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Articles 691 - 720 of 12806
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Family History: Inside And Out, Kerry Abrams
Family History: Inside And Out, Kerry Abrams
Michigan Law Review
The twenty-first century has seen the dawn of a new era of the family, an era that has its roots in the twentieth. Many of the social and scientific phenomena of our time - same-sex couples, in vitro fertilization, single-parent families, international adoption - have inspired changes in the law. Legal change has encompassed both constitutional doctrine and statutory innovations, from landmark Supreme Court decisions articulating a right to procreate (or not), a liberty interest in the care, custody, and control of one's children, and even a right to marry, to state no-fault divorce statutes that have fundamentally changed the …
Waylaid By A Metaphor: A Deeply Problematic Account Of Prison Growth, John F. Pfaff
Waylaid By A Metaphor: A Deeply Problematic Account Of Prison Growth, John F. Pfaff
Michigan Law Review
The incarceration rate in the United States has undergone an unprecedented surge since the 1970s. Between 1925 and 1975, the U.S. incarceration rate hovered around 100 per 100,000. Since then, that rate soared to 504 in 2009, dropping only slightly to 500 in 2010. In absolute numbers, the U.S. prison population grew from 241,000 in 1975 to 1.55 million in 2010. Not just exceptional by historical standards, this boom is unparalleled globally: the United States has the highest incarceration rate in the world. Despite having just 5 percent of the world's population, it houses nearly 25 percent of the world's …
Never Again,' Again: A Functional Examination Of The Financial Crisis Inquiry Commission, Andrew W. Hartlage
Never Again,' Again: A Functional Examination Of The Financial Crisis Inquiry Commission, Andrew W. Hartlage
Michigan Law Review
Despite the benefit of five years to heal its wounds, the United States remains hobbled from the devastating economic injuries of the 2007-08 global financial crisis. Families across the country still struggle with overwhelming debt and debilitating joblessness. The financial innovations that were once seen as a path to broader homeownership and greater financial equality nearly led to a once-unthinkable catastrophe, and ironically, have worked to widen the gap between rich and poor. These events took many top business leaders and regulators by surprise. After the crisis abated, legislators and other policymakers sought to understand how a financial crisis of …
Policeman, Citizen, Or Both? A Civilian Analogue Exception To Garcetti V. Ceballos, Caroline A. Flynn
Policeman, Citizen, Or Both? A Civilian Analogue Exception To Garcetti V. Ceballos, Caroline A. Flynn
Michigan Law Review
The First Amendment prohibits the government from leveraging its employment relationship with a public employee in order to silence the employee's speech. But the Supreme Court dramatically curtailed this right in Garcetti v. Ceballos by installing a categorical bar: if the public employee spoke "pursuant to her official duties," her First Amendment retaliation claim cannot proceed. Garcetti requires the employee to show that she was speaking entirely "as a citizen" and not at all "as an employee." But this is a false dichotomy - especially because the value of the employee's speech to the public is no less if she …
Tribute To Larry Ribstein, Barry E. Adler
Tribute To Larry Ribstein, Barry E. Adler
Michigan Law Review
A law school job talk for an entry-level candidate is an opportunity for the presenter to put his or her ideas before a faculty in the best possible light. A bit of give-and-take is part of the drill, but the candidate can usually expect the talk to stay more or less on course. My own first job talk, though, given at George Mason University more years ago than I'd like to admit, was attended by the thoroughly exceptional Larry Ribstein and so did not unfold in the usual way.
Preemption And Choice-Of-Law Coordination, Erin O'Hara O'Connor, Larry E. Ribstein
Preemption And Choice-Of-Law Coordination, Erin O'Hara O'Connor, Larry E. Ribstein
Michigan Law Review
The doctrine treating federal preemption of state law has been plagued by uncertainty and confusion. Part of the problem is that courts purport to interpret congressional intent when often Congress has never considered the particular preemption question at issue. This Article suggests that courts deciding preemption cases should take seriously a commonly articulated rationale for the federalization of law: the need to coordinate applicable legal standards in order to facilitate a national market or to otherwise provide clear guidance to parties regarding the laws that apply to their conduct. In situations where federal law can serve a coordinating function but …
Legal Entities As Transferable Bundles Of Contracts, Kenneth Ayotte, Henry Hansmann
Legal Entities As Transferable Bundles Of Contracts, Kenneth Ayotte, Henry Hansmann
Michigan Law Review
The large, modern business corporation is frequently organized as a complex cluster of hundreds of corporate subsidiaries under the common control of a single corporate parent. Our Article provides new theory and supportive evidence to help explain this structure. We focus, in particular on the advantages of subsidiary entities in providing the option to transfer some or all of the firm's contractual rights and obligations in the future. The theory not only sheds light on corporate subsidiaries but also illuminates a basic function of all types of legal entities, from partnerships to nonprofit corporations. We show that when, as is …
Stop Being Evil: A Proposal For Unbiased Google Search, Joshua G. Hazan
Stop Being Evil: A Proposal For Unbiased Google Search, Joshua G. Hazan
Michigan Law Review
Since its inception in the late 1990s, Google has done as much as anyone to create an "open internet." Thanks to Google's unparalleled search algorithms, anyone's ideas can be heard, and all kinds of information are easier than ever to find. As Google has extended its ambition beyond its core function, however it has conducted itself in a manner that now threatens the openness and diversity of the same internet ecosystem that it once championed. By promoting its own content and vertical search services above all others, Google places a significant obstacle in the path of its competitors. This handicap …
The Politics Of Privacy In The Criminal Justice System: Information Disclosure, The Fourth Amendment, And Statutory Law Enforcement Exemptions, Erin Murphy
Michigan Law Review
When criminal justice scholars think of privacy, they think of the Fourth Amendment. But lately its domain has become far less absolute. The United States Code currently contains over twenty separate statutes that restrict both the acquisition and release of covered information. Largely enacted in the latter part of the twentieth century, these statutes address matters vital to modern existence. They control police access to driver's licenses, educational records, health histories, telephone calls, email messages, and even video rentals. They conform to no common template, but rather enlist a variety of procedural tools to serve as safeguards - ranging from …
Securities Class Actions And Bankrupt Companies, James J. Park
Securities Class Actions And Bankrupt Companies, James J. Park
Michigan Law Review
Securities class actions are often criticized as wasteful strike suits that target temporary fluctuations in the stock prices of otherwise healthy companies. The securities class actions brought by investors of Enron and WorldCom, companies that fell into bankruptcy in the wake of fraud, resulted in the recovery of billions of dollars in permanent shareholder losses and provide a powerful counterexample to this critique. An issuer's bankruptcy may affect how judges and parties perceive securities class actions and their merits, yet little is known about the subset of cases where the company is bankrupt. This is the first extensive empirical study …
Commercial Speech In Crisis: Crisis Pregnancy Center Regulations And Definitions Of Commercial Speech, Kathryn E. Gilbert
Commercial Speech In Crisis: Crisis Pregnancy Center Regulations And Definitions Of Commercial Speech, Kathryn E. Gilbert
Michigan Law Review
Recent attempts to regulate Crisis Pregnancy Centers, pseudoclinics that surreptitiously aim to dissuade pregnant women from choosing abortion, have confronted the thorny problem of how to define commercial speech. The Supreme Court has offered three potential answers to this definitional quandary. This Note uses the Crisis Pregnancy Center cases to demonstrate that courts should use one of these solutions, the factor-based approach of Bolger v. Youngs Drugs Products Corp., to define commercial speech in the Crisis Pregnancy Center cases and elsewhere. In principle and in application, the Bolger factor-based approach succeeds in structuring commercial speech analysis at the margins of …
Uncounseled Tribal Court Guilty Pleas In State And Federal Courts: Individual Rights Versus Tribal Self-Governance, Christiana M. Martenson
Uncounseled Tribal Court Guilty Pleas In State And Federal Courts: Individual Rights Versus Tribal Self-Governance, Christiana M. Martenson
Michigan Law Review
Indian tribes in the United States are separate sovereigns with inherent self-governing authority. As a result, the Bill of Rights does not directly bind the tribes, and criminal defendants in tribal courts do not enjoy the protection of the Sixth Amendment right to counsel. In United States v. Ant, a defendant - without the legal assistance that a state or federal court would have provided - pled guilty to criminal charges in tribal court. Subsequently, the defendant faced federal charges arising out of the same events that led to the tribal prosecution. The Ninth Circuit in Ant barred the federal …
Employment Law And Social Equality, Samuel R. Bagenstos
Employment Law And Social Equality, Samuel R. Bagenstos
Michigan Law Review
What is the normative justification for individual employment law? For a number of legal scholars, the answer is economic efficiency. Other scholars argue, to the contrary, that employment law protects against (vaguely defined) imbalances of bargaining power and exploitation. Against both of these positions, this Article argues that individual employment law is best understood as advancing a particular conception of equality. That conception, which many legal and political theorists have called social equality, focuses on eliminating hierarchies of social status. This Article argues that individual employment law, like employment discrimination law, is justified as preventing employers from contributing to or …
Interpreting Regulations, Kevin M. Stack
Interpreting Regulations, Kevin M. Stack
Michigan Law Review
The age of statutes has given way to an era of regulations, but our jurisprudence has fallen behind. Despite the centrality of regulations to law, courts have no intelligible approach to regulatory interpretation. The neglect of regulatory interpretation is not only a shortcoming in interpretive theory but also a practical problem for administrative law. Canonical doctrines of administrative law - Chevron, Seminole Rock/Auer, and Accardi - involve interpreting regulations, and yet courts lack a consistent approach. This Article develops a method for interpreting regulations and, more generally, situates regulatory interpretation within debates over legal interpretation. It argues that a purposive …
The Mosaic Theory Of The Fourth Amendment, Orin S. Kerr
The Mosaic Theory Of The Fourth Amendment, Orin S. Kerr
Michigan Law Review
In the Supreme Court's recent decision on GPS surveillance, United States v. Jones, five justices authored or joined concurring opinions that applied a new approach to interpreting Fourth Amendment protection. Before Jones, Fourth Amendment decisions had always evaluated each step of an investigation individually. Jones introduced what we might call a "mosaic theory" of the Fourth Amendment, by which courts evaluate a collective sequence of government activity as an aggregated whole to consider whether the sequence amounts to a search. This Article considers the implications of a mosaic theory of the Fourth Amendment. It explores the choices and puzzles that …
Cyberattacks And The Covert Action Statute: Toward A Domestic Legal Framework For Offensive Cyberoperations, Aaron P. Brecher
Cyberattacks And The Covert Action Statute: Toward A Domestic Legal Framework For Offensive Cyberoperations, Aaron P. Brecher
Michigan Law Review
Cyberattacks are capable of penetrating and disabling vital national infrastructure, causing catastrophic economic harms, and approximating the effects of war, all from remote locations and without the use of conventional weapons. They can be nearly impossible to attribute definitively to their sources and require relatively few resources to launch. The United States is vulnerable to cyberattacks but also uniquely capable of carrying out cyberattacks of its own. To do so effectively, the United States requires a legal regime that is well suited to cyberattacks' unique attributes and that preserves executive discretion while inducing the executive branch to coordinate with Congress. …
The Basel Iii Liquidity Coverage Ratio And Financial Stability, Andrew W. Hartlage
The Basel Iii Liquidity Coverage Ratio And Financial Stability, Andrew W. Hartlage
Michigan Law Review
Banks and other financial institutions may increase the amount of credit available in the financial system by borrowing for short terms and lending for long terms. Though this "maturity transformation" is a useful and productive function of banks, it gives rise to the possibility that even prudently managed banks could fail due to a lack of liquid assets. The financial crisis of 2007-2008 revealed the extent to which the U.S. financial system is exposed to the risk of a system-wide failure from insufficient liquidity. Financial regulators from economies around the world have responded to the crisis by proposing new, internationally …
Outsourcing Regulation: How Insurance Reduces Moral Hazard, Omri Ben-Shahar, Kyle D. Logue
Outsourcing Regulation: How Insurance Reduces Moral Hazard, Omri Ben-Shahar, Kyle D. Logue
Michigan Law Review
This Article explores the potential value of insurance as a substitute for government regulation of safety. Successful regulation of behavior requires information in setting standards, licensing conduct, verifying outcomes, and assessing remedies. In various areas, the private insurance sector has technological advantages in collecting and administering the information relevant to setting standards and could outperform the government in creating incentives for optimal behavior. We explore several areas that are regulated more by private insurance than by government. In those areas, the role of the law diminishes to the administration of simple rules of absolute liability or no liability, and affected …
Graffiti Museum: A First Amendment Argument For Protecting Uncommissioned Art On Private Property, Margaret L. Mettler
Graffiti Museum: A First Amendment Argument For Protecting Uncommissioned Art On Private Property, Margaret L. Mettler
Michigan Law Review
Graffiti has long been a target of municipal legislation that aims to preserve property values, public safety, and aesthetic integrity in the community. Not only are graffitists at risk of criminal prosecution but property owners are subject to civil and criminal penalties for harboring graffiti on their land. Since the 1990s, most U.S. cities have promulgated graffiti abatement ordinances that require private property owners to remove graffiti from their land, often at their own expense. These ordinances define graffiti broadly to include essentially any surface marking applied without advance authorization from the property owner. Meanwhile, graffiti has risen in prominence …
The Case Against Combating Bittorrent Piracy Through Mass John Doe Copyright Infringement Lawsuits, Sean B. Karunaratne
The Case Against Combating Bittorrent Piracy Through Mass John Doe Copyright Infringement Lawsuits, Sean B. Karunaratne
Michigan Law Review
Today, the most popular peer-to-peer file-sharing medium is the BitTorrent protocol. While BitTorrent itself is not illegal, many of its users unlawfully distribute copyrighted works. Some copyright holders enforce their rights by suing numerous infringing BitTorrent users in a single mass lawsuit. Because the copyright holder initially knows the putative defendants only by their IP addresses, it identifies the defendants anonymously in the complaint as John Does. The copyright holder then seeks a federal court's permission to engage in early discovery for the purpose of learning the identities behind the IP addresses. Once the plaintiff knows the identities of the …
Information Escrows, Ian Ayres, Cait Unkovic
Information Escrows, Ian Ayres, Cait Unkovic
Michigan Law Review
A variety of information escrows - including allegation escrows, suspicion escrows, and shared-interest escrows - hold the promise of reducing the first-mover disadvantage that can deter people with socially valuable private information from disclosing that information to others. Information escrows allow people to transmit sensitive information to a trusted intermediary, an escrow agent, who only forwards the information under prespecified conditions. For example, an allegation escrow for sexual harassment might allow a victim to place a private complaint into escrow with instructions that the complaint be lodged with the proper authorities only if the escrow agent receives at least one …
Stare Decisis And The Rule Of Law: A Layered Approach, Jeremy Waldron
Stare Decisis And The Rule Of Law: A Layered Approach, Jeremy Waldron
Michigan Law Review
Stare decisis remains a controversial feature of the legal systems that recognize it. Some jurists argue that the doctrine is at odds with the rule of law; others argue that there are good rule-of-law arguments in favor of stare decisis. This Article considers one possible good rule-of-law argument. It suggests that we should approach stare decisis in a layered way, looking at what the rule of law requires of the various judges involved in the development of a precedent. One rule-of-law principle, the principle of constancy, counsels against lightly overturning such precedents as there are. But that is not in …