Law Commons^™

The Pharma Barons: Corporate Law's Dangerous New Race To The Bottom In The Pharmaceutical Industry, Eugene Mccarthy

Michigan Business & Entrepreneurial Law Review

In this Article, I argue that drug companies have created a highly profitable but dangerous business model by employing the same legal tactics as the nineteenth-century “robber barons,” the group of financiers who orchestrated corporate law’s infamous race to the bottom. Like these historical financiers, drug company executives have captured the legal apparatus and regulatory bodies that oversee them. In so doing, they have transformed the law from a system of governance into a set of enabling doctrines. The pharmaceutical industry has turned legislation intended to protect the public into a legal justification for marketing ineffective and unsafe prescription drugs. …

Assessing The Evolution Of Cryptocurrency: Demand Factors, Latent Value, And Regulatory Developments, Ryan Clements

Michigan Business & Entrepreneurial Law Review

The purpose of this Comment is to analyze the roots of this fervor— including that which drove Bitcoin’s initial demand surge—and investigate whether cryptocurrency can survive a market bubble that experienced a significant correction in 2018.

The Suitability Of South Africa's Business Rescue Procedure In The Reorganization Of Small-To-Medium-Sized Enterprises: Lessons From Chapter 11 Of The United States Bankruptcy Code., Mikovhe Maphiri

Michigan Business & Entrepreneurial Law Review

South African small- to medium-sized enterprises (“SMEs”) are the bread and butter of our economy. Providing much-needed employment and developing the skills of historically disadvantaged persons formally and informally are some of the most significant benefits of SMEs in a developing country such as South Africa. However, despite these significant contributions to the socioeconomic development of the country, SMEs generally have the lowest survival rates in the world as compared to large enterprises globally, resulting in high rates of business failure and the loss of jobs which these entities create. The Companies Act of 2008 replaces the previous judicial management …

The Persistent Appeal Of S Corporations: How Tax Cuts Might Not Help Small Corporations, Manas Kumar

Michigan Business & Entrepreneurial Law Review

This Note will first review the tax preferences for entity choice under the old tax regime for the sake of context. It will then compare the tax benefits of electing to C and S corporation status under the regime created by the Act. The Note will conclude with an analysis of the factors sustaining the tax appeal of pass-through firms for lower-earning businesses with special attention to the largely unaltered state of tax law and business entity choice. It proposes that the Act did not sufficiently reform the Internal Revenue Code to close up the tax advantage that high-earning corporations …

Solely Beneficial: How Benefit Corporations May Change The Duty Of Care Analysis For Traditional Corporate Directors In Delaware, Dustin Womack

Michigan Business & Entrepreneurial Law Review

Rather than adding to the voluminous literature assessing the necessity of benefit corporations themselves or the possible liability of their directors, this Note concerns itself only with how benefit corporations will impact the fiduciary duty of care analysis for the directors of traditional corporations constituted in the state of Delaware. Further, this Note is only concerned with liability arising from claims alleging that a day-to-day directorial decision resulted in a breach of the duty of care. As such, this Note does not address any other potential liability predicated on other situations or duties. Finally, this Note provides general background information …

Emojis And The Law, Eric Goldman

Washington Law Review

Emojis are an increasingly important way we express ourselves. Though emojis may be cute and fun, their usage can lead to misunderstandings with significant legal stakes—such as whether someone should be obligated by contract, liable for sexual harassment, or sent to jail. Our legal system has substantial experience interpreting new forms of content, so it should be equipped to handle emojis. Nevertheless, some special attributes of emojis create extra interpretative challenges. This Article identifies those attributes and proposes how courts should handle them. One particularly troublesome interpretative challenge arises from the different ways platforms depict emojis that are nominally standardized …

A New Market-Based Approach To Securities Law, Kevin S. Haeberle, M. Todd Henderson

Articles

No abstract provided.

Congress In The Administrative State, Brian D. Feinstein

Articles

No abstract provided.

In Re: Petition For Appointment Of A Prosecutor Pro Tempore By Jane Doe 1, Jane Doe 2, Jane Doe 3, And Jane Doe 4 : Petition For Appointment Of Prosecutor Pro Tempore, Paul Cassell, Heidi Nestel, Bethany Warr, Margaret Garvin, Gregory Ferbrache, Aaron H. Hanni

Utah Law Faculty Scholarship

This is a petition filed in the Utah Supreme Court on behalf of four women (Jane Does 1, 2, 3, and 4) who were sexually assaulted, and yet the public prosecutor with jurisdiction refused to file criminal charges against their attackers. The petition relies on Utah Constitution, article VIII, § 16, which anticipates situations where a crime victim might need her own avenue for initiating criminal prosecution. Accordingly, this constitutional provision provides that “[i]f a public prosecutor fails or refuses to prosecute, the Supreme Court shall have power to appoint a prosecutor pro tempore.” Indeed, to underscore the fact that …

The Unofficial Federal Officer, Megan M. Mclaughlin

UC Law Constitutional Quarterly

Most people can state who the first lady is, but no one can clearly explain what the first lady is. This silence, which stretches across all three branches of government, speaks volumes and leaves the first lady’s official constitutional status as an open question. Most discussions of this matter arose during the Clinton presidency in the context of Hillary Rodham Clinton’s role in her husband’s administration. The few legal academics who touched on the topic then have not revisited it despite the changing political and social landscape. This paper explores how the evolution of first ladies has made the legal …

The Outrageous Government Conduct Defense: An Interpretive Argument For Its Application By Scotus, Eve A. Zelinger

UC Law Constitutional Quarterly

The U.S. Supreme Court has held that the Due Process Clause protects defendants from Outrageous Government Conduct (“OGC”) via the OGC defense, but the Court has not yet been presented with a set of facts it believes warrants its application. As a result, the Court has not set forth such criteria for application of the OGC defense, leaving the lower courts to apply their own standards. While some critics contend there is no use for the OGC defense due to the availability of the entrapment defense, this Note will uncover why this is not the case. More specifically, this Note …

The President’S Role In The Administrative State: Rejecting The Illusion Of “Political Accountability”, Kevin Bohm

UC Law Constitutional Quarterly

Direct presidential control of executive agencies is a contentious issue in administrative law. This note first presents an overview of Constitutional basics, before exploring the unique twist on traditional presidential control theories that now-Justice Elena Kagan proposed in her 2001 article “Presidential Administration.” Kagan’s justification for enhanced presidential control rests a novel statutory interpretation perspective and the notion that the President is uniquely qualified to impose his will on agency decision-making as he is politically accountable to the American electorate at-large. This note highlights the criticisms, from other prominent academics in the field, of relying on political accountability to justify …

Judges Of Color: Examining The Impact Of Judicial Diversity In The Equal Protection Jurisprudence Of The United States Court Of Appeals For The Ninth Circuit, Kristine L. Avena

UC Law Constitutional Quarterly

From slavery to civil rights to affirmative action, America’s history has been plagued with the issue of race. The federal bench is no exception. For almost two centuries, the highest court of the nation did not represent the public that it served. This Note aims to determine how the presence of minority judges on the United States Court of Appeals for the Ninth Circuit impacts Equal Protection doctrine. This Note shows that a Ninth Circuit judge’s race is important in providing procedural and substantive contributions to the federal bench. Diverse judges use their life experiences to ensure that every person …

No “Market” For Truth: The Weaknesses Of Free Speech-Based Defenses To Credit Rating Industry Liability, Andy Carr

UC Law Constitutional Quarterly

Credit rating agencies are essential components of the global financial systems. The major CRAs primarily serve the financial systems as “gatekeepers,” in that their ratings determine whether a financial instrument is “investment grade” under federal and state laws, and as information-facilitators for the complicated instruments being bought and sold within the system. Because of their systemic significance, CRAs faced especially harsh scrutiny in the aftermath of the financial crisis and Great Recession a decade ago. Initial public scrutiny was followed by waves of litigation which resurfaced long-dormant questions about the CRAs’ exposure to liability and decades-old defenses of their rating …

Partitë Politike Sipas Orientimit Programo, Blerta Maxhuni

Theses and Dissertations

Politika ka nevojë për ide dhe vlera të cilat vendosin qëllime dhe standarde të organizimit politik. Liria, drejtësia dhe solidariteti paraqesin principe të atilla të cilat mund ta udhëheqin organizimin politik të një shoqërie. Partitë politike janë forma të veçanta të organizimit social. Ato nuk duhet të ngatërrohen me asociacionet, federatat, dhe klubet shoqërore. Një definicion i njohur i partive politike vjen nga Shkencëtari i shkencave politike Antony Downs, i cili shkruan: “Një parti politike është një ekip i burrave që kërkon të kontrolloj aparaturat qeverisëse duke fituar zyrën gjatë një palë të zgjedhjeve të rregullta”. Edhe pse kritika e …

Law 'Reviews'? The Changing Roles Of Law Schools And The Publications They Sponsor, Leslie Francis

Utah Law Faculty Scholarship

The current structure of law reviews is deeply problematic. It does not serve students, law faculty, or legal scholarship very well. There is much to learn from the early development and changes in law reviews over the years to inform law schools as they reevaluate the role of their journals in the education they provide their students and in the lives of their faculty.

Intervarsity Christian Fellowship V. University Of Iowa, Onalee Chappeau

SLU Law Journal Online

Onalee Chappeau discusses the ongoing case of The University of Iowa v. InterVarsity Christian Fellowship, including an analysis under a past Supreme Court decision and the suit's implications for pluralism on college campuses.

Defining “Second Or Successive” Habeas Petitions After Magwood, Megan Volin

University of Chicago Law Review

The Antiterrorism and Effective Death Penalty Act (AEDPA) precludes the filing of “second or successive” federal habeas corpus petitions—when a petitioner files a habeas petition for the second time, it will generally be dismissed. In Magwood v Patterson, the Supreme Court held that this prohibition did not bar the filing of a technically “second” habeas petition challenging aspects of a resentencing that resulted from the partial grant of the petitioner’s prior habeas petition. Because this resentencing led to the entry of a new judgment, the Court explained, the petition was not barred by AEDPA as, while it was the petitioner’s …

I4i Makes The Patent World Blind, Michael J. Conway

University of Chicago Law Review

All patents receive a presumption of validity pursuant to 35 USC § 282. Courts have traditionally put this presumption into practice by requiring invalidity to be established by clear and convincing evidence. The Supreme Court reaffirmed this understanding of the presumption in Microsoft Corp v i4i Ltd Partnership.

District courts have divided, however, on whether to require clear and convincing evidence when the challenger seeks to invalidate a patent for covering ineligible subject matter. The conflict originates from a concurrence written by Justice Stephen Breyer in i4i, in which he stated that a heightened standard of proof—like the clear and …

Scènes À Faire As Identity Trait Stereotyping, Jasmine C. Abdel-Khalik

Faculty Works

Judge Learned Hand's decision in Nichols v. Universal Pictures is unquestionably seminal in the development of copyright law. For the first time, a court articulated that stock characters, a form of scènes à faire, are so fundamental that all should have access. Therefore, a stock character, like one defined simply as a butcher with a cleaver and in a white coat, is not copyright protectable material.

However, the specific stock characters identified by Judge Hand raise some previously unexplored questions. The decision identifies two stock characters: "the low comedy Jew and Irishman." What exactly is “the low comedy Jew and …

Jury Selection In The Weeds: Whither The Democratic Shore?, Jeffrey Abramson

University of Michigan Journal of Law Reform

This Article reports on four federal jury challenges in which the trial judge or defendants retained the author to provide research on jury selection plans. The research shows a persistent and substantial loss of representation for African Americans and Hispanics on federal juries, even though no intentional discrimination took place. Problems with undeliverable jury summonses, as well as failure to respond to summonses, were the main causes of departures from the ideal of cross-sectional jury selection. However, a cramped understanding of what it takes for a defendant to prove that minority jurors were systematically excluded, as required by Duren v. …

Accusers As Adjudicators In Agency Enforcement Proceedings, Andrew N. Vollmer

University of Michigan Journal of Law Reform

Largely because of the Supreme Court’s 1975 decision in Withrow v. Larkin, the accepted view for decades has been that a federal administrative agency does not violate the Due Process Clause by combining the functions of investigating, charging, and then resolving allegations that a person violated the law. Many federal agencies have this structure, such as the Securities and Exchange Commission (SEC) and the Federal Trade Commission.

In 2016, the Supreme Court decided Williams v. Pennsylvania, a judicial disqualification case that, without addressing administrative agencies, nonetheless raises a substantial question about one aspect of the combination of functions at agencies. …

Ensuring That Punishment Does, In Fact, Fit The Crime, Meredith D. Mcphail

University of Michigan Journal of Law Reform

The United States imprisons a greater proportion of its own population than any other country in the world. A legal framework provides protections for those individuals who are incarcerated, but that framework is flawed. The jurisprudence distinguishes pretrial detainees (who have not been convicted) from convicted persons (who are serving a sentence). Based on that distinction, different standards apply to conditions of confinement and use of force cases brought by pretrial detainees and those brought by convicted persons. That distinction–and the resulting disparate application of legal standards–does not comport with the reality of incarceration, the concept of punishment, or the …

Infrastructural Exclusion And The Fight For The City: Power, Democracy, And The Case Of America's Water Crisis, K. Sabeel Rahman

Faculty Scholarship

No abstract provided.

Reversal Of Fortune: Moving Pharmaceuticals From Over-The-Counter To Prescription Status?, Lars Noah

Villanova Law Review (1956 - )

No abstract provided.

"Works For Me": What's Next For Pennsylvania Corporate Tax Liabilities After Nextel Communications Of The Mid-Atlantic V. Commonwealth, Riley Bauer

Villanova Law Review (1956 - )

No abstract provided.

If You Climb Into Bed With Your Business Partner, The Court Might Climb In, Too: The Delaware Supreme Court's Cautionary Tale Of Acrimonious Engagement And Corporate Deadlock In Shawe V. Elting, Lauren G. Debona

Villanova Law Review (1956 - )

No abstract provided.

Employing Ai, Charles A. Sullivan

Villanova Law Review (1956 - )

No abstract provided.

You Got To Let Me Know; Should I Stay Or Should I Go? Responding To Pennsylvania's Adoption Of The Public Servant Exception In Commonwealth V. Livingstone, Zachary Kizitaff

Villanova Law Review (1956 - )

No abstract provided.

The Law Of Health Insurer Claims Handling In Montana, Greg Munro

Faculty Journal Articles & Other Writings

No abstract provided.