Law Commons^™

Privity Revisited: Tort Recovery By A Commercial Buyer For A Defective Product's Self-Inflicted Damage, Mark A. Kaprelian

Michigan Law Review

This Note argues that if a seller and a commercial buyer are in privity, damage to a product resulting from its own defect should not be recoverable by a commercial buyer in a tort action. Part I shows how the conflict arises and examines the judicial boundaries that are normally drawn between tort and warranty liability. Part II contrasts the rationales for the warranty and tort remedies, with particular emphasis on the Uniform Commercial Code and Section 402A of the Restatement (Second) of Torts. Part III argues that if a seller and a commercial buyer are in privity and …

Erisa-The First Decade: Was The Legislation Consistent With Other National Goals?, Alicia H. Munnell

University of Michigan Journal of Law Reform

Although ERISA explicitly sanctioned defined contribution plans as a legitimate form of retirement saving, this Article focuses almost exclusively on defined benefit plans. ERISA aimed at changing the basic provisions of defined benefit plans, not at modifying the nature of defined contribution plans. Therefore, although a study of the consistency of pension plan provisions with national economic goals would necessarily include an analysis of both defined benefit and defined contribution plans, a study of the impact of ERISA seems appropriately limited to defined benefit plans.

Introduction, Theodore J. St. Antoine

University of Michigan Journal of Law Reform

Introduction to the 1985 Journal of Law Reform symposium, The Employee Retirement Income Security Act of 1974: ERISA.

Erisa Enforcement: Mandate For A Single Agency, Beverly M. Klimkowsky, Ian D. Lanoff

University of Michigan Journal of Law Reform

In Part I, this Article reviews the aspects of pensions that justify the attention of Congress during consideration of budgets and the federal deficit. Part II documents the initial administrative problems created by the congressional compromise that divided administrative responsibility between the Department of Labor and the Internal Revenue Service. Although Reorganization Plan No. 4 solved some of the initial problems, the remaining problems are not amenable to resolution within a system of responsibility divided between separate agencies. The specific problems associated with enforcement are discussed in Part III, which identifies the total failure of enforcement as a major threat …

A National Retirement Income Policy: Problems And Policy Options, Phyllis C. Borzi

University of Michigan Journal of Law Reform

This Article examines the need for a national retirement income policy, identifies the major components of such a policy, and briefly discusses some of the policy options for private pension plans. This Article is an overview of several critical policy areas. It is not an exhaustive policy analysis, nor does it provide a definitive series of options for achievement of a particular policy. Its focus will be on the private pension system, rather than on federally provided benefits such as social security or Medicare, or employer-provided pensions for state, local, or federal employees. The issues discussed are a starting point …

Women's Pension Reform: Congress Inches Toward Equity, Anne Moss

University of Michigan Journal of Law Reform

In the workplace and in the home, women suffer economic injustices. The inequities of our private and governmental pension systems compound their financial problems, leading to inadequate retirement income for many older women. For example, only ten percent of women age sixty-five and over received private pensions or annuities in 1982, as compared to twenty-nine percent of men age sixty-five and over. Women receiving pensions likewise get much less than men, averaging $1,520 in 1982. The average for men in 1982 was $2,980.

Gradually, policymakers are recognizing the shortcomings of pension systems. In the past few years, federal legislation has …

Erisa Preemption: Judicial Flexibility And Statutory Rigidity, Leon E. Irish, Harrison J. Cohen

University of Michigan Journal of Law Reform

This Article attempts to describe the ways in which, and the reasons why section 514(a) has caused the courts and Congress so much difficulty. Part I reviews the legislative history of section 514(a), with emphasis on the ambivalence Congress has shown toward its 1974 draftsmanship. Part II attempts to provide a coherent description of the case law that has developed under section 514(a). Part III completes the legislative history by examining the two instances in which experience compelled Congress to revise section 514. Finally, Part IV discusses examples of problems courts have faced when crafting a federal common law of …

Erisa: To Sue Or Not To Sue-A Question Of Statutory Standing, Constance L. Bauer

University of Michigan Journal of Law Reform

This Note examines the conflicting authority regarding the scope of section 502(a) of ERISA. There is a fundamental split among the United States Courts of Appeals concerning whether parties not specifically enumerated in section 502(a) have standing to bring civil actions to enforce ERISA's provisions. The Ninth Circuit has held consistently that non-enumerated parties are entitled to sue under ERISA. The Second Circuit, however, repeatedly has held that parties not explicitly specified in section 502(a). do not have standing to bring an action under the Act. This Note addresses the question of whether employers and pension funds, as non-enumerated parties, …

Pension Plan Terminations And Asset Reversions: Accommodating The Interests Of Employers And Employees, Carl A. Butler

University of Michigan Journal of Law Reform

This Note focuses on the problems that often arise for plan participants when an overfunded defined benefit plan is terminated and the employer recaptures excess assets. Part I explains the relative ease with which employers can terminate plans and receive excess assets under current pension law. Part II argues that pension law must be reformed because its shortcomings threaten American workers' retirement income security, it allows for sham terminations that remove assets from plans that are, in fact, ongoing, and it usually allows excess assets to go to employers rather than employees. Part III discusses two reforms proposed for plan …

Erisa Retirement Plans In Individual Bankruptcy, John Minton Newell

University of Michigan Journal of Law Reform

When an employee covered by an ERISA retirement plan files a petition in bankruptcy, the court is presented with a number of complex issues regarding the relationship among ERISA, the Bankruptcy Code (Code), and the state law of creditors' rights. Three issues have emerged in these cases, and the courts have divided on the proper resolution of each of these issues. First, is the debtor's interest in an ERISA retirement plan "property of the estate," and thus available for distribution to creditors? Second, if the debtor's interest is property of the estate, and the debtor uses the state exemption scheme, …

The Applicability Of The Antitrust Procedures And Penalties Act Of 1974 To Voluntary Dismissals, Jon B. Jacobs

University of Michigan Journal of Law Reform

This Note argues that Congress should amend the APPA to require a judicial public interest determination prior to the entry of a voluntary dismissal in government-initiated civil antitrust actions. Part I of this Note briefly describes the APPA and Federal Rule of Civil Procedure 41(a)(1). Part II asserts that APPA procedures do not currently apply to voluntary dismissals under Rule 41(a)(1). Part III concludes that the purposes underlying the APPA and general policy considerations support the legislative extension of the Act to dismissals. Part IV responds to objections to this proposal. Finally, Part V presents a specific amendment to the …

Modifications Of Antitrust Consent Decrees: Over A Double Barrel, John D. Anderson

Michigan Law Review

This Note will attempt to determine the correct standard of review for all modifications of existing consent decrees. Part I. A. examines the current standards for modifications of consent decrees. It concludes that the APP A does not apply to such orders. Part I. B. then examines the differing standards that are currently applied to defendant-initiated modification motions without the government's consent, government-initiated modification motions without the defendant's consent, and consented-to modifications. Part II argues that these varying standards have little justification since the same substantive concerns exist in all modification cases. Part III explores the two major concerns - …

The Class-Based Animus Requirement Of 42 U.S.C. § 1985(3): A Limiting Strategy Gone Awry?, Devin S. Schindler

Michigan Law Review

This Note focuses on Scott's impact on attempts to determine what groups fall within the statute. Part I examines the various class-based animus formulas generated by the circuits since Griffin and the potential impact of Scott on these formulas. Part II argues that the key to understanding the scope of the class-based animus requirement lies in traditional fourteenth amendment equal protection analysis.

The Transformation Rule Under Section 522 Of The Bankruptcy Code Of 1978, Raymond B. Check

Michigan Law Review

This Note rejects the statutory arguments that have been advanced in favor of the transformation rule, and argues that the rule is inconsistent with both the policies motivating section 522 of the Bankruptcy Code and the overall purposes of the U.C.C. priority system. Part I examines the treatment of purchase money security in the U.C.C. scheme. It also describes the exemption provisions of the 1978 Bankruptcy Code and the legislative concerns that shaped those provisions. Part II summarizes the judicial adoption of the transformation rule and the statutory basis relied upon by courts in applying it. Part III argues that …

The Availability Of Jury Trials In Copyright Infringement Cases: Limiting The Scope Of The Seventh Amendment, Andrew W. Stumpff

Michigan Law Review

This Note argues that statutory copyright damages are properly regarded as equitable and hence that no right to a jury trial exists in cases brought to recover such damages. More generally, the Note maintains that the seventh amendment's distinction between equitable and legal causes of action has produced irrational consequences, and proposes that "legal" issues be defined narrowly so as to limit the scope of the seventh amendment. Part I analyzes the debate over statutory copyright damages, concluding that historical and statutory construction arguments require these damages to be construed as legal. Part II examines some of the problems that …

Participatory Management Under Sections 2(5) And 8(A) (2) Of The National Labor Relations Act, Michigan Law Review

Michigan Law Review

This Note argues that participatory management programs initiated by the employer in nonunion settings should be permissible under the NLRA when they do not restrict the freedom of employees to choose their own bargaining representative. Section I describes the major currents of participatory management theory. Section II explores the restrictive interpretation the National Labor Relations Board (Board) and the courts have traditionally given those sections of the NLRA applicable to participatory management programs. Section III describes the increasingly permissive approach taken by some courts, and to a lesser extent by the Board, in applying the NLRA to participatory management settings. …

The 'Legalization' Of The Family: Toward A Policy Of Supportive Neutrality, David L. Chambers

Articles

The word "legalization" has conflicting meanings. One, intended to sound the theme of this conference, conveys the notion of government regulation permeating some area of human activity. The other-as found, for example, in the phrase "the legalization of marijuana"-is a near opposite: the process of making legal or permissible that which. was previously forbidden, taking government out of that which it had previously controlled. The recent history of government's relationship to the family amply displays both sorts of legalization, both government's intrusion and its withdrawal, and reveals a paradoxical relation between the two-that as government frees people to live their …

The Second Death Of Federalism, William W. Van Alstyne

Michigan Law Review

In 1976, in National League of Cities v. Usery, the Supreme Court distinguished acts of Congress regulating commercial relations from acts of Congress commanding the terms of state services. Last Term, in Garcia v. San Antonio Metropolitan Transit Authority, the Court abandoned the distinction and held that it was principally for Congress to determine federalism questions. In this Comment, Professor Van Alstyne criticizes the Court on both counts.

Heartbalm Statutes And Deceit Actions, Michigan Law Review

Michigan Law Review

This Note considers whether actions in deceit based on fraudulent marriage promises should be deemed barred by the heartbalm statutes. It determines that they should not. Part I examines the policies and arguments against the common law breach of promise to marry action that are embodied in the heartbalm statutes and looks at the limits courts have placed on the reach of the statutes. Part II re-examines the deceit action in light of the purposes of the heartbalm acts and their intended scope, as well as in light of criticism of the action by the courts and commentators. In particular, …

Motions For Appointment Of Counsel And The Collateral Order Doctrine, Michigan Law Review

Michigan Law Review

This Note argues that denials of motions for appointment of counsel should be immediately appealable under the collateral order exception to 28 U.S.C. § 1291. Part I examines the extent to which the collateral order doctrine modifies the finality rule. It argues that recent Supreme Court decisions that at first appear to have narrowed the doctrine have in fact only restated it. Part II applies the collateral order doctrine to orders denying appointment of counsel, concluding that such denials qualify for immediate review. Part III argues that policy considerations support this conclusion.

The Distinction Between The Scope Of Section 2(A) And Sections 2(D) And 2€ Of The Robinson-Patman Act, Michigan Law Review

Michigan Law Review

This Note argues that sections 2(d) and 2(e) were meant to cover only disguised discriminations not within the scope of section 2(a). If the seller's conduct falls within the scope of section 2(a), that section must be applied regardless of whether or not the conduct also falls within the language of section 2(d) or 2(e). Only when section 2(a) does not apply is recourse available under sections 2(d) and 2(e). Part I of this Note looks at general antitrust policy, the limitations of the Clayton Act that led to the enactment of the Robinson-Patman Act, and the legislative history of …

A Moderate And Restrained Federal Product Liability Bill: Targeting The Crisis Areas For Resolution, Aaron D. Twerski

University of Michigan Journal of Law Reform

In this article I have tried to offer a rational, feasible, and politically acceptable solution to the present product liability crisis. To do this, I have first set out the problem. I explain in Part I how courts have created the crisis by formulating incomprehensible legal standards. In Part II, I examine the difficulties with assessing punitive damages against a defendant. In Part III, I discuss the conflict between the torts and workers' compensation systems. In Part IV, I reflect on the need to protect wholesalers and retailers from needless litigation. Part V suggests that a federal study on the …

The Bottom Line Limitation To The Rule Of Griggs V. Duke Power Company, James P. Scanlan

University of Michigan Journal of Law Reform

Part I of this article analyzes the background to the Teal decision and the treatment by the majority and dissent of the issue known in employment discrimination law as the "bottom line" limitation to the disparate impact theory of employment discrimination. Part II explains why, for reasons beyond those considered by the Teal majority, not only was the Court's rejection of the bottom line theory manifestly correct, but a contrary result would have had grievous consequences. Part III then argues for a similar rejection of the bottom line limitation in those situations where most observers have taken for granted that …

The Delegation Doctrine: Could The Court Give It Substance?, David Schoenbrod

Michigan Law Review

Part I of this Article demonstrates the need for a new approach to the delegation doctrine. It shows that the Court has failed to articulate a coherent test of improper delegation and that the alternative tests offered by commentators are not sufficient. Part II then sets forth a proposed test of improper delegation. The basic principles of an approach prohibiting delegations of legislative power are outlined and illustrated. This Article does not, however, attempt anything so grand as to suggest a final definition of the doctrine or to pass broadly on the validity of statutes. Such an encompassing analysis is …

Does Charity Begin At Home? The Tax Status Of A Payment To An Individual As A Charitable Deduction, Michigan Law Review

Michigan Law Review

In White v. United States, the United States Court of Appeals for the Tenth Circuit reversed a district court decision and held that the taxpayers could deduct expenses they paid directly to their dependent son to support his missionary activities away from home. In Brinley v. Commissioner, the Tax Court sitting in Texas refused to follow the Tenth Circuit in White, and held that while the missionary son was entitled to deduct his personal expenses, the parents could not deduct their payment of the son's expenses.

This Note supports the result in Brinley and argues that the …

A Statutory Analysis Of The Right Of U.S. Lawyers To Practice In Japan, Cecelia Norman

Michigan Journal of International Law

This note argues that the JFBA's position is legally untenable. There is no legal bar to the establishment of firms by U.S. attorneys unlicensed to practice in Japan, provided they restrict their activities to advising non-Japanese companies on foreign and international law. Two central issues shape this debate: (1) the extent of the bengoshi monopoly conferred by the Lawyer Law; and (2) the scope of Japan's obligation to the United States under the Treaty of Friendship, Commerce, and Navigation (FCN Treaty) concluded in 1953.

Protecting The Independence Of Administrative Law Judges: A Model Administrative Law Judge Corps Statute, Karen Y. Kauper

University of Michigan Journal of Law Reform

This Note concludes that the federal government should adopt some form of central panel system to protect both the independence of the ALJs and the public interest. Part I of this Note presents several alternatives to the central panel systems that have been proposed in past years and discusses their inadequacies. Part II summarizes the arguments concerning the central panel system of administrative adjudication. Part III discusses several of the integral elements of a central panel system and analyzes the state statutes and the proposed federal legislation in light of these elements. Finally, Part IV proposes a model statute for …

A Proposal For Extension Of The Occupational Safety And Health Act To Indian-Owned Businesses On Reservations, Maureen M. Crough

University of Michigan Journal of Law Reform

This Note argues that the Act does not apply to Indian businesses because it does not specifically mention them. While sensitive to the desirability of providing certain kinds of federal protections to all Americans, this Note takes the position that the sovereignty of Indian tribes should not be abrogable except by considered and express congressional action. Concluding nonetheless that the workplace protection the Occupational Safety and Health Act provides should be extended to Indians on reservations, the Note proposes amendment of the Act: to extend its protection; to permit tribal enforcement; and to authorize the federal government to help financially …

Legal Services And The Trade And Tariff Act Of 1984, Michael K. Grace

Michigan Journal of International Law

Part I of this note outlines the major nontariff barriers (NTBs) to trade in services. Part II discusses the provisions of the Trade and Tariff Act that are aimed at the reduction of those barriers. Part III examines the applicability of the TTA to legal services and the potential limitations on the provisions of an international agreement for that particular service industry. It concludes that concerns over state sovereignty, while no longer posing a constitutional obstacle to an international agreement on trade in services, will remain an important political force in the shaping of such an agreement.

The Wagner Act: Labor Law's Signal Event, Theodore J. St. Antoine

Articles

There's no fun in stating the obvious. Sophisticated professionals bestow few kudos on those who declaim the conventional wisdom. Even so, one would have to be far more perverse than I, in this fiftieth anniversary year of the National Labor Relations Act, to suggest that the Wagner Act, wasn't the most important (and at the time of it- passage the most controversial) development in the last half-century of labor law.