Law Commons^™

Undoing Undue Favors: Providing Competitors With Standing To Challenge Favorable Irs Actions, Sunil Shenoi

University of Michigan Journal of Law Reform

The Internal Revenue Service occasionally creates rules, notices, or regulations that allow taxpayers to pay less than they would under a strict reading of the law. Sometimes, however, these IRS actions are directly contrary to federal law and have significant economic impact. Challenging favorable IRS actions through litigation will likely be unsuccessful because no plaintiff can satisfy the requirements for standing. To address this situation, this Note proposes a statutory reform to provide competitors with standing to challenge favorable IRS actions in court.

Social Welfare And Fairness In Juvenile Crime Regulation, Elizabeth S. Scott, Laurence Steinberg

Louisiana Law Review

No abstract provided.

‘Best Practices’: What’S The Point?, Ira P. Robbins

Ira P. Robbins

In a separate article - Best Practices on “Best Practices”: Legal Education and Beyond - Professor Robbins formulated a paradigm for “best practices” and applied it to the book, Best Practices for Legal Education. Professor Robbins concluded that the book did not meet any of the criteria necessary to constitute best practices and, further, that using the concept of best practices when thinking and writing about legal education is misleading and inappropriate. The primary author of the book, Roy Stuckey, responded, claiming that “best” can mean something other than best, that the difference really doesn’t matter, and that the debate …

Best Practices On ‘Best Practices’: Legal Education And Beyond, Ira P. Robbins

Ira P. Robbins

“Best practices” has become one of the most common research and development techniques in the United States and throughout the international community. Originally employed in industry, the concept sought to identify superior means to achieve a goal through “benchmarking,” thereby allowing companies to obtain a competitive advantage in the marketplace. In recent decades, the use of best practices has become widely popularized, and is frequently utilized in the areas of administrative regulation, corporate governance, and academia. As the term has grown in popularity, however, so too has room for its abuse. In many instances, the term has been invoked to …

‘Best Practices’: What’S The Point?, Ira P. Robbins

Ira P. Robbins

In a separate article - Best Practices on “Best Practices”: Legal Education and Beyond - Professor Robbins formulated a paradigm for “best practices” and applied it to the book, Best Practices for Legal Education. Professor Robbins concluded that the book did not meet any of the criteria necessary to constitute best practices and, further, that using the concept of best practices when thinking and writing about legal education is misleading and inappropriate. The primary author of the book, Roy Stuckey, responded, claiming that “best” can mean something other than best, that the difference really doesn’t matter, and that the debate …

Encouraging Savings Under The Earned Income Tax Credit: A Nudge In The Right Direction, Vada Waters Lindsey

University of Michigan Journal of Law Reform

During 2007, 3.6 million or 9.7% of people in the United States age 65 or older were below the poverty level. In light of the number of elderly people living below the poverty level, it is important that everyone, including low-income workers, have the opportunity to save for retirement. Low-income workers face many challenges to saving for retirement. The barriers to saving include the lack of access to retirement plans and lack of investment savvy. For example, only 42 % of workers employed in service occupations in the private industry have access to employer retirement plans. The percentage drops to …

Presumed Guilty Until Proven Innocent: The Burden Of Proof In Wrongful Conviction Claims Under State Compensation Statutes, Daniel S. Kahn

University of Michigan Journal of Law Reform

Despite significant efforts to uncover and prevent wrongful convictions, little attention has been paid to the compensation of wrongfully convicted individuals once they are released from prison. State compensation statutes offer the best path to redress because they do not require the claimant to prove that the state was at fault for the wrongful conviction and because they are not susceptible to the same political influences as other methods of compensation. However, even under compensation statutes, too many meritorious claims are dismissed, settled for far too little, or never brought in the first place. After examining the current statutory framework, …

Case For Overseas Article Iii Courts: The Blackwater Effect And Criminal Accountability In The Age Of Privatization, The, Alan F. Williams

University of Michigan Journal of Law Reform

A series of high-profile cases involving the alleged murders of Iraqi civilians by U.S. contractors operating overseas has highlighted the longstanding problem of how best to address crimes committed overseas by civilian employees, dependents, or contractors of the U.S. government. Among the most notorious of these incidents is the alleged killing of seventeen Iraqi civilians in Nisour Square in Baghdad on September 16, 2007 by employees of Blackwater Worldwide, a private corporation specializing in military operations that has subsequently renamed itself "Xe."2News reports of this incident prompted embarrassment and outrage as many Americans learned that U.S. civilian contractors like the …

Clinical Legal Education At A Generational Crossroads: X Marks The Spot, Praveen Kosuri

All Faculty Scholarship

Clinical legal education is at a crossroads. Three distinct generations – Baby Boomers, Generation-Xers, and Millennials – with incredibly varied life experiences and expectations will determine the path forward by the way they relate to each other. This essay discusses the current state of clinical legal education as created and led by the Baby Boomers who were typically movement lawyers from the 1960s and 1970s. Written from the perspective of a Gen-Xer, the essay challenges the norms of social justice and law reform as the primary drivers behind clinical education and argues for a greater ideological neutrality in determining the …

Citizens United And The Threat To The Regulatory State, Tamara R. Piety

Michigan Law Review First Impressions

Although Citizens United has been roundly criticized for its potential effect on elections and its display of judicial immodesty (or "activism"), the effect of the case which may be both most profound and perhaps most pernicious is its effect on the commercial speech doctrine. This is an aspect of the case which has been largely overlooked. Most people seem to be unaware of any connection between election law and the commercial speech doctrine-except, that is, those who have been working long and hard to accomplish the change it foreshadows. They are keenly aware of its implications.

Race, Educational Loans & Bankruptcy, Abbye Atkinson

Michigan Journal of Race and Law

This Article reports new data from the 2007 Consumer Bankruptcy Project revealing that college graduates and specifically White graduates are less likely to file for bankruptcy than their counterparts without a college degree. Although these observations suggest that a college degree helps graduates to weather the setbacks that sometimes lead to financial hardship as measured by bankruptcy, they also indicate that a college degree may not help everyone equally. African American college graduates are equally likely to file for bankruptcy as African Americans without a college degree. Thus, a college education may not confer the same protective benefit against financial …

Citizen Police: Using The Qui Tam Provision Of The False Claims Act To Promote Racial And Economic Integration In Housing, Jan P. Mensz

University of Michigan Journal of Law Reform

Economic and racial integration in housing remains elusive more than forty years after the passage of the Fair Housing Act. Recalcitrant municipal governments and exclusionary zoning ordinances have played a large role in maintaining and exacerbating segregated housing patterns. After discussing some of the persistent causes of segregated housing patterns, this Note presents a novel approach to enforcing the Fair Housing Act and the "affirmatively furthering fair housing" requirement on recipients of federal housing grants. This Note presents a citizen suit that emerged from the Southern District of New York in Anti-Discrimination Center v. Westchester County, where a private …

Crisis On Campus: Student Access To Health Care, Bryan A. Liang

University of Michigan Journal of Law Reform

College-aged adults are an overrepresented group in the uninsured population of the United States, and traditionally underserved minorities are disproportionately affected. Students with private health insurance are often functionally uninsured as well, since most schools refuse to accept this traditionally elite calling card on campus. Consequently, the large uninsured and functionally uninsured populations often rely on school-sponsored health insurance plans for access to care. These plans have uneven coverage, limited benefits, exclusions and high co-pays and deductibles, and provide little health care security for their beneficiaries. Further, schools and insurance companies have profited substantially from these student plans, raising the …

Interactive Computer Service Liability For User-Generated Content After Roommates.Com, Bradley M. Smyer

University of Michigan Journal of Law Reform

This Note explores the future of interactive computer service provider (ICSP) liability for user-generated content under the Communications Decency Act (CDA) after Roommates.com II. Roommates.com II held that a housing website was not entitled to immunity under § 230 of the CDA from federal Fair Housing Act claims, in part because providing preselected answers to a mandatory questionnaire rendered the site an "information content provider" at least partially responsible for creation or development of answers. After examining the historical and legislative origins of ICSP immunity for user-generated content under 47 U.S. C. § 230, this Note argues that courts …

Once More Unto The Breach: American War Power And A Second Legislative Attempt To Ensure Congressional Input, Jonathan T. Menitove

University of Michigan Journal of Law Reform

Once again embroiled in an unpopular overseas armed conflict, the United States faces difficult questions concerning the constitutional use of military force. Records from the Constitutional Convention suggest the Framers intended to lodge America's power to go to war with the Congress. While American presidents' early use of military force displays deference to the legislature, more recent military actions illustrate the executive's dominance in making war. Notwithstanding a few early court decisions in Congress 's favor, the judiciary has been unhelpful in restoring the constitutional Framers' vision for the administration of the war power Congress, therefore, has been forced to …

Erasing Boundaries: Masculinities, Sexual Minorities, And Employment Discrimination, Ann C. Mcginley

University of Michigan Journal of Law Reform

This Article analyzes the application of employment discrimination law to sexual minorities-lesbians, gays, bisexuals, transgender and intersex individuals. It evaluates Title VII and state anti-discrimination laws' treatment of these individuals, and is the first article to use masculinities research, theoretical and empirical, to explain employment discrimination against sexual minorities.

While the Article concludes that new legislation would further the interests of sexual minorities, it posits that it is neither necessary nor sufficient to solving the employment discrimination problems of sexual minorities. A major problem lies in the courts' binary view of sex and gender, a view that identifies men and …

Marriage And Law Reform: Lessons From The Nineteenth Century Michigan Married Women’S Property Acts, Ellen Dannin

Ellen Dannin

If law reform had the neat trajectory of a bullet from a smoking gun, life and law would be neater – but less interesting. This article began as a simple empirical study to test whether Michigan’s 1844 Married Women’s Property Act affected conveyancing.

When the results showed that it had no effect – that married women were included as grantors even before the MWPA made it legal for them to own property – the study expanded into a quest to identify the processes that led to its enactment and explained its operation on the family, a fundamental social institution. In …

Why Care About Mass Incarceration?, James Forman Jr.

Michigan Law Review

Advocates for less punitive crime policies in the United States face long and dispiriting odds. The difficulty of the challenge becomes clear if we compare our criminal justice outcomes with those of other nations: We lock up more people, and for longer, than anyone else in the world. We continue to use the death penalty long after Europe abandoned it, we are the only country in the world to lock up juveniles for life, and we have prisoners serving fifty-year sentences for stealing videotapes from Kmart. Our courts offer little relief: the German Constitutional Court prohibits a sentence of life …

Reconstructing The Individual Mandate As An Escrow Account, Gregg D. Polsky

Michigan Law Review First Impressions

The recent health care reform law's most controversial provision is the individual mandate, which imposes a fine on individuals who fail to obtain a minimum level of health insurance coverage. Many object to this policy, arguing that the government shouldn't force individuals to purchase health insurance. Others believe that the mandate is a necessary component to health care reform. What has been missed in the discussion is that Congress could restructure the individual mandate to avoid the requirement that individuals purchase health insurance while still fulfilling its principal function. The principal purpose of the mandate is not to require individuals …

Fixing Patent Boundaries, Tun-Jen Chiang

Michigan Law Review

The claims of a patent are its boundaries, defining the scope of exclusion. This boundary function of claims is undermined by the fact that claims can be changed throughout the life of the patent, thereby moving the patent boundary. A boundary that can be moved at-will is one that the public cannot rely upon. This Article explores the problems of malleable patent boundaries. If a claim can be amended to permit a patentee to capture something he did not foresee when filing the patent application, the amendment confers an unexpected windfall that did not contribute to incentives to invent before …

Pioneers Versus Improvers: Enabling Optimal Patent Claim Scope, Timothy Chen Saulsbury

Michigan Telecommunications & Technology Law Review

Arising most commonly as a defense to an infringement claim, enablement requires a patent to describe the claimed invention in sufficient detail to permit a person having ordinary skill in the relevant field to replicate and use the invention without needing to engage in "undue experimentation." If a patent claim is not "enabled"--i.e., if a person having ordinary skill in the art (PHOSITA) who studied the patent cannot make or use the invention without undue experimentation--the claim is invalid and can no longer be asserted. This penalty deters patent applicants from claiming more than they invented and allows others to …

An Analysis Of Article 28 Of The United Nations Declaration On The Rights Of Indigenous Peoples, And Proposals For Reform, David Fautsch

Michigan Journal of International Law

The purpose of this Note is two-fold: first, to demonstrate why the standards set out in Article 28 require further clarification, and second, to propose reforms (both inside and outside of the United Nations framework) that might benefit indigenous peoples claiming land rights.

Property Rights & The Demands Of Transformation, Bernadette Atuahene

Michigan Journal of International Law

Countries like those in Southern Africa will never emerge from the indomitable shadow of inequity and the serious threat of backlash unless real property is redistributed; but, the conception of property these countries explicitly or implicitly adopt can adversely affect their ability to redistribute. Under the classical conception of real property (the classical conception), redistribution is difficult because title deed holders are a privileged group who are given nearly absolute property protection. Strangely, the classical conception is ascendant in many transitional states where redistribution is essential. The specific question this Article addresses is: for states where past property dispossession has …

Reconceptualizing Vagrancy And Reconstructing The Vagrant: A Socio-Legal Analysis Of Criminal Law Reform In Canada, 1953-1972, Prashan Ranasinhe

Osgoode Hall Law Journal

This article explores significant reforms to the vagrancy section of the Criminal Code during the mid-to-late twentieth century. By locating the reforms within their unique social, political, and economic climates, I examine how they reconceptualized the offence of vagrancy and concomitantly reconstructed the vagrant as a social problem. The reforms played a seminal role in reducing the number of vagrancy offences, eventually leading to the demise of vagrancy in the criminal law. Yet, while the "vagrant" ceased to exist in the law, the law still continues to preserve vestiges of the vagrant in a highly gendered manner.

New Fraud And Identity-Related Crimes In New South Wales, Alex Steel

Alex Steel

The Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009 commenced on 22 February 2010. It represents a significant change to fraud offences in New South Wales. The Act codifies dishonesty in line with the Ghosh test, replaces over 30 fraud offences with one main offence based on deceptively obtaining financial advantage, rewords the forgery offences and introduces a suite of identity crime offences. The Act continues to move away from offences based on common law larceny and interference with property rights toward general offences based on a statutory defined concept of dishonesty. However, larceny and related offences have been …

The Development Of Modern Corporate Governance In China And India, Nicholas C. Howson, Vikramaditya S. Khanna

Book Chapters

Corporate governance reform has become a topic of considerable debate both in the US and in many emerging markets. Indeed, the discussion is important because these reforms may have potentially long-standing effects upon the global allocation of capital, and in understanding the ways in which governance norms are communicated across markets and nations in an ever-globalizing world. In this chapter we examine the corporate governance reform efforts of the world's two biggest and fastest growing emerging markets, the People's Republic of China (PRC or China) and India. In the process we find that our understanding of how and why corporate …

Wasting The Corporate Waste Doctrine: How The Doctrine Can Provide A Viable Solution In Controlling Excessive Executive Compensation, Steven Clayton Caywood

Michigan Law Review

In the midst of the global recession of the late 2000s, there was an outcry against corporate executives and what the public deemed to be their excessive compensation. Although this anger is still featured in today's headlines, it is nothing new. In fact, excessive executive compensation complaints arose when the very concept of a corporation was still new. Most of the complaints that the public has leveled have had little effect on boards of directors' decisions. Occasionally, however the outcry is so great that the public compels a company's leadership to take action. This happened early in 2009 when American …

Regulating Segregation: The Contribution Of The Aba Criminal Justice Standards On The Treatment Of Prisoners, Margo Schlanger

Articles

Over recent decades, solitary confinement for prisoners has increased in prevalence and in salience. Whether given the label "disciplinary segregation," "administrative segregation," "special housing," "seg," "the hole," "supermax," or any of a dozen or more names, the conditions of solitary confinement share basic features: twenty-three hours per day or more spent alone in a cell, with little to do and no one to talk to, and one hour per day or less in a different, but no less isolated, setting-an exercise cage or a space with a shower. Long-term segregation units operated along these lines are extraordinarily expensive to build …

How Important Are Perpetual Tax Savings?, James R. Hines Jr.

Articles

State and local expenditure and tax revenue respond less to the business cycle than do federal spending and revenue, thereby reducing the countercyclicality of total government expenditure and revenue. This paper considers forces responsible for the cyclical pattern of state expenditure and revenue. Annual fluctuations in state personal income are associated with small changes in state spending and significant changes in tax receipts; receipt of federal grants is associated with greater state spending. Tax collections, and to a lesser degree expenditure, of larger states are more closely associated with annual income fluctuations than are the tax collections and expenditure of …

Real Copyright Reform, Jessica D. Litman

Articles

A copyright system is designed to produce an ecology that nurtures the creation, dissemination, and enjoyment of works of authorship. When it works well, it encourages creators to generate new works, assists intermediaries in disseminating them widely, and supports readers, listeners, and viewers in enjoying them. If the system poses difficult entry barriers to creators, imposes demanding impediments on intermediaries, or inflicts burdensome conditions and hurdles on readers, then the system fails to achieve at least some of its purposes. The current U.S. copyright statute is flawed in all three respects. In this Article, I explore how the current copyright …