Law Commons^™

Privacy Qui Tam, Peter Ormerod

Notre Dame Law Review

Privacy law keeps getting stronger, but surveillance-based businesses have proven immune to these new legal regimes. The disconnect between privacy law in theory and in practice is a multifaceted problem, and one critical component is enforcement.

Today, most privacy laws are enforced by governmental regulators—the Federal Trade Commission, the nascent California Privacy Protection Agency, and state attorneys general. An enduring impasse for proposed privacy laws is whether to supplement public enforcement by using a private right of action to authorize individuals to enforce the law.

Both of these conventional enforcement schemes have significant shortcomings. Public enforcement has proven inadequate because …

Enforcing Interstate Compacts In Federal Systems, Michael Osborn

Indiana Journal of Constitutional Design

The central goal of a federal system is for local government units to retain degrees of independence, specifically over matters of importance to that local unit. A logical corollary to that independence is the ability for local units to negotiate and contract with other local units on matters of importance. Therefore, it is not surprising that almost every federal system allows, either implicitly or explicitly, member states to form binding compacts with other states, the union government, or municipalities.1 Some federal democracies even allow member states to compact with foreign governments. Furthermore, almost every federal constitution includes a provision outlining …

The Ragged Edge Of Rugged Individualism: Wage Theft And The Personalization Of Social Harm, Matthew Fritz-Mauer

University of Michigan Journal of Law Reform

Every year, millions of low-wage workers suffer wage theft when their employers refuse to pay them what they have earned. Wage theft is both prevalent and highly impactful. It costs individuals thousands each year in unpaid earnings, siphons tens of billions of dollars from low-income communities, depletes the government of necessary resources, distorts the competitive labor market, and causes significant personal harm to its victims. In recent years, states and cities have passed new laws to attack the problem. These legal changes are important. They are also, broadly speaking, failing the people they are supposed to protect.

This Article fills …

Discovery As Regulation, Diego A. Zambrano

Michigan Law Review

This article develops an approach to discovery that is grounded in regulatory theory and administrative subpoena power. The conventional judicial and scholarly view about discovery is that it promotes fair and accurate outcomes and nudges the parties toward settlement. While commonly held, however, this belief is increasingly outdated and suffers from limitations. Among them, it has generated endless controversy about the problem of discovery costs. Indeed, a growing chorus of scholars and courts has offered an avalanche of reforms, from cost shifting and bespoke discovery contracts to outright elimination. Recently, Judge Thomas Hardiman quipped that if he had absolute power, …

Toward A Realistic Comparative Assessment Of Private Antitrust Enforcement, Daniel A. Crane

Book Chapters

Over the course of her extraordinary career, Eleanor Fox has contributed in many vital ways to our understanding of the importance of institutional analysis in antitrust and competition law. Most importantly, Eleanor has become the leading repository of knowledge about what is happening around the globe in the field of competition law and its enforcement institutions. At a time when much of the field of antitrust was moving in the direction of theoretical generalization, formal modeling, game theory, and the like, Eleanor tirelessly worked the globe to discover the actual practice of competition law in the world. She left no …

Improving Employer Accountability In A World Of Private Dispute Resolution, Hope Brinn

Michigan Law Review

Private litigation is the primary enforcement mechanism for employment discrimination laws like Title VII, the Americans with Disabilities Act, and many related state statutes. But the expansion of extrajudicial dispute resolution—including both arbitration and prelitigation settlement agreements—has compromised this means of enforcement. This Note argues that state-enacted qui tam laws can revitalize the enforcement capacity of private litigation and provides a roadmap for enacting such legislation.

United States V. Alvarez-Machain: Kidnapping In The "War On Drugs" - A Matter Of Executive Discretion Or Lawlessness?, Michael G. Mckinnon

Pepperdine Law Review

No abstract provided.

Cooperative Agreements: Government-To-Government Relations To Foster Reservation Business Development, Joel H. Mack, Gwyn Goodson Timms

Pepperdine Law Review

No abstract provided.

A Primer On Antitrust Damages, Herbert J. Hovenkamp

All Faculty Scholarship

This paper considers the theory of antitrust damages and then discusses some simple models for proving them. Antitrust damages theory begins with the premise that many practices alleged to violate the antitrust laws cause no consumer harm. Others are inefficient and have few socially redeeming virtues. Still others may simultaneously increase both the efficiency of the participants and their market power. A perfectly designed antitrust policy would exonerate the first set of practices, condemn the second set, and condemn the third set only when the social cost of the restraint exceeds its social value or they produce net harm to …

Quantification Of Harm In Private Antitrust Actions In The United States, Herbert J. Hovenkamp

All Faculty Scholarship

This paper discusses the theory and experience of United States courts concerning the quantification of harm in antitrust cases. This treatment pertains to both the social cost of antitrust violations, and to the private damage mechanisms that United States antitrust law has developed. It is submitted for the Roundtable on the Quantification of Harm to Competition by National Courts and Competition Agencies, Organization for Economic Cooperation and Development (OECD), Feb., 2011.

In a typical year more than 90% of antitrust complaints filed in the United States are by private plaintiffs rather than the federal government. Further, when the individual states …

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.

New Governance In The Teeth Of Human Frailty: Lessons From Financial Regulation, Cristie L. Ford

Cristie L. Ford

New Governance scholarship has made important theoretical and practical contributions to a broad range of regulatory arenas, including securities and financial markets regulation. In the wake of the global financial crisis, question about the scope of possibilities for this scholarship are more pressing than ever. Is new governance a full-blown alternative to existing legal structures, or is it a useful complement? Are there essential preconditions to making it work, or can a new governance strategy improve any decision making structure? If there are essential preconditions, what are they? Is new governance “modular” – that is, does it still confer benefits …

Recent Private International Law Developments Before The Supreme Court Of Canada, Antonin I. Pribetic

Antonin I. Pribetic

A trilogy of interesting cases involving private international law recently wended their way to the Supreme Court of Canada: (1) King v. Drabinsky (an Ontario case addressing the applicability of the Charter in respect of the enforcement of a foreign judgment); (2) Teck Cominco Metals Ltd. v. Lloyd's Underwriters (a British Columbia case involving declaratory relief in the context of parallel proceedings and forum non conveniens); and (3) Yugraneft v. Rexx Management Corporation (an Alberta case which affirmed that the two-year limitation period under s.3 of Alberta's Limitations Act, governs when a party seeks the recognition and enforcement in Alberta …

The Recently Revised Marriage Law Of China: The Promise And The Reality, Charles J. Ogletree Jr., Rangita De Silva De Alwis

All Faculty Scholarship

In April 2001, the Standing Committee of the Ninth National People's Congress (NPC), China's highest legislative body, passed the long-debated and much awaited amendments to the Marriage Law on the closing day of its twenty-first session. As stated by one PRC commentator, "In the 50 years since the founding of the New China, there has not been any law that has caused such a widespread concern for ordinary people."'

Even though the recent revisions to the marriage laws have been hailed as some of the most significant and positive changes in family law in China, thus far no empirical evaluation …

Law And Regret, Eric A. Posner

Michigan Law Review

Professor Farnsworth's1 topic is what he calls the "law of regretted decisions," those laws "that apply when you change your mind and reverse a decision" (p. ix). One finds such laws across many doctrinal divisions. Contract law influences the decision to change one's mind about keeping a promise. Tort law influences the decision to change one's mind after starting to rescue another person. The law of wills influences the decision to change one's mind about the distribution of one's assets among heirs. Farnsworth believes there are general principles that underlie the law of regretted decisions. Although there are some "anomalies," …

Markets As Monitors: A Proposal To Replace Class Actions With Exchanges As Securities Fraud Enforcers, Adam C. Pritchard

Articles

Fraud in the securities markets has been a focus of legislative reform in recent years. Corporations-especially those in the high-technology industry-have complained that they are being unfairly targeted by plaintiffs' lawyers in class action securities fraud lawsuits. The corporations' complaints led to the Private Securities Litigation Reform Act of 1995 ("Reform Act"). The Reform Act attempted to reduce meritless litigation against corporate issuers by erecting a series of procedural barriers to the filing of securities class actions. Plaintiffs' attorneys warned that the Reform Act and the resulting decrease in securities class actions would leave corporate fraud unchecked and deprive defrauded …

The Recognition Of Judgments In The European Community: The Twenty-Fifth Anniversary Of The Brussels Convention, Robert C. Reuland

Michigan Journal of International Law

This article is directed at two objectives. It will first provide, in Part I, an outline of the history of the Brussels Convention from its inception to the present day. It will examine the growth of the Convention from a vague undertaking of the six original Member States of the EC, through various treaties of accession and the 1988 Lugano Convention with the EFTA, and finally to the text currently in force. Part II will discuss the nature of the Convention and the philosophy behind it. The second purpose of this article is a more pragmatic one: to provide the …

Drafting And Interpreting Sensitive Gas Purchase Contract Provisions, William D. Watson

Natural Gas Symposium: Contract Solutions for the Future of Regulatory Environment (March 24-25)

8 pages.

Enforcement Of Money Judgments In Early American History, Stefan A. Riesenfeld

Michigan Law Review

The history of the enforcement of money judgments in the United States during the colonial period and the early days of statehood has never been explored in depth. The only modern account is the brief discussion in R. Millar's Civil Procedure of the Trial Court in Historical Perspective. Yet, in view of the recent and long overdue concern with the protection of debtors against unnecessarily harsh and oppressive direct collection remedies, a study of the early efforts designed to shield debtors from excessive and wasteful deprivations of their property is not without interest, especially as the record is rich …

Power Of The U.S. Supreme Court To Enforce Judgments Against States, Henry M. Bates

Articles

Four and one-half centuries later the "sovereign state" of Virginia sued the "sovereign state" of West Virginia to recover a sum of money alleged to be due upon the agreement of West Virginia to assume its proportionate share of the debt of the old state of Virginia. The suit was brought in the Supreme Court of the United States, which after prolonged consideration rendered judgment for the plaintiff. No execution or other compulsory process was issued, however. But now after delays for various reasons and pretexts urged by West Virginia the court is compelled to face the problem of what …