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University of Michigan Law School

2008

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Articles 91 - 120 of 252

Full-Text Articles in Law

The Justiciability Of Eligibility: May Courts Decide Who Can Be President?, Daniel P. Tokaji Jan 2008

The Justiciability Of Eligibility: May Courts Decide Who Can Be President?, Daniel P. Tokaji

Michigan Law Review First Impressions

The 2008 election cycle has been a busy one for legal disputes over the qualifications of presidential candidates, with federal cases having been filed to challenge both major candidates’ eligibility under the “natural born Citizen” clause. These cases unquestionably present vital questions of constitutional law, touching on matters of self-evident national importance. It is doubtful, however, that they are justiciable in lower federal courts. Standing requirements and the political question doctrine make it unlikely that a federal court will reach the merits in cases of the type filed to date.

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Originalism And The Natural Born Citizen Clause, Lawrence B. Solum Jan 2008

Originalism And The Natural Born Citizen Clause, Lawrence B. Solum

Michigan Law Review First Impressions

The enigmatic phrase “natural born citizen” poses a series of problems for contemporary originalism. New Originalists, like Justice Scalia, focus on the original public meaning of the constitutional text. The notion of a “natural born citizen” was likely a term of art derived from the idea of a “natural born subject” in English law—a category that most likely did not extend to persons, like Senator McCain, who were born outside sovereign territory. But the Constitution speaks of “citizens” and not “subjects,” introducing uncertainties and ambiguities that might (or might not) make McCain eligible for the presidency.

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The Environmental Effects Of Cruelty To Agricultural Animals, Kyle H. Landis-Marinello Jan 2008

The Environmental Effects Of Cruelty To Agricultural Animals, Kyle H. Landis-Marinello

Michigan Law Review First Impressions

Laws criminalizing animal abuse should apply to the agricultural industry. When we exempt the agricultural industry from these laws, factory farms increase production to unnaturally high levels. This increased production causes devastating environmental effects, such as climate change, water shortages, and the loss of topsoil. In light of these effects, the law needs to do much more to regulate the agricultural industry, and the first step should be to criminalize cruelty to agricultural animals. This would force the industry to slow down production to more natural levels that are much less harmful to the environment.

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One Bad Day: Thoughts On The Difference Between Animal Rights And Animal Welfare, Neil D. Hamilton Jan 2008

One Bad Day: Thoughts On The Difference Between Animal Rights And Animal Welfare, Neil D. Hamilton

Michigan Law Review First Impressions

The lawsuit pitting the New Jersey Society for the Prevention of Cruelty to Animals against the New Jersey Department of Agriculture brings into sharp focus the issue of animal rights versus animal welfare that has been dividing animal activists, farmers, and society for decades. On one side are proponents of animal rights—a set of rights articulated by humans but granted to animals to govern how we treat them. For many believers this includes the right not to be owned and certainly not to be eaten. On the other side are proponents of animal welfare—also a set of human derived standards …

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"It's The Right Thing To Do": Why The Animal Agriculture Industry Should Not Oppose Science-Based Regulations Protecting The Welfare Of Animals Raised For Food, Angela J. Geiman Jan 2008

"It's The Right Thing To Do": Why The Animal Agriculture Industry Should Not Oppose Science-Based Regulations Protecting The Welfare Of Animals Raised For Food, Angela J. Geiman

Michigan Law Review First Impressions

Since the beginning of history, people have used farm animals to assist with their work and to provide a source of food. These agricultural pursuits were not questioned; rather, they were a widely-accepted way of life. In fact, many people still say that the very purpose of livestock on this Earth is to provide these resources for mankind. As for the proper way to treat our livestock, we commonly hear farmers and livestock producers make comments like, “If we take care of the animals, they will take care of us,” and, “We treat our animals well because that’s just good …

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A Case Study On Cruelty To Farm Animals: Lessons Learned From The Hallmark Meat Packing Case, Nancy Perry, Peter Brandt Jan 2008

A Case Study On Cruelty To Farm Animals: Lessons Learned From The Hallmark Meat Packing Case, Nancy Perry, Peter Brandt

Michigan Law Review First Impressions

“I need the public to understand that my office takes all cases involving animal cruelty very seriously . . . [and i]t doesn’t matter whether the mistreated animal is a beloved family pet or a cow at a slaughterhouse. Unnecessary cruelty will not be tolerated and will be prosecuted to the fullest extent allowed by law.” San Bernardino County District Attorney Michael A. Ramos (February 15, 2008) One morning in January 2008, images of horrific animal cruelty were blasted by Internet, television, and print media throughout the country. The story was all the more shocking in that the animals at …

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Equal Voice By Half Measures, John Mark Hansen Jan 2008

Equal Voice By Half Measures, John Mark Hansen

Michigan Law Review First Impressions

In democratic theory, the ballot is the most perfect expression of the democratic commitment to the moral equality of persons. Every citizen, whether old or young, rich or poor, sophisticated or simple, enjoys the same endowment in an election: a single vote. The ballot not only gives citizens their voice in government, it also makes their voices equal. In practice, however, democracies have erected all sorts of impediments to the ideal of equal voice, such as restrictions on suffrage, legislative malapportionments, and discriminatory gerrymanders. Among the most egregious impediments, however, are surely the systems of indirect election purported to filter …

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The Good, The Bad, And The Ugly: Three Proposals To Introduce The Nationwide Popular Vote In U.S. Presidential Elections, Alexander S. Belenky Jan 2008

The Good, The Bad, And The Ugly: Three Proposals To Introduce The Nationwide Popular Vote In U.S. Presidential Elections, Alexander S. Belenky

Michigan Law Review First Impressions

The idea of reforming the Electoral College recurs each time a presidential election nears. Polls show that an overwhelming majority of respondents support abolishing the Electoral College in favor of direct popular election of the President. Yet, it is doubtful whether these polls really imply that such a move would be best for the country. Despite the seeming simplicity of direct popular presidential election, its introduction in the United States—a country in which the clear separation of powers between the states and the federal government has existed for more than two centuries—would have hidden drawbacks that the media and pollsters …

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Reforming The Electorial College One State At A Time, Thomas W. Hiltachk Jan 2008

Reforming The Electorial College One State At A Time, Thomas W. Hiltachk

Michigan Law Review First Impressions

The genius of our United States Constitution is the delicate balance our Founding Fathers struck between empowering a national government and preserving the inherent sovereignty of individual states. Any proposed governmental reform that would interfere with that balance should be looked upon skeptically. Recent proposals to do away with the Electoral College in favor of a national popular vote for President deserve such careful examination. But that does not mean that reform is out of reach. We have only to look to the Constitution itself to find that the answer lies in the self-interest of each state. I am an …

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An Unsafe Harbor: Recounts, Contests, And The Electoral College, Daniel P. Tokaji Jan 2008

An Unsafe Harbor: Recounts, Contests, And The Electoral College, Daniel P. Tokaji

Michigan Law Review First Impressions

Although recent proposals for modifying the Electoral College process have focused mainly on how electoral votes are assigned, another problem with the current system has received less attention: the timetable for resolving post-election disputes over electors. Under 3 U.S.C. § 5, the so-called “safe harbor” provision of federal law, a state can be assured of having its chosen slate of electors recognized only if post-election disputes are resolved within thirty-five days of Election Day. As a practical matter, this provision doesn’t provide states enough time to complete recount and contest proceedings in the event of a close, contested election. This …

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Awarding Presidential Electors By Congressional District: Wrong For California, Wrong For The Nation, Sam Hirsch Jan 2008

Awarding Presidential Electors By Congressional District: Wrong For California, Wrong For The Nation, Sam Hirsch

Michigan Law Review First Impressions

The unfairness of the proposed California Presidential Election Reform Act is obvious: in a close election, the Act virtually assures that California’s fifty-five electoral votes, which would be expected to go entirely to the Democratic presidential candidate under the traditional statewide-winner-takeall system, will instead be split, with more than a third of them going to the Republican candidate. Implementing this “reform” in the nation’s largest Democratic state, but not in any of the large Republican states (like Texas), is roughly the equivalent of handing over to the Republicans the state of Illinois. What is less obvious is that the Act …

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The Virtues Of Medicare, Jill R. Horwitz Jan 2008

The Virtues Of Medicare, Jill R. Horwitz

Reviews

Most of us look forward to a heaven where people don't get sick. But if they do, health care would be traded among fully informed patients and providers in perfectly competitive and frictionless markets. In that perfect world, sick citizens simply shop for doctors the way they shop for other consumer goods. The better doctors, like the most elegant hotel rooms and fanciest cars, would cost more than inferior doctors. Patients would consult their utility meters and, with appropriate attention to discounting over an infinite lifetime, choose accordingly. After each treatment, the patients would know the quality of their outcome …

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An Opt-Out Home Mortgage System, Michael S. Barr, Sendhil Mullainathan, Eldar Shafir Jan 2008

An Opt-Out Home Mortgage System, Michael S. Barr, Sendhil Mullainathan, Eldar Shafir

Other Publications

The current housing and financial crisis has led to significant congressional and executive action to manage the crisis and stem the harms from it, but the fundamental problems that caused the crisis remain largely unaddressed. The central features of the industrial organization of the mortgage market with its misaligned incentives, and the core psychological and behavioral phenomena that drive household financial decisionmaking remain. While the causes of the mortgage meltdown are myriad and the solutions likely to be multifaceted, a central problem that led to the crisis was that brokers and lenders offered loans that looked much less expensive and …

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Protocol For Attorneys Representing Parents In Child Protective Proceedings, Frank E. Vandervort, Vivek S. Sankaran Jan 2008

Protocol For Attorneys Representing Parents In Child Protective Proceedings, Frank E. Vandervort, Vivek S. Sankaran

Other Publications

This protocol is intended to guide attorneys through the strategic decisions they will need to make while representing parents in child protective cases. The protocol does not provide a comprehensive action-step checklist. Parents’ attorneys can find that kind of guidance in other resources, including the “How-To-Kit: Representing Parents in Child Protective Proceedings” by the Institute of Continuing Legal Education; “Guidelines for Achieving Permanency in Child Protection Proceedings” by Children’s Charter of the Courts of Michigan; and the American Bar Association’s “Standards of Practice for Attorneys Representing Parents in Abuse and Neglect Cases.”1 For its part, this protocol delves more substantively …

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Improving Post-Approval Risk Surveillance For Drugs: Active Post-Market Risk Identification, Matthew Gordon Jan 2008

Improving Post-Approval Risk Surveillance For Drugs: Active Post-Market Risk Identification, Matthew Gordon

Michigan Telecommunications & Technology Law Review

Pre-approval clinical trials cannot possibly ensure that a drug will not have disastrous side effects once it arrives on the market. Post-approval drug safety data gathering was put in place to address this problem, but as implemented, it has not proven to be as effective as hoped. Congress recently overhauled the legislation regarding post-approval drug risk identification, and in doing so made a deliberate decision to put much of the burden of post-approval drug surveillance on the FDA through data mining. Further, the legislation gave the FDA the power to require post-approval clinical trials from drug makers only in limited …

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Royalty Rate-Setting For Webcasters: A Royal(Ty) Mess, Amy Duvall Jan 2008

Royalty Rate-Setting For Webcasters: A Royal(Ty) Mess, Amy Duvall

Michigan Telecommunications & Technology Law Review

The Internet is a haven for free expression. Not only are content-based restrictions disfavored, but "[the internet] provides relatively unlimited, low-cost capacity for communication of all kinds." Almost half of all Americans have listened to music online, whether rebroadcasts of terrestrial radio or to find niche music that terrestrial radio simply does not play, and 13 percent tune in regularly. Webcasters provide a unique outlet for new artists; however, if royalty rates are set too high for all but the largest webcasters to stay in business, the variety of music available will be severely restricted. Musical diversity stimulates the generation …

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Making Much Ado About Theory: The Chinese Trademark Law, Leah Chan Grinvald Jan 2008

Making Much Ado About Theory: The Chinese Trademark Law, Leah Chan Grinvald

Michigan Telecommunications & Technology Law Review

Although the United States has had an active hand in the implementation of trademark law in China over the past century, the same frustrations that marked the turn of the twentieth century are reflected in the twenty-first century. This Article posits that one of the reasons that the United States has not seen the desired level of progress in China's protection of trademarks lies in the imposition of an American theory of trademarks, which has inhibited U.S. reform efforts in China to date. This imposition is understandable, as little thought has been given to the Chinese theoretical justification for their …

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Synopsis Of The Extraterritorial Protection Afforded By Section 337 As Compared To The Patent Act , Neil F. Duchez Jan 2008

Synopsis Of The Extraterritorial Protection Afforded By Section 337 As Compared To The Patent Act , Neil F. Duchez

Michigan Telecommunications & Technology Law Review

Unlike Section 271 of the Patent Act of 1952, "[s]ection 337 is a trade law which is not necessarily limited by the principles of domestic patent law." When examined more closely, Section 337 of the U.S. Tariff Act of 1930 in effect provides a patentee more protection from infringing foreign activity than Section 271. Accordingly, in many situations involving foreign acts, it may be more advantageous to enforce a U.S. patent at the International Trade Commission ("Commission") as opposed to a federal district court. The analysis discussed infra more closely examines those situations and provides the history behind the intended …

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Hiding Behind Nationality: The Temporary Presence Exception And Patent Infringement Avoidance, J. Jonas Anderson Jan 2008

Hiding Behind Nationality: The Temporary Presence Exception And Patent Infringement Avoidance, J. Jonas Anderson

Michigan Telecommunications & Technology Law Review

This Article argues that the temporary presence exception was not designed to allow conveyance owners the ability to select the most optimal patent system under which to be subject. It also examines the ramifications of the temporary presence exception on international commerce and concludes that increased use of the exception may result in reduced values for patents relating to international conveyances, reduced incentives to invest in and develop technologies in international conveyances, and a decrease in the quality of various domestic patent systems worldwide. Finally, this Article proposes a solution to these problems. The temporary presence exception has received some …

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Can We Dicker Online Or Is Traditional Contract Formation Really Dying - Rethinking Traditional Contract Formation For The World Wide Web, Tatiana Melnik Jan 2008

Can We Dicker Online Or Is Traditional Contract Formation Really Dying - Rethinking Traditional Contract Formation For The World Wide Web, Tatiana Melnik

Michigan Telecommunications & Technology Law Review

When most people imagine the process of contract formation, they picture two people sitting down and negotiating, arguing about particular contract provisions and particular contract terminology, and maybe even involving attorneys to draft an "official" version of the contract. Regardless of the specific details people imagine, traditional contract formation generally involves some form of negotiation between two parties where they choose one set of terms over another. In modern society, however, such negotiation happens very rarely. People enter into many contracts on a daily basis, for example, when they purchase goods or services online. Online purchases are governed by computers, …

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The General Public License Version 3.0: Making Or Breaking The Foss Movement, Clark D. Asay Jan 2008

The General Public License Version 3.0: Making Or Breaking The Foss Movement, Clark D. Asay

Michigan Telecommunications & Technology Law Review

Free and open source software (FOSS) is a big deal. FOSS has become an undeniably important element for businesses and the global economy in general, as companies increasingly use it internally and attempt to monetize it. Governments have even gotten into the act, as a recent study notes that FOSS plays a critical role in the US Department of Defense's systems. Others have pushed for the adoption of FOSS to help third-world countries develop. Given many of its technological and developmental advantages, FOSS's use, adoption, and development are only projected to grow.[...] The FSF created the most popular version of …

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The Claim Construction Effect, Lee Petherbridge Jan 2008

The Claim Construction Effect, Lee Petherbridge

Michigan Telecommunications & Technology Law Review

Claim construction refers to the task of construing, or interpreting, the words of patents' claims to establish the metes and bounds of a patent. Theoretically, the task of claim construction serves to operationalize the concept of "invention," which lies at the heart of the U.S. patent system.[...] Rather than focusing on the set of cases in which the Federal Circuit addresses claim construction, this study focuses on a set of cases defined by a different patent doctrine. The basic idea is to explore the impact of claim construction on other areas of patent law.[...] The hypothesis of the claim construction …

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E-Contract Doctrine 2.0: Standard Form Contracting In The Age Of Online User Participation , Shmuel I. Becher, Tal Z. Zarsky Jan 2008

E-Contract Doctrine 2.0: Standard Form Contracting In The Age Of Online User Participation , Shmuel I. Becher, Tal Z. Zarsky

Michigan Telecommunications & Technology Law Review

The growing popularity of e-commerce transactions revives the perennial question of consumer contract law: should non-salient provisions of consumer standard form contracts be enforced? With the focus presently on an ex-ante analysis, scholars debate whether consumers can and should read standardized terms at the time of contracting. In today's information age, such a focus might be misguided. The online realm furnishes various tools, so-called "Web 2.0" applications, which encourage the flow of information from experienced to prospective consumers. This Article, therefore, reframes the analysis of online consumer contracts while taking into account this new flow of information. In doing so, …

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When Mobile Phones Are Rfid-Equipped - Finding E.U.-U.S. Solutions To Protect Consumer Privacy And Facilitate Mobile Commerce, Nancy J. King Jan 2008

When Mobile Phones Are Rfid-Equipped - Finding E.U.-U.S. Solutions To Protect Consumer Privacy And Facilitate Mobile Commerce, Nancy J. King

Michigan Telecommunications & Technology Law Review

New mobile phones have been designed to include delivery of mobile advertising and other useful location-based services, but have they also been designed to protect consumers' privacy? One of the key enabling technologies for these new types of phones and new mobile services is Radio Frequency Identification (RFID), a wireless communication technology that enables the unique identification of tagged objects. In the case of RFID-enabled mobile phones, the personal nature of the devices makes it very likely that, by locating a phone, businesses will also be able to locate its owner. Consumers are currently testing new RFID-enabled phones around the …

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A New Frontier Or Merely A New Medium - An Analysis Of The Ethics Of Blawgs, Justin Krypel Jan 2008

A New Frontier Or Merely A New Medium - An Analysis Of The Ethics Of Blawgs, Justin Krypel

Michigan Telecommunications & Technology Law Review

The purpose of this Note is to investigate those rules of ethics which interact with attorney blogs, placing a special emphasis on advertising rules. The central finding is that, under the Supreme Court's current First Amendment jurisprudence, attorney blogs (or, more cleverly, "blawgs") are not subject to regulation by the ethics codes of the ABA or the various state bars. Furthermore, if the Supreme Court were to, for some reason, construe blawgs as falling outside of First Amendment protection, evidence suggests that regulating this new medium would be neither desirable nor effective. Part II outlines the historical framework which underlies …

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Research Tool Patents After Integra V. Merck - Have They Reached A Safe Harbor, Wolrad Prinz Jan 2008

Research Tool Patents After Integra V. Merck - Have They Reached A Safe Harbor, Wolrad Prinz

Michigan Telecommunications & Technology Law Review

The saga surrounding the Integra v. Merck cases has rekindled a heated debate about the proper scope of both common law exemption and the safe harbor provision, causing significant concern for owners of research tool patents. This Article will argue that the next judicial decision addressing the question of research tool patents should clarify that they are in a safe harbor because none of the two exemptions from infringement referenced above extends to the use of research tools in experiments in order to preserve the necessary incentives for their creation in the first place. Allowing access to research tools under …

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Do Delaware Ceos Get Fired?, Murali Jagannathan, Adam C. Pritchard Jan 2008

Do Delaware Ceos Get Fired?, Murali Jagannathan, Adam C. Pritchard

Law & Economics Working Papers Archive: 2003-2009

Critics have charged that state competition in corporate law, which Delaware dominates, leads to a “race to the bottom” making management unaccountable. One metric of management accountability is forced CEO turnover, which we use to test the race to the bottom hypothesis. We compare California firms that choose to incorporate in California – the state with arguably the most restrictive corporate law rules – with those that incorporate in Delaware. We show that aspects of Delaware law attract firms that plan to grow through merger or acquisition and are vulnerable to shareholder lawsuits. We also document differences in corporate governance …

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Is A Burrito A Sandwich? Exploring Race, Class, And Culture In Contracts, Marjorie Florestal Jan 2008

Is A Burrito A Sandwich? Exploring Race, Class, And Culture In Contracts, Marjorie Florestal

Michigan Journal of Race and Law

A superior court in Worcester, Massachusetts, recently determined that a burrito is not a sandwich. Surprisingly, the decision sparked a firestorm of media attention. Worcester, Massachusetts, is hardly the pinnacle of the culinary arts-so why all the interest in the musings of one lone judge on the nature of burritos and sandwiches? Closer inspection revealed the allure of this otherwise peculiar case: Potentially thousands of dollars turned on the interpretation of a single word in a single clause of a commercial contract. Judge Locke based his decision on "common sense" and a single definition of sandwich-"two thin pieces of bread, …

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From Pedagogical Sociology To Constitutional Adjudication: The Meaning Of Desegregation In Social Science Research And Law, Anne Richardson Oakes Jan 2008

From Pedagogical Sociology To Constitutional Adjudication: The Meaning Of Desegregation In Social Science Research And Law, Anne Richardson Oakes

Michigan Journal of Race and Law

In the United States following the case of Brown v. Board of Education (1954) federal judges with responsibility for public school desegregation but no expertise in education or schools management appointed experts from the social sciences to act as court advisors. In Boston, MA, educational sociologists helped Judge W. Arthur Garrity design a plan with educational enhancement at its heart, but the educational outcomes were marginalized by a desegregation jurisprudence conceptualized in terms of race rather than education. This Article explores the frustration of outcomes in Boston by reference to the differing conceptualizations of desegregation in law and social science. …

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Let's Not Jump To Conclusions: Approaching Felon Disenfranchisement Challenges Under The Voting Rights Act, Thomas G. Varnum Jan 2008

Let's Not Jump To Conclusions: Approaching Felon Disenfranchisement Challenges Under The Voting Rights Act, Thomas G. Varnum

Michigan Journal of Race and Law

Section 2 of the Voting Rights Act of 1965 invalidates voting qualifications that deny the right to vote on account of race or color. This Article confronts a split among the federal appellate courts concerning whether felons may rely on Section 2 when challenging felon disenfranchisement laws. The Ninth Circuit Court of Appeals allows felon disenfranchisement challenges under Section 2; however, the Second and Eleventh Circuits foresee unconstitutional consequences and thus do not. After discussing the background of voting rights jurisprudence, history of felon disenfranchisement laws, and evolution of Section 2, this Article identifies the points of contention among the …

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