Pub Date : 2018-03-16DOI: 10.36646/mjlr.52.1.accusers
Andrew N. Vollmer
Largely because of the Supreme Court’s 1975 decision in Withrow v. Larkin, the accepted view for decades has been that a federal administrative agency does not violate the Due Process Clause by combining the functions of investigating, charging, and then resolving allegations that a person violated the law. Many federal agencies have this structure, such as the Securities and Exchange Commission (SEC) and the Federal Trade Commission. In 2016, the Supreme Court decided Williams v. Pennsylvania, a judicial disqualification case that, without addressing administrative agencies, nonetheless raises a substantial question about one aspect of the combination of functions at agencies. The Court held that due process prevented a judge from sitting in a case in which he had participated as district attorney years earlier. The operative principle for the decision was that “the Court has determined that an unconstitutional potential for bias exists when the same person serves as both accuser and adjudicator in a case.” This Article concludes that the reasoning of Williams should supersede Withrow on the need to disqualify a specific commissioner or agency head from participating in a particular adjudication if the agency official played a meaningful role, such as voting to approve enforcement charges, in the process leading to the agency’s initiation of proceedings against the defendant. Voting to approve enforcement charges would be a meaningful role. The due process cases do not permit a compromise on the high standards of impartiality demanded of a final agency decision maker in an adjudication to determine whether a private party committed a violation of law. That reading of Williams threatens to unsettle standard practices at various agencies, but a closer look at the procedures of the SEC shows that it would be able to accommodate the rule in Williams yet retain the combination of charging and adjudicating at the Commission level. Because of turnover of Commissioners and quorum rules, the SEC could continue to have the agency leaders bring enforcement cases and review nearly all administrative law judge decisions while disqualifying individual Commissioners under Williams when necessary.
很大程度上是因为最高法院1975年对威斯罗诉拉金案的判决，几十年来人们接受的观点是，联邦行政机构将调查、起诉和解决某人违法指控的职能结合起来，并不违反正当程序条款。许多联邦机构都有这种结构，如证券交易委员会(SEC)和联邦贸易委员会。2016年，最高法院判决了威廉姆斯诉宾夕法尼亚州案(Williams v. Pennsylvania)，这是一起司法资格取消案，虽然没有涉及行政机构，但却对机构职能组合的一个方面提出了实质性问题。法院认为，正当程序阻止法官审理他多年前作为地区检察官参与的案件。该判决的执行原则是，“法院认定，当同一个人同时担任案件的原告和审判者时，存在违宪的偏见可能性。”本文的结论是，Williams的推理应取代Withrow，即如果某一特定专员或机构负责人在导致该机构对被告提起诉讼的过程中发挥了有意义的作用，例如投票批准执法指控，则该机构需要取消其参与特定裁决的资格。投票批准强制收费将是一个有意义的角色。正当程序案件不允许在裁决中对最终机构决策者在确定私人当事人是否违法时所要求的高度公正性标准作出妥协。对威廉姆斯案的这种解读可能会扰乱各机构的标准做法，但仔细研究SEC的程序就会发现，它能够适应威廉姆斯案的规则，同时在委员会层面保留起诉和裁决的结合。由于委员的更替和法定人数规则，SEC可以继续让机构领导人提起执法案件，审查几乎所有行政法法官的决定，同时在必要时取消威廉姆斯手下个别委员的资格。
{"title":"Accusers as Adjudicators in Agency Enforcement Proceedings","authors":"Andrew N. Vollmer","doi":"10.36646/mjlr.52.1.accusers","DOIUrl":"https://doi.org/10.36646/mjlr.52.1.accusers","url":null,"abstract":"Largely because of the Supreme Court’s 1975 decision in Withrow v. Larkin, the accepted view for decades has been that a federal administrative agency does not violate the Due Process Clause by combining the functions of investigating, charging, and then resolving allegations that a person violated the law. Many federal agencies have this structure, such as the Securities and Exchange Commission (SEC) and the Federal Trade Commission.\u0000\u0000In 2016, the Supreme Court decided Williams v. Pennsylvania, a judicial disqualification case that, without addressing administrative agencies, nonetheless raises a substantial question about one aspect of the combination of functions at agencies. The Court held that due process prevented a judge from sitting in a case in which he had participated as district attorney years earlier. The operative principle for the decision was that “the Court has determined that an unconstitutional potential for bias exists when the same person serves as both accuser and adjudicator in a case.”\u0000\u0000This Article concludes that the reasoning of Williams should supersede Withrow on the need to disqualify a specific commissioner or agency head from participating in a particular adjudication if the agency official played a meaningful role, such as voting to approve enforcement charges, in the process leading to the agency’s initiation of proceedings against the defendant. Voting to approve enforcement charges would be a meaningful role. The due process cases do not permit a compromise on the high standards of impartiality demanded of a final agency decision maker in an adjudication to determine whether a private party committed a violation of law.\u0000\u0000That reading of Williams threatens to unsettle standard practices at various agencies, but a closer look at the procedures of the SEC shows that it would be able to accommodate the rule in Williams yet retain the combination of charging and adjudicating at the Commission level. Because of turnover of Commissioners and quorum rules, the SEC could continue to have the agency leaders bring enforcement cases and review nearly all administrative law judge decisions while disqualifying individual Commissioners under Williams when necessary.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-03-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91381360","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-01-01DOI: 10.36646/mjlr.51.2.restoring
R. Trivedi
Part I of this Article provides a background for both the NLRA and the IRCA. It examines the goals and remedies of both statutes as well as the impact of the Supreme Court’s Hoffman decision on available remedies. Part II addresses the currently-skewed remedial incentives. It considers why employers are tempted to hire unauthorized workers and commit unfair labor practices that are then inadequately remedied, which creates a situation that adversely effects the rights of authorized employees. Part III more closely analyzes this consequential harm. This Part identifies the erosions on the NLRA’s collective nature and the impact on authorized employees’ terms and conditions of employment as well as their ability to change them. It also examines the far-reaching erosion of mental confidence experienced by authorized employees when considering their statutorily protected rights. This chilling effect, when unaddressed, represents a failure of the NLRA to achieve its remedial goal to restore the status quo ex ante to the employer’s unfair labor practice. In Part IV, this Article considers the literature addressing remedies in cases involving unauthorized workers, including the many existing suggestions for refinements that might bring balance to the currently misaligned incentive structure. It observes, however, that these proposals reflect a current focus on unauthorized workers that not only poses practical and political dilemmas if implemented but, as a normative measure, continues to overlook the problem of the harm done to authorized employees—and may even cause them further harm. Given that any attempt to amend the NLRA or modify Hoffman to account for this developing problem is almost certainly doomed to fail in the foreseeable future, Part V concludes that it may be more expedient to work within the existing statutory text and case law to address the distinct harm to authorized worker as a part of the restoration of the status quo. It therefore suggests that in cases where an unfair labor practice has been found involving an unauthorized worker, the General Counsel and the Board should routinely consider expanded appropriate remedies. These remedies could potentially include longer notice posting times, notice mailing with explanatory material educating the remaining workers of their rights, publication of the notice for a period of weeks in a publication of general circulation, visitation to ensure compliance with the Board’s order, and other measures designed to restore the confidence and willingness to act of employees, particularly the authorized workers who have been harmed by their employer’s actions.
{"title":"Restoring a Willingness to Act: Identifying and Remedying the Harm to Authorized Employees Ignored Under Hoffman Plastics","authors":"R. Trivedi","doi":"10.36646/mjlr.51.2.restoring","DOIUrl":"https://doi.org/10.36646/mjlr.51.2.restoring","url":null,"abstract":"Part I of this Article provides a background for both the NLRA and the IRCA. It examines the goals and remedies of both statutes as well as the impact of the Supreme Court’s Hoffman decision on available remedies. Part II addresses the currently-skewed remedial incentives. It considers why employers are tempted to hire unauthorized workers and commit unfair labor practices that are then inadequately remedied, which creates a situation that adversely effects the rights of authorized employees. Part III more closely analyzes this consequential harm. This Part identifies the erosions on the NLRA’s collective nature and the impact on authorized employees’ terms and conditions of employment as well as their ability to change them. It also examines the far-reaching erosion of mental confidence experienced by authorized employees when considering their statutorily protected rights. This chilling effect, when unaddressed, represents a failure of the NLRA to achieve its remedial goal to restore the status quo ex ante to the employer’s unfair labor practice. In Part IV, this Article considers the literature addressing remedies in cases involving unauthorized workers, including the many existing suggestions for refinements that might bring balance to the currently misaligned incentive structure. It observes, however, that these proposals reflect a current focus on unauthorized workers that not only poses practical and political dilemmas if implemented but, as a normative measure, continues to overlook the problem of the harm done to authorized employees—and may even cause them further harm. Given that any attempt to amend the NLRA or modify Hoffman to account for this developing problem is almost certainly doomed to fail in the foreseeable future, Part V concludes that it may be more expedient to work within the existing statutory text and case law to address the distinct harm to authorized worker as a part of the restoration of the status quo. It therefore suggests that in cases where an unfair labor practice has been found involving an unauthorized worker, the General Counsel and the Board should routinely consider expanded appropriate remedies. These remedies could potentially include longer notice posting times, notice mailing with explanatory material educating the remaining workers of their rights, publication of the notice for a period of weeks in a publication of general circulation, visitation to ensure compliance with the Board’s order, and other measures designed to restore the confidence and willingness to act of employees, particularly the authorized workers who have been harmed by their employer’s actions.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"23 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76061586","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-01-01DOI: 10.36646/mjlr.51.2.scourge
Jeffrey Giancana
Prohibited possessor statutes have been a part of American law for decades. Put simply, these laws prohibit any person who has been convicted of a felony from possessing a firearm, a prohibition that lasts for the felon’s entire life. The Supreme Court’s modern Second Amendment jurisprudence has held that the right to possess a firearm is a fundamental individual right. In light of this new paradigm, the constitutionality of such broad prohibitions must be called into question—despite the eagerness of courts across the country to dismiss such challenges by pointing to a single line in Heller. This Note challenges the constitutionality of modern prohibited possessor laws and asserts that these laws are unconstitutionally overbroad. It then proposes a constitutional framework for analyzing laws that ban firearm possession by felons.
{"title":"The \"Scourge\" of Armed Check Fraud: A Constitutional Framework for Prohibited Possessor Laws","authors":"Jeffrey Giancana","doi":"10.36646/mjlr.51.2.scourge","DOIUrl":"https://doi.org/10.36646/mjlr.51.2.scourge","url":null,"abstract":"Prohibited possessor statutes have been a part of American law for decades. Put simply, these laws prohibit any person who has been convicted of a felony from possessing a firearm, a prohibition that lasts for the felon’s entire life. The Supreme Court’s modern Second Amendment jurisprudence has held that the right to possess a firearm is a fundamental individual right. In light of this new paradigm, the constitutionality of such broad prohibitions must be called into question—despite the eagerness of courts across the country to dismiss such challenges by pointing to a single line in Heller. This Note challenges the constitutionality of modern prohibited possessor laws and asserts that these laws are unconstitutionally overbroad. It then proposes a constitutional framework for analyzing laws that ban firearm possession by felons.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"19 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82564065","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
One of the most debated topics in refugee law has been the meaning of particular social group (PSG)—one of the five categories used to claim refugee status. In 2006, the Board of Immigration Appeals (BIA) adopted a narrower PSG definition. Since that adoption, a circuit split has persisted over the meaning of PSG. Two circuits in particular have continually refused to adopt this definition—even when the BIA attempted to revise the definition in response to their criticism. This Note proposes a reform that would include a compromise between the two current definitions of PSG by rejecting the BIA’s particularity requirement and transforming the social distinction requirement into a flexible standard. Further, this Note advises that the Supreme Court provide guidance to the BIA to ensure that all jurisdictions adhere to the new definition.
{"title":"Why Guidance from the Supreme Court is Required in Redefining the Particular Social Group Definition in Refugee Law","authors":"Liliya Paraketsova","doi":"10.36646/mjlr.51.2.why","DOIUrl":"https://doi.org/10.36646/mjlr.51.2.why","url":null,"abstract":"One of the most debated topics in refugee law has been the meaning of particular social group (PSG)—one of the five categories used to claim refugee status. In 2006, the Board of Immigration Appeals (BIA) adopted a narrower PSG definition. Since that adoption, a circuit split has persisted over the meaning of PSG. Two circuits in particular have continually refused to adopt this definition—even when the BIA attempted to revise the definition in response to their criticism. This Note proposes a reform that would include a compromise between the two current definitions of PSG by rejecting the BIA’s particularity requirement and transforming the social distinction requirement into a flexible standard. Further, this Note advises that the Supreme Court provide guidance to the BIA to ensure that all jurisdictions adhere to the new definition.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"48 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77671170","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-01-01DOI: 10.36646/mjlr.52.1.ensuring
Meredith D. McPhail
The United States imprisons a greater proportion of its own population than any other country in the world.2 A legal framework provides protections for those individuals who are incarcerated, but that framework is flawed. The jurisprudence distinguishes pretrial detainees (who have not been convicted) from convicted persons (who are serving a sentence).3 Based on that distinction, different standards apply to conditions of confinement and use of force cases brought by pretrial detainees and those brought by convicted persons.4 That distinction–and the resulting disparate application of legal standards–does not comport with the reality of incarceration, the concept of punishment, or the principle that the Constitution still applies behind bars. This Note argues that, as Justice Thomas has long believed, the Eighth Amendment, properly understood, covers only the specific sentence declared by a sentencing court. Beyond that specific sentence, a convicted person has a substantive due process right to be free from unsanctioned punishment; and therefore, any of his claims should be governed by the more protective due process standard that pretrial detainees enjoy.
{"title":"Ensuring That Punishment Does, in Fact, Fit the Crime","authors":"Meredith D. McPhail","doi":"10.36646/mjlr.52.1.ensuring","DOIUrl":"https://doi.org/10.36646/mjlr.52.1.ensuring","url":null,"abstract":"The United States imprisons a greater proportion of its own population than any other country in the world.2 A legal framework provides protections for those individuals who are incarcerated, but that framework is flawed. The jurisprudence distinguishes pretrial detainees (who have not been convicted) from convicted persons (who are serving a sentence).3 Based on that distinction, different standards apply to conditions of confinement and use of force cases brought by pretrial detainees and those brought by convicted persons.4 That distinction–and the resulting disparate application of legal standards–does not comport with the reality of incarceration, the concept of punishment, or the principle that the Constitution still applies behind bars. This Note argues that, as Justice Thomas has long believed, the Eighth Amendment, properly understood, covers only the specific sentence declared by a sentencing court. Beyond that specific sentence, a convicted person has a substantive due process right to be free from unsanctioned punishment; and therefore, any of his claims should be governed by the more protective due process standard that pretrial detainees enjoy.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86442810","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
On April 26, 2017, President Trump issued a one-page tax reform outline that included “territoriality,” i.e., exempting from tax dividends from the non-Subpart F income of controlled foreign corporations. Territoriality is also included in the House GOP “Better Way” Blueprint and was supported by the Obama Administration and in bipartisan legislation introduced in 2016 by Senators Rob Portman (R-OH) and Chuck Schumer (D-NY). Thus, of all the current tax reform proposals, it may have the best chance of being enacted, especially given that it is linked with imposing some tax on the past offshore earnings of US multinationals. In the course of investigating the Stanley Surrey papers at the Harvard Law School Library, I discovered an interesting document that can shed some light on the “original intent” of Subpart F and its relation to territoriality. The document shows that in Surrey’s view, the purpose of Subpart F was primarily to prevent shifting of profits from the US to low-tax foreign jurisdictions such as Switzerland. This task is needed to achieve CEN, protect the gold reserves in Fort Knox, and prevent non-taxation of US source income. The emphasis throughout is on the low tax level in the foreign country, because in the absence of such a low tax level, deferral does not confer meaningful tax benefits, and does not violate CEN, create balance of payments problems, or induce base erosion and profit shifting out of the US. Territoriality would exacerbate the profit-shifting problem by lifting the only current constraint on it, which is the difficulty of repatriating the offshore income. Surrey would be appalled at the current ability of Apple, Amazon, Google, Facebook and Microsoft to do exactly what he opposed in 1961, namely “license United States created patents and know-how” from tax haven CFCs without triggering US tax. Ideally, we should go back to the drawing board and adopt Surrey’s original 1961 proposal to abolish deferral. But since that seems politically impossible (even though the president proposed it during his campaign), we should at least do what every other OECD country that has CFC rules has done- combine territoriality with a strong minimum tax provision, either explicitly or by listing certain countries as tax havens. That, and not the current territoriality proposals, would “level the playing field” between US and foreign multinationals.
{"title":"Territoriality and the Original Intent of Subpart F","authors":"R. Avi-Yonah","doi":"10.2139/SSRN.2971410","DOIUrl":"https://doi.org/10.2139/SSRN.2971410","url":null,"abstract":"On April 26, 2017, President Trump issued a one-page tax reform outline that included “territoriality,” i.e., exempting from tax dividends from the non-Subpart F income of controlled foreign corporations. Territoriality is also included in the House GOP “Better Way” Blueprint and was supported by the Obama Administration and in bipartisan legislation introduced in 2016 by Senators Rob Portman (R-OH) and Chuck Schumer (D-NY). Thus, of all the current tax reform proposals, it may have the best chance of being enacted, especially given that it is linked with imposing some tax on the past offshore earnings of US multinationals. \u0000In the course of investigating the Stanley Surrey papers at the Harvard Law School Library, I discovered an interesting document that can shed some light on the “original intent” of Subpart F and its relation to territoriality. The document shows that in Surrey’s view, the purpose of Subpart F was primarily to prevent shifting of profits from the US to low-tax foreign jurisdictions such as Switzerland. This task is needed to achieve CEN, protect the gold reserves in Fort Knox, and prevent non-taxation of US source income. The emphasis throughout is on the low tax level in the foreign country, because in the absence of such a low tax level, deferral does not confer meaningful tax benefits, and does not violate CEN, create balance of payments problems, or induce base erosion and profit shifting out of the US. \u0000Territoriality would exacerbate the profit-shifting problem by lifting the only current constraint on it, which is the difficulty of repatriating the offshore income. Surrey would be appalled at the current ability of Apple, Amazon, Google, Facebook and Microsoft to do exactly what he opposed in 1961, namely “license United States created patents and know-how” from tax haven CFCs without triggering US tax. \u0000Ideally, we should go back to the drawing board and adopt Surrey’s original 1961 proposal to abolish deferral. But since that seems politically impossible (even though the president proposed it during his campaign), we should at least do what every other OECD country that has CFC rules has done- combine territoriality with a strong minimum tax provision, either explicitly or by listing certain countries as tax havens. That, and not the current territoriality proposals, would “level the playing field” between US and foreign multinationals.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"50 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2017-05-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86118628","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Today’s health system runs on data. However, for a system that generates and requires so much data, the health care system is surprisingly bad at maintaining, connecting, and using those data. In the easy cases of coordinated care and stationary patients, the system works — sometimes. But when care is fragmented, fragmented data often result. Fragmented data create risks both to individual patients and to the system. For patients, fragmentation creates risks in care based on incomplete or incorrect information, and may also lead to privacy risks from a patched-together system. For the system, data fragmentation hinders efforts to improve efficiency and quality, and to drive health innovation based on collected data. Efforts to combat data fragmentation would benefit by considering the idea of health data infrastructure. Most obviously, that would be infrastructure for health data — that is, infrastructure on which health data can be stored and transmitted. But it should also be an infrastructure of health data — that is, a platform of shared data on which to base further efforts to increase the efficiency or quality of care.
{"title":"Risk and Resilience in Health Data Infrastructure","authors":"W. N. Price Ii","doi":"10.2139/ssrn.2928997","DOIUrl":"https://doi.org/10.2139/ssrn.2928997","url":null,"abstract":"Today’s health system runs on data. However, for a system that generates and requires so much data, the health care system is surprisingly bad at maintaining, connecting, and using those data. In the easy cases of coordinated care and stationary patients, the system works — sometimes. But when care is fragmented, fragmented data often result. Fragmented data create risks both to individual patients and to the system. For patients, fragmentation creates risks in care based on incomplete or incorrect information, and may also lead to privacy risks from a patched-together system. For the system, data fragmentation hinders efforts to improve efficiency and quality, and to drive health innovation based on collected data. Efforts to combat data fragmentation would benefit by considering the idea of health data infrastructure. Most obviously, that would be infrastructure for health data — that is, infrastructure on which health data can be stored and transmitted. But it should also be an infrastructure of health data — that is, a platform of shared data on which to base further efforts to increase the efficiency or quality of care.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2017-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90299523","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2017-03-01DOI: 10.36646/mjlr.51.2.declinations
Karen E. Woody
This Article addresses the recent pretrial diversion scheme undertaken by the Department of Justice in conjunction with its Foreign Corrupt Practices Act Pilot Program—specifically, “declinations with disgorgement.” Pursuant to the Pilot Program, the Department of Justice declined to prosecute or even continue an investigation, provided the company disgorge its alleged ill-gotten gains. This Article dissects both the purpose of, and terminology used in, declinations with disgorgement and argues that this novel and creative pretrial diversion is a dangerous conflation of legal remedial theories and terms. A criminal disposition cannot be a declination with attendant penalties because either illegal activity occurred or it did not; prosecutorial discretion does not allow an “in-between” option of declination while simultaneously requiring disgorgement. Calling these dispositions “declinations” and the penalties associated therewith “disgorgement” is a wild misuse of the terms, which creates a crisis in the expressive function of the Foreign Corrupt Practices Act and in the legal lexicon itself.
{"title":"\"Declinations with Disgorgement\" in FCPA Enforcement","authors":"Karen E. Woody","doi":"10.36646/mjlr.51.2.declinations","DOIUrl":"https://doi.org/10.36646/mjlr.51.2.declinations","url":null,"abstract":"This Article addresses the recent pretrial diversion scheme undertaken by the Department of Justice in conjunction with its Foreign Corrupt Practices Act Pilot Program—specifically, “declinations with disgorgement.” Pursuant to the Pilot Program, the Department of Justice declined to prosecute or even continue an investigation, provided the company disgorge its alleged ill-gotten gains. This Article dissects both the purpose of, and terminology used in, declinations with disgorgement and argues that this novel and creative pretrial diversion is a dangerous conflation of legal remedial theories and terms. A criminal disposition cannot be a declination with attendant penalties because either illegal activity occurred or it did not; prosecutorial discretion does not allow an “in-between” option of declination while simultaneously requiring disgorgement. Calling these dispositions “declinations” and the penalties associated therewith “disgorgement” is a wild misuse of the terms, which creates a crisis in the expressive function of the Foreign Corrupt Practices Act and in the legal lexicon itself.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"35 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2017-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82485456","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This essay recounts and updates some of my research in property theory and in contract theory. One aim of my research has been to provide pathways for understanding the significance of market-inalienability. In developed societies that feature the institutions of private law, with commitment to a traditional understanding of the role of the polity in underwriting, managing, and preserving those institutions, market-inalienability has a central place. Taking up the issue of what things or relationships can be treated as commodities, I first critique a mode of inquiry — a traditional view of law and economics — which finds no problem with commodification of anything whatever. Counter to this mode of reasoning, I review two points of view that consider some kinds of commodification wrongful: commodification as “desperate exchanges” (Michael Walzer) and commodification as “corruption” (Michael Sandel). Finding neither of these anti-commodification theories satisfactory, I review in some detail the example of babyselling — which should more accurately be called purchased adoption — to show the dilemmas of commodification, and the complexity of arguments about it. Juxtaposing to these forms of commodification a variety of commodification that is more specifically thought of as contractual overreaching rather than property overreaching, the focus turns to the practice of firms that deploy standardized fine-print contracts (“boilerplate”) that routinely waive the background legal rights of those who receive them. This practice of using contract to escape basic rights commodifies some rights that ought to be market-inalienable. Such rights should remain permanently in the care of the polity, and should not be treated as objects of trade.
{"title":"From Babyselling to Boilerplate: Reflections on the Limits of the Infrastructures of the Market","authors":"M. Radin","doi":"10.2139/SSRN.2905141","DOIUrl":"https://doi.org/10.2139/SSRN.2905141","url":null,"abstract":"This essay recounts and updates some of my research in property theory and in contract theory. One aim of my research has been to provide pathways for understanding the significance of market-inalienability. In developed societies that feature the institutions of private law, with commitment to a traditional understanding of the role of the polity in underwriting, managing, and preserving those institutions, market-inalienability has a central place. Taking up the issue of what things or relationships can be treated as commodities, I first critique a mode of inquiry — a traditional view of law and economics — which finds no problem with commodification of anything whatever. Counter to this mode of reasoning, I review two points of view that consider some kinds of commodification wrongful: commodification as “desperate exchanges” (Michael Walzer) and commodification as “corruption” (Michael Sandel). Finding neither of these anti-commodification theories satisfactory, I review in some detail the example of babyselling — which should more accurately be called purchased adoption — to show the dilemmas of commodification, and the complexity of arguments about it. Juxtaposing to these forms of commodification a variety of commodification that is more specifically thought of as contractual overreaching rather than property overreaching, the focus turns to the practice of firms that deploy standardized fine-print contracts (“boilerplate”) that routinely waive the background legal rights of those who receive them. This practice of using contract to escape basic rights commodifies some rights that ought to be market-inalienable. Such rights should remain permanently in the care of the polity, and should not be treated as objects of trade.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"38 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2017-01-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84067871","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
A relatively new proposal to reduce homelessness in the United States involves extraordinarily small dwellings. While the “tiny house” movement is intuitively appealing and has found sporadic success, strict housing codes, building codes, and zoning laws often destroy the movement before it can get off the ground. One possibility for getting around these zoning and building code challenges, without drastic overhauls to health and safety codes, is to create a new state-level zoning classification of “transitional campgrounds.” A new zoning classification would alleviate the issue because campgrounds are consistently subject to less strict building codes, which could permit tiny houses as temporary living quarters. Creating “transitional campgrounds” gives discretion to local level policy makers, allowing for action that reflects the true needs of the local community. In some states, municipalities may be able to implement this proposed regulation directly. With appropriate legislative reform and community support, tiny house villages can be an affordable, alternative temporary housing accommodation option. Part I of this Note discusses the background of the tiny house movement, including an overview of the applicable zoning, building, and housing codes, along with various state laws. Part II explains the difficulties posed by the current regulatory scheme, and Part III proposes a statute designed to alleviate those challenges that could, ideally, be adopted at the state level.
{"title":"It Takes a Village: Designating \"Tiny House\" Villages as Transitional Housing Campgrounds","authors":"Ciara Turner","doi":"10.36646/mjlr.50.4.it","DOIUrl":"https://doi.org/10.36646/mjlr.50.4.it","url":null,"abstract":"A relatively new proposal to reduce homelessness in the United States involves extraordinarily small dwellings. While the “tiny house” movement is intuitively appealing and has found sporadic success, strict housing codes, building codes, and zoning laws often destroy the movement before it can get off the ground. One possibility for getting around these zoning and building code challenges, without drastic overhauls to health and safety codes, is to create a new state-level zoning classification of “transitional campgrounds.” A new zoning classification would alleviate the issue because campgrounds are consistently subject to less strict building codes, which could permit tiny houses as temporary living quarters. Creating “transitional campgrounds” gives discretion to local level policy makers, allowing for action that reflects the true needs of the local community. In some states, municipalities may be able to implement this proposed regulation directly. With appropriate legislative reform and community support, tiny house villages can be an affordable, alternative temporary housing accommodation option. Part I of this Note discusses the background of the tiny house movement, including an overview of the applicable zoning, building, and housing codes, along with various state laws. Part II explains the difficulties posed by the current regulatory scheme, and Part III proposes a statute designed to alleviate those challenges that could, ideally, be adopted at the state level.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"67 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74990945","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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