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2008

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Institution
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Articles 1 - 30 of 288

Full-Text Articles in Law

The Decline And Fall Of At&T: A Personal Recollection, Richard A. Posner Dec 2008

The Decline And Fall Of At&T: A Personal Recollection, Richard A. Posner

Articles

No abstract provided.


John C. H. Wu At The University Of Michigan School Of Law, Xiuqing Li Dec 2008

John C. H. Wu At The University Of Michigan School Of Law, Xiuqing Li

Articles

The following is an English language translation of a 2008 Chinese language article on John C.H. Wu, Soochow Law School LL.B. 1920 and Michigan Law School, J.D. 1921, by Professor Li Xiuqing of Shanghai's East China University of Political Science and Law. Li is a specialist in Chinese and foreign legal history, with a focus on the transplant of Western and Japanese law into China during the late imperial and modern era. She also serves as the Secretary-General of the China Foreign Legal History Association. In 2006-07, Li was a Fulbright Scholar at the University of ...


Enforcing Dividend Withholding On Derivatives, Reuven S. Avi-Yonah Nov 2008

Enforcing Dividend Withholding On Derivatives, Reuven S. Avi-Yonah

Articles

The United States imposes a 30 percent withholding tax on dividends paid to nonresident aliens. However, this tax is rarely paid by portfolio investors because they can swap into U.S. securities, receiving payments to match both capital gain and dividends. Treasury has ruled that swap payments have an origin in the taxpayer’s residence so there is no withholding obligation on payments that match dividends. The proposal would impose withholding tax on dividend equivalents on the ground that there is no policy justification for a distinction between dividends, substitute dividends under securities lending transaction (which are treated as dividends ...


The Professional Ethics Of Billing And Collections, Mark A. Hall, Carl E. Schneider Oct 2008

The Professional Ethics Of Billing And Collections, Mark A. Hall, Carl E. Schneider

Articles

Medicine is a Profession on which physicians rely for their livelihood and patients for their lives. If physicians do not charge for services, they cannot survive. If patients cannot afford those services, they cannot survive. No wonder many physicians have long agreed that fees are “one of the most difficult problems . . . between patient and physician.” For years comprehensive insurance subdued this problem, but currently widespread underinsurance and consumer-directed health care are reviving it. Even as the ranks of the uninsured continue to increase,the latest hope for controlling medical costs requires insured patients to pay for much more care out-of ...


Hedonic Adaptation And The Settlement Of Civil Lawsuits, Jonathan Masur, John Bronsteen, Christopher Buccafusco Oct 2008

Hedonic Adaptation And The Settlement Of Civil Lawsuits, Jonathan Masur, John Bronsteen, Christopher Buccafusco

Articles

This Essay examines the burgeoning psychological literature on happiness and hedonic adaptation (a person's capacity to preserve or recapture her level of happiness by adjusting to changed circumstances), bringing this literature to bear on the probability of pretrial settlement in civil litigation. The existing economic and behavioral models of settlement are incomplete because they do not incorporate the effect of adaptation on the sum for which a plaintiff is willing to accept an offer. When an individual first suffers a serious injury, she will likely predict that the injury will greatly diminish her future happiness. However, during the time ...


The World Of The Framers: A Christian Nation?, Geoffrey R. Stone Oct 2008

The World Of The Framers: A Christian Nation?, Geoffrey R. Stone

Articles

No abstract provided.


Will The Tax Man Cometh To Coach Rodriguez?, Douglas A. Kahn, Jeffrey H. Kahn Aug 2008

Will The Tax Man Cometh To Coach Rodriguez?, Douglas A. Kahn, Jeffrey H. Kahn

Articles

There has been much in the news recently about coaches of major college sports teams moving to a new school and incurring an obligation to make payment to their old school under a buyout provision in their contract. The most recent example is the highly publicized move of Richard Rodriguez from West Virginia University to the University of Michigan. Coach Rodriguez had a contract with his former employer that required him to pay $4 million dollars to West Virginia if he left for another coaching position. After a suit was filed, it was reported that the parties agreed that the ...


The Mediator As Fugu Chef: Preserving Protections Without Poisoning The Process, Maureen Laflin Jul 2008

The Mediator As Fugu Chef: Preserving Protections Without Poisoning The Process, Maureen Laflin

Articles

No abstract provided.


Jesting Pilate, Carl E. Schneider Jul 2008

Jesting Pilate, Carl E. Schneider

Articles

I have two goals this month. First, to examine a case that's in the news. Second, to counsel skepticism in reading news accounts of cases. Recently, I was talking with an admirable scholar. He said that transplant surgeons sometimes kill potential donors to obtain their organs efficiently. He added, "This isn't just an urban legend - there's a real case in California." A little research turned up California v. Roozrokh. A little Googling found stories from several reputable news sources. Their headlines indeed intimated that a transplant surgeon had tried to kill a patient to get transplantable organs ...


A Coordinated Withholding Tax On Deductibility Payments, Reuven S. Avi-Yonah Jun 2008

A Coordinated Withholding Tax On Deductibility Payments, Reuven S. Avi-Yonah

Articles

Prof. Avi-Yonah proposes a 35 percent withholding tax on deductible payments made to a non-U.S. resident, in coordination with other OECD members. The tax is aimed at U.S. residents posing as foreign investors and would be refundable when the beneficial owner shows that the payments have been reported to tax authorities in the owner’s country of residence.


Resolving Conflict In Non-Ideal, Complex Systems: Solutions For The Law-Science Breakdown In Environmental And Natural Resource Law, Barbara Cosens Apr 2008

Resolving Conflict In Non-Ideal, Complex Systems: Solutions For The Law-Science Breakdown In Environmental And Natural Resource Law, Barbara Cosens

Articles

In 2006, the U.S. Supreme Court decided a consolidated case concerning the scope of the U.S. Army Corps of Engineers' jurisdiction to require permits for dredge and fill of wetlands under section 404 of the Clean Water Act, issuing a plurality, two concurrences, and two dissents. Each opinion has a solid legal foundation, yet none truly makes sense if the science of the resource in question is considered. The opinions in Rapanos v. United States illuminate the struggle at the law-science interface. The problem is not due to either a failure in legal reasoning or a failure in ...


Teaching Ip From An Entrepreneurial Counseling And Transactional Perspective, Sean M. O'Connor Apr 2008

Teaching Ip From An Entrepreneurial Counseling And Transactional Perspective, Sean M. O'Connor

Articles

The traditional law school appellate case method is not well-suited to teaching students either the substance and process of counseling entrepreneurial clients or helping such clients create IP strategies that effectively advance their business vision. This Article describes the author’s creation of new courses and clinics to advance teaching IP in the emerging field of entrepreneurship and innovation law


Jurisdictions And Causes Of Action: Commercial Considerations In Dealing With Bullying, Stress And Harassment Cases-Part Ii, Niall Neligan Mar 2008

Jurisdictions And Causes Of Action: Commercial Considerations In Dealing With Bullying, Stress And Harassment Cases-Part Ii, Niall Neligan

Articles

In the concluding part of this two part article, the author will
examine how the courts have developed rules for dealing with
tortious claims for psychiatric injuries arising out of bullying, stress
and harassment cases. The article will examine whether it is
desirable to consolidate and codify employment rights law in order
to provide clarity to prospective litigants. Finally, the author will
argue that if codification is required, then this will necessitate a
change in the nature of present jurisdictions for bringing claims
involving bullying, stress and harassment in the workplace.


Valuing Laws As Local Amenities, Anup Malani Mar 2008

Valuing Laws As Local Amenities, Anup Malani

Articles

The conventional approach to evaluating a law is to examine its effect on proximate behavior. To evaluate a new criminal law, for example, the conventional approach would look to changes in the crime rate. This Article proposes another method for evaluating laws, specifically, that they should be judged by the extent to which they raise housing prices and lower wages in the short run or raise the aggregate value of residential land in the long run. The logic is that the value of a law, much like the value of a lake or a public school, is capitalized into local ...


The Roberts Court, Stare Decisis, And The Future Of Constitutional Law, Geoffrey R. Stone Mar 2008

The Roberts Court, Stare Decisis, And The Future Of Constitutional Law, Geoffrey R. Stone

Articles

No abstract provided.


Finding Hidden Treasures In Special Collections, Stacy Etheredge Feb 2008

Finding Hidden Treasures In Special Collections, Stacy Etheredge

Articles

No abstract provided.


Condemnation Without Justification, Douglas A. Kahn Jan 2008

Condemnation Without Justification, Douglas A. Kahn

Articles

On August 6-8, 2007, Prof. Neil Buchanan posted in Michael Dorf’s blog (http://michaeldorf.org/; for the blog entry regarding the death tax, see http:// michaeldorf.org/2007/08/dishonest-tax-rhetoric-part-3- of-3.html) a three-part series on what he deemed to be examples of political use of terminology to describe tax issues in a manner that is likely to mislead the public. Prof. Buchanan described this practice as ‘‘dishonest tax rhetoric.’’ He awarded first, second, and third prizes for the most egregious examples of dishonest rhetoric. I, however, found no objection to the usages he considered to be the two ...


Bylaw Reforms For Delaware's Corporation Law, Brett Mcdonnell Jan 2008

Bylaw Reforms For Delaware's Corporation Law, Brett Mcdonnell

Articles

Written as part of a symposium on the Delaware General Corporation Law in the twenty-first century, this paper suggests four reforms to the DGCL. Each of these reforms would help solidify the ability of shareholders to effectively adopt bylaws that regulate decisionmaking procedure and corporate governance. The four reforms are: 1. Amend section 109(b), and perhaps 141(a), to clarify that bylaws may set procedural and governance rules, but may not be used to make substantive business decisions; 2. Amend section 141(a) to provide that shareholder bylaw or certificate provisions which limit board discretion thereby shield the board ...


Straight Acting, Dale Carpenter Jan 2008

Straight Acting, Dale Carpenter

Articles

Early in the race for the Democratic presidential nomination, one occasionally heard black critics of Barack Obama question his racial credentials. Was he really black? Was he black enough? These critics noted that Obama’s mother was white, that his father was born in Africa and thus had not lived through segregation and the American civil rights struggle, that he was light-skinned, that he talked like a white person, and enjoyed the sort of educational privileges more commonly enjoyed by whites than by blacks.1


Fair Use And Copyright Overenforcement, Thomas F. Cotter Jan 2008

Fair Use And Copyright Overenforcement, Thomas F. Cotter

Articles

Economic analysis has long suggested that there are two distinct categories of cases in which the fair use defense, which permits the unauthorized reproduction and other use of copyrighted materials, should apply: first, when the transaction cost of negotiating with the copyright owner for permission to use exceeds the private value of the use to the would-be user; and second, when the individual use is thought to generate some positive externality, such that the net social value of the use exceeds the value to the copyright owner of preventing the use, which in turn may exceed the value of the ...


Toward A Functional Definition Of Publication In Copyright Law, Thomas F. Cotter Jan 2008

Toward A Functional Definition Of Publication In Copyright Law, Thomas F. Cotter

Articles

The questions of whether, when, and where an author has "published" her work of authorship traditionally has given rise to, and continues to give rise to, numerous consequences, including the protectability of the work under U.S. copyright law; the running of various time periods, including a grace period for registering the copyright and the termination of copyright in works made for hire; the applicability of fair use and other exceptions to copyright liability; and the imposition of the duty to deposit two copies of the work with the Library of Congress. Although the 1976 Copyright Act, unlike its predecessors ...


Two Goals For Executive Compensation Reform, Brett Mcdonnell Jan 2008

Two Goals For Executive Compensation Reform, Brett Mcdonnell

Articles

Most corporate law scholars who suggest reforming executive compensation worry about corporate governance problems that arise out of poor compensation design. Most politicians who suggest reforming executive compensation seem as or more worried about growing economic inequality. This essay briefly considers two arguments justifying legal scholars in ignoring the concern with inequality. The first argument says that we should address inequality concerns only through tax and transfer policy. This essay responds that politics may dictate sometimes trying to reduce inequality through other means as well. The second argument claims that high pay for the top executives of public corporations has ...


Classified Information Leaks And Free Speech, Heidi Kitrosser Jan 2008

Classified Information Leaks And Free Speech, Heidi Kitrosser

Articles

Much attention has been paid of late to unauthorized disseminations of classified information. A grand jury proceeding has been initiated to investigate the leak and publication of information about the National Security Agency's warrantless electronic surveillance program. And in a case currently pending in the Eastern District of Virginia, the U.S. government for the first time is prosecuting private citizens for exchanging classified information in the course of concededly non-espionage activities - specifically, political lobbying. These events illuminate the underdeveloped and deeply under-theorized state of the law on classified information leaks and publications. The central chasm in existing theory ...


Keynote Address: International Standard-Setting On The Human Rights Responsibilities Of Businesses, David Weissbrodt Jan 2008

Keynote Address: International Standard-Setting On The Human Rights Responsibilities Of Businesses, David Weissbrodt

Articles

It is a great honor to be invited to my alma mater to speak at this confer- ence highlighting the human rights responsibilities of transnational corporations and to be selected to receive this year's Stefan A. Riesenfeld Award for my con- tributions in the field of international law.


Remedies For Undocumented Noncitizens In The Workplace: Using International Law To Narrow The Holding Of Hoffman Plastic Compounds, Inc. V. Nlrb, David Weissbrodt Jan 2008

Remedies For Undocumented Noncitizens In The Workplace: Using International Law To Narrow The Holding Of Hoffman Plastic Compounds, Inc. V. Nlrb, David Weissbrodt

Articles

In Hoffman Plastic Compounds, Inc. v. NLRB, the U.S. Supreme Court denied the National Labor Relations Act (NLRA) back-pay claims of a worker wrongfully discharged for union organizing.1 The Supreme Court's 2002 decision reasoned that the worker should not be able to recover back pay under the NLRA because he was a noncitizen and not entitled to em- ployment. 2 The Inter-American Court of Human Rights and the International Labor Organization (ILO) Freedom of Association Committee have rejected the Hoffman decision and criticized the United States for its discrimination against noncitizens.3


Employee Primacy, Or Economics Meets Civic Republicanism At Work, Brett Mcdonnell Jan 2008

Employee Primacy, Or Economics Meets Civic Republicanism At Work, Brett Mcdonnell

Articles

This paper argues for employee primacy in corporate governance. "Employee primacy" has two elements: ultimate employee control over the corporation, and an objective function of maximizing employee welfare. In methodology, the argument draws upon both economics, but understood more broadly than in most corporate law scholarship, and upon civic republican ideas. The paper presents four different arguments favoring employee primacy. (1) Employee primacy is likely to create the most surplus within the corporation due to incentive effects and the wealth of information that employees possess. (2) Corporations characterized by employee primacy are more likely to be socially responsible, and hence ...


Fair Trials? The Manual For Military Commissions In Light Of Common Article 3 And Other International Law, David Weissbrodt, Andrea W. Templeton Jan 2008

Fair Trials? The Manual For Military Commissions In Light Of Common Article 3 And Other International Law, David Weissbrodt, Andrea W. Templeton

Articles

The United States Department of Defense initiated military commissions as authorized by the Military Commissions Act ("MCA") of 2006 to try "unlawful enemy combatants" detained in the course of the War on Terror. 1 Enacted on October 17, 2006, the MCA's specific purpose is "to try alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission." 2 Congress passed the MCA as a renewed attempt at convening military commissions in response to the Supreme Court's ruling in Hamdan v. Rumsfeld, 3 where the ...


Foreclosure Reform Amid Mortgage Lending Turmoil: A Public Purpose Approach, Prentiss Cox Jan 2008

Foreclosure Reform Amid Mortgage Lending Turmoil: A Public Purpose Approach, Prentiss Cox

Articles

Irene Thomas was twenty-one years old when she met a man outside of a nightclub who convinced her that she could make money in real estate. 1 A mortgage broker and others used her credit rating to obtain ten residential properties within a ninety-day period with no money down. 2 Ms. Thomas incurred $ 2.4 million in mortgage debt for these home purchases. 3 Just over a year later, all the properties were in foreclosure after Ms. Thomas failed to make the mortgage payments. 4 The neighborhood on the north side of Minneapolis where these ten properties are located has ...


A Slower Form Of Death: Implications Of Roper V. Simmons For Juveniles Sentenced To Life Without Parole, Barry C. Feld Jan 2008

A Slower Form Of Death: Implications Of Roper V. Simmons For Juveniles Sentenced To Life Without Parole, Barry C. Feld

Articles

The Supreme Court in Roper v. Simmons 1 interpreted the Eighth Amendment to prohibit states from executing offenders for crimes they committed when younger than eighteen years of age. The Court relied on objective indicators of "evolving standards of decency," such as state statutes and jury decisions to support its judgment that a national consensus existed against executing adolescents. The Justices also conducted an independent proportionality analysis of youths' criminal responsibility and concluded that their reduced culpability warranted a categorical prohibition of execution. Juveniles' immature judgment, susceptibility to negative peer influences, and transitory personality development diminished their criminal responsibility. Because ...


Combating The Color-Coded Confinement Of Kids: An Equal Protection Remedy, Perry L. Moriearty Jan 2008

Combating The Color-Coded Confinement Of Kids: An Equal Protection Remedy, Perry L. Moriearty

Articles

This Article considers the viability of a constitutional challenge to the disproportionate confinement of juveniles of color – a phenomenon known as “disproportionate minority contact” or “DMC.” Specifically, I ask whether, in the wake of McCleskey v. Kemp and its progeny, it is possible bring an Equal Protection claim based on statistical evidence that juveniles of color are significantly more likely to be detained by juvenile court judges than similarly-situated white youth. I argue that the nature of the juvenile detention decision places it squarely within the contours of the types of administrative decisions for which the Supreme Court has historically ...