Law Commons^™

Introduction To "Books", Margaret A. Leary

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It's well known that graduate William B. Cook's generosity provided the Law School with its trademark Gothic Law Quadrangle. It is less universally known that Cook endowed the Law School with a trust to support faculty research, and had a strong interest in the nature of that research. He chose to call the library building "Legal Research" and to inscribe above the main entrance "Learned and cultured lawyers are safeguards of the republic." Cook often said that the lack of "intellectual leadership 1s the greatest problem which faces America," and he wanted this Law School to provide that missing leadership. …

The Economic Analysis Of Evidence Law: Common Sense On Stilts, Richard O. Lempert

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There was a time when the empire of Law was not overrun by economists. The economists had their own fiefdoms to be sure-there was the Duchy of Antitrust and the Kingdom of Regulatory Law-but the economists lived in peace within these borders, welcoming many unlike themselves into their midst, only gently proselytizing their students in the first few classes of a term, and swearing fealty to the law. It is true that a few marauders from beyond the borders saw the wealth of the empire and sought to colonize it, but even the most daring, Archbishop Coase and Duke Gary …

Why The Corporate Amt Should Be Retained, Reuven S. Avi-Yonah

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The corporate AMT is under attack. Repeal has been proposed by the White House, endorsed by the ABA/AICPA/TEI tax simplification project, and included in the stimulus bill passed by the House of Representatives. Repeal is supported on two principal grounds: That the corporate AMT increases complexity, and that it is pro-cyclical.

Tax Competition And E-Commerce, Reuven S. Avi-Yonah

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In the last four years, there has been increasing concern by developed countries about the potential erosion of the corporate income tax base by "harmful tax competition" (in the European Union since 1997, in the OECD since 1998). However, the data on tax competition available to date present a mixed and somewhat puzzling picture. On the one hand, there is considerable evidence that effective corporate income tax rates in many countries have been declining, and that the worldwide effective tax rates on multinational enterprises (MNEs) have been going down as well. On the other hand, macroeconomic data from developed countries …

Citizen Participation In Judicial Decision Making: Juries, Lay Judges And Japan, Richard O. Lempert

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In the late 1920s and 1930s Japan had a jury system. It was suspended in 1943 as a wartime measure, but it had fallen into desuetude long before that. Arguably it was like the Spanish jury, which has several times risen during periods of relative political liberalism or populism and been suppressed during periods of militarism and autocracy. That is, it may be more than a coincidence that use of the Japanese jury fell precipitously during the 1930s as militarism took hold of the Japanese nation. Now the reinstatement of the Japanese jury is again being seriously considered. Similarly it …

Experts, Carl E. Schneider

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George Bernard Shaw famously said that all professions are conspiracies against the laity. Less famously, less elegantly, but at least as accurately, Andrew Abbott argued that professions are conspiracies against each other. Professions compete for authority to do work and for authority over work. The umpire in these skirmishes and sieges is the government, for the state holds the gift of monopoly and the power to regulate it. In Abbott's terms, "bioethics" is contesting medicine's power to influence the way doctors treat patients. If it follows the classic pattern, bioethics will solicit work and authority by recruiting government's power. A …

On American Legal Education Reform In Japanese Legal Education, Carl E. Schneider

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The one hundredth anniversary of the Kyoto University Faculty of Law is the kind of splendid occasion when, as Justice Oliver Wendell Holmes remarked, a distinguished institution "becomes conscious of itself and its meaning." I can hardly express my pleasure at being invited to join in your celebration; but I must express my fear that I can add little to it. When Dean Tanaka kindly invited me, I should probably have declined, for I, a foreigner, can hardly know enough about an institution so central to the life of its country and its profession to speak of it and its …

Gender Matters: Teaching A Reasonable Woman Standard In Personal Injury Law, Margo Schlanger

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Reasonable care is, of course, a concept central to any torts class. But what is it? One very standard doctrinal move is to conceptualize reasonable care as that care shown by a "reasonable person" under like circumstances. The next step, logically, is to visualize this reasonable person. Visualization requires some important choices. For example, is the reasonable person old or young? Disabled or not? These are two questions that all the casebooks I have consulted discuss. But, oddly, no casebook of which I am aware deals with the trait that nearly invariably figures in our description of people: sex. If …

The Pro Bono Priority: The University Of Michigan's Approach To Instilling Public Service, Robert E. Precht, Suellyn Scarnecchia

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The Pro Bono Priority is a two-part feature on pro bono service in Michigan law schools. in Crossing the Bar, the column of the Legal Education Committee, Dolores M. Coulter discusses how Michigan law schools measure up to the recommendations made in Learning to Serve, the report of the Commission on Pro Bono and Public Service Opportunities from the Association of American Law Schools. In the Access to Justice column, Robert E. Precht and Suellyn Scarnecchia focus specifically on the University of MichiHgan's unique approach to pro bono service.

Miranda And Some Puzzles Of 'Prophylactic' Rules, Evan H. Caminker

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Constitutional law scholars have long observed that many doctrinal rules established by courts to protect constitutional rights seem to "overprotect" those rights, in the sense that they give greater protection to individuals than those rights, as abstractly understood, seem to require.' Such doctrinal rules are typically called "prophylactic" rules.2 Perhaps the most famous, or infamous, example of such a rule is Miranda v. Arizona,' in which the Supreme Court implemented the Fifth Amendment's privilege against self-incrimination4 with a detailed set of directions for law enforcement officers conducting custodial interrogations, colloquially called the Miranda warnings. 5

E' Is For Eclectic: Multiple Perspectives On Evidence (Symposium: New Perspectives On Evidence), Richard D. Friedman

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A conference titled "New Perspectives on Evidence: Experts, Empirical Study and Economics" has a pronounced alliterative theme, a theme made even more apparent when, inevitably in evidentiary discourse, epistemological questions come to the fore. It is enough to make one suspect that the conference is secretly brought to you by the letter "E," hiding behind its public front, the Olin Foundation. Putting aside such conspiratorial thoughts, all these "E's" suggest the presence of a meta-"E"-Eclecticism. Indeed, I believe this conference has demonstrated the need for an eclectic approach to evidentiary problems. That should be no surprise. The domain of evidentiary …

Free-Standing Due Process And Criminal Procedure: The Supreme Court's Search For Interpretive Guidelines, Jerold H. Israel

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When I was first introduced to the constitutional regulation of criminal procedure in the mid-1950s, a single issue dominated the field: To what extent did the due process clause of the Fourteenth Amendment impose upon states the same constitutional restraints that the Fourth, Fifth, Sixth and Eighth Amendments imposed upon the federal government? While those Bill of Rights provisions, as even then construed, imposed a broad range of constitutional restraints upon the federal criminal justice system, the federal system was (and still is) minuscule as compared to the combined systems of the fifty states. With the Bill of Rights provisions …

A Suggestion On Suggestion, Richard D. Friedman, Stephen J. Ceci

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Part I of the full article briefly describes the history and current slate of research into children's suggestibility. In this part, we argue that, although psychological researchers disagree considerably over the degree to which he suggestibility of young children may lead to false allegations of sexual abuse, there is an overwhelming consensus that children are suggestible to a degree that, we believe, must be regarded as significant. In presenting this argument, we respond to the contentions of revisionist scholars, particularly those recently expressed by Professor Lyon. We show that there is good reason to believe the use of highly suggestive …

How To Talk About Religion, James Boyd White

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Our experience, supported we think by that of others, is that it is most difficult to do this well, whether we are trying to talk about religion within a discipline, such as law or psychology or anthropology, or even in more informal ways, with our friends and colleagues. There are many reasons for this: It is in the nature of religious experience to be ineffable or mysterious, at least for some people or in some religions; different religions imagine the world and its human inhabitants, and their histories, in ways that are enormously different; and there is no superlanguage into …

Class Action Advice In The Form Of Questions, Edward H. Cooper

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The opportunity to offer advice to those who are considering the adoption or modification of class or group action procedures for other legal systems is both welcome and distracting. It is welcome because it forces a change of perspective in the attempt to contemplate adaptation of United States practice to different cultures, political structures, substantive laws, and courts with dissimilar surrounding procedures. It is distracting because there are so many different levels of possible comparison that the choice of perspective must be tailored to the immediate occasion. It is tempting to take on the most important sets of questions-for example, …

Race, Peremptories, And Capital Jury Deliberations, Samuel R. Gross

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In Lonnie Weeks's capital murder trial in Virginia in 1993, the jury was instructed: If you find from the evidence that the Commonwealth has proved beyond a reasonable doubt, either of the two alternative aggravating factors], and as to that alternative you are unanimous, then you may fix the punishment of the defendant at death or if you believe from all the evidence that the death penalty is not justified, then you shall fix the punishment of the defendant at life imprisonment ... This instruction is plainly ambiguous, at least to a lay audience. Does it mean that if the …

Gilmer In The Collective Bargaining Context, Theodore J. St. Antoine

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Can a privately negotiated arbitration agreement deprive employees of the statutory right to sue in court on claims of discrimination in employment because of race, sex, religion, age, disability, and similar grounds prohibited by federal law? Two leading U.S. Supreme Court decisions, decided almost two decades apart, reached substantially different answers to this questionand arguably stood logic on its head in the process. In the earlier case of Alexander v. Gardner-Denver Co., involving arbitration under a collective bargaining agreement, the Court held an adverse award did not preclude a subsequent federal court action by the black grievant alleging racial discrimination. …

Women's International Tribunal On Japanese Military Sexual Slavery, Christine M. Chinkin

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From December 8 to 12,2000, a peoples' tribunal, the Women's International War Crimes Tribunal 2000, sat in Tokyo, Japan. It was established to consider the criminal liability of leading high-ranking Japanese military and political officials and the separate responsibility of the state of Japan for rape and sexual slavery as crimes against humanity arising out of Japanese military activity in the Asia Pacific region in the 1930s and 1940s.

The immediate background to the tribunal's establishment was a series of events commencing in 1988 when the women's movement in the Republic of Korea began to learn of the research of …

Vision And Reality: Democracy And Citizenship Of Women In The Dayton Peace Accords, Christine M. Chinkin, Kate Paradine

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This Article examines the gendered meanings of the concepts of democracy, citizenship, and human rights in the context of the General Framework Agreement for Peace in Bosnia and Herzegovina (GFA), negotiated in Dayton, Ohio, in 1995. The Article is predicated upon the idea that a feminist theory and politics of citizenship and democracy "must embrace an internationalist agenda" and that in turn, for effectiveness and legitimacy, the internationalist agenda must embrace feminist thinking. This Article further argues that the GFA provided an opportunity for the renegotiation of a contested space where democratic concepts of access and participation and citizenship issues …

In Re Silicon Graphics Inc.: Shareholder Wealth Effects Resulting From The Interpretation Of The Private Securities Litigation Reform Act's Pleading Standard., Adam C. Pritchard, Marilyn F. Johnson, Karen K. Nelson

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This Article presents an empirical study of changes in shareholder wealth resulting from the Ninth Circuit Court of Appeals decision in In re Silicon Graphics Inc. Securities Litigation, which interpreted the pleading provision established in the Private Securities Litigation Reform Act of 1995 (the "Reform Act"). Congress passed the Reform Act as part of an ongoing effort to protect corporations from abusive suits alleging "fraud by hindsight." In such suits, plaintiffs claimed that a sudden drop in a company's stock price was evidence that the issuer and its management covered up the bad news that led to the price drop. …

The Foreign Affairs Of Federal Systems: A National Perspective On The Benefits Of State Participation, Daniel Halberstam

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In recent years, the constitutional law of foreign relations has come under intense academic scrutiny, and with it the traditionally accepted constitutional balance between the federal government and the States. In the course of this renewed debate, revisionist scholars have challenged the previously dominant view that States have no place in foreign affairs.

Gang Aft Agley, Carl E. Schneider

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In my last contribution to this column (HCR, July-August 2000), I argued that the law of bioethics has repeatedly failed to achieve the hopes cherished for it. I presented evidence, for example, that most doctors breach the duty of informed consent, that advance directives do not direct patients' care, and that repeated legal attempts to increase organ donation have failed to find the success predicted for them. I closed that column by promising to try to explain this chastening experience. It would, of course, take a lifetime of columns to capture all the reasons the law of bioethics …

Why Supervise The Refugee Convention?, James C. Hathaway

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The Refugee Convention is the only major human rights treaty that is not externally supervised. Under all of the other key UN human rights accords — on the rights of women and children, against torture and racial discrimination, and to promote civil and political, as well as economic, social, and cultural rights — there is at least some effort made to ensure that States are held accountable for what they have signed onto.

The Uneasy Marriage Of Export Incentives And The Income Tax, Mihir A. Desai, James R. Hines Jr.

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This paper investigates the economic effect of tax incentives for American exports. These incentives include a partial tax exemption for export profits (available by routing exports through foreign sales corporations) and the allocation of some export profits to foreign-source income for purposes of U.S. taxation. The analysis highlights three important aspects of these policies. First, official figures appear to understate dramatically the tax expenditures associated with some U.S. export incentives. Correctly measured, total export benefits provided through the income tax are equivalent to a 1-percent ad valorem subsidy. Second, the 1984 imposition of more rigorous requirements for obtaining export subsidies …

Federalism, Preclearance, And The Rehnquist Court, Ellen D. Katz

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Lopez v. Monterey County is an odd decision. Justice O'Connor's majority opinion easily upholds the constitutionality of a broad construction of section 5 of the Voting Rights Act (VRA) in language reminiscent of the Warren Court. Acknowledging the "substantial 'federalism costs" resulting from the VRA's "federal intrusion into sensitive areas of state and local policymaking," Lopez recognizes that the Reconstruction Amendments "contemplate" this encroachment into realms "traditionally reserved to the States." Justice O'Connor affirms as constitutionally permissible the infringement that the section 5 preclearance process "by its nature" effects on state sovereignty, and applies section 5 broadly, holding the statute …

The Liberal Commons, Hanoch Dagan, Michael A. Heller

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Following the Civil War, black Americans began acquiring land in earnest; by 1920 almost one million black families owned farms. Since then, black rural landownership has dropped by more than 98% and continues in rapid decline-there are now fewer than 19,000 black-operated farms left in America. By contrast, white-operated farms dropped only by half, from about 5.5 million to 2.4 million. Commentators have offered as partial explanations the consolidation of inefficient small farms and intense racial discrimination in farm lending. However, even absent these factors, the unintended effects of old-fashioned American property law might have led to the same outcome. …

Myths And Facts About Affirmative Action, Richard O. Lempert, David L. Chambers, Terry K. Adams

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The case against affirmative action in admissions to institutions of higher education is based on the moral attractiveness of colorblind decision making and buttressed by a sense that such programs are not just unfair but pointless. Their intended beneficiaries, the argument goes, are put in situations in which they are unable to compete with whites and not only perform poorly but are destructively demoralized in the process. Common to arguments against affirmative action in admissions is a belief that minorities advantaged by it displace whites who are more deserving of admission because they have accomplished more, can better benefit from …

Precontractual Reliance, Lucian A. Bebchuk, Omri Ben-Shahar

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During contractual negotiations, parties often make reliance expenditures that would increase the surplus should a contract be made. This paper analyzes decisions to invest in precontractual reliance under alternative legal regimes. Investments in reliance will be socially suboptimal in the absence of any precontractual liability-and will be socially excessive under strict liability for all reliance expenditures. Given the results for these polar cases, we focus on exploring how "intermediate"-liability rules could be best designed to induce efficient reliance decisions. One of our results indicates that the case for liability is shown to be stronger when a party retracts from terms …

'Bush' V. 'Gore': What Was The Supreme Court Thinking?, Richard D. Friedman

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One of the most astonishing episodes in American political history ended last month with perhaps the most imperial decision ever by the United States Supreme Court. In one stroke, the Court exercised power that belonged to Congress, the legislature of Florida, Florida's courts and administrators, and, most importantly, the people of the state.

Globalization And Tax Competition: Implications For Developing Countries, Reuven S. Avi-Yonah

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This article analyses the effects of tax competition on developing countries. Since the 1980s, globalization and greater capital mobility have led many developing countries to adopt the policy of competing with one another to attract capital investment. One of the main forms taken by this competition has been the granting of tax holidays and other tax reductions to investing multinationals. This paper reviews the normative arguments for and against this type of tax competition, from a global perspective. It then examines these arguments in depth from the point of view of developing countries. The conclusion in general is that, since …