Law Commons^™

Anti-Formalism In Recent Constitutional Theory, Mark V. Tushnet

Michigan Law Review

The focus in constitutional theory on judicial review rests on a much deeper political theory than the phrase "countermajoritarian difficulty" standing alone suggests. Majoritarian or democratic decision making is itself a solution to a set of problems that arise from a particular view of human nature and political action. In this Article, I identify, explicate, and criticize some recent developments in constitutional theory which are of interest to the extent that they reject that view of human nature and politics. I take as my focus important articles by Robert Burt, Robert Cover, Owen Fiss, Frank Michelman, and Cass Sunstein. I …

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.

Marcus L. Plant, Walter Byers

Michigan Law Review

A Tribute to Marcus L. Plant

Marcus L. Plant, Wex S. Malone

Michigan Law Review

A Tribute to Marcus L. Plant

Relief From Final Judgment Under Rule 60(B)(1) Due To Judicial Errors Of Law, Michigan Law Review

Michigan Law Review

This Note seeks to resolve these conflicts by proposing a sensible reading of rule 60(b )(1) that reconciles the basic philosophies underlying differing interpretations of the rule. Part I examines the history of rule 60(b)(l) and the policies espoused by the courts and commentators in considering whether the rule should be applied to judicial errors of law and concludes that courts should employ the rule to correct obvious judicial errors of law. Part II recommends a broad scope for rule 60(b )(1) motions, proposing that the only type of alleged judicial error outside the reach of such a motion should …

Marcus L. Plant 1911-1984, The University Of Michigan Law Faculty

Michigan Law Review

A Tribute to Marcus L. Plant

Marcus L. Plant, Allan F. Smith

Michigan Law Review

A Tribute to Marcus L. Plant

(An Enthusiastic) Tribute To Professor Marcus Plant, Joel M. Boyden

Michigan Law Review

A Tribute to Marcus L. Plant

Two Models Of The Fourth Amendment, Craig M. Bradley

Michigan Law Review

Fourth amendment critics rank in rows, and it has been repeatedly pointed out that individual cases are inconsistent with each other or that whole chunks of doctrine, such as the automobile exception or the plain view exception, are either misconceived, too broad, or too narrow. But these critics all play the Court on its own field, simply arguing as tenth Justices that the doctrines should be tinkered with in different ways than the Court has done. This Article, in contrast, suggests that current fourth amendment law, complete with the constant tinkering which it necessarily entails, should be abandoned altogether. Instead, …

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 …

Vol. 33, No. 21, April 10, 1985, University Of Michigan Law School

Res Gestae

•BLSA, HLSA Help to Recruit •Law Review Editor Talks on Politics, Feminism •Review Seeks Minorities, But Bakke Limits Search •Trashing the F.Supps •Kopel Blames the Victim •To Loan Forgive Is Divine •Goodbye to all this •Gun Prohibition, is Useless •Diversion Research Urged •Financial Aid for Summer •Lights Out: Rm. l00 Exams •NCAA Winners Are... •Econ to Law: Love at First Cite •Committee Appointments •Notices •"Desperately Seeking Susan" a Winner •Crossword •Another Missed Gravy Train •Random Notes From A Random First-Year •Law in the Raw

Rejoinder: Truth, Justice, And The American Way--Or Professor Haddad's "Hard Choices", John M. Burkoff

University of Michigan Journal of Law Reform

I frankly think that Professor Haddad's response to my article on pretext searches is first-rate. It is articulate; it is thoughtful and scholarly; it sharpens the issues and the analysis in this area; and, for the most part, I think his criticisms of various portions of my own work present my positions fairly and honestly. On the other hand, I think that Professor Haddad is dead wrong.

The Admissibility Of Prior Silence To Impeach The Testimony Of Criminal Defendants, Rex A. Sharp

University of Michigan Journal of Law Reform

This Note focuses on whether a defendant who was called as a witness at the prior, severed trial of a codefendant and refused to testify by invoking the fifth amendment can subsequently be impeached by this silence at his own trial. In addition to the obvious implications this issue has for severed criminal trials, the factors considered when deciding whether impeachment by silence should be allowed generally are in sharpest focus in this factual setting. Thus, the analysis of the constitutional and evidentiary questions this Note enlists to argue that impeachment by silence in this context is permissible applies as …

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 …

Pretextual Fourth Amendment Activity: Another Viewpoint, James B. Haddad

University of Michigan Journal of Law Reform

Pretextual detentions, arrests, and searches pose knotty fourth amendment problems. With an air of plausibility, defense attorneys often accuse police of pretextual use of arrest warrants, search warrants, and various exceptions to the warrant requirement. Specifically, they contend that officers have utilized a particular fourth amendment doctrine to obtain certain evidence even though courts have not assigned as a reason for approving the doctrine the need to discover such evidence.

Forcing Attorneys To Represent Indigent Civil Litigants: The Problems And Some Proposals, Greg Stevens

University of Michigan Journal of Law Reform

This Note argues that uncompensated court appointments represent an unsatisfactory means to provide counsel for indigents. Part I discusses the policy arguments for and against forced, uncompensated court appointments. Part I concludes that the arguments against these appointments outweigh the arguments in favor of them. Part II argues that they violate the Constitution's prohibitions against uncompensated takings and involuntary servitude. Part III offers a proposal that would provide effective representation for indigent civil litigants, while avoiding infringement of attorneys' constitutional rights.

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 …

The Rise Of The Supreme Court Reporter: An Institutional Perspective On Marshall Court Ascendancy, Craig Joyce

Michigan Law Review

This Article will first explore the antecedents to, and beginnings of, the reporter system under Alexander J. Dallas and William Cranch. Next, the Article will examine the transformation of the system under the Court's first official Reporter, the scholarly Henry Wheaton. Finally, the Article will recount the struggle between Wheaton and his more practical successor, Richard Peters, Jr., that culminated in 1834 in the Court's declaration that its decisions are the property of the people of the United States, and not of the Court's Reporters.

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 …

On The Threshold Of Wainwright V Sykes: Federal Habeas Court Scrutiny Of State Procedural Rules And Rulings, Michigan Law Review

Michigan Law Review

This Note examines specific problems which stand on the threshold of Wainwright v. Sykes. Resolution of these problems is necessary to determine whether a state ruling is based upon an adequate state procedural ground, requiring application of the cause-and-prejudice test before habeas review will be permitted. Part I analyzes the rationale for the rule of Wainwright v. Sykes as well as its historical underpinnings. Part II examines the treatment of state court decisions that are based both on a defaulted claim and, in the alternative, on the merits of that claim. This Part concludes that decisions containing such alternative …

Vol. 33, No. 20, March 27, 1985, University Of Michigan Law School

Res Gestae

•Picozzi Now Awaits Ruling •Campbell Hopes for Revision Next Year •Vandals' BB Inflicts Pane (and) Suffering •Critics Too Harsh on Dimon •Sex Pressure •Civil Rights Panel •Activities Should Get Credit •This Week in RG History •Affirmative Action Addresses Social Reality •Freud's Insight Explain Pornography Role •Elections •Former Ambassador Offers Israeli View •One Observer Thinks U -M Met Its Proof •Senate Gives Spare Change •NCAA Lead Change •Notices •Crossword •Law In the Raw

Vol. 33, No. 19, March 20, 1985, University Of Michigan Law School

Res Gestae

•Picozzi Hearings Continue •Publications Select New Staff •Hartley On U.S., South Africa, Apartheid •Public Interest Conference Held •Evidence Exonerates Picozzi •It's Deductible •Clients Deserve Our Help •This Week In RG History •S.F.F. Summers Give Hands-On Experience •Don't Censor Nicaragua Debate •"Nectarine" Isn't So Peachy After All •Pornography 's Damage is Pervasive & Severe •Unconstitutional, Heterophobic, Dangerous •Notices •Senate Office Allocation Becomes Tentative •Contest Field Narrows, NCAA Advances •Don't Be 'Kahn'ed: Tax Help At Union •Show Offers Art Smorgasbord •Crossword •Law in the Raw

Vol. 33, No. 18, March 13, 1985, University Of Michigan Law School

Res Gestae

•ABA Inspects Law School •Intellectual Property Prof Brings New Perspective •Picozzi Assesses Arson Hearing •Current SFF Drive Wraps Up March 22 •None of Us Are Immune to Pressures of Law School •The Price of Justice •Action Beyond Hutchins Hall •Hertzberg: J.J. No Sadist •Your Dinner Causes Torture •Law Students Unite! Preserve ''The Pub'' •Social Propositions Basis for Law •Bar Resists Change: No to Specialization •ACLU Sets Up Shop On Michigan Campus •Hoop Upsets Await Prediction •Going with Georgetown Won't be Quite Enough •Curran Explains Factor Point System •New Section Slated •Notices •Random Notes of a Legal Mind •"Breakfast Club" Mixes …

Vol. 33, No. 17, March 6, 1985, University Of Michigan Law School

Res Gestae

•Martin Takes Sick Leave •Alumni Tell Tales of Picozzi •Campbell Heads for Finals •State Bankrolls Child Advocacy Clinic •Grape Boycott Time Again •Computerland •Stop Me Before I Write Again •Observer: Picozzi Faces An Uphill Fight •Why Don't Profs Come to Hearing? •Notices •Apathy Hits Food Drive •Computer awaits Students

Vol. 33, No. 16, February 20, 1985, University Of Michigan Law School

Res Gestae

•Picozzi Hearing Gets Under Way •Campbell Competitors Tackle Rape Shield Law •Organizations to Share Space •More Credit for Case Club •Your Dinner Causes Poverty •Married Law Students Harried But Happy •Notices •Obiter's "Anatomy" Kudos & Questions •A Challenge to J.J. White

Vol. 33, No. 15, February 13, 1985, University Of Michigan Law School

Res Gestae

•Congressman Crockett Speaks on South Africa •Action On Loan Forgiveness •Picozzi Hearing Begins Monday •Polach Defends Theory Of Comparable Worth •'Sunshine' Meetings Should Be The Rule •Boycott Picketed Theaters •Introspection and Externships •Deroy Fellow Makes Visit •Brown Bag Lunch Hears Local Mediator •Clinic Candidate May Cut Court Contact •Notices •Doctor Fegg Grants Exclusive Interview •Crossword •E. T. With Clothes •'Passage To India, Passes RG Muster •Senate Reviews School Accreditation Self-Study •Law in the Raw

Vol. 33, No. 14, February 6, 1985, University Of Michigan Law School

Res Gestae

•Haocai Compares Legal Systems •Karate: An Affirmative Defense? •MSA Rep. Schnaufer Opposes the Code •Library Expansion Coming Soon •Public Interest Seeks Redress of Injustice, Not Just Transfer •Give 'Em the Chairs •Capitalist Clients Negate Pro Bono •Martin Clarifies RG Exam Report •Senate Discusses Exams •Notices •Terez: A Public Letter to John Riggins •Law in the Raw

The Morality Of Obedience, Joseph Raz

Michigan Law Review

A Review of A Theory of Law by Philip Soper

Sources Of Law, Legal Change, And Ambiguity, Michigan Law Review

Michigan Law Review

A Review of Sources of Law, Legal Change, and Ambiguity by Alan Watson