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Full-Text Articles in Law

Is Turn About Fair Play? Copyright Law And The Fair Use Of Computer Software Loaded Into Ram, Chad G. Asarch Dec 1996

Is Turn About Fair Play? Copyright Law And The Fair Use Of Computer Software Loaded Into Ram, Chad G. Asarch

Michigan Law Review

Computer systems, especially those in heavy-use commercial settings, often require routine maintenance to continue functioning properly. Many businesses turn to an independent service organization ("IS0") to provide computer maintenance services because ISOs frequently charge less than the original equipment manufacturer ("OEM") for those services. The tremendous growth in computer use has spawned a multi-billion dollar computer maintenance industry in the United States, and ISOs and OEMs have become engaged in fierce competition for this computer service business. The struggle between ISOs and OEMs to capture this expanding market has spilled over into the courts, spawning a number of recent decisions ...


Revitalizing Environmental Federalism, Daniel C. Esty Dec 1996

Revitalizing Environmental Federalism, Daniel C. Esty

Michigan Law Review

Politicians from Speaker Newt Gingrich to President Bill Clinton, cheered on by academics such as Richard Revesz, are eagerly seeking to return authority over environmental regulation to the states. In the European Union, localist opponents of environmental decisionmaking in Brussels rally under the banner of "subsidiarity." And in debates over international trade liberalization, demands abound for the protection of "national sovereignty" in environmental regulation. All of these efforts presume that a decentralized approach to environmental policy will yield better results than more centralized programs. This presumption is misguided. While the character of some environmental concerns warrants a preference for local ...


Recent Books, Michigan Law Review Dec 1996

Recent Books, Michigan Law Review

Michigan Law Review

A list of books recenlty received by Michigan Law Review.


A More Sensible Approach To Regulating Independent Expenditures: Defending The Constitutionality Of The Fed's New Express Advocacy Standard, Michael D. Leffel Dec 1996

A More Sensible Approach To Regulating Independent Expenditures: Defending The Constitutionality Of The Fed's New Express Advocacy Standard, Michael D. Leffel

Michigan Law Review

Campaign finance reformers argue that the "unholy alliance of private money and public elections" has created "a crisis of confidence in our elected officials." The now-deceased campaign reform advocate Philip M. Stem summed up the role of money in campaigns this way: "[M]oney-power has replaced people-power as the driving force in American politics and the determinant of electoral victory." One form of "money-power" in elections that received a great deal of attention in the last election cycle was "independent expenditures." Independent expenditures are funds spent by interested individuals or groups - usually in the form of television or radio advertisements ...


A Theory Of Insurance Policy Interpretation, Kenneth S. Abraham Dec 1996

A Theory Of Insurance Policy Interpretation, Kenneth S. Abraham

Michigan Law Review

The first principle of insurance law is captured by the maxim contra proferentem, which directs that ambiguities in a contract be interpreted "against the drafter," who is almost always the insurer. Yet given the modern recognition that language is an inherently imperfect instrument for communicating meaning, insurance policy provisions are in a sense always ambiguous. Moreover, in addition to contra proferentem, policyholders may invoke such allied doctrines as waiver, estoppel, and the rule that the reasonable expectations of the insured should be honored even if those expectations are unambiguously contradicted by fine-print provisions in the policy. Contra proferentem and these ...


Recent Books, Michigan Law Review Nov 1996

Recent Books, Michigan Law Review

Michigan Law Review

A list of books recenlty received by Michigan Law Review.


The Limited Liability Company: A Catalyst Exposing The Corporate Integration Question, Susan Pace Hamill Nov 1996

The Limited Liability Company: A Catalyst Exposing The Corporate Integration Question, Susan Pace Hamill

Michigan Law Review

The rise of the domestic limited liability company (LLC) from obscurity to its present position as a viable, mainstream alternative to the corporation or partnership was met with enormous enthusiasm by the business community and the practicing bar. First introduced by the State of Wyoming in 1977 and recognized by the Internal Revenue Service (IRS) as a partnership for federal income tax purposes in 1988, the LLC offers for the first time a domestic entity that combines the tax advantages of a partnership with limited liability protection for all members, an advantage commonly associated with corporations. The advantages of the ...


The First Amendment Comes Of Age: The Emergence Of Free Speech In Twentieth-Century America, G. Edward White Nov 1996

The First Amendment Comes Of Age: The Emergence Of Free Speech In Twentieth-Century America, G. Edward White

Michigan Law Review

As the number of issues perceived as having First Amendment implications continues to grow, and the coterie of potential beneficiaries of First Amendment protection continues to widen - including not only the traditional oppressed mavericks and despised dissenters but some rich and powerful members from the circles of political and economic orthodoxy - alarms have been sounded. Another period of stocktaking for free speech theory appears to be dawning, and some recent commentators have proposed a retrenchment from the long twentieth- century progression of increasingly speech-protective interpretations of the First Amendment. At the heart of the retrenchment literature lies the belief that ...


Determining Ripeness Of Substantive Due Process Claims Brought By Landowners Against Local Governments, David S. Mendel Nov 1996

Determining Ripeness Of Substantive Due Process Claims Brought By Landowners Against Local Governments, David S. Mendel

Michigan Law Review

Landowners who sustain economic harm from arbitrary and capricious applications of land use regulations may sue the local government entities responsible for applying those regulations under 42 U.S.C. ยง 1983, alleging that the local government entities deprived them of substantive due process in violation of the Fourteenth Amendment. A landowner who brings this claim - an "as-applied arbitrary and capricious substantive due process" claim - may in appropriate cases seek declaratory and injunctive relief, damages, and attorney's fees. Despite controversy among courts and commentators over both the definition of property interests protected by the Due Process Clause and the standard ...


Congressional Ethics And Constitutent Advocacy In An Age Of Mistrust, Ronald M. Levin Oct 1996

Congressional Ethics And Constitutent Advocacy In An Age Of Mistrust, Ronald M. Levin

Michigan Law Review

Like lawyer-bashing, Congress-bashing seems never to go out of style. As every newspaper reader knows, and as public opinion surveys confinn, the public's regard for the legislative branch has been discouragingly low for years. One of the incidents that has done most to fuel this mood is the Keating Five affair. The Senate Ethics Committee's decision in the Keating case, which has been called "the ultimate metaphor for political corruption," provides a fitting prologue for this article's theme: the ethical dimensions of intervention by members of Congress into administrative agency proceedings.


The Politics Of Postmodern Jurisprudence, Stephen M. Feldman Oct 1996

The Politics Of Postmodern Jurisprudence, Stephen M. Feldman

Michigan Law Review

What is the politics of postmodern jurisprudence? Forms of postmodern interpretivism, including philosophical hermeneutics and deconstruction, assert that we are always and already interpreting. This assertion has provoked numerous scholarly attacks, many of which invoke standard modernist hobgoblins such as textual indeterminacy, solipsism, ethical relativism, and nihilism. From the modernist standpoint, postmodern jurisprudence thus is either conservative or apolitical because it lacks the firm foundations necessary for knowledge and critique. In this article, I argue that these modernist attacks not only are mistaken but that they also obscure the potentially radical political ramifications of postmodern interpretivism. My discussion focuses on ...


Attainder And Amendment 2: Romer's Rightness, Akhil Reed Amar Oct 1996

Attainder And Amendment 2: Romer's Rightness, Akhil Reed Amar

Michigan Law Review

Call me silly. In fact, call me terminally silly. For despite Justice Scalia's remarkably confident claim, I believe, and shall try to prove below, that the Romer Court majority opinion invalidating Colorado's Amendment 2 was right both in form and in substance, both logically and sociologically. I stress "form" and "logic" at the outset because I share Justice Scalia's belief in the importance of these things in constitutional adjudication. I also share his commitment to constitutional text, history, and structure, and his suspicion of "free-form" constitutionalism. And so I shall highlight the text, history, and spirit of ...


Antitrust Balancing In A (Near) Coasean World: The Case Of Franchise Tying Contracts, Alan J. Meese Oct 1996

Antitrust Balancing In A (Near) Coasean World: The Case Of Franchise Tying Contracts, Alan J. Meese

Michigan Law Review

Antitrust law has largely succumbed to the hegemony of balancing. Courts applying the rule of reason are told to balance a restraint's procompetitive effects against its anticompetitive impact. Mergers once deemed anticompetitive solely because they facilitated the exercise of market power are now evaluated by weighing the anticompetitive effects of such increased power against any efficiencies created by the transaction. Finally, some activities once deemed per se illegal are now subject to a balancing approach, either by explicit application of the rule of reason, or by recognition of certain affirmative defenses to otherwise per se violations. Unlike many other ...


Recent Books, Michigan Law Review Oct 1996

Recent Books, Michigan Law Review

Michigan Law Review

A list of books recenlty received by Michigan Law Review.


Is Amendment 2 Really A Bill Of Attainder? Some Questions About Professor Amar's Analysis Of Romer, Roderick M. Hills Jr. Oct 1996

Is Amendment 2 Really A Bill Of Attainder? Some Questions About Professor Amar's Analysis Of Romer, Roderick M. Hills Jr.

Michigan Law Review

As I first discovered as a law student in Professor Amar's classes on legal history and federal courts, it is generally an intellectual treat to listen to Professor Amar's legal analysis, even when he is attacking one's own arguments. So my pleasure at reading Professor Amar's analysis of the Court's decision in Romer v. Evans was only partly dampened by his disapproval of the respondents' brief that I and other plaintiffs' counsel filed with the Court. According to Amar, this respondents' brief provided the Court with "so little help" that it had to rely on ...


Securing Russia's Future: A Plea For Reform In Russian Secured Transactions Law, Jason J. Kilborn Oct 1996

Securing Russia's Future: A Plea For Reform In Russian Secured Transactions Law, Jason J. Kilborn

Michigan Law Review

After many turbulent years of uneasy transition to a market economy, Russia is finally "open for business." Nonetheless, the transitional period remains far from over, and Russian enterprises are still starved for capital that they desperately need for retooling to convert from military to consumer production, for acquiring new equipment to replace old and worn machinery, and for undertaking new and lucrative projects. While Russian financial institutions may provide significant funding, their reserves are limited; they could not hope to finance independently the multitude of existing and potential enterprises within the expansive Russian territory. Therefore, much of the financing for ...


Counter-Revolution In Constitutional Criminal Procedure? Two Audiences, Two Answers, Carol S. Steiker Aug 1996

Counter-Revolution In Constitutional Criminal Procedure? Two Audiences, Two Answers, Carol S. Steiker

Michigan Law Review

For the purposes of my argument, I adapt Professor Meir Dan-Cohen's distinction (which he in turn borrowed from Jeremy Bentham) between "conduct" rules and "decision" rules. Bentham and Dan-Cohen make this distinction in the context of substantive criminal law; for their purposes, "conduct" rules are addressed to the general public in order to guide its behavior (for example, "Let no person steal") and "decision" rules are addressed to public officials in order to guide their decisionmaking about the consequences of violating conduct rules (for example, "Let the judge cause whoever is convicted of stealing to be hanged"). But as ...


Recent Books, Michigan Law Review Aug 1996

Recent Books, Michigan Law Review

Michigan Law Review

A list of Books received by Michigan Law Review.


A Tribute To Jerry Israel: A Friend With A Messy Office, Debra Ann Livingston Aug 1996

A Tribute To Jerry Israel: A Friend With A Messy Office, Debra Ann Livingston

Michigan Law Review

A Tribute to Jerry Israel


A Tribute To Professor Jerold Israel--My Teacher, My Co-Author, My Good Friend, Paul D. Borman Aug 1996

A Tribute To Professor Jerold Israel--My Teacher, My Co-Author, My Good Friend, Paul D. Borman

Michigan Law Review

A Tribute to Jerry Israel


Juror Delinquency In Criminal Trials In America, 1796-1996, Nancy J. King Aug 1996

Juror Delinquency In Criminal Trials In America, 1796-1996, Nancy J. King

Michigan Law Review

This article examines two aspects of the jury system that have attracted far less attention from scholars than from the popular press: avoidance of jury duty by some citizens, and misconduct while serving by others. Contemporary reports of juror shortages and jury dodging portray a system in crisis. Coverage of recent high-profile cases suggests that misconduct by jurors who do serve is common. In the trial of Damian Williams and Henry Watson for the beating of Reginald Denny, a juror was kicked off for failing to deliberate; Exxon, Charles Keating, and the man accused of murdering Michael Jordan's father ...


Random Thoughts By A Distant Collaborator, Wayne R. Lafave Aug 1996

Random Thoughts By A Distant Collaborator, Wayne R. Lafave

Michigan Law Review

A Tribute to Jerry Israel


Computers, Urinals, And The Fourth Amendment: Confessions Of A Patron Saint, Wayne R. Lafave Aug 1996

Computers, Urinals, And The Fourth Amendment: Confessions Of A Patron Saint, Wayne R. Lafave

Michigan Law Review

At least the title indicates that the article is somehow concerned with "the Fourth Amendment," though for anyone who knows me or is at all familiar with my work, that piece of information hardly would come as a revelation. The fact of the matter is that I almost always write about the Fourth Amendment; I am in an academic rut so deep as to deserve recognition in the Guinness Book World of Records. Search and seizure has been my cheval de bataille during my entire time as a law professor and even when I was a mere law student. And ...


The Limits Of Legal Language: Decisionmaking In Capital Cases, Jordan M. Steiker Aug 1996

The Limits Of Legal Language: Decisionmaking In Capital Cases, Jordan M. Steiker

Michigan Law Review

To make the case for the proposed changes, I will first describe briefly in Parts I and II the structure of pre- and post-Furman capital decisiorurtaking and the weaknesses of those approaches. I then will set forth in Part III the specific rationales for each proposed reform.

The scheme I propose raises a significant constitutional question. Can the death penalty be retained as a punishment if we abandon the pretense of providing meaningful guidance through detailed sentencing instructions? Would the reestablishment of relatively unstructured penalty phase deliberations similar to, but also importantly different from, those characteristic of pre-Furman ...


Tribute To Jerry Israel, Jeffrey S. Lehman Aug 1996

Tribute To Jerry Israel, Jeffrey S. Lehman

Michigan Law Review

A Tribute to Jerry Israel


A Peculiar Privilege In Historical Perspective: The Right To Remain Silent, Albert W. Alschuler Aug 1996

A Peculiar Privilege In Historical Perspective: The Right To Remain Silent, Albert W. Alschuler

Michigan Law Review

Supreme Court decisions have vacillated between two incompatible readings of the Fifth Amendment guarantee that no person "shall be compelled in any criminal case to be a witness against himself." The Court sometimes sees this language as affording defendants and suspects a right to remain silent. This interpretation - a view that countless repetitions of the Miranda warnings have impressed upon the public - asserts that government officials have no legitimate claim to testimonial evidence tending to incriminate the person who possesses it. Although officials need not encourage a suspect to remain silent, they must remain at least neutral toward her decision ...


The First Amendment Status Of Commercial Speech: Why The Fcc Regulations Implementing The Telephone Consumer Protection Act Of 1991 Are Unconstitutional, Deborah L. Hamilton Jun 1996

The First Amendment Status Of Commercial Speech: Why The Fcc Regulations Implementing The Telephone Consumer Protection Act Of 1991 Are Unconstitutional, Deborah L. Hamilton

Michigan Law Review

This Note considers the constitutionality of the FCC's regulations implementing the no-recorded-message provision of the 1991 TCPA and concludes that they violate the First Amendment because they impermissibly distinguish between commercial and noncommercial speech. Part I explains the structure of the FCC's recorded-message regulations and demonstrates that the regulations explicitly distinguish commercial recorded messages from other recorded messages. Part II examines First Amendment protection for commercial speech in light of three 1993 Supreme Court decisions that restructured commercial speech doctrine by holding that the government can single out commercial speech for regulation only in response to a distinct ...


Positivism And The Separation Of Law And Economics, Avery Wiener Katz Jun 1996

Positivism And The Separation Of Law And Economics, Avery Wiener Katz

Michigan Law Review

The goal of this essay is to explain this problem and to translate the meaning of positivism between legal and economic cultures, in order to show economists and lawyers why much of the debate about the jurisprudential merits of law and economics misses the mark. My thesis is that it is positivism, and the way economic culture treats the positive-normative distinction, that is responsible for much of the gulf between law and economics - but that it is also positivism that makes economics so appealing to so many lawyers and legal scholars. For a positivist approach can be useful to lawyers ...


Children Of A Lesser God: Gdr Lawyers In Post-Socialist Germany, Inga Markovits Jun 1996

Children Of A Lesser God: Gdr Lawyers In Post-Socialist Germany, Inga Markovits

Michigan Law Review

In this essay, I want to investigate German vetting policies by looking at one particular subgroup of examinees: GDR lawyers. In Germany, no other former socialist elite has been submitted to so thorough an ideological cleansing process as the legal profession. After reunification, all GDR judges and prosecutors hoping to remain in office had to undergo investigations that by March 1994 had left only 9.2% of their former numbers in permanent positions. Virtually all East German law professors were removed from their university posts. More than 5000 attorneys in Germany's eastern half are currently being examined for former ...


Recent Books, Michigan Law Review Jun 1996

Recent Books, Michigan Law Review

Michigan Law Review

A List of Books Received by Michigan Law Review.