Law Commons^™

Vol. 29, No. 10, December 5, 1980, University Of Michigan Law School

Res Gestae

•Beckwith looks at Reagan Court •Seniors vote for Caps and Gowns •Law in the Raw •Notices •Students extol clinic experience •Don't let the R. G. escape •Exam fever •Puzzle •Handicapped access •Shrivelling Schreier: the response •Wheezing about coughs •Bream And Gilbert- Icy Precision •Basketball Tournament •One Man Team •Heisman Hunches •Final Notes •For god's sake, get out?

Black English And Equal Educational Opportunity, Michigan Law Review

Michigan Law Review

There is a danger that the King case will be misunderstood. The press has sometimes portrayed it as a vindication of the right to use black English in the classroom rather than of the educational opportunities of the children who speak it, and the King opinion itself is at times confusing. This Note clarifies the meaning of King and section 1703(f) by examining four critical steps in Judge Joiner's reasoning. Section I examines the court's holding that "language barriers" under section l 703(f) include impediments to equal educational opportunity arising from dialect differences, and concludes that although the court's argument …

Court Examination Of The Discovery File On A Motion For Summary Judgment, Michigan Law Review

Michigan Law Review

This Note examines the history and ambiguous language of rule 56 to determine whether courts have a duty to examine the discovery file before granting a summary judgment. Section I discusses courts' differing interpretations of the rule. Section II shows that the Supreme Court Advisory Committee which drafted the rule contemplated that courts would examine routinely filed discovery materials when considering a motion for summary judgment. Section III concludes, however, that the expansion of pre-trial discovery since the enactment of the federal rules renders such a trial court duty inconsistent with the drafters' intent that the rules "be construed to …

Regulation Through The Looking Glass: Hospitals, Blue Cross, And Certificate-Of-Need, Sallyanne Payton, Rhoda M. Powsner

Michigan Law Review

A clear focus on the commitment of the public health and hospital establishments to the large teaching hospital and their belief in rationalizing the health care system through community-based planning allows us to understand the ideas and institutions that have produced our present system of hospital regulation. It can also help us to understand the structure and behavior of the hospital industry and can illuminate current controversies over health care policy.

What follows is a narrative account of the development of regional planning and certificate-of-need legislation. As part of that story, we trace the evolution of the Blue Cross, explain …

Restitution And Reform, Dale A. Oesterle

Michigan Law Review

A Review of Restitution and Reform by George E. Palmer

Notice By Citizen Plaintiffs In Environmental Litigation, Michigan Law Review

Michigan Law Review

This Note evaluates judicial handling of citizen suits tainted by defective notice. After reviewing the legislative history of the citizen suit provisions, the Note presents an array of judicial responses to defective notice and classifies decisions by their stringency in applying the notice provision. In the final section, the Note argues that Congress's purpose in requiring notice should determine the limits of judicial tolerance of defective notice. It concludes that courts should dismiss citizen suits unless actual notice of intent to sue, whether or not in the form specified by EPA regulations, was given sixty days before the filing of …

Vol. 29, No. 9, November 14, 1980, University Of Michigan Law School

Res Gestae

•Protesters rally against CIA •Residential Committee to present free movies •Senate takes action on library overcrowding •Law in the Raw •Notices •Nuke The Groupies! •Senate •Mr. Rogers' Neighborhood •The Bankruptcy of Liberalism •The Town Schreier: The Library Scene •And Horowitz Reigns •Stunt Man Flies High •Free Brian Virgil •Dogs Die in Finale •Sports Poll •Wrestlers Sought •CIA

Vol. 29, No. 8, November 7, 1980, University Of Michigan Law School

Res Gestae

•Senate asks disabled recruitment •Life in the Big Firm •Sexual harassment in the classroom •Law in the Raw •Notices •Welcome Public Interest groups •Amnesty International help Soviet captive •Law School Sexism •A Pat on the Back •Don't let the CIA escape •Reagan and Catsup •A Pinko-Democrat Looks Ahead •Freak Show Favorite •Music Series Sparkles •First Norman Conquest •Top Jock Position Open •Dread Drops Finale •Swanson Shows Colors •Sports Results •Sports Poll •Ethics Conference

Constitutional Torts, Christina B. Whitman

Articles

In this Article, I analyze the significance of the overlap between state tort law remedies and remedies under section 1983. I conclude that the dissatisfaction with section 1983 cannot fairly be attributed to the fact that it has been read to provide a remedy that "supplements" state law. I argue that most of the anxiety over constitutional damage actions under section 1983 can be understood - and resolved - only by focusing on two other questions. The first of these concerns the appropriate reach of the Constitution. Ambivalence about section 1983 reflects, in part, a fear that the federal Constitution …

Contribution Between Parties To A Discriminatory Collective Bargaining Agreement, Michigan Law Review

Michigan Law Review

This Note examines rules of title VII back pay liability and apportionment. Part I argues that all signatories to a discriminatory collective bargaining agreement should be jointly and severally liable to injured persons for back pay. Although a union or employer may object to joint and several liability if its opponent in collective bargaining proposed and bargained for the discriminatory term, the purposes of title VII require that the parties become jointly and severally liable upon signing the agreement. Since joint and several liability fully serves the compensatory purpose of the statute, Part II of the Note looks to deterrence …

Marcus Plant, Luke K. Cooperrider

Michigan Law Review

A Tribute to Marcus Plant

State Income Taxation Of Multijurisdictional Corporations: Reflections On Mobil, Exxon, And H.R. 5076, Walter Hellerstein

Michigan Law Review

The purpose of this Article is twofold: first, to analyze the Mobil and Exxon decisions; second, to consider the congressional reaction they may engender. Because the terrain that this Article covers may be unfamiliar to some readers, a few further words of introduction may be appropriate.

Taken together, the Mobil and Exxon decisions dealt with the three methods of dividing a multijurisdictional corporation's income among the states - specific allocation, separate accounting and apportionment by formula. Each method provides a different solution to the problem of determining the portion of the income of multistate businesses that should be taxable by …

Social Investing And The Law Of Trusts, John H. Langbein, Richard A. Posner

Michigan Law Review

In Part I, after presenting a brief primer on the economics of securities markets, we analyze the economic and policy issues presented by social investing. We conclude that the usual forms of social investing involve a combination of reduced diversification and higher administrative costs not offset by net consumption gains to the investment beneficiaries. Social investing may therefore be economically unsound even though there is no reason to expect a portfolio constructed in accordance with the usual principles of social investment to yield a below-average rate of return - provided that administrative costs are ignored.

Part II relates our policy …

Vol. 29, No. 7, October 31, 1980, University Of Michigan Law School

Res Gestae

•Senate budget hangs on Tisch loss •A hard look at Proposition D •Law in the Raw •Cooley Talks •Notices •Environmental Law Society •The Challenge: To Produce Something More Than Automobiles and ''Band-Aids'' •Regent Candidates •O'Reilly: Viable Alternative •I hate Reviewers •Coffers Empty •Grapple for Gold •Dogs Finally Falter •Keep the CIA off campus!

Vol. 29, No. 6, October 24, 1980, University Of Michigan Law School

Res Gestae

•Caps & Gowns for Senior Day? •Kamisar on Confessions: Gentleman and a scholar •Amnesty International to help Soviet captive •Law in the Raw •The Imminent danger of Tisch II •A Plea for Help •Old Jocks Never Die… •You are what you eat? •On the Vines •Docket •Dogs Show Teeth •Happy Trails •Hikers Play for Gold

Vol. 29, No. 5, October 17, 1980, University Of Michigan Law School

Res Gestae

•1st-year elections Wednesday •Residential Comm. asks input •Hyde in the High Court: The other side •Law in the Raw •Notices •Politics and Pulpit •Check It Out •Puzzle •The Town Schreier: Dress for Success •Politics and Pulpit •Stand Up! Be Counted! •Bowie's Scary Monsters •Woody's Memories •Eat My Dust, Flatfoot! •Gold Nuggets •Senate Candidates

Vol. 29, No. 4, October 10, 1980, University Of Michigan Law School

Res Gestae

•Placement panel offers alternative law careers •Cooley talks this month •UAW picks Jimmy •Law in the Raw •Law Partners •Foreign Oil •Civil Liberties Volunteers •Ethics Conference Planned •Election Spirit •A Student Services Survey •Down the Tubes •In the Heart of Taxes •Stand Up! Be Counted! •Petitions Due Today •Out, out damn typesetter! •Stop Hidin' on Those Backstreets •Mostly Blood and Guts •The Evil Touch of Orson Welles •Dread Starts Slowly •Law Dogs Return •Gold Nuggets

Vol. 29, No. 3, October 3, 1980, University Of Michigan Law School

Res Gestae

•Allen: low prof pay •Law Journals Pick 2nd-Year Members •ICLE Talks in Hutchins •Law in the Raw •Donkey, Elephant or Maverick? •J.J.'s Address Rapped •Safety in Numbers •Where are you? •The Debates: Sham or Substance? •Stand Up! Be Counted! •The Dilemma of Gender •At Long Last Fosse •Outlaws in Cornfields •Gold Nuggets •Notices

Wage Discrimination And Job Segregation: The Survival Of A Theory, Ruth G. Blumrosen

University of Michigan Journal of Law Reform

My earlier article in this journal, Wage Discrimination, Job Segregation, and Title VII of the Civil Rights Act of 1964, advanced the theory that the same discriminatory factors which lead to job segregation are also likely to be responsible for wage differentials between segregated jobs. The discriminatorily depressed wage rate of the segregated job is therefore one of the "adverse effects" under Griggs v. Duke Power Co. of job segregation. In order to establish a prima facie case of wage discrimination in a Title VII action, plaintiffs must show the fact of job segregation - that the jobs were …

Employee Stock Ownership Plans: An Analysis Of Current Reform Proposals, Luis L. Granados

University of Michigan Journal of Law Reform

This article surveys the battle between the critics and advocates of the ESOP, and scrutinizes various proposals currently being considered in the legislative arena. Part I examines the philosophy and history of the ESOP, particularly focusing upon the conceptual foundations provided by the writings of Louis Kelso. Part II explicates the various functions performed by the ESOP: as a tool of corporate finance, as an "in-house" market for the sale of stock held by a company's shareholders, and as a means of obtaining additional investment tax credit. Part III analyzes critically six proposed improvements of the ESOP system from both …

Toxic Substance Contamination: The Risk-Benefit Approach To Causation Analysis, Bradford W. Kuster

University of Michigan Journal of Law Reform

This article argues that the dilemma described above requires change and proposes a new standard for causation in this type of toxic contamination case. Part I examines the difficulties posed by conventional common law relief mechanisms, and the inadequacies of existing statutory relief mechanisms. Part II scrutinizes a more lenient burden of proof standard, the risk-benefit approach, which some courts have applied when faced with situations involving scientific uncertainties. The risk-benefit approach will be applied to causation analysis in the context of damage recoveries, using the. Hemlock, Michigan, situation as a case study. Part III discusses present congressional proposals, and …

The Involuntary Public Figure Class Of Gertz V. Robert Welch: Dead Or Merely Dormant?, Dale K. Nichols

University of Michigan Journal of Law Reform

This article does not resolve the debate over involuntary public figures but argues instead that in light of the Court's pronouncements in Firestone, Hutchinson and Walston, the involuntary class should be abolished. Part I briefly traces the evolution and significance of public figure status in defamation law, and reviews various interpretations of the involuntary public figure references in Gertz. Part II examines the status of the involuntary class after Firestone, Hutchinson and Walston, and discusses the extent to which future use of the class remains logically consistent with those decisions. Finally, the article considers the merits of …

Specific Performance Of "Unfulfillable" Plea Bargains, Stuart L. Gasner

University of Michigan Journal of Law Reform

This article discusses how courts have handled the remedy dilemma presented by unfulfillable plea bargains. Part I analyzes the seminal Supreme Court opinion on the broken plea bargain question, Santobello v. New York. This section concludes that choice-of-remedy is not entirely a matter of lower court discretion. Rather, Santobello delegates to lower courts the authority to develop a law of remedies which conforms to the underlying principles of that decision. Part I also focuses on what courts have done with this mandate, discussing the elements of decision courts have developed to remedy unfulfillable plea bargains. Finally, Part II suggests …

Narrowing The "Routine Use" Exemption To The Privacy Act Of 1974, John W. Finger

University of Michigan Journal of Law Reform

This article suggests a balancing test to determine which routine uses of information legitimately fall within the Privacy Act. Part I briefly examines the background of the Act, concentrating on the legislative history of the routine use exemption, and examining problems the exemption presents. Part II then proposes a balancing test, based on notice and need for data, as a means of ascertaining proper routine uses.

Qualification Requirements For Foreign Corporations: The Need For A New Definition Of "Doing Business" Based On In-State Sales Volume, Stanley M. Klem

University of Michigan Journal of Law Reform

Part I of this article examines the mechanics of the present qualification system, paying special attention to the problems created by a multiplicity of vague state standards. Part II discusses the historical justification and purposes of the present system, concluding that only the protection function justifies the continued existence of the system. Finally, Part III proposes that "doing business" be defined in terms of the annual volume of in-state sales. This solution would remedy the problems which plague the present system while furthering the legitimate protection function of the state qualification requirements.

Vol. 29, No. 2, September 26, 1980, University Of Michigan Law School

Res Gestae

•Escort Service to Begin Monday •Killings Spur More Caution •Hyde in the High Court •Law in the Raw •Things Done •Placement Alternatives •"Now at West Egg" •The Town Schreier: Making the Grade? •Review •Rough Cuts •Gold Nuggets •Notice •Crossword

Vol. 29, No. 1, September 19, 1980, University Of Michigan Law School

Res Gestae

•Senate Boycotts Campbell's •J.J. Lambastes Students •Ex-Guild President indicts legal training •Law in the Raw •Women's Law Students •Senate Notes •Conference In Jeopardy •Summer Hi-jinks •The New R.G. •Anderson's dilemma •Art in the Cities •Grand or Gone Awry •Law Gold needs You •Voice of the CSAR •Notices

Incorporation Of State Law Under The Federal Arbitration Act, Michigan Law Review

Michigan Law Review

This Note proposes a solution to this choice-of-law problem. Section I surveys the courts' response to Congress's silence and finds confusion and disarray. Section II argues that courts should apply the state law pertinent to arbitration unless that law places heavier burdens on arbitration contracts than on other contracts; where state law does discriminatorily burden arbitration, the courts should apply the pertinent state rules applicable to "any contract." It concludes that the "grounds . . . for the revocation of any contract," although determined as a matter of federal policy, are to be found in state law rather than in …

Interrogation Without Questions: Rhode Island V. Innis And United States V. Henry, Welsh S. White

Michigan Law Review

In Rhode Island v. Innis, the Court defined "interrogation" within the meaning of Miranda; and in United States v. Henry, it defined "deliberate elicitation" within the meaning of Massiah. This article explores the implications of Innis and Henry, suggests readings of the new tests consistent with their purposes, and applies the tests to several situations where the scope of the fifth and sixth amendment protections remains unclear.

Preserving The Progressive Spirit In A Conservative Time: The Joint Reform Efforts Of Justice Brandeis And Professor Frankfurter, 1916-1933, David W. Levy, Bruce Allen Murphy

Michigan Law Review

On January 28, 1916, President Wilson sent the name of Louis D. Brandeis to the Senate for confirmation as a Justice of the United States Supreme Court. Wilson's act surprised many Americans and sparked one of the bitterest confirmation struggles in the history of the Republic. The nomination and the confirmation that followed also created a painful and highly personal dilemma for the new Justice. This dilemma led Brandeis to a private arrangement that opened an unusual and revealing chapter in the story of the extra judicial activities of American justices. Even more important, the arrangement constitutes a noteworthy episode …