Pub Date : 2019-01-01DOI: 10.36646/mjlr.52.3.century
M. Andersen
The 21st Century Cures Act introduced innovative changes to the Food and Drug Administration’s regulatory processes. In an effort to address the slow, costly, and burdensome approval process for high-risk devices, the Cures Act modernized clinical trial data by allowing reviewers to determine whether devices merit expedited review and to consider post-market surveillance data in the premarket approval process. These changes will get life-saving devices to the people who need them faster than ever before. But the tradeoff is a greater risk of injury to the patient. The 2008 Supreme Court decision Riegel v. Medtronic, Inc., held that any device receiving premarket approval is federally preempted from state tort claims. This means injured patients of medical device malfunctions are barred from seeking remedy against the manufacturers. Thus, the Cures Act potentially puts patients at greater risk but does nothing to provide those patients remedies for injury. This Note argues that federal preemption for medical devices receiving premarket approval should be reconsidered. Because the regulatory framework for which Riegel was decided has now shifted, the Court should reevaluate its prior ruling. Additionally, Congress should amend the preemption clause in the Food, Drug, and Cosmetic Act to allow for state tort action. Finally, Congress should create a victim compensation fund, run by HHS, to allow victims to make no-fault injury claims and receive payments for their suffering.
{"title":"21st Century Cures Act: The Problem with Preemption in Light of Deregulation","authors":"M. Andersen","doi":"10.36646/mjlr.52.3.century","DOIUrl":"https://doi.org/10.36646/mjlr.52.3.century","url":null,"abstract":"The 21st Century Cures Act introduced innovative changes to the Food and Drug Administration’s regulatory processes. In an effort to address the slow, costly, and burdensome approval process for high-risk devices, the Cures Act modernized clinical trial data by allowing reviewers to determine whether devices merit expedited review and to consider post-market surveillance data in the premarket approval process. These changes will get life-saving devices to the people who need them faster than ever before. But the tradeoff is a greater risk of injury to the patient. The 2008 Supreme Court decision Riegel v. Medtronic, Inc., held that any device receiving premarket approval is federally preempted from state tort claims. This means injured patients of medical device malfunctions are barred from seeking remedy against the manufacturers. Thus, the Cures Act potentially puts patients at greater risk but does nothing to provide those patients remedies for injury. This Note argues that federal preemption for medical devices receiving premarket approval should be reconsidered. Because the regulatory framework for which Riegel was decided has now shifted, the Court should reevaluate its prior ruling. Additionally, Congress should amend the preemption clause in the Food, Drug, and Cosmetic Act to allow for state tort action. Finally, Congress should create a victim compensation fund, run by HHS, to allow victims to make no-fault injury claims and receive payments for their suffering.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"132 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77214739","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 : 2019-01-01DOI: 10.36646/mjlr.52.2.robot
Ying Hu
When a robot harms humans, are there any grounds for holding it criminally liable for its misconduct? Yes, provided that the robot is capable of making, acting on, and communicating the reasons behind its moral decisions. If such a robot fails to observe the minimum moral standards that society requires of it, labeling it as a criminal can effectively fulfill criminal law’s function of censuring wrongful conduct and alleviating the emotional harm that may be inflicted on human victims. Imposing criminal liability on robots does not absolve robot manufacturers, trainers, or owners of their individual criminal liability. The former is not rendered redundant by the latter. It is possible that no human is sufficiently at fault in causing a robot to commit a particular morally wrongful action. Additionally, imposing criminal liability on robots might sometimes have significant instrumental value, such as helping to identify culpable individuals and serving as a self-policing device for individuals who interact with robots. Finally, treating robots that satisfy the above-mentioned conditions as moral agents appears much more plausible if we adopt a less human-centric account of moral agency.
{"title":"Robot Criminals","authors":"Ying Hu","doi":"10.36646/mjlr.52.2.robot","DOIUrl":"https://doi.org/10.36646/mjlr.52.2.robot","url":null,"abstract":"When a robot harms humans, are there any grounds for holding it criminally liable for its misconduct? Yes, provided that the robot is capable of making, acting on, and communicating the reasons behind its moral decisions. If such a robot fails to observe the minimum moral standards that society requires of it, labeling it as a criminal can effectively fulfill criminal law’s function of censuring wrongful conduct and alleviating the emotional harm that may be inflicted on human victims. Imposing criminal liability on robots does not absolve robot manufacturers, trainers, or owners of their individual criminal liability. The former is not rendered redundant by the latter. It is possible that no human is sufficiently at fault in causing a robot to commit a particular morally wrongful action. Additionally, imposing criminal liability on robots might sometimes have significant instrumental value, such as helping to identify culpable individuals and serving as a self-policing device for individuals who interact with robots. Finally, treating robots that satisfy the above-mentioned conditions as moral agents appears much more plausible if we adopt a less human-centric account of moral agency.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"32 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88979991","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}
Transboundary water institutions in the Indus River Basin can be fairly characterized as broken in key respects. International relations between India and Pakistan over the Indus Waters Treaty, as well as interprovincial relations within Pakistan over the 1991 Water Accord, speak to this sentiment. Stemming from research undertaken by the authors for the Harvard Water Federalism Project and the United States Agency for International Development (USAID), this Article seeks to spur the evolution of the Indus River Basin’s water institutions by offering a comparative perspective from North America’s most “institutionally encompassed” basin, the Colorado River Basin. Mindful of the importance of context for comparative water law and policy scholarship, the Article begins with overviews of the Colorado and Indus basins. In turn, the Article considers in greater detail major water-related challenges facing the latter basin, including climate change and overallocation. Against this backdrop, the Article ultimately turns to analysis and prescription. Examining a host of topics involving transboundary water allocation, conservation, and governance, the Article considers key institutions associated with these topics in the Colorado River Basin and reflects on how, if at all, they may serve as reference points for institutional evolution in the Indus Basin. Many of the proposals in the Article are expensive. But compared to military operations, they are quite modest in terms of expense and minimize the risk of loss of life and destruction of property. Still, the Article prioritizes solutions that maximize individual and local freedom to the greatest extent possible. This means relying upon voluntary market-based transfers that protect the vulnerable, favoring incentives rather than regulations, and creating a reward structure that includes benefits other than water.
印度河流域的跨界水机制在关键方面可以说是破碎的。印度和巴基斯坦在《印度河水域条约》上的国际关系，以及巴基斯坦在1991年《水协议》上的省际关系，都说明了这种情绪。本文源于作者为哈佛水联邦制项目(Harvard Water Federalism Project)和美国国际开发署(USAID)所做的研究，试图通过提供一个与北美最“制度包含”的流域——科罗拉多河流域进行比较的视角，来推动印度河流域水制度的演变。考虑到比较水法和政策学术背景的重要性，本文首先概述了科罗拉多和印度河流域。反过来，文章更详细地考虑了后一个流域面临的主要与水有关的挑战，包括气候变化和过度分配。在此背景下，本文最终转向分析与处方。本文考察了涉及跨界水资源分配、保护和治理的一系列主题，考虑了科罗拉多河流域与这些主题相关的关键机构，并反思了它们如何(如果有的话)可以作为印度河流域制度演变的参考点。文章中的许多建议都是昂贵的。但与军事行动相比，它们在费用方面相当适度，并将生命损失和财产破坏的风险降至最低。尽管如此，该条款仍优先考虑最大限度地实现个人和地方自由的解决方案。这意味着依靠保护弱势群体的基于市场的自愿转移，支持激励而不是监管，并建立包括水以外利益的奖励结构。
{"title":"Evolution of Water Institutions in the Indus River Basin: Reflections from the Law of the Colorado River","authors":"E. Sattar, J. Robison, D. McCool","doi":"10.2139/SSRN.3023589","DOIUrl":"https://doi.org/10.2139/SSRN.3023589","url":null,"abstract":"Transboundary water institutions in the Indus River Basin can be fairly characterized as broken in key respects. International relations between India and Pakistan over the Indus Waters Treaty, as well as interprovincial relations within Pakistan over the 1991 Water Accord, speak to this sentiment. Stemming from research undertaken by the authors for the Harvard Water Federalism Project and the United States Agency for International Development (USAID), this Article seeks to spur the evolution of the Indus River Basin’s water institutions by offering a comparative perspective from North America’s most “institutionally encompassed” basin, the Colorado River Basin. Mindful of the importance of context for comparative water law and policy scholarship, the Article begins with overviews of the Colorado and Indus basins. In turn, the Article considers in greater detail major water-related challenges facing the latter basin, including climate change and overallocation. Against this backdrop, the Article ultimately turns to analysis and prescription. Examining a host of topics involving transboundary water allocation, conservation, and governance, the Article considers key institutions associated with these topics in the Colorado River Basin and reflects on how, if at all, they may serve as reference points for institutional evolution in the Indus Basin. Many of the proposals in the Article are expensive. But compared to military operations, they are quite modest in terms of expense and minimize the risk of loss of life and destruction of property. Still, the Article prioritizes solutions that maximize individual and local freedom to the greatest extent possible. This means relying upon voluntary market-based transfers that protect the vulnerable, favoring incentives rather than regulations, and creating a reward structure that includes benefits other than water.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"50 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-10-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91272901","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}
Two risk-averse parties with different subjective beliefs negotiate in the shadow of a pending trial. Through contingent contracts, the parties can mitigate risk and/or speculate on the outcome. These contracts mimic the services provided by third-party investors, including litigation funders and insurance companies. The two parties (weakly) prefer to contract with the external capital market when third-party investors are risk neutral, litigation costs are exogenous, and the market is transaction-cost free. However, contracting with third parties increases the volume of litigation, the level of litigation spending, and the aggregate cost of risk bearing. In this sense, third-party involvement in litigation reduces social welfare.
{"title":"Contracting on Litigation","authors":"K. Spier, J. Prescott","doi":"10.2139/ssrn.2765033","DOIUrl":"https://doi.org/10.2139/ssrn.2765033","url":null,"abstract":"Two risk-averse parties with different subjective beliefs negotiate in the shadow of a pending trial. Through contingent contracts, the parties can mitigate risk and/or speculate on the outcome. These contracts mimic the services provided by third-party investors, including litigation funders and insurance companies. The two parties (weakly) prefer to contract with the external capital market when third-party investors are risk neutral, litigation costs are exogenous, and the market is transaction-cost free. However, contracting with third parties increases the volume of litigation, the level of litigation spending, and the aggregate cost of risk bearing. In this sense, third-party involvement in litigation reduces social welfare.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"156 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74854989","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 : 2018-05-07DOI: 10.36646/mjlr.52.2.books
Carl T. Bogus
Following an epic battle in the marketplace between Apple and major book publishers, on one side, and Amazon, on the other side, the United States Department of Justice and thirty-three states filed an antitrust lawsuit against Apple and the publishers, alleging that they had conspired to fix the prices of ebooks. Both the district court and a divided panel of the United States Court of Appeals for the Second Circuit decided the case in the government’s favor. This Article argues that government regulators and the courts took the wrong side in the dispute and did so because of fundamental flaws in current antitrust policy. Adhering to the standard approach, regulators and the courts ignored unique aspects of the industry and treated books just as they would have treated cans of olive oil. Focusing exclusively on consumer welfare—that is, consumer prices and total industry output—regulators and the courts ignored critical social, cultural, and political ramifications of the dispute. Moreover, the widely accepted view that business firms are rational profit maximizers led regulators and the courts into making serious factual misjudgments. Although there are many calls for antitrust reform, most are limited to calls for more rigorous application of existing doctrine. This case study demonstrates why that is inadequate and a paradigm shift in antitrust policy is required.
在苹果和主要图书出版商与亚马逊(Amazon)在市场上展开了一场史诗般的战斗之后，美国司法部(United States Department of Justice)和33个州对苹果和出版商提起了反垄断诉讼，指控它们合谋操纵电子书的价格。地方法院和美国第二巡回上诉法院的一个分裂小组都做出了有利于政府的判决。本文认为，由于现行反垄断政策的根本缺陷，政府监管机构和法院在这场争端中站错了一边。按照标准的做法，监管机构和法院忽视了这个行业的独特之处，对待书籍就像对待橄榄油罐头一样。监管机构和法院只关注消费者福利——即消费者价格和行业总产出——忽视了争议中关键的社会、文化和政治后果。此外，人们普遍认为企业是理性的利润最大化者，这一观点导致监管机构和法院做出了严重的事实错误判断。尽管有许多要求反垄断改革的呼声，但大多数都局限于要求更严格地适用现有原则。本案例研究表明，为什么这是不够的，反垄断政策的范式转变是必要的。
{"title":"Books and Olive Oil: Why Antitrust Must Deal with Consolidated Corporate Power","authors":"Carl T. Bogus","doi":"10.36646/mjlr.52.2.books","DOIUrl":"https://doi.org/10.36646/mjlr.52.2.books","url":null,"abstract":"Following an epic battle in the marketplace between Apple and major book publishers, on one side, and Amazon, on the other side, the United States Department of Justice and thirty-three states filed an antitrust lawsuit against Apple and the publishers, alleging that they had conspired to fix the prices of ebooks. Both the district court and a divided panel of the United States Court of Appeals for the Second Circuit decided the case in the government’s favor. This Article argues that government regulators and the courts took the wrong side in the dispute and did so because of fundamental flaws in current antitrust policy. Adhering to the standard approach, regulators and the courts ignored unique aspects of the industry and treated books just as they would have treated cans of olive oil. Focusing exclusively on consumer welfare—that is, consumer prices and total industry output—regulators and the courts ignored critical social, cultural, and political ramifications of the dispute. Moreover, the widely accepted view that business firms are rational profit maximizers led regulators and the courts into making serious factual misjudgments. Although there are many calls for antitrust reform, most are limited to calls for more rigorous application of existing doctrine. This case study demonstrates why that is inadequate and a paradigm shift in antitrust policy is required.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"07 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-05-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86180692","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}
Price sensitive data of a company are considered as confidential data which are exceptionally classified. These data must be revealed to the public in the instances where, the shares and the stocks of the particular company is traded in the securities market. However, some people use these confidential data to create a favorable position for themselves when investing in the shares of the particular company. The circumstance of unlawful information exchanging could be portrayed as the insider trading. Many countries around the world has identified these ‘data trading’ as illicit, and have implemented and enforced particular laws to limit unethical trade practices as such. This study concentrates on the necessity of legal directions to regulate data that is price sensitive in nature. The emphasis is likewise on the distinctive civil and criminal sanctions those are forced on the guilty parties. This study gives contentions that are identified with neoclassical market theories. Also this study additionally discusses the improvement of laws and regulations in England related to insider dealing and concentrates on the justification of the laws and regulations in insider dealing alongside the impacts of insider dealing on investors and the security market.
{"title":"Criminal and Civil Offences of Insider Dealing: UK Perspective","authors":"P. Wijesinghe","doi":"10.2139/ssrn.3167197","DOIUrl":"https://doi.org/10.2139/ssrn.3167197","url":null,"abstract":"Price sensitive data of a company are considered as confidential data which are exceptionally classified. These data must be revealed to the public in the instances where, the shares and the stocks of the particular company is traded in the securities market. However, some people use these confidential data to create a favorable position for themselves when investing in the shares of the particular company. The circumstance of unlawful information exchanging could be portrayed as the insider trading. Many countries around the world has identified these ‘data trading’ as illicit, and have implemented and enforced particular laws to limit unethical trade practices as such. This study concentrates on the necessity of legal directions to regulate data that is price sensitive in nature. The emphasis is likewise on the distinctive civil and criminal sanctions those are forced on the guilty parties. This study gives contentions that are identified with neoclassical market theories. Also this study additionally discusses the improvement of laws and regulations in England related to insider dealing and concentrates on the justification of the laws and regulations in insider dealing alongside the impacts of insider dealing on investors and the security market.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"46 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-04-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81418349","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 : 2018-04-17DOI: 10.36646/mjlr.51.3.beyond
Jessica Eisen
The primary frameworks through which scholars have conceptualized legal protections for animals—animal “rights” and animal “welfare”—do not account for socio-legal transformation or democratic dialogue as central dynamics of animal law. The animal “rights” approach focuses on the need for limits or boundaries preventing animal use, while the animal “welfare” approach advocates balancing harm to animals against human benefits from animal use. Both approaches rely on abstract accounts of the characteristics animals are thought to share with humans and the legal protections they are owed as a result of those traits. Neither offers sustained attention to the dynamics of legal change in democratic states, including the importance of public access to the facts of animal lives, opportunities for affective storytelling, and multi-faceted public deliberation. This Article offers an alternative avenue for theorizing animal legal protections, drawing on Laurence Tribe’s articulation of law as governed by an “evolving ethic,” wherein successive shifts in legal and public consensus build upon one another in ways that are dynamic and not entirely unpredictable. Drawing on feminist, critical, and relational approaches to law and social change, this Article elaborates a vision of animal law as governed by an evolving ethic wherein legal transformation is deeply connected to the public availability of particular facts of animal use, emotional storytelling, and broader social relationships and power dynamics. The evolving ethic here proposed helps us to shift our focus from a precritical understanding of rights as hard boundaries to a view of rights as a product of dynamic social relationships; and to shift our focus from welfarist balancing calculations to more open-textured dialogue. By conceiving of animal law through the lens of the evolving ethic, we can break free of stale debates about the virtue of rights versus welfare and instead embrace both as tools in a dialogic toolbox deployed in a field of legal transformation that is better characterized by dynamism and dialogue than by teleological advancement toward a predefined goal. The Animal Welfare Act (AWA)—the central legal regime governing the experimental use of animals in the United States, forms the central case study. The AWA regime in its current form works to foreclose public deliberation over concrete cases. The history of this same regime, however, demonstrates that affective storytelling grounded in the particular facts of animal use has been a major driver of democratic legal change protecting animals used in experiments. This Article explores the current structure and historical development of the AWA scheme, demonstrating that the evolving ethic offers insights, beyond those allowed by rights and welfare approaches, into the practical dynamics of animal law and the shortcomings of the current AWA scheme. Informed by the evolving ethic and the AWA’s history of sociolegal transformation, this
{"title":"Beyond Rights and Welfare: Democracy, Dialogue, and the Animal Welfare Act","authors":"Jessica Eisen","doi":"10.36646/mjlr.51.3.beyond","DOIUrl":"https://doi.org/10.36646/mjlr.51.3.beyond","url":null,"abstract":"The primary frameworks through which scholars have conceptualized legal protections for animals—animal “rights” and animal “welfare”—do not account for socio-legal transformation or democratic dialogue as central dynamics of animal law. The animal “rights” approach focuses on the need for limits or boundaries preventing animal use, while the animal “welfare” approach advocates balancing harm to animals against human benefits from animal use. Both approaches rely on abstract accounts of the characteristics animals are thought to share with humans and the legal protections they are owed as a result of those traits. Neither offers sustained attention to the dynamics of legal change in democratic states, including the importance of public access to the facts of animal lives, opportunities for affective storytelling, and multi-faceted public deliberation.\u0000\u0000This Article offers an alternative avenue for theorizing animal legal protections, drawing on Laurence Tribe’s articulation of law as governed by an “evolving ethic,” wherein successive shifts in legal and public consensus build upon one another in ways that are dynamic and not entirely unpredictable. Drawing on feminist, critical, and relational approaches to law and social change, this Article elaborates a vision of animal law as governed by an evolving ethic wherein legal transformation is deeply connected to the public availability of particular facts of animal use, emotional storytelling, and broader social relationships and power dynamics. The evolving ethic here proposed helps us to shift our focus from a precritical understanding of rights as hard boundaries to a view of rights as a product of dynamic social relationships; and to shift our focus from welfarist balancing calculations to more open-textured dialogue. By conceiving of animal law through the lens of the evolving ethic, we can break free of stale debates about the virtue of rights versus welfare and instead embrace both as tools in a dialogic toolbox deployed in a field of legal transformation that is better characterized by dynamism and dialogue than by teleological advancement toward a predefined goal.\u0000\u0000The Animal Welfare Act (AWA)—the central legal regime governing the experimental use of animals in the United States, forms the central case study. The AWA regime in its current form works to foreclose public deliberation over concrete cases. The history of this same regime, however, demonstrates that affective storytelling grounded in the particular facts of animal use has been a major driver of democratic legal change protecting animals used in experiments. This Article explores the current structure and historical development of the AWA scheme, demonstrating that the evolving ethic offers insights, beyond those allowed by rights and welfare approaches, into the practical dynamics of animal law and the shortcomings of the current AWA scheme. Informed by the evolving ethic and the AWA’s history of sociolegal transformation, this","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"76 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-04-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83766588","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 : 2018-04-17DOI: 10.36646/mjlr.51.3.third-party
M. Fagan
With the rise of institutional activist investors in recent decades—including a purported 495 activist campaigns against U.S. corporations in 2016 alone—the role that third-party institutional proxy advisors play in corporate governance has greatly increased. The United States Office of Government Accountability estimates that clients of the top five proxy advisory firms account for about $41.5 trillion in equity throughout the world. For several years, discussions have developed regarding conflicts of interest faced by proxy advisors. For example, Institutional Shareholder Services, the top proxy advisory firm in the world, frequently provides advice to institutional investors on how to vote proxies while simultaneously providing corporate clients with advice on how to improve their corporate governance. Situations like these have given rise to debate as to whether such conflicts are truly problematic. At a minimum, institutional investors must be confident in the services that are provided to them by proxy advisors. Without a showing that recommendations are given in a neutral and non-biased way, accidentally or intentionally, the system cannot work effectively to maximize shareholder fairness. This Note posits that, despite the fact that third-party proxy advisors are currently acting within the law, reforms should be made that better address and limit the amount of conflicts of interest that may arise as a result of their business. Such reform should take place through legislation, informal SEC notice and comment, or, potentially, through the voluntary action of proxy advisory firms.
近几十年来，随着机构维权投资者的兴起，第三方机构代理顾问在公司治理中扮演的角色大大增加，据报道，仅2016年就有495名维权投资者发起了针对美国公司的活动。美国政府问责局(United States Office of Government Accountability)估计，全球五大代理咨询公司的客户持有约41.5万亿美元的股票。几年来，关于代理顾问面临的利益冲突的讨论已经展开。例如，全球最大的代理咨询公司机构股东服务公司(Institutional Shareholder Services)经常向机构投资者提供如何投票代理的建议，同时为企业客户提供如何改善公司治理的建议。这样的情况引起了关于这种冲突是否真的有问题的辩论。至少，机构投资者必须对代理顾问提供给他们的服务充满信心。如果不能证明推荐是以中立和无偏见的方式(无论是无意还是有意)给出的，该系统就无法有效地发挥作用，最大限度地提高股东公平。本说明认为，尽管第三方代理顾问目前在法律范围内行事，但应进行改革，以更好地解决和限制因其业务而可能产生的利益冲突。这样的改革应该通过立法、非正式的SEC通知和评论，或者可能通过代理咨询公司的自愿行动来实现。
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Pub Date : 2018-04-17DOI: 10.36646/mjlr.51.3.establishing
John Treat
This Note analyzes the new HUD rule finalized in November 2016, which dramatically changed the structure of the Housing Choice Voucher program in select metropolitan areas. In August 2017, HUD suspended automatic implementation of the rule until 2020 for twenty-three of the twenty-four selected metropolitan areas, but in December 2017, a preliminary injunction was granted requiring HUD to implement the rule as of January 1, 2018. The rule as written changes the method for calculating the vouchers from using a metropolitan area-wide average to calculating a separate level for each zip code. Such a change could greatly deconcentrate poverty and reduce economic and racial segregation; a result that the current status quo has failed to accomplish. The new rule, however, is not without its flaws. This Note offers a number of recommendations for changing the rule to address these flaws: (1) tweaking metro area selection criteria to include large, highly-segregated areas; (2) granting public housing agencies flexibility in implementing the rule; (3) including new protections for gentrifying neighborhoods and additional funding for landlord outreach and mobility counseling; and (4) revising methodology to increase accuracy. Despite the problems with the new rule, as long as HUD is truly committed to implementing it, its benefits are likely to outweigh its flaws.
{"title":"Establishing a More Effective SAFMR System: The Cost and Benefits of HUD's 2016 Small Area Fair Market Rent Rule","authors":"John Treat","doi":"10.36646/mjlr.51.3.establishing","DOIUrl":"https://doi.org/10.36646/mjlr.51.3.establishing","url":null,"abstract":"This Note analyzes the new HUD rule finalized in November 2016, which dramatically changed the structure of the Housing Choice Voucher program in select metropolitan areas. In August 2017, HUD suspended automatic implementation of the rule until 2020 for twenty-three of the twenty-four selected metropolitan areas, but in December 2017, a preliminary injunction was granted requiring HUD to implement the rule as of January 1, 2018. The rule as written changes the method for calculating the vouchers from using a metropolitan area-wide average to calculating a separate level for each zip code. Such a change could greatly deconcentrate poverty and reduce economic and racial segregation; a result that the current status quo has failed to accomplish. The new rule, however, is not without its flaws. This Note offers a number of recommendations for changing the rule to address these flaws: (1) tweaking metro area selection criteria to include large, highly-segregated areas; (2) granting public housing agencies flexibility in implementing the rule; (3) including new protections for gentrifying neighborhoods and additional funding for landlord outreach and mobility counseling; and (4) revising methodology to increase accuracy. Despite the problems with the new rule, as long as HUD is truly committed to implementing it, its benefits are likely to outweigh its flaws.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"19 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-04-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84854244","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 Article examines images in the context of trademark law’s inherent distinctiveness doctrine. While trademark law still lacks a coherent, uniform, and predictable framework for deciding the distinctiveness of visual image marks—logos and product packaging—it has long used the “imagination” test to effectively determine a word mark’s distinctiveness. Under this doctrine, immediately protectable word marks must operate in a metaphoric relationship to the words from which they are drawn (i.e., as figures of speech), requiring consumers to use their imagination to reach a conclusion as to the nature of the goods or services offered under the marks (e.g., “Klondike” for ice cream and “Greyhound” for a bus service). This makes sense because the first requirement of a valid trademark is that it be a “symbol”, and, as this Article shows, the basic characteristic of any symbol is its figurative quality. Research in conceptual metaphor theory finds, however, that metaphor is “primarily a matter of thought and action and only derivatively a matter of language.” Indeed, brands rely not just on verbal metaphor, but also on visual metaphor to differentiate themselves from competitors in the marketplace (e.g., McDonald’s “golden arches” and Starbucks’s “siren”). This Article thus claims that visual metaphor provides a figurative, cognition-based vehicle by which to extend trademark law’s imagination test of inherent distinctiveness from words to images. In doing so, it conceives of metaphorical association as a central consideration in analyzing the inherent distinctiveness of both word and image marks.
{"title":"Visual Metaphor and Trademark Distinctiveness","authors":"Dustin Marlan","doi":"10.2139/ssrn.2989671","DOIUrl":"https://doi.org/10.2139/ssrn.2989671","url":null,"abstract":"This Article examines images in the context of trademark law’s inherent distinctiveness doctrine. While trademark law still lacks a coherent, uniform, and predictable framework for deciding the distinctiveness of visual image marks—logos and product packaging—it has long used the “imagination” test to effectively determine a word mark’s distinctiveness. Under this doctrine, immediately protectable word marks must operate in a metaphoric relationship to the words from which they are drawn (i.e., as figures of speech), requiring consumers to use their imagination to reach a conclusion as to the nature of the goods or services offered under the marks (e.g., “Klondike” for ice cream and “Greyhound” for a bus service). This makes sense because the first requirement of a valid trademark is that it be a “symbol”, and, as this Article shows, the basic characteristic of any symbol is its figurative quality. Research in conceptual metaphor theory finds, however, that metaphor is “primarily a matter of thought and action and only derivatively a matter of language.” Indeed, brands rely not just on verbal metaphor, but also on visual metaphor to differentiate themselves from competitors in the marketplace (e.g., McDonald’s “golden arches” and Starbucks’s “siren”). This Article thus claims that visual metaphor provides a figurative, cognition-based vehicle by which to extend trademark law’s imagination test of inherent distinctiveness from words to images. In doing so, it conceives of metaphorical association as a central consideration in analyzing the inherent distinctiveness of both word and image marks.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"219 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-04-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79796750","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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