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Full-Text Articles in Law

Fascism And Monopoly, Daniel A. Crane May 2020

Fascism And Monopoly, Daniel A. Crane

Michigan Law Review

The recent revival of political interest in antitrust has resurfaced a longstanding debate about the role of industrial concentration and monopoly in enabling Hitler’s rise to power and the Third Reich’s wars of aggression. Proponents of stronger antitrust enforcement argue that monopolies and cartels brought the Nazis to power and warn that rising concentration in the American economy could similarly threaten democracy. Skeptics demur, observing that German big business largely opposed Hitler during the crucial years of his ascent. Drawing on business histories and archival material from the U.S. Office of Military Government’s Decartelization Branch, this Article assesses the historical …


The Outcome Of Influence: Hitler’S American Model And Transnational Legal History, Mary L. Dudziak Jan 2019

The Outcome Of Influence: Hitler’S American Model And Transnational Legal History, Mary L. Dudziak

Michigan Law Review

Review of James Q. Whitman's Hitler's American Model: The United States and the Making of Nazi Race Law.


The Language-Game Of Privacy, Joshua A.T. Fairfield Apr 2018

The Language-Game Of Privacy, Joshua A.T. Fairfield

Michigan Law Review

A review of Ronald J. Krotoszynski, Jr., Privacy Revisited: A Global Perspective on the Right to Be Left Alone.


Linnaean Taxonomy And Globalized Law, Ronald J. Krotoszynski Jr. Apr 2017

Linnaean Taxonomy And Globalized Law, Ronald J. Krotoszynski Jr.

Michigan Law Review

Review of The Court and the World: American Law and the New Global Realities by Stephen Breyer.


Troubled Waters Between U.S. And European Antitrust, D. Daniel Sokol Apr 2017

Troubled Waters Between U.S. And European Antitrust, D. Daniel Sokol

Michigan Law Review

Review of The Atlantic Divide in Antitrust: An Examination of US and EU Competition Policy by Daniel J. Gifford and Robert T. Kudrle.


Improving Patent Quality Through Post-Grant Claim Amendments: A Comparison Of European Opposition Proceedings And U.S. Post-Grant Proceedings, Jennifer Turchyn Jun 2016

Improving Patent Quality Through Post-Grant Claim Amendments: A Comparison Of European Opposition Proceedings And U.S. Post-Grant Proceedings, Jennifer Turchyn

Michigan Law Review

Congress enacted the Leahy-Smith America Invents Act to encourage innovation, strengthen U.S. patents, and achieve greater uniformity with foreign patent systems. The America Invents Act introduced two new post-grant patent validity proceedings: inter partes review and post-grant review. The new U.S. proceedings are similar to European opposition proceedings, but there are significant differences in the extent of the patent owner’s ability to amend claims, the patent’s claim construction, the patent owner’s evidentiary burden, and the procedural requirements. The U.S. proceedings result in a very limited opportunity for amendment and a high percentage of invalidated patents. In contrast, European opposition proceedings …


On Black South Africans, Black Americans, And Black West Indians: Some Thoughts On We Want What’S Ours, Eleanor Marie Lawrence Brown Apr 2016

On Black South Africans, Black Americans, And Black West Indians: Some Thoughts On We Want What’S Ours, Eleanor Marie Lawrence Brown

Michigan Law Review

Most modern constitutions have eminent domain provisions that mandate just compensation for forced deprivations of land and require such deprivations to be for a public use or public purpose. The Takings Clause is a classic example of such a provision. The takings literature is essentially focused on outlining the outer boundaries within which the state can take property from an owner. But there are other takings that have been deemed “extraordinary”; in such circumstances, the state takes away property without just compensation and simultaneously makes a point about a person or a group’s standing in the community of citizens.


Constitutional Avoidance As Interpretation And As Remedy, Eric S. Fish Jan 2016

Constitutional Avoidance As Interpretation And As Remedy, Eric S. Fish

Michigan Law Review

In a number of recent landmark decisions, the Supreme Court has used the canon of constitutional avoidance to essentially rewrite laws. Formally, the avoidance canon is understood as a method for resolving interpretive ambiguities: if there are two equally plausible readings of a statute, and one of them raises constitutional concerns, judges are instructed to choose the other one. Yet in challenges to the Affordable Care Act, the Voting Rights Act, the Chemical Weapons Convention, and other major statutes, the Supreme Court has used this canon to adopt interpretations that are not plausible. Jurists, scholars, and legal commentators have criticized …


The Basel Iii Liquidity Coverage Ratio And Financial Stability, Andrew W. Hartlage Dec 2012

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 …


The (Mis)Categorization Of Sex In Anglo-American Cases Of Transsexual Marriage, John Parsi Jun 2010

The (Mis)Categorization Of Sex In Anglo-American Cases Of Transsexual Marriage, John Parsi

Michigan Law Review

The United States' promise to establish equality for all has been challenged by post-operative transsexuals seeking recognition in their acquired sex. The birth certificate is the legal gateway to changing other legal documents; but the process for changing the birth certificate varies widely from state to state. This lack of national uniformity makes post-operative transsexuals' recognition of their acquired sex complicated at best and impossible at worst. This Note details the legal progression from non-recognition to recognition of post-operative transsexuals' acquired sex in the United Kingdom and through the European Court of Human Rights. The Note goes on to explore …


The Fault Principle As The Chameleon Of Contract Law: A Market Function Approach, Stefan Grundmann Jun 2009

The Fault Principle As The Chameleon Of Contract Law: A Market Function Approach, Stefan Grundmann

Michigan Law Review

This Article begins with a comparative law survey showing that all legal systems do not opt exclusively for fault liability or strict liability in contract law, but often adopt a more nuanced approach. This approach includes intermediate solutions such as reversing the burden of proof, using a market ("objective") standard of care, distinguishing between different types of contracts, and providing a "second chance" to breaching parties. Taking this starting point seriously and arguing that it is highly unlikely that all legal systems err, this Article argues that the core question is how and when each liability regime should prevail or …


The Myth And The Reality Of American Constitutional Exceptionalism, Stephen Gardbaum Dec 2008

The Myth And The Reality Of American Constitutional Exceptionalism, Stephen Gardbaum

Michigan Law Review

This Article critically evaluates the widely held view inside and outside the United States that American constitutional rights jurisprudence is exceptional. There are two dimensions to this perceived American exceptionalism: the content and the structure of constitutional rights. On content, the claim focuses mainly on the age, brevity, and terseness of the text and on the unusually high value attributed to free speech. On structure, the claim is primarily threefold. First, the United States has a more categorical conception of constitutional rights than other countries. Second, the United States has an exceptionally sharp public/private division in the scope of constitutional …


Corporate Taxation And International Charter Competition, Mitchell A. Kane, Edward B. Rock May 2008

Corporate Taxation And International Charter Competition, Mitchell A. Kane, Edward B. Rock

Michigan Law Review

Corporate charter competition has become an increasingly international phenomenon. The thesis of this Article is that this development in corporate law requires a greater focus on corporate tax law. We first demonstrate how a tax system's capacity to distort the international charter market depends both upon its approach to determining corporate location and upon the extent to which it taxes foreign source corporate profits. We also show, however, that it is not possible to remove all distortions through modifications to the tax system alone. We present instead two alternative methods for preserving an international charter market. The first-best solution involves …


Free Speech And The Case For Constitutional Exceptionalism, Roger P. Alford Apr 2008

Free Speech And The Case For Constitutional Exceptionalism, Roger P. Alford

Michigan Law Review

Embodied in the Universal Declaration of Human Rights is the evocative proposition that "[e]veryone has the right to freedom of opinion and expression." Beneath that abstraction there is anything but universal agreement. Modern democratic societies disagree on the text, content, theory, and practice of this liberty. They disagree on whether it is a privileged right or a subordinate value. They disagree on what constitutes speech and what speech is worthy of protection. They disagree on theoretical foundations, uncertain if the right is grounded in libertarian impulses, the promotion of a marketplace of ideas, or the advancement of participatory democracy. They …


Scandal, Sukyandaru, And Chouwen, Benjamin L. Liebman Apr 2008

Scandal, Sukyandaru, And Chouwen, Benjamin L. Liebman

Michigan Law Review

This Review proceeds in four parts. Part I describes West's account of scandal in Japan and the United States and explores some of the ramifications of his account. Part II examines the formation of scandal in contemporary China. Part III compares scandal in China with West's conclusions about scandal in Japan and the United States. Part IV discusses defamation litigation in China, with a view to adding further comparative insight to West's discussion of Japanese libel suits.


China Reexamined: The Worst Offender Or A Strong Contender?, Yang Wang Jan 2008

China Reexamined: The Worst Offender Or A Strong Contender?, Yang Wang

Michigan Law Review

These are the questions that Professor Randall Peerenboom sets out to answer from an American legal scholar's perspective in China Modernizes: Threat to the West or Model for the Rest. Peerenboom advances three main arguments in China Modernizes. First, to more accurately assess China's performance in its quest for modernization, one must "plac[e] China within a broader comparative context" (p. 10). Through a careful analysis of empirical data, Peerenboom observes that China outperforms many other countries at a similar income level on almost all key indicators of well-being and human rights, with the sole exception of civil and political …


Is There A Future For Leniency In The U.S. Criminal Justice System?, Nora V. Demleitner May 2005

Is There A Future For Leniency In The U.S. Criminal Justice System?, Nora V. Demleitner

Michigan Law Review

The spring 2004 release of the gruesome pictures of sexual humiliation and torture at Abu Ghraib prison outside of Baghdad revealed how some U.S. troops, intelligence officers, and private contractors treated Iraqi prisoners taken during and after the war. High-ranking government officials may have condoned, if not encouraged, the abuses. Only reluctantly have they agreed to extend protections customarily accorded civilians and military fighters during a war to individuals detained in Iraq and Afghanistan. As Congressional investigations appear to have stalled, military inquiries have been manifold but resultless. Only a handful of low ranking soldiers have been court-martialed, and a …


Planting A Standard: Proposing A Broad Reading Of In Re Elsner, Alicia L. Frostick Jan 2005

Planting A Standard: Proposing A Broad Reading Of In Re Elsner, Alicia L. Frostick

Michigan Law Review

This Note will show that one can read Elsner broadly to encompass both plant-type and widget-type inventions, and that applying Elsner to both plants and widgets is within the current statutory framework and case law. Such a reading would change the § 102 bar for inventions patentable under § 10i29 (hereinafter referred to as "widgets") as well as for plants. Part I of this Note argues that congressional sources require a flexible test-one that does not prejudice any objects under the Patent Act. Part II discusses the judicial interpretation of the Patent Act prior to Elsner in order to argue …


Checks And Balances In Wartime: American British And Israeli Experiences, Stephen J. Schulhofer Jan 2004

Checks And Balances In Wartime: American British And Israeli Experiences, Stephen J. Schulhofer

Michigan Law Review

Three years after an attack that traumatized the nation and prompted massive military and law-enforcement counter-measures, we continue to wrestle with the central dilemma of the rule of law. Which is more to be feared - the danger of unchecked executive and military power, or the danger of terrorist attacks that only an unconstrained executive could prevent? Posed in varying configurations, the question has already generated extensive litigation since September 11, 2001, and a dozen major appellate rulings. Last Term's Supreme Court trilogy - Rasul v. Bush, Hamdi v. Rumsfeld and Rumsfeld v. Padilla - clarified several important points …


The "Horizontal Effect" Of Constitutional Rights, Stephen Gardbaum Dec 2003

The "Horizontal Effect" Of Constitutional Rights, Stephen Gardbaum

Michigan Law Review

Among the most fundamental issues in constitutional law is the scope of application of individual rights provisions and, in particular, their reach into the private sphere. This issue is also currently one of the most important and hotly debated in comparative constitutional law, where it is known under the rubric of "vertical" and "horizontal effect." These alternatives refer to whether constitutional rights regulate only the conduct of governmental actors in their dealings with private individuals (vertical) or also relations between private individuals (horizontal). In recent years, the horizontal position has been adopted to varying degrees, and after systematic scholarly and …


Alternative Forms Of Judicial Review, Mark Tushnet Aug 2003

Alternative Forms Of Judicial Review, Mark Tushnet

Michigan Law Review

The invention in the late twentieth century of what I call weak-form systems of judicial review provides us with the chance to see in a new light some traditional debates within U.S. constitutional law and theory, which are predicated on the fact that the United States has strong-form judicial review. Strong- and weak-form systems operate on the level of constitutional design, in the sense that their characteristics are specified in constitutional documents or in deep-rooted constitutional traditions. After sketching the differences between strong- and weak-form systems, I turn to design features that operate at the next lower level. Here legislatures …


Comparative Constitutionalism In A New Key, Paul W. Kahn Aug 2003

Comparative Constitutionalism In A New Key, Paul W. Kahn

Michigan Law Review

Law is a symbolic system that structures the political imagination. The "rule of law" is a shorthand expression for a cultural practice that constructs a particular understanding of time and space, of subjects and groups, as well as of authority and legitimacy. It is a way of projecting, maintaining, and discovering meaning in the world of historical events and political possibilities. The rule of law - as opposed to the techniques of lawyering - is not the possession of lawyers. It is a characterization of the polity, which operates both descriptively and normatively in public perception. Ours, we believe, is …


Why Europe Rejected American Judicial Review - And Why It May Not Matter, Alec Stone Sweet Aug 2003

Why Europe Rejected American Judicial Review - And Why It May Not Matter, Alec Stone Sweet

Michigan Law Review

In this Article, I explore the question of why constitutional review, but not American judicial review, spread across Europe. I will also argue that, despite obvious organic differences between the American and European systems of review, there is an increasing convergence in how review actually operates. I proceed as follows. In Part I, I examine the debate on establishing judicial review in Europe, focusing on the French. In Parts II and III, I contrast the European and the American models of review, and briefly discuss why the Kelsenian constitutional court diffused across Europe. In Part IV, I argue that despite …


The New Imperialism: Violence, Norms, And The "Rule Of Law", Rosa Ehrenreich Brooks Jun 2003

The New Imperialism: Violence, Norms, And The "Rule Of Law", Rosa Ehrenreich Brooks

Michigan Law Review

The past decade has seen a surge in American and international efforts to promote "the rule of law" around the globe, especially in postcrisis and transitional societies. The World Bank and multinational corporations want the rule of law, since the sanctity of private property and the enforcement of contracts are critical to modern conceptions of the free market. Human-rights advocates want the rule of law since due process and judicial checks on executive power are regarded as essential prerequisites to the protection of substantive human rights. In the wake of September 11, international and national-security experts also want to promote …


Who Cares About Courts? Creating A Constitutency For Judicial Independence In Africa, Mary L. Dudziak May 2003

Who Cares About Courts? Creating A Constitutency For Judicial Independence In Africa, Mary L. Dudziak

Michigan Law Review

While American scholars and judges generally assume that it is beneficial to insulate courts from politics, Jennifer Widner offers a contrasting perspective from another region of the world. In Building the Rule of Law: Francis Nyalali and the Road to Judicial Independence in Africa, Widner examines the role of courts and judicial review in democratization in Africa. She focuses on the role of one judge, a man who would see himself as embodying a role in Tanzania similar to that of Chief Justice John Marshall in the United States. Francis Nyalali, Chief Justice of the High Court of Tanzania, worked …


Legal Orientalism, Teemu Ruskola Oct 2002

Legal Orientalism, Teemu Ruskola

Michigan Law Review

Fifty years ago comparative law was a field in search of a paradigm. In the inaugural issue of the American Journal of Comparative Law in 1952, Myres McDougal remarked unhappily, "The greatest confusion continues to prevail about what is being compared, about the purposes of comparison, and about appropriate techniques." In short, there seemed to be very little in the field that was not in a state of confusion. Two decades later, referring to McDougal's bleak assessment, John Merryman saw no evidence of progress: "few comparative lawyers would suggest that matters have since improved." And only a few years ago, …


A Life In The Craft Of Comparative Law, John C. Reitz May 2002

A Life In The Craft Of Comparative Law, John C. Reitz

Michigan Law Review

It is obvious to specialists in the law of the European Union ("E.U.") - a relatively small but steadily growing group in the United States - that a "retrospective" collection of Eric Stein's writings would be of great interest. From his 1955 article in the Columbia Law Review, the first article about the Court of Justice of the European Coal and Steel Community to appear in English (p. 473), he has been one of the dominant U.S. scholars of what was initially called "European Community" ("E.C.") law after the three original European Communities2 and more recently has been rechristened "European …


Premature Predictions Of Multiculturalism?, Kirsten Matoy Carlson May 2002

Premature Predictions Of Multiculturalism?, Kirsten Matoy Carlson

Michigan Law Review

The late twentieth century ushered in a renewed interest in constitutional democracy as Latin American states revised earlier constitutions and post-Communist countries in Eastern Europe wrote new constitutions to reflect their democratic aspirations. Processes of constitution-making continued throughout the 1990s with new constitutions emerging in states throughout Africa, Latin America, and Europe. The rejuvenation of constitution-making also renewed scholarly interest in comparative constitutionalism. Scholars investigating constitution-making processes in Eastern Europe and Africa soon developed theories on how these processes and the contents of national constitutions changed in the late twentieth century. Donna Lee Van Cott contributes to the new literature …


Islamic Law And Ambivalent Scholarship, Khaled Abou El Fadl May 2002

Islamic Law And Ambivalent Scholarship, Khaled Abou El Fadl

Michigan Law Review

This book reminds me of the image of the arrogantly condescending and blustering tourist in Cairo who drifts into a store that has taken the trouble of prominently displaying the price of their commodities in nicely typed tags. Nevertheless, the tourist walks in, reads the price tag, and then proclaims, "Okay, what is the real price?" The poor store employee stares at him with incredulity, and simply repeats the price on the tag, and, in response, the tourist emits this knowing and smug smile as if saying, "I know you guys, you never mean what you say; everything in Arab …


Federalism Or Federationism, William E. Butler May 2002

Federalism Or Federationism, William E. Butler

Michigan Law Review

When I took up my appointment in October 1970 as Reader in Comparative Law in the University of London, I was invited to collaborate in teaching the LL.M.' course in Soviet Law offered within the University on an intercollegiate basis. The course had been introduced two years previously, the first of its kind within the realm. Originally it was offered by a team of three, regrettably all now deceased: Edward Johnson, Ivo Lapenna, and Albert K. R Kiralfy. I had come to England to replace the late Edward Johnson, whose untimely death had left vacant the Readership in Soviet Law, …