Law Commons^™

Noontime Dumping: Why States Have Broad Discretion To Regulate Onboard Treatments Of Ballast Water, Kyle H. Landis-Marinello

Michigan Law Review

Ballast water discharges from shipping vessels are responsible for spreading numerous forms of aquatic invasive species, a form of biological pollution that leads to billions of dollars in annual costs. In the wake of inaction from the federal government and inaction from the shipping industry, several Great Lakes states are currently considering legislation to address the problem. Michigan has already passed a law to prevent ballast water introductions of invasive species. As states begin to regulate ballast water discharges from oceangoing vessels, such laws will likely face challenges based on the constitutional principles of the Dormant Commerce Clause and the …

Reading Too Much Into Reeder-Simco?, Jeremy M. Suhr

Michigan Law Review

This Note argues that a careful analysis of the Supreme Court's opinion in Volvo Trucks North America, Inc. v. Reeder-Simco GMC, Inc. demonstrates that, despite the expansive dicta appearing in part IV of that opinion, the Court did not intend to reshape the course of its Robinson-Patman Act jurisprudence in any significant way. The Court's opinion operated well within the confines of established Robinson-Patman Act doctrine, even if its searching review of the evidence presented at trial represented a rare foray into the arena of factual error correction. After Reeder-Simco, however, many commentators emphasized the dicta in part IV …

International Law's Lessons For The Law Of The Lakes, Joseph W. Dellapenna

University of Michigan Journal of Law Reform

The eight Governors of the Great Lakes States signed a proposed new compact for the Great Lakes and St. Lawrence basin on December 13, 2005, and they joined with the Premiers of Ontario and Québec in a parallel agreement on the same topic on the same day. Neither document is legally binding-the proposed new compact because it has not yet been ratified by any State nor consented to by Congress; the parallel agreement because it is not intended to be legally binding. Both documents are designed to preclude the export of water from the Great Lakes-St. Lawrence basin apart from …

The Role Of Local Governments In Great Lakes Environmental Governance: A Canadian Perspective, Marcia Valiante

University of Michigan Journal of Law Reform

Restoration of environmental integrity in the Great Lakes Basin has been only a qualified success after thirty-five years of efforts pursuant to policies developed by federal, state, and provincial governments. Many unresolved problems stem from activities under local government control, yet in the past local governments were excluded from Great Lakes policy-making. By looking at recent changes in the powers, interests, experience, and influence of local governments in Ontario, this Essay concludes that local governments now have the ability to participate meaningfully in Great Lakes policy formation and implementation. To include local governments would improve the chances of successful restoration …

The Public Trust In Surface Waterways And Submerged Lands Of The Great Lakes States, Bertram C. Frey, Andrew Mutz

University of Michigan Journal of Law Reform

The modern public trust doctrine compels each Great Lakes state to protect the sustainable future of the Lakes and to preserve traditional public uses. At the same time, the doctrine constrains the states' powers to allow exploitation of trust resources. This Article provides a brief historical overview of the public trust doctrine in waterways and their submerged lands. It next explores how the eight Great Lakes states have applied the doctrine, discusses the surprising number of differences in the doctrine's development from state to state, and provides comparison charts. After analyzing the variety of approaches used by the eight states …

From "Navigable Waters" To "Constitutional Waters": The Future Of Federal Wetlands Regulation, Mark Squillace

University of Michigan Journal of Law Reform

Wetlands regulation in the United States has a tumultuous history. The early European settlers viewed wetlands as obstacles to development, and they drained and filled wetlands and swamps at an astounding rate, often with government support, straight through the middle of the twentieth century. As evidence of the ecological significance of wetlands emerged over the last several decades, programs to protect and restore wetlands became prominent. Most notable among these is the permitting program under section 404 of the Clean Water Act. That provision prohibits dredging or filling of "navigable waters, " defined by law to mean "waters of the …

Walking The Beach To The Core Of Sovereignty: The Historic Basis For The Public Trust Doctrine Applied In Glass V. Goeckel, Robert Haskell Abrams

University of Michigan Journal of Law Reform

In 2004, a split panel of the Michigan Court of Appeals announced its conclusion that Michigan littoral owners of property owned to the water's very edge and could exclude members of the public from walking on the beach. In that instant almost 3300 miles of the Great Lakes foreshore became, in theory and in law, closed to public use. The case became the leading flash point of controversy between the vast public and ardent private property rights groups. A little more than one year later, the Michigan Supreme Court reversed that ruling as errant on public trust grounds and returned …

The Great Lakes As An Environmental Heritage Of Humankind: An International Law Perspective, A. Dan Tarlock

University of Michigan Journal of Law Reform

Since 1985, the eight Great Lakes states and the Canadian provinces of Ontario and Quebec have cooperated to prevent almost all diversions of water from the Great Lakes basin. In 2005, the eight states signed an Agreement to create a tiered system of reviews for diversions and a draft interstate Compact, which creates a binding process to regulate diversions. This cooperation is primarily a state initiative, supported by the federal governments in both countries, which has paid little attention to the international character of the lakes. This Essay argues that there are three major benefits to the region from the …

Transboundary Pollution: Harmonizing International And Domestic Law, Noah D. Hall

University of Michigan Journal of Law Reform

Addressing transnational pollution requires both international and domestic law. Transnational pollution is an international problem that demands and deserves the attention of international legal mechanisms such as treaties, agreements, arbitration, and international management and governance. At the same time, transnational pollution problems can often be addressed more effectively and efficiently through the domestic legal system. An ideal approach is to harmonize transnational pollution management and dispute resolution under international and domestic law. This Article seeks to provide pragmatic, feasible, and politically realistic solutions to transnational pollution by harmonizing international and domestic law. However, given the diversity in geography, domestic legal …

Transferring Water In The American West: 1987-2005, Jedidiah Brewer, Robert Glennon, Alan Ker, Gary Libecap

University of Michigan Journal of Law Reform

Rising urban and environmental demand for water has created growing pressure to re-allocate water from traditional agricultural uses. Water markets are powerful institutions for facilitating this re-allocation, yet the evolution of water markets has been more complicated than those for other resources. In this paper, we set the context for water marketing with an overview of western water law that highlights unique aspects of water law that affect how or whether a water market can develop. Second, we present new, comprehensive data on the extent, nature, and timing of water transfers across 12 western states from 1987-2005. We describe the …

The Economic Impact Of Backdating Of Executive Stock Options, M. P. Narayanan, Cindi A. Schipani, H. Nejat Seyhun

Michigan Law Review

This Article discusses the economic impact of legal, tax, disclosure, and incentive issues arising from the revelation of dating games with regard to executive option grant dates. It provides an estimate of the value loss incurred by shareholders of firms implicated in backdating and compares it to the potential gain that executives might have obtained through backdating. Using a sample of firms that have already been implicated in backdating, we find that the revelation of backdating results in an average loss to shareholders of about 7%. This translates to about $400 million per firm. By contrast, we estimate that the …

Rewarding Outside Directors, Assaf Hamdani, Reinier Kraakman

Michigan Law Review

While they often rely on the threat of penalties to produce deterrence, legal systems rarely use the promise of rewards. In this Article, we consider the use of rewards to motivate director vigilance. Measures to enhance director liability are commonly perceived to be too costly. We, however demonstrate that properly designed reward regimes could match the behavioral incentives offered by negligence-based liability regimes but with significantly lower costs. We further argue that the market itself cannot implement such a regime in the form of equity compensation for directors. We conclude by providing preliminary sketches of two alternative reward regimes. While …

The Corporate Monitor: The New Corporate Czar?, Vikramaditya Khanna, Timothy L. Dickinson

Michigan Law Review

Following the recent spate of corporate scandals, government enforcement authorities have increasingly relied upon corporate monitors to help ensure law compliance and reduce the number of future violations. These monitors also permit enforcement authorities, such as the Securities & Exchange Commission and others, to leverage their enforcement resources in overseeing corporate behavior. However there are few descriptive or normative analyses of the role and scope of corporate monitors. This paper provides such an analysis. After sketching out the historical development of corporate monitors, the paper examines the most common features of the current set of monitor appointments supplemented by interviews …

Now, Later, Or Never: Applying Asymmetric Discount Rates In Nuisance Remedies And Federal Regulations, Yang Wang

Michigan Law Review

Part I of this Note reviews recent literature on the need for asymmetric discount rates in cost-benefit analysis. It observes that even though scholars disagree on the precise value of the appropriate discount rate, many agree that future costs and benefits must be discounted at different rates. Part II then constructs a simple model, consisting of two activities competing for the same resource, and analyzes the consequences of asymmetric discounting under this model. This Part proposes that, to maximize the joint social utility, the resource should be time divided between the competing activities rather than permanently allocated to one or …

The Social Construction Of Sarbanes-Oxley, Donald C. Langevoort

Michigan Law Review

Part I will take a close look at the legitimacy of SOX by examining the two plausible stories of SOX's origins and considering the early post-SOX evidence on its costs and benefits. There is no clear-cut answer to the question of how much SOX benefits investors; both positive and critical positions are plausible. Costs have been far greater than expected, but more from SOX's implementation than from the legislative text. Before turning to how and why implementation has occurred that way-which to me is the central question of interpretation-Part II considers whether there is an alternative interpretation of SOX that …

Sox And Whistleblowing, Terry Morehead Dworkin

Michigan Law Review

The language of the Sarbanes-Oxley Act ("SOX") leaves no doubt that Congress intended whistleblowing to be an integral part of its enforcement mechanisms. The Act attempts to encourage and protect whistleblowers in a variety of ways, including providing for anonymous whistleblowing, establishing criminal penalties for retaliation against whistleblowers, and clearly defining whistleblowing channels. Unfortunately, these provisions give the illusion of protection for whistleblowers without effectively providing it. There is increasing evidence that virtually no whistleblower who has suffered retaliation and pursued remedies under SOX has been successful. Additionally, social science research and studies of whistleblowing laws indicate that SOX is …

Getting The Word Out About Fraud: A Theoretical Analysis Of Whistleblowing And Insider Trading, Jonathan Macey

Michigan Law Review

The purpose of this Article is to show that corporate whistleblowing is not analytically or functionally distinguishable from insider trading when such trading is based on "whistleblower information," that is, the information a whistleblower might disclose to the authorities. In certain contexts, both insider trading and whistleblowing, if incentivized, would reduce the incidence of corporate pathologies such as fraud and corruption. In light of this analysis, it is peculiar that whistleblowing is encouraged and protected, while insider trading on whistleblower information is not only discouraged but criminalized. Often, insider trading will be far more effective than whistleblowing at bringing fraud …

The Use Of Efficient Market Hypothesis: Beyond Sox, Dana M. Muir, Cindy A. Schipani

Michigan Law Review

This Article focuses on the regulatory use of finance theory, particularly the efficient market hypothesis ("EMH"), in two areas where securities pricing is at issue: shareholder appraisal cases and the use of employer stock in benefit plans. Regarding shareholder appraisal cases, the Article finds that the Delaware courts seem to implicitly respect the principles of EMH when ascertaining the fair value of stock, but recognize that markets cannot operate efficiently if information is withheld. Regarding employer stock in benefit plans, it concentrates on the explicit adoption of EMH by the Department of Labor to exempt directed trustees from traditional duties …

Furman'S Mythical Mandate, Scott W. Howe

University of Michigan Journal of Law Reform

This Article argues for the rescue and reform of Supreme Court doctrine regulating capital sentencing trials under the Eighth Amendment. Many legal commentators, both liberal and conservative, including several members of the Supreme Court, have concluded that the Court's regulation of capital sentencing trials is a disaster. The repeated criticisms rest on a commonly accepted view about a principal goal of capital sentencing regulation. The prevailing account, fueled by the rhetoric of the Justices, stems from the notion that Furman v. Georgia, 408 U.S. 208 (1972), revealed a mandate of consistency in the use of the death penalty that …

Ratification Of Reapportionment Plans Drawn By Redistricting Commissions, Poonam Kumar

University of Michigan Journal of Law Reform

Partisan gerrymandering is a danger that threatens the foundations of the American democratic structure. This Note argues that partisan gerrymandering must be eliminated in order to foster political competition and ensure government accountability. Without a judicial solution, redistricting commissions present a viable option to help cure the ills of partisan gerrymandering. This Note argues that automatic and mandatory state supreme court judicial review must be the process by which the redistricting plans drawn by these commissions are ratified. Automatic judicial review permits redistricting to remain a legislative task while giving the judiciary a quintessential judicial task. In addition, this Note …

Protecting Fair Use With Fogerty: Toward A New Dual Standard, John A. Fonstad

University of Michigan Journal of Law Reform

Copyright law exists to promote the progress of art and science. It achieves this by balancing limited grants of rights to authors against public access to works. However, copyright holders have upset this balance and tilted the law in their favor One cause of this phenomenon is that the benefit of public access to works is diffused throughout the entire public while the benefit of rights in works is concentrated in the copyright holder. This problem is especially prevalent in the context of litigation where copyright holders (plaintiffs) often stand to gain more through victory than copyright users (defendants). As …

Significant Developments In Veterans Law (2004-2006) And What They Reveal About The U.S. Court Of Appeals For Veterans Claims And The U.S. Court Of Appeals For The Federal Circuit, Michael P. Allen

University of Michigan Journal of Law Reform

Nearly twenty years ago, Congress for the first time created a system for judicial review of decisions denying veterans benefits. Specifically, Congress created an Article I Court: the United States Court of Appeals for Veterans Claims. Veterans dissatisfied with actions of the Department of Veterans Affairs regarding benefits could appeal to the Veterans Court. The United States Court of Appeals for the Federal Circuit provided appellate oversight of the Veterans Court. There simply is nothing like the Veterans Court elsewhere in American law. Yet, despite its uniqueness, there has been little scholarly attention to this institution.

This Article begins to …

Standing Alone: Conformity, Coercion, And The Protection Of The Holdout Juror, Jason D. Reichelt

University of Michigan Journal of Law Reform

The holdout juror in felony criminal trials is a product of the near-universal decision rule in federal and state courts of a unanimous verdict. In recent years, courts have increasingly inquired into a jury's deliberations when a holdout juror has been identified amid allegations of misconduct. This Article helps bridge the considerable gap between cognitive psychology and legal scholarship, analyzing the thought processes of the holdout juror through the application of empirical evidence and psychological modeling, to conclude that the improved protection of the holdout juror is a necessary and critical component to the preservation of a defendant's right to …

Educative Friendship - A Personal Note, Jeanne Gaakeer

Michigan Law Review

In 1992, when I started my doctorate research in the interdisciplinary field of Law and Literature, The Legal Imagination was one of the first books I read. To European eyes, it was a most unusual book since in continental legal theory in those days, the Anglo-analytical tradition was predominant, and French deconstruction had for some time been the up-and coming stream. Fascinated as I became with Professor White's works, I decided to try to get in contact with him in order to ask him about the genesis of his ideas. So much for the dangers of the intentional fallacy Whimsatt …

Speech, Silence, And Ethical Lives In The Law, Robin West

Michigan Law Review

As his many appreciative readers know, James Boyd White brought his learning to bear on the relation between ethical living and ethical speaking, and particularly as it pertains to how we live and speak in law. His prodigious writing, teaching, and speaking career, as far as I can tell, was motivated by a singular, passionate belief: that the human capacity for language can and should serve as a bridge from mind to mind and spirit to spirit, so that we might cohabit the earth not only peaceably, but with the pleasures and grace of each other's company. Language, White taught, …

Reverse Monitoring: On The Hidden Role Of Employee Stock-Based Compensation, Sharon Hannes

Michigan Law Review

This Article develops a new understanding of equity-based compensation schemes, such as employee stock option plans. Current literature views such schemes as a measure aimed at motivating the recipient employees to work harder for the firm. Under that view, this method of remuneration either complements or substitutes for other measures used to monitor the performance of the recipient employees. In contrast, this Article proposes that recipient employees be viewed as potential monitors of other employees and that stock options (or similar types of compensation) motivate them to fulfill this task. This view has many applications and can shed light on …

A Reality Check On An Empirical Study: Comments On "Inside The Administrative State", Sally Katzen

Michigan Law Review

Presidential control is the term used for the process (or some would say, the model) by which agency decision-making (more particularly, rulemaking) is brought under the direction of the president to "render such decision- making accountable and effective." Until now scholars, who have generally endorsed both the theory and the practice of the process, have written from the perspective of those who exercise presidential control - those at the White House or the Office of Information and Regulatory Affairs ("OIRA"). In a recent article in the Michigan Law Review, Lisa Schultz Bressman and Michael Vandenbergh ("the authors") decided to …

Legitimacy, Selectivity, And The Disunitary Executive: A Reply To Sally Katzen, Lisa Schultz Bressman, Michael P. Vandenbergh

Michigan Law Review

This reply addresses the thoughtful comments that former OIRA Administrator Sally Katzen has provided on our Article, Inside the Administrative State: A Critical Look at the Practice of Presidential Control. Our Article is the first to investigate the agency perspective on White House involvement in agency rule-making. We interviewed 30 of the 35 top political officials in the Environmental Protection Agency ("EPA") during the George H.W. Bush ("Bush I") and the William J. Clinton Administrations during 1989-2001. Prior to our study, empirical studies of White House involvement in agency rule-making had focused almost exclusively on the White House side, …

Should Patent Infringement Require Proof Of Copying?, Mark A. Lemley

Michigan Law Review

Patent infringement is a strict liability offense. Patent law gives patent owners not just the right to prevent others from copying their ideas, but the power to control the use of their idea--even by those who independently develop a technology with no knowledge of the patent or the patentee. This is a power that exists nowhere else in intellectual property (IP) or real property law, but it is a one that patentees have had, with rare exceptions, since the inception of the Republic. In an important paper in the Michigan Law Review, Samson Vermont seeks to change this, arguing …

The Imagination Of James Boyd White, Lee C. Bollinger

Michigan Law Review

For several decades, James Boyd White has been a unique voice in the law. It is a voice of extraordinary intellectual range, of erudition and of deep commitment to a life of self-understanding and of humane values. His point of access is language - all language, in every context. Armed y a lifetime of thought about words, he justifiably has regarded no field or discipline or communicative activity as foreign and outside his ken. Whoever reads him must feel his sense of intellectual empowerment that our world, sectioned as it is by expertise, would deny us.