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2004

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Institution
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Articles 1 - 30 of 160

Full-Text Articles in Law

Risk, Rents, And Regressivity: Why The United States Needs Both An Income Tax And A Vat, Reuven S. Avi-Yonah Dec 2004

Risk, Rents, And Regressivity: Why The United States Needs Both An Income Tax And A Vat, Reuven S. Avi-Yonah

Articles

In this article, Prof. Avi-Yonah argues that the legal academic debate about fundamental tax reform from 1974 onward has been skewed by the assumption that a consumption tax must replace the income tax. He addresses three of the major issue in recent writings on the income/consumption tax debate, and shows how none of the arguments in favor of the consumption tax are conclusive. Avi-Yonah also addresses the various consumption tax proposals that have been made and shows that they are all deficient in comparison with a VAT, as well as failing to achieve the goals of an income tax ...


Dedicated To The Memory Of Lee E. Teiteitelbaum, Carl E. Schneider Nov 2004

Dedicated To The Memory Of Lee E. Teiteitelbaum, Carl E. Schneider

Articles

When I first met Lee Teitelbaum at a conference two decades ago, I was a novice and he a distinguished scholar. Because my colleagues admired him, I rang his room at the hotel and asked him to join me for dinner. He sweetly agreed. When he opened his door to my knock, I realized that he set standards I could never match-sartorial standards. Who was this king of glory? 1 stood there in my Oshkosh khakis and running shoes, agape and abashed. Despite this unpropitious start, our friendship ripened, and soon I realized Lee set standards of a finer and ...


Liability For Life, Carl E. Schneider Jul 2004

Liability For Life, Carl E. Schneider

Articles

Marshall Klavan headed the Obstetrics and Gynecology Department of the Crozer-Chester Medical Center. He deeply feared strokes, perhaps because his father had been savaged by one. In 1993, Dr. Klavan wrote an advance directive which said that (as a court later put it) "he 'absolutely did not want any extraordinary care measures utilized by health care providers.'" On April29, 1997, Dr. Klavan tried to kill himsel£ He left suicide notes and a note refusing resuscitation. The next morning, medical center employees found him unconscious and took him to the emergency room, where he was resuscitated. By May 2, Dr. Klavan ...


The Ingenious Kerry Tax Plan, Reuven S. Avi-Yonah Apr 2004

The Ingenious Kerry Tax Plan, Reuven S. Avi-Yonah

Articles

The tax plan proposed by Democratic presidential candidate John Kerry at Wayne State University on March 26 is an ingenious set of ideas to encourage domestic job creation. Its greatest strength, however, may be its contribution to long-term economic growth, fairness, and tax law simplification. In this article I will first describe the Kerry proposal, then analyze its advantages, and finally address some counterarguments.


Treatment As Tribe, Treatment As State: The Penobscot Indians And The Clean Water Act, William H. Rodgers, Jr. Apr 2004

Treatment As Tribe, Treatment As State: The Penobscot Indians And The Clean Water Act, William H. Rodgers, Jr.

Articles

No abstract provided.


Discovering Mr. Cook, Margaret A. Leary Mar 2004

Discovering Mr. Cook, Margaret A. Leary

Articles

Before I begin to tell you some of what I've learned as I've tried to discover Mr. [William W.] Cook, please ponder two questions: What are your feelings about the Law Quad buildings? Think, for example of the first time you entered the Quad; studying in the Reading Room; seeing the snowy Quad for the first time; and socializing in the Dining Room. You probably have a flood of memories connected to these buildings. The Law School has outgrown them in many respects, but the buildings will always be inspirational. Second, let me ask what you know about ...


Building A Home For The Laws Of The World: Part Ii: Hoping, Hunting, And Honing, Margaret A. Leary Mar 2004

Building A Home For The Laws Of The World: Part Ii: Hoping, Hunting, And Honing, Margaret A. Leary

Articles

The following feature is the second, concluding portion of the edited version of "Building a Foreign Law Collection at the University of Michigan Law Library, 1910-1960,"© Margaret A. Leary, 2002, which originally appeared at 94 Law Library Journal 395-425 (2002), and appears here with permission of the author. The first part of the article (46.2 Law Quadrangle Notes 46-53 [Summer 2003] detailed how the vision of Dean Henry Bates, generosity of graduate William W. cook, and skills of librarian/traveler/negotiator Hobart Coffey combined to launch the building of the Law Library's international collection into one of the ...


Enough: The Failure Of The Living Will, Angela Fagerlin, Carl E. Schneider Mar 2004

Enough: The Failure Of The Living Will, Angela Fagerlin, Carl E. Schneider

Articles

Enough. The living will has failed, and it is time to say so. We should have known it would fail: A notable but neglected psychological literature always provided arresting reasons to expect the policy of living wills to misfire. Given their alluring potential, perhaps they were worth trying. But a crescendoing empirical literature and persistent clinical disappointments reveal that the rewards of the campaign to promote living wills do not justify its costs. Nor can any degree of tinkering ever make the living will an effective instrument of social policy. As the evidence of failure has mounted, living wills have ...


Government Policy Towards Innovation In The United States, Canada, And The European Union As Manifested In Patent, Copyright, And Competition Laws, Daniel J. Gifford Jan 2004

Government Policy Towards Innovation In The United States, Canada, And The European Union As Manifested In Patent, Copyright, And Competition Laws, Daniel J. Gifford

Articles

THE United States, Canada, the European Union, Japan and most industrialized nations have adopted patent, copyright and other intellectual property laws. A major or primary purpose of those laws is to foster innovation, including technological innovation. Industrial and technological innovation is generally perceived as a good because technological advances increase a society's productivity, 1 thus increasing its wealth and raising living standards. The major industrialized nations also possess competition laws, one of whose purposes is to preserve, foster and support competitive markets. These nations want to preserve competitive markets because competitive markets help to allocate available resources to their ...


How Do The Social Benefits And Costs Of The Patent System Stack Up In Pharmaceuticals?, Daniel J. Gifford Jan 2004

How Do The Social Benefits And Costs Of The Patent System Stack Up In Pharmaceuticals?, Daniel J. Gifford

Articles

This paper explores the workings of the patent system in the context of the generation of new pharmaceutical products. First it identifies the relevant characteristics of the patent system and its relation to the market. The paper concedes that, in general, the patent system is probably the best way of generating new technology, in substantial part because that system uses the market to provide both incentives and rewards. The paper also identifies downsides of this patent/market system: deadweight loss and the unresponsiveness of that patent/market system to the needs of the poor. The paper then explores the social ...


Moral Judgment Of Law Students Across Three Years: Influences Of Gender, Political Ideology And Interest In Altruistic Law Practice, Maury Landsman, Steven P. Mcneel Jan 2004

Moral Judgment Of Law Students Across Three Years: Influences Of Gender, Political Ideology And Interest In Altruistic Law Practice, Maury Landsman, Steven P. Mcneel

Articles

Jokes and negative stereotypes about lawyers abound, suggesting low levels of honesty and morality. One commentator has suggested a reason for this: The joke rings true to a lot of people because of what many lawyers in this country - including many at the top of the profession - do for their clients: bend, distort, conceal, cover up, obfuscate, or misrepresent the facts, in ways that are simultaneously (1) regarded by ordinary people as just plain dishonest, and (2) defended by many lawyers and legal experts as embodying the finest traditions of the bar and of legal ethics in our adversary system ...


The Limits Of Business Limited Liability: Entity Veil Piercing And Successor Liability Doctrines, John Matheson Jan 2004

The Limits Of Business Limited Liability: Entity Veil Piercing And Successor Liability Doctrines, John Matheson

Articles

The quest for limited liability in business enterprises and transactions has been a driving force in the development of business organization law for centuries. The historical development of corporations and limited partnerships evidences this primary goal. The recent development of the modern forms of limited liability partnerships and limited liability companies proves that this quest continues unabated. In addition, parties to significant business transfer transactions have long sought by construct and contract to apportion and limit their respective legal responsibilities and liabilities.Counterbalancing this inexorable trend toward limited liability has been the penchant of common law jurisprudence to define its ...


Varieties Of Youth Justice, Anthony Doob, Michael Tonry Jan 2004

Varieties Of Youth Justice, Anthony Doob, Michael Tonry

Articles

No abstract provided.


At The Cutting Edge Of Labor Law Preemption: A Critique Of Chamber Of Commerce V. Lockyer, Stephen F. Befort, Bryan N. Smith Jan 2004

At The Cutting Edge Of Labor Law Preemption: A Critique Of Chamber Of Commerce V. Lockyer, Stephen F. Befort, Bryan N. Smith

Articles

This article analyzes the contours of federal labor law preemption through the lens of the Ninth Circuit Court of Appeals recent decision in Chamber of Commerce v. Lockyer, 364 F.3d 1154 (9th Cir. 2004). This case involves a constitutional challenge brought by the U.S. Chamber of Commerce and several other organizations to California Assembly Bill 1889 (AB 1889), enacted by the California legislature effective in 2001. This statute prohibits certain public employers, state grant recipients, and state contractors from using state-provided funds or property to assist, promote, or deter union organizing efforts. The Ninth Circuit, in a decision ...


Accommodation At Work: Lessons From The Americans With Disabilities Act And Possibilities For Alleviating The American Worker Time Crunch, Stephen F. Befort Jan 2004

Accommodation At Work: Lessons From The Americans With Disabilities Act And Possibilities For Alleviating The American Worker Time Crunch, Stephen F. Befort

Articles

This article addresses issues of accommodation and time with respect to the American worker time crunch problem. On the former issue, I concur in Professor Arnow-Richman's observation that an accommodation approach to addressing the competing pressures of work and family is prone to resistance from the courts. Experience under the ADA illustrates a judicial reluctance to go beyond a traditional equal treatment view of discrimination to embrace a more affirmative different treatment model of discrimination. But this does not mean that the ADA's reasonable accommodation framework has been a failure. To the contrary, while the reasonable accommodation requirement ...


A New Voice For The Workplace: A Proposal For An American Works Councils Act, Stephen F. Befort Jan 2004

A New Voice For The Workplace: A Proposal For An American Works Councils Act, Stephen F. Befort

Articles

Surveys show that American workers want more "voice" in the workplace. For the past century, unions have served as the principle voice mechanism for workers, but with the decline of unions, employee voice also has diminished. Section 8(a)(2) of the NLRA compounds this problem by prohibiting most employer-supported programs by which employees "deal with" employers concerning terms and conditions of employment. Both the East and the West offer possible alternative voice mechanisms. Over the past two decades, American employers increasingly have looked to the Japanese experience in adopting quality circles, work teams, and other employee involvement programs. But ...


The Labor And Employment Law Decisions Of The Supreme Court's 2003-04 Term, Stephen F. Befort Jan 2004

The Labor And Employment Law Decisions Of The Supreme Court's 2003-04 Term, Stephen F. Befort

Articles

It is longstanding tradition for the Secretary of the ABA's Labor and Employment Law Section to prepare a summary of the labor and employment decisions issued during each Supreme Court term. This article summarizes seven labor and employment decisions issued by the Court during its 2003-04 term as well as two other decisions that, while not arising under a labor or employment statute, have potential implications for labor and employment law. The article also analyzes each of the decisions for their overall impact and significance within the field of labor and employment law. The article goes on to discuss ...


The Wrong Way To Equality: Privileging Consent In The Trafficking Of Women For Sexual Exploitation, Beverly Balos Jan 2004

The Wrong Way To Equality: Privileging Consent In The Trafficking Of Women For Sexual Exploitation, Beverly Balos

Articles

Chamoli lived near the birthplace of the Buddha in Nepal. When she was 16, she met a young man and fell in love with him. He promised to marry her but insisted that she come away with him to India. So one day she ran away with the boyfriend and crossed the border to India on foot. From there she and her boyfriend took a train to the Indian city of Poona. Once they had reached Poona, Chamoli was taken to a house where there was an older Nepali lady and many young girls. The lady gave her boyfriend some ...


Sox Appeals, Brett Mcdonnell Jan 2004

Sox Appeals, Brett Mcdonnell

Articles

Through the Sarbanes-Oxley Act ("SOx"), Congress appeals to two groups, regulators and private actors. Most of the new duties and liabilities that SOx creates have limited legal substance, advancing little beyond previous rules. However, we must look further to see how regulators and private actors are responding. The SEC's rulemaking efforts directly required under SOx have not been inspiring, but SOx has helped prod the SEC into rulemaking which potentially could prove more important than all of the provisions of SOx combined: rules giving shareholders the ability to nominate directors using the corporation's proxy tools. The New York ...


A Man's Home Is His Castle: How The Law Shelters Domestic Violence And Sexual Harassment, Beverly Balos Jan 2004

A Man's Home Is His Castle: How The Law Shelters Domestic Violence And Sexual Harassment, Beverly Balos

Articles

Violence against women is a pervasive problem in the United States. Historically, however, society did not take violence against women seriously. The law trivialized the abusive behaviors that led to harm against women.3 For example, until relatively recently there was not a legally recognized term for what is now labeled sexual harassment.4 It is now acknowledged that at work women are faced with the problem of sexual harassment.


The Antipaternalism Principle In The First Amendment, Dale Carpenter Jan 2004

The Antipaternalism Principle In The First Amendment, Dale Carpenter

Articles

Much attention has been paid of late to unauthorized disseminations of classified information. A grand jury proceeding has been initiated to investigate the leak and publication of information about the National Security Agency's warrantless electronic surveillance program. And in a case currently pending in the Eastern District of Virginia, the U.S. government for the first time is prosecuting private citizens for exchanging classified information in the course of concededly non-espionage activities - specifically, political lobbying. These events illuminate the underdeveloped and deeply under-theorized state of the law on classified information leaks and publications. The central chasm in existing theory ...


Is Lawrence Libertarian?, Dale Carpenter Jan 2004

Is Lawrence Libertarian?, Dale Carpenter

Articles

Lawrence v. Texas 1 begins with "Liberty" and ends with "freedom." 2 For the first time in its history the Supreme Court invalidated a law criminalizing sexual conduct. Add to that sweeping statements in Lawrence celebrating individual "autonomy." 3 Consider too the Court's surprising revival of substantive due process, a doctrine entombed with musty traditions in liberty-denying decisions like Bowers v. Hardwick 4 and Washington v. Glucksberg. 5 What is more, Lawrence is not your father's substantive due process. The pre-Lawrence doctrine bifurcated the world into a large domain of almost unprotected "liberty interests" and a very small ...


The Unknown Past Of Lawrence V. Texas, Dale Carpenter Jan 2004

The Unknown Past Of Lawrence V. Texas, Dale Carpenter

Articles

On the night of September 17, 1998, someone called the police to report that a man was going crazy with a gun inside a Houston apartment. When Harris County sheriff's deputies entered the apartment they found no person with a gun but did witness John Lawrence and Tyron Garner having anal sex. This violated the Texas Homosexual Conduct law,3 and the deputies hauled them off to jail for the night. Lawyers took the men's case to the Supreme Court and won a huge victory for gay rights.


Lessons From The Rise And (Possible) Fall Of Chinese Township-Village Enterprises, Brett Mcdonnell Jan 2004

Lessons From The Rise And (Possible) Fall Of Chinese Township-Village Enterprises, Brett Mcdonnell

Articles

The success of Chinese township-village enterprises (TVEs) poses a puzzle for a property rights approach to the theory of the firm, since no one really holds well-defined, transferable property rights to control and claim the residual profits of TVEs. TVEs also pose a second puzzle: in the last five or seven years, they have started to experience serious problems, despite reforms which have improved TVEs from a property rights perspective. This paper takes ideas from property rights and institutional approaches to economics and examines whether those ideas can help explain both of these puzzles. As to the first puzzle, reforms ...


Corporate Constituency Statutes And Employee Governance, Brett Mcdonnell Jan 2004

Corporate Constituency Statutes And Employee Governance, Brett Mcdonnell

Articles

The paper compares the effects of corporate constituency statutes versus employee involvement in corporate governance, using a simple model to consider interactions between shareholders, employees, and managers. Both constituency statutes and employee governance tend to lead to a redistribution from shareholders to employees. However, constituency statutes do so at the cost of weakening limits on managerial misbehavior, thereby reducing social welfare. In contrast, employee governance strengthens the limits on managerial misbehavior, and hence is potentially more desirable than constituency statutes.


International Human Rights Law Perspective On Grutter And Gratz, David Weissbrodt Jan 2004

International Human Rights Law Perspective On Grutter And Gratz, David Weissbrodt

Articles

There is an international human rights law aspect to Grutter v. Bollinger 1 and Gratz v. Bollinger 2 that might be missed by many lawyers and scholars who rarely consider any legal domain beyond the limits of the U.S. Constitution. Indeed, Grutter and Gratz reflect a trend in Supreme Court opinions to use international human rights sources in interpreting the Constitution.


The Sub-Commission's Initiative On Human Rights And Intellectual Property, David Weissbrodt, Kell Schoff Jan 2004

The Sub-Commission's Initiative On Human Rights And Intellectual Property, David Weissbrodt, Kell Schoff

Articles

In 2000 the United Nations Sub-Commission on the Promotion and Protection of Human Rights adopted a resolution raising concerns about the consistency of international intellectual property protections and human rights norms. This article summarises human rights norms relevant to intellectual property and the pertinent aspects of the Agreement on Trade-Related Aspects of Intellectual Property Rights, which overlap or potentially conflict. The article provides several examples of potential conflict and how they might be resolved. The article demonstrates that the Sub-Commission resolution helped to initiate a major international discussion and some action on the relationship between human rights and intellectual property.


Epistemology Legalized: Or, Truth, Justice, And The American Way, Susan Haack Jan 2004

Epistemology Legalized: Or, Truth, Justice, And The American Way, Susan Haack

Articles

No abstract provided.


Anomalies, Warts And All: Four Score Of Liberty, Privacy And Equality, Francisco Valdes Jan 2004

Anomalies, Warts And All: Four Score Of Liberty, Privacy And Equality, Francisco Valdes

Articles

Lawrence was decided exactly eighty years after the first liberty-privacy case, and in the midst of a fierce kulturkampf striving to roll back civil rights generally. In this Article, Professor Valdes situates Lawrence in the context formed both by these four score of liberty-privacy jurisprudence that precede it as well as by the politics of backlash that envelop it today. After canvassing the landmark rulings from Meyer in 1923 to Lawrence in 2003, in the process acknowledging both their emancipatory strengths and their traditionalist instrumentalism, Professor Valdes concludes that Lawrence is a long overdue recognition of the prior precedents and ...


Mutiny, Shipboard Strikes, And The Supreme Court's Subversion Of New Deal Labor Law, Ahmed A. White Jan 2004

Mutiny, Shipboard Strikes, And The Supreme Court's Subversion Of New Deal Labor Law, Ahmed A. White

Articles

No abstract provided.