Law Commons^™

Politics And The Business Corporation, Robert H. Sitkoff

Law & Economics Working Papers Archive: 2003-2009

This essay explores the policy bases for, and the political economy of, the law's long-standing regulation of corporate political speech. The essay has three parts. First, it contends that the conventional justifications for regulating corporate interventions in politics -- that corporate donations unnaturally skew the political discourse (bad politics) and that corporate political donations harm shareholders (agency costs) -- assume irrational investors and substantial capital market inefficiency. Drawing on public choice theory, the essay also explores the aim of retarding rent-seeking as an alternative justification for regulating corporate interventions in politics. Second, the essay reexamines the history of the regulation …

Dying To Get Out Of Debt: Consumer Insolvency Law And Suicide In Japan, Mark West

Law & Economics Working Papers Archive: 2003-2009

This Article explores the complex relation between consumer insolvency law and suicide in Japan, where bankruptcies and suicides have increased dramatically in recent years. The statistical and interview evidence, some of which relates to the creation of a relatively efficient and socially acceptable insolvency mechanism in 2001, suggests that law is at least indirectly relevant to decisions to take one’s own life. Law can bring about debt control and stigma mitigation, each of which can lead to lower levels of stress and depression, each of which can lead to lower suicide rates. Still, responses to the law, even in relatively …

Employment Market Institutions And Japanese Working Hours, Mark West

Law & Economics Working Papers Archive: 2003-2009

Why do Japanese workers work such long hours? Beginning with a series of cases in the 1950s, Japanese courts drastically curtailed firms’ abilities to dismiss workers. As a consequence of the inability to dismiss workers legally, large Japanese firms hired a smaller number of workers than were necessary to fulfill capacity without overtime. Employers rely on the working hours of this undersized cadre of workers, carefully screened to rule out the slothful, as a buffer. In bad times, the size of the work force makes dismissal unnecessary. In good times, workers are forced to work long hours. While these court …

Trust Law, Corporate Law, And Capital Market Efficiency, Robert H. Sitkoff

Law & Economics Working Papers Archive: 2003-2009

In both the publicly-traded corporation and the private donative trust a crucial task is to minimize the agency costs that arise from the separation of risk-bearing and management. But where the law of corporate governance evolved in the shadow of capital-market checks on agency costs, trust governance did not. Thus, even more than that of close corporations, the law and study of private trusts offers an illuminating counterfactual -- a control, as it were -­ for a playful thought experiment about the importance of capital market efficiency to the law and study of public corporations. The animating idea for this …

Vol. 54, No. 7, November 25, 2003, University Of Michigan Law School

Res Gestae

•Professor Points out Problems, Pitfalls of Police Profiling Practices •A Ticket to Ride, Straight to the Big House •Robert Rubin Welcomed at 2003 Dean's Special Lecture •New Student Group Takes Aim at School Policy, Federal Legislation •Treatment of JAG Corps Threatens Academic Freedom, Institutional Identity •Quick, Legal Ways to Earn Extra Holiday Cash •Your Brain on Drugs : How Not to Take Law School Exams •Of Earrings and Other Symbols: An Hour with Professor Sherman Clark •Transnational Law, Base-Jumping and Lederhosen- You Guessed it, Professor Mathias Reimann •Just in Time for Autumn: The Shins Chutes Too Narrow •What's in an …

Vol. 54, No. 6, November 11, 2003, University Of Michigan Law School

Res Gestae

•Flyin' High with J.J. White •Summer Jobs Involving "Something (il)Legal" •Are Animals People Too? SALDF Hosts Talk on Integration of Animals into the Legal System •Students Discuss Summer Jobs in Criminal Law •Analysis: FEC Commissioner Skeptical of Finance Reform •Can We Trust Cops? Visiting Professor Warns to Think Twice •What to Do When the First Wave of Recruiters Passes You By •NLRB Chairman Returns to Law School, Talks Shop •A Big Carrot for 3Ls to Give Back •Immigration Law After 9/11: A Discussion with Prof. Bo Cooper •Date Auction Photos •Students and Professors Mingle Over Wine and Cheese •Unprecedented Pressure …

Vol. 54, No. 5, October 28, 2003, University Of Michigan Law School

Res Gestae

•Caught on Tape: Yale Kamisar Talks About End of Teaching Career •ACS and BLSA Host Assault on Gun Violence •Lecture on Academic Freedom Features Professor's Thoughts on Civil Liberties •Students Take Time Our in Dean's Corner •Werewolves as Friends: A Trip to Cedar Point •Identity Theft and Financial Aid: Should You be Worried? •An American in Oxford: What's History Got to do With it Anyway? •She May Have Stolen Your Soul, But my Jacket's Missing •Sports v. Memo, and State's Little Brother Syndrome •Will Work for Food: French Laundry Dreams and Taillevant Fantasies... •There ARE Republicans at the University of …

Vol. 54, No. 4, October 14, 2003, University Of Michigan Law School

Res Gestae

•Downloaders Beware! Record Industry Lawsuits are Indeed 2 Legit 2 Quit •Burning the Midnight Oil with the Insomniac-In-Chief •Letter to the Editor: Taking the MPRE- It's a Mystery to Us •Alcohol Policy Abused: Training Sessions Needs Redirection •ACLU Celebrates Banned Books •The Empire Strokes Back •Fifty Ways to Leave Your Laptop

Vol. 54, No. 3, September 30, 2003, University Of Michigan Law School

Res Gestae

•Booze Boos: Students Weigh In on the New Alcohol Policy •Getting in Touch With My Inner Gear-Head •U.S. Ambassador to China Delivers Bishop Lecture on International Law •Supreme Court Wrap-Up: Not Much Wrap, but Pizza was Most Excellent! •Dean Caminker Holds Forum on the Virtues of Public Service •So You Want to Win the Campbell Moot Court Competition •Guided by Voices- Earthquake Glue •What I Learned in My First Month: Duck! •On the Fly, On the Cheap, and Healthy? •Singing the Mantra of the Underdog •1Ls Lend Support to Detroit Nine •Annual Canoe Trip Photos •LSSS Funding Allocations for 2003-2004 …

Measuring Recovery For Non-Contractual Investment, Omri Ben-Shahar, Robert A. Mikos

Law & Economics Working Papers Archive: 2003-2009

Parties who make investments that generate externalities may sometimes recover from the beneficiaries, even in the absence of contract. Previous scholarship has shown that granting recovery, based on either the cost of the investment or the benefit it confers, can provide optimal incentives to invest. However, this article demonstrates that the law often awards recovery that is neither purely cost-based, nor purely benefit-based, and instead equals either the greater-of or lesser-of the two measures. These hybrid approaches to recovery distort incentives to invest. The article demonstrates the prevalence of these practices, and explores informational and related reasons why they emerge. …

Vol. 54, No. 2, September 16, 2003, University Of Michigan Law School

Res Gestae

•Bigger and Better: Class of 2006 Profile •Greetings From the Editor's Desk •Remembering 9/11: Then and Now •Speaker Offers New Insights on Middle East •y Life as a 1L: Beverly Hills 48109 •Getting Involved: Student Groups Welcome 1Ls at Student Organization Fair •Judge Brudo Simma Delivers Special Lecture •Maybe It's Really Different This Year •Anti-Discrimination Policy Inhibits Student Choice •Michiganders Unite: State Bar Has Much to Offer •Crossword

An Agency Costs Theory Of Trust Law, Robert H. Sitkoff

Law & Economics Working Papers Archive: 2003-2009

This Article develops an agency costs theory of the law of private trusts, focusing chiefly on donative trusts. The agency costs approach offers fresh insights into recurring problems in trust law including, among others, modification and termination, settlor standing, fiduciary litigation, trust-investment law and the duty of impartiality, trustee removal, the role of so-called trust "protectors," and spendthrift trusts. The normative claim is that the law of trusts should minimize the agency costs inherent in locating managerial authority with the trustee and the residual claim with the beneficiaries, but only to the extent that doing so is consistent with the …

What Counts As Fraud? An Empirical Study Of Motions To Dismiss Under The Private Securities Litigation Reform Act, Adam C. Pritchard, Hillary Sale

Law & Economics Working Papers Archive: 2003-2009

This article presents the findings of a study of the resolution of motions to dismiss securities fraud lawsuits since the passage of the Private Securities Litigation Reform Act in 1995. Our sample consists of decisions on motions to dismiss in securities class actions by district and appellate courts in the Second and Ninth Circuits for cases filed after the passage of the Reform Act to the end of 2002. These circuits are the leading circuits for the filing of securities class actions and are generally recognized as representing two ends of the securities class action spectrum. Post-PSLRA, the Second Circuit …

Following The Man On The Clapham Omnibus: Social Science Evidence In Malpractice Litigation, Richard O. Lempert

Law & Economics Working Papers Archive: 2003-2009

This article responds to proposals to admit statistical evidence from empirical studies of actual health care practices to prove prevailing health practice standards in malpractice litigation by arguing that the case for doing so has numerous weaknesses that advocates of admitting such data commonly ignore. A fundamental concern is that the standard of practice defense co-evolved with prevailing modes of proof and might have been different had proof through experts not allowed for an aspirational as well as an empirical element to reach the jury. The article also argues that generating reliable statistical evidence of standard medical practice can be …

Vol. 54, No. 1, July 2, 2003, University Of Michigan Law School

Res Gestae

•The New Face of Michigan Law: A Conversation with Dean Caminker •Just a Little Patience •SFF Continues Hotel Voucher Program •Returning 3Ls Discuss Working in Detroit as a Summer Associate •Summer Emails from Cambodia •Boston Firm Helps ''Legal Eagles'' Get Their Wings •Crossword Puzzle

Border Patrol, Carl E. Schneider

Articles

Recently, the Supreme Court has encountered cases that concern perhaps our weightiest bioethical issue-how medical care is to be rationed. But this does not mean that the Court must therefore assess the justice of rationing, as many people incited by many journalists now fondly and firmly believe. In explaining why, we begin with a story about how Learned Hand remembered saying one day to Justice Holmes, "Well, sir, goodbye. Do justice!" Holmes turned quite sharply and said: "That is not my job. My job is to play the game according to the rules." If the Court doesn't do justice, what …

Legal Transitions, Rational Expectations, And Legal Progress, Kyle D. Logue

Law & Economics Working Papers Archive: 2003-2009

This paper was written for a symposium on legal transitions. The central question in the transitions literature is whether or to what extent the government should provide compensation for (or seek in some way to ameliorate) the losses of wealth occasioned by unexpected changes in the law or social policy. This Article argues that the prevailing normative framework for evaluating legal transitions - the consequentialist or economic framework - relies critically on two assumptions: the assumption that private parties (whose incentives are sought to be affected by the choice of transition norm) will behave with rational expectations and the assumption …

Building A Home For The Laws Of The World: Part 1: Bates, Cook, And Coffey, Margaret A. Leary

Articles

The following feature is an 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 appears here; the conclusion will appear in the next issue of Law Quadrangle Notes.

Against Preemption: How Federalism Can Improve The National Legislative Process, Roderick Hills

Law & Economics Working Papers Archive: 2003-2009

How easily should courts infer that federal statutes preempt state law? An ongoing debate exists on the question in Congress and among scholars and judges. One side calls for judges to protect federalism by adopting a rule of statutory construction that would bar preemption absent a clear statement of preemptive intent. Opponents argue against such a "clear statement" rule by arguing that state control over preemptable topics is often presumptively inefficient, because common-law juries lack expertise and because states are prone to imposing external costs on their neighbors. This article sidesteps these debates over preemption and instead argues that, quite …

Insuring Against Terrorism And Crime, Saul Levmore, Kyle D. Logue

Law & Economics Working Papers Archive: 2003-2009

The attacks of September 11th produced staggering losses of life and property. They also brought forth substantial private insurance payouts, as well as federal relief for the City of New York and for the families of individuals who perished on that day. The losses suffered in and after the attacks, and the structure of the relief effort, have raised questions about the availability of insurance against terrorism, the role of government in providing for, subsidizing, or ensuring the presence of such insurance, and the interaction between relief and the incentives for future precaution taking. In response to such losses, and …

Vol. 53, No. 11, April 15, 2003, University Of Michigan Law School

Res Gestae

•Blood, Gin, Ghana, and Learning to Fly: It Could Only be Professor Simpson •One Last Distraction •Avoiding the Breaking Point •Boender's 1L Parting Thoughts •Administration Does Not Plan for Rainy Day •Spring Fever Hits the Quad •Law School Team Wins National Native American Moot Court Tournament •Profs Offer Final Exam Tips •Judge Calebresi Urges Liberals to Shoulder the Burden of Equality •Crossword

Vol. 53, No. 10, April 1, 2003, University Of Michigan Law School

Res Gestae

•Annual Tax Challenge Team Takes Top Honors in Texas •WLSA Members Urge Input on Faculty Hiring •Sports Law Team Makes "Final Four" •Law School Advances in International Moot Court Competition •Students Compete in National Environmental Moot Court Competition •79th Annual Henry M. Campbell Moot •Court Competition Enters Final Round •The 2002-2003 Final Round Judges •Grade Curves •Cursive- The Ugly Organ •Crossword

Vol. 53, No. 9, March 18, 2003, University Of Michigan Law School

Res Gestae

•Dean Lehman Reflects on Time at Michigan, Looks Forward to New Role •March Musings •A 3L's Advice: Hello Hawaii! •Family First: An Interview with a First-Generation Lawyer •SFF Faces Budget Crunch •Carnivale Internacionale: Annual Law School Prom •Bon Jovi: The Tie that Binds •Out of Gavels: The Year's Worst Music Moments •Crossword

Vol. 53, No. 8, February 11, 2003, University Of Michigan Law School

Res Gestae

•Welcome to My World: A Chat with Dean Sarah Zearfoss •Searching for the Muse •Game On, Eh? •Criminal Law Society Offers Candid Advice on Career Planning •Chicken Soup for the Lawyer's Soul •South African Justice Speaks •In Loving Memory •Bar Week 2003 Draws a Crowd •Valentine's Day •Joan of Arc Rises from the Ashes •Crossword

Brief For Respondents, Grutter V. Bollinger, 539 Us 306 (2003) (No. 02-241)., Maureen E. Mahoney, Evan Caminker, Marvin Krislov, Jonathan Alger, Philip J. Kessler, Leonard M. Niehoff, J. Scott Ballenger, Nathaniel A. Vitan, John H. Pickering, John Payton, Brigida Benitez, Stuart Delery, Craig Goldblatt, Anne Harkavy, Terry A. Maroney

Appellate Briefs

QUESTIONS PRESENTED

1. Whether this Court should reaffirm its decision in Regents of University of California v. Bakke, 438 U.S. 265 (1978) and hold that the educational benefits that flow from a diverse student body to an institution of higher education, its students, and the public it serves, are sufficiently compelling to permit the school to consider race and/or ethnicity as one of many factors in making admissions decisions through a "properly devised" admissions program.

2. Whether the Court of Appeals correctly held that the University of Michigan Law School's admissions program is properly devised.

Behavioral Economics And The Sec, Stephen Choi, Adam C. Pritchard

Law & Economics Working Papers Archive: 2003-2009

Investors face myriad investment alternatives and seemingly limitless information concerning those alternatives.Not surprisingly, many commentators contend that investors frequently fall short of the ideal investor posited by the rational actor model. Investors are plagued with a variety of behavioral biases (such as, among others, the hindsight bias, the availability bias, loss aversion, and overconfidence). Even securities market institutions and intermediaries may suffer from biases, led astray by groupthink and overconfidence. The question remains whether regulators should focus on such biases in formulating policy. An omnipotent regulatory decisionmaker would certainly improve on flawed investor decisionmaking. The alternative we face, however, is …

Vol. 53, No. 7, January 28, 2003, University Of Michigan Law School

Res Gestae

•A View from the Crowd: Detroit Auto Show 2003 •Students March to Celebrate MLK Day •Holocaust Asset Seizure: Lawyer Discusses Case •NYC ESP •Inquiring Eyes Take Note •Billy Corgan Returns •Office of Public Service Promotes Pro Bono Work •Lace, Grace All Up in Your Face •"Bush League" Cry for Equal Opportunity •Grade Summary •Michigan Law Hosts Doctor King Symposium •Crossword

Tax Stories And Tax Histories: Is There A Role For History In Shaping Tax Law?, Reuven S. Avi-Yonah

Reviews

The teaching of law is usually rather ahistorical. Teachers commonly focus on current doctrine and policy debates, discarding on the "garbage pile of history" any law that has been repealed or superseded. And yet, much of law teaching is still based on reading cases. And cases are by definition historical artifacts - they arise from a specific time and place, and reflect a frequently long-gone historical context. Thus, it is hard to imagine a modern law course completely devoid of history, even if the history gets short shrift. A constitutional law course, for example, will likely include some discussion of …

One Inspiring Jury, Phoebe C. Ellsworth

Reviews

Americans love to complain about the jury. They complain about being called for jury duty. They complain about jury verdicts in highly publicized cases. They are outraged by the failure to convict "obviously guilty" criminals, such as the police officers in the cases of Rodney King and Amadou Diallo, the Menendez brothers in their first trial, and of course O.J. Simpson. In civil cases, they are appalled when plaintiffs win huge damage awards in "obviously frivolous" lawsuits. Juries are ignorant and uneducated, juries are gullible, juries are swayed by passion and prejudice rather than reason. Criticizing jury verdicts allows us …

Review Of Explaining The English Revolution: Hobbes And His Contemporaries, Donald J. Herzog

Reviews

The explosion of primary texts from seven- teenth-century England continues to trigger an explosion of scholarly treatments today. For good reason, too: Lots of the primary texts are amazing, and not just those tired old warhors- es, Hobbes's Leviathan and Locke's Second Treatise. As fun and challenging as the primary texts are, you are forgiven a touch of skepticism if you wonder just what the latest author has to add to our understanding. You might redouble your skepticism if you just glance at Mark Stephen Jendrysik's table of contents, offering chapters on Winstanley, Milton, Cromwell, Filmer, and Hobbes, and zeroing …