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Recent Books, Michigan Law Review

Michigan Law Review

A list of books recenlty received by Michigan Law Review.

Recent Books, Michigan Law Review

Michigan Law Review

A list of books recenlty received by Michigan Law Review.

Recent Books, Michigan Law Review

Michigan Law Review

A list of books recenlty received by Michigan Law Review.

Recent Books, Michigan Law Review

Michigan Law Review

A list of books recenlty received by Michigan Law Review.

Juries, Hindsight, And Punitive Damage Awards: Failures Of A Social Science Case For Change, Richard O. Lempert

Articles

In their recent Arizona Law Review article entitled What Juries Can't Do Well: The Jury's Performance As a Risk Manager,' Professors Reid Hastie and W. Kip Viscusi purport to show that juries are likely to do a poor job in setting punitive damages, largely because jurors cannot avoid the influence of what is called "hindsight bias," or the tendency to see the likelihood of an event higher in retrospect than it would have appeared before it happened. In particular, they argue that hindsight bias and other cognitive biases undermine the utility of jury-set punitive damage awards as risk management devices. …

Recent Books, Michigan Law Review

Michigan Law Review

A list of books recenlty received by Michigan Law Review.

Comment On Steven Lubet, Reconstructing Atticus Finch, Rob Atkinson

Michigan Law Review

Professor Lubet has joined a growing list of revisionists who question Atticus's standing as the paragon of lawyerly virtue.1 But Professor Lubet takes revisionism in a distinctly postmodern direction, if not to a radically new level. Atticus's previous critics have wondered how he could have overlooked, perhaps even condoned, the pervasive racism, sexism, and classism of the Depression-era South. They have even occasionally censured his paternalism toward his pro bono client, the working-class black rape defendant Tom Robinson. But they have never questioned either Tom's claim of innocence or the propriety of Atticus's advocacy of that claim. Professor Lubet questions …

Response To Steven Lubet: A Reaction: "Stand Up, Your Father [A Lawyer] Is Passing", Burnele V. Powell

Michigan Law Review

Professor Steven Lubet's review examines in the lawyering context the truth of Due de La Rochefoucauld's observation that "[o]ur virtues are mostly but vices in disguise." His question - one going to the very heart of what lawyering is about - asks readers of To Kill a Mockingbird whether they would be equally prepared to accept the fictional Atticus Fmch as the personification of the good lawyer if his black client, defendant Tom Robinson, actually committed the rape of the white woman, Mayella Ewell, for which he was charged. If Robinson was a rapist, how then does one square Atticus's …

Rights And Wrongs, John C.P. Goldberg

Michigan Law Review

If one were to ask an American lawyer or legal scholar for a definition of liberalism, her explanation would likely include mention of constitutional provisions such as the First and Fourth Amendments. This is because liberalism is today understood primarily as a theory of what government officials may not do to citizens. Its most immediate expression in law is thus taken to be those parts of the Bill of Rights that set limits on state action. This tendency to conceive of liberalism exclusively as a theory of rights against government is a twentieth century phenomenon. To be sure, liberalism has …

Foreword, Jeffrey Rosen

Michigan Law Review

America now is a society addicted to legalism that has lost its faith in legal argument. The impeachment of Bill Clinton was only the most visible manifestation of this paradox. Both Democrats and Republicans professed a rhetorical commitment to the rule of law while revealing a deep pessimism about the ability of courts, legislatures, or even citizens to transcend their biases and to converge, through deliberation, on impartial and democratically acceptable outcomes. The simplistic Supreme Court decisions that precipitated the impeachment - in particular, Morrison v. Olson,1 upholding the Independent Counsel law, and Jones v. Clinton,2 denying the President temporary …

Reconstructing Atticus Finch, Steven Lubet

Michigan Law Review

Atticus Finch. No real-life lawyer has done more for the self-image or public perception of the legal profession than the hero of Harper Lee's novel, To Kill a Mockingbird. For nearly four decades, the name of Atticus Finch has been invoked to defend and inspire lawyers, to rebut lawyer jokes, and to justify (and fine-tune) the adversary system. Lawyers are greedy. What about Atticus Finch? Lawyers only serve the rich. Not Atticus Finch. Professionalism is a lost ideal. Remember Atticus Finch. In the unreconstructed Maycomb, Alabama of the 1930s, Atticus was willing to risk his social standing, professional reputation, and …

Reconstructing Atticus Finch? A Response To Professor Lubet, Ann Althouse

Michigan Law Review

In one of her childishly obtuse moments, Scout, the narrator of Harper Lee's To Kill a Mockingbird, denies that her father Atticus Finch is any sort of proper example of how a lawyer ought to act when cross-examining a witness. The prosecutor's crossexamination of the accused Tom Robinson has moved her friend Dill to tears: "I couldn't stand . . . [t]hat old Mr. Gilmer doin' him thataway, talking so hateful to him _" Scout, who has taken her friend out of the courtroom, explains: "Dill, that's his job . . . . He's supposed to act that way." Atticus, …

Moral Icons: A Comment On Steven Lubet's Reconstructing Atticus Finch, William H. Simon

Michigan Law Review

Atticus Finch's conduct would have been justified by the bar's conventional norms even if he had known Tom Robinson to be guilty. That fact, however, is not the source of the admiration for him that To Kill a Mockingbird has induced in so many readers. That admiration depends on the clear premise of the novel that Finch plausibly believes that Tom Robinson is innocent. Thus, the bar's invocation of Finch as a sympathetic illustration of its norms is misleading. The ethics of the novel are quite different from those of the bar. Steven Lubet does a good job of showing …

Atticus Finch, In Context, Randolph N. Stone

Michigan Law Review

One summer night in 1955, Emmett Till, a fourteen-year-old Chicago boy visiting relatives in Mississippi, was abducted by two white men, beaten, and shot; his body was tied to a fan from a cotton gin and thrown in a river. Emmett's "crime": being black and allegedly whistling at a white woman. Through the early 1970s, hundreds of black men had been "legally" executed after being convicted, usually by all white juries or white judges, of sexually assaulting white women; hundreds more were lynched and otherwise extrajudicially executed. This is the historical context of white supremacy essentially ignored by Professor Lubet …

Reply To Comments On Reconstructing Atticus Finch, Steven Lubet

Michigan Law Review

Reconstructing Atticus Finch was intended to be provocative, so I am not surprised at the strength of the responses. Neither should I be surprised by the continuing reverence engendered by the fictional Atticus Finch; as I pointed out in my original essay, he is our moral archetype. Indeed, it was the accepted nobility of the character that made my question worth asking in the first place. What if Mayella had been attacked by Tom Robinson? Would Atticus still be a hero? To ask that question about a lesser figure would inevitably invite stock responses. Champions of the adversary system would …

Recent Books, Michigan Law Review

Michigan Law Review

A list of books recenlty received by Michigan Law Review.

Recent Books, Michigan Law Review

Michigan Law Review

A list of books recenlty received by Michigan Law Review.

Confrontation Confronted, Richard D. Friedman, Margaret A. Berger, Steven R. Shapiro

Law Quadrangle (formerly Law Quad Notes)

The following article is an edited version of the amicus curiae brief filed with the Supreme Court of the United States in the October Term, 1998, in the case of Benjamin Lee Lilly v. Commonwealth of Virginia(No.98-5881). "This case raises important questions about the confrontation clause, which has been a vital ingredient of the fair trial right for hundreds of years," Professor Richard Friedman and his co-authors say. "In particular, this case presents the Court with an opportunity to reconsider the relationship between the confrontation clause and the law of hearsay." On June 10 the Court handed down a decision …

Doing Well & Doing Good: The Careers Of Minority And White Graduates Of The University Of Michigan Law School, 1970 - 1996, David L. Chambers, Richard O. Lempert, Terry K. Adams

Law Quadrangle (formerly Law Quad Notes)

In the last few yearsm affirmative action in higher education has faced increasing legal scrutiny, in part because of doubts about the kinds of graduates these programs produce. A few years ago, we and some of our colleagues at Michigan started asking whether we could learn the answers to these questions about the careers of our graduates. The Law School already possessed considerable information about our minority graduates - from the surveys we have conducted each year for over 30 years of our alumni five and 15 years after graduation. But, while the annual survey asks many questions about careers …

From Tokenism To Emancipatory Politics: The Conferences And Meetings Of Law Professors Of Color, Linda S. Greene

Michigan Journal of Race and Law

In this paper, the author traces the history of the First National Meetings and conferences since 1969. In Part II, this paper explores the range of meetings and conferences which outlined the development of a proactive agenda for minority student and faculty inclusion within mainstream historically White legal institutions and the evolution of this agenda from one of access to an agenda of security, retention, and the advancement of legal theory and scholarship within and without the established academy. Part III chronicles the maturation of this tradition of independent meetings and conferences of professors of color into a network of …

Legal Writing Scholarship: Point/Counterpoint, Jan M. Levine, Grace C. Tonner

Articles

Perhaps because the field of legal writing has now matured enough so that we professors constitute a critical mass of experienced teachers and scholars, we find ourselves frequently embroiled in debates about legal writing scholarship. What is it? Can we do it? Should we do it? Should it be considered part and parcel of our responsibilities as members of the law school world? To help us better present our shared view that legal writing professors not only can but should produce scholarship, we sought first to take on the role of devil’s advocate, presenting all the rationales we have heard …

Bibliography Of Principal Publications By Professor John H. Jackson As Of February 1999, Michigan Journal Of International Law

Michigan Journal of International Law

A bibliography.

Introduction: Critical Race Praxis And Legal Scholarship, Keith Aoki, Margaret Chon

Michigan Journal of Race and Law

The publication of this symposium issue is an occasion for three distinct and yet related celebrations. First, we honor the Western Law Teachers of Color, whose sixth annual meeting on the sublime Oregon Coast in 1998 provided the occasion for organizing the papers published here. Dean Strickland's preface, as well as Professors Linda Greene's and Jim Jones's essays examine the historical significance of this occasion in greater detail. Second, we engage in a festschrift of a particular member of this group-Professor Eric K. Yamamoto -whose publication of a book this year is a significant capstone to fifteen years of scholarship …

Fuller And Language, Joseph Vining

Book Chapters

His style made him distinctive. His substance made him distinctive. The two crossed, were genetically related as we now say. Style and substance each drew on and was implied by the other. One point of their crossing was his sense of the nature of human language; what language was and could be, what it was not and could never be. In 1930, early in his work, Fuller took up the problem of language in a series of articles. Toward the end of his time he republished this initial ground-establishing effort as the little book we now have, Legal Fictions, …

Writing And Reading In Philosophy, Law, And Poetry, James Boyd White

Book Chapters

In this paper I will treat a very general question, the nature of writing and what can be achieved by it, pursuing it in the three distinct contexts provided by philosophy, law, and poetry.

My starting-point will be Plato's Phaedrus, where, in a wellknown passage, Socrates attacks writing itself: he says that true philosophy requires the living engagement of mind with mind of a kind that writing cannot attain. Yet this is obviously a paradox, for Socrates' position is articulated and recorded by Plato in writing. How then can we make sense of what Plato is saying and doing? What …

The Richness Of Contract Theory, Randy E. Barnett

Michigan Law Review

When I teach the doctrine of good faith performance, I assign an exchange between two distinguished contracts scholars, Robert Summers and Steven Burton, that has come to be known as the "Summers-Burton" debate. This debate is interesting not only for the contrasting views of its protagonists concerning the doctrine of good faith, but also because of the generational shift in modes of scholarship it represents. In the 1950s and 1960s, contracts scholars, like so many others, rejected so-called "conceptualist" or "formalist" approaches that attempted to dictate the outcome of cases with general concepts and rules. Contracts scholarship was dominated by …

Apparently Substantial, Oddly Hollow: The Enigmatic Practice Of Justice, Heidi Li Feldman

Michigan Law Review

The Practice of Justice: A Theory of Lawyers' Ethics, by William H. Simon, is one of the most thoughtful and important books in legal theory - not just legal ethics - published in the past ten years. Like David Luban's seminal contribution to legal ethics, Lawyers and Justice: An Ethical Study, published a decade ago, Simon's book is a deliberate rival to accounts of lawyers' professional responsibility that begin with a command to zealous advocacy, end with a prohibition on outright illegal conduct, and offer nothing in between. Authors and commentators have grown increasingly dissatisfied with this as the basic …

Direct Democracy In America, Sherman J. Clark

Michigan Law Review

The phrase "laboratories of democracy," as applied to the states, seems most often to mean something more like "democratic laboratories" - democratic testing grounds for various approaches to social problems. What sort of welfare reform will be most effective? Let Wisconsin try out Plan A, while Michigan experiments with Plan B. What combination of tort liability rules will achieve desired levels of compensation and deterrence? Let the states experiment with strict liability, comparative negligence, or various nofault schemes. It is also true, however, that the states are literally laboratories of democracy - arenas in which democratic institutions are themselves experimented …