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Full-Text Articles in Law
Retroactive Application Of The Civil Rights Act Of 1991 To Pending Cases, Michele A. Estrin
Retroactive Application Of The Civil Rights Act Of 1991 To Pending Cases, Michele A. Estrin
Michigan Law Review
This Note addresses the applicability of the Civil Rights Act of 1991 to cases pending on the Act's date of enactment. Part I discusses current Supreme Court doctrine on the issue. This Part finds that the Court has endorsed two conflicting views on retroactively applying statutes to pending cases and that the lower federal courts consequently lack a principled framework for dealing with retroactivity issues in the 1991 Act. Part II describes the battle over the Civil Rights Acts of 1990 and 1991 and the subsequent confusion over the enacted statute's reach. This Part finds that Congress provided conflicting textual …
Section 1983 And Implied Rights Of Action: Rights, Remedies, And Realism, Michael A. Mazzuchi
Section 1983 And Implied Rights Of Action: Rights, Remedies, And Realism, Michael A. Mazzuchi
Michigan Law Review
This Note criticizes the Court's current reconciliation of the implied right of action and section 1983 inquiries, and argues that the availability of lawsuits under section 1983 should be the same as under an implied right of action test. Part I, by offering a working definition of rights, suggests an approach to identifying statutorily created rights. Part II discusses the evolution of the Court's implied right of action ' jurisprudence, and explores several explanations for the Court's hesitancy to create implied rights of action. Part III examines the influence of the Court's implied right of action test on its jurisprudence …
A Rule Unvanquished: The New Value Exception To The Absolute Priority Rule, Clifford S. Harris
A Rule Unvanquished: The New Value Exception To The Absolute Priority Rule, Clifford S. Harris
Michigan Law Review
This Note examines whether the new value exception remains part of the revised Bankruptcy Code. Part I discusses the background of the new value exception. Part II traces the development of the conflict concerning the survival of the new value exception subsequent to the adoption of the Code. It then discusses the Supreme Court's opinions in Mid/antic National Bank v. New Jersey Department of Environmental Protection and its progeny, which established the methodology for determining the impact of the revised Bankruptcy Code on preexisting bankruptcy law. Based on an analysis of the Midlantic doctrine, Part II concludes that Congress did …
Legislative Inaction And The Patterson Case, Earl M. Maltz
Legislative Inaction And The Patterson Case, Earl M. Maltz
Michigan Law Review
In its October 1988 issue,1 the Michigan Law Review published a symposium on Patterson v. McLean Credit Union, a case in which the Supreme Court has requested reargument on the question of whether Runyon v. McCrary should be overruled or modified. Each of the three distinguished contributors to the symposium concludes that the Court should not overrule Runyon. In reaching this conclusion, Professor William N. Eskridge and Professor Daniel A. Farber rely heavily on the view that because Congress has recognized the existence of the Runyon doctrine and has refused to overrule the decision, the doctrine of stare decisis …
Statutory Interpretation, Legislative Inaction, And Civil Rights, Daniel A. Farber
Statutory Interpretation, Legislative Inaction, And Civil Rights, Daniel A. Farber
Michigan Law Review
This month the Supreme Court will hear reargument in Patterson v. McLean Credit Union on the question of whether section 1981 prohibits discrimination by private parties. Professor Farber identifies three issues which lie at the heart of Patterson: Must statutes be construed to conform to the intent of the drafters? Does legislative inaction provide reliable guidance to interpreters of statutes? And should the nature of the claim at issue - here a claim of civil rights - influence the interpreters? On this last point, Professor Farber argues that public values must be relevant to statutory interpretation and that judges …
Updating Statutory Interpretation, T. Alexander Aleinikoff
Updating Statutory Interpretation, T. Alexander Aleinikoff
Michigan Law Review
This month the Supreme Court will hear reargument in Patterson v. McLean Credit Union on the question of whether section 1981 prohibits discrimination by private parties. Professor Aleinikoff examines in depth the first issue raised by Professor Farber. Using metaphors of the archeological and the nautical Professor Aleinikoff describes theories of originalism and their application to statutory interpretation. Concluding that there are nonoriginalist (or nonarcheological) elements implicit in these theories, he proceeds to consider how an explicitly nonoriginalist (or nautical) theory of interpretation might work He concludes by commenting on the application of such a theory to Patterson.
Interpreting Legislative Inaction, William N. Eskridge Jr.
Interpreting Legislative Inaction, William N. Eskridge Jr.
Michigan Law Review
This month the Supreme Court will hear reargument in Patterson v. McLean Credit Union on the question of whether section 1981 prohibits discrimination by private parties. In this article, Professor Eskridge addresses the issue of how legislative inaction should affect statutory interpretation. He begins by constructing a detailed analysis of the Court's legislative inaction cases, arguing that the case law is much more coherent than previous analysts have suggested. Professor Eskridge then considers Justice Scalia's critique of that case law and provides support for Justice Scalia's views by distinguishing actual and presumed legislative intent, arguing that, based on a conception …
Clarifying A "Pattern" Of Confusion: A Multi-Factor Approach To Civil Rico's Pattern Requirement, Ethan M. Posner
Clarifying A "Pattern" Of Confusion: A Multi-Factor Approach To Civil Rico's Pattern Requirement, Ethan M. Posner
Michigan Law Review
In an attempt to provide some needed definitional clarity and redirect civil RICO toward its intended focus, this Note argues that the federal judiciary should interpret the pattern requirement narrowly, focusing on four basic factors that best demonstrate a prolonged, continuing example of criminal activity. By emphasizing (1) the presence of multiple victims, (2) the duration of the RICO defendant's criminal activity, (3) the number of illicit commercial transactions, and (4) the existence of independent criminal decisions, courts could consistently limit civil RICO to the most pernicious offenders. Part I of this Note will examine judicial interpretations of RICO and …
Dormant Commerce Clause Claims Under 42 U.S.C. § 1983: Protecting The Right To Be Free Of Protectionist State Action, Gregory A. Kalscheur
Dormant Commerce Clause Claims Under 42 U.S.C. § 1983: Protecting The Right To Be Free Of Protectionist State Action, Gregory A. Kalscheur
Michigan Law Review
This Note will attempt to show that some commerce clause violations should give rise to cognizable section 1983 claims. Two fundamental questions will be addressed: Is the commerce clause the source of any "rights, privileges, or immunities secured by the Constitution?" and if so, Does section 1983 protect whatever "rights, privileges, or immunities" grow out of the commerce clause? Part I will describe the present status of authority on this issue and argue that none of the conflicting opinions have adequately addressed the fundamental questions involved. Part II will demonstrate that the commerce clause does indeed protect a "right[], privilege[ …
Restricting Adult Access To Material Obscene As To Juveniles, Ann H. Coulter
Restricting Adult Access To Material Obscene As To Juveniles, Ann H. Coulter
Michigan Law Review
This Note considers whether state regulations that restrict juvenile access to material that is obscene as to minors unconstitutionally encroach upon the first amendment rights of adults. Part I briefly describes the Court's opinion in Ginsberg. Part II introduces the "O'Brien analysis" and discusses the aspects of juvenile access restrictions that tend to make O'Brien scrutiny applicable. In this context the frequently relaxed judicial review of governmental restrictions on sexually related material will be discussed. Having concluded that the O'Brien analysis is applicable to access restrictions, Part III applies the test and ultimately concludes that juvenile access restrictions survive …
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 …
The Class-Based Animus Requirement Of 42 U.S.C. § 1985(3): A Limiting Strategy Gone Awry?, Devin S. Schindler
The Class-Based Animus Requirement Of 42 U.S.C. § 1985(3): A Limiting Strategy Gone Awry?, Devin S. Schindler
Michigan Law Review
This Note focuses on Scott's impact on attempts to determine what groups fall within the statute. Part I examines the various class-based animus formulas generated by the circuits since Griffin and the potential impact of Scott on these formulas. Part II argues that the key to understanding the scope of the class-based animus requirement lies in traditional fourteenth amendment equal protection analysis.
The Second Death Of Federalism, William W. Van Alstyne
The Second Death Of Federalism, William W. Van Alstyne
Michigan Law Review
In 1976, in National League of Cities v. Usery, the Supreme Court distinguished acts of Congress regulating commercial relations from acts of Congress commanding the terms of state services. Last Term, in Garcia v. San Antonio Metropolitan Transit Authority, the Court abandoned the distinction and held that it was principally for Congress to determine federalism questions. In this Comment, Professor Van Alstyne criticizes the Court on both counts.
Motions For Appointment Of Counsel And The Collateral Order Doctrine, Michigan Law Review
Motions For Appointment Of Counsel And The Collateral Order Doctrine, Michigan Law Review
Michigan Law Review
This Note argues that denials of motions for appointment of counsel should be immediately appealable under the collateral order exception to 28 U.S.C. § 1291. Part I examines the extent to which the collateral order doctrine modifies the finality rule. It argues that recent Supreme Court decisions that at first appear to have narrowed the doctrine have in fact only restated it. Part II applies the collateral order doctrine to orders denying appointment of counsel, concluding that such denials qualify for immediate review. Part III argues that policy considerations support this conclusion.
The Delegation Doctrine: Could The Court Give It Substance?, David Schoenbrod
The Delegation Doctrine: Could The Court Give It Substance?, David Schoenbrod
Michigan Law Review
Part I of this Article demonstrates the need for a new approach to the delegation doctrine. It shows that the Court has failed to articulate a coherent test of improper delegation and that the alternative tests offered by commentators are not sufficient. Part II then sets forth a proposed test of improper delegation. The basic principles of an approach prohibiting delegations of legislative power are outlined and illustrated. This Article does not, however, attempt anything so grand as to suggest a final definition of the doctrine or to pass broadly on the validity of statutes. Such an encompassing analysis is …
Second Generation State Takeover Legislation: Maryland Takes A New Tack, Michigan Law Review
Second Generation State Takeover Legislation: Maryland Takes A New Tack, Michigan Law Review
Michigan Law Review
This Note examines the approach recently adopted by the Maryland legislature in special session one year after the Supreme Court's decision in MITE. Maryland has departed radically from the regulatory approach of first generation statutes; however, this Note argues that the statute has failed to escape the constitutional infirmities of its predecessors. Part I outlines the various mechanisms that regulate acquisition of corporate control: the federal tender offer regulatory mechanism known as the Williams Act, state takeover legislation such as the Illinois statute invalidated in MITE, and the new Maryland statute. Part II analyzes the debate concerning the …
Yankees Out Of North America: Foreign Employer Job Discrimination Against American Citizens, Michigan Law Review
Yankees Out Of North America: Foreign Employer Job Discrimination Against American Citizens, Michigan Law Review
Michigan Law Review
This Note explores Title VII's relationship to the hiring practices of foreign employers. It focuses on Japanese employers, who might face the toughest Title VII challenge to a business and cultural familiarity or citizenship requirement. Part I sets out arguments for and against finding intentional discrimination - disparate treatment - in either of these hiring requirements. It suggests that a court should refuse to find national origin discrimination when the employer imposes a business and cultural familiarity requirement. However, when an applicant is denied employment solely on the basis of citizenship, a strong argument may be made that the …
The Supreme Court's Misconstruction Of A Procedural Statute--A Critique Of The Court's Decision In Badaracco, Douglas A. Kahn
The Supreme Court's Misconstruction Of A Procedural Statute--A Critique Of The Court's Decision In Badaracco, Douglas A. Kahn
Michigan Law Review
Before addressing the lessons to be derived from Badaracco, it is necessary to make good on the author's claim that it can be demonstrated to the satisfaction of a reasonably skeptical reader that the Court's decision was patently wrong and resulted from a poor technique of statutory construction. This is a heavy burden, especially since the decision was reached by an overwhelming majority of the Court and since two courts of appeals and at least one student law review note reached the same result. The reader must judge whether the author succeeds in satisfying it. This Article will first …
Interview Notes Of Government Agents Under The Jencks Act, Michigan Law Review
Interview Notes Of Government Agents Under The Jencks Act, Michigan Law Review
Michigan Law Review
Most courts that have considered the issue have concluded that the Jencks Act does not require the government to retain and produce rough interview notes. This Note examines the language and purpose of the Act to determine whether interview notes should be considered Jencks Act statements. Part I examines the policy underlying the Jencks Act and argues that the majority position sanctioning pre-trial destruction of interview notes conflicts with these statutory purposes. Part II discusses the statutory language and argues that the status of the witness as a government agent or a private individual determines the applicable section of the …
Incapacitating The Habitual Criminal: The English Experience, Sir Leon Radzinowicz, Roger Hood
Incapacitating The Habitual Criminal: The English Experience, Sir Leon Radzinowicz, Roger Hood
Michigan Law Review
In this Article, Sir Leon Radzinowicz and .Dr. Roger Hood trace 150 years of unsuccessful English efforts to identify, sentence, and reform habitual criminal offenders. The Supreme Court's recent decision in Rummel v. Estelle has publicized habitual offender statutes in the United States. But Rummel primarily addressed the constitutionality, rather than the desirability, of a state habitual offender statute. This Article examines the broader policy questions common to habitual offender programs in both the United Stales and Great Britain. It describes the tension between liberal tradition and the state's desire to incapacitate those who repeatedly threaten life or property.
State Control Over The Reclamation Waterhole: Reality Or Mirage, Michigan Law Review
State Control Over The Reclamation Waterhole: Reality Or Mirage, Michigan Law Review
Michigan Law Review
This Note assesses how much state law section 8 saves from preemption. Section I reviews the interplay of state and federal water law in the West. It begins with a brief description of appropriation, the system of water rights found in the Western states, outlines the Reclamation Act of 1902, and then traces the Supreme Court's evolving construction of the Act. It culminates in a discussion of California v. United States, the Court's latest gloss on section 8. Section II expands the analysis of the California decision, integrating it with traditional preemption doctrine. It shows that section 8 respects …
Limitation Borrowing In Federal Courts, Michigan Law Review
Limitation Borrowing In Federal Courts, Michigan Law Review
Michigan Law Review
This Note studies limitations on federal actions in light of Occidental Life. Part I discusses the reasons for limiting actions and presents a short history ·of the limitation of actions. Part II analyzes the alternatives for the federal courts when no statute of limitations applies directly. Finally, the Note suggests a solution that will achieve a result most nearly consistent with both the reasons for limiting actions and the proper role of the judiciary. It suggests, notwithstanding Occidental Life, that in some situations courts should borrow specific federal statutes of limitations and that in the remainder they should …
Standing Under Rule 10b-5 After Blue Chip Stamps, Michigan Law Review
Standing Under Rule 10b-5 After Blue Chip Stamps, Michigan Law Review
Michigan Law Review
The purpose of this Note is to analyze the opinion in Blue Chip and to ascertain the content of the Birnbaum rule as it exists today. It will first discuss the opinion of the Court in Blue Chip itself and delineate the primary policy considerations upon which the majority focused. It will then apply these policy considerations to the major categories of case law that have arisen subsequent to Birnbaum and analyze the validity of this case law in light of Blue Chip.
The Conclusive Presumption Doctrine: Equal Process Or Due Protection?, Michigan Law Review
The Conclusive Presumption Doctrine: Equal Process Or Due Protection?, Michigan Law Review
Michigan Law Review
In Vlandis v. Kline and United States Department of Agriculture v. Murry, decided during its past term, the Supreme Court invoked the conclusive presumption doctrine to invalidate statutory provisions, that restricted access to certain state and federal government benefits. This term, in Cleveland Board of Education v. LaFleur, the Court used the same rationale to strike down school board rules requiring teachers to take maternity leaves without pay. The essence of the doctrine is as follows: When a statutory provision imposes a burden upon a class of individuals for a particular purpose and certain individuals within the burdened class …
Supreme Court's Construction Of The Federal Constitution In 1920-1921, Thomas Reed Powell
Supreme Court's Construction Of The Federal Constitution In 1920-1921, Thomas Reed Powell
Michigan Law Review
While the Constitution does not in terms forbid the United States, as it forbids the states, to pass any law impairing the obligation of contracts, the principle has become established that contracts made by the United States may create rights of which individuals may not be divested. This principle is attached to the Fifth Amendment's prohibition against depriving any person of property without due process of law. In applying this principle, United States v. Northern Pacific Ry. Co.2 held that a grant of land to a railroad to induce its construction is a contract, and that provisions for substituting indemnity …
Note And Comment, Henry M. Bates, Lewis H. Mattern, Paul W. Gordon, Jean Paul Thomas
Note And Comment, Henry M. Bates, Lewis H. Mattern, Paul W. Gordon, Jean Paul Thomas
Michigan Law Review
Freedom of Press and Use of the Mails - Strangely enough, the First Amendment to the Federal Constitution, although it guarantees against federal attack highly important and fundamental rights, has received very little authoritative interpretation by our courts. It remained for the Gr&t War and conditions following in its train to bring before that tribunal almost the first really important controversies relating to freedom of press and of speech. The case of U. S. ex rel. Milwaukee Social Democratic Publishing Company, Plaintiff in Error, v. Postmaster-General Albert S. Burleson, decided March 7, 192i, is the- latest of a series of …
Note And Comment, Horace Lafayette Wilgus, Edson R. Sunderland, Carl G. Brandt, A George Bouchard
Note And Comment, Horace Lafayette Wilgus, Edson R. Sunderland, Carl G. Brandt, A George Bouchard
Michigan Law Review
Boycott - Clayton Act - In Duplex Printing Press Company v. Deering et al. (January 3, 192I) 41 S. Ct. 172, the facts were: The plaintiff, a Michigan corporation, manufactures at Battle Creek, and sells throughout the United States, especially in and around New York City, and abroad, very large, heavy and complicated newspaper printing presses. Purchasers furnish workmen, but ordinary mechanics alone are not competent to do this, and so they are supervised by specially skilled machinists furnished by plaintiffs. The plaintiffs have always operated on the "open shop" plan, without discrimination against union or non-union labor, either at …
Does The Constitution Protect Free Speech, Herbert F. Goodrich
Does The Constitution Protect Free Speech, Herbert F. Goodrich
Michigan Law Review
Many thoughtful men and women, witnessing the suppression of speech, by means both judicial and extra-judicial, in the period through which we have just passed, have reluctantly concluded that our hard won ight of freedom of speech has been lost, swept away in the flood tide of war enthusiasm. They point to the example of the recent candidate for the presidency, Eugene Debs, who is still confined in a federal prison for words he uttered during the war. They call attention to the fact that the fate of Mr. Debs is no worse than that of scores of other persons, …
Constitutional Law In 1919-1920, Iii, Thomas Reed Powell
Constitutional Law In 1919-1920, Iii, Thomas Reed Powell
Michigan Law Review
Five of the corporations which fought in vain against exercises of the police power profited nothing from their grasp at the obligation-of-contracts clause. In Milwaukee Electric Ry. & Light Co. v. Wisconsin2 the contract relied on was a clause in the charter of a street railroad imposing on it the duty to keep the space between and near its tracks in good repair "with the same material as the city shall have last used to pave or repave these spaces and the street previous to such repairs, unless the railway company and the board of public works of said city …
Federal Incorporation, Myron W. Watkins
Federal Incorporation, Myron W. Watkins
Michigan Law Review
Since the beginning of our national history the Constitution, which is essentially the source of the law rather than its framework, has with more or less promptitude fulfilled the function of sanctioning new rules of action which will permit a fairly symmetrical institutional development in the face of the changing conditions of the environment in which the people live and think and act. Always the habits of the people are changing, always the situation facts are being modified, and the Constitution in its widest and truest meaning but provides the means whereby thru this flux the body of the people …