Law Commons^™

The Law Of Occupation And Un Administration Of Territory: Mandatory, Desirable, Or Irrelevant?, Steven R. Ratner

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Governments and international organizations as well as academic commentators have remarked upon the similarities and differences between occupation of territory by States and administration of territory by the United Nations. Although formal administration of territory by the United Nations has been limited to a small number of cases, the possibility of future revival of this practice warrants consideration of the relevance of the law of occupation (hereafter LO) to this phenomenon. This paper attempts to sketch out the major issues in an attempt to guide the experts in their discussion.

Rookie Mistakes To Avoid, Edward R. Becker

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I'm Ted Becker from the University of Michigan. My part of today's presentation is to fall on the sword. I say that because my topic is rookie mistakes to avoid. Many of us up here on the panel aren't rookies but I certainly am. I just completed my first semester of teaching transactional drafting so I'm new to the game, and then when it comes to mistakes, oh yes, there's a bunch of them that we can talk about. Because the semester just ended, these missteps are as fresh in my mind as they could possibly be, and I hope …

Teaching Transactional Skills And Law In An International Context, Deborah Burand, Kojo Yelpaala, Peter Linzer

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Today, we are going to be discussing how we think about transactional skills in an international context. It doesn't surprise me that this is a smaller group. This is a subspecialty, but let me just do a very quick survey of you. How many of you now in this room are teaching an international course? And what are you doing?

China's Judicial System And Judicial Reform, Nicholas C. Howson

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The following is an extract from the statement delivered by Michigan Law School Professor Nicholas Howson at the inaugural “China-U.S. Rule of Law Dialogue” held at Beijing’s Tsinghua University July 29-30, 2010, and convened by Tsinghua Law Dean Wang Zhenmin and Harvard Law School Professor and East Asian Legal Studies Director William Alford, and with the support of the China-United States Exchange Foundation chaired by C.H. Tung, first chief executive and president of the Executive Council of the Hong Kong Special Administrative Region. The dialogue was organized as a private meeting between senior PRC law professors and U.S.-based Chinese law …

Introduction To Global Issues In Antitrust And Competition Law, Daniel A. Crane

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This volume is a global reader. It presents materials and cases on the global issues of antitrust and competition policy. It may be used on its own or to supplement domestic antitrust casebooks.

It might seem strange to consider the treatment of global issues as a supplement to antitrust casebooks, for, in one important sense, antitrust is global. Markets commonly cross national boundaries. Mergers are as likely as not to combine firms from different nations and in any event to affect markets in many nations. Acts and conspiracies in New York, Washington, Tokyo, Zurich, Frankfurt, Johannesburg, Beijing, Delhi, or Sao …

Child Welfare Law And Practice: Purpose And Use Of This Publication, Donald N. Duquette

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Child welfare law has become an increasingly complex area of practice that requires lawyers to not only understand complex federal and state law and procedure, but also detailed institutional information regarding child welfare funding streams, treatment and placement options, medicine, mental health, and child development. All of this takes place in a context of heart-wrenching abuse, neglect, and poverty and a complex and under-resourced bureaucracy which both under-responds and overresponds to presenting problems. What was once a cause has become a profession for highly trained and skilled attorneys. Child welfare law has arrived as a distinct legal specialty, as evidenced …

The Truth About Torts: Rethinking Regulatory Preemption And Its Impact On Public Health, William Buzbee, William Funk, Thomas Mcgarity, Nina A. Mendelson, Sidney Shapiro, David Vladeck, Matthew Shudtz

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As consumers, we assume that the automobiles, pharmaceuticals, medical devices, and other products we purchase are generally safe for their intended uses. We rely on manufacturers to design and produce safe products, and we assume that federal regulators are conscientious watchdogs of the marketplace. In most instances, our assumptions are valid and we safely go about our lives. But the regulatory system is now frayed to the point that dangerous products sometimes slip through the cracks. Vioxx, Firestone/ATX tires, and toxics-laden children’s toys have endangered and harmed millions. In these cases, society depends on the state courts as a venue …

Florida V. Bostick, Yale Kamisar

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501 U.S. 429 (1991), argued 26 Feb. 1991, decided 20 June 1991 by vote of 6 to 3; O’Connor for the Court, Marshall in dissent. What constitutes a “seizure” within the meaning of the Fourth Amendment? Police practices need not be “reasonable”—indeed, are not regulated by the Fourth Amendment at all—unless they are considered “searches” or “seizures.” In this case, which involved a growing antidrug police tactic known as “working the buses” (randomly approaching a bus passenger and asking him for identification and to grant permission to search his luggage), the Court took a narrow view of what constitutes a …

Kamisar, Yale, Jerold H. Israel

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Kamisar, Yale (1929- ). Law professor. Born in the Bronx, N.Y., to an immigrant, working-class family of modest means and limited educational background, Kamisar received academic scholarships that enabled him to attend New York University (B.A., 1950) and, after enlisting in the army during the Korean War and winning a Purple Heart, Columbia Law School (LLB., 1954).

Report On The 2007-2008 Csale Survey Of Applied Legal Educators, David A. Santacroce, Robert R. Kuehn

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This report tabulates the results of the 2007-08 Center for the Study of Applied Legal Education (CSALE) Survey of Applied Legal Education. The results provide valuable insight into the state and nature of applied legal education in areas including program design and structure, pedagogical techniques and practices, common program challenges, and the treatment of applied legal educators in the legal academy. And because the Survey will be repeated every three years, the results reported herein provide the "baseline" for examining the growth and development of applied legal education going forward.

Escobedo V. Illinois, Yale Kamisar

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378 U.S. 438 (1964), argued 29 Apr. 1964, decided 22 June 1964 by vote of 5 to 4; Goldberg for the Court, Harlan, Stewart, White, and Clark in dissent. When Danny Escobedo, a murder suspect, was taken to the police station and put in an interrogation room, he repeatedly asked to speak to the lawyer he had retained. Escobedo's lawyer soon arrived at the station house and repeatedly asked to see his client. Despite the persistent efforts of both Escobedo and his lawyer, the police prevented them from meeting. The police also failed to advise Escobedo of his right to …

Can The West Learn From The Rest?' The Chinese Legal Order's Hybrid Modernity, Nicholas C. Howson

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I am asked to present on the "shortcomings of the Western model of legality based on a professionalized, individualistic and highly formalistic approach to justice" as a way to understanding if "the West can develop today a form of legality which is relational rather than based on litigation as a zero sum game, learning from face to face social organizations in which individuals understand the law" - presumably in the context of the imperial and modem Chinese legal systems which I know best as a scholar and have lived for many years as a resident of the modem identity of …

Miranda V. Arizona, Yale Kamisar

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384 U.S. 436 (1966), argued 28 Feb. 1966, decided 13 June 1966 by vote of 5 to 4; Warren for the Court, Clark, Harlan, White, and Stewart in dissent. The Warren Court's revolution in American criminal procedure reached its high point (or, depending upon one's perspective, its low point) on 13 June 1966. That day the Court handed down its opinion in Miranda, the most famous, and most bitterly criticized, confession case in the nation's history. To some, Miranda symbolized the legal system's determination to treat even the lowliest and most despicable criminal suspect with dignity and respect. But …

California V. Acevedo, Yale Kamisar

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500 U.S. 565 (1991), argued 8 Jan. 1991, decided 30 May 1991 by vote of 6 to 3; Blackmun for the Court, Scalia concurring, Stevens in dissent. Until the 1991 Acevedo case was decided, two different rules governed the search of closed containers found in a motor vehicle. In United States v. Ross (1982), the Court held that if the police had probable cause to search an entire vehicle for contraband and came upon a closed container in the course of the automobile search, they could open the container without first obtaining a warrant. On the other hand, in Arkansas …

International Financial Centers And The World Economy, James R. Hines Jr.

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International financial centers (IFCs) are countries and territories with low tax rates and other features that make them attractive investment locations. These properties of IFCs occasionally raise concerns that they may erode tax collections, divert economic activity, and otherwise burden nearby high-tax countries. A large body of economic research over the last 15 years considers these issues, with findings that point sharply in the opposite direction: the evidence strongly suggests that the policies of IFCs contribute to investment, employment, and the efficient functioning of markets and government policies in other countries.

IFCs contribute to economic activity by improving the potential …

Massiah V. United States, Yale Kamisar

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377 U.S. 201 (1964), argued 3 Mar. 1964, decided 18 May 1964 by vote of 6 to 3; Stewart for the Court, White in dissent. Massiah was decided at a time when the Warren Court's “revolution in American criminal procedure” was accelerating. According to Massiah, after the initiation of adversary judicial proceedings (by indictment, as in Massiah's case, or by information, preliminary hearing or arraignment), the Sixth Amendment guarantees a defendant the right to rely on counsel as the “medium” between himself and the government. Thus, once adversary proceedings have begun, the government cannot bypass the defendant's lawyer and …

Mallory V. United States, Yale Kamisar

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354 U.S. 449 (1957), argued 1 Apr. 1957, decided 24 June 1957 by vote of 9 to 0; Frankfurter for the Court. Although the power of the Supreme Court to overturn state convictions is limited to the enforcement of Fourteenth Amendment due process rights, the Court may formulate rules of evidence in the exercise of its “supervisory power” over the administration of federal criminal justice that go well beyond due process requirements. The best-known example is the McNabb-Mallory rule.

Senator Mccain’S Corporate Tax Proposals: A Critical Examination, Reuven S. Avi-Yonah

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Senator John McCain (R-AZ) has proposed two major changes to the corporate tax code: cutting the corporate tax rate from 35 percent to 25 percent and allowing corporations to deduct the full cost of investments in technology and equipment in the first year, an accounting process known as expensing. The first proposal aims to enhance U.S. economic competitiveness, create jobs, and increase wages. The second proposal aims in particular to boost capital expenditures and “reward investment in cutting-edge technologies.”

Both measures, if enacted by Congress, would greatly alter the role of corporate revenues in our tax system. Corporate taxes account …

An Opt-Out Home Mortgage System, Michael S. Barr, Sendhil Mullainathan, Eldar Shafir

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The current housing and financial crisis has led to significant congressional and executive action to manage the crisis and stem the harms from it, but the fundamental problems that caused the crisis remain largely unaddressed. The central features of the industrial organization of the mortgage market with its misaligned incentives, and the core psychological and behavioral phenomena that drive household financial decisionmaking remain. While the causes of the mortgage meltdown are myriad and the solutions likely to be multifaceted, a central problem that led to the crisis was that brokers and lenders offered loans that looked much less expensive and …

Protocol For Attorneys Representing Parents In Child Protective Proceedings, Frank E. Vandervort, Vivek S. Sankaran

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This protocol is intended to guide attorneys through the strategic decisions they will need to make while representing parents in child protective cases. The protocol does not provide a comprehensive action-step checklist. Parents’ attorneys can find that kind of guidance in other resources, including the “How-To-Kit: Representing Parents in Child Protective Proceedings” by the Institute of Continuing Legal Education; “Guidelines for Achieving Permanency in Child Protection Proceedings” by Children’s Charter of the Courts of Michigan; and the American Bar Association’s “Standards of Practice for Attorneys Representing Parents in Abuse and Neglect Cases.”1 For its part, this protocol delves more substantively …

Senator Mccain's Corporate Tax Proposals A Critical Examination, Reuven S. Avi-Yonah

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Senator John McCain (R-AZ) has proposed two major changes to the corporate tax code: cutting the corporate tax rate from 35 percent to 25 percent and allowing corporations to deduct the full cost of investments in technology and equipment in the first year, an accounting process known as expensing. The first proposal aims to enhance U.S. economic competitiveness, create jobs, and increase wages. The second proposal aims in particular to boost capital expenditures and “reward investment in cutting-edge technologies.”1

Issue Brief: Overcoming Legal Barriers To The Bulk Sale Of At-Risk Mortgages, Michael S. Barr, James A. Feldman

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This memorandum argues that the sale of loans and loan pools to new owners would help to stabilize housing prices, and that such a modification to the REMIC rules would be desirable and well within Congress’ constitutional authority. Furthermore, it would not lead to successful legal claims by investors in securitized loan pools under the Just Compensation or Due Process clauses, which provide the primary constitutional protections for property interests.

Behaviorally Informed Financial Services Regulation, Michael S. Barr, Sendhil Mullainathan, Eldar Shafir

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Financial services decisions can have enourmous consequences for household well-being. Households need a range of financial services - to conduct basic transactions, such as receiving their income, storing it, and paying bills; to save for emergency needs and long-term goals; to access credit; and to insure against life's key risks. But the financial services system is exceedingly complicated and often not well-designed to optimize house-hold behavior. In response to the complexity of out financial system, there has been a long running debate about the appropriate role and form of regulation. Regulation is largely stuck in two competing models - disclosure, …

Human Identity: The Question Presented By Human-Animal Hybridization, Jospeh Vining

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What makes each of us, as individuals, human to one another, or, more generally, what makes an individual creature human? We have not often had to ask the question because of the species line based on reproductive capacity and incapacity, although "degrees of humanness" were explored in the various eugenic programs of the last century. Now the biotechnological possibility of fusing human and other forms of life is presenting the question in a new and serious way. If the traditional biological means of defining species are no longer reliable, what other criteria might determine what is "human" and what is …

Limiting Federal Agency Preemption: Recommendations For A New Federalism Executive Order, William Funk, Thomas Mcgarity, Nina A. Mendelson, Sidney Shapiro, David Vladeck, Matthew Shudtz, James Goodwin

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The structure of the U.S. Constitution reflects a profound respect for the principles of federalism and state sovereignty. These principles require the federal government to recognize and encourage opportunities for state and local governments to exercise their authority, especially in areas of traditional state concern such as the protection of the health, safety, and welfare of their citizens. However, over the last six years there has been a coordinated Executive Branch effortto use the regulatory process to shield certain product manufacturers from state tort liability. The Food and Drug Administration, National Highway Traffic Safety Administration, and Consumer Product Safety Commission, …

The Michigan Guidelines On Protection Elsewhere, Colloquium On Challenges In International Refugee Law

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Refugees increasingly encounter laws and policies which provide that their protection needs will be considered or addressed somewhere other than in the territory of the state where they have sought, or intend to seek, protection. Such policies-including "country of first arrival," "safe third country," and extraterritorial processing rules and practices-raise both opportunities and challenges for international refugee law. They have the potential to respond to the Refugee Convention's concern "that the grant of asylum may place unduly heavy burdens on certain countries" by more fairly allocating protection responsibilities among states. But insistence that protection be provided elsewhere may also result …

Introduction To Comparative Fiscal Federalism: Comparing The European Court Of Justice And The Us Supreme Court's Tax Jurisprudence, James R. Hines Jr.

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This volume brings together scholars from both sides of the Atlantic to consider federalist tax jurisprudence as practiced in Europe and the United States. These essays display a broad range of shared concerns, which is not to say that the scholars agree on all points of substantive policy and interpretation. What can be said is that there is general agreement that the exercise of comparing the tax jurisprudence of the European Court of Justice and the US Supreme Court is likely to be informative and beneficial to all concerned.

Global-Change Scenarios: Their Development And Use, Edward A. Parson, Virginia Burkett, Karen Fisher-Vanden, David Keith, Linda Mearns, Hugh Pitcher, Cynthia Rosenzweig, Mort Webster

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This report examines the development and use of scenarios in global climate change applications. It considers scenarios of various types – including but not limited to emissions scenarios – and reviews how they have been developed, what uses they have served, what consistent challenges they have faced, what controversies they have raised, and how their development and use might be made more effective. The report is Synthesis & Assessment Product 2.1b of the US Climate Change Science Program. By synthesizing available literature and critically reviewing past experience, the report seeks to assist those who may be conducting, using, or commissioning …

Preface To Comparative Fiscal Federalism: Comparing The European Court Of Justice And The Us Supreme Court's Tax Jurisprudence, Reuven S. Avi-Yonah

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In October 2005, a group of distinguished tax experts from both the European Union and the United States convened at the University of Michigan Law School for a conference on 'Comparative Fiscal Federalism: Comparing the US Supreme Court and European Court of Justice Tax Jurisprudence.' The conference was sponsored by the Law School, the European Union Center, and Harvard Law School's Fund for Tax and Fiscal Research. Attendees from Europe included Michel Au jean, the principal tax official at the EU Commission, Servaas van Thiel, chief tax advisor to the EU Council, Michael Lang (Vienna) and Kees van Raad (Leiden), …

How And Why Labor Arbitrators Decide Discipline And Discharge Cases. An Empirical Examination., Theodore J. St. Antoine

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Often without attribution, the arbitration literature includes statements about how “most,” “many” or “some” arbitrators decide discipline and discharge cases. Elkouri & Elkouri is probably the best known source of such generalizations. Although statements like these are often consistent with conventional wisdom, empirical support is seldom provided. To illustrate, consider the first of three examples taken from the National Academy of Arbitrators’ The Common Law of the Workplace: Because industrial discipline is corrective rather than punitive, most arbitrators require use of progressive discipline, even when the collective agreement or employment contract is silent on the subject. Based on personal …