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University of Michigan Law School

1984

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Full-Text Articles in Law

The Rico Nexus Requirement: A "Flexible" Linkage, Michigan Law Review Dec 1984

The Rico Nexus Requirement: A "Flexible" Linkage, Michigan Law Review

Michigan Law Review

This Note argues that the RICO "nexus" requirement can be interpreted to limit effectively this overbroad use of RICO without emasculating the statute. The "nexus requirement" is generally described as defining the word "through" in section 1962(c), the provision of RICO that makes it illegal to "conduct or participate, directly or indirectly, in the conduct of [an] enterprise's affairs through a pattern of racketeering activity." This language establishes the necessity of proving a relationship between the enterprise and the racketeering. Once evidence of the alleged enterprise and the predicate racketeering acts has been submitted, the final element of ...


Claims Of Dual Nationals In The Modern Era: The Iran-United States Claims Tribunal, Michigan Law Review Dec 1984

Claims Of Dual Nationals In The Modern Era: The Iran-United States Claims Tribunal, Michigan Law Review

Michigan Law Review

This Note will discuss the considerations, implicit in the Tribunal's opinion, that support substituting the doctrine of dominant and effective nationality for the rule of state nonresponsibility in cases involving claims of dual nationals. Part I of this Note briefly examines the traditional framework of diplomatic protection and demonstrates that the policies supporting the doctrine of state nonresponsibility are anachronistic and that strict adherence to them leads to inequitable results. Part II argues that the doctrine of dominant and effective nationality is the preferred standard for determining the status of dual national claims. At the core of this doctrine ...


Administrative Regulation Of The High School Press, Michigan Law Review Dec 1984

Administrative Regulation Of The High School Press, Michigan Law Review

Michigan Law Review

This Note examines the constitutional limits on administrative regulation of publications by and for public high school students. Part I discusses the widely divergent standards adopted by different circuits. Part II describes the hard line the Supreme Court has taken against restraints on free expression in the adult context and the different circumstances that justify limiting freedom of expression in high schools. Part III discusses the timing of administrative regulation of student speech. This Part argues that prior restraint is constitutionally acceptable and, in fact, preferable to subsequent punishment so long as its use is governed by proper criteria. Part ...


Vol. 33, No. 10, November 28, 1984, University Of Michigan Law School Nov 1984

Vol. 33, No. 10, November 28, 1984, University Of Michigan Law School

Res Gestae

•Profs: Ax Summer Term •Sandalow Pulls Down Six Figures Annually •Polarization Politics: Whose Side are You On? •Lodahl Just Disgruntled Over Democratic Outcome •2, 4, 6, 8, Come on, Let's Evaluate •The Comparable Worth Debate: A Recipe for Economic Disaster •Peer Schools Aid Repayment •'Alternative' Careers Explored •HLSA Proposes Office Plan •Law Students to Stage Play •Crossword •'Choose Me' Short on Quality Options •Save a Suit, Draft a Lawyer •Notices •The UPI's Bottom Five List •Law in the Raw


Vol. 33, No. 9, November 14, 1984, University Of Michigan Law School Nov 1984

Vol. 33, No. 9, November 14, 1984, University Of Michigan Law School

Res Gestae

•Debts Hurting Public Interest? •Oil Sheik to Author Yearbook Article •Shapiro Discusses Oral Argument •Reflection on the Election: Is the Great Society Dead? •Get Committed •Eklund: Share Office Space, or Lose It •New Limo Service Begins Airport Price War •Dry Up, Aristocrats •Playoff-Bound Law Gold Stomps Shoes •Group to Discuss Loan Plan •Law in the Raw


Vol. 33, No. 8, November 7, 1984, University Of Michigan Law School Nov 1984

Vol. 33, No. 8, November 7, 1984, University Of Michigan Law School

Res Gestae

•Eklund: RG, LSSS Will Keep Offices •Report Tried 11th Hour Reagan Busting •Kopel Doesn't Equate Democracy and Capitalism •Move Over •Kamisar Willing to Teach First Years to Shepardize •Pub Naming Contest Attracts Bad Puns •Students Start New Review •Notices •Kroger Workers Gave a Union Lesson •No Date Yet for Picozzi Hearing •Law Club Mealtimes Become Bridgetime •Trial Practice Set for Vacation •22 File Moot Court Briefs •Crossword •Surrealism Comes to Ann Arbor •My Kingdom for a Magazine •Law in the Raw


The Self-Critical Analysis Privilege And Discovery Of Affirmative Action Plans In Title Vii Suits, Michigan Law Review Nov 1984

The Self-Critical Analysis Privilege And Discovery Of Affirmative Action Plans In Title Vii Suits, Michigan Law Review

Michigan Law Review

This Note argues that plaintiffs should have access to affirmative action plans in discovery. Part I describes the "self-critical analysis" or "self-evaluative" privilege that employers have advanced to block discovery of such plans. Part II examines the conflicting interests of society, employers and employees in allowing or denying discovery. Part III evaluates the application of a self-critical analysis privilege in light of these conflicting interests and concludes that the privilege should not be applied to affirmative action plans.


Backing Off Bivens And The Ramifications Of This Retreat For The Vindication Of First Amendment Rights, Joan Steinman Nov 1984

Backing Off Bivens And The Ramifications Of This Retreat For The Vindication Of First Amendment Rights, Joan Steinman

Michigan Law Review

In Part I of this Article, Chappell and Bush are analyzed against the backdrop of the preceding Bivens cases. The analysis explains how these cases presented situations that were similar to one another but unlike any the Supreme Court previously had faced in Bivens cases. It demonstrates how the Court departed from the line of analysis that its previous Bivens cases had established, in a way that makes it more difficult for at least some plaintiffs seeking vindication of their constitutional rights to succeed in having a money damage remedy implied directly under the Constitution. The Article then argues that ...


The Efficiency Of Specific Performance: Toward A Unified Theory Of Contract Remedies, Thomas S. Ulen Nov 1984

The Efficiency Of Specific Performance: Toward A Unified Theory Of Contract Remedies, Thomas S. Ulen

Michigan Law Review

The purpose of this essay is to begin the development of an integrated theory of contract remedies by delineating the circumstances under which courts should simply enforce a stipulated remedy clause or grant relief to the innocent party in the form of damages or specific performance. The conclusion, in brief, is that in the absence of stipulated remedies in the contract that survive scrutiny on the usual formation defenses, specific performance is more likely than any form of money damages to achieve efficiency in the exchange and breach of reciprocal promises. If specific performance is the routine remedy for breach ...


Second Generation State Takeover Legislation: Maryland Takes A New Tack, Michigan Law Review Nov 1984

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 constitutionality ...


Vol. 33, No. 7, October 31, 1984, University Of Michigan Law School Oct 1984

Vol. 33, No. 7, October 31, 1984, University Of Michigan Law School

Res Gestae

•Davis on Everything but Picozzi •Hutchins Bucks Trend •Author Arca Edits Great Communicator •Reagan No Great Leader •Get it Straight •No Grounds to Presume that Democracy and Capitalism are Inevitable Linked •Reception Story Disappointing •Reception was Significant, Coverage was Inadequate •Barnes Piece Dismays Reader •Litman: Director turns Academic •Magazine Survey Sparks Firm Response •Experimental Clubs Combine Torts, Memo •Tutoring Program Offers Guidance •Senate Focuses on New Office Space •'Teachers' Flunks the Course •Unilateral Contact Drills Molars •Crossword •Notices •Dean Discusses Public Interest Law School •Amadeus Makes Sweet Music •Law in the Raw


Vol. 33, No. 6, October 17, 1984, University Of Michigan Law School Oct 1984

Vol. 33, No. 6, October 17, 1984, University Of Michigan Law School

Res Gestae

•Senate Changes Budget Timing •Reception Honors Women Profs •Hutchins Temps May Even Out •"Busters" Assault Senses •Holcombe Misconstrued Point of Sign Removal Complaint •Peevishness •Some Law Firms Interviewing This Fall are Heavily Involved in Union-Busting •Moody Complains of Complaining Mood •Reagan's Anticommunist Policy Fails for Want of Human Focus •Experts Debate Immigration Bill •Pub Work Waits for Kitchen Planning •Notices •How to Jazz up Your Law Life •Law Sweep of Softball Series •Crossword •What Color is Your Beanie? •How Many C's are There in Success? •Law in the Raw


Vol. 33, No. 5, October 10, 1984, University Of Michigan Law School Oct 1984

Vol. 33, No. 5, October 10, 1984, University Of Michigan Law School

Res Gestae

•Norris Keeps Tabs on Tiger Trials •Office Space Still Empty •No Fee Jump Without Vote •No Haven for Free Speech •Budget Blues •Religious Study in School Okay •LEXIS Changes Location •Beagles' Bite as Big as Bark •Notices •Cubs Rescue Fans' Rights to Cry •Law in the Raw


Vol. 33, No. 4, October 3, 1984, University Of Michigan Law School Oct 1984

Vol. 33, No. 4, October 3, 1984, University Of Michigan Law School

Res Gestae

•Senate Pulls $900 Out of its Shirt •Dozens Vie for Clerk Positions •Pluralism Paramount Here •Let's Talk TV •Anti-Speech Act: Signs Torn Down •Cut the Social Committee More •Candidate Racism Censure Not Evenhanded •Simpson-Mazzoli Short on Facts •Critics Polish and Peel New Apple •U-M Students Get Apple Price Break •Notices •Law Students Form Arms Control Group •Dean Allows SFF to Name Firms •Elections •Waves of Guinness Float Ark to New Spot •Jeopardy II: What is 'Imitation'? •Beeristers Slide Past Righteous Ones, 3-0 •Crossword •Stalking the Trivial Pursuit •Law in the Raw


Public Employees Or Private Citizens: The Off-Duty Sexual Activities Of Police Officers And The Constitutional Right Of Privacy, Michael A. Woronoff Oct 1984

Public Employees Or Private Citizens: The Off-Duty Sexual Activities Of Police Officers And The Constitutional Right Of Privacy, Michael A. Woronoff

University of Michigan Journal of Law Reform

This Note proposes a framework for dealing with problems in this area in a manner which best balances the competing interests involved. It argues that, while there is no explicit constitutional guarantee of privacy, the state is not free to regulate all aspects of a police officer's otherwise legal, off-duty, sexual activity. Part I of the Note examines several possible sources of a constitutional right of privacy. It concludes that, although many of the courts which invalidate state regulation of police officers' off-duty sexual activity do so on the basis of some constitutional right of privacy, any implied fundamental ...


Rights And Judges In A Democracy: A New Canadian Version, Paul C. Weiler Oct 1984

Rights And Judges In A Democracy: A New Canadian Version, Paul C. Weiler

University of Michigan Journal of Law Reform

Canadians sought a constitutionally entrenched Charter of Rights not just for its own sake, but also as part of a larger effort at constitutional renewal. The hope was that such a Charter would preserve a united Canada in the face of the serious threat posed by French Canadian nationalism within a potentially independent Quebec. In this Article, I comment on those features of the Canadian debate and its denouement that are noteworthy within the Canadian context, as well as those that illustrate some of the universal themes of constitutional theory.


Introduction, Terrance Sandalow Oct 1984

Introduction, Terrance Sandalow

Articles

The articles that follow, initially presented in 1983 as the thirty-second series of Thomas M. Cooley Lectures, address a subject that has deep roots in the United States' history. Assurances that there would be constitutional protection of what are now called human rights-in the United States, they have more frequently been referred to as civil liberties and civil rights or individual rights and liberties-was a practical condition for the adoption of the Constitution. The belief that such guarantees are of vital importance in maintaining a society that is both free and just has over time become even more deeply embedded ...


Towards A United Kingdom Bill Of Rights, Francis G. Jacobs Oct 1984

Towards A United Kingdom Bill Of Rights, Francis G. Jacobs

University of Michigan Journal of Law Reform

The United Kingdom has no fundamental constitutional instrument. It is in that respect almost unique. Instead it has a fundamental constitutional doctrine: the doctrine of the sovereignty of Parliament. The first paradox of the United Kingdom constitution is that no rules have a constitutional status.

The doctrine of Parliamentary sovereignty entails that all the constitutional rules that, in other countries, would be set out in a constitution are, in the United Kingdom, contained in Acts of Parliament-or in the common law, or in unwritten constitutional conventions or custom; and that any such rules, whether statutory or not, can be repealed ...


European Integration Through Fundamental Rights, Jochen Abr. Frowein Oct 1984

European Integration Through Fundamental Rights, Jochen Abr. Frowein

University of Michigan Journal of Law Reform

The conception of fundamental rights as natural rights of human beings developed in European legal thinking mainly in the seventeenth and eighteenth centuries. John Locke, Jean-Jacques Rousseau, and also Immanuel Kant should be mentioned. But it was in the new world that the principles of fundamental human rights were first put into practice. A little more than ten years after the first American declarations, the "Declaration des droits de l'homme et du citoyen" was adopted in Paris; it remains part of French constitutional law today. But, unlike the development in the United States, the French guarantees could not be ...


Abusive Pro Se Plaintiffs In The Federal Courts: Proposals For Judicial Control, Michael J. Mueller Oct 1984

Abusive Pro Se Plaintiffs In The Federal Courts: Proposals For Judicial Control, Michael J. Mueller

University of Michigan Journal of Law Reform

This Note argues that a few courts have adopted lawful restraints and administrative procedures that, if uniformly adopted, would significantly improve protection of judicial resources while preserving access to the civil courts for legitimate claims. Part I identifies career plaintiffs and the burdens imposed on courts by excessive and abusive litigation. Part I also examines the source and scope of the right of access to the judicial process. Part II analyzes judicial responses to abuse in terms of their constitutionality and effectiveness at curbing such tactics. Part III advocates administrative procedures that would promote earlier identification of pro se career ...


The Liability Of Third Parties Under Title Vii, Andrew O. Schiff Oct 1984

The Liability Of Third Parties Under Title Vii, Andrew O. Schiff

University of Michigan Journal of Law Reform

This Note considers the extent to which Title VII covers discrimination by third parties other than employment agencies and labor organizations. Part I analyzes the rationale for covering third parties, discussing Title VIl's language and the policies that Congress intended it to serve. Part II proposes a framework for analyzing the liability of third parties. Part III applies this framework to three instances where courts have disagreed about the liability of a particular third party: insurance companies' administration of employee benefits, state licensing agencies' licensing of individuals for various occupations, and hospitals' granting of staff privileges to doctors.


Exemption Of Erisa Benefits Under Section 522(B)(2)(A) Of The Bankruptcy Code, Michigan Law Review Oct 1984

Exemption Of Erisa Benefits Under Section 522(B)(2)(A) Of The Bankruptcy Code, Michigan Law Review

Michigan Law Review

This Note argues that the two federal statutes are exempting statutes under section 522(b)(2)(A), and thus BRISA funds should be exempt in a bankruptcy action when the debtor uses the state exemption scheme. Part I argues that standard principles of statutory interpretation, as applied to the language of the bankruptcy statute, refute the possibility that Congress intended the list of statutes in the legislative history to be exclusive. Having established that statutes other than those listed may be included under section 522(b )(2)(A), Part II first refutes the argument that the absence of BRISA from ...


Consequences Of Supreme Court Decisions Upholding Individual Constitutional Rights, Jesse H. Choper Oct 1984

Consequences Of Supreme Court Decisions Upholding Individual Constitutional Rights, Jesse H. Choper

Michigan Law Review

The thrust of this Article is to attempt to ascertain just what differences the Court's judgments upholding individual constitutional rights have made for those who fall within the ambit of their protection. It seeks to address such questions as: What were the conditions that existed before the Court's ruling? How many people were subject to the regime that was invalidated by the Justices? Was the Court's mandate successfully implemented? What were the consequences for those affected? At a subjective level, were the repercussions perceived as salutary by those (or at least most of those) who were the ...


Yankees Out Of North America: Foreign Employer Job Discrimination Against American Citizens, Michigan Law Review Oct 1984

Yankees Out Of North America: Foreign Employer Job Discrimination Against American Citizens, Michigan Law Review

Michigan Law Review

This Note explores Title VII's relationship to the hiring practices of foreign employers. It focuses on Japanese employers, who might face the toughest Title VII challenge to a business and cultural familiarity or citizenship requirement. Part I sets out arguments for and against finding intentional discrimination - disparate treatment - in either of these hiring requirements. It suggests that a court should refuse to find national origin discrimination when the employer imposes a business and cultural familiarity requirement. However, when an applicant is denied employment solely on the basis of citizenship, a strong argument may be made that the employer is ...


Vol. 33, No. 3, September 26, 1984, University Of Michigan Law School Sep 1984

Vol. 33, No. 3, September 26, 1984, University Of Michigan Law School

Res Gestae

•Faculty Reviews Summer Session •Rabbi Teaches More Than Torah •LSSS: ''Tried MSA?" •Student Dies in Bike Wreck •Schools Establish Secularism •Way to Go •God Belongs in the Schools •Act Against the Reagan Threat •Cut to the Quick •Notices •Twerski: Teacher, Drafter, Commuter •IM Game of the Week: A Fun Contest •Omission is the Better Part of Valor •Law in the Raw


Vol. 33, No. 2, September 19, 1984, University Of Michigan Law School Sep 1984

Vol. 33, No. 2, September 19, 1984, University Of Michigan Law School

Res Gestae

•Chatting with Another White •Increase in Grants Tightens Loan Program •Panel, Students Probe Choices •Small is Beautiful •That's Not My God He's Talking About •Firms Give Bucks to SFF •Give Midwest a Break, Okay? •Lie Detectors Don't Equal Due Process •Picozzi Hearing Update •Notices •White on Women, Tax and Student Behavior •Sacks: Thoughts on New Methods •LSSS Readies for Budget •City Dancing: Chance Dies, Fruit Grows •Law in the Raw


Vol. 33, No. 1, September 12, 1984, University Of Michigan Law School Sep 1984

Vol. 33, No. 1, September 12, 1984, University Of Michigan Law School

Res Gestae

•Former Student Sues U-M •Five First-Years Fail •Sam the Scholar Speaks •Wanted: Anyone to Help Fill Space •No Snap Judgments •Myths: Close the Gap Now •Letters policy •SFF Thanks •Furniture Displaces Recruitees As Placement Loses Perspective •Prof. Marcus Plant Dies •Regents Appoint Three New Deans •First-years: Much Like Forerunners •Placement Office Changes Policies •Students Log On With Prof. Park •Dean Weighs 14th Amendment Claim •Notices •How I Spent My Summer Vacation •A One Way Ticket to Palookaville •Law in the Raw


Denial Of Unemployment Benefits To Otherwise Eligible Women On The Basis Of Pregnancy: Section 3304(A)(12) Of Federal Unemployment Tax Act, Michigan Law Review Aug 1984

Denial Of Unemployment Benefits To Otherwise Eligible Women On The Basis Of Pregnancy: Section 3304(A)(12) Of Federal Unemployment Tax Act, Michigan Law Review

Michigan Law Review

This Note examines the conflicting interpretations of section 3304(a)(12) of the Federal Act. The Porcher decision serves as a point of reference throughout this Note, since opposing constructions of the section were presented in the case. Part I describes the basic framework of FUTA and presents the disparate interpretations of section 3304(a)(12) that have been advanced.

Part II analyzes section 3304(a)(12) with reference to the statutory language and legislative history. As a preliminary matter, this part considers the degree of deference that should be afforded the Secretary of Labor's certification of state programs ...


Where The Money Is: Remedies To Finance Compliance With Strict Structural Injunctions, James M. Hirschhorn Aug 1984

Where The Money Is: Remedies To Finance Compliance With Strict Structural Injunctions, James M. Hirschhorn

Michigan Law Review

This Article examines the formal powers that are available to the federal courts to meet this situation. Part I places the problem in perspective, describing the party structure of the institutional reform decree, the :financial burdens it places on the government defendants, and the relationship of these defendants to the fiscal authorities. Part II surveys the coercive powers historically available to the federal courts sitting in equity. Part III discusses the use of these devices against government defendants who claim financial impossibility. It emphasizes the limited recognition of impossibility, the power to compel the defendants to use available resources efficiently ...


Redefining The "Cost Of Suit" Under Section Four Of The Clayton Act, Michigan Law Review Aug 1984

Redefining The "Cost Of Suit" Under Section Four Of The Clayton Act, Michigan Law Review

Michigan Law Review

This Note explores the possible interpretations of the "cost of suit" provision and the policies which it implicates. It concludes that the Copper Liquor interpretation best advances the goals of the antitrust laws set forth by Congress and the courts. Part I examines the development of the present controversy among the circuits. Part II analyzes and refutes the arguments which have been set forth in support of the traditional rule. Part III explores the policy considerations which underlie private treble damage actions and concludes that the Copper Liquor interpretation of the "cost of suit" provision serves them better than does ...