Law Commons^™

Risky Ventures: The Impact Of Irs Health Care Joint Venture Policy, Roger P. Meyers

University of Michigan Journal of Law Reform

IRS oversight of joint ventures between exempt and for-profit organizations has undergone substantial change over the past thirty years. This change has important consequences for the health care industry, where joint ventures have grown increasingly common. In the face of unclear guidance and aggressive enforcement of exemption-policing tools such as the private benefit doctrine and the control test, a hospital risks revocation of its tax-exempt status, or liability for unrelated business income tax, when it engages in a joint venture directly. It may be able to eliminate this risk by operating the same joint venture through a for-profit subsidiary; however, …

Negligence And Insufficient Activity: The Missing Paradigm In Torts, David Gilo, Ehud Guttel

Michigan Law Review

Conventional wisdom in tort law maintains that the prevention of undesirable risks mandates restriction of harmful conduct. Against this widely held conviction, this Article shows that undesirable risks often stem from insufficient, rather than excessive, activity. Because negligence requires investments in only cost-justified care, parties might deliberately limit their activity so that the size of the ensuing risk would be lower than the cost of welfare-enhancing precautions. Parties' incentives to strategically restrict their activity levels have striking implications for the inducement of efficient harm prevention. The overlooked paradigm of insufficient activity calls for the imposition of a new form of …

'A Literary Man & A Merchant': The Legal Career Of Sir William Young, William H. Laurence

PhD Dissertations

Sir William Young (1799-1887) of Halifax was a leading lawyer, served as Attorney General, promoted legal reforms in the Assembly, sat as Chief Justice of the Nova Scotia Supreme Court, and promoted the establishment of Dalhousie University's Faculty of Law. He thereby fulfilled a variety of roles in his pursuit of two professional goals he had set at an early age, namely material success and intellectual interest. Nonetheless, his career in the law has been mostly ignored. By examining Young's legal career in detail, especially by paying attention to the duties he performed in his professional roles, this thesis seeks …

The Tort Of Betrayal Of Trust, Caroline Forell, Anna Sortun

University of Michigan Journal of Law Reform

Fiduciary betrayal is a serious harm. When the fiduciary is a doctor or a lawyer, and the entrustor is a patient or client, this harm frequently goes unremedied. Betrayals arise out of disloyalty and conflicts of interest where the lawyer or doctor puts his or her interest above that of his or her client or patient. They cause dignitary harm that is different from the harm flowing from negligent malpractice. Nevertheless, courts, concerned with overdeterrence, have for the most part refused to allow a separate claim for betrayal. In this Article, we suggest that betrayal deserves a remedy and propose …

Duty Of Fair Representation Jurisprudential Reform: The Need To Adjudicate Disputes In Internal Union Review Tribunals And The Forgotten Remedy Of Re-Arbitration, Mitchell H. Rubinstein

University of Michigan Journal of Law Reform

One of the best kept secrets in American labor law is that duty of fair representation jurisprudence simply does not work. It does not work for plaintiff union members because they must satisfy a close-to-impossible burden of proof and have a short statute of limitations window in which to assert their claim. It does not work for defendant unions because they are often forced to file pointless grievances in order to avoid the cost of litigation. It does not work for defendant employers because they are often brought into these lawsuits because they have the "deep pockets."

This Article makes …

Has Corporate Law Failed? Addressing Proposals For Reform, Antony Page

Michigan Law Review

Part I of this Review discusses the modem "nexus of contracts" approach to corporations and highlights how Greenfield's views differ. Part II examines corporate goals and purposes, suggesting that Greenfield overstates the impact of the shareholder-primacy norm and does not offer a preferable alternative. Part III critiques the means to the ends--Greenfield's proposals for changing the mechanics of corporate governance. Although several of his proposals are intriguing, they seem unlikely to achieve their pro-social aims. This Review remains skeptical, in part because-even given its problems-the U.S. "director-centric governance structure has created the most successful economy the world has ever seen." …

Permitting Under The Clean Air Act: How Current Standards Impose Obstacles To Achieving Environmental Justice, Annise Katherine Maguire

Michigan Journal of Race and Law

Most studies about the environmental justice movement focus on the disproportionate share of environmental burdens minority and low-income populations bear, the negative effects of an unequal distribution of undesirable land uses, and how industry contributes to the adverse impacts suffered by the communities. Unfortunately, trying to prove that an injury was caused by actions of a nearby facility is difficult, and this approach has yielded few legal victories for environmental justice communities. While it is important to remain focused on how environmental justice communities are disproportionately impacted by undesirable land uses, the analysis must shift if the law is to …

Does Misery Love Company - Evidence From Pharmaceutical Markets Before And After The Orphan Drug Act, Frank R. Lichtenberg, Joel Waldfogel

Michigan Telecommunications & Technology Law Review

The possibility that small populations would see few medications developed for their conditions has [...] led the U.S. Congress to pass the 1983 Orphan Drug Act ("ODA"), giving firms special incentives to develop drugs for diseases afflicting fewer than 200,000 persons per year.[...][U]under the Act, drug makers receive seven years of exclusive marketing upon FDA approval of newly-developed drugs qualifying as "orphan drugs"--i.e., drugs for disorders affecting fewer than 200,000 persons.[...]Together, [the] provisions (a) increase the effective market size; and (b) reduce fixed (sunk) costs. In doing so, the Act provides a natural experiment for measuring the impact of increased …

The Failure Of Sexting Criminalization: A Plea For The Exercise Of Prosecutorial Restraint, Robert H. Wood

Michigan Telecommunications & Technology Law Review

The purpose of this Essay is to explore the various legal approaches to the sexting phenomenon through an analysis of a decision by the United States District Court for the Middle District of Pennsylvania, which granted a temporary restraining order enjoining the prosecution of sexting teens on constitutional grounds, and an examination of current and pending legislative attempts to deal with the sexting phenomenon. Section I describes the facts leading up to the district court decision and its subsequent holding. Section II examines the approaches to sexting prosecution and legislation taken by other states. Section III analyzes the legal issues …

Pdufa And Initial U.S. Drug Launches, Mary K. Olson

Michigan Telecommunications & Technology Law Review

In the 1970s and 1980s, many pharmaceutical firms launched new drugs abroad prior to gaining U.S. approval. Consequently, U.S. patients often faced delays in accessing important new medicines. High regulatory barriers to entry, such as a stringent regulation and a lengthy drug review process, contributed to this problem. This Article examines the impact of the Prescription Drug User Fee Act (PDUFA), and subsequent increases in the speed of FDA review, on the likelihood of initial U.S. drug launches. These factors are hypothesized to lower regulatory barriers to entry in the U.S. pharmaceutical market. The results show that increased drug review …

Regulating Robocalls: Are Automated Calls The Sound Of, Or A Threat To, Democracy, Jason C. Miller

Michigan Telecommunications & Technology Law Review

African-American voters receive a phone message implying that they are not registered to vote. Others hear "an almost threatening male voice," a "fake New York accent," factual distortions about legislation, false endorsements from controversial groups, calls promoting one candidate claiming to be from his opponent, and a constant barrage of annoying phone calls designed to make voters think a different candidate was sponsoring them. These messages were delivered through automated political telephone calls, also known as robocalls. Robocalls are cheap and efficient--one can deliver a pre-recorded message through 100,000 automated phone calls in one hour for only $2000. Consequently, robocalls …

The Super Brawl: The History And Future Of The Sound Recording Performance Right, Brian Day

Michigan Telecommunications & Technology Law Review

On February 4, 2009, Senator Patrick Leahy introduced the Performance Rights Act ("PRA") to the Senate, joined by Representative John Conyers in the House of Representatives. Thirty-eight years after sound recordings were first granted federal copyright protection against unauthorized reproduction and distribution--and more than ten years after gaining a limited digital performance right--legislation is pending that would once again expand the scope of sound recording copyright to encompass terrestrial radio broadcasts. Historically, such broadcasts have been exempt from sound recording performance royalties.[...] Instead of (or in addition to) seeking remuneration from terrestrial radio stations, this Note suggests that sound recording …

Legislation For Effective Self-Regulation: A New Approach To Protecting Personal Privacy On The Internet, Richard M. Marsh Jr.

Michigan Telecommunications & Technology Law Review

How can we best reap the benefits of online profiling while avoiding the privacy pitfalls plaguing the e-commerce community? Experts advocate legislation, civil litigation, or self-regulation to provide the ideal solution. Analyzing these proposals reveals a conflict between two basic principles: the need to preserve personal privacy and the desire to foster a thriving Internet-based industry. This Note argues that each approach tends to favor one principle at the expense of the other. This Note also proposes a new solution which creates incentives for effective self-regulation backed with legal enforcement. This scheme strikes an appropriate balance between privacy and e-commerce …

Challenging Monohumanism: An Argument For Changing The Way We Think About Intercountry Adoption, Shani King

Michigan Journal of International Law

In Part I, this Article provides a brief history of ICA. In Part II, using a post-colonialist theoretical framework, the work of legal scholars from the past twenty years on the subject of ICA is explored. This analysis exposes the centrality of MonoHumanism to our discourse on ICA. In Part III, this Article illustrates how our discourse regarding intercountry adoption contributes to our violating the rights of children (and families) as they are defined in the CRC. Lastly, in Part IV, this Article explores how this argument fits into the current and somewhat polarized debate on ICA and how the …

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

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 …

The Gay Agenda, Libby Adler

Michigan Journal of Gender & Law

This Article is designed to illuminate options that the author believes have been difficult for advocates of gay rights to imagine due to an incessant culture war and the hard work of anti-gay forces that have kept pro-gay advocates under persistent fire. The culture war, this paper argues, while a fundraising boon and a media draw, compels a particular type of participation and a particular reform agenda, eclipsing reform possibilities that might be preferable in the long run.

Pursuing The Perfect Mother: Why America's Criminalization Of Maternal Substance Abuse Is Not The Answer- A Compartive Legal Analysis, Linda C. Fentiman

Michigan Journal of Gender & Law

In this Article the author will examine not only the substantive legal differences between the United States, Canada, and France, but will also explore how these legal rules fit within a broader social, political, and religious setting. This Article will pursue four lines of inquiry. First, it will briefly chronicle the history of criminal prosecution of pregnant women in America and show how these prosecutions have become markedly more aggressive over the last twenty years. Second, it will situate these prosecutions in the full context of American law and culture, demonstrating how the fetus has received increasing legal recognition in …

The Tort Of Betrayal Of Trust, Caroline Forell, Anna Sortun

Caroline A Forell

Fiduciary betrayal is a serious harm. When the fiduciary is a doctor or a lawyer, and the entrustor is a patient or client, this harm frequently goes unremedied. Betrayals arise out of disloyalty and conflicts of interest where the lawyer or doctor puts his or her interest above that of his or her client or patient. It causes dignitary harm that is different from the harm flowing from negligent malpractice. Nevertheless, courts, concerned with overdeterrence, have for the most part refused to allow a separate claim for betrayal. In this Article, we suggest that betrayal deserves a remedy and propose …

Eatin' Good? Not In This Neighborhood: A Legal Analysis Of Disparities In Food Availability And Quality At Chain Supermarkets In Poverty-Stricken Areas, Nareissa Smith

Michigan Journal of Race and Law

Many Americans-especially the poor-face severe hurdles in their attempts to secure the most basic of human needs-food. One reason for this struggle is the tendency of chain supermarkets to provide a limited selection of goods and a lower quality of goods to patrons in less affluent neighborhoods. Healthier items such as soy milks, fresh fish, and lean meats are not present in these stores, and the produce that is present is typically well past the peak of freshness. Yet, if the same patron were to go to another supermarket owned by the same chain--but located in a wealthier neighborhood-she would …

Common Challenges Facing Shareholder Suits In Europe And The United States, Randall Thomas, James D. Cox

Vanderbilt Law School Faculty Publications

Episodic and even sometimes systematic misbehavior by businessmen and corporate entities is ubiquitous. While Enron and WorldCom were the battle cries for corporate reform in the U.S. so it was with Ahold and Parmalat across Europe. No country is free of concern that company officers will misbehave thereby injuring investors, consumers and destroying shareholder value. Thus, this symposium issue collects the recent experiences across Europe in strengthening shareholder suits. Most recent legislative efforts in Europe, and hence the comments in the symposium, are focused on the derivative suit. Just as the American experience with class actions, reviewed separately in this …

The Lawyer's Role In A Contemporary Democracy, Promoting Social Change And Political Values, True Confessions About The Role Of Lawyers In A Democracy, Fred C. Zacharias

Fordham Law Review

No abstract provided.

Comparative Law By Numbers? Legal Origins Thesis, Doing Business Reports, And The Silence Of Traditional Comparative Law, Ralf Michaels

Faculty Scholarship

The legal origins thesis -- the thesis that legal origin impacts economic growth and the common law is better for economic growth than the civil law -- has created hundreds of papers and citation numbers unheard of among comparative lawyers. The Doing Business reports -- cross-country comparisons including rankings on the attractiveness of different legal systems for doing business -- have the highest circulation numbers of all World Bank Publications; even critics admit that they have been successful at inciting legal reform in many countries in the world. Yet, traditional comparative lawyers have all but ignored these developments.

The first …

A Response To The Critics Of Corporate Criminal Liability, Sara Sun Beale

Faculty Scholarship

This essay responds to critics of corporate liability and to the claim that elimination or limitation of such liability should be a priority for law reform. It discusses four points. First, imposing criminal liability on corporations makes sense, because corporations are not mere “fictional” entities. Rather, corporations are very real – and enormously powerful – actors whose conduct often causes very significant harms both to individuals and to society as a whole. Second, in evaluating the priorities for law reform it is critical to recognize that most of the problems with corporate liability are endemic to U.S. criminal law, rather …

The Future Of American Labor And Employment Law: Hopes, Dreams, And Realities, Theodore J. St. Antoine

Articles

In many respects the US is a deeply conservative country. Unique among the major industrial democracies of the world, it imposes the death penalty, provides no national health insurance, fixes a high legal drinking age, and subscribes to the doctrine of employment at will. Perhaps not surprisingly, its labor movement is also one of the most conservative on earth, eschewing class warfare and aiming largely at the bread-and-butter goal of improved wages, benefits, and working conditions. Yet American employers have generally never been as accepting of unionization as their counterparts in other countries (Bok 1971; Freeman and Medoff 1984). Over …

Sentence Reduction As A Remedy For Prosecutorial Misconduct, Sonja B. Starr

Articles

Current remedies for prosecutorial misconduct, such as reversal of conviction or dismissal of charges, are rarely granted by courts and thus do not deter prosecutors effectively. Further, such all-or-nothing remedial schemes are often problematic from corrective and expressive perspectives, especially when misconduct has not affected the trial verdict. When granted, these remedies produce windfalls to guilty defendants and provoke public resentment, undermining their expressive value in condemning misconduct. To avoid these windfalls, courts refuse to grant any remedy at all, either refusing to recognize violations or deeming them harmless. This often leaves significant non-conviction-related harms unremedied and egregious prosecutorial misconduct …

Warranties In The Box, James J. White

Articles

Thousands of times each day, a buyer opens a box that contains a new computer or other electronic device. There he finds written material including an express "Limited Warranty." Sometimes the box has come by FedEx directly from the manufacturer; other times the buyer has carried it home from a retail merchant. Despite the fact that it is standard practice for the manufacturer to include a limited written express warranty on the sale of such products,' and despite the fact that both the manufacturer and the buyer believe that warranty to be legally enforceable, the law on its enforceability is …

Working Group On Chapter 1 Of The Proposed Restatement Of Employment Law: Existence Of Employment Relationship, Dennis R. Nolan, Theodore J. St. Antoine, Joseph E. Slater, Alvin Goldman

Articles

This article presents a critique of chapter 1 of the Proposed Restatement of Employment Law. The critique is organized to follow the organization of the proposed Restatement, which begins with a provision of black letter law, a series of comments and illustrations explaining the meaning and application of the black letter law, and the reporters' notes providing support for the black letter law and the commentary. This critique will follow that structure, with each part focusing on a section of the chapter: the introductory note; section 1.01; section 1.02; section 1.03; and section 1.04. The subdivisions of the parts will, …

Monitoring Of Corporate Groups By Independent Directors, Adam C. Pritchard

Articles

Both the United States and Korea have reformed their corporate governance in recent years to put increasing responsibilities on independent directors. Independent directors have been found to be an important force protecting the interests of shareholders when it comes time to make certain highly salient decisions, such as firing a CEO or selling the company. This article compares the role of independent directors in the US and Korean systems. I argue that the US may have placed regulatory burdens on independent directors that they are unlikely to be able to satisfy, given their part-time status. By contrast, in the chaebol …

Prosecuting Worker Endangerment: The Need For Stronger Criminal Penalties For Violations Of The Occupational Safety And Health Act, David M. Uhlmann

Articles

A recent spate of construction deaths in New York City, similar incidents in Las Vegas, and scores of fatalities in recent years at mines and industrial facilities across the country have highlighted the need for greater commitment to worker safety in the United States and stronger penalties for violators of the worker safety laws. Approximately 6,000 workers are killed on the job each year1—and thousands more suffer grievous injuries—yet penalties for worker safety violations remain appallingly small, and criminal prosecutions are almost non-existent. In recent years, most of the criminal prosecutions for worker safety violations have been brought by the …