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Articles 1 - 22 of 22
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Preventative Pretrial Detention And The Failure Of Interest-Balancing Approaches To Due Process, Albert W. Alschuler
Preventative Pretrial Detention And The Failure Of Interest-Balancing Approaches To Due Process, Albert W. Alschuler
Michigan Law Review
This article, echoing Highmore's treatise of 1783, maintains that neither a legitimate nor a very important governmental interest can justify preventive detention in the absence of significant proof of past wrongdoing or an inability to control one's behavior. Both the Supreme Court's neglect of this issue and Congress' similar neglect in the preventive detention provisions of the Federal Bail Reform Act of 1984 reveal the extent to which cost-benefit analysis has captured American law and threatened core concepts of individual dignity.
The article does not oppose all forms of preventive pretrial detention. To the contrary, it recognizes that the detention …
The Bfoq Defense In Adea Suits: The Scope Of "Duties Of The Job", Robert L. Fischman
The Bfoq Defense In Adea Suits: The Scope Of "Duties Of The Job", Robert L. Fischman
Michigan Law Review
This Note examines these three possible interpretations of which job characteristics a court must examine when determining the validity of a BFOQ defense to an ADEA suit and concludes that the Eighth Circuit's standard is correct. Because disputes over which interpretation is proper arise almost exclusively in cases involving public safety occupations, this Note discusses the standards for measuring that scope within the framework of the policy considerations associated with public safety. Part I of this Note discusses the three current standards used to determine the scope of the BFOQ defense. Part II illuminates the problems inherent in having three …
Comparable Worth -- The Theory, Its Legal Foundation, And The Feasibility Of Implementation, Carin Ann Clauss
Comparable Worth -- The Theory, Its Legal Foundation, And The Feasibility Of Implementation, Carin Ann Clauss
University of Michigan Journal of Law Reform
County of Washington v. Gunther was decided by the Supreme Court over five years ago. In that case, the Court, resolving a conflict among the circuits, ruled that sex-based wage discrimination claims could proceed under Title VII of the Civil Rights Act of 1964 without regard to the limiting "equal work" standard of the Equal Pay Act. Following this decision, it was generally assumed that the courts would become the major forum for redressing sex-based wage discrimination. The anticipated litigation explosion never took place. Few wage discrimination suits have been filed, and even fewer have been successful. What progress has …
Thoughts On Comparable Worth Litigation And Organizational Strategies, Nancy Gertner
Thoughts On Comparable Worth Litigation And Organizational Strategies, Nancy Gertner
University of Michigan Journal of Law Reform
To watch the evolution of Title VIP is to watch the gradual constricting of a law that many had heralded as a tool of social change for women. Its passage represented a statement that the so-called free market had not worked for women. Women were denied access to higher paying and high-status positions. Even when a job was integrated, women's work was undervalued and their wages frequently depressed. With the passage of Title VII came the hope that the law would do what the market could not-break the cycle of discrimination.
Sex discrimination, in contrast with other forms of discrimination, …
A New Approach To Review Of Nepa Findings Of No Significant Impact, Geoffrey Garver
A New Approach To Review Of Nepa Findings Of No Significant Impact, Geoffrey Garver
Michigan Law Review
This Note examines the confused array of judicial approaches for reviewing agency findings of no significant environmental impact and proposes a standardized, comprehensive approach that ensures compliance with both the procedural and substantive aspects of NEPA. Part I reviews agency procedures mandated by NEPA which ensure that agencies develop a detailed record for judicial scrutiny and constitute the legal basis against which to check agency threshold decisions. Part II examines the conflicting approaches of the lower courts, emphasizing their reliance on Supreme Court decisions, their characterization of the threshold decision as legal or factual, and the burden of proof each …
Extended Voluntary Departure: Limiting The Attorney General's Discretion In Immigration Matters, Lynda J. Oswald
Extended Voluntary Departure: Limiting The Attorney General's Discretion In Immigration Matters, Lynda J. Oswald
Michigan Law Review
Fifteen times in the past quarter-century, the Attorney General has decreed that aliens of certain nationalities could temporarily remain in the United States regardless of their visa status. Government officials have characterized these grants of blanket extended voluntary departure (EVD) as a means of protecting aliens from life-threatening conditions in their homelands. The Attorney General's actions were apparently undertaken for humanitarian reasons and went largely unnoticed by the public.
Part I of this Note defines EVD and distinguishes it from related forms of deportation relief. Part II describes the Employees Union court's holding. The evolution of American perceptions of immigration …
Employer Postcertification Polls To Determine Union Support, James D. Dasso
Employer Postcertification Polls To Determine Union Support, James D. Dasso
Michigan Law Review
This Note evaluates these competing standards in light of the two major policy objectives of the NLRA: industrial stability and employee free choice. It concludes that the courts of appeals properly apply a less stringent standard. Part I considers employer polling in the larger context of the general law of employer interrogation. This section concludes that the Board's standard for postcertification polling deviates significantly from the general law of employer interrogation as well as the more specific rules established for precertification polling. The remainder of this Note demonstrates that the Board's distinctions between pre- and postcertification polling do not justify …
18 U.S.C. § 3501 And The Admissibility Of Confessions Obtained During Unnecessary Prearraignment Delay, Matthew W. Frank
18 U.S.C. § 3501 And The Admissibility Of Confessions Obtained During Unnecessary Prearraignment Delay, Matthew W. Frank
Michigan Law Review
Part I thus argues that the admissibility of post-sixth-hour confessions is governed by Mallory, under which a voluntary confession is inadmissible if, but only if, it follows a period of unnecessary delay. Part II addresses a possible objection to this conclusion - namely, that, with limited exceptions, subsection 350l(c) renders all post-sixth hour confessions inadmissible without regard to the reasonableness of the prearraignment delay. This interpretation is derived by negative implication from the proviso in subsection 350l(c) and would require courts to suppress confessions even though there has been no unnecessary delay, and even though the confessions would be …
The Dilution Of The Clean Water Act, Mark C. Van Putten, Bradley D. Jackson
The Dilution Of The Clean Water Act, Mark C. Van Putten, Bradley D. Jackson
University of Michigan Journal of Law Reform
This Article argues that the zero discharge goal of the Clean Water Act is more than naive rhetoric. To the contrary, it is the Act's raison d'être, and it is woven into the fabric of the Act's operative provisions. So understood, the zero discharge goal can and should provide continuing guidance for EPA's implementation of the Act.
At-Large Elections And Vote Dilution: An Empirical Study, Richard A. Walawender
At-Large Elections And Vote Dilution: An Empirical Study, Richard A. Walawender
University of Michigan Journal of Law Reform
The 1982 amendments to the Act, however, have remained a subject of controversy. Opponents of the Act misperceive municipal at-large electoral systems, believing they provide as much minority representation as single-member district systems. This Note addresses that misperception with data showing that at large schemes provide significantly less minority representation than other schemes. The various standards used by federal courts in reviewing the constitutionality of at-large election systems are outlined in Part I. Part II sets forth an analysis of Congress's response to the judicial ambivalence toward at-large elections- the 1982 amendments to section 2 of the Voting Rights Act. …
Section 707(B) Of The Bankruptcy Code: A Roadmap With A Proposed Standard For Defining Substantial Abuse, David L. Balser
Section 707(B) Of The Bankruptcy Code: A Roadmap With A Proposed Standard For Defining Substantial Abuse, David L. Balser
University of Michigan Journal of Law Reform
This Note examines these questions and proposes a standard for determining "substantial abuse." Part I provides an overview of Chapter 7 of the Bankruptcy Code. Part II discusses the legislative history of section 707(b). Part III examines the jurisdictional and procedural questions raised by the section and attempts to define what Congress meant by "primarily consumer debts" and "on [a court's] own motion." Part IV proposes a two-part standard for determining "substantial abuse." This standard suggests that courts should find "substantial abuse" whenever a debtor acts in bad faith or is able to repay 100% of his debts over the …
The Criminal Forfeiture Provisions Of The Rico And Cce Statutes: Their Application To Attorneys' Fees, Gregory Merz
The Criminal Forfeiture Provisions Of The Rico And Cce Statutes: Their Application To Attorneys' Fees, Gregory Merz
University of Michigan Journal of Law Reform
This Note argues that the criminal forfeiture provisions of RICO and CCE should not apply to attorneys' fees legitimately paid for services rendered. Part I examines the distinction between criminal and civil forfeiture, focusing particularly on forfeiture of property transferred to third parties. Part II discusses ways in which forfeiture of attorneys' fees adversely impacts the attorney-client relationship. Part III suggests a construction of the criminal forfeiture provisions that avoids the problems presented by attorneys' fees forfeiture but maintains criminal forfeiture as a deterrent to crime.
Farmland And Open Space Preservation In Michigan: An Empirical Analysis, Sandra A. Hoffmann
Farmland And Open Space Preservation In Michigan: An Empirical Analysis, Sandra A. Hoffmann
University of Michigan Journal of Law Reform
Part I of this Note describes the political and economic conditions that gave rise to the farmland and open space preservation enactments. It presents a brief political history of the support for this body of legislation and summarizes the economic arguments raised both for and against these preservation efforts. Part II describes the principal types of state farmland and open space preservation programs enacted during the past thirty years. Finally, Part III presents an empirical analysis of P.A. 116.
Reducing Acid Rain In Eastern North America: The Scientific Basis For An Acid Rain Control Policy, Michael Oppenheimer
Reducing Acid Rain In Eastern North America: The Scientific Basis For An Acid Rain Control Policy, Michael Oppenheimer
University of Michigan Journal of Law Reform
This Article presents the scientific basis for an effective acid rain control policy. Part I suggests that if a choice must be made, regulation should focus primarily on sulfur dioxide emissions rather than nitrogen oxide emissions because sulfur deposition is the major cause of watershed acidification. Part II explains the need for at least a fifty percent reduction in sulfur dioxide emissions to meet a "safe" deposition level. Part III specifies the geographical allocation of sulfur emission reductions necessary to attain target deposition levels in the northeastern United States and southeastern Canada. The Article concludes by demonstrating the need for …
Pennsylvania's Implementation Of The Surface Mining Control And Reclamation Act: An Assessment Of How "Cooperative Federalism" Can Make State Regulatory Programs More Effective, John C. Dernbach
University of Michigan Journal of Law Reform
This Article first explains the background against which Pennsylvania's implementation of SMCRA has occurred. Coal mining has had a serious and continuing effect on the State's environment, as Part I explains. In response to these effects, Pennsylvania began to regulate coal mining many decades ago. This regulatory development reached a milestone when the State achieved primacy under SMCRA in 1982.
Part II suggests that the new program in Pennsylvania has been responsible for substantial reductions in adverse environmental effects from surface coal mining, particularly less erosion and sedimentation, less acid mine drainage, and more backfilling. In addition, Part II explains …
The Medicare Rx: Prospective Pricing To Effect Cost Containment, H. Lynda Kugel
The Medicare Rx: Prospective Pricing To Effect Cost Containment, H. Lynda Kugel
University of Michigan Journal of Law Reform
This Note analyzes the impact of changing hospital reimbursement while maintaining charge-based reimbursement for physicians on hospital-physician relationships and on cost and quality of care. This Note contends that if the stated goals of redirecting incentives and containing costs are to be realized, physicians must be drawn into the revised reimbursement scheme. An indirect, aggregate approach is advocated to maintain the integrity of the physician-patient relationship and to avoid a direct financial impact upon the physician regarding patient care decisions. Part I will briefly examine the reasons for changing hospital reimbursement from retrospective cost-based reimbursement to prospective fixed rates. Part …
Integrity And Circumspection: The Labor Law Vision Of Bernard D. Meltzer, Theodore J. St. Antoine
Integrity And Circumspection: The Labor Law Vision Of Bernard D. Meltzer, Theodore J. St. Antoine
Articles
Bernard Meltzer has testified under oath that he "rarely take[s] absolute positions." The record bears him out. While his colleagues among labor law scholars often strain to demonstrate that the labor relations statutes and even the Constitution support their hearts' desires, the typical Meltzer stance is one of cool detachment, pragmatic assessment, and cautious, balanced judgment. The "itch to do good," Meltzer has remarked wryly, "is a doubtful basis for jurisdiction" -or, he would likely add, for any other legal conclusion. In this brief commentary I propose to examine the Meltzer approach to four broad areas of labor law: (1) …
Nlra Preemption Of State Law Actions For Wrongful Discharge In Violation Of Public Policy, Thomas Bean
Nlra Preemption Of State Law Actions For Wrongful Discharge In Violation Of Public Policy, Thomas Bean
University of Michigan Journal of Law Reform
This Note considers the circumstances under which the NLRA should preempt state law tort suits for discharge in contravention of public policy by employees covered by a collective bargaining agreement, and by at-will employees. Part I discusses the rationale behind the preemption doctrine and outlines the tests the Supreme Court has adopted for determining when the NLRA preempts state laws. Part II argues that the specific rationale behind the Court's preemption tests are inapplicable to the typical public policy wrongful discharge action. Part III identifies the ways in which public policy wrongful discharge actions might infringe on the NLRA. It …
Styles Of Law And The Attainment Of Social Justice, Richard O. Lempert, Joseph Sanders
Styles Of Law And The Attainment Of Social Justice, Richard O. Lempert, Joseph Sanders
Book Chapters
In the last chapter we focused on the meaning of legal autonomy and on the constituent elements of the ideal type. We noted two requisites for the autonomous application of law: judicial formalism and equal competence. But we also argued that the autonomous application of law does not guarantee that the law as applied will not perpetuate or advance socioeconomic differences. For applied law to be autonomous in this further sense, legal norms, in addition, must be status neutral, and the distribution of welfare in society must be such that the neutral norms do not disproportionately benefit some people. These …
The Supreme Court And State Protectionism: Making Sense Of The Dormant Commerce Clause, Donald H. Regan
The Supreme Court And State Protectionism: Making Sense Of The Dormant Commerce Clause, Donald H. Regan
Articles
For almost fifty years, scholars have urged the Court to "balance" in dormant commerce clause cases; and the scholars have imagined that the Court was following their advice. The Court has indeed claimed to balance, winning scholarly approval. But the Court knows better than the scholars. Despite what the Court has said, it has not been balancing. It has been following a simpler and better-justified course. In the central area of dormant commerce clause jurisprudence, comprising what I shall call "movement-of-goods" cases), the Court has been concerned exclusively with preventing states from engaging in purposeful economic protectionism. Not only is …
The Uniform Statutory Rule Against Perpetuities, Lawrence W. Waggoner
The Uniform Statutory Rule Against Perpetuities, Lawrence W. Waggoner
Articles
When the National Conference of Commissioners on Uniform State Laws recently approved the Uniform Statutory Rule Against Perpetuities, it may at long last have made perpetuity reform achievable in this country. Coming, as it does, on the heels of the 1981 promulgation of the Restatement (Second) of Property (Donative Transfers), which adopts the same general type of perpetuity reform, and having been unanimously endorsed by the House of Delegates of the American Bar Association, the Board of Regents of the American College of Probate Counsel, and the Board of Governors of the American College of Real Estate Lawyers, the Uniform …
General Principles Of Civil Law Of The People's Republic Of China (Translation), Whitmore Gray, Henry R. Zheng
General Principles Of Civil Law Of The People's Republic Of China (Translation), Whitmore Gray, Henry R. Zheng
Articles
(Adopted April 12, 1986, at the Fourth Session of the Sixth National People's Congress, to take effect on January 1, 1987.)'