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2010

University of Michigan Law School

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Articles 1 - 30 of 241

Full-Text Articles in Law

Déjà Vu All Over Again? Reflections On Auerbach's 'Modern Corporate Tax', Reuven S. Avi-Yonah Dec 2010

Déjà Vu All Over Again? Reflections On Auerbach's 'Modern Corporate Tax', Reuven S. Avi-Yonah

Law & Economics Working Papers

This paper comments on Alan Auerbach's "A Modern Corporate Tax" (Hamilton Project/CAP, December 2010) and argues that it is not a significant improvement over previous proposals to replace the corporate tax with a cash flow tax.


On The Role And Regulation Of Proxy Advisors, Paul Rose Dec 2010

On The Role And Regulation Of Proxy Advisors, Paul Rose

Michigan Law Review First Impressions

In anticipation of proxy season-the springtime ritual where companies prepare and deliver proxy statements in preparation for annual shareholder meetings-U.S. public companies typically reexamine their corporate governance structures and policies. Many corporate governance structures that were acceptable ten years ago are now considered outmoded or even evidence of managerial entrenchment. For example, consider the classified board of directors. In recent years, many companies have shifted from a classified board of directors to an annually elected board. A company might adopt an annually-elected board structure for a number of reasons. A classified board can serve as an entrenchment device, for ...


Separation Of Law And State, Talia Fisher Dec 2010

Separation Of Law And State, Talia Fisher

University of Michigan Journal of Law Reform

In the framework of the jurisprudential literature, the law-state bond is assumed as a given. Points of dispute emerge only at more advanced stages of the discussion, with respect to such questions as the duty to obey state law or the appropriate extent of state intervention in social relations. This Article will be devoted to a reconsideration of the presupposition of the law-state link and to challenging the state's status vis-à-vis the law-both in its role as the producer of legal norms and its capacity as the arbiter of disputes.

The Article opens with a comparative elucidation of the ...


Undoing Undue Favors: Providing Competitors With Standing To Challenge Favorable Irs Actions, Sunil Shenoi Dec 2010

Undoing Undue Favors: Providing Competitors With Standing To Challenge Favorable Irs Actions, Sunil Shenoi

University of Michigan Journal of Law Reform

The Internal Revenue Service occasionally creates rules, notices, or regulations that allow taxpayers to pay less than they would under a strict reading of the law. Sometimes, however, these IRS actions are directly contrary to federal law and have significant economic impact. Challenging favorable IRS actions through litigation will likely be unsuccessful because no plaintiff can satisfy the requirements for standing. To address this situation, this Note proposes a statutory reform to provide competitors with standing to challenge favorable IRS actions in court.


Trespassory Art, Randall Bezanson, Andrew Finkelman Dec 2010

Trespassory Art, Randall Bezanson, Andrew Finkelman

University of Michigan Journal of Law Reform

The history of art is replete with examples of artists who have broken from existing conventions and genres, redefining the meaning of art and its function in society. Our interest is in emerging forms of art that trespass-occupy space, place, and time as part of their aesthetic identity. These new forms of art, which we call trespassory art, are creatures of a movement that seeks to appropriate cultural norms and cultural signals, reinterpreting them to create new meaning. Marcel DuChamp produced such a result when, in the early twentieth century, he took a urinal, signed it, titled it Fountain, and ...


The Unjustified Judicial Creation Of Class Certification Merits Trials In Securities, Michael J. Kaufman, John M. Wunderlich Dec 2010

The Unjustified Judicial Creation Of Class Certification Merits Trials In Securities, Michael J. Kaufman, John M. Wunderlich

University of Michigan Journal of Law Reform

The class action device is vital to deterring securities fraud and remedying its victims, who almost never suffer losses sufficient to justify an individual suit. Nonetheless, the federal courts have begun to convert the class certification process into a premature trial on the merits, thereby precluding victims of securities fraud from pursuing otherwise valid claims of financial wrongdoing. In particular, in a series of important decisions, the federal courts have required plaintiffs to prove the essential elements of their securities fraud claims at the preliminary class certification stage.

This Article demonstrates why this trend should end. The judicial creation of ...


Technology Convergence And Federalism: Who Should Decide The Future Of Telecommunications Regulation?, Daniel A. Lyons Dec 2010

Technology Convergence And Federalism: Who Should Decide The Future Of Telecommunications Regulation?, Daniel A. Lyons

University of Michigan Journal of Law Reform

This Article critically examines the division of regulatory jurisdiction over telecommunications issues between the federal government and the states. Currently, the line between federal and state jurisdiction varies depending on the service at issue. This compartmentalization might have made sense fifteen years ago, but the advent of technology convergence has largely rendered this model obsolete. Yesterday's telephone and cable companies now compete head-to-head to offer consumers the vaunted "triple play" of voice, video, and internet services. But these telecommunications companies are finding it increasingly difficult to fit new operations into arcane, rigid regulatory compartments. Moreover, services that consumers view ...


The "Enlightened Barbarity" Of Inclusive Fitness And Wrongful Death: Biological Justifications For An Investment Theory Of Loss In Wycko V. Gnodtke, Ryan Shannon Dec 2010

The "Enlightened Barbarity" Of Inclusive Fitness And Wrongful Death: Biological Justifications For An Investment Theory Of Loss In Wycko V. Gnodtke, Ryan Shannon

University of Michigan Journal of Law Reform

Wrongful death laws should permit and encourage courts and juries to consider the survivors' investment in decedents when determining wrongful death damages, given new biological justifications for this theory of loss. The investment theory of damages, which permits an award of damages based on the investment of financial resources relatives make in one another, originated in Michigan's courts in the early 1 960s, but as of present day has been largely abrogated. In the context of modern understandings of evolutionary biology, including kin selection theory and sociobiology, the investment theory of recovery accords with the goals of corrective justice ...


Vol. 61, No. 4, November 24, 2010, University Of Michigan Law School Nov 2010

Vol. 61, No. 4, November 24, 2010, University Of Michigan Law School

Res Gestae

•Turning Up the Heat in Hutchins •Law & Lit •Torts and Football •The Beer Gal •Save Yourself •Zach Letter Law •Beauty and the Bite •Jenny Runkles •Kicking it Old School •Alt-Prom Pics •Crossword


Vol. 61, No. 3, November 20, 2010, University Of Michigan Law School Nov 2010

Vol. 61, No. 3, November 20, 2010, University Of Michigan Law School

Res Gestae

•Where in the World Were You on Wednesday? •The Beer Gal •When You Were Cooler •Sudoku •Zach Letter Law •Law & Lit •Food Court •Kicking it Old School •Nannes Challenge Results •Halloween Party Pics •Crossword


Don't Answer The Door: Montejo V. Louisiana Relaxes Police Restrictions For Questioning Non-Custodial Defendants, Emily Bretz Nov 2010

Don't Answer The Door: Montejo V. Louisiana Relaxes Police Restrictions For Questioning Non-Custodial Defendants, Emily Bretz

Michigan Law Review

In 2009, the Supreme Court held in Montejo v. Louisiana that a defendant may validly waive his Sixth Amendment right to counsel during police interrogation, even if police initiate interrogation after the defendant's invocation of the right at the first formal proceeding. This Note asserts that Montejo significantly altered the Sixth Amendment protections available to represented defendants. By increasing defendants' exposure to law enforcement, the decision allows police to try to elicit incriminating statements and waivers of the right to counsel after the defendant has expressed a desire for counsel. In order to protect the defendant's constitutional guarantee ...


The Right Issue, The Wrong Branch: Arguments Against Adjudicating Climate Change Nuisance Claims, Matthew Edwin Miller Nov 2010

The Right Issue, The Wrong Branch: Arguments Against Adjudicating Climate Change Nuisance Claims, Matthew Edwin Miller

Michigan Law Review

Climate change is probably today's greatest global environmental threat, posing dire ecological, economic, and humanitarian consequences. In the absence of a comprehensive regulatory scheme to address the problem, some aggrieved Americans have sought relief from climate-related injuries by suing significant emitters of greenhouse gases under a public nuisance theory. Federal district courts have dismissed four such claims, with each court relying at least in part on the political question doctrine of nonjusticiability. However, one circuit court of appeals has reversed to date, finding that the common law cognizes such claims and that the judiciary is competent and compelled to ...


The Illusory Right To Abandon, Eduardo M. Penalver Nov 2010

The Illusory Right To Abandon, Eduardo M. Penalver

Michigan Law Review

The unilateral and unqualified nature of the right to abandon (at least as it is usually described) appears to make it a robust example of the law's concern to safeguard the individual autonomy interests that many contemporary commentators have identified as lying at the heart of the concept of private ownership. The doctrine supposedly empowers owners of chattels freely and unilaterally to abandon them by manifesting the clear intent to do so, typically by renouncing possession of the object in a way that communicates the intent to forgo any future claim to it. A complication immediately arises, however due ...


Owning Mark(Et)S, Mark A. Lemley, Mark P. Mckenna Nov 2010

Owning Mark(Et)S, Mark A. Lemley, Mark P. Mckenna

Michigan Law Review

Trademark owners regularly rely on claims that the defendant is "free riding" on their mark by making money using that mark, money the trademark owners say should belong to them. We analyze those free-riding claims and find them wanting. The empirical data shows that defendants in unrelated markets can benefit from using a well-known mark, but that neither mark owners nor consumers suffer any injury from that use. A legal claim that a defendant is unjustly benefiting by using a plaintiff's mark is hollow unless it is accompanied by a theory of why that benefit should rightly belong to ...


Vol. 61, No. 2, October 27, 2010, University Of Michigan Law School Oct 2010

Vol. 61, No. 2, October 27, 2010, University Of Michigan Law School

Res Gestae

•Michigan's Top Five Urban Legends •Soccer League •Hutchins Makeover •The Beer Gal •Sudoku •Question on the Quad •Crossword


Are Investors’ Gains And Losses From Securities Fraud Equal Over Time? Theory And Evidence, Alicia J. Davis Oct 2010

Are Investors’ Gains And Losses From Securities Fraud Equal Over Time? Theory And Evidence, Alicia J. Davis

Law & Economics Working Papers

Most leading securities regulation scholars argue that compensating securities fraud victims is inefficient. They maintain that because diversified investors that trade frequently are as likely to gain from trading in fraud-tainted stocks as they are to suffer harm from doing so, these investors should have no expected net losses from fraud over the long term. This assertion, which analogizes trading in fraud-tainted stocks to participating in a coin toss game in which players win $1 on heads and lose $1 on tails, is problematic for a number of reasons. First, even if we accept this analogy, probability theory holds that ...


Formulary Apportionment – Myths And Prospects, Reuven S. Avi-Yonah, Ilan Benshalom Oct 2010

Formulary Apportionment – Myths And Prospects, Reuven S. Avi-Yonah, Ilan Benshalom

Law & Economics Working Papers

This paper seeks to re-examine the formulary alternative to transfer pricing by inquiring whether partial integration of formulary concepts into current practices would offer a reasonable alternative to transfer pricing rules. We believe that the key to achieving an equitable and efficient allocation of MNE income is to solve the problem of the residual, i.e., how to allocate income generated from mobile assets and activities whose risks are born collectively by the entire MNE group. These assets and activities generate most of the current transfer pricing compliance and administrative costs, as well as tax avoidance opportunities. A limited formulary ...


Toward A Unified Theory Of Exclusionary Vertical Restraints, Daniel A. Crane, Graciela Miralles Oct 2010

Toward A Unified Theory Of Exclusionary Vertical Restraints, Daniel A. Crane, Graciela Miralles

Law & Economics Working Papers

The law of exclusionary vertical restraints—contractual or other business relationships between vertically related firms—is deeply confused and inconsistent in both the United States and the European Union. A variety of vertical practices including predatory pricing, tying, exclusive dealing, price discrimination, and bundling are treated very differently based on formalistic distinctions that bear no relationship to the practices’ exclusionary potential. We propose a comprehensive, unified test for all exclusionary vertical restraints that centers on two factors, foreclosure and substantiality. We then assign economic content to these factors. A restraint forecloses if it denies equally efficient rivals a reasonable opportunity ...


Harry Potter And The Trouble With Tort Theory, Scott Hershovitz Oct 2010

Harry Potter And The Trouble With Tort Theory, Scott Hershovitz

Law & Economics Working Papers

Economists argue that tort law promotes an efficient allocation of resources to safety, while philosophers contend that it dispenses corrective justice. Despite the divide, the leading tort theories share something in common: They are grounded in an unduly narrow view of tort. Both economists and philosophers confuse the institution of tort law with the rules that are distinctive of it. They offer theories of tort’s substantive rules, but for the most part ignore the procedures by which those rules are implemented. As a consequence, both miss and misconstrue much about tort law.

The problem is particularly acute for economists ...


Response To "Snyder V. Louisiana: Continuing The Historical Trend Towards Increased Scrutiny Of Peremptory Challenges", Bidish J. Sarma Oct 2010

Response To "Snyder V. Louisiana: Continuing The Historical Trend Towards Increased Scrutiny Of Peremptory Challenges", Bidish J. Sarma

Michigan Law Review First Impressions

John P. Bringewatt's recent note makes several important observations about the Supreme Court's opinion in Snyder v. Louisiana. Although he provides reasonable support for the claim that Snyder represents a sea change in Batson jurisprudence, the US Supreme Court's fresh opinion in Thaler v. Haynes (rendered on February 22, 2010) reads the Snyder majority opinion narrowly and suggests the possibility that Snyder is not as potent as it should be. The Haynes per curiam's guarded reading of Snyder signals the need for courts to continue to conduct the bird's-eye cumulative analysis that the Court performed ...


Clinic Times, University Of Michigan Law School Oct 2010

Clinic Times, University Of Michigan Law School

Newsletters

Fall 2010 issue of the University of Michigan Law School Clincs' newsletter


Israel, Palestine, And The Icc, Daniel Benoliel, Ronen Perry Oct 2010

Israel, Palestine, And The Icc, Daniel Benoliel, Ronen Perry

Michigan Journal of International Law

In the wake of the Israel-Gaza 2008-09 armed conflict and recently commenced process at the International Criminal Court (ICC), the Court will soon face a major challenge with the potential to determine its degree of judicial independence and overall legitimacy. It may need to decide whether a Palestinian state exists, either for the purposes of the Court itself, or perhaps even in general. The ICC, which currently has 113 member states, has not yet recognized Palestine as a sovereign state or as a member. Moreover, although the ICC potentially has the authority to investigate crimes which fall into its subject-matter ...


Enforcing International Corrupt Practices Law, Paul D. Carrington Oct 2010

Enforcing International Corrupt Practices Law, Paul D. Carrington

Michigan Journal of International Law

This Essay strives to advance the current international movement to deter the transnational corrupt practices that have long burdened the global economy and weakened governments, especially in "developing" nations. Laws made in the last decade to address this longstanding global problem have not been effectively enforced. Described here are the moderately successful efforts in the United States since 1862 to reward private citizens serving as enforcers of laws prohibiting corrupt practices. It is suggested that this American experience might be adapted by international organizations to enhance enforcement of the new public international laws.


Designing Bespoke Transitional Justice: A Pluralist Process Approach, Jaya Ramji-Nogales Oct 2010

Designing Bespoke Transitional Justice: A Pluralist Process Approach, Jaya Ramji-Nogales

Michigan Journal of International Law

Although many scholars agree that contemporary transitional justice mechanisms are flawed, a comprehensive and unified alternative approach to accountability for mass violence has yet to be propounded. Like many international lawyers, transitional justice theorists have focused their assessment efforts on the successes and failures of established institutions. This Article argues that before we can measure whether transitional justice is working, we must begin with a theory of what it is trying to achieve. Once we have a coherent theory, we must use it ex ante, to design effective transitional justice mechanisms, not just to assess their effectiveness ex post. Drawing ...


Identifying And Enforcing Back-End Electoral Rights In International Human Rights Law, Katherine A. Wagner Oct 2010

Identifying And Enforcing Back-End Electoral Rights In International Human Rights Law, Katherine A. Wagner

Michigan Journal of International Law

From Kenya to Afghanistan, Ukraine, the United States, Mexico, and Iran, no region or form of government has been immune from the unsettling effects of a contested election. The story is familiar, and, these days, hardly surprising: a state holds elections, losing candidates and their supporters claim fraud, people take to the streets, diplomats and heads of state equivocate, and everyone waits for the observers' reports. It is the last chapter of this story-the resolution-that remains unfamiliar and still holds the potential to surprise. The increasing focus on and importance of the resolution of contested elections, that resolution's link ...


Securities Law In The Roberts Court: Agenda Or Indifference?, Adam C. Pritchard Oct 2010

Securities Law In The Roberts Court: Agenda Or Indifference?, Adam C. Pritchard

Law & Economics Working Papers

Historically, securities law has not been a high priority for the Supreme Court. The first five years of the Roberts Court, however, suggest an upsurge of interest in the federal securities laws, with nine cases decided, a significant increase from the Rehnquist Court’s average. These numbers are deceptive. Analysis of the opinions deciding these cases – and more importantly, the issues debated by the justices – suggests that the Court is not interested in the substance of the securities laws or the policies that animate them. Instead, securities law serves as a backdrop for debates over statutory interpretation and the relationship ...


Nepa In The Hot Seat: A Proposal For An Office Of Environmental Analysis, Aliza M. Cohen Oct 2010

Nepa In The Hot Seat: A Proposal For An Office Of Environmental Analysis, Aliza M. Cohen

University of Michigan Journal of Law Reform

Judicial deference under the National Environmental Policy Act (NEPA) can be problematic. It is a well-established rule of administrative law that courts will grant a high degree of deference to agency decisions. They do this out of respect for agency expertise and policy judgment. This deference is applied to NEPA lawsuits without acknowledging the special pressures that agencies face while assessing the environmental impacts of their own projects. Though there is a strong argument that these pressures undermine the reasons for deferential review, neither the statute nor the courts have provided plaintiffs with adequate means to remedy this problem. Agency ...


Case For Overseas Article Iii Courts: The Blackwater Effect And Criminal Accountability In The Age Of Privatization, The, Alan F. Williams Oct 2010

Case For Overseas Article Iii Courts: The Blackwater Effect And Criminal Accountability In The Age Of Privatization, The, Alan F. Williams

University of Michigan Journal of Law Reform

A series of high-profile cases involving the alleged murders of Iraqi civilians by U.S. contractors operating overseas has highlighted the longstanding problem of how best to address crimes committed overseas by civilian employees, dependents, or contractors of the U.S. government. Among the most notorious of these incidents is the alleged killing of seventeen Iraqi civilians in Nisour Square in Baghdad on September 16, 2007 by employees of Blackwater Worldwide, a private corporation specializing in military operations that has subsequently renamed itself "Xe."2News reports of this incident prompted embarrassment and outrage as many Americans learned that U.S ...


Reviving Lenity And Honest Belief At The Boundaries Of Criminal Law, John L. Diamond Oct 2010

Reviving Lenity And Honest Belief At The Boundaries Of Criminal Law, John L. Diamond

University of Michigan Journal of Law Reform

It is a common misconception that there is a line between criminal and innocent conduct that is transparent and fixed. In fact, much of criminal law is fluid and elastic, free, if strategically applied, to label conduct as legal or illegal. In some cases, this reflects crimes that are vaguely defined or imprecise. In other cases, the prohibited conduct simply includes what is so conventionally accepted as legal that the criminal label is perceived as inapplicable until a prosecutor chooses to apply it. The problem of a fluid rather than a fixed line for criminality is that prosecutorial discretion becomes ...


Encouraging Savings Under The Earned Income Tax Credit: A Nudge In The Right Direction, Vada Waters Lindsey Oct 2010

Encouraging Savings Under The Earned Income Tax Credit: A Nudge In The Right Direction, Vada Waters Lindsey

University of Michigan Journal of Law Reform

During 2007, 3.6 million or 9.7% of people in the United States age 65 or older were below the poverty level. In light of the number of elderly people living below the poverty level, it is important that everyone, including low-income workers, have the opportunity to save for retirement. Low-income workers face many challenges to saving for retirement. The barriers to saving include the lack of access to retirement plans and lack of investment savvy. For example, only 42 % of workers employed in service occupations in the private industry have access to employer retirement plans. The percentage drops ...