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Michigan Law Review

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Articles 931 - 960 of 11192

Full-Text Articles in Law

Bankruptcy Fire Sales, Lynn M. Lopucki, Joseph W. Doherty Oct 2007

Bankruptcy Fire Sales, Lynn M. Lopucki, Joseph W. Doherty

Michigan Law Review

For more than two decades, scholars working from an economic perspective have criticized the bankruptcy reorganization process and sought to replace it with market mechanisms. In 2002, Professors Douglas G. Baird and Robert K. Rasmussen asserted in The End of Bankruptcy that improvements in the market for large public companies had rendered reorganization obsolete. Going concern value could be captured through sale. This Article reports the results of an empirical study comparing the recoveries in bankruptcy sales of large public companies in the period 2000 through 2004 with the recoveries in bankruptcy reorganizations during the same period. Controlling for company …

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International Law And Constitutional Interpretation: The Commander In Chief Clause Reconsidered, Ingrid Brunk Wuerth Oct 2007

International Law And Constitutional Interpretation: The Commander In Chief Clause Reconsidered, Ingrid Brunk Wuerth

Michigan Law Review

The Commander in Chief Clause is a difficult, underexplored area of constitutional interpretation. It is also a context in which international law is often mentioned, but not fully defended, as a possible method of interpreting the Constitution. This Article analyzes why the Commander in Chief Clause is difficult and argues that international law helps resolve some of the problems that the Clause presents. Because of weaknesses in originalist analysis, changes over time, and lack of judicial competence in military matters, the Court and commentators have relied on second-order interpretive norms like congressional authorization and executive branch practice in interpreting the …

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Choosing Between The Necessity And Public Interest Standards In Fcc Review Of Media Ownership Rules, Peter Dicola Oct 2007

Choosing Between The Necessity And Public Interest Standards In Fcc Review Of Media Ownership Rules, Peter Dicola

Michigan Law Review

Section 202(h) of the Telecommunications Act of 1996, as amended, directs the Federal Communications Commission ("FCC") to review its media ownership rules every four years. But the statute contains an ambiguity regarding the standard of review that the FCC must apply during such proceedings. To retain a particular media ownership regulation, must the FCC merely show that the regulation advances one of the FCC's three public-interest goals for media: competition, diversity, and localism-applying a "public interest" standard? Or must the FCC meet the higher burden of demonstrating that the regulation is also indispensable for maintaining competition, diversity, or localism at …

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Noontime Dumping: Why States Have Broad Discretion To Regulate Onboard Treatments Of Ballast Water, Kyle H. Landis-Marinello Oct 2007

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 …

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Reading Too Much Into Reeder-Simco?, Jeremy M. Suhr Oct 2007

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 …

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The Economic Impact Of Backdating Of Executive Stock Options, M. P. Narayanan, Cindi A. Schipani, H. Nejat Seyhun Jun 2007

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 …

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Rewarding Outside Directors, Assaf Hamdani, Reinier Kraakman Jun 2007

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 …

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The Corporate Monitor: The New Corporate Czar?, Vikramaditya Khanna, Timothy L. Dickinson Jun 2007

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 …

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Sox And Whistleblowing, Terry Morehead Dworkin Jun 2007

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 …

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The Social Construction Of Sarbanes-Oxley, Donald C. Langevoort Jun 2007

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 …

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Getting The Word Out About Fraud: A Theoretical Analysis Of Whistleblowing And Insider Trading, Jonathan Macey Jun 2007

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 …

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The Use Of Efficient Market Hypothesis: Beyond Sox, Dana M. Muir, Cindy A. Schipani Jun 2007

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 …

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Now, Later, Or Never: Applying Asymmetric Discount Rates In Nuisance Remedies And Federal Regulations, Yang Wang Jun 2007

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 …

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The Imagination Of James Boyd White, Lee C. Bollinger May 2007

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.

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Educative Friendship - A Personal Note, Jeanne Gaakeer May 2007

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 …

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Speech, Silence, And Ethical Lives In The Law, Robin West May 2007

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, …

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Reverse Monitoring: On The Hidden Role Of Employee Stock-Based Compensation, Sharon Hannes May 2007

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 …

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A Reality Check On An Empirical Study: Comments On "Inside The Administrative State", Sally Katzen May 2007

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 …

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Legitimacy, Selectivity, And The Disunitary Executive: A Reply To Sally Katzen, Lisa Schultz Bressman, Michael P. Vandenbergh May 2007

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, …

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Should Patent Infringement Require Proof Of Copying?, Mark A. Lemley May 2007

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 …

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God Vs. The Gavel: A Brief Rejoinder, Douglas Laycock May 2007

God Vs. The Gavel: A Brief Rejoinder, Douglas Laycock

Michigan Law Review

I recently reviewed God vs. the Gavel by Professor Marci Hamilton, and she published a brief response. My review briefly summarized the book and then made three principal points, addressing Hamilton's institutional competence thesis, her "no-harm" principle, and the remarkable number of legal and factual errors in the book. In this reply, I will review each of these points in turn.

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Proximate Cause In Constitutional Torts: Holding Interrogators Liable For Fifth Amendment Violations At Trial, Joel Flaxman May 2007

Proximate Cause In Constitutional Torts: Holding Interrogators Liable For Fifth Amendment Violations At Trial, Joel Flaxman

Michigan Law Review

This Note argues for the approach taken by the Sixth Circuit in McKinley: a proper understanding of the Fifth Amendment requires holding that an officer who coerces a confession that is used at trial to convict a defendant in violation of the right against self-incrimination should face liability for the harm of conviction and imprisonment. Part I examines how the Supreme Court and the circuits have applied the concept of common law proximate causation to constitutional torts and argues that lower courts are wrong to blindly adopt common law rules without reference to the constitutional rights at stake. It …

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One Stop, No Stop, Two Stop, Terry Stop: Reasonable Suspicion And Pseudoephedrine Purchases By Suspected Methamphetamine Manufacturers, Andrew C. Goetz May 2007

One Stop, No Stop, Two Stop, Terry Stop: Reasonable Suspicion And Pseudoephedrine Purchases By Suspected Methamphetamine Manufacturers, Andrew C. Goetz

Michigan Law Review

This Note attempts to inject some clarity into courts' reasonable suspicion calculus for cold medicine purchases. It argues that the key factor in analyzing such purchases is whether the purchaser or purchasers appear to be circumventing pseudoephedrine purchasing restrictions in order to obtain inordinately large quantities of pseudoephedrine. Part I provides a general background on the domestic manufacture of methamphetamine in small, clandestine laboratories. Part II then examines the interplay between outward innocence and reasonable suspicion under the Supreme Court's Fourth Amendment jurisprudence. Finally, Part III establishes a framework for identifying purchasing strategies that methamphetamine manufacturers commonly use to circumvent …

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Settler's Remorse, Floyd Abrams Apr 2007

Settler's Remorse, Floyd Abrams

Michigan Law Review

Who can quarrel with the notion that settling civil cases is generally a good thing? Litigation is expensive, time-consuming, preoccupying, and often personally destructive. Our courts are overburdened and, in any event, imperfect decision-making entities. It may even be true that, more often than not, "the absolute result of a trial is not as high a quality of justice as is the freely negotiated, give a little, take a little settlement." But not every case should be settled. Many are worthless. The settlement of others could too easily lead to a torrent of unwarranted litigation. Sometimes, as Professor Owen Fiss …

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A Response To Professor Laycock, Marci A. Hamilton Apr 2007

A Response To Professor Laycock, Marci A. Hamilton

Michigan Law Review

Almost a hundred years ago, the American Association of University Professors established guidelines for civility among scholars, saying that academic exchanges "should be set forth with dignity, courtesy, and temperateness of language." I agree wholeheartedly with these principles, and I will not succumb to the temptation to respond in kind to Professor Laycock's review. Tone is much less important than having a frank exchange of views. It is well known that Professor Laycock and I have very different perspectives on the proper interpretation of the Free Exercise Clause. His review and my response should be an opportunity for us to …

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A Syllabus Of Errors, Douglas Laycock Apr 2007

A Syllabus Of Errors, Douglas Laycock

Michigan Law Review

Modern American society is pervasively regulated. It is also religiously diverse to a degree that is probably unprecedented in the history of the world. It is inevitable that some of these diverse religious practices will violate some of these pervasive regulations, and equally inevitable that if we ask whether all these regulations are really necessary, sometimes the answer will be no. If we take free exercise of religion seriously, sometimes it will make sense to exempt sincere religious practices from generally applicable laws - but only some laws, and only some applications. Hardly anyone thinks that human sacrifice should be …

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Life-Giving Speech Amid An Empire Of Silence, Walter Brueggemann Apr 2007

Life-Giving Speech Amid An Empire Of Silence, Walter Brueggemann

Michigan Law Review

It will come as no surprise to readers of the Law Review that James Boyd White is a daring and wise practitioner of what Clifford Geertz terms "blurred genres." By appeal to Kenneth Burke, Victor Turner, and Paul Ricoeur, among others, Geertz envisions a broad interpretive venture that breaks out of the rigid regulations of a particular discipline to the larger constructive enterprise that entertains life and its meaning as a "game" of face-to-face engagement, or as a "drama" that presses on to the next scene. White's work fits that vision precisely. In Living Speech: Resisting the Empire of Force, …

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"Quotidian" Judges Vs. Al-Qaeda, Mark S. Davies Apr 2007

"Quotidian" Judges Vs. Al-Qaeda, Mark S. Davies

Michigan Law Review

In Terror in the Balance: Security, Liberty, and the Courts, University of Chicago law professors Eric A. Posner and Adrian Vermeule invite those of us worried about the American response to al-Qaeda to consider the proper role of judges. Judges, of course, are not being dispatched to the hills of Pakistan nor are they securing our borders or buildings. But as the executive seeks to implement a range of new policies in the name of protecting us from al-Qaeda, the judicial treatment of these policies shapes the American response. Posner and Vermeule suggest a kind of Hippocratic view of …

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The Theory And Practice Of Tax Reform, Lawrence Zelenak Apr 2007

The Theory And Practice Of Tax Reform, Lawrence Zelenak

Michigan Law Review

On January 7, 2005, President Bush-flush with recent electoral victory- issued an Executive Order creating the President's Advisory Panel on Federal Tax Reform. The Order instructed the bipartisan Panel to recommend one or more plans for major reform of the federal income tax. The president did not, however, permit the Panel to begin its work on a blank slate. Instead, the Order required (among other things) that the Panel's proposals be revenue-neutral, simpler than current law, "appropriately progressive," and supportive of homeownership and charity. Although the Order contemplated that the Panel might offer more than one tax reform plan, it …

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Young Associates In Trouble, William D. Henderson, David Zaring Apr 2007

Young Associates In Trouble, William D. Henderson, David Zaring

Michigan Law Review

Large law firms have reputations as being tough places to work, and the larger the firm, the tougher the firm. Yet, notwithstanding the grueling hours and the shrinking prospects of partnership, these firms perennially attract a large proportion of the nation's top law school graduates. These young lawyers could go anywhere but choose to work at large firms. Why do they do so if law firms are as inhospitable as their reputations suggest? Two recent novels about the lives of young associates in large, prestigious law firms suggest that such a rational calculation misapprehends the costs. Law professor Kermit Roosevelt's …

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