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Articles 31 - 57 of 57
Full-Text Articles in Law
Bankruptcy Vérité, Lynn M. Lopucki, Joseph W. Doherty
Bankruptcy Vérité, Lynn M. Lopucki, Joseph W. Doherty
Michigan Law Review
In the empirical study we report in Bankruptcy Fire Sales, we compared the recoveries from the going-concern bankruptcy sales of twenty-five large, public companies with the recoveries from the bankruptcy reorganizations of thirty large, public companies. We found that, controlling for the asset size of the company and its presale or pre-reorganization earnings ("EBITDA"), reorganization recoveries were more than double sale recovenes. We are honored that Professor James J. White has chosen to comment on our study. White is an eloquent defender of the status quo, pulls no punches, and always has something interesting to say. Bankruptcy Noir is …
Addressing Default Trends In Patent-Based Section 337 Proceedings In The United States International Trade Commission, John C. Evans
Addressing Default Trends In Patent-Based Section 337 Proceedings In The United States International Trade Commission, John C. Evans
Michigan Law Review
Section 337 of the Tarif Act of 1930 empowers the United States International Trade Commission to investigate imports to ensure imports do not infringe on U.S. trademarks. The Commission permits patent, copyright, and trademark owners to notify the Commission of possibly infringing imports and to obtain exclusion orders that prevent importation of products that infringe their intellectual property. The total number of investigations increased from 1996 to 2005, yet the proportion of respondent defaults rose as well. The increase in defaults suggests there is some systemic difficulty in ensuring full participation. This Note argues that the res judicata effects of …
Patients As Consumers: Courts, Cotnracts, And The New Medical Marketplace, Mark A. Hall, Carl E. Schneider
Patients As Consumers: Courts, Cotnracts, And The New Medical Marketplace, Mark A. Hall, Carl E. Schneider
Michigan Law Review
The persistent riddle of health-care policy is how to control the costs while improving the quality of care. The riddle's oncepromising answer-managed care-has been politically ravaged, and consumerist solutions are now winning favor This Article examines the legal condition of the patient-as-consumer in today's health-care market. It finds that insurers bargain with some success for rates for the people they insure. The uninsured, however, must contract to pay whatever a provider charges and then are regularly charged prices that are several times insurers'pricesa nd providers' actual costs. Perhaps because they do not understand the healthcare market, courts generally enforce these …
The Debt Dilemma, Katherine Porter
The Debt Dilemma, Katherine Porter
Michigan Law Review
Part I describes the nature of credit card spending and explores the usefulness of Mann's comparative approach to studying credit cards. Part II evaluates Mann's findings on the overall relationships between individual credit card transactions and aggregate levels of spending, borrowing, and bankruptcy. It also briefly analyzes the relationship between his findings and policy recommendations. Part III explores data on families who refrain from credit card use and struggle with serious financial distress. Part IV revisits Mann's policy recommendations in light of this new data. I conclude that implementing credit card reform would offer families only partial, albeit valuable, protection …
On Communication, John Greenman
On Communication, John Greenman
Michigan Law Review
Everybody knows that communication is important, but nobody knows how to define it. The best scholars refer to it. Free-speech law protects it. But no one-no scholar or judge-has successfully captured it. Few have even tried. This is the first article to define communication under the law. In it, I explain why some activities-music, abstract painting, and parading-are considered communicative under the First Amendment, while others-sex, drugs, and subliminal advertising-are not. I argue that the existing theories of communication, which hold that communicative behaviors are expressive or convey ideas, fail to explain what is going on in free-speech cases. Instead, …
Scrutiny Land, Randy E. Barnett
Scrutiny Land, Randy E. Barnett
Michigan Law Review
Scrutiny Land is the place where government needs to justify to a court its restrictions on the liberties of the people. In the 1930s, the Supreme Court began limiting access to Scrutiny Land. While the New Deal Court merely shifted the burden to those challenging a law to show that a restriction of liberty is irrational, the Warren Court made the presumption of constitutionality effectively irrebuttable. After this, only one road to Scrutiny Land remained: showing that the liberty being restricted was a fundamental right. The Glucksberg Two-Step, however, limited the doctrine of fundamental rights to those (1) narrowly defined …
Death, Dying, And Domination, Marc Spindelman
Death, Dying, And Domination, Marc Spindelman
Michigan Law Review
This Article critiques conventional liberal arguments for the right to die on liberal grounds. It contends that these arguments do not go far enough to recognize and address private, and in particular structural, forms of domination. It presents an alternative that does, which is thus more respectful of true freedom in the context of death and dying, and also more consistent with liberalism. After discussing obstacles to the achievement of a right to die that encompasses freedom from both public and private domination, the Article closes with a significant reform project within bioethics that might help bring it about.
Judicial Compensation And The Definition Of Judicial Power In The Early Republic, James E. Pfander
Judicial Compensation And The Definition Of Judicial Power In The Early Republic, James E. Pfander
Michigan Law Review
Article III's provision for the compensation of federal judges has been much celebrated for the no-diminution provision that forecloses judicial pay cuts. But other features of Article Ill's compensation provision have largely escaped notice. In particular, little attention has been paid to the framers' apparent expectation that Congress would compensate federal judges with salaries alone, payable from the treasury at stated times. Article III's presumption in favor of salary-based compensation may rule out fee-based compensation, which was a common form of judicial compensation in England and the colonies but had grown controversial by the time of the framing. Among other …
A Call For The End Of The Doctrine Of Realignment, Jacob S. Sherkow
A Call For The End Of The Doctrine Of Realignment, Jacob S. Sherkow
Michigan Law Review
In Indianapolis v. Chase National Bank, 1941, the Supreme Court established the doctrine of realignment, requiring federal courts to examine the issues in dispute and realign each party as plaintiff or defendant if necessary. Due to the complete diversity requirement, realignment gave the federal courts the ability to both create and destroy diversity jurisdiction. Since 1941, the federal courts have struggled to interpret the central holding in Indianapolis, and have created several competing "tests" for realignment. This confusion has made the doctrine of realignment unworkable. Realignment along with each of the present tests-encourages jurisdictional abuses by forcing the federal …
Due Process Traditionalism, Cass R. Sunstein
Due Process Traditionalism, Cass R. Sunstein
Michigan Law Review
In important cases, the Supreme Court has limited the scope of "substantive due process" by reference to tradition, but it has yet to explain why it has done so. Due process traditionalism might be defended in several distinctive ways. The most ambitious defense draws on a set of ideas associated with Edmund Burke and Friedrich Hayek, who suggested that traditions have special credentials by virtue of their acceptance by many minds. But this defense runs into three problems. Those who have participated in a tradition may not have accepted any relevant proposition; they might suffer from a systematic bias; and …
Hacking Into International Humanitarian Law: The Principles Of Distinction And Neutrality In The Age Of Cyber Warfare, Jeffrey T.G. Kelsey
Hacking Into International Humanitarian Law: The Principles Of Distinction And Neutrality In The Age Of Cyber Warfare, Jeffrey T.G. Kelsey
Michigan Law Review
Cyber warfare is an emerging form of warfare not explicitly addressed by existing international law. While most agree that legal restrictions should apply to cyber warfare, the international community has yet to reach consensus on how international humanitarian law ("IHL") applies to this new form of conflict. After providing an overview of the global Internet structure and outlining several cyber warfare scenarios, this Note argues that violations of the traditional principles of distinction and neutrality are more likely to occur in cyber warfare than in conventional warfare. States have strong incentives to engage in prohibited cyber attacks, despite the risk …
Washington V. Glucksberg Was Tragically Wrong, Erwin Chemerinsky
Washington V. Glucksberg Was Tragically Wrong, Erwin Chemerinsky
Michigan Law Review
Properly focused, there were two questions before the Supreme Court in Washington v. Glucksberg. First, in light of all of the other non-textual rights protected by the Supreme Court under the "liberty" of the Due Process Clause, is the right to assisted death a fundamental right? Second, if so, is the prohibition of assisted death necessary to achieve a compelling interest? Presented in this way, it is clear that the Court erred in Washington v. Glucksberg. The right of a terminally ill person to end his or her life is an essential aspect of autonomy, comparable to aspects …
De-Moralized: Glucksberg In The Malaise, Steven D. Smith
De-Moralized: Glucksberg In The Malaise, Steven D. Smith
Michigan Law Review
Ten years down the road, what is the enduring significance of the "assisted suicide" cases, Washington v. Glucksberg and Vacco v. Quill? The cases reflect an unusually earnest, but nonetheless unsuccessful, attempt by the Supreme Court to grapple with a profound moral issue. So, why was the Court unable to provide a more satisfying justification for its conclusions? This Article, written for a symposium on the tenth anniversary of Glucksberg,, discusses that question. Part I examines some of the flaws in reasoning in the Glucksberg and Quill opinions and suggests that these flaws stem from the opinion writers' …
China Reexamined: The Worst Offender Or A Strong Contender?, Yang Wang
China Reexamined: The Worst Offender Or A Strong Contender?, Yang Wang
Michigan Law Review
These are the questions that Professor Randall Peerenboom sets out to answer from an American legal scholar's perspective in China Modernizes: Threat to the West or Model for the Rest. Peerenboom advances three main arguments in China Modernizes. First, to more accurately assess China's performance in its quest for modernization, one must "plac[e] China within a broader comparative context" (p. 10). Through a careful analysis of empirical data, Peerenboom observes that China outperforms many other countries at a similar income level on almost all key indicators of well-being and human rights, with the sole exception of civil and political …
Substantive Due Process After Gonzales V. Carhart, Steven G. Calabresi
Substantive Due Process After Gonzales V. Carhart, Steven G. Calabresi
Michigan Law Review
This Article begins in Part I with a doctrinal evaluation of the status of Washington v. Glucksberg ten years after that decision was handed down. Discussion begins with consideration of the Roberts Court's recent decision in Gonzales v. Carhart and then turns to the subject of Justice Kennedy's views in particular on substantive due process. In Part II, the Article goes on to consider whether the Glucksberg test for substantive due process decision making is correct in light of the original meaning of the Fourteenth Amendment. The Article concludes in Parts II and III that Glucksberg is right to confine …
In The Laboratory Of The States: The Progress Of Glucksberg'S Invitation To States To Address End-Of-Life Choice, Kathryn L. Tucker
In The Laboratory Of The States: The Progress Of Glucksberg'S Invitation To States To Address End-Of-Life Choice, Kathryn L. Tucker
Michigan Law Review
It has now been ten years since the Supreme Court handed down Glucksberg and Quill, rulings on laws that forbid "assisted suicide." In that time, normative and legal developments in the fields of law, medicine, and psychology have changed the landscape of the discourse on the choice of a mentally competent, terminally ill individual to choose to self-administer medications to bring about a peaceful death. Although the Court rejected petitioners' claims that state laws denying them the ability to end their terminal illnesses through self-administered medication violated the Constitution, it left states with the opportunity to experiment with legislation …
Physician-Assisted Suicide In Oregon: A Medical Perspective, Herbert Hendin, Kathleen Foley
Physician-Assisted Suicide In Oregon: A Medical Perspective, Herbert Hendin, Kathleen Foley
Michigan Law Review
This Article examines the Oregon Death with Dignity Act from a medical perspective. Drawing on case studies and information provided by doctors, families, and other care givers, it finds that seemingly reasonable safeguards for the care and protection of terminally ill patients written into the Oregon law are being circumvented. The problem lies primarily with the Oregon Public Health Division ("OPHD"), which is charged with monitoring the law. OPHD does not collect the information it would need to effectively monitor the law and in its actions and publications acts as the defender of the law rather than as the protector …
Limiting A Constitutional Tort Without Probably Cause: First Amendment Retaliatory Arrest After Hartman, Colin P. Watson
Limiting A Constitutional Tort Without Probably Cause: First Amendment Retaliatory Arrest After Hartman, Colin P. Watson
Michigan Law Review
Federal law provides a cause of action for individuals who are the target of adverse state action taken in retaliation for their exercise of First Amendment rights. Because these constitutional torts are "easy to allege and hard to disprove," they raise difficult questions concerning the proper balance between allowing meaningful access to the courts and protecting government agents from frivolous and vexatious litigation. In its recent decision in Hartman v. Moore, the U.S. Supreme Court tipped the scales in favor of the state in one subset of First Amendment retaliation actions by holding that plaintiffs in actions for retaliatory …
"Now For A Clean Sweep!": Smiley V. Holm, Partisan Gerrymandering, And At-Large Congressional Elections, Benedict J. Schweigert
"Now For A Clean Sweep!": Smiley V. Holm, Partisan Gerrymandering, And At-Large Congressional Elections, Benedict J. Schweigert
Michigan Law Review
The 1930 Census reduced Minnesota's apportionment in the U.S. House of Representatives from ten to nine, requiring the state to draw new congressional districts. The Republican-led state legislature passed a gerrymandered redistricting bill in an attempt to insulate its nine incumbents in the state's delegation from the party's expected loss of the statewide popular vote to the insurgent Farmer-Labor Party. When the Farmer-Labor Governor, Floyd B. Olson, vetoed the redistricting bill, the legislature claimed the bill could take effect without the governor's signature. In Smiley v. Holm, the U.S. Supreme Court decided that the veto was effective and that …