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Articles 1 - 24 of 24
Full-Text Articles in Law
Who's Bringing The Children?: Expanding The Family Exemption For Child Smuggling Offenses, Rebecca M. Abel
Who's Bringing The Children?: Expanding The Family Exemption For Child Smuggling Offenses, Rebecca M. Abel
Michigan Law Review First Impressions
Under immigration law, an alien smuggling offense takes place when one knowingly encourages, induces, assists, abets, or aids an alien to enter or to try to enter the United States. Committing this offense is cause for either removal or inadmissibility charges under the Immigration and Nationality Act ("INA"). In addition, a federal criminal conviction for alien smuggling under INA section 274(a)(1)(A) or 274(a)(2) classifies the immigrant as an aggravated felon, leading to near certain deportation. Although the INA levies harsh penalties against smugglers, the practice has not showed any signs of slowing. In 2010, the United States Border Patrol apprehended …
Clarification Needed: Fixing The Jurisdiction And Venue Clarification Act, William Baude
Clarification Needed: Fixing The Jurisdiction And Venue Clarification Act, William Baude
Michigan Law Review First Impressions
One hates to seem ungrateful. Judges and scholars frequently call for Congress to fix problems in the law of jurisdiction and procedure, and Congress doesn't usually intervene. In that light, the Jurisdiction and Venue Clarification Act ("JVCA"),[1] signed into law on December 7, 2011, ought to be a welcome improvement. And hopefully, on balance, it will be. But in at least one area that it attempts to clarify, the JVCA leaves much to be desired. Professor Arthur Hellman has called the JVCA "the most far-reaching package of revisions to the Judicial Code since the Judicial Improvements Act of 1990."[2] The …
Toward A System Of Invention Registration: The Leahy-Smith America Invents Act, Jason Rantanen, Lee Petherbridge
Toward A System Of Invention Registration: The Leahy-Smith America Invents Act, Jason Rantanen, Lee Petherbridge
Michigan Law Review First Impressions
The recently enacted Leahy-Smith America Invents Act (“AIA”) represents the most significant legislative event affecting patent law and practice in more than half a century. In addressing the AIA, scholars and policymakers have focused with an almost laser-like exclusivity on the AIA’s imposition of a first-to-file-or-first-to-publicly-disclose system, which replaces an over 200-year-old first-to-invent tradition. This myopia, we suggest, overlooks a part of the AIA that could hold a substantially greater potential to jeopardize American innovation, job creation, and economic competitiveness: the imposition of a mechanism for supplemental examination.
Citizens United And The Threat To The Regulatory State, Tamara R. Piety
Citizens United And The Threat To The Regulatory State, Tamara R. Piety
Michigan Law Review First Impressions
Although Citizens United has been roundly criticized for its potential effect on elections and its display of judicial immodesty (or "activism"), the effect of the case which may be both most profound and perhaps most pernicious is its effect on the commercial speech doctrine. This is an aspect of the case which has been largely overlooked. Most people seem to be unaware of any connection between election law and the commercial speech doctrine-except, that is, those who have been working long and hard to accomplish the change it foreshadows. They are keenly aware of its implications.
Reconstructing The Individual Mandate As An Escrow Account, Gregg D. Polsky
Reconstructing The Individual Mandate As An Escrow Account, Gregg D. Polsky
Michigan Law Review First Impressions
The recent health care reform law's most controversial provision is the individual mandate, which imposes a fine on individuals who fail to obtain a minimum level of health insurance coverage. Many object to this policy, arguing that the government shouldn't force individuals to purchase health insurance. Others believe that the mandate is a necessary component to health care reform. What has been missed in the discussion is that Congress could restructure the individual mandate to avoid the requirement that individuals purchase health insurance while still fulfilling its principal function. The principal purpose of the mandate is not to require individuals …
In Search Of Justice: Increasing The Risk Of Business With State Sponsors Of Terror, Gabriel C. Lajeunesse
In Search Of Justice: Increasing The Risk Of Business With State Sponsors Of Terror, Gabriel C. Lajeunesse
Michigan Law Review First Impressions
If the aims of tort law are deterrence, compensation, and provision of equitable distribution of risks, U.S. anti-terrorism laws have been margin-ally effective at best. Though Congress has passed legislation providing causes of action to U.S. victims of terrorism, compensation of victims is often difficult and terrorists are rarely deterred. Attempts to provide such recourse include the Antiterrorism Act of 1991 ("ATA"), the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), and the Flatow Amendment to the Foreign Sovereign Immunities Act ("FSIA"). These attempts, however, are not enough.
The Developing Equality Jurisprudence In South Africa, Karthy Govender
The Developing Equality Jurisprudence In South Africa, Karthy Govender
Michigan Law Review First Impressions
Apartheid was technically about separateness, but it was fundamentally about inequality. The founding premise of the ideology was to preserve the total hegemony of white South Africans. The liberation organizations opposing the apartheid regime sought to affirm that the country belonged to all those that lived in it. Thus, it is unsurprising that the commitment to equality is one of the founding values of the Constitution and an indelible thread woven throughout the fabric of the Bill of Rights. After some misstatements about certain rights being more important than others, courts have interpreted rights in the Bill of Rights to …
Sustainable Watersheds, Jonathan Z. Cannon
Sustainable Watersheds, Jonathan Z. Cannon
Michigan Law Review First Impressions
By any interpretation of sustainability, additional public and private investment should be made to protect and restore watersheds and their incorporated landscapes as sources of ecosystem services. This investment may require reducing current consumption but is justified because it will enhance the well being of the present generation and also enable future generations to enjoy a quality of life equal to our own.
A Climate Agenda For The New President, Lisa Heinzerling
A Climate Agenda For The New President, Lisa Heinzerling
Michigan Law Review First Impressions
The Bush Administration squandered eight years denying the reality of climate change and delaying action on it. Nevertheless, the president who comes into office in January will face two happy realities. First, whatever the Bush Administration has done (through obstruction or inaction) on climate change can easily be undone due to its legal and scientific flimsiness. And second, statutes now on the books provide plenty of legal authority for swift action on the most important environmental issue of our time.
Equal Voice By Half Measures, John Mark Hansen
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 …
The Good, The Bad, And The Ugly: Three Proposals To Introduce The Nationwide Popular Vote In U.S. Presidential Elections, Alexander S. Belenky
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 …
Reforming The Electorial College One State At A Time, Thomas W. Hiltachk
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 …
An Unsafe Harbor: Recounts, Contests, And The Electoral College, Daniel P. Tokaji
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 …
Awarding Presidential Electors By Congressional District: Wrong For California, Wrong For The Nation, Sam Hirsch
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 …
Ideological Endowment: The Staying Power Of The Electoral College And The Weaknesses Of The National Popular Vote Interstate Compact, Daniel P. Rathbun
Ideological Endowment: The Staying Power Of The Electoral College And The Weaknesses Of The National Popular Vote Interstate Compact, Daniel P. Rathbun
Michigan Law Review First Impressions
The National Popular Vote (“NPV”) movement is designed to eliminate the federalist impact of the Electoral College without amending the Constitution. By fashioning an interstate compact to grant participating states’ electoral votes to the winner of the national popular vote, NPV proponents suppose they can induce states to forfeit their electoral “weights” and replace the current, federalist election process with a fully majoritarian one. But by leaving the Electoral College in place, the NPV movement is setting itself up for a double pushback: first, in the form of immediate legal resistance, and second, through states’ long-term involvement in a meaningfully …
Democratic Principle And Electoral College Reform, Ethan J. Leib, Eli J. Mark
Democratic Principle And Electoral College Reform, Ethan J. Leib, Eli J. Mark
Michigan Law Review First Impressions
The Electoral College is a relic from another time and is in tension with the modern constitutional command of “one person, one vote.” But the Electoral College is, nevertheless, ensconced in our Constitution—and, as a result, we would need to amend the document to alter or abolish it from our political fabric. Still, some states are toying with state-based Electoral College reforms. Thus, irrespective of whether voters in those states favor the abolition of the Electoral College through a federal constitutional amendment, they must critically examine the democratic merits of these statebased reform options. Categorically rejecting all state-based reform is …
Now That The Courts Have Beaten Congress To The Punch, Why Is Congress Still Punching The Patent System?, Robert A. Armitage
Now That The Courts Have Beaten Congress To The Punch, Why Is Congress Still Punching The Patent System?, Robert A. Armitage
Michigan Law Review First Impressions
The U.S. House of Representatives began September by passing the Patent Reform Act of 2007. This bill, if enacted, would make major changes to U.S. patent law. Given the universally recognized need for improvements to the U.S. patent system, passing a patent reform bill in the House should have been easy. It was not. The Patent Reform Act of 2007 made it through the House only after a spirited debate. There were a host of complaints by House members that the bill was not ready for floor action. In the end, it passed the House by a relatively narrow margin, …
Making Sense Of Ksr And Other Recent Patent Cases, Harold C. Wegner
Making Sense Of Ksr And Other Recent Patent Cases, Harold C. Wegner
Michigan Law Review First Impressions
The recent Supreme Court review of KSR International Inc. v. Teleflex Inc., eBay Inc. v. MercExchange LLC, and Microsoft Corp. v. AT&T Corp. manifests the Court’s current interest in the patent jurisprudence of the Fed-eral Circuit. Now it is evident that the Court has a level of concern sufficient to guarantee the possibility of grant of certiorari—whereas formerly a case could rarely generate sufficient interest for review. For long-range impor-tance in patent law, KSR stands alone as the single most important Supreme Court patent decision on the bread and butter standard of “obviousness” in the more than forty years since …
Ksr's Effect On Patent Law, Stephen G. Kunin, Andrew K. Beverina
Ksr's Effect On Patent Law, Stephen G. Kunin, Andrew K. Beverina
Michigan Law Review First Impressions
The Supreme Court in KSR International Co. v. Teleflex Inc. clarified its 1966 decision in Graham v. John Deere, avoiding the sea change to a synergy- based standard that many had expected—and perhaps feared. KSR has raised the bar set in Graham for seeking patent protection—by providing a flexible test for obviousness—while simultaneously making it easier for accused infringers to defend themselves. Moreover, KSR will change the strategies of both patent prosecutors and litigators. Before KSR, the Supreme Court’s last major decision on nonobviousness under 35 U.S.C. § 103 was Graham, in which the Court established three factual inquiries for …
Ksr V. Teleflex: Predictable Reform Of Patent Substance And Procedure In The Judiciary, John F. Duffy
Ksr V. Teleflex: Predictable Reform Of Patent Substance And Procedure In The Judiciary, John F. Duffy
Michigan Law Review First Impressions
Though KSR International Co. v. Teleflex, Inc. is now widely acknowl-edged in the bar and the academy to be the most significant patent case in at least a quarter century, that view dramatically underestimates the impor-tance of the decision. The KSR decision has immense significance not merely because it rejected the standard of patentability that had been applied in the lower courts for decades, but also because it highlights many separate trends that are reshaping the patent system. This Commentary will touch upon four such trends that are clearly evi-dent in KSR. First, the case was a predictable continuation of …
The Trademark Dilution Revision Act Of 2006: A Welcome—And Needed—Change, Dale M. Cendali, Bonnie L. Schriefer
The Trademark Dilution Revision Act Of 2006: A Welcome—And Needed—Change, Dale M. Cendali, Bonnie L. Schriefer
Michigan Law Review First Impressions
Some have argued that the changes to the Federal Trademark Dilution Act (the “FTDA”) embodied in the recently enacted Trademark Dilution Revision Act of 2006 (the “TDRA”) threaten to infringe upon the right to free speech. This is simply not the case. The FTDA has always protected First Amendment rights, and the TDRA clarifies and strengthens those protections. While the concept of dilution was introduced in 1927, there was no federal dilution law in the United States until 1995, when Congress passed the FTDA. Since then, various federal courts have reached different conclusions regarding issues such as: (1) what constituted …
The Dilution Solution: Populating The Trademark A-List, Scott C. Wilcox
The Dilution Solution: Populating The Trademark A-List, Scott C. Wilcox
Michigan Law Review First Impressions
In our celebrity-conscious culture, the media serve as arbiters of fame. The editors of Us Weekly and People wield significant influence over public recognition of celebrities. Since the Federal Trademark Dilution Act (“FTDA”) amended the Lanham Act in 1995, federal courts have adopted similar roles as arbiters of fame, determining which trademarks are sufficiently famous to receive federal protection against dilution. Recent changes to the Lanham Act, however, reserve the availability of dilution actions to “A-list” marks. These changes fulfill the objectives of trademark law while achieving Congress’s intent in enacting the FTDA.
What Is Dilution, Anyway?, Stacey L. Dogan
What Is Dilution, Anyway?, Stacey L. Dogan
Michigan Law Review First Impressions
Ever since the Supreme Court decided Moseley v. V Secret Catalogue, Inc. in 2003, an amendment to the Federal Trademark Dilution Act (“FTDA”) has appeared inevitable. Congress almost certainly meant to adopt a “likelihood of dilution” standard in the original statute, and the 2006 revisions correct its sloppy drafting. Substituting a “likelihood of dilution” standard for “actual dilution,” however, does not resolve a deeper philosophical question that has always lurked in the dilution debate: what is dilution, and how does one prove or disprove its probability? The statutory definition notwithstanding, this issue remains largely unanswered, leaving the courts with the …
Dilution's (Still) Uncertain Future, Graeme B. Dinwoodie, Mark D. Janis
Dilution's (Still) Uncertain Future, Graeme B. Dinwoodie, Mark D. Janis
Michigan Law Review First Impressions
Dilution looked to be a potent weapon when Congress introduced it as § 43(c) of the Lanham Act in 1995. Indeed, some observers feared that it would be too potent (and in some contexts, such as cybersquatting, it successfully augmented traditional causes of action). But a series of court decisions, culminating in the Supreme Court’s 2003 Moseley v. V Secret Catalogue opinion, weakened dilution protection so profoundly that what remained wasn’t of much consequence. Congress has recently sought to breathe new life into dilution law, enacting the Trademark Dilution Revision Act of 2006 (“TDRA”). Some might see this as a …