Law Commons^™

A Comment On Nielsen's And Albiston's Sample Selection Methodology, And Implications For The 'Have-Nots', Laura Nyantung Beny

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Professors Nielsen and Albiston revisit the 1978 article, The Public Interest Law Industry, by Joel F. Handler, Betsy Ginsberg, and Arthur Snow, which presents an empirical study of the public interest law ("PIL") industry in the mid-1970s. At that time, there were only eighty-six PIL firms or public interest law organizations ("PILOs") in existence in the United States. Then, PILOs tended to be small, had relatively small operating budgets, received most of their funds from private sources, and tended to focus most of their effort in a single substantive area, among other characteristics noted by Professors Nielsen and Albiston. However, …

Credit Where It Counts: Maintaining A Strong Community Reinvestment Act, Michael S. Barr

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The Community Reinvestment Act (CRA) has helped to revitalize low- and moderate-income communities and provided expanded opportunities for low- and moderate-income households. Recent regulatory steps aimed at alleviating burdens on banks and thrifts are unwarranted, and may diminish small business lending as well as community development investments and services. This policy brief explains the rationale for CRA, demonstrates its effectiveness, and argues that the recent regulatory proposals should be withdrawn or significantly modified.

Post-Admissions Educational Programming In A Post-Grutter World: A Response To Professor Brown, Evan H. Caminker

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When asked to provide commentary on another scholar's reflections on Grutterl and Gratz and affirmative action, I am usually struck by two fears. First, because so much ink has been spilled on this topic, I worry the main presenter will have nothing new and interesting to say. Today this worry has been put to rest; I am so pleased that Professor Dorothy Brown offers a number of novel and intriguing observations and, in the end, advances a novel and intriguing proposal about the role Critical Race Theory ought to play in our nation's law school classrooms. Second, for the same …

Hipaa-Cracy, Carl E. Schneider

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The Department of Health and Human Services has recently been exercising its authority under the (wittily named) "administrative simplification" part of the Health Insurance Portability and Accountability Act to regulate the confidentiality of medical records. I love the goal; I loathe the means. The benefits are obscure; the costs are onerous. Putatively, the regulations protect my autonomy; practically, they ensnarl me in red tape and hijack my money for services I dislike. HIPAA (a misnomer-HIPAA is the statute, not the regulations) is too lengthy, labile, complex, confused, unfinished, and unclear to be summarized intelligibly or reliably. (Brevis esse laboro, …

Prevention Of Double Deductions Of A Single Loss: Solutions In Search Of A Problem, Douglas A. Kahn, Jeffrey H. Kahn

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In the current tax system, a corporation is treated as a separate taxable entity. This tax system is sometimes referred to as an entity tax or a double tax system. Since a corporation is a separate and distinct entity from its owners, the shareholders, the default rule is that transfers between them are treated as realization events. Without a specific Internal Revenue Code (Code) provision providing otherwise, such transactions will also require the parties to recognize the realized gain or loss. Congress has enacted several nonrecognition corporate provisions when forcing the recognition of income could prevent changes to the form …

The Totality Of The Circumstances Of The Debtor's Financial Situation In A Post-Means Test World: Trying To Bridge The Wedoff/Culhane & White Divide, John A. E. Pottow

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Bankruptcy Judge Eugene Wedoff and Creighton Law School professors Marianne Culhane and Michaela White engage in a spirited debate over a series of law review articles about the proper scope of motions to dismiss a debtor's petition under section 707(b) of the freshly revised Bankruptcy Code. It is an interesting and provocative dialogue, with both sides advancing their respective positions persuasively. As a result, I find myself in the unfortunate position of wanting to agree with both. Since that is impossible, however, this brief article is my attempt to find a middle ground between their two positions. It does so …

Comparative Fiscal Federalism: What Can The U.S. Supreme Court And The European Court Of Justice Learn From Each Other's Tax Jurisprudence?, Reuven S. Avi-Yonah

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Last October, a group of distinguished tax experts from the European Union and the United States convened at the University of Michigan Law School for a conference on "Comparative Fiscal Federalism: Comparing the U.S. Supreme Court and European Court of Justice Tax Jurisprudence." The conference was sponsored by the Law School, the European Union Center, and Harvard Law School's Fund for Tax and Fiscal Research. Attendees from Europe included Michel Aujean, the principal tax official at the EU Commission, Servaas van Thie1, chief tax advisor to the EU Council, Michael Lang (Vienna) and Kees van Raad (Leiden), who run the …

Champagne, Feta, And Bourbon: The Spirited Debate About Geographical Indications, Justin Hughes

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Geographical Indications (GIs) are terms for foodstuffs that are associated with certain geographical areas. The law of GIs is currently in a state of flux. Legal protection for GIs mandated in the TRIPS Agreement is implemented through appellations law in France and through certification mark systems in the United States and Canada. This Article first examines the state of GIs throughout the world. The author then turns to the continuing debate between the European Union and other industrialized economies over this unique form of intellectual property. The European Union claims that increasing GI protection would aid developing countries, but, in …

Common Law, Common Sense: Fiduciary Standards And Trustee Identity, Melanie B. Leslie

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The past twenty years have seen significant changes in the law governing trustees' fiduciary duties. Though fiduciary duty law is a common law creation, recent changes are not a result of common-law evolution, but legislative action. The push to codify trust law, including fiduciary duties, has come from a few sources, including academics, who have argued that trust law should be more uniform, and banking institutions, who have pushed for legislation to ease the burdens of trust management.

In some significant respects, legislative changes to fiduciary duties have not improved upon the common law. In fact, a few important statutes …

Trust Protectors, Agency Costs, And Fiduciary Duty, Stewart E. Sterk

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First used in conjunction with offshore trusts, trust protectors have begun to appear in domestic trusts as well. In part, the protector appears designed to reduce agency cost problems associated with the trust form. But the emergence of trust protectors raises a new set of agency cost problems: first, do protectors owe any enforceable duties to the trust beneficiaries, or to anyone else; second, how, if at all, do the powers conferred on the trust protector affect the responsibilities of the trustee? Current doctrine has not yet answered these questions. And the answers may differ depending on the purposes for …

Cars And Homes In Chapter 13 After The 2005 Amendments To The Bankruptcy Code, David G. Carlson

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No abstract provided.

Teaching Adr In The Labor Field In China, Theodore J. St. Antoine

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My first visit to China, in 1994, was purely as a tourist, and came about almost by accident. In late September of that year I attended the XIV World Congress of the International Society for Labor Law and Social Security in Seoul, South Korea. In the second week of October I was scheduled to begin teaching a one-term course in American law as a visiting professor at Cambridge University in England. Despite my hazy notions of geography, I realized it made no sense to return to the United States for the intervening week. The obvious solution was to continue flying …

Refugees' Human Rights And The Challenge Of Political Will, James C. Hathaway

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Governments in all parts of the world are withdrawing in practice from meeting the legal duty to provide refugees with the protection they require. While states continue to proclaim a willingness to assist refugees as a matter of political discretion or humanitarian goodwill, many appear committed to a pattern of defensive strategies designed to avoid international legal responsibility toward involuntary migrants. Some see this shift away from a legal paradigm of refugee protection as a source of enhanced operational flexibility in the face of changed political circumstances. For refugees themselves, however, the increasingly marginal relevance of international refugee law has …

People, Times, Law School Leadership Join To Launch South Africa Program, David L. Chambers

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Professor Emeritus David Chambers launched Michigan Law’s South Africa externship program 10 years ago just as that country was emerging from apartheid and beginning to function under its new constitution, adopted in 1996. Here Chambers recalls how the externship program began. Now the Wade H. McCree Jr. Collegiate Professor Emeritus of Law, Chambers directed the program until his retirement from active teaching in 2003.

Why China?: A Startling Transformation, Nicholas C. Howson

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Another vantage point—the view from inside China— reveals a process of transformation even more startling and far-reaching than the external manifestations of China’s rise.

China's Acquisitions Abroad - Global Ambitions, Domestic Effects, Nicholas C. Howson

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In the past year or so, the world has observed with seeming trepidation what appears to be a new phenomenon-China's "stepping out" into the world economy. The move, labeled the "Going Out Strategy" by Chinese policy makers, sees China acting in the world not just as a trader of commodities and raw materials, or the provider of inexpensively-produced consumer goods for every corner of the globe, but as a driven and sophisticated acquirer of foreign assets and the equity interests in the legal entities that control such assets. The New Yorker magazine, ever topical and appropriately humorous, highlighted this attention …

Reflections On Air Capture: The Political Economy Of Active Intervention In The Global Environment; An Editorial Comment, Edward A. Parson

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When global climate change came onto domestic and international policy agendas in the late 1980s, only two types of response were initially considered: reducing emissions by improving efficiencies or switching to lower or non-carbon energy sources; and adapting to the anticipated changes. Since that time the agenda of potential responses has been progressively expanded, principally by adding various ways to intervene in the global carbon cycle or the climate to break the connection between emissions of greenhouse gases and the resultant climate changes. Three types of these “intervening” responses are now, to varying degrees, present in policy debate: biological sequestration …

On The Stickiness Of Default Rules, Omri Ben-Shahar, John A. E. Pottow

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It was once perceived, and still is commonly taught, that default rules in contract law must mimic efficient arrangements. Otherwise, these rules impose needless transaction costs upon parties who seek to opt out of them to reach more efficient positions. In settings where these costs are high, parties might find themselves "stuck" in a default, unable to reach the outcome that they prefer. The strong version of this account-that the only factor that can make an inefficient default rule stick is the direct cost of drafting a tailored provision-has been gradually reappraised. It is by now recognized that factors beyond …

Boilerplate And Economic Power In Auto Manufacturing Contracts, Omri Ben-Shahar, James J. White

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This Article is structured as follows. Part I compares the terms and conditions in the purchase orders of the Original Equipment Manufacturers (OEMs) and highlights important differences in the substance of these boilerplate provisions. It argues that these differences cannot be easily reconciled with the prediction that sophisticated parties draft the most efficient boilerplate terms. Part II examines how these forms are drafted, how their terms are negotiated, and how the OEMs guard their terms from erosion. It provides some insight on how tailoring occurs and how the internal organization of a party to a deal affects the terms that …

Land Feuds And Their Solutions: Finding International Law Beyond The Tribunal Chamber, Steven R. Ratner

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The resolution of conflicting claims to land has long stood at the heart of the project of international law. Indeed, the encounter between the order envisaged by advocates of the law of nations and what Georges Scelle called the" obsession with territory" has been a defining struggle for our field, demonstrating to some its promise and to others its futility. Much, perhaps even most, legal scholarship on this subject over the last century has focused on adjudication by ad hoc tribunals or standing courts, in which jurists have derived and invoked hallowed principles that enabled them to draw lines-across mountains, …

Relative Access To Corrective Speech: A New Test For Requiring Actual Malice, Aaron Perzanowski

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This Article reexamines the First Amendment protections provided by the public figure doctrine. It suggests that the doctrine is rooted in a set of out-dated assumptions regarding the media landscape and, as a result, has failed to adapt in a manner that accounts for our changing communications environment.

The public figure doctrine, which imposes the more rigorous actual malice standard of fault on defamation plaintiffs who enjoy greater access to mass media, was constructed in an era defined by one-to-many communications media. Newspapers, broadcasters, and traditional publishers exhausted the Court's understanding of the means of communicating with mass audiences. As …

Lost In Translation? Data Mining, National Security And The Adverse Inference Problem, Anita Ramasastry

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To the extent that we permit data mining programs to proceed, they must provide adequate due process and redress mechanisms that permit individuals to clear their names. A crucial criteria for such a mechanism is to allow access to information that was used to make adverse assessments so that errors may be corrected. While some information may have to be kept secret for national security purposes, a degree of transparency is needed when individuals are trying to protect their right to travel or access government services free from suspicion.

Part II of this essay briefly outlines the government's ability to …

Odious Debt Or Odious Payments - Using Anti-Corruption Measures To Prevent Odious Debt, Anita Ramasastry

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This article focuses on ways to stem the tide of odious payments and to stop such payments, when made, from moving offshore into foreign bank accounts. To the extent that such payments leave a country, fewer funds are available to repay sovereign debts in the event of a regime change, or to feed and shelter the population. This article focuses on emerging anti-corruption mechanisms as a means of dealing with odious payments and odious debt. It also focuses on the role of financial institutions (banks) as gatekeepers. Part I of this article focuses on the way in which banks are …

Junking The Junk Science Law: Reforming The Information Quality Act, Stephen M. Johnson

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In addition, the law contributes to the ossification of rulemaking agencies; encourages agencies to make decisions informally through guidance documents and policies rather than rules; and encourages agencies to avoid using electronic dialogues and disseminating information to the public. This Article examines the problems created by the IQA suggests repeal of the law or some reforms to address those problems.

Part II of this Article examines the shift in environmental policymaking from command and control regulation to information disclosure programs and economic based programs. It also examines the strengths limitations of information disclosure programs. Part III reviews the and the …

Passport To Toledo: Cuno, The World Trade Organization, And The European Court Of Justice, Reuven S. Avi-Yonah

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The purpose of this article is to try to place the debate about Cuno v. DaimlerChrysler in a broader perspective by connecting it with the overall discussion of harmful tax competition. It discusses two hypothetical scenarios under which the city of Toledo, Ohio, is (a) a separate country and (b) a member state of the European Union. If the first hypothetical were true, the tax incentives offered by Toledo would violate the rules of the World Trade Organization; if the second hypothetical were true, the tax incentives would also violate the Treaty of Rome, as interpreted by the European Court …

Opting Out Of Liability: The Forthcoming, Near-Total Demise Of The Modern Class Action, Myriam E. Gilles

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It is reasonable to expect that courts will demonstrate great solicitude for the recent innovation that I term "collective action waivers" - i.e., contractual provisions contained within arbitration agreements whereby consumers and others waive their rights to participate in any form of collective litigation or class arbitration. The history of mass tort class actions and the hegemonic expansion of pro-arbitration jurisprudence compel this conclusion. And, as the now-dominant economic model of contract law has moved the focus of courts from the value of consent to the value of efficiency, arbitration agreements found in all manner of shrink-wrap, scroll-text and bill-stuffer …

Size Matters (Or Should) In Copyright Law, Justin Hughes

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American copyright law has a widely recognized prohibition against the copyrighting of titles, short phrases, and single words. Despite this bar, effective advocacy has often pushed courts into recognizing independent copyright protection for smaller and smaller pieces of expression, particularly in recent cases involving valuation and taxonomy systems. Copyright case law is rife with dicta suggesting protection of short phrases and single words.

This instability in copyright law is rooted in the fiction that we deny copyright protection to short phrases and single words because they lack originality. In fact, there are many short phrases that cross copyright's low threshold …

In Defense Of The No Further Inquiry Rule: A Response To Professor John Langbein, Melanie B. Leslie

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No abstract provided.

Trusting Trustees: Fiduciary Duties And The Limits Of Default Rules, Melanie B. Leslie

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No abstract provided.

Disparity: The Normative And Empirical Failure Of The Federal Guidelines, Albert Alschuler

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No abstract provided.