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Articles 391 - 420 of 1943
Full-Text Articles in Legislation
Improving Patent Notice And Remedies: A Critique Of The Ftc's 2011 Report, Alan Devlin
Improving Patent Notice And Remedies: A Critique Of The Ftc's 2011 Report, Alan Devlin
Michigan Telecommunications & Technology Law Review
2011 was an eventful year for those interested in patent law. In March, the Federal Trade Commission ("FTC") released a report that urges the Patent and Trademark Office ("PTO") and courts to remedy perceived inadequacies underlying the U.S. patent system. The FTC observes that people of skill in the art routinely encounter difficulty in determining the meaning, and hence exclusive scope, of a patent's claims. Not only does this failure of notice stymie the efficient dispersion of technology throughout the economy, the FTC argues, but the judicial process can aggravate the problem by granting inappropriate remedies in patent-infringement cases. Then, …
Reforming The Tax Code: A Tale Of Two Purposes And Paralysis, Gene Magidenko
Reforming The Tax Code: A Tale Of Two Purposes And Paralysis, Gene Magidenko
University of Michigan Journal of Law Reform Caveat
Though the presidential election of 2012 is still some time away, national politics have been in the thick of one for several months now. One of the top issues being debated is the tax code. Most agree that the tax code should be simplified, but to say that the proposals to do this are various is an understatement. This perennial question of reform has been a fixture of the national debate for a long time, so little of what can be said about it is particularly novel. All the same, a brief overview of the purposes behind our system of …
Re-Thinking Health Insurance, Hans Biebl
Re-Thinking Health Insurance, Hans Biebl
University of Michigan Journal of Law Reform Caveat
In May 2009, while promoting the legislation that would become the Patient Protection and Affordable Care Act (PPACA), President Obama said that rising health care costs threatened the balance sheets of both the federal government and private enterprise. He noted that any increase in health care spending consumes funds that “companies could be using to innovate and to grow, making it harder for them to compete around the world.” Despite the rancorous debate that surrounded this health care legislation and which culminated with the Supreme Court’s decision in National Federation of Independent Businesses, the PPACA was not a radical piece …
Is Honor Tangible Property?, James Santiago
Is Honor Tangible Property?, James Santiago
University of Michigan Journal of Law Reform Caveat
United States Marine Corps Sergeant Dakota Meyer said, “When they told me that I would be receiving the Medal of Honor I told them that I didn’t want it, because I don’t feel like a hero.” This statement reflects the feelings of many real war heroes who deserve and are given recognition yet feel that they are unworthy of such accolades. Unfortunately, there are also individuals who want the recognition of being a war hero but lie about having served. Nevertheless, the First Amendment will continue to guarantee the freedom of speech of those who lie about unearned military honors …
The Commonwealth Of Pennsylvania's Antiquated And Oft-Abused Occupation Tax: A Call For Abolition, Edmund W. Appleton
The Commonwealth Of Pennsylvania's Antiquated And Oft-Abused Occupation Tax: A Call For Abolition, Edmund W. Appleton
University of Michigan Journal of Law Reform Caveat
Under Pennsylvania law, counties, cities, boroughs, first-class townships, municipalities, and school districts can levy an occupation tax. An occupation tax taxes an individual based on the individual’s occupation, which, historically, was considered to be a form of transferable property. Not only is the occupation tax based on an outdated model of employment practices, but it is also a source of abuse and inequity. Consequently, the occupation tax should be abolished in favor of other more just taxation models.
Access To Medicaid: Recognizing Rights To Ensure Access To Care And Services, Colleen Nicholson
Access To Medicaid: Recognizing Rights To Ensure Access To Care And Services, Colleen Nicholson
University of Michigan Journal of Law Reform Caveat
The Supreme Court has defined Medicaid as “a cooperative federal-state program through which the Federal Government provides financial assistance to States so that they may furnish medical care to needy individuals.” In June 2012, the Court found the Patient Protection and Affordable Care Act’s (PPACA) Medicaid expansion unconstitutional. The Court took issue with the threat to withhold all of a state’s Medicaid funding if they did not comply with the expansion, finding it coercive and a fundamental shift in the Medicaid paradigm. However, Medicaid in its current form may not always be effective at providing beneficiaries with timely access to …
Past Its Prime: Why The Clean Air Act Is In Need Of Modification, Levi Smith
Past Its Prime: Why The Clean Air Act Is In Need Of Modification, Levi Smith
University of Michigan Journal of Law Reform Caveat
The Clean Air Act (CAA) is the primary federal statute regulating the emission of air pollutants. First enacted in 1970, the CAA requires, inter alia, the federal government to establish air quality goals and states to develop implementation plans to achieve those goals. The most stringent requirements of the CAA are imposed on “new” or “modified” sources of pollution, such as sulfur dioxide, nitrous oxides, and particulate matter. Sources that were operating when the CAA was enacted are mostly exempt from regulation under the Act. Because of the substantial costs associated with the CAA standards, there is an incentive for …
Argh, Matey! The Faux-Pas Of The Sopa (Stop Online Piracy Act), Anna S. Han
Argh, Matey! The Faux-Pas Of The Sopa (Stop Online Piracy Act), Anna S. Han
University of Michigan Journal of Law Reform Caveat
Earlier, I posted about a network neutrality case, Verizon v. FCC, which could have far-reaching consequences for the Internet industry. Another concerted attempt to regulate the Internet, disguised in the form of a piracy protection bill, recently came before the House Judiciary Committee and garnered widespread disapproval. Representative Lamar Smith (R-TX) and a bipartisan group of twelve co-sponsors introduced the “Stop Online Piracy Act” (“SOPA”) on October 26, 2011, which punishes websites that are accused of facilitating copyright infringement. Although touted by its supporters as a weapon against foreign sites that steal and sell American inventions, SOPA is problematic because …
Steps To Alleviating Violence Against Women On Tribal Lands, Anjum Unwala
Steps To Alleviating Violence Against Women On Tribal Lands, Anjum Unwala
University of Michigan Journal of Law Reform Caveat
One in three Native American women has been raped or has experienced an attempted rape. Federal officials also failed to prosecute 75% of the alleged sex crimes against women and children living under tribal authority. The Senate bill to reauthorize the 1994 Violence Against Women Act (VAWA) could provide appropriate recourse for Native American women who are victims of sexual assault. This bill (S. 1925), introduced in 2011, would grant tribal courts the ability to prosecute non-Indians who have sexually assaulted their Native American spouses and domestic partners. Congress has quickly reauthorized the Violence Against Women Act twice before. But …
Deruglatory Riders Redux, Thomas O, Mcgarity
Deruglatory Riders Redux, Thomas O, Mcgarity
Michigan Journal of Environmental & Administrative Law
Soon after the 2010 elections placed the Republican Party in control of the House of Representatives, the House took up a number of deregulatory bills. Recognizing that deregulatory legislation had little chance of passing the Senate, which remained under the control of the Democratic Party, or of being signed by President Obama, the House leadership reprised a strategy adopted by the Republican leaders during the 104th Congress in the 1990s. The deregulatory provisions were attached as riders to much-needed legislation in an attempt to force the Senate and the President to accept the deregulatory riders to avoid the adverse consequences …
Is A Substantive, Non-Positivist United States Environmental Law Possible?, Dan Tarlock
Is A Substantive, Non-Positivist United States Environmental Law Possible?, Dan Tarlock
Michigan Journal of Environmental & Administrative Law
U.S. environmental law is almost exclusively positive and procedural. The foundation is the pollution control and biodiversity conservation statutes enacted primarily between 1969–1980 and judicial decisions interpreting them. This law has created detailed processes for making decisions but has produced few substantive constraints on private and public decisions which impair the environment. Several substantive candidates have been proposed, such as the common law, a constitutional right to a healthy environment, the public trust, and the extension of rights to fauna and flora. However, these candidates have not produced the hoped for substantive law. Many argue that a substantive U.S. environmental …
A Functional Approach To Risks And Uncertainties Under Nepa , Todd S. Aagaard
A Functional Approach To Risks And Uncertainties Under Nepa , Todd S. Aagaard
Michigan Journal of Environmental & Administrative Law
The National Environmental Policy Act (NEPA) mandates that federal agencies evaluate the environmental impacts of their proposed actions. This requires agencies to make ex ante predictions about environmental consequences that often involve a significant degree of factual risk or uncertainty. Considerable controversy exists regarding how agencies should address such risks and uncertainties. Current NEPA law adopts a largely ad hoc approach that lacks coherence and analytical rigor. Some environmentalists and legal scholars have called for a greater emphasis on worst-case analysis in environmental planning, especially after the recent Deepwater Horizon oil spill in the Gulf of Mexico and the meltdowns …
Text(Plus-Other-Stuff)Ualism:Textualists' Perplexing Use Of The Attorney General's Manual On The Administrative Procedure Act, K. M. Lewis
Michigan Journal of Environmental & Administrative Law
Textualist judges, such as U.S. Supreme Court Justice Antonin Scalia, are well known for their outspoken, adamant refusal to consult legislative history and its analogues when interpreting ambiguous provisions of statutory terms. Nevertheless, in administrative law cases, textualist judges regularly quote the Attorney General’s Manual on the Administrative Procedure Act, an unenacted Department of Justice document that shares all the characteristics of legislative history that textualists find odious: unreliability, bias, and failure to pass through the bicameralism and presentment processes mandated by the U.S. Constitution. As a result, judges that rely on the Manual in administrative law cases arguably reach …
Midnight Rulemaking And Congress, Nina A. Mendelson
Midnight Rulemaking And Congress, Nina A. Mendelson
Book Chapters
This chapter focuses on Congress, our most democratic federal institution. Congress is generally responsible for defining the authorities possessed by the administrative state, and congressional oversight is key to holding agencies accountable for their actions. Midnight rulemaking also has the potential to increase congressional engagement. Two commentators have recently argued that relative inattention from Congress can facilitate midnight rulemaking, because Congress may meet less frequently during the lame duck period and there is no “repeat player” relationship between the outgoing president and the Congress. To the contrary, however, Congress retains considerable formal power to respond to and override presidential decisions, …
Democrats At Doj: Why Partisan Use Of The Voting Rights Act Might Not Be So Bad After All, Ellen D. Katz
Democrats At Doj: Why Partisan Use Of The Voting Rights Act Might Not Be So Bad After All, Ellen D. Katz
Articles
In notable ways, the ongoing dispute over redistricting in Texas offers a mirror image to one of the major redistricting battles of the last decade, only with Democratic and Republican roles reversed. In both Texas v. United States and Georgia v. Ashcroft, a state attorney general (AG) decided he would not ask the United States Department of Justice (DOJ) to approve new redistricting plans enacted in his state. In both cases, the state AGs were well aware that the Voting Rights Act (VRA) required them to obtain federal approval, known as preclearance, before changing any aspect of their state's election …
School Districts And Families Under The Idea: Collaborative In Theory, Adversarial In Fact, Debra Chopp
School Districts And Families Under The Idea: Collaborative In Theory, Adversarial In Fact, Debra Chopp
Articles
To read the Individuals with Disabilities Education Act (IDEA) is to be impressed with the ambition and promise of special education. The statute guarantees disabled students a "free appropriate public education" (FAPE) in the "least restrictive environment." At the core of this guarantee lies an entitlement for the parents of a disabled child to collaborate with teachers and school administrators to craft an educational program that is both tailored to the child's unique needs and designed to help her make progress in her education. This entitlement, and the IDEA generally, represents an enormous advance for children with disabilities--a community that, …
How The Gun-Free School Zones Act Saved The Individual Mandate, Richard A. Primus
How The Gun-Free School Zones Act Saved The Individual Mandate, Richard A. Primus
Articles
For all the drama surrounding the Commerce Clause challenge to the in-dividual mandate provision of the Patient Protection and Affordable Care Act (“PPACA”), the doctrinal question presented is simple. Under existing doctrine, the provision is as valid as can be. To be sure, the Supreme Court could alter existing doctrine, and many interesting things could be written about the dynamics that sometimes prompt judges to strike out in new directions under the pressures of cases like this one. But it is not my intention to pursue that possibility here. My own suspicion, for what it is worth, is that the …
Enforcement Without Foundation? Insider Trading And China's Administrative Law Crisis, Nicholas C. Howson
Enforcement Without Foundation? Insider Trading And China's Administrative Law Crisis, Nicholas C. Howson
Articles
China's securities regulator enforces insider trading prohibitions pursuant to non-legal and non-regulatory internal "guidance." Reported agency decisions indicate that enforcement against insider trading is often possible only pursuant to this guidance, as the behavior identified is far outside of the scope of insider trading liability provided for in statute or regulation. I argue that the agency guidance is itself unlawful and unenforceable, because: (i) the guidance is not the regulatory norm required by the statutory delegation of power; and (ii) the guidance is ultra vires because (a) it addresses something substantively different from what is authorized under the statutory delegation, …
The Quest For A Sustainable Future And The Dawn Of A New Journal At Michigan Law, David M. Uhlmann
The Quest For A Sustainable Future And The Dawn Of A New Journal At Michigan Law, David M. Uhlmann
Articles
When I joined the faculty of the University of Michigan Law School in 2007, the first assignment I gave students in my Environmental Law and Policy class was John McPhee's Encounters with the Archdruid. It must have seemed like a curious choice to them, particularly coming from a professor who just three months earlier had been the Chief of the Environmental Crimes Section at the U.S. Department of Justice. The book was not a dramatic tale of courtroom battles. In fact, the book was not even about the law, and the clash of environmental values it depicted pre-dated the environmental …
The Financial Crisis And The Path Of Reform, Michael S. Barr
The Financial Crisis And The Path Of Reform, Michael S. Barr
Articles
In the lead-up to the financial crisis, the U.S. financial sector was overleveraged, short-funded, risky, and opaque. "Shadow banking" permitted institutions to avoid comprehensive supervision and capital requirements. Innovation outpaced the ability or willingness of private- and public-sector guardians to rein in risks. An asset bubble fed the system, until the market imploded in the fall of 2008. When the crisis hit, our society found itself illequipped to deal with the failure of leading financial firms. In the wake of the crisis, the Obama Administration proposed a set of reforms that were eventually embodied, in large part, in the Dodd-Frank …
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 …
When Federal And State Systems Converge: Foreign National Human Trafficking Victims Within Juvenile And Family Courts, Bridgette A. Carr
When Federal And State Systems Converge: Foreign National Human Trafficking Victims Within Juvenile And Family Courts, Bridgette A. Carr
Articles
This article highlights the concerns facing foreign national children who are both victims of human trafficking and under the jurisdiction of juvenile and family courts. Human trafficking is modern day slavery in which individuals, including children, are compelled into service and exploited. Foreign national human trafficking victims in juvenile and family court systems must navigate both the state system and a complex federal immigration system. This article explains the federal benefits available to these children and identifies the best practice approaches for juvenile and family court systems to increase identification of and support for foreign national child trafficking victims.jfcj_1073
Why I Do Law Reform, Lawrence W. Waggoner
Why I Do Law Reform, Lawrence W. Waggoner
Articles
In this Article, Professor Waggoner, newly retired, provides a retrospective on his career in law reform. He was inspired to write the Article by a number of articles by law professors explaining why they write. He contrasts law-reform work with law-review writing, pointing out that the work product of a law-reform reporter is directed to duly constituted law-making authorities. He notes that before getting into the law-reform business, he had authored or co-authored law review articles that advocated reform, but he also notes that those articles did not move the law a whit. The articles did, however, lead to his …
Unclaimed Property And Due Process: Justifying 'Revenue-Raising' Modern Escheat, Teagan J. Gregory
Unclaimed Property And Due Process: Justifying 'Revenue-Raising' Modern Escheat, Teagan J. Gregory
Michigan Law Review
States have long claimed the right to take custody of presumably abandoned property and hold it for the benefit of the true owner under the doctrine of escheat. In the face of increasing fiscal challenges, states have worked to increase their collection of unclaimed property via new escheat legislation that appears to bear little or no relation to protecting the interests of owners. Holders of unclaimed property have raised substantive due process challenges in response to these modern escheat statutes. This Note contends that two categories of these disputed laws-those shortening dormancy periods and those allowing states to estimate a …
Human Rights Legislation In The Arab World: The Case Of Human Trafficking, Mohamed Y. Mattar
Human Rights Legislation In The Arab World: The Case Of Human Trafficking, Mohamed Y. Mattar
Michigan Journal of International Law
In the Arab World, human rights legislation has not always enhanced human rights. In fact, many national laws have been adopted that restrict human rights. Some countries' laws regulating nongovernmental organizations (NGOs) do not allow NGOs to receive funding from foreign entities. Media laws impose various limitations on the press. Jordan is the only Arab nation to enforce a comprehensive law on combating violence against women. Jordan is also the only country that has a law on access to information. Despite these gaps in human rights legislation, many Arab countries have passed comprehensive laws to combat human trafficking since the …
Trafficking In Europe: An Analysis Of The Effectiveness Of European Law, Saadiya Chaudary
Trafficking In Europe: An Analysis Of The Effectiveness Of European Law, Saadiya Chaudary
Michigan Journal of International Law
This Essay looks at the manifestation of various forms of human trafficking within Europe and analyzes the effectiveness of current European law provisions in combating trafficking and protecting victims. The Essay will accomplish this by examining recent and current cases before the European Court of Human Rights and the comparative gap between European standards and domestic procedures in the United Kingdom. The United Kingdom is a well-known destination state for trafficking victims' and consequently is required to meet obligations under international law toward a significant number of individuals who have been forced into exploitation in the United Kingdom.
Rethinking Discrimination Law, Sandra F. Sperino
Rethinking Discrimination Law, Sandra F. Sperino
Michigan Law Review
Modern employment discrimination law is defined by an increasingly complex set of frameworks. These frameworks structure the ways that courts, juries, and litigants think about discrimination. This Article challenges whether courts should use the frameworks to conceptualize discrimination. It argues that just as faulty sorting contributes to stereotyping and societal discrimination, courts are using faulty structures to substantively limit discrimination claims. This Article makes three central contributions. First, it demonstrates how discrimination analysis has been reduced to a rote sorting process. It recognizes and makes explicit courts' methodology so that the structure of discrimination analysis and its effects can be …
Deconstructing 'Just And Proper': Arguments In Favor Of Adopting The 'Remedial Purpose' Approach To Section 10(J) Labor Injunctions, William K. Briggs
Deconstructing 'Just And Proper': Arguments In Favor Of Adopting The 'Remedial Purpose' Approach To Section 10(J) Labor Injunctions, William K. Briggs
Michigan Law Review
Congress, through the 1947 addition of section 10(j) to the National Labor Relations Act, authorized district courts to grant preliminary injunctive relief for unfair labor practices if they deem such relief "just and proper." To this day a circuit split persists over the correct interpretation of this "just and proper" standard. Some circuits interpret "just and proper" to require application of the traditional equitable principles approach that normally governs preliminary injunctions. Other circuits interpret "just and proper" to require an analysis of whether injunctive relief is necessary to preserve the National Labor Relations Board's remedial power This Note examines the …
Using Public Disclosure As The Vesting Point For Moral Rights Under The Visual Artists Rights Act, Elizabeth M. Bock
Using Public Disclosure As The Vesting Point For Moral Rights Under The Visual Artists Rights Act, Elizabeth M. Bock
Michigan Law Review
In 2010, the Court of Appeals for the First Circuit confronted the novel question of when moral rights protections vest under the Visual Artists Rights Act. In Massachusetts Museum of Contemporary Art Foundation, Inc. v. Bichel, the First Circuit determined that the protections of the Visual Artists Rights Act begin when a work is "created" under the Copyright Act. This Note argues that this decision harms moral rights conceptually and is likely to result in unpredictable and inconsistent decisions. This Note proposes instead that these statutory protections should vest when an artist determines that his work is complete and presents …
Toward A System Of Invention Registration: The Leahy-Smith America Invents Act, Jason Rantanen, Lee Petherbridge
Toward A System Of Invention Registration: The Leahy-Smith America Invents Act, Jason Rantanen, Lee Petherbridge
Michigan Law Review First Impressions
The recently enacted Leahy-Smith America Invents Act (“AIA”) represents the most significant legislative event affecting patent law and practice in more than half a century. In addressing the AIA, scholars and policymakers have focused with an almost laser-like exclusivity on the AIA’s imposition of a first-to-file-or-first-to-publicly-disclose system, which replaces an over 200-year-old first-to-invent tradition. This myopia, we suggest, overlooks a part of the AIA that could hold a substantially greater potential to jeopardize American innovation, job creation, and economic competitiveness: the imposition of a mechanism for supplemental examination.