Law Commons^™

Improving Employer Accountability In A World Of Private Dispute Resolution, Hope Brinn

Michigan Law Review

Private litigation is the primary enforcement mechanism for employment discrimination laws like Title VII, the Americans with Disabilities Act, and many related state statutes. But the expansion of extrajudicial dispute resolution—including both arbitration and prelitigation settlement agreements—has compromised this means of enforcement. This Note argues that state-enacted qui tam laws can revitalize the enforcement capacity of private litigation and provides a roadmap for enacting such legislation.

Criminal Justice And The Mattering Of Lives, Deborah Tuerkheimer

Michigan Law Review

A review of James Forman Jr., Locking Up Our Own: Crime and Punishment in Black America.

Neither Limited Nor Simplified: A Proposal For Reform Of Illinois Supreme Court Rule 222(B), Michael S. Smith

Michigan Law Review

A limited and simplified discovery system should broaden access to courts, resolve disputes quickly, and expedite relief to injured parties. It should not incentivize procedural gamesmanship or increase the system’s complexity. Regrettably, Illinois’s “limited and simplified” discovery system does both. The initiation procedure for the simplified system, Rule 222(b), creates procedural traps and perverse incentives for both plaintiffs and defendants, and conflicting appellate interpretations of the Rule intensify the problem. This Note examines the flaws underlying the current simplified discovery scheme and argues for reform. It examines simplified discovery schemes in other states to recommend a new system for initiating …

Criminal Infliction Of Emotional Distress, Avlana K. Eisenberg

Michigan Law Review

This Article identifies and critiques a trend to criminalize the infliction of emotional harm independent of any physical injury or threat. The Article defines a new category of criminal infliction of emotional distress (“CIED”) statutes, which include laws designed to combat behaviors such as harassing, stalking, and bullying. In contrast to tort liability for emotional harm, which is cabined by statutes and the common law, CIED statutes allow states to regulate and punish the infliction of emotional harm in an increasingly expansive way. In assessing harm and devising punishment, the law has always taken nonphysical harm seriously, but traditionally it …

Rethinking The Timing Of Capital Clemency , Adam M. Gershowitz

Michigan Law Review

This Article reviews every capital clemency over the last four decades. It demonstrates that in the majority of cases, the reason for commutation was known at the conclusion of direct appeals—years or even decades before the habeas process ended. Yet when governors or pardon boards actually commuted the death sentences, they typically waited until the eve of execution, with only days or hours to spare. Leaving clemency until the last minute sometimes leads to many years of unnecessary state and federal habeas corpus litigation, and this Article documents nearly 300 years of wasted habeas corpus review. Additionally, last-minute commutations harm …

A Comprehensive Administrative Solution To The Armed Career Criminal Act Debacle , Avi M. Kupfer

Michigan Law Review

For thirty years, the Armed Career Criminal Act (“ACCA”) has imposed a fifteen-year mandatory minimum sentence on those people convicted as felons in possession of a firearm or ammunition who have three prior convictions for a violent felony or serious drug offense. Debate about the law has existed mainly within a larger discussion on the normative value of mandatory minimums. Assuming that the ACCA endures, however, administering it will continue to be a challenge. The approach that courts use to determine whether past convictions qualify as ACCA predicate offenses creates ex ante uncertainty and the potential for intercourt disparities. Furthermore, …

Inside Agency Preemption, Catherine M. Sharkey

Michigan Law Review

A subtle shift has taken place in the mechanics of preemption, the doctrine that determines when federal law displaces state law. In the past, Congress was the leading actor, and courts and commentators focused almost exclusively on the precise wording of its statutory directives as a clue to its intent to displace state law. Federal agencies were, if not ignored, certainly no more than supporting players. But the twenty-first century has witnessed a role reversal. Federal agencies now play the dominant role in statutory interpretation. The U.S. Supreme Court has recognized the ascendancy of federal agencies in preemption disputes-an ascendancy …

Coercion's Common Threads: Addressing Vagueness In The Federal Criminal Prohibitions On Torture By Looking To State Domestic Violence Laws, Sarah H. St. Vincent

Michigan Law Review

Under international law, the United States is obligated to criminalize acts of torture and cruel, inhuman, or degrading treatment. However, the federal criminal torture laws employ several terms whose meanings are so indeterminate that they inhibit the statutes' effectiveness and fail to provide adequate guidance regarding precisely which forms of mistreatment may result in prosecution. These ambiguous terms have given rise to serious and prolonged controversies within the executive branch regarding what torture is-controversies that confirm, and may further compound, the uncertainty of liability under the laws in question.

In order to solve this problem of vagueness and provide definitive …

Voter Identification, Spencer Overton

Michigan Law Review

In the wake of closely contested elections, calls for laws that require voters to present photo identification as a condition to cast a ballot have become pervasive. Advocates tend to rely on two rhetorical devices: (1) anecdotes about a couple of elections tainted by voter fraud; and (2) "common sense" arguments that voters should produce photo identification because identification is required to board airplanes, buy alcohol, and engage in other activities. This Article explains the analytical shortcomings of anecdote, analogy, and intuition, and applies a cost-benefit approach generally overlooked in election law scholarship. Rather than rushing to impose a photo-identification …

Police And Thieves, Rosanna Cavallaro

Michigan Law Review

What is it about New York City that has, in the last few years, spawned a series of books attacking the criminal justice system and describing a community in which victims' needs are compelling while the rights of the accused are an impediment to justice? Why does this apocalyptic vision of the system persist, despite statistics demonstrating the sharpest decline in the city's and the nation's crime rates in decades? What explains the acute detachment from the accused that is at the core of this series of books? In Virtual Justice: The Flawed Prosecution of Crime in America, Richard Uviller …

On The Need For A Uniform Choice Of Law Code, Larry Kramer

Michigan Law Review

At first blush, the notion of a uniform choice of law code seems almost paradoxical. After all, the primary mission of the National Conference of Commissioners on Uniform State Laws (NCCUSL) is to promote uniformity in the law, while choice of law exists only because laws are not uniform. To be sure, the Constitution of the NCCUSL limits the organization's objective to promoting uniformity "where uniformity is desirable and practicable," which leaves plenty of room for different laws and hence for choice of law. But even so, one would expect the Commissioners to devote their limited resources to reducing the …

Interpreting Codes, Bruce W. Frier

Michigan Law Review

Large systematically codified bodies of law, such as the European codes or the UCC, gradually effect, or at least encourage, a different kind of legal culture, in which, as such codes are integrated within a national legal heritage, general clauses and principles become more salient within an expanded interpretive community. Because of the open texture of their rules, codes foster an altered legal posture; ancient judicial vigilance against the intrusive legislation may give way to a new ethos of cooperation in the development of law. To be sure, it remains uncertain whether the resulting law will be, in fact, "better," …

Discretion, Rules, And Law: Child Custody And The Umda's Best-Interest Standard, Carl E. Schneider

Michigan Law Review

One barrier facing any attempt to devise a uniform law for diverse jurisdictions is the occasional - perhaps even frequent - difficulty of writing rules that will accurately guide judges. The law's ordinary solution to that difficulty is to give judges some measure of discretion. This article inquires into the nature and legitimacy of that technique. It does so by analyzing a particularly controversial provision of the Uniform Marriage and Divorce Act (UMDA). Section 402 of that Act states: "The court shall determine custody in accordance with the best interest of the child." It then instructs the court to "consider …

Misreading The Williams Act, Lyman Johnson, David Millon

Michigan Law Review

This Article examines the emerging controversy over preemption of the most potent of recent antitakeover laws, the so-called business combination statutes recently passed by Delaware, New York, and other states, and Pennsylvania's director-approval statute. After examining the strategy employed by the states to shield these statutes from constitutional attack, we consider the issues raised by the preemption claim and the arguments currently being advanced by the SEC and others in favor of preemption. Resolving the preemption controversy requires inquiry into the original meaning and objectives of the Williams Act. We argue that this should involve attention not only to the …

The Promise Of State Takeover Statutes, Richard A. Booth

Michigan Law Review

The purpose of this article is, first, to describe the problems associated with two-tier tender offers and the closely related, and perhaps still more coercive, partial tender offer. Second, the article will address the natural question why such offers have not already been banned, suggesting a better view of what coercion means in the context of a tender offer. Third, the article will offer a management-oriented view of coercion, explaining the legitimate interests of managers (and other groups) in resisting takeovers, as well as how greenmail and poison pills, though subject to abuse, can be used quite properly to combat …

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 …

Recent Developments In The Struggle For Probate Reform, Richard V. Wellman

Michigan Law Review

The two Als being honored by this issue have honored me with years of precious friendship and many words a!!-d acts of support and encouragement. In return, they and their friends and others who may peruse these pages prepared as they near retirement really deserve better reading than can be expected of an article that wallows in the dreadful details of legislation dealing with probate procedure. Conard and Smith are old hands when it comes to efforts at improvement of law and legal institutions. They know better than to immerse themselves deeply in a piece like the one that follows, …

The Case Against Living Probate, Mary Louise Fellows

Michigan Law Review

This Article presents the case against living probate in hopes of preventing a reform that was appropriately discarded a century ago. Part I describes the various living probate proposals, highlighting their similarities, differences, and procedural complexities, and the benefits they seek to realize. Part II lays out four failings of living probate that call the desirability of this reform into question. Finally, in Part III, I propose an alternative reform which concentrates on the underlying problem inspiring living probate proposals - the expense and uncertainty of a mental capacity requirement for executing a valid will.

Living Probate: The Conservatorship Model, John H. Langbein

Michigan Law Review

The main purpose of the present Article is to suggest a somewhat different theoretical and practical approach to structuring the living probate procedure. I shall characterize the procedure called for in the North Dakota act and in similar proposals as the Contest Model of living probate, in distinction to a Conservatorship Model that I shall advocate to be the better way. Part I of this Article reviews briefly the problem to which living probate is addressed and the alternatives that can presently be employed to forestall post-mortem capacity litigation in the absence of a living probate system. In Part TI …

Consumer Protection In Michigan: Current Methods And Some Proposals For Reform, Michigan Law Review

Michigan Law Review

During the past decade, a great deal of effort has been expended at all levels of government in the United States to enhance the prosperity of the poor and underprivileged elements of society. Much legislation has been passed-especially at the federal level--but it has been incomplete in that its main thrust has been simply to increase the income levels of poor people without a corresponding effort to ensure that they receive their money's worth as consumers. As a result, the long-standing evil of fraud in the market place has not been significantly reduced, but has contributed to the serious economic …

Workmen's Compensation--Encouraging Employment Of The Handicapped In Michigan: A Proposal For Revision Of The Michigan Second Injury Fund, Michigan Law Review

Michigan Law Review

Employment of the handicapped is clearly a proper concern of the state. Unemployed, such a person is a burden on his family and on the state; welfare and relief payments to such a person needlessly increase costs to both the state and local governments supporting such programs. Employed, the handicapped person is a self-supporting, stable member of the community; he becomes a taxpayer rather than a tax consumer. There are also important moral and social considerations which may be simply summarized stating that no person who is able to work should be needlessly denied employment. In short, any continued waste …

Michigan's Adoption Of Uniform State Legislation, George W. Bates

Michigan Law Review

The commissioners on Uniform State Laws have just filed their fourth Biennial Report to the Legislature of Michigan. This Conference is a body composed of representatives of each State, Territory and Federal possession, who meet in annual conference under a permanent organization commonly designated the Commissioners on Uniform State Laws. The twenty-sixth annual meeting was held in Chicago last August. The commissioners consist very largely of lawyers and judges of standing and experience and of law teachers from some of the principal law schools. There are usually three representatives from each State or Territory, appointed for terms of three to …

Direct Primary Legislation In Michigan, Arthur C. Millspaugh

Michigan Law Review

The first local direct nomination law in Michigan was passed ir 1901; the first general law in 1905. The public opinion, however, which looked to the abolition of the convention system of nomination, rather than to its legal regulation, had its inception as early as 1894. The unusually objectionable primaries of that year led to a pronounced but unorganized agitation for reform, in the course of which a few of the most radical proposed to abolish absolutely all conventions.1 The legislature of 1895 contented itself, however, with attempting the regulation of primaries and conventions, leaving most of the nominating machinery …