Digital Commons Network^™

Of Cops And Bumper Stickers: Notes Toward A Theory Of Selective Prosecution, Richard Delgado

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The author Professor Richard Delgado takes as his point of departure a remark by the chair of the University of Colorado committee that voted academic sanctions against Ward Churchill This essay explores the role of retaliatory motives in academic misconduct cases In Churchills case Colorado authorities delved deeply and painstakingly into Churchills publications only when it appeared that the state could not fire him from his tenured position for his inflammatory remarks on the victims of the 911 tragedy What bearing should the investigations relation to the hue and cry that led to it have on its own legitimacy Professor …

You Are Living In A Gold Rush Ideas, Richard Delgado

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No abstract provided.

Political Judging: When Due Process Goes International, Montre D. Carodine

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The Supreme Courts recent reliance on foreign precedent to interpret the Constitution sparked a firestorm of criticism and spawned a rich debate regarding the extent to which US courts should defer to foreign law when developing US constitutional norms This article looks at a subset of the issue of deference to foreign law and international influences in judicial decision making the extent to which our courts should apply American notions of due process in determining whether to recognize and enforce judgements obtained abroadCourts reviewing foreign judgements to determine whether they are worthy of recognition have created an international due process …

Lessons On Lawyers, Democracy, And Professional Responsibility, Kenneth M. Rosen

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No abstract provided.

The Irrepressible Myth Of Celotex: Reconsidering Summary Judgment Burdens Twenty Years After The Trilogy, Adam N. Steinman

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Twenty years ago the Supreme Court decided a trilogy of cases on summary judgment These cases have had a profound impact on federal litigation Empirical data presented in this article demonstrate that federal courts have cited these three cases more than any Supreme Court decisions in history Celotex Corp v Catrett is widely recognized as the most significant decision of the trilogy both because it expanded the availability of summary judgment and because it remains the Courts most current instructions on how burdens are allocated between the party seeking and the party opposing summary judgment However Celotex failed to clarify …

The Application Of The Talc Model: A Literature Survey, Rick Lagiewski

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This chapter categorizes and documents a selection of major works relevant to Butler's 1980 article on the TALC. The goal is to present a simple, yet informative chapter that helps scholars find and select appropriate works and commentary pertaining to the TALC model. It is important to note that this chapter is not meant to be a literature 'review' of the original 1980 article, but rather a literature 'survey' that documents the works of others who have solidified this work as an academic classic in the field of tourism. This chapter does not take into consideration the new contributions to …

People, Times, Law School Leadership Join To Launch South Africa Program, David L. Chambers

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Professor Emeritus David Chambers launched Michigan Law’s South Africa externship program 10 years ago just as that country was emerging from apartheid and beginning to function under its new constitution, adopted in 1996. Here Chambers recalls how the externship program began. Now the Wade H. McCree Jr. Collegiate Professor Emeritus of Law, Chambers directed the program until his retirement from active teaching in 2003.

Why China?: A Startling Transformation, Nicholas C. Howson

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Another vantage point—the view from inside China— reveals a process of transformation even more startling and far-reaching than the external manifestations of China’s rise.

Boilerplate And Economic Power In Auto Manufacturing Contracts, Omri Ben-Shahar, James J. White

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This Article is structured as follows. Part I compares the terms and conditions in the purchase orders of the Original Equipment Manufacturers (OEMs) and highlights important differences in the substance of these boilerplate provisions. It argues that these differences cannot be easily reconciled with the prediction that sophisticated parties draft the most efficient boilerplate terms. Part II examines how these forms are drafted, how their terms are negotiated, and how the OEMs guard their terms from erosion. It provides some insight on how tailoring occurs and how the internal organization of a party to a deal affects the terms that …

Foreword [To Boilerplate: Foundations Of Market Contracts Symposium], Omri Ben-Shahar

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It is tempting to open this symposium with yet another "boilerplate" salute to the challenge that standard-form contracts pose for contract law doctrine. You may have seen many tributes to this fundamental problem. If I were to offer my own variation on this familiar introduction, I would have perhaps tried to come up with an original spin to induce you to read forward another paragraph or two. I would probably have talked about a major divide within contract law between the "law of negotiations" and "product regulation." The former is the body of doctrines that determine the legal consequences of …

Videotaping Investigative Interviews Of Children In Cases Of Child Sexual Abuse: One Community's Approach, Frank E. Vandervort

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Legal scholars have long debated the efficacy and necessity of videotaping investigative interviews with children when allegations of child sexual abuse have surfaced. This debate has been advanced from the perspectives of adversaries in the criminal justice system, prosecutors and defense advocates. Absent from this debate has been the perspective of the broader community. This debate has failed to consider how other investigative tools might be used in conjunction with videotaping to advance the interests of the community. Moreover, the debate about videotaping has taken place with little actual data. This Article seeks to accomplish two goals. First, it seeks …

What We Know, And What We Should Know About American Trial Trends, Margo Schlanger

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More than a few people noticed that the American court system was seeing ever fewer trials before Marc Galanter named the phenomenon.' But until Galanter mobilized lawyers2 and scholars to look systematically at the issue, inquiry was both piecemeal and sparse. Over the past three years, in contrast, Galanter's research 3 and his idea entrepreneurship, crystallized in the "Vanishing Trial" label, has spawned if not a huge literature at least a substantial one. We have now gotten the benefit of sustained scholarly inquiry by researchers of many stripes. Their work has been largely, though not entirely, empirical, and so we …

Second Best Damage Action Deterrence, Margo Schlanger

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Potential defendants faced with the prospect of tort or tort-like damage actions can reduce their liability exposure in a number of ways. Prior scholarship has dwelled primarily on the possibility that they may respond to the threat of liability by augmenting the amount of care they take.1 Defendants (I limit myself to defendants for simplicity) will increase their expenditures on care, so the theory goes, when those expenditures yield sufficient liability-reducing dividends; more care decreases liability exposure by simultaneously making it less likely that the actors will be found to have behaved tortiously in the event of an accident and …

Addressing Putative Fathers In Child Protection Proceedings: Is 'John Doe' Still Alive?, Frank E. Vandervort, W. Lansat

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In practice, it seems, KH is not widely understood. Child protection petitions for temporary custody continue to name multiple men as the "father" of a child when there is a legal father. Some courts insist on terminating the parental rights of "John Doe" when no man has established paternity. After KH, are such actions necessary? Are they permissible?

The Three Goals Of Taxation, Reuven S. Avi-Yonah

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The current debate in the United States about whether the income tax should be replaced with a consumption tax has been waged on the traditional grounds for evaluating tax policy: efficiency, equity, and administrability. For example, Joseph Bankman and David Weisbach recently argued for the superiority of an ideal consumption tax over an ideal income tax on three grounds: First, that the consumption tax is more efficient because it does not discriminate between current and future consumption,' while both income and consumption taxes have identical effect on work effort. Second, that the consumption tax is at least as good at …

The Report Of The President's Advisory Panel On Federal Tax Reform: A Critical Assessment And A Proposal, Reuven S. Avi-Yonah

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ON November 1, 2005, The President's Advisory Panel on Federal Tax Reform ("Panel") submitted its report ("Report") to the Secretary of the Treasury.1 At 272 pages, this is the most important and wide-ranging plan to reform the United States federal tax system since Blueprints for Basic Tax Reform (1977).2 While prospects for immediate action appear dim, the Report will no doubt be the basis of discussion of federal tax reform for a long time to come.

The Economics Of Open Access Law Publishing, Jessica D. Litman

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The conventional model of scholarly publishing uses the copyright system as a lever to induce commercial publishers and printers to disseminate the results of scholarly research. Recently, we have seen a number of high-profile experiments seeking to use one of a variety of forms of open access scholarly publishing to develop an alternative model. Critics have not quarreled with the goals of open access publishing; instead, they've attacked the viability of the open access business model. If we are examining the economics of open access publishing, we shouldn't limit ourselves to the question whether open access journals have fielded a …

Is The Report Of Lazarus's Death Premature? A Reply To Cameron And Postlewaite, Douglas A. Kahn

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Over a year ago, Ms. Faith Cuenin and I wrote an article in this Review (which I hereafter refer to as the "2004 Article") about the tax treatment of guaranteed payments under section 707(c) that are made in kind.' We concluded that a partnership does not recognize gain or loss on the making of a guaranteed payment with appreciated or depreciated property. We also concluded that the partner's basis in the property received will equal its fair market value at the time of payment, and that the payment does not affect the partner's outside basis in his partnership interest except …

Greed And Pride In International Bankruptcy: The Problems Of And Proposed Solutions To 'Local Interests', John A. E. Pottow

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The collapses of Yukos, Parmalat, and other international juggernauts have focused scholarly attention on the failure of multinational enterprises. Even what one might consider "American" companies, such as Chicago-based United Airlines, have made clear in their restructuring plans that their operations have profound effects on the dozens of nations around the globe where they transact business. Government and quasi-government reform efforts to regulate these cross-border insolvencies have abounded, including among others, the UNCITRAL Model Law on Cross-Border Insolvency. UNCITRAL is also building on World Bank and INSOL efforts at promulgating a Legislative Guide for "best practices" bankruptcy codes. Scholars vary …

Global Administrative Law: The View From Basel, Michael S. Barr, Geoffrey P. Miller

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International law-making by sub-national actors and regulatory networks of bureaucrats has come under attack as lacking in accountability and legitimacy. Global administrative law is emerging as an approach to understanding what international organizations and national governments do, or ought to do, to respond to the perceived democracy deficit in international law-making. This article examines the Basel Committee on Banking Supervision, a club of central bankers who meet to develop international banking capital standards and to develop supervisory guidance. The Basel Committee embodies many of the attributes that critics of international law-making lament. A closer examination, however, reveals a structure of …

Land Feuds And Their Solutions: Finding International Law Beyond The Tribunal Chamber, Steven R. Ratner

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The resolution of conflicting claims to land has long stood at the heart of the project of international law. Indeed, the encounter between the order envisaged by advocates of the law of nations and what Georges Scelle called the" obsession with territory" has been a defining struggle for our field, demonstrating to some its promise and to others its futility. Much, perhaps even most, legal scholarship on this subject over the last century has focused on adjudication by ad hoc tribunals or standing courts, in which jurists have derived and invoked hallowed principles that enabled them to draw lines-across mountains, …

A Tribute To Lewis H. Larue, James Boyd White

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Lash has been a good friend for many years, and it is a pleasure to have this opportunity to reflect about him. I well remember our first meeting, in the late 1970s. He had been to a meeting in Wisconsin-the first meeting of the Critical Legal Studies Conference, as I remember-and stopped to spend the night in Chicago on the way home. We had corresponded a couple of times, but never met, and what a pleasure it was to meet him: full of intelligence, openness, and laughter, with a moral center and a deep sense of human limitation. We talked …

Relative Access To Corrective Speech: A New Test For Requiring Actual Malice, Aaron Perzanowski

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This Article reexamines the First Amendment protections provided by the public figure doctrine. It suggests that the doctrine is rooted in a set of out-dated assumptions regarding the media landscape and, as a result, has failed to adapt in a manner that accounts for our changing communications environment.

The public figure doctrine, which imposes the more rigorous actual malice standard of fault on defamation plaintiffs who enjoy greater access to mass media, was constructed in an era defined by one-to-many communications media. Newspapers, broadcasters, and traditional publishers exhausted the Court's understanding of the means of communicating with mass audiences. As …

Coordinated Withdrawal: A Peril Of Lawyer Relocation Feature, Fredrick E. Vars

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No abstract provided.

Antimicrobial Resistance In Non-Typhoidal Salmonella From Food Sources Colombia: Evidence For An Unusual Plasmid Located Class 1 Integron In Serotypes Typhimurium And Anatum, Ciara Walsh, Rebecca O'Mahoney, Teresa Quinn, Denise Drudy, Paul Whyte, Salim Matar, Seamus Fanning

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Seventy-two isolates representing 18 serotypes recovered from various food samples collected in Colombia were tested for antimicrobial susceptibilities. The collection was further characterized for extended-spectrum cephalosporin, aminoglycoside, and tetracycline resistance markers. Multidrug resistant (MDR) isolates were further investigated for class 1 integrons and were evaluated for the presence of conjugative plasmids along with a determination of the incompatibility group by polymerase chain reaction (PCR). Antibiogram analysis showed that the incidence rate of ceftiofur resistance was moderately high (15%). A similar level of resistance to neomycin and oxytetracycline (11% and 10%, respectively) was also observed. There was a high prevalence of …

The False Panacea Of Offshore Deterrence, James C. Hathaway

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Governments take often shockingly blunt action to deter refugees and other migrants found on the high seas, in their island territories and in overseas enclaves. There is a pervasive belief that when deterrence is conducted at arms-length from the homeland it is either legitimate or, at the very least, immune from legal accountability.

Law, Norms, And Legal Change: Global And Local In China And Japan, Nicholas C. Howson, Mark D. West

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The editors of the Michigan Journal of International Law have boldly brought together four articles and commentary that focus on different aspects of the same problem in China and Japan: the relationship between domestic legal change and foreign and/or "international" law and regulation, "soft" agreements, norms, or even cultural practices. The compilation is bold in part because scholarship on change in East Asian law and legal systems often suffers from one of two defects. First, it often focuses on purely domestic phenomena in only one system, ignoring the comparative connections. Second, scholars often attack the problem from an exclusively comparative …

Harnessing And Sharing The Benefits Of State-Sponsored Research: Intellectual Property Rights And Data Sharing In California's Stem Cell Initiative, Rebecca S. Eisenberg, Arti K. Rai

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This Article discusses data sharing in California's stem cell initiative against the background of other data sharing efforts and in light of the competing interests that CIRM is directed to balance. We begin by considering how IP law affects data sharing. We then assess the strategic considerations that guide the IP and data policies and strategies of federal, state, and private research sponsors. With this background, we discuss four specific sets of issues that public sponsors of data-rich research, including CIRM, are likely to confront: (1) how to motivate researchers to contribute data; (2) who should have access to the …

Discourse On The Interface Of Matheatics And Physics: A Panel Discussion Sponsored By Dit And The Ria., Brendan Goldsmith

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No abstract available

The Asymptotics Of Neutral Curve Crossing In Taylor–Dean Flow, C. P. Hills, A. P. Bassom

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The fluid flow between a pair of coaxial circular cylinders generated by the uniform rotation of the inner cylinder and an azimuthal pressure gradient is susceptible to both Taylor and Dean type instabilities. The flow can be characterised by two parameters: a measure of the relative magnitude of the rotation and pressure effects and a non-dimensional Taylor number. This work considers the small gap, large wavenumber limit for linear perturbations when the onset of the Taylor and Dean instabilities is concurrent. A consistent, matched asymptotic solution is found across the whole annular domain and identifies five regions of interest: two …