Law Commons^™

Risk, Rents, And Regressivity: Why The United States Needs Both An Income Tax And A Vat, Reuven S. Avi-Yonah

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In this article, Prof. Avi-Yonah argues that the legal academic debate about fundamental tax reform from 1974 onward has been skewed by the assumption that a consumption tax must replace the income tax. He addresses three of the major issue in recent writings on the income/consumption tax debate, and shows how none of the arguments in favor of the consumption tax are conclusive. Avi-Yonah also addresses the various consumption tax proposals that have been made and shows that they are all deficient in comparison with a VAT, as well as failing to achieve the goals of an income tax. Finally, …

Regulatory Taxings, Eduardo Peñalver

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The tension between the Supreme Court's expansive reading of the Takings Clause and the state's virtually limitless power to tax has been repeatedly noted, but has received little systematic exploration. Although some scholars, most notably Richard Epstein, have used the tension between takings law and taxes to argue against the legitimacy of taxation as it is presently practiced, such an approach has failed to gain a significant following. Instead, the broad legal consensus is that legislatures effectively have unlimited authority to impose tax burdens. Nevertheless, this Article demonstrates that every attempt to formulate a "Reconciling Theory," a theory that would …

The Defined Contribution Paradigm, Edward A. Zelinsky

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Pension cognoscenti have frequently remarked on the stagnation of defined benefit pensions and the concomitant rise of defined contribution plans. I suggest that, over the last generation, something even more fundamental has occurred, something that can justly be called a paradigm shift. Americans today primarily conceive of and implement retirement savings in the form of individual accounts. Such accounts have become primary instruments of public policy, not just for retirement savings, but increasingly for health care and education as well.

The Federalist Dimension Of Regulatory Takings Jurisprudence, Stewart E. Sterk

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Conventional wisdom teaches that the Supreme Court's takings doctrine is a muddle. Appearances, however, are deceiving. The "property" protected by the Takings Clause is defined not by a single sovereign, but by the legislative enactments and judicial pronouncements of fifty separate states. As a result, federalism concerns - underappreciated in the takings literature - do and should play an important role in shaping the Court's takings doctrine. In particular, these concerns make it inappropriate for the Court to use the Takings Clause as a vehicle for articulating a comprehensive theory of the limits on government power to regulate land. This …

Private Parties As Defendants In Civil Rights Litigation: Introduction, Myriam Gilles

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No abstract provided.

Dedicated To The Memory Of Lee E. Teiteitelbaum, Carl E. Schneider

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When I first met Lee Teitelbaum at a conference two decades ago, I was a novice and he a distinguished scholar. Because my colleagues admired him, I rang his room at the hotel and asked him to join me for dinner. He sweetly agreed. When he opened his door to my knock, I realized that he set standards I could never match-sartorial standards. Who was this king of glory? 1 stood there in my Oshkosh khakis and running shoes, agape and abashed. Despite this unpropitious start, our friendship ripened, and soon I realized Lee set standards of a finer and …

Challenging Ethnic Citizenship: German And Israeli Perspectives On Citizenship, David Abraham

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Gaming Delaware, William Wilson Bratton

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Liability For Life, Carl E. Schneider

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Marshall Klavan headed the Obstetrics and Gynecology Department of the Crozer-Chester Medical Center. He deeply feared strokes, perhaps because his father had been savaged by one. In 1993, Dr. Klavan wrote an advance directive which said that (as a court later put it) "he 'absolutely did not want any extraordinary care measures utilized by health care providers.'" On April29, 1997, Dr. Klavan tried to kill himsel£ He left suicide notes and a note refusing resuscitation. The next morning, medical center employees found him unconscious and took him to the emergency room, where he was resuscitated. By May 2, Dr. Klavan …

De Facto Custodians: A Response To The Needs Of Informal Kin Caregivers?, Elizabeth Brandt

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No abstract provided.

'Bound Fast And Brought Under The Yoke': John Adams And The Regulation Of Privacy At The Founding, Alison Lacroix

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No abstract provided.

From Agency To Zattiero - The Effect Of School Board Policy, John E. Rumel

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The Ingenious Kerry Tax Plan, Reuven S. Avi-Yonah

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The tax plan proposed by Democratic presidential candidate John Kerry at Wayne State University on March 26 is an ingenious set of ideas to encourage domestic job creation. Its greatest strength, however, may be its contribution to long-term economic growth, fairness, and tax law simplification. In this article I will first describe the Kerry proposal, then analyze its advantages, and finally address some counterarguments.

Treatment As Tribe, Treatment As State: The Penobscot Indians And The Clean Water Act, William H. Rodgers, Jr.

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Remarks On The Alien Tort Claims Act And Transitional Justice, Eric A. Posner

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Discovering Mr. Cook, Margaret A. Leary

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Before I begin to tell you some of what I've learned as I've tried to discover Mr. [William W.] Cook, please ponder two questions: What are your feelings about the Law Quad buildings? Think, for example of the first time you entered the Quad; studying in the Reading Room; seeing the snowy Quad for the first time; and socializing in the Dining Room. You probably have a flood of memories connected to these buildings. The Law School has outgrown them in many respects, but the buildings will always be inspirational. Second, let me ask what you know about William W. …

Rules, Principles, And The Accounting Crisis In The United States, William Wilson Bratton

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The Sarbanes-Oxley Act and the Securities Exchange Commission move too quickly when they prod the Financial Accounting Standards Board, the standard setter for US GAAP, to move immediately to a principles-based system. Priorities respecting reform of corporate reporting in the US need to be ordered more carefully. Incentive problems impairing audit performance should be solved first through institutional reform insulating the audit from the negative impact of rent-seeking and solving adverse selection problems otherwise affecting audit practice. So long as auditor independence and management incentives respecting accounting treatments remain suspect, the US reporting system holds out no actor plausibly positioned …

Building A Home For The Laws Of The World: Part Ii: Hoping, Hunting, And Honing, Margaret A. Leary

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The following feature is the second, concluding portion of the edited version of "Building a Foreign Law Collection at the University of Michigan Law Library, 1910-1960,"© Margaret A. Leary, 2002, which originally appeared at 94 Law Library Journal 395-425 (2002), and appears here with permission of the author. The first part of the article (46.2 Law Quadrangle Notes 46-53 [Summer 2003] detailed how the vision of Dean Henry Bates, generosity of graduate William W. cook, and skills of librarian/traveler/negotiator Hobart Coffey combined to launch the building of the Law Library's international collection into one of the best in the world.

Enough: The Failure Of The Living Will, Angela Fagerlin, Carl E. Schneider

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Enough. The living will has failed, and it is time to say so. We should have known it would fail: A notable but neglected psychological literature always provided arresting reasons to expect the policy of living wills to misfire. Given their alluring potential, perhaps they were worth trying. But a crescendoing empirical literature and persistent clinical disappointments reveal that the rewards of the campaign to promote living wills do not justify its costs. Nor can any degree of tinkering ever make the living will an effective instrument of social policy. As the evidence of failure has mounted, living wills have …

Human Dignity And The Claim Of Meaning: Athenian Tragic Drama And Supreme Court Decisions, James Boyd White

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I am going to bring together what may seem at first to be two extremely different institutions for the creation of public meaning, namely classical Athenian tragedy and the Supreme Court opinion.1 My object is not so much to draw lines of similarity and distinction between them, as a cultural analyst might do, as to try to capture something of what I believe is centrally at work in both institutions, in fact essential to what each at its best achieves. I can frame it as a question: How is it that the best instances of each genre (for I will …

India - Measures Affecting The Automotive Sector Paper, Alan O. Sykes, Kyle Bagwell

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No abstract provided.

Chile - Price Band System And Safeguard Measures Relating To Certain Agriculture Products Paper, Alan O. Sykes, Kyle Bagwell

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No abstract provided.

Citizenship, Standing, And Immigration Law, Adam B. Cox

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Courts and commentators typically evaluate constitutional immigration law from the perspective of aliens. But that approach pays insufficient attention to the ways immigration law affects the interests and rights of citizens. In particular, an alien-centered approach fails to consider the central role immigration law plays in national self-definition and, consequently, ignores the possibility that immigration law may injure citizens by defining the national political community in constitutionally impermissible ways. Considering federal immigration law from the perspective of citizens, this Article demonstrates that immigration policy, which contemporary constitutional doctrine largely insulates from attack, should not be immune to challenges by citizens. …

Citizenship, Standing, And Immigration Law, Adam B. Cox

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Courts and commentators typically evaluate constitutional immigration law from the perspective of aliens. But that approach pays insufficient attention to the ways immigration law affects the interests and rights of citizens. In particular, an alien-centered approach fails to consider the central role immigration law plays in national self-definition and, consequently, ignores the possibility that immigration law may injure citizens by defining the national political community in constitutionally impermissible ways. Considering federal immigration law from the perspective of citizens, this Article demonstrates that immigration policy, which contemporary constitutional doctrine largely insulates from attack, should not be immune to challenges by citizens. …

Partisan Fairness And Redistricting Politics, Adam B. Cox

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Courts and scholars have operated on the implicit assumption that the Supreme Court's "one person, one vote" jurisprudence put redistricting politics on a fixed, ten-year cycle. Recent redistricting controversies in Colorado, Texas, and elsewhere, however, have undermined this assumption, highlighting the fact that most states are currently free to redraw election districts as often as they like. This essay explores whether partisan fairness-a normative commitment that both scholars and the Supreme Court have identified as a central concern of districting arrangements- would be promoted by a procedural rule limiting the frequency of redistricting. While the literature has not considered this …

Executive Power Essentialism And Foreign Affairs, Curtis A. Bradley, Martin S. Flaherty

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Conflict abroad almost always enhances executive power at home. This expectation has held true at least since the constitutions of antiquity.¹ It holds no less true for modern constitutions, including the Constitution of the United States.² Constitutional arguments for executive power likewise escalate with increased perceptions of foreign threat. It is therefore hardly surprising that broad assertions of presidential power have become commonplace after the events of September 11, 2001, and the ensuing war on international terrorism.

One perennial weapon in the executive arsenal is the so-called "Vesting Clause" of Article II of the Constitution. This clause, which …

Note, Underenfranchisement: Black Voters And The Presidential Nomination Process, Justin Driver

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No abstract provided.

Common Interest Tragedies, Lee Anne Fennell

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A Farewell To Pragmatism, Richard A. Epstein

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Corporate Heroin: A Defense Of Perks, Executive Loans, And Conspicuous Consumption, M. Todd Henderson, James C. Spindler

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We argue that firms undertake to reduce employee savings in order to avoid final period problems that occur when employees accumulate enough wealth to retire and leave the industry. Normally, reputation constrains employee behavior, since an employee who "cheats" at one firm will then find herself unable to get a job at another However, employees who have saved such that they no longer care about continued employment will act opportunistically in the final periods of employment, which can destroy much or all of the surplus otherwise created by the employment relationship. We believe that this sort of final period cheating …