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Articles 211 - 240 of 1943

Full-Text Articles in Legislation

The New Labor Law, Kate Andrias Oct 2016

The New Labor Law, Kate Andrias

Articles

Labor law is failing. Disfigured by courts, attacked by employers, and rendered inapt by a global and fissured economy, many of labor law’s most ardent proponents have abandoned it altogether. And for good reason: the law that governs collective organization and bargaining among workers has little to offer those it purports to protect. Several scholars have suggested ways to breathe new life into the old regime, yet their proposals do not solve the basic problem. Labor law developed for the New Deal does not provide solutions to today’s inequities. But all hope is not lost. From the remnants of the …

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Black Health Matters: Disparities, Community Health, And Interest Convergence, Mary Crossley Oct 2016

Black Health Matters: Disparities, Community Health, And Interest Convergence, Mary Crossley

Michigan Journal of Race and Law

Health disparities represent a significant strand in the fabric of racial injustice in the United States, one that has proven exceptionally durable. Many millions of dollars have been invested in addressing racial disparities over the past three decades. Researchers have identified disparities, unpacked their causes, and tracked their trajectories, with only limited progress in narrowing the health gap between whites and racial and ethnic minorities. The implementation of the Affordable Care Act (ACA) and the movement toward value-based payment methods for health care may supply a new avenue for addressing disparities. This Article argues that the ACA’s requirement that tax-exempt …

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Can Prostitution Law Reform Curb Sex Trafficking? Theory And Evidence On Scale Substitution, And Replacement Effects, Simon Hedlin Sep 2016

Can Prostitution Law Reform Curb Sex Trafficking? Theory And Evidence On Scale Substitution, And Replacement Effects, Simon Hedlin

University of Michigan Journal of Law Reform

Sex trafficking, a pervasive problem in many parts of the world, has become increasingly salient to policymakers and the general public. Activists, politicians, and scholars continue to engage in debates about how best to curb it. This Article discusses one especially contentious dimension of these debates: does banning prostitution reduce sex trafficking? Or is legalizing prostitution the optimal approach? Or is there a third, better way? Proceeding both theoretically and empirically, this Article seeks to cast light on the relationship between different types of prostitution laws and the prevalence of sex trafficking and human trafficking. It attempts to make three …

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Shedding Light On The "Going Dark" Problem And The Encryption Debate, John Mylan Traylor Sep 2016

Shedding Light On The "Going Dark" Problem And The Encryption Debate, John Mylan Traylor

University of Michigan Journal of Law Reform

In an effort to protect the enormous volume of sensitive and valuable data that travels across the Internet and is stored on personal devices, private companies have created encryption software to secure data from criminals, hackers, and terrorists who wish to steal it. The greatest benefit of encryption also creates the biggest problem: Encryption software has become so secure that often not even the government can bypass it. The “Going Dark” problem—a scenario in which the government has obtained the legal authority to search a suspected criminal’s encrypted device but lacks the technical ability to do so—is becoming increasingly common. …

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From Integrationism To Equal Protection: Tenbroek And The Next 25 Years Of Disability Rights, Samuel R. Bagenstos Sep 2016

From Integrationism To Equal Protection: Tenbroek And The Next 25 Years Of Disability Rights, Samuel R. Bagenstos

Articles

If there is one person who we can say is most responsible for the legal theory of the disability rights movement, that person is Jacobus tenBroek. Professor tenBroek was an influential scholar of disability law, whose writings in the 1960s laid the groundwork for the disability rights laws we have today. He was also an influential disability rights activist. He was one of the founders and the president for more than two decades of the National Federation of the Blind, one of the first-and for many years undisputedly the most effective-of the organizations made up of people with disabilities that …

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Jurisdiction And Resentencing: How Prosecutorial Waiver Can Offer Remedies Congress Has Denied, Leah Litman, Luke C. Beasley Aug 2016

Jurisdiction And Resentencing: How Prosecutorial Waiver Can Offer Remedies Congress Has Denied, Leah Litman, Luke C. Beasley

Articles

This Essay is about what prosecutors can do to ensure that prisoners with meritorious legal claims have a remedy. The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes draconian conditions on when prisoners may file successive petitions for post-conviction review (that is, more than one petition for post-conviction review). AEDPA’s restrictions on post-conviction review are so severe that they routinely prevent prisoners with meritorious claims from vindicating those claims.

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Rent-Seeking And Inter Partes Review: An Analysis Of Invalidity Assertion Entities In Patent Law, W. Michael Schuster Jul 2016

Rent-Seeking And Inter Partes Review: An Analysis Of Invalidity Assertion Entities In Patent Law, W. Michael Schuster

Michigan Telecommunications & Technology Law Review

This Essay is the first analysis of a recent entrant on the patent landscape: the Invalidity Assertion Entity (IAE). IAEs engage in rent-seeking by demanding payment from patent holders in exchange for not attempting to invalidate their patents through administrative action before the U.S. Patent and Trademark Office. The response to IAEs has been uniformly negative. Reflexive proposals have been raised in Congress (unsurprisingly) to terminate the IAE business model. In contrast to the common response to IAEs, this Essay discusses how profit-driven IAEs may generate socially beneficial externalities and why legislating to end the IAE business model is imprudent.

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What Bankruptcy Law Can And Cannot Do For Puerto Rico, John A. E. Pottow Jun 2016

What Bankruptcy Law Can And Cannot Do For Puerto Rico, John A. E. Pottow

Articles

This article is based on a February 2016 keynote address given at the University of Puerto Rico Law Review Symposium “Public Debt and the Future of Puerto Rico.” Thus, much of it remains written in the first person, and so the reader may imagine the joy of being in the audience. (Citations and footnotes have been inserted before publication ‒ sidebars that no reasonable person would ever have inflicted upon a live audience, even one interested in bankruptcy law. Rhetorical accuracy thus yields to scholarly pedantics.) The analysis explains how bankruptcy law not only can but will be required to …

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Nfib V. Sebelius And The Individual Mandate: Thoughts On The Tax/Regulation Distinction, Kyle D. Logue Jun 2016

Nfib V. Sebelius And The Individual Mandate: Thoughts On The Tax/Regulation Distinction, Kyle D. Logue

Michigan Business & Entrepreneurial Law Review

When Chief Justice John Roberts wrote the opinion of the Court in National Federation of Independent Businesses v. Sebelius (NFIB) explaining the constitutionality of the Affordable Care Act’s (ACA) minimum essential coverage provision (sometimes referred to as the individual mandate), he reasoned that the mandate—or, more precisely, the enforcement provision that accompanied the mandate (the Shared Responsibility Payment or SRP)—could be understood as a tax on the failure to purchase health insurance. According to this view, the enactment of the mandate and its accompanying enforcement provisions fell within Congress’s virtually unlimited power to “lay and collect taxes.” This tax-based interpretation …

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Marriage Is On The Decline And Cohabitation Is On The Rise: At What Point, If Ever, Should Unmarried Partners Acquire Marital Rights?, Lawrence W. Waggoner Jun 2016

Marriage Is On The Decline And Cohabitation Is On The Rise: At What Point, If Ever, Should Unmarried Partners Acquire Marital Rights?, Lawrence W. Waggoner

Articles

This article draws attention to the cultural shift in the formation of families that has been and is taking place in this country: Marriage is on the decline and cohabitation is on the rise. Part II documents this cultural shift by using recent government data to trace the decline of marriage and the rise of cohabitation. Between 2000 and 2010, the population grew by 9.71%, but the husband-and-wife households only grew by 3.7%, while the unmarried-couple households grew by 41.4%. Because of the Supreme Court's decidion in Obergefell v. Hodges, marriage is now universally available to same-sex couples. Part …

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Improving Patent Quality Through Post-Grant Claim Amendments: A Comparison Of European Opposition Proceedings And U.S. Post-Grant Proceedings, Jennifer Turchyn Jun 2016

Improving Patent Quality Through Post-Grant Claim Amendments: A Comparison Of European Opposition Proceedings And U.S. Post-Grant Proceedings, Jennifer Turchyn

Michigan Law Review

Congress enacted the Leahy-Smith America Invents Act to encourage innovation, strengthen U.S. patents, and achieve greater uniformity with foreign patent systems. The America Invents Act introduced two new post-grant patent validity proceedings: inter partes review and post-grant review. The new U.S. proceedings are similar to European opposition proceedings, but there are significant differences in the extent of the patent owner’s ability to amend claims, the patent’s claim construction, the patent owner’s evidentiary burden, and the procedural requirements. The U.S. proceedings result in a very limited opportunity for amendment and a high percentage of invalidated patents. In contrast, European opposition proceedings …

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Carrot Or Stick? The Shift From Voluntary To Mandatory Disclosure Of Risk Factors, Karen K. Nelson, Adam C. Pritchard Jun 2016

Carrot Or Stick? The Shift From Voluntary To Mandatory Disclosure Of Risk Factors, Karen K. Nelson, Adam C. Pritchard

Articles

This study investigates risk factor disclosures, examining both the voluntary, incentive-based disclosure regime provided by the safe harbor provision of the Private Securities Litigation Reform Act as well as the SEC's subsequent mandate of these disclosures. Firms subject to greater litigation risk disclose more risk factors, update the language more from year to year, and use more readable language than firms with lower litigation risk. These differences in the quality of disclosure are pronounced in the voluntary disclosure regime, but converge following the SEC mandate as low-risk firms improved the quality of their risk factor disclosures. Consistent with these findings, …

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To Touch And Concern The United States With Sufficient Force: How American Due Process And Choice Of Law Cases Inform The Reach Of The Alien Tort Statute After Kiobel, Karima Tawfik Apr 2016

To Touch And Concern The United States With Sufficient Force: How American Due Process And Choice Of Law Cases Inform The Reach Of The Alien Tort Statute After Kiobel, Karima Tawfik

Michigan Journal of International Law

This Note explores the post-Kiobel ATS cases and argues that the Fourth Circuit’s approach to considering claims that manifest a close connection to the United States as potentially entitling the plaintiff to relief under the ATS is preferable to approaches that categorically bar claims when the alleged conduct has occurred abroad. Part I describes the Kiobel decision in more depth and the subsequent ATS case law to outline the contours of recent circuit cases. Part II demonstrates how domestic personal jurisdiction and choice of law principles weigh in favor of a more expansive reading of the ATS, as adopted …

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Election Law Federalism, Justin Weinstein-Tull Feb 2016

Election Law Federalism, Justin Weinstein-Tull

Michigan Law Review

This Article provides the first comprehensive account of non-Voting Rights Act federal voting laws. Section 5 of the Voting Rights Act—long the most effective voting rights law in American history—was disabled by the Supreme Court in Shelby County v. Holder. Section 2 of the Voting Rights Act is in the crosshairs. As the Supreme Court becomes more hostile to race-based antidiscrimination laws like the Voting Rights Act, Congress will turn to race-neutral, election administration-based reforms to strengthen the right to vote. Indeed, many proposals for reform post-Shelby County have taken this form. The federal laws this Article examines—the National Voter …

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The Affordable Care Act, Experience Rating, And The Problem Of Non-Vaccination, Eric Esshaki Feb 2016

The Affordable Care Act, Experience Rating, And The Problem Of Non-Vaccination, Eric Esshaki

University of Michigan Journal of Law Reform Caveat

Polio, the whooping cough, and the mumps, among many other communicable diseases, were once prevalent in communities within the developed world and killed millions of people.1 The advent of vaccinations contained or eradicated several of these diseases.2 However, these diseases still exist in the environment3 and are making a comeback in the United States.4 Their persistence is directly attributable to the rising trend among parents refusing to vaccinate their children.5 One proposed solution to this problem is to hold parents liable in tort when others are harmed by their failure to vaccinate. Another proposed solution argues that parents should pay …

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The Effect Of The 1886 Berne Convention On The U.S. Copyright System's Treatment Of Moral Rights And Copyright Term, And Where That Leaves Us Today, Samuel Jacobs Jan 2016

The Effect Of The 1886 Berne Convention On The U.S. Copyright System's Treatment Of Moral Rights And Copyright Term, And Where That Leaves Us Today, Samuel Jacobs

Michigan Telecommunications & Technology Law Review

The 1886 Berne Convention was the most influential copyright related treaty for over a century, and provided important minimum substantive protections for authors. Key provisions included the establishment of the principle of National Treatment, the abolishment of formalities in order to receive copyright protection, a required copyright term of life of the author plus fifty years, and most offensive to the U.S. copyright system, the mandate that signatories provide authors non-economic moral rights. Despite the international importance and widespread acceptance of the Berne Convention, the U.S. did not join the Convention for over one hundred years, making it one of …

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No More Quid Pro Quo: Abandoning The Personal Benefit Requirement In Insider Trading Law, Shannon Seiferth Jan 2016

No More Quid Pro Quo: Abandoning The Personal Benefit Requirement In Insider Trading Law, Shannon Seiferth

University of Michigan Journal of Law Reform

A circuit split between the Second Circuit’s 2014 decision, United States v. Newman, and the Ninth Circuit’s 2015 decision, United States v. Salman, illustrates problems in insider trading law dating back over thirty years to the Supreme Court’s decision in Dirks v. SEC. Dirks held that when a corporate insider provides information to an outside party who then trades on the information, it must be shown that the insider received some form of a personal benefit for providing the information in order to impute liability. The courts in Newman and Salman disagreed on the sort of evidence …

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A Research Exemption For The 21st Century, Nicholas Short Jan 2016

A Research Exemption For The 21st Century, Nicholas Short

University of Michigan Journal of Law Reform Caveat

On March 20, 2015, Robert Kastenmeier, who represented Wisconsin’s Second Congressional District from 1959 to 1991, passed away at his home in Arlington, Virginia. Though Kastenmeier may not have been well known outside of legislative circles and his home state of Wisconsin, he was in fact one of the most prolific policy makers—if not the most prolific policy maker—in the field of intellectual property law in the 20th century. He is impressively credited with authoring more than forty-eight laws dealing with intellectual property matters during his legislative tenure, including the Copyright Act of 1976, which remains the primary legal framework …

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Human Trafficking In Southeast Asia: Uncovering The Dynamics Of State Commitment And Compliance, Catherine Renshaw Jan 2016

Human Trafficking In Southeast Asia: Uncovering The Dynamics Of State Commitment And Compliance, Catherine Renshaw

Michigan Journal of International Law

In Part I of this Article, Renshaw explains some of the current theories about how and why states come to adopt human rights norms and then translates these norms into laws and policies. In Part II, she sets out the contours of the TVPA and the global regime with which it coexists, the United Nations Palermo Protocol. Part III considers how ASEAN States have responded to the global anti-trafficking regime. Part IV explores how ASEAN states perceive the issue of human trafficking. Part V describes how ASEAN states have responded to the threat of sanctions under the TVPA. Part VI …

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Legal Limits And The Implementation Of The Affordable Care Act, Nicholas Bagley Jan 2016

Legal Limits And The Implementation Of The Affordable Care Act, Nicholas Bagley

Articles

Accusations of illegality have dogged the Obama Administration's efforts to implement the Affordable Care Act (ACA), the most ambitious piece of social legislation since the advent of Medicare and Medicaid. Some of the accusations have merit; indeed, it would be surprising if they did not. Even as the ACA's rollout has exposed unanticipated difficulties in the statutory design, congressional antipathy to health reform has precluded looking to the legislature to iron out those difficulties. To secure his principal achievement, President Obama has repeatedly tested the limits of executive authority in implementing the ACA. Six years after its enactment and two …

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Finality And Judicial Review Under The Immigration And Nationality Act: A Jurisprudential Review And Proposal For Reform, Jesi J. Carlson, Patrick J. Glen, Kohsei Ugumori Jan 2016

Finality And Judicial Review Under The Immigration And Nationality Act: A Jurisprudential Review And Proposal For Reform, Jesi J. Carlson, Patrick J. Glen, Kohsei Ugumori

University of Michigan Journal of Law Reform

Under the Immigration and Nationality Act (INA), aliens may petition for judicial review of an adverse decision of the Board of Immigration Appeals (Board) as long as that decision constitutes a “final order of removal.” Usually it is not difficult to ascertain when an alien should file her petition: the thirty-day statutory filing deadline begins to run when the Board issues a decision that affirms the immigration judge’s removal order in its entirety. In some cases, however, an alien seeks multiple forms of relief from removal in a single proceeding. When that occurs, some forms of relief might be granted, …

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Protecting Personal Information: Achieving A Balance Between User Privacy And Behavioral Targeting, Patrick Myers Jan 2016

Protecting Personal Information: Achieving A Balance Between User Privacy And Behavioral Targeting, Patrick Myers

University of Michigan Journal of Law Reform

Websites and mobile applications provide immeasurable benefits to both users and companies. These services often collect vast amounts of personal information from the individuals that use them, including sensitive details such as Social Security numbers, credit card information, and physical location. Personal data collection and dissemination leave users vulnerable to various threats that arise from the invasion of their privacy, particularly because users are often ignorant of the existence or extent of these practices. Current privacy law does not provide users with adequate protection from the risks attendant to the collection and dissemination of their personal information. This Note advocates …

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Left Behind: The Dying Principle Of Family Reunification Under Immigration Law, Anita Ortiz Maddali Jan 2016

Left Behind: The Dying Principle Of Family Reunification Under Immigration Law, Anita Ortiz Maddali

University of Michigan Journal of Law Reform

A key underpinning of modern U.S. immigration law is family reunification, but in practice it can privilege certain families and certain members within families. Drawing on legislative history, this Article examines the origins and objectives of the principle of family reunification in immigration law and relies on legal scholarship and sociological and anthropological research to reveal how contemporary immigration law and policy has diluted the principle for many families—particularly those who do not fit the dominant nuclear family model, those classified as unskilled, and families from oversubscribed countries—and members within families. It explores the ways in which women and children, …

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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 …

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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 …

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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 …

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Delegating Tax, James R. Hines Jr., Kyle D. Logue Oct 2015

Delegating Tax, James R. Hines Jr., Kyle D. Logue

Michigan Law Review

Congress delegates extensive and growing lawmaking authority to federal administrative agencies in areas other than taxation, but tightly limits the scope of Internal Revenue Service (IRS) and Treasury regulatory discretion in the tax area, specifically not permitting these agencies to select or adjust tax rates. This Article questions why tax policy does and should differ from other policy areas in this respect, noting some of the potential policy benefits of delegation. Greater delegation of tax lawmaking authority would allow administrative agencies to apply their expertise to fiscal policy and afford timely adjustment to changing economic circumstances. Furthermore, delegation of the …

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Holding On To Clarity: Reconciling The Federal Kidnapping Statute With The Trafficking Victims Protection Act, Benjamin Reese Oct 2015

Holding On To Clarity: Reconciling The Federal Kidnapping Statute With The Trafficking Victims Protection Act, Benjamin Reese

Michigan Law Review

In recent decades, the international community has come to recognize human trafficking as a problem of epidemic proportions. Congress responded to this global crisis in 2000 by passing the Trafficking Victims Protection Act (TVPA) and has since supplemented that comprehensive enactment. But, in light of the widespread use of psychological rather than physical coercion in trafficking cases, a long-standing split among federal courts regarding the scope of the federal kidnapping statute raises significant concerns about the United States’ efforts to combat traffickers. In particular, the broad interpretation adopted by several circuits threatens effective enforcement of statutes designed to prosecute traffickers, …

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Are Unions A Constitutional Anomaly?, Cynthia Estlund Oct 2015

Are Unions A Constitutional Anomaly?, Cynthia Estlund

Michigan Law Review

This term in Friedrichs v. California Teachers Ass’n, the Supreme Court will consider whether ordinary public employees may constitutionally be required to pay an “agency fee,” as a condition of employment, to the union that represents them in collective bargaining. The Court established the terms of engagement in the 2014 decision Harris v. Quinn, which struck down an agency fee on narrower grounds while describing the current doctrine approving agency fees, blessed many times by the Court itself, as an “anomaly.” This Article asks whether labor unions are themselves anomalies in our legal system, particularly in their constitutional entitlements. Its …

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Standing In The Way Of The Ftaia: Exceptional Applications Of Illinois Brick, Jennifer Fischell Oct 2015

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 …

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