Law Commons^™

John C. H. Wu At The University Of Michigan School Of Law, Xiuqing Li

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The following is an English language translation of a 2008 Chinese language article on John C.H. Wu, Soochow Law School LL.B. 1920 and Michigan Law School, J.D. 1921, by Professor Li Xiuqing of Shanghai's East China University of Political Science and Law. Li is a specialist in Chinese and foreign legal history, with a focus on the transplant of Western and Japanese law into China during the late imperial and modern era. She also serves as the Secretary-General of the China Foreign Legal History Association. In 2006-07, Li was a Fulbright Scholar at the University of Michigan Law School, where …

Enforcing Dividend Withholding On Derivatives, Reuven S. Avi-Yonah

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The United States imposes a 30 percent withholding tax on dividends paid to nonresident aliens. However, this tax is rarely paid by portfolio investors because they can swap into U.S. securities, receiving payments to match both capital gain and dividends. Treasury has ruled that swap payments have an origin in the taxpayer’s residence so there is no withholding obligation on payments that match dividends. The proposal would impose withholding tax on dividend equivalents on the ground that there is no policy justification for a distinction between dividends, substitute dividends under securities lending transaction (which are treated as dividends and are …

The Professional Ethics Of Billing And Collections, Mark A. Hall, Carl E. Schneider

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Medicine is a Profession on which physicians rely for their livelihood and patients for their lives. If physicians do not charge for services, they cannot survive. If patients cannot afford those services, they cannot survive. No wonder many physicians have long agreed that fees are “one of the most difficult problems . . . between patient and physician.” For years comprehensive insurance subdued this problem, but currently widespread underinsurance and consumer-directed health care are reviving it. Even as the ranks of the uninsured continue to increase,the latest hope for controlling medical costs requires insured patients to pay for much more …

Will The Tax Man Cometh To Coach Rodriguez?, Douglas A. Kahn, Jeffrey H. Kahn

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There has been much in the news recently about coaches of major college sports teams moving to a new school and incurring an obligation to make payment to their old school under a buyout provision in their contract. The most recent example is the highly publicized move of Richard Rodriguez from West Virginia University to the University of Michigan. Coach Rodriguez had a contract with his former employer that required him to pay $4 million dollars to West Virginia if he left for another coaching position. After a suit was filed, it was reported that the parties agreed that the …

Jesting Pilate, Carl E. Schneider

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I have two goals this month. First, to examine a case that's in the news. Second, to counsel skepticism in reading news accounts of cases. Recently, I was talking with an admirable scholar. He said that transplant surgeons sometimes kill potential donors to obtain their organs efficiently. He added, "This isn't just an urban legend - there's a real case in California." A little research turned up California v. Roozrokh. A little Googling found stories from several reputable news sources. Their headlines indeed intimated that a transplant surgeon had tried to kill a patient to get transplantable organs. CNN.com: …

A Coordinated Withholding Tax On Deductibility Payments, Reuven S. Avi-Yonah

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Prof. Avi-Yonah proposes a 35 percent withholding tax on deductible payments made to a non-U.S. resident, in coordination with other OECD members. The tax is aimed at U.S. residents posing as foreign investors and would be refundable when the beneficial owner shows that the payments have been reported to tax authorities in the owner’s country of residence.

Administration Of Territories By The United Nations: Is There Room For International Humanitarian Law?, Steven R. Ratner

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The fundamental starting point of this conference is that peace operations represent a challenge to the implementation of international humanitarian law (IHL) for the simple reason that IHL was developed for states conducting hostile military operations against other states or non state actors.

Administration of territories represents one subset of peace operations – continuation of second-generation peacekeeping (PK) where parties, typically prodded by outsiders, formally delegate to the United Nations (UN) authority for the implementation of a peace agreement – though it has also been extended to situations where final status and outcome are not sure, as with East Timor …

Condemnation Without Justification, Douglas A. Kahn

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On August 6-8, 2007, Prof. Neil Buchanan posted in Michael Dorf’s blog (http://michaeldorf.org/; for the blog entry regarding the death tax, see http:// michaeldorf.org/2007/08/dishonest-tax-rhetoric-part-3- of-3.html) a three-part series on what he deemed to be examples of political use of terminology to describe tax issues in a manner that is likely to mislead the public. Prof. Buchanan described this practice as ‘‘dishonest tax rhetoric.’’ He awarded first, second, and third prizes for the most egregious examples of dishonest rhetoric. I, however, found no objection to the usages he considered to be the two worst examples. Let us consider his first and …

Can Glucksberg Survive Lawrence? Another Look At The End Of Life And Personal Autonomy, Yale Kamisar

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In Washington v. Glucksberg, the Court declined to find a right to physician-assisted suicide ("PAS") in the Constitution. Not a single Justice dissented. One would expect such a ruling to be quite secure. But Lawrence v. Texas, holding that a state cannot make consensual homosexual conduct a crime, is not easy to reconcile with Glucksberg. Lawrence certainly takes a much more expansive view of substantive due process than did Glucksberg. It is conceivable that the five Justices who made up the Lawrence majority-all of whom still sit on the Court-might overrule Glucksberg. For various reasons, …

The Human Rights Quagmire Of 'Human Trafficking', James C. Hathaway

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Support for the international fight against "human trafficking" evolved quickly and comprehensively. The campaign launched by the UN General Assembly in December 19981 led to adoption just two years later of the Trafficking Protocol to the UN Convention against Organized Crime.2 U.S. President George W. Bush was among those particularly committed to the cause, calling for collective effort to eradicate the "special evil" of human trafficking, said by him to have become a "humanitarian crisis."3 One hundred and twenty-two countries have now ratified the Trafficking Protocol, agreeing in particular to criminalize trafficking and to cooperate in investigating and prosecuting allegations …

Labeling Mass Atrocity: Does And Should International Criminal Law Rank Evil?, Steven R. Ratner

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This essay concerns mass atrocity, not the kind that happened on September 11th, but an older kind when governments and those under them and supported by them killed innocent civilians on the basis of their ethnicity, on the basis of their politics, on the basis of their religion, or other traits of the group. These acts, crimes against humanity and genocide, were criminalized in the period after World War II by the International Military Tribunal and then by the Genocide Convention. These were very, very important steps forward in international criminal law, but the result of the post-war period was, …

Back To The Future? The Potential Revival Of Territoriality, Reuven S. Avi-Yonah

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Since 1994, the trend in the United States and other developed countries appears to be to reduce the scope of residence jurisdiction and increase the emphasis on source jurisdiction. If this trend continues, these countries are likely to move toward territoriality and decrease the emphasis on their CFC rules. In the author’s opinion, the reason for this trend is political and economic, not legal. It is part of tax competition, specifically the competition to be the headquarters jurisdiction for multinationals. The author also thinks, however, that it is not necessary to go down this road because the solution to the …

Foreign Income And Domestic Deductions, James R. Hines Jr.

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To what extent should taxpayers deduct expenses incurred domestically that contribute to foreign income production? It is widely believed that if the home country does not tax foreign income, then it also should not permit deductions for that portion of domestic expenses attributable to earning foreign income. This prescription is, however, inconsistent with the decision to exempt foreign income from taxation in the first place. The paper shows that, for any system of taxing foreign income, the consistent and efficient treatment is to permit domestic expense deductions for all expenses incurred domestically. This differs from the current U.S. regime, under …

Did Bankruptcy Reform Fail? An Empirical Study Of Consumer Debtors, Robert M. Lawless, Angela K. Littwin, Katherine M. Porter, John A. E. Pottow, Deborah K. Thorne, Elizabeth Warren

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Before 2005, many people went broke and many filed for bankruptcy. After 2005, many people still go broke, but not so many file for bankruptcy. Why has the number of bankruptcies declined? Surely it is not the economy. All throughout the 2000s, families have been under increasing economic pressure. Median family incomes have declined, basic expenses have risen, and families are shouldering unprecedented debt loads. Defaults remain high for credit cards and car loans, while mortgage foreclosures have soared. By 2008, over half of all Americans reported that their incomes were falling behind their cost of living. These data all …

Establishing Relations Between Law And Other Forms Of Thought And Language, James Boyd White

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The law does not, and could not, exist in an intellectual or linguistic vacuum. No one believes that the law is or should be impervious to other languages, other bodies of knowledge. In this sense the argument about the 'autonomy' of law is an empty one: law cannot be, should not be, perfectly autonomous, unconnected with any other system of thought and expression; yet it plainly has it own identity as a discourse, it own intellectual and linguistic habits, which it is our task as lawyers to understand and develop. It follows that an essential topic of legal thought is …

Discovering William Cook: Ten Sources For Reconstructing The Life Of A Lawyer, Margaret A. Leary

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Ms. Leary uses a case study to describe ten categories of resources for reconstructing a Manhattan lawyer's life. These resources answer questions about his law practice, scholarship, personal life, personality, values, and philanthropy. The case study uses today's resources to look far back into the details of the life of William W. Cook, who gave his fortune to the University of Michigan Law School.

Jail Strip-Search Cases: Patterns And Participants, Margo Schlanger

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Among Marc Galanter’s many important insights is that understanding litigation requires understanding its participants. In his most-cited work, Why the “Haves” Come Out Ahead, Galanter pioneered a somersault in the typical approach to legal institutions and legal change: Most analyses of the legal system start at the rules end and work down through institutional facilities to see what effect the rules have on the parties. I would like to reverse that procedure and look through the other end of the telescope. Let’s think about the different kinds of parties and the effect these differences might have on the way the …

Craft And Power, Carl E. Schneider

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Oliver Wendell Holmes-a great judge-said that "the command of the public force is intrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees." Appellate courts command that force in ways that principle and practicalities leave little fettered. Judges must fetter themselves, not least by honoring the judicial duty of craftsmanship. That duty obliges courts to respect procedural rules, for they keep courts within their bounds and promote fair and sound decisions. That duty obliges courts to analyze legal authority scrupulously, since judicial legitimacy …

Noncompliance, Nonenforcement, Nonproblem? Rethinking The Anticommons In Biomedical Research, Rebecca S. Eisenberg

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A decade ago the biomedical research community was sounding alarm bells about the impact of intellectual property (IP) rights on the ability of scientists to do their work. Controversies and delays in negotiating terms of access to patented mice and genes, databases of scientific information, and tangible research materials all pointed toward the same conclusion: that IP claims were undermining traditional sharing norms to the detriment of science. Michael Heller and I highlighted one dimension of this concern: that too many IP rights in "upstream" research results could paradoxically restrict "downstream" research and product development by making it too costly …

Public Rights, Social Equality, And The Conceptual Roots Of The Plessy Challenge, Rebecca J. Scott

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This Article argues that the test case that gave rise to the 1896 decision in Plessy v. Ferguson is best understood as part of a wellestablished, cosmopolitan tradition of anticaste activism in Louisiana rather than as a quixotic effort that contradicted nineteenth-century ideas of the boundaries of citizens' rights. By drawing a dividing line between civil and political rights, on the one hand, and social rights, on the other, the Supreme Court construed challenges to segregation as claims to a "social equality" that was beyond the scope of judicially cognizable rights. The Louisiana constitutional convention of 1867-68, however, had defined …

Francis A. Allen--Dean And Colleague, Theodore J. St. Antoine

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Frank Allen was chosen as Dean at Michigan during my first year on the Law School faculty. I had never met him but my colleagues had provided splendid reports about his work and about him personally. I was also impressed by his response to our inquiry concerning his possible interest in the deanship. He said he had established a couple of conditions for being a dean anywhere. First, it would have to be at a school to which he felt a special attachment. Second, it would have to be at an institution where he felt he could make some particular …

Advocating For The Constitutional Rights Of Nonresident Fathers, Vivek Sankaran

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Months after a child welaare case is petitioned, a nonresident father appears in court and requests custody of his children who are living in foster care. Little is known about the father, and immediately, the system-judge, caseworkers, and attorneys view him with suspicion and caution, inquiring about his whereabouts and his prior involvement in the children's lives. Those doubts, in turn, raise complicated questions about his legal rights to his children. As a practioner working in the child welfare system, you're likely to face this scenario. The largest percentage of child victims of abuse and neglect come from households headed …

Genes As Tags: The Tax Implications Of Widely Available Genetic Information, Kyle D. Logue, Joel Slemrod

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Advances in genetic research promise to loosen the tradeoff between progressivity and effi ciency by allowing tax liability (or transfer eligibility) to be based in part on immutable characteristics of individuals (“tags”) that are correlated with their expected lot in life. Use of genetic tags would reduce reliance on tax bases (such as income) that are subject to individual choices and, therefore, subject to ineffi cient distortion to those choices. If genetic information can be used by private employers and insurers, the case for basing tax in part on it becomes more compelling, as genetic inequalities would be exacerbated by …

Empirical Research For Public Policy: With Examples From Family Law, Richard O. Lempert

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Perhaps more than in any other field, legal scholarship has aimed directly at influencing public policy. Hence, it is not surprising that empirical scholarship on law related issues often seems to have an agenda that extends beyond the common social science goals of adding to our knowledge base and understanding of human behavior to suggesting to policy makers and practitioners legal and administrative changes that will ameliorate problems they confront and, by the researcher’s lights, make this a better world in which to live.

The Impact Of Traumatic Stress And Alcohol Exposure On Youth: Implications For Lawyers, Judges, And Courts, Frank E. Vandervort

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Since its inception in the late nineteenth century, the juvenile court has been concerned with the legal problems of children and their families. From the court’s earliest days, it has sought to address child abuse and neglect and juvenile delinquency as social problems that result from familial and community breakdown. Over the decades, researchers from various disciplines have provided varying explanations of how and why family systems break down, why some parents fail to nurture their children, why some physically or sexually abuse their children, and why some children become delinquent.

International Standards For Detaining Terrorism Suspects: Moving Beyond The Armed Conflict-Criminal Divide, Monica Hakimi

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Although sometimes described as war, the fight against transnational jihadi groups (referred to for shorthand as the "fight against terrorism") largely takes place away from any recognizable battlefield. Terrorism suspects are captured in houses, on street comers, and at border crossings around the globe. Khalid Shaikh Mohammed, the high-level Qaeda operative who planned the September 11 attacks, was captured by the Pakistani government in a residence in Pakistan. Abu Omar, a radical Muslim imam, was apparently abducted by U.S. and Italian agents off the streets of Milan. And Abu Baker Bashir, the spiritual leader of the Qaeda-affiliated group responsible for …

Is A Forensic Laboratory Report Identifying A Substance As A Narcotic 'Testimonial'?, Richard D. Friedman

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Is a state forensic analyst's laboratory report, prepared for use in a criminal proceeding and identifying a substance as cocaine, "testimonial" evidence and so subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004)?

Does An Accused Forfeit The Confrontation Right By Murdering A Witness, Absent A Purpose To Render Her Unavailable?, Richard D. Friedman

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If an accused murdered a witness, should he be deemed to have forfeited the right under the Sixth Amendment "to be confronted with" the witness, absent proof that the accused committed the murder for the purpose of rendering her unavailable as a witness?

The Proper Tax Treatment Of The Transfer Of A Compensatory Partnership Interest, Douglas A. Kahn

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If a person receives property as payment for services, whether for past or future services, the receipt typically constitutes gross income to the recipient. If a person performs services for a partnership or agrees to perform future services, and if the person receives a partnership interest as compensation for the past or future services, one might expect that receipt to cause the new partner to recognize gross income in an amount equal to the fair market value of the partnership interest. After all, if a corporation compensated someone for services rendered or to be rendered by transferring the corporation's own …

Kiddie Law Is Growing Up: Board Certification In Child Welfare Law, Donald N. Duquette

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Few areas of the law are as personally rewarding as child welfarethat is, representing children, parents, or a government agency in cases of alleged child abuse and neglect. Few areas of the law provide a greater opportunity to make a tremendous difference in the lives of individuals. Few areas of the law are as intellectually challenging, fast developing, and dynamic as child welfare. Until recently the child welfare field was demeaned as "kiddie law"-not worthy of the intellectual and advocacy talents of the best of America's lawyers. The field is steadily being transformed, however, from a sleepy, assembly-line processing of …