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Articles 1 - 30 of 74
Full-Text Articles in Law
Government Ethics In The Age Of Trump, Adam Raviv
Government Ethics In The Age Of Trump, Adam Raviv
University of Michigan Journal of Law Reform
Americans’ trust in government officials has never been lower. Despite the intense public focus on ethics in government in recent years, legal scholarship on the subject has been sparse. This Article fills the gap by examining the ethics regime of the federal executive branch in depth, with a discussion of both the applicable ethics standards and the agencies and offices that are charged with ensuring that government officials comply with those standards. The Article describes how the current system heavily emphasizes prevention, education, and highly detailed disclosures while it rarely enforces the law against wrongdoers. A federal official in the ...
Should Automakers Be Responsible For Accidents?, Kyle D. Logue
Should Automakers Be Responsible For Accidents?, Kyle D. Logue
Articles
Motor vehicles are among the most dangerous products sold anywhere. Automobiles pose a larger risk of accidental death than any other product, except perhaps opioids. Annual autocrash deaths in the United States have not been below 30,000 since the 1940s, reaching a recent peak of roughly 40,000 in 2016. And the social cost of auto crashes goes beyond deaths. Auto-accident victims who survive often incur extraordinary medical expenses. Those crash victims whose injuries render them unable to work experience lost income. Auto accidents also cause nontrivial amounts of property damage—mostly to the automobiles themselves, but also to ...
Crafting A Corporate Analogue To Criminal Disenfranchisement, B. Graves Lee Jr.
Crafting A Corporate Analogue To Criminal Disenfranchisement, B. Graves Lee Jr.
Michigan Business & Entrepreneurial Law Review
The Supreme Court’s 2010 decision in Citizens United v. FEC represented a sea change in the world of corporate citizenship. Although the decision dealt with campaign finance law, it has sparked significant discussion of the concept of corporate personhood more broadly. Corporations have increasingly taken advantage of legal rights previously reserved for individuals. This Note argues that where corporations reap the benefits of constitutional entitlements intended for individuals, they should suffer consequences for malfeasance similar to those imposed on individuals who engage in criminal conduct. Specifically, this Note advocates for limitations on corporate electioneering as a collateral consequence of ...
Tort Justice Reform, Paul David Stern
Tort Justice Reform, Paul David Stern
University of Michigan Journal of Law Reform
This Article calls for a comprehensive reform of public tort law with respect to law enforcement conduct. It articulates an effective and equitable remedial regime that reconciles the aspirational goals of public tort law with the practical realities of devising payment and disciplinary procedures that are responsive to tort settlements and judgments. This proposed statutory scheme seeks to deter law enforcement misconduct without disincentivizing prudent officers from performing their duties or overburdening them with extensive litigation. Rather than lamenting the dissolution of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics or the insurmountability of qualified immunity, reform ...
Toward A Realistic Comparative Assessment Of Private Antitrust Enforcement, Daniel A. Crane
Toward A Realistic Comparative Assessment Of Private Antitrust Enforcement, Daniel A. Crane
Book Chapters
Over the course of her extraordinary career, Eleanor Fox has contributed in many vital ways to our understanding of the importance of institutional analysis in antitrust and competition law. Most importantly, Eleanor has become the leading repository of knowledge about what is happening around the globe in the field of competition law and its enforcement institutions. At a time when much of the field of antitrust was moving in the direction of theoretical generalization, formal modeling, game theory, and the like, Eleanor tirelessly worked the globe to discover the actual practice of competition law in the world. She left no ...
The Deterrence Case For Comprehensive Automaker Enterprise Liability, Kyle D. Logue
The Deterrence Case For Comprehensive Automaker Enterprise Liability, Kyle D. Logue
Journal of Law and Mobility
This Article lays out the potential (at this point purely theoretical) deterrence benefits of replacing our current auto tort regime (including auto products liability law, driver-based negligence claims, and auto no-fault regimes) with a single, comprehensive automaker enterprise liability system. This new regime would apply not only to Level 5 vehicles, but to all automobiles made and sold to be driven on public roads. Because such a system would make automakers unconditionally responsible for the economic losses resulting from any crashes of their vehicles, it would in effect make automakers into auto insurers as well, although such a change will ...
It Is Time For Washington State To Take A Stand Against Holmes's Bad Man: The Value Of Punitive Damages In Deterring Big Business And International Tortfeasors, Jackson Pahlke
University of Michigan Journal of Law Reform
In Washington State, tortfeasors get a break when they commit intentional torts. Instead of receiving more punishment for their planned bad act, intentional tortfeasors are punished as if they committed a mere accident. The trend does not stop in Washington State—nationwide, punitive damage legislation inadequately deters intentional wrongdoers through caps and outright bans on punitive damages. Despite Washington State’s one hundred and twenty-five year ban on punitive damages, it is in a unique and powerful position to change the way courts across the country deal with intentional tortfeasors. Since Washington has never had a comprehensive punitive damages framework ...
Expressive Law And The Americans With Disabilities Act, Alex C. Geisinger, Michael Ashley Stein
Expressive Law And The Americans With Disabilities Act, Alex C. Geisinger, Michael Ashley Stein
Michigan Law Review
The question of why people follow the law has long been a subject of scholarly consideration. Prevailing accounts of how law changes behavior coalesce around two major themes: legitimacy and deterrence. Advocates of legitimacy argue that law is obeyed when it is created through a legitimate process and its substance comports with community mores. Others emphasize deterrence, particularly those who subscribe to law-and-economics theories. These scholars argue that law makes certain socially undesirable behaviors more costly, and thus individuals are less likely to undertake them.
Portmanteau Ascendant: Post-Release Regulations And Sex Offender Recidivism, J. J. Prescott
Portmanteau Ascendant: Post-Release Regulations And Sex Offender Recidivism, J. J. Prescott
Articles
The purported purpose of sex offender post-release regulations (e.g., community notification and residency restrictions) is the reduction of sex offender recidivism. On their face, these laws seem well-designed and likely to be effective. A simple economic framework of offender behavior can be used to formalize these basic intuitions: in essence, post-release regulations either increase the probability of detection or increase the immediate cost of engaging in the prohibited activity (or both), and so should reduce the likelihood of criminal behavior. These laws aim to incapacitate people outside of prison. Yet, empirical researchers to date have found essentially no reliable ...
Confessions In An International Age: Re-Examining Admissibility Through The Lens Of Foreign Interrogations, Julie Tanaka Siegel
Confessions In An International Age: Re-Examining Admissibility Through The Lens Of Foreign Interrogations, Julie Tanaka Siegel
Michigan Law Review
In Colorado v. Connelly the Supreme Court held that police misconduct is necessary for an inadmissible confession. Since the Connelly decision, courts and scholars have framed the admissibility of a confession in terms of whether it successfully deters future police misconduct. As a result, the admissibility of a confession turns largely on whether U.S. police acted poorly, and only after overcoming this threshold have courts considered factors pointing to the reliability and voluntariness of the confession. In the international context, this translates into the routine and almost mechanic admission of confessions— even when there is clear indication that the ...
The Incremental Retributive Impact Of A Death Sentence Over Life Without Parole, Michael L. Radelet
The Incremental Retributive Impact Of A Death Sentence Over Life Without Parole, Michael L. Radelet
University of Michigan Journal of Law Reform
In this paper, the author takes a closer look at retribution, which is the primary justification for the death penalty today in the United States and the main component of the additional punishment imposed by the death penalty over and above life imprisonment without parole (LWOP). While all criminal punishments, to varying degrees, punish both the inmate and his or her family, this paper argues that the death penalty’s added punishment over LWOP often punishes the family just as much as the inmate, and after the execution the full brunt of the punishment falls on the family. This added ...
Standing In The Way Of The Ftaia: Exceptional Applications Of Illinois Brick, Jennifer Fischell
Standing In The Way Of The Ftaia: Exceptional Applications Of Illinois Brick, Jennifer Fischell
Michigan Law Review
In 1982, Congress enacted the Foreign Antitrust Trade Improvements Act (FTAIA) to resolve uncertainties about the international reach and effect of U.S. antitrust laws. Unfortunately, the FTAIA has provided more questions than answers. It has been ten years since the Supreme Court most recently interpreted the FTAIA, and crucial questions and circuit splits abound. One of these questions is how to understand the convergence of the direct purchaser rule (frequently referred to as the Illinois Brick doctrine) and the FTAIA. Under the direct purchaser rule, only those who purchase directly from antitrust violators are typically permitted to sue under ...
Admit Or Deny: A Call For Reform Of The Sec's "Neither-Admit-Nor-Deny" Policy, Priyah Kaul
Admit Or Deny: A Call For Reform Of The Sec's "Neither-Admit-Nor-Deny" Policy, Priyah Kaul
University of Michigan Journal of Law Reform
For four decades, the SEC’s often-invoked policy of settling cases without requiring admissions of wrongdoing, referred to as the “neither-admit-nor-deny” policy, went unchallenged by the courts, the legislature, and the public. Then in 2011, a harshly critical opinion from Judge Jed Rakoff in SEC v. Citigroup incited demands for reform of this policy. In response to Judge Rakoff’s opinion, the SEC announced a modified approach to settlements. Under the modified approach, the Commission may require an admission of wrongdoing if a defendant’s misconduct was egregious or if the public markets would benefit from an admission. Many supporters ...
Dismissing Deterrence, Ellen D. Katz
Dismissing Deterrence, Ellen D. Katz
Articles
The proposed Voting Rights Amendment Act of 20144 (VRAA)[...]’s new criteria defining when jurisdictions become subject to preclearance are acutely responsive to the concerns articulated in Shelby County[ v. Holder]. The result is a preclearance regime that, if enacted, would operate in fewer places and demand less from those it regulates. This new regime, however, would not only be more targeted and less powerful, but, curiously, more vulnerable to challenge. In fact, the regime would be more vulnerable precisely because it is so responsive to Shelby County. Some background will help us see why.
From Arbitrariness To Coherency In Sentencing: Reducing The Rate Of Imprisonment And Crime While Saving Billions Of Taxpayer Dollars, Mirko Bagaric
From Arbitrariness To Coherency In Sentencing: Reducing The Rate Of Imprisonment And Crime While Saving Billions Of Taxpayer Dollars, Mirko Bagaric
Michigan Journal of Race and Law
Dealing with criminals and preventing crime is a paramount public policy issue. Sentencing law and practice is the means through which we ultimately deal with criminal offenders. Despite its importance and wide-ranging reforms in recent decades, sentencing remains an intellectual and normative wasteland. This has resulted in serious human rights violations of both criminals and victims, incalculable public revenue wastage, and a failure to implement effective measures to reduce crime. This Article attempts to bridge the gulf that exists between knowledge and practice in sentencing and lays the groundwork for a fair and efficient sentencing system. The Article focuses on ...
South Carolina's 'Evolutionary Process', Ellen D. Katz
South Carolina's 'Evolutionary Process', Ellen D. Katz
Articles
When Congress first enacted the Voting Rights Act (VRA) in 1965, public officials in South Carolina led the charge to scrap the new statute. Their brief to the Supreme Court of the United States described the VRA as an “unjustified” and “arbitrary” affront to the “Equality of Statehood” principle, and a “usurp[ation]” of the State’s legislative and executive functions. Not surprisingly, the Warren Court was unpersuaded and opted instead to endorse broad congressional power to craft “inventive” remedies to address systematic racial discrimination and to “shift the advantage of time and inertia from the perpetrators of evil to ...
Shelby County V. Holder: Why Section 2 Matters, Ellen D. Katz
Shelby County V. Holder: Why Section 2 Matters, Ellen D. Katz
Articles
Editor’s Note: Professor Ellen D. Katz writes and teaches about election law, civil rights and remedies, and equal protection. She and the Voting Rights Initiative at Michigan Law filed a brief as amicus curiae in Shelby County v. Holder, on which the U.S. Supreme Court heard oral arguments February 27. Here, she examines why Section 2 of the Voting Rights Act bears consideration in the case, which involves a challenge to Section 5 of the act.
A Cure Worse Than The Disease?, Ellen D. Katz
A Cure Worse Than The Disease?, Ellen D. Katz
Articles
The pending challenge to section 5 of the Voting Rights Act insists the statute is no longer necessary. Should the Supreme Court agree, its ruling is likely to reflect the belief that section 5 is not only obsolete but that its requirements do more harm today than the condition it was crafted to address. In this Essay, Professor Ellen D. Katz examines why the Court might liken section 5 to a destructive treatment and why reliance on that analogy in the pending case threatens to leave the underlying condition unaddressed and Congress without the power to address it.
A Financial Economic Theory Of Punitive Damages, Robert J. Rhee
A Financial Economic Theory Of Punitive Damages, Robert J. Rhee
Michigan Law Review
This Article provides a financial economic theory of punitive damages. The core problem, as the Supreme Court acknowledged in Exxon Shipping Co. v. Baker, is not the systemic amount of punitive damages in the tort system; rather it is the risk of outlier outcomes. Low frequency, high severity awards are unpredictable, cause financial distress, and beget social cost. By focusing only on offsetting escaped liability, the standard law and economics theory fails to account for the core problem of variance. This Article provides a risk arbitrage analysis of the relationship between variance, litigation valuation, and optimal deterrence. Starting with settlement ...
Criminal Sanctions In The Defense Of The Innocent, Ehud Guttel, Doron Teichman
Criminal Sanctions In The Defense Of The Innocent, Ehud Guttel, Doron Teichman
Michigan Law Review
Under the formal rules of criminal procedure, fact finders are required to apply a uniform standard of proof in all criminal cases. Experimental studies as well as real world examples indicate, however, that fact finders often adjust the evidentiary threshold for conviction in accordance with the severity of the applicable sanction. All things being equal, the higher the sanction, the higher the standard of proof that fact finders will apply in order to convict. Building on this insight, this Article introduces a new paradigm for criminal punishments-a paradigm that focuses on designing penalties that will reduce the risk of unsubstantiated ...
Do Sex Offender Registries Make Us Less Safe?, J. J. Prescott
Do Sex Offender Registries Make Us Less Safe?, J. J. Prescott
Articles
State legislatures enacted sex offender registration and notification (SORN) laws with the explicit and exclusive aim of reducing sex offender recidivism. The general idea that we ought to “regulate” released offenders — of any type — to reduce the likelihood of their returning to crime is an attractive one, at least in theory. Criminal recidivism generates significant social harm. Nevertheless, despite their now-widespread use, SORN laws became the norm without any systematic study of their consequences. Admittedly, the logic underlying these laws seems at first difficult to gainsay: if a known sex offender poses even a small risk to a potential new ...
Unfit For Prime Time: Why Cable Television Regulations Cannot Perform Trinko's 'Antitrust Function', Keith Klovers
Unfit For Prime Time: Why Cable Television Regulations Cannot Perform Trinko's 'Antitrust Function', Keith Klovers
Michigan Law Review
Until recently, regulation and antitrust law operated in tandem to safeguard competition in regulated industries. In three recent decisions-Trinko, Credit Suisse, and Linkline-the Supreme Court limited the operation of the antitrust laws when regulation "performs the antitrust function." This Note argues that cable programming regulations-which are in some respects factually similar to the telecommunications regulations at issue in Trinko and Linkline-do not perform the antitrust function because they cannot deter anticompetitive conduct. As a result, Trinko and its siblings should not foreclose antitrust claims for damages that arise out of certain cable programming disputes.
Do Sex Offender Registration And Notification Laws Affect Criminal Behavior?, J. J. Prescott, Jonah E. Rockoff
Do Sex Offender Registration And Notification Laws Affect Criminal Behavior?, J. J. Prescott, Jonah E. Rockoff
Articles
Sex offenders have become the targets of some of the most far-reaching and novel crime legislation in the U.S. Two key innovations in recent decades have been registration and notification laws which, respectively, require that convicted sex offenders provide valid contact information to law enforcement authorities, and that information about sex offenders be made public. Using the evolution of state law during the 1990s and 2000s, we study how registration and notification affect the frequency of reported sex offenses and the incidence of such offenses across victims. We find evidence that registration reduces the frequency of sex offenses by ...
Coordinating Sanctions In Torts, Kyle D. Logue
Coordinating Sanctions In Torts, Kyle D. Logue
Articles
This Article begins with the standard Law and Economics account of tort law as a regulatory tool or system of deterrence, that is, as a means of giving regulated parties the optimal ex ante incentives to minimize the costs of accidents. Building on this fairly standard (albeit not universally accepted) picture of tort law, the Article asks the question how tort law should adjust, if at all, to coordinate with already existing non-tort systems of regulation. Thus, if a particular activity is already subject to extensive agency-based regulation (whether in the form of command-and-control requirements or in the form of ...
Optimizing Private Antitrust Enforcement, Daniel A. Crane
Optimizing Private Antitrust Enforcement, Daniel A. Crane
Articles
Private litigation is the predominant means of antitrust enforcement in the United States. Other jurisdictions around the world are increasingly implementing private enforcement models. Private enforcement is usually justified on either compensation or deterrence grounds. While the choice between these two goals matters, private litigation is not very effective at advancing either one. Compensation fails because the true economic victims of most antitrust violations are usually downstream consumers who are too numerous and remote to locate and compensate. Deterrence is ineffective because the time lag between the planning of the violation and the legal judgment day is usually so long ...
Gambling With The Health Of Others, Stephen P. Teret, Jon S. Vernick
Gambling With The Health Of Others, Stephen P. Teret, Jon S. Vernick
Michigan Law Review First Impressions
The health and wellbeing of the public is, in part, a function of the behavior of individuals. When one individual’s behavior places another at a foreseeable and easily preventable risk of illness or injury, tort liability can play a valuable role in discouraging that conduct. This is true in the context of childhood immunization.
Sentence Reduction As A Remedy For Prosecutorial Misconduct, Sonja B. Starr
Sentence Reduction As A Remedy For Prosecutorial Misconduct, Sonja B. Starr
Articles
Current remedies for prosecutorial misconduct, such as reversal of conviction or dismissal of charges, are rarely granted by courts and thus do not deter prosecutors effectively. Further, such all-or-nothing remedial schemes are often problematic from corrective and expressive perspectives, especially when misconduct has not affected the trial verdict. When granted, these remedies produce windfalls to guilty defendants and provoke public resentment, undermining their expressive value in condemning misconduct. To avoid these windfalls, courts refuse to grant any remedy at all, either refusing to recognize violations or deeming them harmless. This often leaves significant non-conviction-related harms unremedied and egregious prosecutorial misconduct ...
Letting Good Deeds Go Unpunished: Volunteer Immunity Laws And Tort Deterrence, Jill R. Horwitz, Joseph Mead
Letting Good Deeds Go Unpunished: Volunteer Immunity Laws And Tort Deterrence, Jill R. Horwitz, Joseph Mead
Articles
Does tort law deter risky behavior in individuals? We explore this question by examining the relationship between tort immunity and volunteering. During the 1980s and 1990s, nearly every state provided some degree of volunteer immunity. Congress followed with the 1997 Volunteer Protection Act. This article analyzes these acts, identifying three motivations for them: the chilling effects of tort liability, limits on liability insurance, and moral concerns. Using data from the Independent Survey’s Giving and Volunteering surveys, we then identify a large and positive correlation between immunity and volunteering. We next consider the implications of the findings for tort theory ...
Deconstructing International Criminal Law, Kevin Jon Heller
Deconstructing International Criminal Law, Kevin Jon Heller
Michigan Law Review
After nearly fifty years of post-Nuremberg hibernation, international criminal tribunals have returned to the world stage with a vengeance. The Security Council created the International Criminal Tribunal for the former Yugoslavia ("ICTY") in 1993 and the International Criminal Tribunal for Rwanda ("ICTR") in 1994. Hybrid domestic-international tribunals have been established in Sierra Leone (2000), East Timor (2000), Kosovo (2000), Cambodia (2003), Bosnia (2005), and Lebanon (2007). And, of course, the international community's dream of a permanent tribunal was finally realized in 2002, when the Rome Statute of the International Criminal Court ("ICC") entered into force. This unprecedented proliferation of ...
Social Science And The Evolving Standards Of Death Penalty Law, Samuel R. Gross, Phoebe C. Ellsworth
Social Science And The Evolving Standards Of Death Penalty Law, Samuel R. Gross, Phoebe C. Ellsworth
Book Chapters
Unlike many of the topics covered in this book, death penalty litigation involves a wide variety of empirical issues. The Eighth Amendment of the U.S. Constitution provides that "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted." But what is a "cruel and unusual punishment?" It could be a punishment that is morally unacceptable to the American people, like cutting off noses or hands. Following the other clauses of the amendment, it could be a punishment that is excessive, in that a lesser penalty would achieve the same ends. For example, if ...