sukyandaru, And Chouwen, Benjamin L. Liebman
Scandal, Sukyandaru, And Chouwen, Benjamin L. Liebman
Michigan Law Review
This Review proceeds in four parts. Part I describes West's account of scandal in Japan and the United States and explores some of the ramifications of his account. Part II examines the formation of scandal in contemporary China. Part III compares scandal in China with West's conclusions about scandal in Japan and the United States. Part IV discusses defamation litigation in China, with a view to adding further comparative insight to West's discussion of Japanese libel suits.
Comment On Yin, Reforming The Taxation Of Foreign Direct Investment By Us Taxpayers, Reuven S. Avi-Yonah
Comment On Yin, Reforming The Taxation Of Foreign Direct Investment By Us Taxpayers, Reuven S. Avi-Yonah
Articles
In this excellent article, George Yin addresses an important proposal by the President's Advisory Panel on Federal Tax Reform. The Advisory Panel proposed that the United States should permanently switch from taxing the parent corporation of U.S. multinationals on worldwide income to a modified territorial regime under which dividends paid out of active business income would be exempt from U.S. tax.' The Joint Committee on Taxation made a similar recommendation.2
Regulatory Beneficiaries And Informal Agency Policymaking, Nina A. Mendelson
Regulatory Beneficiaries And Informal Agency Policymaking, Nina A. Mendelson
Articles
Administrative agencies frequently use guidance documents to set policy broadly and prospectively in areas ranging from Department of Education Title IX enforcement to Food and Drug Administration regulation of direct-to-consumer pharmaceutical advertising. In form, these guidances often closely resemble the policies agencies issue in ordinary notice-and-comment rulemaking. However, guidances are generally developed with little public participation and are often immune from judicial review. Nonetheless, guidances can prompt significant changes in behavior from those the agencies regulate. A number of commentators have guardedly defended the current state of affairs. Though guidances lack some important procedural safeguards, they can help agencies supervise …
The Nondischargeability Of Student Loans In Personal Bankruptcy Proceedings: The Search For A Theory, John A. E. Pottow
The Nondischargeability Of Student Loans In Personal Bankruptcy Proceedings: The Search For A Theory, John A. E. Pottow
Articles
In fiscal year 2002, approximately 5.8 million Americans borrowed $38 billion (USD) in federal student loans. This was more than triple the $11.7 billion borrowed in 1990. As a rule of thumb, tuition has been increasing at roughly double the rate of inflation in recent years. This troubling trend of accelerating tuition, coupled with the fact that real income has stagnated for men and increased only modestly for women over the past two decades, means that more and more students are going to need to turn to borrowed money to finance their degrees absent a radical restructuring of the postsecondary …
Same Old, Same Old: Scientific Evidence Past And Present, Edward K. Cheng
Same Old, Same Old: Scientific Evidence Past And Present, Edward K. Cheng
Michigan Law Review
For over twenty years, and particularly since the Supreme Court's Daubert decision in 1993, much ink has been spilled debating the problem of scientific evidence in the courts. Are jurors or, in the alternative, judges qualified to assess scientific reliability? Do courts really need to be concerned about "junk science"? What mechanisms can promote better decision making in scientific cases? Even a cursory scan of the literature shows the recent explosion of interest in these issues, precipitating new treatises, hundreds of articles, and countless conferences for judges, practitioners, and academics. To this literature, Professor Tal Golan adds Laws of Men …
Anti-Terrorist Finance In The United Kingdom And United States, Laura K. Donohue
Anti-Terrorist Finance In The United Kingdom And United States, Laura K. Donohue
Michigan Journal of International Law
This Article adopts a two-tiered approach: it provides a detailed, historical account of anti-terrorist finance initiatives in the United Kingdom and United States-two states driving global norms in this area. It then proceeds to a critique of these laws. The analysis assumes-and accepts-the goals of the two states in adopting these provisions. It questions how well the measures achieve their aim. Specifically, it highlights how the transfer of money laundering tools undermines the effectiveness of the states' counterterrorist efforts-flooding the systems with suspicious activity reports, driving money out of the regulated sector, and using inappropriate metrics to gauge success. This …
Rebus Sic Stantibus: Notification Of Consular Rights After Medellin, Aaron A. Ostrovsky, Brandon E. Reavis
Rebus Sic Stantibus: Notification Of Consular Rights After Medellin, Aaron A. Ostrovsky, Brandon E. Reavis
Michigan Journal of International Law
This Comment examines, through principles of public international law and U.S. jurisprudence, the relationship between U.S. courts and the ICJ to determine if the former are indeed bound by the latter's decisions, proprio motu, or if instead some Executive action is required to make the decisions binding on the judiciary. Part of this examination will entail a discussion of the potential for dialogue between the ICJ and U.S. courts to "pierce the veil of sovereignty" that traditionally conceals the inner workings of sovereign states from the scrutiny of international tribunals. Based on this assessment, the Comment then addresses how …
The Three Goals Of Taxation, Reuven S. Avi-Yonah
The Three Goals Of Taxation, Reuven S. Avi-Yonah
Articles
The current debate in the United States about whether the income tax should be replaced with a consumption tax has been waged on the traditional grounds for evaluating tax policy: efficiency, equity, and administrability. For example, Joseph Bankman and David Weisbach recently argued for the superiority of an ideal consumption tax over an ideal income tax on three grounds: First, that the consumption tax is more efficient because it does not discriminate between current and future consumption,' while both income and consumption taxes have identical effect on work effort. Second, that the consumption tax is at least as good at …
The Report Of The President's Advisory Panel On Federal Tax Reform: A Critical Assessment And A Proposal, Reuven S. Avi-Yonah
The Report Of The President's Advisory Panel On Federal Tax Reform: A Critical Assessment And A Proposal, Reuven S. Avi-Yonah
Articles
ON November 1, 2005, The President's Advisory Panel on Federal Tax Reform ("Panel") submitted its report ("Report") to the Secretary of the Treasury.1 At 272 pages, this is the most important and wide-ranging plan to reform the United States federal tax system since Blueprints for Basic Tax Reform (1977).2 While prospects for immediate action appear dim, the Report will no doubt be the basis of discussion of federal tax reform for a long time to come.
All Of A Piece Throughout: The Four Ages Of U.S. International Taxation, Reuven S. Avi-Yonah
All Of A Piece Throughout: The Four Ages Of U.S. International Taxation, Reuven S. Avi-Yonah
Articles
This paper divides up the history of U.S. international taxation into four periods, on the basis of what was the basic theoretical principle underlying the major legislative enactments made in each period. The first period lasted from the adoption of the Foreign Tax Credit in 1918 to the end of the Eisenhower Administration, and was dominated by the concept of the right to tax as flowing from benefits conferred by the taxing state. The second period lasted from 1960 until the end of the Carter Administration, and was dominated by the concept of capital export neutrality and an emphasis on …
Chevron And Preemption, Nina A. Mendelson
Chevron And Preemption, Nina A. Mendelson
Articles
This Article takes a more functional approach to reconciling preemption doctrine with Chevron when Congress has not expressly delegated preemptive authority to an agency, an approach that considers a variety of concerns, including political accountability, institutional competence, and related concerns. The Article assumes that federalism values, such as ensuring core state regulatory authority and autonomy, are important and can be protected through political processes." It argues that although Congress's "regional structure" might hint at great sensitivity to state concerns, it actually may lead Congress to undervalue some federalism benefits that are more national in nature. Meanwhile, executive agencies generally have …
Agency Burrowing: Entrenching Policies And Personnel Before A New President Arrives, Nina A. Mendelson
Agency Burrowing: Entrenching Policies And Personnel Before A New President Arrives, Nina A. Mendelson
Articles
This Article examines executive branch agency actions concluded just before a new President takes office, such as "midnight" rulemaking and late-term hiring and promotion, which Professor Mendelson collectively refers to as "agency burrowing." Congress, the media, and some commentators have portrayed such activities as unsavory power grabs that undermine the President-elect's ability to direct the functions of administrative agencies. Rather than dismissing agency burrowing out of hand, however, Professor Mendelson argues for a more nuanced approach. In some cases, burrowing can make positive contributions to the democratic responsiveness of agencies, agency accountability, and the "rule of law." A fuller analysis …
An Empirically Based Comparison Of American And European Regulatory Approaches To Police Investigation, Christopher Slobogin
An Empirically Based Comparison Of American And European Regulatory Approaches To Police Investigation, Christopher Slobogin
Michigan Journal of International Law
This article takes a comparative and empirical look at two of the most significant methods of police investigation: searches for and seizures of tangible evidence and interrogation of suspects. It first compares American doctrine regulating these investigative tools with the analogous rules predominant in Europe. It then discusses research on the American system that sheds light on the relative advantages and disadvantages of the two regulatory regimes.
Extraditing Israeli Citizens To The United States- Extradition And Citizenship Dilemmas, Yaffa Zilbershats
Extraditing Israeli Citizens To The United States- Extradition And Citizenship Dilemmas, Yaffa Zilbershats
Michigan Journal of International Law
This article will address the problems of extraditing Israeli citizens to the United States from both a normative and substantive perspective. The analysis will lead to a conclusion that the United States and Israel should adopt an amendment to the United States-Israel extradition treaty based on the new provision of the Israeli law regarding the extradition of its citizens. This analysis will also support general conclusions regarding the definitions of extradition and citizenship.
State Immunity Waivers For Suits By The United States, Evan H. Caminker
State Immunity Waivers For Suits By The United States, Evan H. Caminker
Articles
The Supreme Court closed this millennium with a virtual celebration of state sovereignty, protecting state authority from the reach of congressional power in several significant ways. In a pair of cases, Seminole Tribe v. Florida1 and Alden v. Maine,2 the Court held that states enjoy a constitutional immunity from being sued without their consent. In Seminole Tribe, the Court opined that "the background principle of state sovereign immunity embodied in the Eleventh Amendment"3 protects states from unconsented suits in federal court. In Alden, the Court held that this principle is not merely embodied in the Eleventh Amendment but rather is …
Anchors And Flotsam: Is Evidence Law 'Adrift'?, Richard D. Friedman
Anchors And Flotsam: Is Evidence Law 'Adrift'?, Richard D. Friedman
Reviews
Difference, as well as distance, yields perspective. A comparison of legal systems may search for common underlying principles, or for lessons that one system might learn from another. But it may also be aimed primarily at illuminating one system by light shed from another. This is the aim of Evidence Law Adrift, Mirjan Damagka's elegant study of the common law system of evidence, and he is ideally suited for the task. Born and schooled in Continental Europe, he has lived and taught in the United States for twenty-five years. His relation to the common law system of evidence is, I …
Cooperation, Conflict, Or Coercion: Using Empirical Evidence To Assess Labor-Management Cooperation, Ellen J. Dannin
Cooperation, Conflict, Or Coercion: Using Empirical Evidence To Assess Labor-Management Cooperation, Ellen J. Dannin
Michigan Journal of International Law
Since the 1980s there has been strong interest in labor-management cooperation. That interest was reflected even in government attention, for example, through projects by the U.S. Department of Labor's Bureau of Labor-Management Cooperation. Under the leadership of Undersecretary Stephen Schlossberg, the Bureau's "Laws Project" examined the impact of labor law on labor-management cooperation. The Dunlop Commission issued a report strongly in favor of labor-management cooperation, and National Labor Relations Board (NLRB) Chair William B. Gould has spoken favorably of it. More recently, the government issued a report on state and local initiatives in this area.
The Challenge Of Asian Law, Whitmore Gray
The Challenge Of Asian Law, Whitmore Gray
Articles
Several years ago, when U.S. trade across the Pacific finally surpassed that across the Atlantic, a small group of U.S. lawyers were already responding to the challenge of representing clients in transactions in Asia. While few had had the opportunity to take courses dealing with Asian law during their law school years, many entered the field because of undergraduate language and area studies courses. A few had taught courses dealing with Asia before beginning their law studies.
Caught Between Rocks And Hard Places: The Plight Of Reinsurance Intermediaries Under U.S. And English Law, Stephen W. Schwab, Peter G. Gallanis, David E. Mendelsohn, Bradley V. Ritter
Caught Between Rocks And Hard Places: The Plight Of Reinsurance Intermediaries Under U.S. And English Law, Stephen W. Schwab, Peter G. Gallanis, David E. Mendelsohn, Bradley V. Ritter
Michigan Journal of International Law
Accordingly, Part I of this article provides a review of the role intermediaries have played in the recent spate of insurance company insolvencies and an overview of intermediary rights and duties. Part II then progresses to a discussion of English intermediary law, analyzing how the general English rules apply to intermediaries when a cedent or reinsurer becomes insolvent. Part III addresses the same issues under U.S. law, tracing the most recent statutory developments from their cause and considering their effect on reinsurance transactions. This article concludes with a discussion of how English and U.S. law interact in reinsurance transactions, pointing …
Apple Of Gold: Constitutionalism In Israel And The United States, Cynthia A.M. Stroman
Apple Of Gold: Constitutionalism In Israel And The United States, Cynthia A.M. Stroman
Michigan Law Review
A Review of Apple of Gold: Constitutionalism in Israel and the United States by Gary Jeffrey Jacobsohn