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2016

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Articles 1 - 18 of 18

Full-Text Articles in Law

Private Actors And Public Corruption: Why Courts Should Adopt A Broad Interpretation Of The Hobbs Act, Megan Demarco Dec 2016

Private Actors And Public Corruption: Why Courts Should Adopt A Broad Interpretation Of The Hobbs Act, Megan Demarco

Michigan Law Review

Federal prosecutors routinely charge public officials with “extortion under color of official right” under a public-corruption statute called the Hobbs Act. To be prosecuted under the Hobbs Act, a public official must promise official action in return for a bribe or kickback. The public official, however, does not need to have actual authority over that official action. As long as the victim reasonably believed that the public official could deliver or influence government action, the public official violated the Hobbs Act. Private citizens also solicit bribes in return for influencing official action. Yet most courts do not think the Hobbs …


Why Arrest?, Rachel A. Harmon Dec 2016

Why Arrest?, Rachel A. Harmon

Michigan Law Review

Arrests are the paradigmatic police activity. Though the practice of arrests in the United States, especially arrests involving minority suspects, is under attack, even critics widely assume the power to arrest is essential to policing. As a result, neither commentators nor scholars have asked why police need to make arrests. This Article takes up that question, and it argues that the power to arrest and the use of that power should be curtailed. The twelve million arrests police conduct each year are harmful not only to the individual arrested but also to their families and communities and to society as …


Defining Ambiguity In Broken Statutory Frameworks And Its Limits On Agency Action, Amanda Urban Oct 2016

Defining Ambiguity In Broken Statutory Frameworks And Its Limits On Agency Action, Amanda Urban

Michigan Journal of Environmental & Administrative Law

“The Problem” occurs when a statute’s provisions become contradictory or unworkable in the context of new or unforeseen phenomena, yet the statute mandates agency action. The application of an unambiguous statutory provision may become problematic or unclear. Similarly, unambiguous provisions may become inconsistent given a particular application of the statute. During the same term, in Scialabba and UARG, the Supreme Court performed a Chevron review of agency interpretations of statutes facing three variations of the Problem, which this Note characterizes as direct conflict, internal inconsistency, and unworkability. In each case, the Court defined ambiguity in various, nontraditional ways and …


Slides: The Columbia River Basin, Barbara Cosens Jun 2016

Slides: The Columbia River Basin, Barbara Cosens

Coping with Water Scarcity in River Basins Worldwide: Lessons Learned from Shared Experiences (Martz Summer Conference, June 9-10)

Presenter: Barbara Cosens, Professor and Associate Dean of Faculty, University of Idaho College of Law, Waters of the West Interdisciplinary Program

16 slides


Dialogue On State Action, Martin A. Schwartz, Erwin Chemerinsky Apr 2016

Dialogue On State Action, Martin A. Schwartz, Erwin Chemerinsky

Touro Law Review

No abstract provided.


The European Union's Human Rights Obligations Towards Distant Strangers, Aravind Ganesh Apr 2016

The European Union's Human Rights Obligations Towards Distant Strangers, Aravind Ganesh

Michigan Journal of International Law

Section I begins by setting out certain provisions added by the Lisbon Treaty requiring the European Union to promote human rights, democracy, and the rule of law in all its “relations with the wider world.” Section II then recounts a recent interpretation of these provisions, which understands them primarily as mandating compliance with international law, and thus largely denies extraterritorial human rights obligations to protect. While the fundamentals of this “compliance” reading are correct, Section III demonstrates that the notion of international law involved here entertains an expansive view of prescriptive jurisdiction, that is, a political institution’s authority to prescribe …


Against Data Exceptionalism, Andrew Keane Woods Apr 2016

Against Data Exceptionalism, Andrew Keane Woods

Law Faculty Scholarly Articles

One of the great regulatory challenges of the Internet era—indeed, one of today's most pressing privacy questions—is how to define the limits of government access to personal data stored in the cloud. This is particularly true today because the cloud has gone global, raising a number of questions about the proper reach of one state's authority over cloud-based data. The prevailing response to these questions by scholars, practitioners, and major Internet companies like Google and Facebook has been to argue that data is different. Data is “unterritorial,” they argue, and therefore incompatible with existing territorial notions of jurisdiction. This Article …


Islamic Law And Constitution-Making: The Authoritarian Temptation And The Arab Spring, Mohammad Fadel Jan 2016

Islamic Law And Constitution-Making: The Authoritarian Temptation And The Arab Spring, Mohammad Fadel

Osgoode Legal Studies Research Paper Series

The political dynamics that have characterized post-Mubarak Egypt have often been understood to be a battle between "religious" forces, represented by the Muslim Brotherhood and its supporters, and "secularist" forces, represented by a diverse group of civil society actors. Opposition of this latter group to the "religious" politics of the Muslim Brotherhood is therefore understood to be the primary cause of the events that led to the July 3, 2013 military coup that overthrew Egypt's only freely elected President, Mohammed Morsi. Without denying the salience of a religious-secularist divide in Egypt, this narrative of post-Mubarak politics fails to appreciate the …


The Variation In The Use Of Sub-Regional Integration Courts Between Business And Human Rights Actors: The Case Of The East African Court Of Justice, James T. Gathii Jan 2016

The Variation In The Use Of Sub-Regional Integration Courts Between Business And Human Rights Actors: The Case Of The East African Court Of Justice, James T. Gathii

Faculty Publications & Other Works

No abstract provided.


A Referee Without A Whistle: Magistrate Judges And Discovery Sanctions In The Seventh Circuit, Landyn Wm. Rookard Jan 2016

A Referee Without A Whistle: Magistrate Judges And Discovery Sanctions In The Seventh Circuit, Landyn Wm. Rookard

Indiana Law Journal

This Note ultimately argues that, if the Seventh Circuit is not willing to reverse its holdings in Alpern v. Lieb and Retired Chicago Police Ass'n v. City of Chicago in light of recent developments, Congress should again clarify its intent. In the face of the crushing "costs of discovery [that] threaten to exceed the amount at issue in all but the largest cases," it is the Seventh Circuit's responsibility to employ all just and legal devices to comply with Congress's mandate "to secure the just, speedy, and inexpensive determination of every action and proceeding."


Regulatory Incentive Realignment And The Eu Legal Framework Of Bank Resolution, Andromachi Georgosouli Jan 2016

Regulatory Incentive Realignment And The Eu Legal Framework Of Bank Resolution, Andromachi Georgosouli

Brooklyn Journal of Corporate, Financial & Commercial Law

Risks associated with incentive misalignment are liable to seriously jeopardize the effectiveness of bank resolution, when not properly contained. This Article considers the management of misaligned incentives between regulators that are found in a vertical relationship of public governance. Using the EU legal framework of bank resolution as its case study, this Article explores the effectiveness of the quasi-enforcement powers of the Single Resolution Board (SRB) and, where relevant, of the European Banking Authority (EBA) as an incentive realignment legal technique. Two principal difficulties are identified: on the one hand, the problematic interinstitutional dynamic of the SRB and the EBA …


Binding Authority: Unamendability In The United States Constitution–A Textual And Historical Analysis, George Mader Jan 2016

Binding Authority: Unamendability In The United States Constitution–A Textual And Historical Analysis, George Mader

Faculty Scholarship

We think of constitutional provisions as having contingent permanence—they are effective today and, barring amendment, tomorrow and the day after and so on until superseded by amendment. Once superseded, a provision is void. But are there exceptions to this default state of contingent permanence? Are there any provisions in the current United States Constitution that cannot be superseded by amendment—that are unamendable? And could a future amendment make itself or some portion of the existing Constitution unamendable?

Commentators investigating limits on constitutional amendment frequently focus on limits imposed by natural law, the democratic underpinnings of our nation, or some other …


International Law Constraints As Executive Power, Rebecca Ingber Jan 2016

International Law Constraints As Executive Power, Rebecca Ingber

Faculty Scholarship

The use of international law to understand domestic authority has a long pedigree. It is also the subject of heated debate, which focuses predominantly on the extent to which international law can or should serve as a limit on political actors, in particular the President, and the extent to which it can be invoked to expand our understanding of domestic individual rights. Yet there is another significant dynamic at work in this interplay between international and domestic law. This is the invocation of international law not as a constraining force on government actors, but as an enabling force within the …


More Than Just A Potted Plant: A Court's Authority To Review Deferred Prosecution Agreements Under The Speedy Trial Act And Under Its Inherent Supervisory Power, Mary Miller Jan 2016

More Than Just A Potted Plant: A Court's Authority To Review Deferred Prosecution Agreements Under The Speedy Trial Act And Under Its Inherent Supervisory Power, Mary Miller

Michigan Law Review

In the last decade, the Department of Justice has increasingly relied on pretrial diversion agreements as a means of resolving corporate criminal cases short of prosecution. These pretrial diversion agreements—non-prosecution and deferred prosecution agreements—include substantive terms that a company must abide by for the duration of the agreement in order to avoid prosecution. When entering a deferred prosecution agreement, the Department of Justice files charges against the defendant corporation as well as an agreement outlining the variety of terms with which the company must comply. This delay in prosecution is permitted under the Speedy Trial Act, which provides an exception …


Comments On The Morality Of Freedom, Joseph Raz Jan 2016

Comments On The Morality Of Freedom, Joseph Raz

Faculty Scholarship

The paper mixes comments on the ambitions that motivated writing The Morality of Freedom with observations on comments on the book, made at a conference in Jerusalem in 2016, by Japa Pallikkathayil, Avishai Margalit, Michael Otsuka, Jon Quong, Daniel Viehoff, Asaf Sharon and Arudra Burra. It acknowledges some of the critical points made while resisting others. Its strives to combine clarification of some of the themes in the book with recognition that its ideas require further development, and can be developed in various directions.


Why Enumeration Matters, Richard A. Primus Jan 2016

Why Enumeration Matters, Richard A. Primus

Michigan Law Review

The maxim that the federal government is a government of enumerated powers can be understood as a “continuity tender”: not a principle with practical consequences for governance, but a ritual statement with which practitioners identify themselves with a history from which they descend. This interpretation makes sense of the longstanding paradox whereby courts recite the enumeration principle but give it virtually no practical effect. On this understanding, the enumerated-powers maxim is analogous to the clause that Parliament still uses to open enacted statutes: “Be it enacted by the Queen’s most Excellent Majesty.” That text might imply that the Queen is …


Congress And The Reconstruction Of Foreign Affairs Federalism, Ryan Baasch, Saikrishna Bangalore Prakash Jan 2016

Congress And The Reconstruction Of Foreign Affairs Federalism, Ryan Baasch, Saikrishna Bangalore Prakash

Michigan Law Review

Though the Constitution conspicuously bars some state involvement in foreign affairs, the states clearly retain some authority in foreign affairs. Correctly supposing that state participation may unnecessarily complicate or embarrass our nation’s foreign relations, the Supreme Court has embraced aggressive preemption doctrines that sporadically oust the states from discrete areas in foreign affairs. These doctrines are unprincipled, supply little guidance, and generate capricious results. Fortunately, there is a better way. While the Constitution permits the states a limited and continuing role, it never goes so far as guaranteeing them any foreign affairs authority. Furthermore, the Constitution authorizes Congress to enact …


Why Is It Good To Stop At A Red Light_ The Basis Of Authority And Obligation, Brian M. Mccall Dec 2015

Why Is It Good To Stop At A Red Light_ The Basis Of Authority And Obligation, Brian M. Mccall

Brian M McCall

Throughout history, some have questioned whether the authority exercised by some over others is consistent with human nature.  Is it possible for a law made by one human being to bind the conscience of another, or is such a claim merely tyranny?  If such a power to bind to laws made by humans is justified, what is its scope?  The answers to these related questions explored in this Article are both descriptive and normative.  This Article explains the nature of authority and the extent of the obligation to obey the law as well as explains how the architecture of natural …