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Reevaluating Standardized Insurance Policies, Daniel Schwarcz Jan 2011

Reevaluating Standardized Insurance Policies, Daniel Schwarcz

Articles

This Article empirically debunks the common claim that homeowners insurance policies do not vary across different insurance carriers. It demonstrates that different carriers' homeowners policies differ radically with respect to numerous important coverage provisions. It also reports that a substantial majority of these deviations produce decreases in the amount of coverage relative to the presumptive industry standard, though some deviations increase coverage. Additionally, the Article describes the surprising absence of any mechanisms by which even informed and vigilant consumers could comparison shop among carriers on the basis of differences in coverage. It closes by reviewing various regulatory and judicial options …


Constitutional Spaces, Allan Erbsen Jan 2011

Constitutional Spaces, Allan Erbsen

Articles

This Article is the first to systematically consider the Constitution’s identification, definition, and integration of the physical spaces in which it applies. Knowing how the Constitution addresses a particular problem often requires knowing where the problem arises. Yet despite the importance and pervasiveness of spatial references in the Constitution, commentators have not analyzed these references collectively. This Article fills that gap in the literature by examining each of the fourteen spaces that the Constitution identifies, as well as several that it overlooks, to reveal patterns in the text’s treatment of space and location. Among the spaces that the Article considers …


Scientific Integrity: The Perils And Promise Of White House Administration, Heidi Kitrosser Jan 2011

Scientific Integrity: The Perils And Promise Of White House Administration, Heidi Kitrosser

Articles

This Article was written for a Fordham Law Review symposium on “Presidential Influence over Administrative Action, Recent Developments.” The Article explores developments in scientific integrity in the first two years of the Obama Administration. Specifically, it looks at the impact of “presidential administration” - that is, of top-down White House directives to administrative agencies - on scientific integrity. I define processes embodying scientific integrity as those designed to enable expert scientific findings to be presented without extra-scientific interference or distortion. Scientific integrity is a subset of information integrity. A system that facilitates information integrity is one that is relatively transparent …


Limits Of Dodd-Frank's Rating Agency Reform, Claire Hill Jan 2011

Limits Of Dodd-Frank's Rating Agency Reform, Claire Hill

Articles

The history of rating agency reform has not been inspiring. Until recently, it seemed stuck in an ever-repeating cycle of futility. A crisis would spur calls for reform, hearings would be conducted, the SEC would issue proposals and requests for comments, and ultimately, nothing would happen - until the next crisis, when the cycle would begin again. The Enron debacle, in which the rating agencies rated Enron’s debt investment grade until four days before Enron declared bankruptcy, did spur some action, including federal legislation and SEC regulations. Whatever else may be said about the Enron-spurred action, it failed to prevent …


Sanitizing Interested Transactions, Claire Hill, Brett Mcdonnell Jan 2011

Sanitizing Interested Transactions, Claire Hill, Brett Mcdonnell

Articles

How should corporate law deal with a controlling person's entry into a transaction with the corporation she controls? How should corporate law deal with transactions or decisions where one or more board members are interested? In this Article, we argue that Delaware law could do a better job answering these questions than it presently does. We propose a modest strengthening of judicial review of interested transactions. For transactions where one or more directors have a conflicting interest and defendants attempt to cleanse the transaction using approval by the disinterested directors, we propose that the defendants show that the approving disinterested …


Four Questionable Rationales For The Patent Misuse Doctrine, Thomas F. Cotter Jan 2011

Four Questionable Rationales For The Patent Misuse Doctrine, Thomas F. Cotter

Articles

When a patent infringement defendant succeeds in proving that the patent owner has misused its patent, the patent is rendered unenforceable unless and until the misuse is purged. Case law has never clearly articulated precise criteria for determining the boundaries of the misuse doctrine, however. Although the misuse doctrine overlaps to some extent with substantive antitrust law, for example, under current law not every instance of misuse is necessarily an antitrust violation, and not every patent-related antitrust violation necessarily constitutes misuse. In this paper, I identify four possible justifications for the patent misuse doctrine that, in theory, could provide guidance …


Ip Misuse And Innovation Harm, Thomas F. Cotter Jan 2011

Ip Misuse And Innovation Harm, Thomas F. Cotter

Articles

"This essay, a short response to Christina Bohannan’s important recent article, IP Misuse as Foreclosure, 96 Iowa Law Review 475 (2011), expresses agreement with Professor Bohannan’s conclusions that merely equating misuse with certain violations of substantive antitrust law is probably unwise; that the “beyond the scope” rationale nevertheless is vague; and that misuse doctrine might provide a useful tool for penalizing assertions of IP rights (principally copyright rights) that would foreclose access to the public domain and thus impinge upon free speech. The essay nevertheless expresses caution over Professor Bohannan’s call for courts to apply misuse doctrine to combat harms …


Diagonal Federalism And Climate Change: Implications For The Obama Administration, Hari M. Osofsky Jan 2011

Diagonal Federalism And Climate Change: Implications For The Obama Administration, Hari M. Osofsky

Articles

The Obama Administration’s efforts on climate change continue to face daunting challenges domestically and internationally. This Article makes a novel contribution by exploring how the Obama Administration can meet these challenges more effectively though systematically addressing the multiscalar character of climate change in the areas where it has greater regulatory control. Mitigating and adapting to climate change pose complex choices at individual, community, local, state, national, and international levels. The Article argues that these choices lead to many diagonal regulatory interactions: that is, dynamics among a wide range of public and private actors which simultaneously cut across levels of government …


Four Principles For Calculating Reasonable Royalties In Patent Infringement Litigation, Thomas F. Cotter Jan 2011

Four Principles For Calculating Reasonable Royalties In Patent Infringement Litigation, Thomas F. Cotter

Articles

In recent years, juries in some patent infringement suits have awarded prevailing patentees "reasonable royalty" damages in the eight-, nine-, and even ten-figure range. Though not all of these awards have been upheld following postjudgment motions or on appeal, concern over the magnitude and frequency of such awards has led to calls for the reform of various practices relating to the calculation of patent damages. Other voices, not surprisingly, have either defended the current system or, at the very least, expressed reservations over the need for significant changes. Underlying some of these debates are fundamental differences of opinion concerning the …


Strategies For An Employee Role In Corporate Governance, Brett Mcdonnell Jan 2011

Strategies For An Employee Role In Corporate Governance, Brett Mcdonnell

Articles

One way to make U.S. corporations more sustainable is to broaden the group of stakeholders whose interests are considered in making decisions. This Essay evaluates a number of possible strategies for creating a role for employees in corporate governance. The strategies include: Using areas other than business association law to enhance the legal rights of individual employees; Encouraging officer or director power, hoping that officers and directors will side with employees and other interests more than shareholders; Encouraging shareholder power, hoping that employees agree with shareholders on the need to keep managers accountable; Supporting unions as a source of countervailing …


Mahr Agreements: Contracting In The Shadow Of Family Law (And Religious Law)--A Comment On Oman's Article, Brian H. Bix Jan 2011

Mahr Agreements: Contracting In The Shadow Of Family Law (And Religious Law)--A Comment On Oman's Article, Brian H. Bix

Articles

This article is a Comment on Nathan Oman, "Bargaining in the Shadow of God's Law: Islamic Mahr Contracts and the Perils of Legal Specialization" (45 Wake Forest Law Review 579 (2010)). Oman's article shows that there are real disadvantages in looking at contracts through the lens of narrow transaction types, especially where individual agreements might fit poorly with the assumed narrative of that transaction type. The example Oman uses, mahr agreements treated within the category of premarital agreements, gives partial (but only partial) support for his thesis. The vast majority of those agreements should not be treated as premarital agreements, …


The Role Of The Committee On The Rights Of The Child In Interpreting And Developing International Humanitarian Law, David Weissbrodt, Joseph C. Hansen, Nathaniel H. Nesbitt Jan 2011

The Role Of The Committee On The Rights Of The Child In Interpreting And Developing International Humanitarian Law, David Weissbrodt, Joseph C. Hansen, Nathaniel H. Nesbitt

Articles

The interaction between human rights law and international humanitarian law (IHL) has received a great deal of scholarly attention. Commentators note the increased presence of IHL in the work of human rights bodies. There remains an interesting gap in the debate, however: while human rights bodies may be referencing international humanitarian law, what are they doing with it? To what extent are they interpreting its protections under a human rights framework? Are they performing substantive or precedential analysis of IHL? This article addresses one measure of that gap by comprehensively examining the work of the Committee on the Rights of …


The Role Of The United States Supreme Court In Interpreting And Developing Humanitarian Law, David Weissbrodt, Nathaniel H. Nesbitt Jan 2011

The Role Of The United States Supreme Court In Interpreting And Developing Humanitarian Law, David Weissbrodt, Nathaniel H. Nesbitt

Articles

In the absence of a single authoritative mechanism to interpret humanitarian law, a number of treaty bodies, national courts, regional human rights courts/commissions, international tribunals, and thematic mechanisms have been called upon to address humanitarian law issues. Prime among these institutions is the United States Supreme Court. Though only in a small number of cases, the Court has relied on humanitarian law principles and treaties from the early days of the Republic to the “war on terrorism.” In what ways does the Court invoke this body of law and how competent is its analysis? Is the Court institutionally equipped to …


Do Sex Offender Registration And Notification Laws Affect Criminal Behavior?, J. J. Prescott, Jonah E. Rockoff Jan 2011

Do Sex Offender Registration And Notification Laws Affect Criminal Behavior?, J. J. Prescott, Jonah E. Rockoff

Articles

Sex offenders have become the targets of some of the most far-reaching and novel crime legislation in the U.S. Two key innovations in recent decades have been registration and notification laws which, respectively, require that convicted sex offenders provide valid contact information to law enforcement authorities, and that information about sex offenders be made public. Using the evolution of state law during the 1990s and 2000s, we study how registration and notification affect the frequency of reported sex offenses and the incidence of such offenses across victims. We find evidence that registration reduces the frequency of sex offenses by providing …


Malpractice Suits And Physician Apologies In Cancer Care, Eugene Chung, Jill R. Horwitz, John A.E. Pottow, Reshma Jagsi Jan 2011

Malpractice Suits And Physician Apologies In Cancer Care, Eugene Chung, Jill R. Horwitz, John A.E. Pottow, Reshma Jagsi

Articles

Conside the following case: The patient is a 44-year-old woman who presents for radiation treatment of an isolated locoregional recurrence of breat cancer in her chest wall, 3 years after undergoing masectomy. At the time of diagnosis, she had T2N2M0 disease, with four of 15 lymph nodes involved with tumor. She received a masectomy with negative margins and appropriate chemotherapy, but none of her physicians talked to her about postmasectomy radiation therapy, which would clearly have been indicated to reduce her risk of locoregional failure and would have been expected to improve her likelihood of survival. She asks the radiation …


Introduction To Special Symposium Feature: Successes And Failures In International Human Trafficking Law, Bridgette A. Carr Jan 2011

Introduction To Special Symposium Feature: Successes And Failures In International Human Trafficking Law, Bridgette A. Carr

Articles

The Essays in this issue of the Michigan Journal of International Law showcase the results of an important and historic symposium held at the University of Michigan Law School in February 2011. Acknowledging the ten-year anniversary of both the international Protocol to Prevent, Suppress, and Punish Trafficking in Persons (Trafficking Protocol), and the Trafficking Victims Protection Act (TVPA) in the United States, the conference brought together an extraordinary group of legal scholars, government officials, and practitioners to examine the successes and failures in international human trafficking law. The need to evaluate both the successes and failures in antitrafficking law is …


The Unaffordable Health Care Act - A Reponse To Professors Bagley And Horwitz, Douglas A. Kahn, Jeffrey H. Kahn Jan 2011

The Unaffordable Health Care Act - A Reponse To Professors Bagley And Horwitz, Douglas A. Kahn, Jeffrey H. Kahn

Articles

The Patient Protection and Affordable Care Act of 2010 has stirred considerable controversy. In the public debate over the program, many of its proponents have defended it by focusing on what is sometimes called the “free-rider” problem. In a prior article, we contended that the free-rider problem has been greatly exaggerated and was not a significant factor in the congressional decision to adopt the Act. We maintained that the free-rider issue is a red herring advanced to trigger an emotional attraction to the Act and distract attention from the actual issues that favor and disfavor its adoption. In a recently …


Free Rider: A Justification For Mandatory Medical Insurance Under Health Care Reform?, Douglas A. Kahn, Jeffrey H. Kahn Jan 2011

Free Rider: A Justification For Mandatory Medical Insurance Under Health Care Reform?, Douglas A. Kahn, Jeffrey H. Kahn

Articles

Section 1501 of the Patient Protection and Affordable Care Act added section 5000A to the Internal Revenue Code to require most individuals in the United States, beginning in the year 2014, to purchase an established minimum level of medical insurance. This requirement, which is enforced by a penalty imposed on those who fail to comply, is sometimes referred to as the “individual mandate.” The individual mandate is one element of a vast change to the provision of medical care that Congress implemented in 2010. The individual mandate has proved to be controversial and has been the subject of a number …


The Rise In Elder Bankruptcy Filings And The Failure Of U.S. Bankruptcy Law, John A. E. Pottow Jan 2011

The Rise In Elder Bankruptcy Filings And The Failure Of U.S. Bankruptcy Law, John A. E. Pottow

Articles

Recent empirical legal scholarship on the consumer bankruptcy system has uncovered a marked rise in the proportion of elder Americans filing for relief under the Bankruptcy Code. But these studies have not probed the reasons behind that rise, an omission this Article seeks to address. Professor John Pottow and colleagues recently assembled the new dataset of the Consumer Bankruptcy Project (CBP), the largest national sample of consumer debtors in this country, which he uses to explore the sources of elder bankruptcy. The findings are both striking and ominous. While multiple factors, such as health problems and medical debts, contribute to …


The Illusory Right To Counsel, Eve Brensike Primus Jan 2011

The Illusory Right To Counsel, Eve Brensike Primus

Articles

Imagine a woman wrongly accused of murdering her fiance. She is arrested and charged with first-degree murder. If convicted, she faces a mandatory sentence of life without the possibility of parole. Her family scrapes together enough money to hire two attorneys to represent her at trial. There is no physical evidence connecting her to the murder, but the prosecution builds its case on circumstantial inferences. Her trial attorneys admit that they were so cocky and confident that she would be acquitted that they did not bother to investigate her case or file a single pre-trial motion. Rather, they waived the …


Disentangling Administrative Searches, Eve Brensike Primus Jan 2011

Disentangling Administrative Searches, Eve Brensike Primus

Articles

Everyone who has been screened at an international border, scanned by an airport metal detector, or drug tested for public employment has been subjected to an administrative search. Since September 11th, the government has increasingly invoked the administrative search exception to justify more checkpoints, unprecedented subway searches, and extensive wiretaps. As science and technology advance, the frequency and scope of administrative searches will only expand. Formulating the boundaries and requirements of administrative search doctrine is therefore a matter of great importance. Yet the rules governing administrative searches are notoriously unclear. This Article seeks to refocus attention on administrative searches and …


Dores Mccree, Theodore J. St. Antoine Jan 2011

Dores Mccree, Theodore J. St. Antoine

Articles

Dores McCree had an unusual combination of great qualities. She was totally dedicated to her role as a career advisor to students at the Law School and relentlessly persistent in pursuing opportunities for them among her large, nationwide group of lawyer friends. Yet she could be very hard-headed and realistic in appraising the qualifications of an individual candidate for a particular position. "John or Mary," she would say in that warm, disarming, and totally persuasive voice of hers, "I just don't think that job is the right fit for you. Let's find something better."


Exclusion From Income Of Compensation For Services And Pooling Of Labor Occurring In A Noncommercial Setting, Douglas A. Kahn Jan 2011

Exclusion From Income Of Compensation For Services And Pooling Of Labor Occurring In A Noncommercial Setting, Douglas A. Kahn

Articles

When cash is received for services, it typically will constitute gross income to the recipient.' But what if the payments are made in a noncommercial setting such as the payment by a parent to a child for mowing the lawn or performing household chores? As discussed later in this Essay, there are reasons to conclude that such payments do not constitute income. The problem of how to treat receipts from a noncommercial activity frequently arises in the context of an exchange of services. A similar problem arises when services are provided by several persons pursuant to a pooling of labor …


Juvenile Life Without Parole: Unconstitutional In Michigan?, Kimberly A. Thomas Jan 2011

Juvenile Life Without Parole: Unconstitutional In Michigan?, Kimberly A. Thomas

Articles

Last term, in Graham v Florida,1 the United States Supreme Court found unconstitutional the sentence of life without parole for a juvenile who committed a non-homicide offense. This attention to the sentencing of juvenile offenders is a continuation of the Court's decision in Roper v Simmons,2 in which the Court held that juvenile offenders could not constitutionally receive the death penalty. This scrutiny should be a signal to Michigan to examine its own jurisprudence on juveniles receiving sentences of life without parole. Michigan has the second-highest number of persons serving sentences of life without parole for offenses committed when they …


Citizens United And The Corporate Form, Reuven S. Avi-Yonah Jan 2011

Citizens United And The Corporate Form, Reuven S. Avi-Yonah

Articles

In Citizens United vs. FEC, the Supreme Court struck down a Federal statute banning direct corporate expenditures on political campaigns. The decision has been widely criticized and praised as a matter of First Amendment law. But it is also interesting as another step in the evolution of our legal views of the corporation. This article argues that by viewing Citizens United through the prism of theories about the corporate form, it is possible to see that the majority and the dissent departed from previous Supreme Court jurisprudence on the First Amendment rights of corporations. It is also possible to then …


Provigil: A Commentary, Daniel A. Crane Jan 2011

Provigil: A Commentary, Daniel A. Crane

Articles

Michael Carrier's case study on Provigil' offers new support for the view that Big Pharma is to blame for stymieing competition, retarding innovation, and inflating prices in the drug industry. Carrier argues that Cephalon was able to thwart generic entry by a combination of anticompetitive strategies. It entered into a reverse payment settlement agreement with generics seeking to enter the market. These settlements purported to allow generic entry before the expiration of the patent period, but, according to Carrier, the promise of early entry was negated by the second prong of Cephalon's anticompetitive strategy. During the time that it had …


Corrective Justice For Civil Recourse Theorists, Scott Hershovitz Jan 2011

Corrective Justice For Civil Recourse Theorists, Scott Hershovitz

Articles

Though I think the civil recourse critique of the leading conceptions of corrective justice is in some respects misguided, I do not want to join up to the thrust and parry here. My aim in this Article is to show that there is a better conception of corrective justice than the ones that Goldberg and Zipursky target, that this conception of corrective justice is untouched by the civil recourse critique, and that civil recourse is best understood as a corrective justice account of tort. In other words, I aim to explain corrective justice for civil recourse theorists.


Another Word On The President's Statutory Authority Over Agency Action, Nina A. Mendelson Jan 2011

Another Word On The President's Statutory Authority Over Agency Action, Nina A. Mendelson

Articles

In this short symposium contribution, I attempt first to add some further evidence on the interpretive question. That evidence weighs strongly, in my view, in favor of Kagan's conclusion that the terminology does not communicate any particular congressional intent regarding presidential directive authority. Assessed in context, the "whole code" textual analysis presented by Stack does not justify the conclusion that Congress, by delegating to an executive branch official, meant to limit presidential control. Independent agencies excluded, interpreting the terms of simple and presidential delegations to speak to directive authority fails, in general, to make sense of the various statutes. Absent …


Losing It, William I. Miller Jan 2011

Losing It, William I. Miller

Articles

You are in your sixties, even fifties, and you are walking by a shop window, or in some area in which a security monitor shows a scan of the line you are in. You sneak a look. You see someone in the space where you should be but you do not recognize the interloper. Then, after an unseemly lag of a second or two you are forced to remake your own acquaintance; it seems you no longer know yourself at first sight. The you behind your eyes believes you look like you did twenty years ago, and it assumes that …


The Price Of Pay To Play In Securities Class Actions, Adam C. Pritchard, Stephen J. Choi, Drew T. Johnson-Skinner Jan 2011

The Price Of Pay To Play In Securities Class Actions, Adam C. Pritchard, Stephen J. Choi, Drew T. Johnson-Skinner

Articles

We study the effect of campaign contributions to lead plaintiffs—“pay to play”—on the level of attorney fees in securities class actions. We find that state pension funds generally pay lower attorney fees when they serve as lead plaintiffs in securities class actions than do individual investors serving in that capacity, and larger funds negotiate for lower fees. This differential disappears, however, when we control for campaign contributions made to offcials with infuence over state pension funds. This effect is most pronounced when we focus on state pension funds that receive the largest campaign contributions and that associate repeatedly as lead …