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University of Michigan Law School

2001

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Full-Text Articles in Law

Vol. 52, No. 6, December 4, 2001, University Of Michigan Law School Dec 2001

Vol. 52, No. 6, December 4, 2001, University Of Michigan Law School

Res Gestae

•Yearbooks through the Years •A Comment on Career Services •Letter to the Editor •Keeping Up With Generation PlayStation •The Insider •Form and Substance in Law Journal Publication (Part II)* •Two Movies to See •This Year's 10 Best Albums •Behind the Shadows •Crossword


The Imperial Sovereign: Sovereign Immunity & The Ada, Judith Olans Brown, Wendy E. Parmet Dec 2001

The Imperial Sovereign: Sovereign Immunity & The Ada, Judith Olans Brown, Wendy E. Parmet

University of Michigan Journal of Law Reform

Professors Brown and Parmet examine the impact of the Supreme Court's resurrection of state sovereign immunity on the rights of individuals protected by the Americans with Disabilities Act in light of the recent decision, Board of Trustees of the University of Alabama v. Garrett. Placing Garrett within the context of the Rehnquist Court's evolving reallocation of state and federal authority, they argue that the Court has relied upon a mythic and dangerous notion of sovereignty that is foreign to the Framers' understanding. Brown and Parmet go on to show that, by determining that federalism compels constraining congressional power ...


Civil War Pension Attorneys And Disability Politics, Peter Blanck, Chen Song Dec 2001

Civil War Pension Attorneys And Disability Politics, Peter Blanck, Chen Song

University of Michigan Journal of Law Reform

Professor Blanck and Dr. Song provide a detailed examination of the pension disability program established after the Civil War for Union Army Veterans. They use many original sources and perform several statistical analyses as the basis for their summary. They draw parallels between this disability program and the ADA, and they point out that current ADA plaintiffs encounter many of the same social, political and even scientific issues that Union Army veterans dealt with when applying for their disability pensions. The Article demonstrates that history can help predict the trends within, and evolution of the ADA--essentially leading to a better ...


Disability, Equal Protection, And The Supreme Court: Standing At The Crossroads Of Progressive And Retrogressive Logic In Constitutional Classification, Anita Silvers, Michael Ashley Stein Dec 2001

Disability, Equal Protection, And The Supreme Court: Standing At The Crossroads Of Progressive And Retrogressive Logic In Constitutional Classification, Anita Silvers, Michael Ashley Stein

University of Michigan Journal of Law Reform

This Article compares current disability jurisprudence with the development of sex equality jurisprudence in the area of discrimination. It demonstrates that current disability law resembles the abandoned, sexist framework for determining sex equality and argues that disability equality cases should receive similar analysis as the more progressive, current sex equality standard. As such, the Article attempts to synthesize case law (14th Amendment Equal Protection jurisprudence) and statutory law (Title VII and the ADA) into a comprehensive overview of the state of current disability law viewed within the context of discrimination law in general.


"What's Good Is Bad, What's Bad Is Good, You'll Find Out When You Reach The Top, You're On The Bottom": Are The Americans With Disabilities Act (And Olmstead V. L. C.) Anything More Than "Idiot Wind?", Michael L. Perlin Dec 2001

"What's Good Is Bad, What's Bad Is Good, You'll Find Out When You Reach The Top, You're On The Bottom": Are The Americans With Disabilities Act (And Olmstead V. L. C.) Anything More Than "Idiot Wind?", Michael L. Perlin

University of Michigan Journal of Law Reform

Mental disability law is contaminated by "sanism, " an irrational prejudice similar to such other irrational prejudices as racism and sexism. The passage of the Americans with Disabilities Act (ADA)-a statute that focused specifically on questions of stereotyping and stigma-appeared at first to offer an opportunity to deal frontally with sanist attitudes and, optimally, to restructure the way that citizens with mental disabilities were dealt with by the remainder of society. However, in its first decade, the ADA did not prove to be a panacea for such persons. The Supreme Court's 1999 decision in Olmstead v. L.C. - ruling ...


Envisioning A Future For Age And Disability Discrimination Claims, Alison Barnes Dec 2001

Envisioning A Future For Age And Disability Discrimination Claims, Alison Barnes

University of Michigan Journal of Law Reform

This Article considers the reasons for reinterpretations of age and disability and examines the fundamental reasons for changes in the implementation of both the ADA and ADEA. Part I presents the basic structure and relevant requirements of the two statutes and comments on the reasons their legislative purposes are not often seen as overlapping. Part II discusses the recent Supreme Court decisions that have undermined the purposes and implementation of both the ADA and ADEA and chilled causes of action based on the ADA and ADEA. Part III projects the current problems with anti-discrimination causes into the future, when older ...


Reforming Disability Nondiscrimination Laws: A Comparative Perspective, Stanley S. Herr Dec 2001

Reforming Disability Nondiscrimination Laws: A Comparative Perspective, Stanley S. Herr

University of Michigan Journal of Law Reform

Comparing the law and policies of other countries concerning disability rights to ours can help us understand how we may strengthen those rights and heighten compliance with nondiscrimination laws. Since it took effect in 1992, the Americans with Disabilities Act (ADA) has been a leading example of such comprehensive legislation on behalf of people with disabilities. Along with the United Nations Standard Rules on Equalization of Opportunities for Persons with Disabilities, the ADA has inspired many countries to develop their own disability nondiscrimination laws and remedial agencies. This process must work in both directions, however, and laws and agencies from ...


Introduction To "Books", Margaret A. Leary Dec 2001

Introduction To "Books", Margaret A. Leary

Articles

It's well known that graduate William B. Cook's generosity provided the Law School with its trademark Gothic Law Quadrangle. It is less universally known that Cook endowed the Law School with a trust to support faculty research, and had a strong interest in the nature of that research. He chose to call the library building "Legal Research" and to inscribe above the main entrance "Learned and cultured lawyers are safeguards of the republic." Cook often said that the lack of "intellectual leadership 1s the greatest problem which faces America," and he wanted this Law School to provide that ...


Preface, Journal Of Law Reform Dec 2001

Preface, Journal Of Law Reform

University of Michigan Journal of Law Reform

A preface to a University of Michigan Journal of Law Reform symposium entitled The Americans With Disabilities Act: Directions for Reform.


Constitutional Doctrine As Paring Tool: The Struggle For "Relevant" Evidence In University Of Alabama V. Garrett, Pamela Brandwein Dec 2001

Constitutional Doctrine As Paring Tool: The Struggle For "Relevant" Evidence In University Of Alabama V. Garrett, Pamela Brandwein

University of Michigan Journal of Law Reform

This Article examines the difficulties involved in translating the social model of disability into the idiom of constitutional law. The immediate focus is University of Alabama v. Garrett. Both parts of this Article consider how disability rights claims collide with a discourse of legitimacy in constitutional law. Part I focuses on the arguments presented in several major Briefs filed in support of Garrett. Constitutional doctrines are conceived as paring tools and it is shown how the Court used these doctrines to easily pare down the body of evidence Garrett's lawyers sought to claim as relevant in justifying the ADA ...


The Death Of Section 504, Ruth Colker Dec 2001

The Death Of Section 504, Ruth Colker

University of Michigan Journal of Law Reform

This Article argues that the passage of the ADA had an unexpected consequence, namely the narrowing of the rights that were understood to exist under Section 504. Section 504 covered two broad areas of the law: the law of employment for individuals employed by entities receiving federal financial assistance and the law of education for students attending primary, secondary or higher education. The effect on the law of employment, which I will discuss in Part II, has been immediate and dramatic. The effect on the law of education, discussed in Part III, cannot yet be fully documented. Recent decisions, however ...


Recent Books, Michigan Law Review Dec 2001

Recent Books, Michigan Law Review

Michigan Law Review

A list of books recenlty received by Michigan Law Review.


The Pathological Politics Of Criminal Law, William J. Stuntz Dec 2001

The Pathological Politics Of Criminal Law, William J. Stuntz

Michigan Law Review

Substantive criminal law defines the conduct that the state punishes. Or does it? If the answer is yes, it should be possible, by reading criminal codes (perhaps with a few case annotations thrown in), to tell what conduct will land you in prison. Most discussions of criminal law, whether in law reviews, law school classrooms, or the popular press, proceed on the premise that the answer is yes. Law reform movements regularly seek to broaden or narrow the scope of some set of criminal liability rules, always on the assumption that by doing so they will broaden or narrow the ...


Swallowing The Apple Whole: Improper Patent Use By Local Rule, Ellisen S. Turner Dec 2001

Swallowing The Apple Whole: Improper Patent Use By Local Rule, Ellisen S. Turner

Michigan Law Review

During patent infringement litigation, the Federal Rules of Civil Procedure ("FRCP") and the federal district court's local rules govern the parties' pretrial discovery and motion practice. The U.S. District Court for the Northern District of California has adopted the most comprehensive local rules to date covering pretrial procedures in the patent litigation context. The Northern District of California Patent Local Rules ("Local Rules") may come to have a significant impact throughout the federal courts, as it appears that other jurisdictions and commentators are looking to the Local Rules for guidance. For instance, the American Bar Association Section of ...


Property Rights And Liability Rules: The Ex Ante View Of The Cathedral, Lucian Arye Bebchuk Dec 2001

Property Rights And Liability Rules: The Ex Ante View Of The Cathedral, Lucian Arye Bebchuk

Michigan Law Review

This Article aims to contribute to the study of how the law should allocate and protect entitlements in the presence of externalities. In their classic article published thirty years ago, Calabresi and Melamed studied such questions and offered what they labeled "one view of the Cathedral." I seek to add to the inquiry started by Calabresi and Melamed by offering an ex ante perspective and analyzing how allocations of entitlements affect parties' ex ante actions and investments. Suppose that an upstream Factory would benefit from an activity that would pollute a river and harm an activity conducted by a downstream ...


Vol. 52, No. 5, November 13, 2001, University Of Michigan Law School Nov 2001

Vol. 52, No. 5, November 13, 2001, University Of Michigan Law School

Res Gestae

•What's in a Name? •The Rant •Wide World of Workshops •Form and Substance in Law Journal Publication •The Insider •Point Shmoint •New CDs •Fore! •The Island: More Tempting Than Ever


Why The Corporate Amt Should Be Retained, Reuven S. Avi-Yonah Nov 2001

Why The Corporate Amt Should Be Retained, Reuven S. Avi-Yonah

Articles

The corporate AMT is under attack. Repeal has been proposed by the White House, endorsed by the ABA/AICPA/TEI tax simplification project, and included in the stimulus bill passed by the House of Representatives. Repeal is supported on two principal grounds: That the corporate AMT increases complexity, and that it is pro-cyclical.


A Political History Of The Establishment Clause, John C. Jeffries Jr., James E. Ryan Nov 2001

A Political History Of The Establishment Clause, John C. Jeffries Jr., James E. Ryan

Michigan Law Review

Now pending before the Supreme Court is the most important church-state issue of our time: whether publicly funded vouchers may be used at private, religious schools without violating the Establishment Clause. The last time the Court considered school aid, it overruled precedent and upheld a government program providing computers and other instructional materials to parochial schools. In a plurality opinion defending that result, Justice Thomas dismissed as irrelevant the fact that some aid recipients were "pervasively sectarian." That label, said Thomas, had a "shameful pedigree." He traced it to the Blaine Amendment, proposed in 1875, which would have altered the ...


The Limits Of Localism, Richard C. Schragger Nov 2001

The Limits Of Localism, Richard C. Schragger

Michigan Law Review

In Chicago v. Morales, the Supreme Court struck down Chicago's Gang Congregation Ordinance, which barred "criminal street gang members from loitering with one another or with other persons in any public place." The stated purpose of the ordinance was to wrest control of public areas from gang members who, simply by their presence, intimidated the public and established control over identifiable areas of the city, namely certain inner-city streets, sidewalks, and corners. The ordinance required that police officers determine whether at least one of two or more persons present in a public place were members of a criminal street ...


A Hybrid Approach To The Use Of Deliberate Ignorance In Conspiracy Cases, Jessica A. Kozlov-Davis Nov 2001

A Hybrid Approach To The Use Of Deliberate Ignorance In Conspiracy Cases, Jessica A. Kozlov-Davis

Michigan Law Review

When hunted, the ostrich is said to run a certain distance and then thrust its head into the sand, thinking, because it cannot see, that it cannot be seen by the hunters. Legal parlance therefore refers to the "ostrich instruction," used when a defendant acts with the awareness of a high probability of the existence of an incriminating fact, but remains deliberately ignorant as to whether the fact actually exists, hoping his ignorance will maintain his innocence. The defendant is like the ostrich - he thinks that if he does not actually see the facts, even though he knows they are ...


Recent Books, Michigan Law Review Nov 2001

Recent Books, Michigan Law Review

Michigan Law Review

A list of books recenlty received by Michigan Law Review.


Vol. 52, No. 4, October 30, 2001, University Of Michigan Law School Oct 2001

Vol. 52, No. 4, October 30, 2001, University Of Michigan Law School

Res Gestae

•Dangerous Times: Use Caution •Homeland Security: Get Real! •T.M.C.- This Man Contributed •The Insider •Making a Point: How to Give the Ho a Southwest Beatdown •The Voice of Satan •Restaurants for When Someone Else is Paying •Crossword


Vol. 52, No. 3, October 16, 2001, University Of Michigan Law School Oct 2001

Vol. 52, No. 3, October 16, 2001, University Of Michigan Law School

Res Gestae

•Editorial: Anthrax •Taking Sound Bites Seriously •Things that make you go hmm… •Japanese in Ann Arbor •The Insider •Buffy Reruns Rock •Crossword


Vol. 52, No. 2, October 2, 2001, University Of Michigan Law School Oct 2001

Vol. 52, No. 2, October 2, 2001, University Of Michigan Law School

Res Gestae

•Editorial: listserv •Why I Like U of M Law So Far •Everything You Always Wanted to Know About OCI But Were Afraid to Ask •Corporate "Firmin"- "spray 'em with Raid!" •Cheap Eats in Ann Arbor •Thoughts on HBO's Epic Miniseries Band of Brothers •The Insider •The Major Postseason Awards •Crossword


Dissing Congress, Ruth Colker, James J. Brudney Oct 2001

Dissing Congress, Ruth Colker, James J. Brudney

Michigan Law Review

The Supreme Court under Chief Justice Rehnquist's recent leadership has invalidated numerous federal laws, arguably departing from settled precedent to do so. The Rehnquist Court has held that Congress exceeded its constitutional authority in five instances during the 2000-01 Term, on four occasions during the 1999-2000 Term and in a total of twenty-nine cases since the 1994-95 Term. Commentators typically explain these decisions in federalism terms, focusing on the Court's use of its power to protect the States from an overreaching Congress. That explanation is incomplete and, in important respects, unpersuasive. The Rehnquist Court has not been as ...


Recent Books, Michigan Law Review Oct 2001

Recent Books, Michigan Law Review

Michigan Law Review

A list of books recenlty received by Michigan Law Review.


Optimal Delegation And Decoupling In The Design Of Liability Rules, Ian M. Ayres, Paul M. Goldbart Oct 2001

Optimal Delegation And Decoupling In The Design Of Liability Rules, Ian M. Ayres, Paul M. Goldbart

Michigan Law Review

Calabresi and Melamed began a scholarly revolution by showing that legal entitlements have two readily distinguishable forms of protection: property rules and liability rules. These two archetypal forms protect an entitlement holder's interest in markedly different ways - via deterrence or compensation. Property rules protect entitlements by trying to deter others from taking. Liability rules, on the other hand, protect entitlements not by deterring but by trying to compensate the victim of nonconsensual takings. Accordingly, the compensatory impetus behind liability rules focuses on the takee's welfare - making sure the sanction is sufficient to compensate the takee. The deterrent impetus ...


When Constitutional Worlds Colide: Resurrecting The Framers' Bill Of Rights And Criminal Procedure, George C. Thomas Iii Oct 2001

When Constitutional Worlds Colide: Resurrecting The Framers' Bill Of Rights And Criminal Procedure, George C. Thomas Iii

Michigan Law Review

For two hundred years, the Supreme Court has been interpreting the Bill of Rights. Imagine Chief Justice John Marshall sitting in the dim, narrow Supreme Court chambers, pondering the interpretation of the Sixth Amendment right to compulsory process in United States v. Burr. Aaron Burr was charged with treason for planning to invade the Louisiana Territory and create a separate government there. To help prepare his defense, Burr wanted to see a letter written by General James Wilkinson to President Jefferson. In ruling on Burr's motion to compel disclosure, Marshall departed from the literal language of the Sixth Amendment ...


Toward A Motivating Factor Test For Individual Disparate Treatment Claims, Benjamin C. Mizer Oct 2001

Toward A Motivating Factor Test For Individual Disparate Treatment Claims, Benjamin C. Mizer

Michigan Law Review

Nathan Fields, an African-American employee at the New York State Office of Mental Retardation and Developmental Disabilities ("OMRDD"), was in many ways the typical Title VIP employment discrimination plaintiff, with a case that, on its face, suggested both discriminatory and benign actions by his employer. For six years, Fields worked as a maintenance assistant in the electrical shop at OMRDD's Oswald D. Heck Developmental Center ("Heck"). During that time, he twice applied for a promotion, and on each occasion, Heck selected white employees for the position. In addition, Fields claimed that he was discriminatorily singled out for disciplinary treatment ...


Vol. 52, No. 1, September 18, 2001, University Of Michigan Law School Sep 2001

Vol. 52, No. 1, September 18, 2001, University Of Michigan Law School

Res Gestae

•'Til Tuesday •Human Spirit •In the Wake of the News •Apocalypse When •Never the Same Again •The Case for Rage and Retribution •Video Crop Anemic •The Insider •Crossword