Law Commons^™

Kiddie Law Is Growing Up: Board Certification In Child Welfare Law, Donald N. Duquette

Articles

Few areas of the law are as personally rewarding as child welfarethat is, representing children, parents, or a government agency in cases of alleged child abuse and neglect. Few areas of the law provide a greater opportunity to make a tremendous difference in the lives of individuals. Few areas of the law are as intellectually challenging, fast developing, and dynamic as child welfare. Until recently the child welfare field was demeaned as "kiddie law"-not worthy of the intellectual and advocacy talents of the best of America's lawyers. The field is steadily being transformed, however, from a sleepy, assembly-line processing of …

When Should Original Meanings Matter?, Richard A. Primus

Articles

Constitutional theory lacks an account of when each of the familiar sources of authority-text, original meaning, precedent, and so on-should be given weight. The dominant tendency is to regard all sources as potentially applicable in every case. In contrast, this Article proposes that each source of authority is pertinent in some categories of cases but not in others, much as a physical tool is appropriate for some but not all kinds of household tasks. The Article then applies this approach to identify the categories of cases in which original meaning is, or is not, a valid factor in constitutional decisionmaking.

Stoneridge Investment Partners V. Scientific-Atlanta: The Political Economy Of Securities Class Action Reform, Adam C. Pritchard

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I begin in Part II by explaining the wrong turn that the Court took in Basic. The Basic Court misunderstood the function of the reliance element and its relation to the question of damages. As a result, the securities class action regime established in Basic threatens draconian sanctions with limited deterrent benefit. Part III then summarizes the cases leading up to Stoneridge and analyzes the Court's reasoning in that case. In Stoneridge, like the decisions interpreting the reliance requirement of Rule 10b-5 that came before it, the Court emphasized policy implications. Sometimes policy implications are invoked to broaden the reach …

The California Greenhouse Gas Waiver Decision And Agency Interpretation: A Response To Galle And Seidenfeld, Nina A. Mendelson

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Professors Brian Galle and Mark Seidenfeld add some important strands to the debate on agency preemption, particularly in their detailed documentation of the potential advantages agencies may possess in deliberating on preemption compared with Congress and the courts. As they note, the quality of agency deliberation matters to two different debates. First, should an agency interpretation of statutory language to preempt state law receive Chevron deference in the courts, as other agency interpretations may, or should some lesser form of deference be given? Second, should a general statutory authorization to an agency to administer a program and to issue rules …

A Presumption Against Agency Preemption, Nina A. Mendelson

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Federal agencies are increasingly taking aim at state law, even though state law is not expressly targeted by the statutes the agencies administer. Starting in 2001, the Office of the Comptroller of the Currency (OCC) issued several notices saying that state laws would apply to national bank operating subsidiaries (incorporated under state law) to the same extent as those laws applied to the parent national bank. In 2003, the OCC specifically mentioned state consumer protection laws and took the position that the state laws were preempted and did not apply to mortgage lenders owned by national banks. In December 2006, …

Regulatory Takings In Institutional Context: Beyond The Fear Of Fragmented International Law, Steven R. Ratner

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Claims of regulatory expropriation have been raised in diverse venues adjudicating international investment disputes Although a basic consensus position has emerged on a state's power to affect private property rights without compensation to investors, the legality of such actions will and should depend on the specific regime and institutional context in which they are appraised. A uniform doctrinal answer is thus impossible and undesirable, and many worries about fragmentation of international law are misplaced.

Waiting For The Other Shoe: Hudson And The Precarious State Of Mapp, David A. Moran

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I have no idea whether my death will be noted in the New York Times. But if it is, I fear the headline of my obituary will look something like: "Professor Dies; Lost Hudson v. Michigan' in Supreme Court, Leading to Abolition of Exclusionary Rule." The very existence of this Symposium panel shows, I think, that my fear is well-grounded. On the other hand, I am not quite as fearful that Hudson foreshadows the complete overruling of Mapp v. Ohio2 and Weeks v. United States3 as I was when I published an article just three months after the Hudson decision …

In Memoriam: Francis A. Allen, Yale Kamisar

Articles

Francis A. Allen graced the law faculties of five universities in the course of a remarkable, forty-six-year teaching career. In that time, he established himself as one of the half-dozen greatest twentieth century American scholars of criminal law and criminal procedure.

Requiem For Section 1983, Paul D. Reingold

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Section 1983 no longer serves as a remedial statute for the people most in need of its protection. Those who have suffered a violation of their civil rights at the hands of state authorities, but who cannot afford a lawyer because they have only modest damages or seek only equitable remedies, are foreclosed from relief because lawyers shun their cases. Today civil rights plaintiffs are treated the same as ordinary tort plaintiffs by the private bar: without high damages, civil rights plaintiffs are denied access to the courts because no one will represent them. Congress understood that civil rights laws …

Sentencing: Where Case Theory And The Client Meet, Kimberly A. Thomas

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Criminal sentencing hearings provide unique opportunities for teaching and learning case theory. These hearings allow attorneys to develop a case theory in a context that both permits understanding of the concept and, at the same time, provides a window into the difficulties case theory can pose. Some features of sentencing hearings, such as relaxed rules of evidence and stock sentencing stories, provide a manageable application of case theory practice. Other features of sentencing hearings, such as the defendant's allocution, require an attorney to contend with competing "case theories," and as a result, to face the ethical and counseling challenge of …

The Articulate Frank Allen, James J. White

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Frank Allen had all of the wonderful talents that Ted St. Antoine and Rick Lempert ascribe to him. He was exceptionally smart and thoughtful (no one gets to give those fancy lectures who is not). He was a wise man (he led the faculty through the tough times at the end of the Vietnam War). And he was compassionate but tough as nails (he favored affirmative action, but was willing to close down the BAM affirmative action disruption with police if necessary-Frank's statement of his intention to call the police after the law school classes were disrupted forced the timorous …

Bankruptcy Noir, James J. White

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In Bankruptcy Fire Sales, Professor LoPucki and Dr. Doherty do two things. First, they present provocative data about the relative payoff to be had in Chapter 11 by a full reorganization compared with the payoff from a section 363 sale without a full reorganization. Second, they give a yet more provocative explanation for their data. Taking a page from Professor LoPucki's recent book, they blame the meager return that they observe on 363 sales on the unprincipled behavior of the lawyers, managers, creditors, investment bankers, and even judges involved in the sales. Messrs. LoPucki and Doherty's data appear to …

Mandatory Arbitration: Why It's Better Than It Looks, Theodore J. St. Antoine

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"Mandatory arbitration" as used here means that employees must agree as a condition of employment to arbitrate all legal disputes with their employer, including statutory claims, rather than take them to court. The Supreme Court has upheld the validity of such agreements on the grounds that they merely provide for a change of forum and not a loss of substantive rights. Opponents contend this wrongfully deprives employees of the right to a jury trial and other statutory procedural benefits. Various empirical studies indicate, however, that employees similarly situated do about as well in arbitration as in court actions, or even …

Francis A. Allen--Dean And Colleague, Theodore J. St. Antoine

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Frank Allen was chosen as Dean at Michigan during my first year on the Law School faculty. I had never met him but my colleagues had provided splendid reports about his work and about him personally. I was also impressed by his response to our inquiry concerning his possible interest in the deanship. He said he had established a couple of conditions for being a dean anywhere. First, it would have to be at a school to which he felt a special attachment. Second, it would have to be at an institution where he felt he could make some particular …

Commentary: More Open Issues Regarding The Consolidated Corporate Tax Base In The European Union, Reuven S. Avi-Yonah, Kimberly A. Clausing

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It is an honor to comment on the article by Jack Mintz and Joann Weiner.' Both of the authors have a deeply knowledgeable background in this area. The paper that Jack Mintz published (with Michael Smart) in 2004 on provincial taxation in Canada is one of the most careful and interesting papers in all of international taxation.2 And Joann Weiner has clearly been studying formulary apportionment for a very long time, from both U.S. and European perspectives.

Servitude, Liberté Et Citoyenneté Dans Le Monde Atlantique Des Xviiie Et Xixe Siècles: Rosalie De Nation Poulard…, Rebecca J. Scott, Jean Hebrard

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On December 4, 1867, the ninth day of the convention to write a new post-Civil War constitution for the state of Louisiana, delegate Edouard Tinchant rose to propose that the convention should provide “for the legal protection in this State of all women” in their civil rights, “without distinction of race or color, or without reference to their previous condition.” Tinchant’s proposal plunged the convention into additional debates ranging from voting rights and equal protection to recognition of conjugal relationships not formalized by marriage.

This article explores the genesis of Tinchant’s conceptions of citizenship and women’s rights through three generations …

Using Ethics Codes To Reinforce Lessons Of Statutory Interpretation, Edward R. Becker

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To increase my students' exposure to statutory interpretation, I assign them early in the second semester to argue a motion to disqualify counsel based on imputed disqualification under Michigan's ethics ruls. Interpreting ethics rules involves many of the same "pure" statutory interpretation techniques I introduced the previous semester, and the students appear to easily make any needed translations. This exercise also helps prepare students to interpret other quasi-legislative authorities like court or evidentiary rules, administrative codes, and municipal ordinances.

Navigating The Interstate Compact On The Placement Of Children: Advocacy Tips For Child Welfare Attorneys, Vivek Sankaran

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Legal advocates across the country confront hundreds of cases like Samira's each year. Many of those cases end with arms raised in frustration due to what appears to be a lack of options after the receiving state either fails to complete the home study or denies a placement. That frustration is understandabkle given the absence of language in the Compact outlining any process to compe states to complete home studies or to permit judicial review of placement denials. Yet, as advocates, we must move beyond this initial state of paralysis and develop creative ways to vindicate the rights of our …

Third-Party Tax Administration: The Case Of Low- And Moderate-Income Households, Michael S. Barr, Jane K. Dokko

Articles

Using a unique household-level data set, this article investigates the taxfiling experiences and refund behavior of low- and moderate-income (LMI) households. We document households' tax-filing behavior, attitudes about the withholding system, use of tax refunds to consume and save, and the mechanisms by which households would prefer to receive their income. We also document the prevalence of the use of tax-preparation services and the receipt of tax refunds and refund-anticipation loans. Finally, we argue that there may be a role for tax administration to enable LMI households to make welfare-improving financial decisions.

(Debate) Medicare: Did The Devil Make Us Do It?, D. A. Hyman, Jill R. Horwitz

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In this lively and creative debate, Professors David Hyman and Jill Horwitz argue about the virtues and vices of the federal Medicare program. As some predict a bleak future for the American’s government’s ability (or inability) to continue paying for Medicare as the population ages, this debate shows that there is genuine disagreement about the severity of the problem. In his Opening Statement, Professor Hyman offers a satirical letter to the Devil from one of his demonic servants, describes the Medicare program through the lens of the seven deadly sins. Arguing that Medicare’s faults are represented in each sin, the …

Frequency And Predictors Of False Conviction: Why We Know So Little, And New Data On Capital Cases, Samuel R. Gross, Barbara O'Brien

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In the first part of this article, we address the problems inherent in studying wrongful convictions: our pervasive ignorance and the extreme difficulty of obtaining the data that we need to answer even basic questions. The main reason that we know so little about false convictions is that, by definition, they are hidden from view. As a result, it is nearly impossible to gather reliable data on the characteristics or even the frequency of false convictions. In addition, we have very limited data on criminal investigations and prosecutions in general, so even if we could somehow obtain data on cases …

Useful Global-Change Scenarios: Current Issues And Challenges, Edward A. Parson

Articles

Scenarios are increasingly used to inform global-change debates, but their connection to decisions has been weak and indirect. This reflects the greater number and variety of potential users and scenario needs, relative to other decision domains where scenario use is more established. Global-change scenario needs include common elements, e.g., model-generated projections of emissions and climate change, needed by many users but in different ways and with different assumptions. For these common elements, the limited ability to engage diverse global-change users in scenario development requires extreme transparency in communicating underlying reasoning and assumptions, including probability judgments. Other scenario needs are specific …

Strange Bedfellows, David M. Uhlmann

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Environmental protection has not been a priority for the Bush administration, but, contrary to popular perception, criminal prosecution of companies and officials accused of breaking environmental laws has flourished.

Discovering William Cook: Ten Sources For Reconstructing The Life Of A Lawyer, Margaret A. Leary

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Ms. Leary uses a case study to describe ten categories of resources for reconstructing a Manhattan lawyer's life. These resources answer questions about his law practice, scholarship, personal life, personality, values, and philanthropy. The case study uses today's resources to look far back into the details of the life of William W. Cook, who gave his fortune to the University of Michigan Law School.

Pharma's Nonobvious Problem, Rebecca S. Eisenberg

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This Article considers the effect of the recent decision of the U.S. Supreme Court in KSR International Co. v. Teleflex, Inc. on the nonobviousness standard for patentability as applied to pharmaceutical patents. By calling for an expansive and flexible analysis and disapproving of the use of rigid formulas in evaluating an invention for obviousness, KSR may appear to make it easier for generic competitors to challenge the validity of drug patents. But an examination of the Federal Circuit's nonobviousness jurisprudence in the context of such challenges reveals that the Federal Circuit has been employing all along the sort of flexible …

Preserving The Rule Of Law In America's Jails And Prisons: The Case For Amending The Prison Litigation Reform Act, Margo Schlanger, Giovanna Shay

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Prisons and jails pose a significant challenge to the rule of law within American boundaries. As a nation, we are committed to constitutional regulation of governmental treatment of even those who have broken society’s rules. And accordingly, most of our prisons and jails are run by committed professionals who care about prisoner welfare and constitutional compliance. At the same time, for prisons—closed institutions holding an ever-growing disempowered population—most of the methods by which we, as a polity, foster government accountability and equality among citizens are unavailable or at least not currently practiced. In the absence of other levers by which …

Operationalizing Deterrence Claims Management (In Hopsitals, A Large Retailer, And Jails And Prisons), Margo Schlanger

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The theory that the prospect of liability for damages deters risky behavior has been developed in countless articles and books. The literature is far sparser, however, on how deterrence is operationalized. And prior work slights an equally important effect of damage actions, to incentivize claims management in addition to harm-reduction responses that are cost- rather than liabilityminimizing. This article works in the intersection of these two understudied areas, focusing on claims management steps taken by frequently sued organizations, and opening a window into the black box of deterrence to see how those steps may end up serving harm-reduction purposes as …

Jail Strip-Search Cases: Patterns And Participants, Margo Schlanger

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Among Marc Galanter’s many important insights is that understanding litigation requires understanding its participants. In his most-cited work, Why the “Haves” Come Out Ahead, Galanter pioneered a somersault in the typical approach to legal institutions and legal change: Most analyses of the legal system start at the rules end and work down through institutional facilities to see what effect the rules have on the parties. I would like to reverse that procedure and look through the other end of the telescope. Let’s think about the different kinds of parties and the effect these differences might have on the way the …

Why Counting Votes Doesn't Add Up: A Response To Cox And Miles' Judging The Voting Rights Act, Ellen D. Katz, Anna Baldwin

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In Judging the Voting Rights Act, Professors Adam B. Cox and Thomas J. Miles report that judges are more likely to find liability under section 2 of the Voting Rights Act (VRA) when they are African American, appointed by a Democratic president, or sit on an appellate panel with a judge who is African American or a Democratic appointee. Cox and Miles posit that their findings “contrast” and “cast doubt” on much of the “conventional wisdom” about the Voting Rights Act, by which they mean the core findings we reported in Documenting Discrimination in Voting: Judicial Findings Under Section 2 …

Do Investors In Controlled Firms Value Insider Trading Laws? International Evidence, Laura Nyantung Beny

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This article characterizes insider trading as an agency problem in firms that have a controlling shareholder. Using a standard agency model of corporate value diversion through insider trading by the controlling shareholder, I derive testable hypotheses about the relationship between corporate value and insider trading laws among such firms. The article tests these hypotheses using firm-level cross-sectional data from twenty-seven developed countries. The results show that stringent insider trading laws and enforcement are associated with greater corporate valuation among the sample firms in common law countries, a result that is consistent with the claim that insider trading laws mitigate agency …