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Full-Text Articles in Law

Brown And Lawrence (And Goodridge), Michael J. Klarman Dec 2005

Brown And Lawrence (And Goodridge), Michael J. Klarman

Michigan Law Review

One year shy of the fiftieth anniversary of Brown v. Board of Education, the Justices issued another equality ruling that is likely to become a historical landmark. In Lawrence v. Texas, the Court invalidated a state law that criminalized same-sex sodomy. This article contrasts these historic rulings along several dimensions, with the aim of shedding light on how Supreme Court Justices decide cases and how Court decisions influence social reform movements. Part I juxtaposes Brown and Lawrence to illustrate how judicial decisionmaking often involves an uneasy reconciliation of traditional legal sources with broader social and political mores and the personal ...


Opting Out Of Liability: The Forthcoming, Near-Total Demise Of The Modern Class Action, Myriam Gilles Dec 2005

Opting Out Of Liability: The Forthcoming, Near-Total Demise Of The Modern Class Action, Myriam Gilles

Michigan Law Review

It is reasonable to expect that courts will demonstrate great solicitude for the recent innovation that I term "collective action waivers" - i.e., contractual provisions contained within arbitration agreements whereby consumers and others waive their rights to participate in any form of collective litigation or class arbitration. The history of mass tort class actions and the hegemonic expansion of pro-arbitration jurisprudence compel this conclusion. And, as the now-dominant economic model of contract law has moved the focus of courts from the value of consent to the value of efficiency, arbitration agreements found in all manner of shrink-wrap, scroll-text and bill-stuffer ...


What's So Great About Nothing? The Gnu General Public License And The Zero-Price-Fixing Problem, Heidi S. Bond Dec 2005

What's So Great About Nothing? The Gnu General Public License And The Zero-Price-Fixing Problem, Heidi S. Bond

Michigan Law Review

In 1991, Linus Torvalds released the first version of the Linux operating system. Like many other beneficiaries of the subsequent dot-com boom, Torvalds worked on a limited budget. Clad in a bathrobe, clattering away on a computer purchased on credit, subsisting on a diet of pretzels and dry pasta, hiding in a tiny room that was outfitted with thick black shades designed to block out Finland's summer sun, Torvalds programmed Linux. Like some other beneficiaries of the subsequent dot-com boom, Torvalds created a product that is now used by millions. He owns stock options worth seven figures. Computer industry ...


Expanding Forfeiture Without Sacrificing Confrontation After Crawford, Joshua Deahl Dec 2005

Expanding Forfeiture Without Sacrificing Confrontation After Crawford, Joshua Deahl

Michigan Law Review

The central holding of Crawford v. Washington is fairly straightforward: The Confrontation Clause bars the admission of out-of-court testimonial statements unless the defendant had a prior opportunity to cross-examine the witness. Crawford, however, has an often overlooked caveat. In renouncing numerous exceptions to the confrontation right, the Court rejected only those that purport to test the reliability of testimonial statements. It left equitable exceptions undisturbed. As the Court pointed out, "[T]he rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds." The parameters of the rule of forfeiture are a matter of some dispute ...


Putting Religious Symbolism In Context: A Linguistic Critique Of The Endorsement Test, B. Jessie Hill Dec 2005

Putting Religious Symbolism In Context: A Linguistic Critique Of The Endorsement Test, B. Jessie Hill

Michigan Law Review

The treatment of Establishment Clause challenges to displays of religious symbolism by the Supreme Court and the lower courts is notoriously unpredictable: a crèche is constitutionally acceptable if it is accompanied by a Santa Claus house and reindeer, a Christmas tree, and various circus figures, but unacceptable if it is accompanied by poinsettias, a "peace tree," or a wreath, a tree, and a plastic Santa Claus. A menorah may be displayed next to a Christmas tree, or next to Kwanzaa symbols, Santa Claus, and Frosty the Snowman, but not next to a crèche and a Christmas tree. A number of ...


The Toll For Traveling Students: Durational-Residence Requirements For In-State Tuition After Saenz V. Roe, Douglas R. Chartier Dec 2005

The Toll For Traveling Students: Durational-Residence Requirements For In-State Tuition After Saenz V. Roe, Douglas R. Chartier

Michigan Law Review

After the excitement of getting into the college of her choice wears off, a student may soon wonder how she will pay for her newfound prize. Though higher education is almost always a sound investment given its potentially tremendous return and importance in getting a good job, the cost is daunting- sometimes even prohibitive-for many students. Public undergraduate and graduate schools are an attractive option for many students because of lower tuitions. Yet state universities deny many students the full measure of this benefit. Public universities usually charge significantly higher tuition rates to out-of-state students than in-state students. A nonresident ...


Tribute To John Pickering, Ruth Bader Ginsburg Nov 2005

Tribute To John Pickering, Ruth Bader Ginsburg

Michigan Law Review

John Pickering was a grand human whose life is just cause for celebration. He taught constantly, through his own work and deeds, how lawyers in private practice can contribute hugely to the public good. John's dear friend, my revered D.C. Circuit colleague, Carl McGowan, spoke of the lawyer of technical competence content to be a working mason. The best of lawyers, Judge McGowan said, serve as architects, planners, builders in law. Along with high technical competence, the best of lawyers have a deep understanding of the nature and purposes of the law, which makes them wise and reliable ...


Uncertainty And Informed Choice: Unmasking Daubert, Margaret A. Berger, Aaron D. Twerski Nov 2005

Uncertainty And Informed Choice: Unmasking Daubert, Margaret A. Berger, Aaron D. Twerski

Michigan Law Review

This Article will first examine why it is that plaintiffs have been unable to prove causation under the Daubert guidelines in toxic tort litigation. Second, it will look at the two existing models for informed choice litigation medical malpractice and products liability-and demonstrate why neither of these models gives toxic tort plaintiffs a fair opportunity to recover for the deprivation of patient autonomy against drug manufacturers who have breached their duty to warn of known or knowable risks. Finally, this Article will explore the elements of a causation-free informed choice cause of action. It will suggest the appropriate standard for ...


Tribute To John Pickering, Louis F. Oberdorfer Nov 2005

Tribute To John Pickering, Louis F. Oberdorfer

Michigan Law Review

John left word that he did not want a lot of eulogies, so there is much I could say about him that I do not because I honor his request.


Tribute To John Pickering, Esther Lardent Nov 2005

Tribute To John Pickering, Esther Lardent

Michigan Law Review

I want to talk to you about the lessons that so many of us have learned from John, and the qualities that made him so memorable and so extraordinary. The first was his unerring ability to know what was right. Now, many of us want to do right, but John always knew what the right thing was. Despite growing up in a time and place where women and people of color were not valued, where the homeless, the despised, the poor, and the disadvantaged were not considered worthy, John cared deeply about doing right by all of these people.


Tribute To John Pickering, John Payton Nov 2005

Tribute To John Pickering, John Payton

Michigan Law Review

I want to reflect on what we have heard here today, and over the course of the last several weeks, about John Pickering. We have heard simply remarkable things about a remarkable man of consequence. He was not just a remarkable person. He was more than that. He was a remarkable person who did things that actually changed everyone's lives. He mattered. We heard a lot of things today and some of them we heard for the first time. But I do not think that any of us was surprised to hear any of them about John Pickering. We ...


Tribute To John Pickering, William J. Perlstein Nov 2005

Tribute To John Pickering, William J. Perlstein

Michigan Law Review

One of my colleagues asked me soon after John died, "How could someone live to be eighty-nine years old and yet there is no one who had a bad word to say about him?" This is an intriguing question. It is not because John Pickering did not have strongly held views about things. Anyone who ever tangled with John in crafting a brief knew how tenacious he was. John was direct and candid and you knew where he stood on any matter. It is not because John was easygoing. When he saw something that he wanted changed, he did not ...


Deterrence Versus Brutalization: Capital Punishment's Differing Impacts Among States, Joanna M. Shepherd Nov 2005

Deterrence Versus Brutalization: Capital Punishment's Differing Impacts Among States, Joanna M. Shepherd

Michigan Law Review

Policymakers' false beliefs about capital punishment's universal deterrent effect may have caused many people to die needlessly. If deterrence is capital punishment's purpose then, in the majority of states where executions do not deter crime, executions kill convicts uselessly. Moreover, in the many states where the brutalization effect outweighs the deterrent effect, executions not only kill convicts needlessly but also induce the additional murders of many innocent people. After Part II discusses capital punishment's recent history in the United States, Part III reviews the conflict in recent studies on capital punishment and deterrence. Part IV explores differences ...


Tribute To John Pickering, Stanley L. Temko Nov 2005

Tribute To John Pickering, Stanley L. Temko

Michigan Law Review

John was a close friend and a professional colleague of mine for more than fifty years, and he was admired by and very close to a number of members of our firm. Everyone knows his substantial contributions as a lawyer. I will just mention a couple.


Tribute To John Pickering, James Robertson Nov 2005

Tribute To John Pickering, James Robertson

Michigan Law Review

John Pickering was so much involved with both the United States District Court for the District of Columbia and the United States Court of Appeals for the District of Columbia, and with the bar of this city. It would take too long to recite all of the ways in which John supported and helped our Court and the Court of Appeals, but I will note that, in every one of the ten years since I have been on this bench, John has been invited to speak at the Law Clerks Luncheon Series. That is a big deal. The law clerks ...


Tribute To John Pickering, Raymond C. Clevenger Nov 2005

Tribute To John Pickering, Raymond C. Clevenger

Michigan Law Review

This is my homage to John. I ask you to summon up in your imagination today a grand circus, a sort of Cirque du Soleil of lawyers: full of shining talents performing legal feats of wonder, but presided over by a grand ringmaster. This ringmaster knows his performers very well. He knows how to train and stroke them to high achievement. He knows how to groom the younger workers. He can keep his stars in check. He knows when to sit back with a smile, letting his charges perform and claim the applause, even when the applause rightfully belongs to ...


Tribute To John Pickering, Timothy B. Dyk Nov 2005

Tribute To John Pickering, Timothy B. Dyk

Michigan Law Review

It is very appropriate that we are here today to honor John Pickering, who, for more than five decades, was a leading member of our bar. I first met John when I joined the small firm of Wilmer, Cutler & Pickering in 1964, two years after it was founded. The three founding fathers of the firm were formidable figures, particularly to a young lawyer, and John Pickering was no exception. I do not mean that John was unkind. He was the kindest of people. But there was something particularly serious about him, and I always wondered whether that had to do with growing up in the prewar years. He had a demeanor that seemed to preclude coming to work in casual clothes or bantering during the work day or taking the associates out to a local watering spot after work. I remember that John's secretary was known as "Miss Blackney"; there was a formality even about John's secretary.


Tribute To John Pickering, Marcia Greenberger Nov 2005

Tribute To John Pickering, Marcia Greenberger

Michigan Law Review

This room is filled with many women lawyers. All of us loved John Pickering and are in his debt, but we are only a small number of those who do. For many decades, John guided young, and I must admit not so young, women lawyers to positions where they could stand up for their own rights and the rights of others. He worked with us to champion the causes that matter most to women and their families. John used his great stature and the enormous respect that he garnered to open doors for women to leadership positions in the bar ...


Tribute To John Pickering, Elaine R. Jones Nov 2005

Tribute To John Pickering, Elaine R. Jones

Michigan Law Review

This talented, persuasive, committed lawyer-leader, John Pickering, had several abiding personal and professional interests, two of which enhanced my life directly, and most of which enhanced my life indirectly. The first was the great personal interest he took in lawyers younger than himself, and the second was his passion about civil rights and combating the effects of racial discrimination.


Tribute To John Pickering, Noël Anketell Kramer Nov 2005

Tribute To John Pickering, Noël Anketell Kramer

Michigan Law Review

I knew John Pickering from the time that I was a second-year law student- just a few years ago, it seems-when he and Sally Katzen recruited me to join what was then the small firm of Wilmer, Cutler & Pickering. We remained friends thereafter, sharing among other interests an avid loyalty to the University of Michigan.


Private Standards In Public Law: Copyright, Lawmaking And The Case Of Accounting, Lawrence A. Cunningham Nov 2005

Private Standards In Public Law: Copyright, Lawmaking And The Case Of Accounting, Lawrence A. Cunningham

Michigan Law Review

Government increasingly leverages its regulatory function by embodying in law standards that are promulgated and copyrighted by nongovernmental organizations. Departures from such standards expose citizens to criminal, civil, and administrative sanctions, yet private actors generate, control, and limit access to them. Despite governmental ambitions, no one is responsible for evaluating the legitimacy of this approach ex ante and no framework exists to facilitate analysis. This Article contributes an analytical framework and proposes institutional mechanisms to implement it. The lack of a comprehensive framework for evaluating copyright to standards embodied in law is surprising because the range of standards potentially affected ...


A Prudential Exercise: Abstention And The Probate Exception To Federal Diversity Jurisdiction, Christian J. Grostic Oct 2005

A Prudential Exercise: Abstention And The Probate Exception To Federal Diversity Jurisdiction, Christian J. Grostic

Michigan Law Review

Ann-Marie Brege's parents established an irrevocable trust in 1985, with Ann-Marie as sole beneficiary. When Merrill Lynch Trust Co. took over as trustee years later, however, the trust's principal dropped sharply, losing over half its value in just a few years. Ann-Marie sued in Michigan probate court, alleging that Merrill Lynch had violated its legal duties in administering the trust. Since Ann-Marie was from New York and Merrill Lynch had its headquarters in New Jersey, Merrill Lynch had an apparently easy argument for diversity jurisdiction. In an unremarkable turn of events, Merrill Lynch filed a notice of removal ...


The Changing Meaning Of Patent Claim Terms, Mark A. Lemley Oct 2005

The Changing Meaning Of Patent Claim Terms, Mark A. Lemley

Michigan Law Review

The claims of a patent are central to virtually every aspect of patent law. The claims define the scope of the invention, and their meaning therefore determines both whether a defendant's product infringes a patent and whether the patent is valid. One of the most significant aspects of patent litigation is "claim construction," the process of defining the words of the claim in other, theoretically clearer words. Courts construe the claims of the patent by starting with the plain meaning of their terms as they would be understood by a person having ordinary skill in the art, or PHOSITA ...


Signatures Of Ideology: The Case Of The Supreme Court's Criminal Docket, Ward Farnsworth Oct 2005

Signatures Of Ideology: The Case Of The Supreme Court's Criminal Docket, Ward Farnsworth

Michigan Law Review

Everyone suspects that Supreme Court justices' own views of policy play a part in their decisions, but the size and nature of the part is a matter of vague impression and frequent dispute. Do their preferences exert some pressure at the margin or are they better viewed as the mainsprings of decision? The latter claim, identified with legal realism, has been lent some support by political scientists who point out that some justices regularly vote for or against certain kinds of claims (for example, under the Fourth Amendment), or that votes in some areas are broadly predictable according to a ...


The Transformation Of World Trade, Joost Pauwelyn Oct 2005

The Transformation Of World Trade, Joost Pauwelyn

Michigan Law Review

This Article contests the traditional view of the evolution of the world trade system. Rather than a unidirectional process of legalization focused exclusively on the system's normative structure, Part I of the Article, "The Explosion of the GATT Club," recounts the transformation from GATT to WTO as a bidirectional interaction between law and politics; in particular, between the system's legal-normative structure and its political, decision making branch Part II of this Article, "The Threat of a WTO Fortress," challenges the view that a choice must be made between politics and law or, put differently, between, on the one ...


Testing Minimalism: A Reply, Cass R. Sunstein Oct 2005

Testing Minimalism: A Reply, Cass R. Sunstein

Michigan Law Review

Some judges are less ambitious than others; they have minimalist tendencies. Minimalists are unambitious along two dimensions. First, they seek to rule narrowly rather than broadly. In a single case, they do not wish to resolve other, related problems that might have relevant differences. They are willing to live with the costs and burdens of uncertainty, which they tend to prefer to the risks of premature resolution of difficult issues. Second, minimalists seek to rule shallowly rather than deeply, in the sense that they favor arguments that do not take a stand on the foundational debates in law and politics ...


"Electronic Fingerprints": Doing Away With The Conception Of Computer-Generated Records As Hearsay, Adam Wolfson Oct 2005

"Electronic Fingerprints": Doing Away With The Conception Of Computer-Generated Records As Hearsay, Adam Wolfson

Michigan Law Review

One night, in the hours just before daybreak, the computer servers at Acme Corporation's headquarters quietly hum in the silence of the office's darkened hallways. Suddenly, they waken to life and begin haphazardly sifting through their files. Several states away, a hacker sits in his room, searching through the mainframe via an internet connection. His attack is quick-lasting only a short five minutes-but the evidence of invasion is apparent to Acme's IT employees when they come in to work the next morning. Nearly a year later, federal prosecutors bring suit in the federal district court against the ...


The Myth Of Accountability And The Anti-Administrative Impulse, Edward Rubin Aug 2005

The Myth Of Accountability And The Anti-Administrative Impulse, Edward Rubin

Michigan Law Review

The idea of accountability is very much in fashion in legal and political thought these days. To be sure, the term is used in a variety of different ways, but that is the nature of fashion. Colored cloth ponchos may be in fashion this season, for example, but they can be shaped and colored in a variety of different ways. It is differences of this sort that sustain a fashion trend. If the only poncho available were red and square, the fashion trend would display an impressive unity, but it wouldn't last very long. In order to make sales ...


Search And Persuasion In Trademark Law, Barton Beebe Aug 2005

Search And Persuasion In Trademark Law, Barton Beebe

Michigan Law Review

The consumer, we are led to believe, is the measure of all things in trademark law. Trademarks exist only to the extent that consumers perceive them as designations of source. Infringement occurs only to the extent that consumers perceive one trademark as referring to the source of another. The most "intellectual" of the intellectual properties, trademarks are a property purely of consumers' minds. The simple idealist ontology underlying trademark law is largely responsible for the law's characteristic instability. Since 1992, the Supreme Court has considered - and in some cases, reconsidered - seven trademark cases. The Court's copyright cases garner ...


Word Games: Raising And Resolving The Shortcomings In Accident-Insurance Doctrine That Autoerotic-Asphyxiation Cases Reveal, Sam Erman Aug 2005

Word Games: Raising And Resolving The Shortcomings In Accident-Insurance Doctrine That Autoerotic-Asphyxiation Cases Reveal, Sam Erman

Michigan Law Review

This Note argues that autoerotic asphyxiation deaths are accidents and not the results of intentionally self-inflicted injuries. Part I formally analyzes accident-insurance case law to show that current, viable approaches to accident insurance indicate that autoerotic asphyxiation deaths are accidental. Part II claims autoerotic asphyxiation deaths should not trigger intentionally self-inflicted injury exclusion clauses because the practice does not intentionally injure. This Note concludes beneficiaries should recover when accident-insurance policyholders die during autoerotic asphyxiation.