Law Commons^™

The Appellate Review Model Of Agency Adjudications, Linda Jellum

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No abstract provided.

Book Review (Reviewing Martha Minow, In Brown's Wake: Legacies Of America's Educational Landmark (2010)), Gerald Rosenberg

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No abstract provided.

Property's Memories, Eduardo Peñalver

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No abstract provided.

Accessing Justice: The Available And Adequacy Of Counsel In Removal Proceedings, Peter Markowitz, Jojo Annobil, Stacy Caplow, Peter V.Z. Cobb, Nancy Morawetz, Oren Root, Claudia Slovinsky, Zhifen Cheng, Lindsay C. Nash

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The immigrant representation crisis is a crisis of both quality and quantity. It is the acute shortage of competent attorneys willing and able to competently represent individuals in immigration removal proceedings. Removal proceedings are the primary mechanism by which the federal government can seek to effect the removal, or deportation, of a noncitizen. The individuals who face removal proceedings might be: the long-term lawful permanent resident (green card holder) who entered the country lawfully as a child and has lived in the United States for decades; or the refugee who has come to the United States fleeing persecution; or the …

Rethinking Merger Efficiencies, Daniel A. Crane

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The two leading merger systems-those of the United States and the European Union-treat the potential benefits and risks of mergers asymmetrically. Both systems require considerably greater proof of efficiencies than they do of potential harms if the efficiencies are to offset concerns over the accumulation or exercise of market power The implicit asymmetry principle has important systemic effects for merger control. It not only stands in the way of some socially desirable mergers but also may indirectly facilitate the clearance of some socially undesirable mergers. Neither system explicitly justifies this asymmetry, and none of the plausible justifications are normatively supportable. …

Craig Callen: Tributes From The Evidence Community, Richard D. Friedman

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At the wonderful memorial service for Craig Callen held at MSU shortly after his death in April, I had the honor, by reason of proximity, to appear in effect as the representative of nationwide, and even worldwide, community of scholars that has felt his death very deeply. I am grateful for the opportunity to perform this same function in print.

Sex, Privacy And Public Health In A Casual Encounters Culture, Mary D. Fan

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The regulation of sex and disease is a cultural and political flashpoint and recurring challenge that law's antiquated arsenal has been hard- pressed to effectively address. Compelling data demonstrate the need for attention—for example, one in four women aged fourteen to nineteen is infected with at least one sexually transmitted disease ("STD"); managing STDs costs an estimated $15.9 billion annually; and syphilis, once near eradication, is on the rise again, as are the rates of HIV diagnosis among people aged fifteen to twenty-four. Public health officials on the front lines have called for paradigm changes to tackle the enormous challenge. …

Collateral Censorship And The Limits Of Intermediary Immunity, Felix T. Wu

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The law often limits the liability of an intermediary for the speech it carries. And rightly so, because imposing liability on intermediaries can induce them to filter out questionable content and this “collateral censorship” risks suppressing much lawful, even highly beneficial, speech. The “collateral censorship” rationale has its limits, though, and correspondingly, so should the applicability of intermediary immunity. The worry with collateral censorship is not just that intermediaries censor, but that they censor more than an original speaker would in the face of potential liability. Increased censorship, in turn, is the product of applying liability targeted at original speakers …

Chair's Message, Michael Herz

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No abstract provided.

Hiring Teams, Firms, And Lawyers: Evidence Of The Evolving Relationship In The Corporate Legal Market, Michele M. Destefano, John C. Coates, Ashish Nanda, David B. Wilkins

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How are relationships between corporate clients and law firms evolving? Drawing on interview and survey data from 166 chief legal officers of S&P 500 companies from 2006-2007, we find that-contrary to standard depictions of corporate client-provider relationships-(1) large companies have relationships with ten to twenty preferred providers; (2) these relationships continue to be enduring, and (3) clients focus not only on law firm platforms and lead partners, but also on teams and departments within preferred providers, allocating work to these subunits at rival firms over time and following "star" lawyers, especially if they move as part of a team. The …

Does Qualified Immunity Matter?, Alexander A. Reinert

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In litigation brought pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971), most commentators agree that qualified immunity plays a substantial role in limiting plaintiffs' ability to recover compensation. Many find this tradeoff acceptable, in part because of concerns of fairness to government official defendants and in part because courts may still play a central role in announcing the law without worrying over the retroactive effect their decision will have on the personal funds of the defendant official.

This paper considers the different role that qualified immunity may play in …

Warning: Your Lcc Interest Might Be A Security, Wendy Gerwick Couture

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No abstract provided.

Beyond Territoriality And Deferral: The Promise Of "Managed And Controlled", Reuven S. Avi-Yonah

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In the new version of his Stop Tax Haven Abuse Act, Sen. Carl Levin, D-Mich., once again proposed to modify the definition of residence for domestic corporations (IRC section 7701). Section 103 of the act seeks to: stop companies run from the United States claiming foreign status by treating foreign corporations that are publicly traded or have gross assets of $50 million or more and whose management and control occur primarily in the United States as U.S. domestic corporations for income tax purposes. [Emphasis in original.] This is not a new suggestion. In response to the inversions of the early …

Fantasies And Illusions: On Liberty, Order, And Free Markets, Bernard E. Harcourt

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No abstract provided.

Money On The Table: Why The U.S. Should Tax Inbound Capital Gains, Reuven S. Avi-Yonah

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On March 21, 2011, AT&T announced that it will buy T-Mobile from Deutsche Telekom for $39 billion. This transaction will be tax free to Deutsche Telekom (DT) not because it qualifies as a reorganization, but because DT is a foreign corporation and capital gains of nonresidents are generally not subject to U.S. taxation because they are deemed to be foreign source. Also, DT is protected from taxation by article 13(5) of the Germany-U.S. tax treaty, which provides that capital gains are generally taxable only by the country of residence.

Keynote: The Crisis And Criminal Justice, Bernard E. Harcourt

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No abstract provided.

Dean Verkuil, Michael Herz

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No abstract provided.

Judicial Inconsistency As Virtue: The Case Of Justice Stevens, Justin Driver

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No abstract provided.

Willpower Taxes, Lee Anne Fennell

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Self-control and related concepts appear regularly in tax discussions, but often they are invoked hazily or blurred together with other aspects of choice over time. Despite the evident relevance of willpower to consumption patterns, wealth accumulation, and, ultimately, well-being, there is no consensus about whether and how heterogeneity along this dimension should factor into tax policy. There is support in the tax literature for such divergent responses as funneling more resources to low-willpower people, penalizing them for their lapses, and limiting their choices. Whether we should follow one of these approaches, or some other approach entirely, requires a careful analysis …

The Police Gamesmanship Dilemma, Mary D. Fan

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Police gamesmanship poses a recurring regulatory challenge for constitutional criminal procedure, leading to zigzags and murky zones in the law such as the recent rule shifts regarding searches incident to arrest and interrogation. Police gamesmanship in the “competitive enterprise of ferreting out crime” involves tactics that press on blind spots, blurry regions or gaps in rules and remedies, undermining the purpose of the protections. Currently, courts generally avoid peering into the Pandora’s Box of police stratagems unless the circumvention of a protection becomes too obvious to ignore and requires a stopgap rule-patch that further complicates the maze of criminal procedure. …

Selective Judicial Activism, Geoffrey R. Stone

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No abstract provided.

Citizenship And Worldwide Taxation: Citizenship As An Administrable Proxy For Domicile, Edward A. Zelinsky

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The United States' worldwide taxation of its citizens is less different from international, residence-based norms than is widely believed and is sensible as a matter of tax policy. An individual's citizenship is an administrable, if sometimes overly broad, proxy for his domicile, his permanent home. Both citizenship and domicile measure an individual's permanent allegiance rather than his immediate physical presence. Because citizenship and domicile resemble each other, and because other nations often define residence for tax purposes as domicile, the U.S. system of citizenship-based taxation typically reaches the same results as the residence-based systems of these other nations, but reaches …

Chevron'S Regrets: The Persistent Vitality Of The Nondelegation Doctrine, Michael Pollack

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Since the Chevron decision in 1984, courts have extended to administrative agencies a high level of deference when those agencies reasonably interpret ambiguous statutes, reasoning that agencies have more technical expertise and public accountability than courts. However, when the agency’s interpretation implicates a significant policy choice, courts do not always defer. At times, they rely on principles of nondelegation to rule against the agency interpretation and require that choices be made by Congress instead.

Chevron makes no explicit exception for significant policy choices, but in cases like MCI v. AT&T and FDA v. Brown & Williamson, the Supreme Court …

The Consensus Constitution, Justin Driver

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No abstract provided.

Unbundling Risk, Lee Anne Fennell

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Scholars have explored many ways to rearrange risk outside of traditional insurance markets. An interesting literature addresses a range of innovative alternatives, including the sale of unmatured tort claims or chances at windfalls, "anti-insurance," or "reverse insurance," and index-based derivatives that address routine (but life-altering) risks, such as those to home values or livelihoods. Because most of this work grows out of a conviction that specific risk allocations embedded in law could be improved upon, the merits of the newly proposed risk arrangements have taken center stage. This Article, in contrast, examines questions surrounding risk customization itself such as the …

The Role Of Authority, Scott A. Hershovitz

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The most influential account of authority – Joseph Raz's service conception – is an account of the role of authority, in that it is an account of its point or function. However, authority does not have a characteristic role to play, and even if it did, the ability to play a role is not, by itself, sufficient to establish authority. The aim of this essay is to shift our focus from roles that authority plays to roles that people play – which we can also call roles of authority – such as chef, teacher, and parent. To justify authority, we …

Government Policies Must Keep Business On Tight Rein, Paul Donnelly, John Hogan, Brendan O'Rourke

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The unethical behaviour that helped create the economic and banking crisis has caught the attention of some parties.

After Deference: Formalizing The Judicial Power For Foreign Relations Law, Deborah Pearlstein

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How much deference should courts afford executive branch interpretations of statutes and treaties? The question that has long engaged foreign relations scholars has found new salience as it has become apparent in recent years that the Supreme Court will neither abstain nor reliably defer to presidential judgment even in cases implicating national security. As the courts grapple with the scope of detention authority granted by Congress’ 2001 Authorization for the Use of Military Force, or the limits on that authority under the Geneva Conventions, a number of scholars have embraced administrative law deference doctrines such as that in Chevron v. …

An Old-Fashioned View Of The Nature Of Law, James Boyd White

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The law is a not an abstract system or scheme of rules, as we often speak of it, but an inherently unstable structure of thought and expression. It is built upon a distinct set of dynamic and dialogic tensions, which include: tensions between ordinary language and legal language; between legal language and the specialized discourses of other fields; between language itself and the mute world that lies beneath it; between opposing lawyers; between conflicting but justifiable ways of giving meaning to the rules and principles of law; between substantive and procedural lines of thought; between law and justice; between the …

Defining Torture And Cruel, Inhuman, And Degrading Treatment, David Weissbrodt, Cheryl Heilman

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Declaring a “war against terror,” the United States has detained foreign nationals suspected of terrorist activities and has interrogated them at various locations outside the United States. As the United States seeks to bring charges against the detainees, serious questions have arisen regarding the interrogation methods used to obtain evidence. Federal laws enacted to meet the United States' obligations under treaties prohibit the use of evidence obtained through torture or through cruel, inhuman, or degrading treatment. What legal standards should be applied to determine whether interrogation methods or conditions of confinement constitute torture or cruel, inhuman, or degrading treatment? Is …