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Articles 1 - 30 of 45
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 …
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 a …
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 …
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, and has …
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.
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 impact …
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 confession …
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 section …
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 of the neither-admit-nor-deny …
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 …
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 …
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.
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.
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 international …
Getting The Word Out About Fraud: A Theoretical Analysis Of Whistleblowing And Insider Trading, Jonathan Macey
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 …
Rewarding Outside Directors, Assaf Hamdani, Reinier Kraakman
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 …
The Corporate Monitor: The New Corporate Czar?, Vikramaditya Khanna, Timothy L. Dickinson
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 …
Classic Revisited: Penal Theory In Paradise Lost, Jillisa Brittan, Richard A. Posner
Classic Revisited: Penal Theory In Paradise Lost, Jillisa Brittan, Richard A. Posner
Michigan Law Review
Milton's great poem can be enjoyed as a supernatural adventure story in the epic tradition-indeed almost as a science-fiction fantasy. An incredibly powerful supernatural figure-call him Father-lives on planet Heaven somewhere in outer space, surrounded by lesser supernatural beings, called Angels. Father begets Son asexually, and declares his intent to give him vice regal authority. Infuriated at Son's being promoted over him, the foremost Angel, L leads a third of the Angels in violent rebellion against Father and Son. At first it seems the rebels will best the loyal Angels. But Father sends in Son to defeat the rebels all …
A Virtuous State Would Not Assign Correctional Housing Based On Ability To Pay, Bradley W. Moore
A Virtuous State Would Not Assign Correctional Housing Based On Ability To Pay, Bradley W. Moore
Michigan Law Review First Impressions
Pay-to-stay jails expose the moral tension between the dominant theories of punishment: retributivism and deterrence. A turn to a third major moral theory—virtue ethics—resolves this tension. According to virtue ethics, the moral worth of an action follows from both the character of the action and the disposition of the actor. Virtuous acts promote human flourishing— the central goal of life—when they are the right actions performed for the right reasons. The virtue ethics theory of punishment suggests that pay-to-stay jails conflict with the promotion of human flourishing. A virtuous state’s criminal justice system would not include fee-based incarceration because it …
Government Entrepreneurship: How Cop, Direct Supervision, And A Business Plan Helped To Solve Santa Ana's Crime Problems, Paul M. Walters, Russell Davis
Government Entrepreneurship: How Cop, Direct Supervision, And A Business Plan Helped To Solve Santa Ana's Crime Problems, Paul M. Walters, Russell Davis
Michigan Law Review First Impressions
Much has been written about Community Oriented Policing for police agencies and about the Direct Supervision concept for jail operations. Each strategy is at the cutting edge of its respective discipline. This Commentary describes how the progressive City of Santa Ana implemented both strategies— along with a visionary business plan to operate its jail at minimal cost—to combat crime successfully. The City’s business plan relies on entrepreneurship that is too often lacking in government programs. This approach has led to a number of innovations in law enforcement, corrections, and government service. Pay-to-Stay programs provide yet another example of how Santa …
Pay-To-Stay In California Jails And The Value Of Systemic Self-Embarassment, Robert Weisberg
Pay-To-Stay In California Jails And The Value Of Systemic Self-Embarassment, Robert Weisberg
Michigan Law Review First Impressions
The website of the Santa Ana, California-version of Pay-to-Stay uses hotelier-type verbiage in describing features of its alternative jail program. It tells us that the jail “is pleased to host a full range of alternatives to traditional incarceration”; it reassures prospective “clients” seeking flexible work/jail schedules (“Work on Saturday or Sunday? No problem, your weekend days are our weekend days.”); it guarantees “24-hour on-site medical staff”; it accommodates inmates near and far (“We have helped clients with sentences from other counties as well as other states.”); and it generally brags that the jail “is the most modern and comfortable facility …
Counterintuitive: Intelligence Operations And International Law, Glenn Sulmasy, John Yoo
Counterintuitive: Intelligence Operations And International Law, Glenn Sulmasy, John Yoo
Michigan Journal of International Law
The question before us is whether international law is useful or required to govern the covert intelligence-gathering activities of nation-states during peacetime. The very notion that international law is currently capable of regulating intelligence gathering is dubious. In fact, we suggest that international regulation of intelligence operations could have the perverse effect of making international conflict more, rather than less, likely. Certainly, there is legitimate space for coordination and cooperation between states in sharing intelligence, but such "sharing" does not involve significant needs for universal regulation by international law. Simply stated, it is not in the interests of nation-states or …
What's International Law Got To Do With It? Transnational Law And The Intelligence Mission, James E. Baker
What's International Law Got To Do With It? Transnational Law And The Intelligence Mission, James E. Baker
Michigan Journal of International Law
This Article describes a continuum of contemporary threats to U.S. national security, with a focus on nonstate terrorism. Part III addresses the role of intelligence and national security law, and in particular law addressed to process, in combating these threats. Good process advances the liberty and safety interests embodied in the concept of national security. Good process improves the quality of decision. It also enhances accountability, which in turn improves decision. Where good process is defined in law to include executive directive, it is better insulated from the immediate imperatives of secrecy and speed.
Towards A Right To Privacy In Transnational Intelligence Networks, Francesca Bignami
Towards A Right To Privacy In Transnational Intelligence Networks, Francesca Bignami
Michigan Journal of International Law
Privacy is one of the most critical liberal rights to come under pressure from transnational intelligence gathering. This Article explores the many ways in which transnational intelligence networks intrude upon privacy and considers some of the possible forms of legal redress. Part II lays bare the different types of transnational intelligence networks that exist today. Part III begins the analysis of the privacy problem by examining the national level, where, over the past forty years, a legal framework has been developed to promote the right to privacy in domestic intelligence gathering. Part IV turns to the privacy problem transnationally, when …
Password Theft: Rethinking An Old Crime In A New Era, Daniel S. Shamah
Password Theft: Rethinking An Old Crime In A New Era, Daniel S. Shamah
Michigan Telecommunications & Technology Law Review
By putting themselves out in front as the victims, the Recording Industry Association of America (RIAA) helped reshape the governing norms of the times, and as a result, people viewed the act of file-sharing differently. By forcing people to see music downloading as a form of theft, the RIAA was quite successful in deterring it. In the process, they also proposed a radical view of theft that changes our basic economic understandings of the action[...] This paper argues that the RIAA's model for deterring music theft could be successfully used to deter many other forms of computer theft, and, specifically, …
How Qui Tam Actions Could Fight Public Corruption, Aaron R. Petty
How Qui Tam Actions Could Fight Public Corruption, Aaron R. Petty
University of Michigan Journal of Law Reform
This Note argues that public corruption at the state and local levels is a serious problem throughout the United States. Because public corruption decreases confidence in the democratic system at all levels of government, a strong response is necessary. Due to difficulties inherent in the deterrence, detection, and prosecution of state and local corruption, innovative methods to respond to this problem are needed. The author argues that amending the federal criminal statutes most commonly used to prosecute state and local public corruption, to allow a private citizen to bring a qui tam civil action against the public official for violations …
The Executive Role In Culturing Export Control Compliance, Matthew G. Morris
The Executive Role In Culturing Export Control Compliance, Matthew G. Morris
Michigan Law Review
Part I argues that the nature of export control enforcement requires extensive self-governing behavior on the part of exporters and that enforcement should be directed toward that end. Part II examines several possible justifications for penalizing a business entity and concludes that deterrence and rehabilitation through education are the most viable, particularly in a self-regulating industry. Part III argues that examining the export compliance program is actually a necessary prerequisite to determining the general culpability required under the general factors, and on that basis alone cannot be relegated to a mitigating factor. Part IV argues that an emphasis on corporate …
International Treaty Enforcement As A Public Good: Institutional Deterrent Sanctions In International Environmental Agreements, Tseming Yang
International Treaty Enforcement As A Public Good: Institutional Deterrent Sanctions In International Environmental Agreements, Tseming Yang
Michigan Journal of International Law
This Article approaches the issues through the lens of two general questions. First, what are the functions of treaty enforcement and institutional deterrent sanctions? Second, what are the obstacles to the effective deployment of institutional deterrent sanctions in response to noncompliance? This Article elaborates on the instrumental purposes of enforcement as well as its independent normative function. Much of the analysis follows the recent stream of works that combines both international law and international relations theory. These works offer a rich understanding of the conduct of states and the functioning of international legal regimes.