Law Commons^™

Excuses In Exile, Anders Kaye

University of Michigan Journal of Law Reform

Suppose that I have intentionally killed another person and that I have done so without any justification. At first glance, it appears that I am guilty of murder, a very serious crime. Since I am guilty of this very serious crime, the state may inflict a very serious punishment on me—at least many years in prison, if not my whole life or the death penalty. But suppose that one of the following is also true in my case: (A) At the time that I killed my victim, I suffered from a mental disease and, as a result, lacked the substantial …

Stubborn Things: An Empirical Approach To Facts, Opinions, And The First Amendment, Daniel E. Herz-Roiphe

Michigan Law Review First Impressions

This essay offers an empirical approach to the problem, rooted in an argument that the underlying rationale for the fact/opinion distinction in compelled speech doctrine tells us something about how this distinction should be policed. Commercial speech enjoys protection by virtue of its value to listeners, it is from the listener's vantage point, then, that courts should assess whether a compelled disclosure is fact or opinion. And if we are interested in learning how disclosures will affect listeners, we might try asking them, just as courts adjudicating trademark suits frequently use consumer surveys to determine how customers understand the meaning …

Facts, Fiction, And Perception In Hydraulic Fracturing: Illuminating Act 13 And Robinson Township V. Commonwealth Of Pennsylvania, Joshua P. Fershee

West Virginia Law Review

No abstract provided.

News On The Internet, Robert Denicola

Fordham Intellectual Property, Media and Entertainment Law Journal

Newspapers are in trouble. Circulation and advertising are down as readers shift from print to online media. Although changing reader preferences and the loss of lucrative classified advertising to online sources are major worries, the news media seems preoccupied with news aggregators and bloggers who distribute news content on the internet without permission. Newspapers are not the only ones worried about the unauthorized distribution of "their" news on the internet. Financial services companies are unhappy about the distribution of their "hot" stock recommendations and other content providers seek to control online news ranging from movie schedules to business ratings. Traditional …

Nino’S Nightmare: Legal Process Theory As A Jurisprudence Of Toggling Between Facts And Norms, William N. Eskridge Jr.

Saint Louis University Law Journal

No abstract provided.

Criminal Sanctions In The Defense Of The Innocent, Ehud Guttel, Doron Teichman

Michigan Law Review

Under the formal rules of criminal procedure, fact finders are required to apply a uniform standard of proof in all criminal cases. Experimental studies as well as real world examples indicate, however, that fact finders often adjust the evidentiary threshold for conviction in accordance with the severity of the applicable sanction. All things being equal, the higher the sanction, the higher the standard of proof that fact finders will apply in order to convict. Building on this insight, this Article introduces a new paradigm for criminal punishments-a paradigm that focuses on designing penalties that will reduce the risk of unsubstantiated …

Stipulating The Law, Gary Lawson

Michigan Law Review

In Free Enterprise Fund v. Public Company Accounting Oversight Board, the Supreme Court decided important questions of structural constitutionalism on the assumption, shared by all of the parties, that members of the Securities and Exchange Commission are not removable at will by the president. Four Justices strongly challenged the majority's willingness to accept what amounts to a stipulation by the parties to a controlling issue of law. As a general matter the American legal system does not allow parties to stipulate to legal conclusions, though it welcomes and encourages stipulations to matters of fact. I argue that one ought to …

New Pleading, New Discovery, Scott Dodson

Michigan Law Review

Pleading in federal court has a new narrative. The old narrative was one of notice, with the goal of broad access to the civil justice system. New Pleading, after the landmark Supreme Court cases of Twombly and Iqbal, is focused on factual sufficiency, with the purpose of screening out meritless cases that otherwise might impose discovery costs on defendants. The problem with New Pleading is that factual insufficiency often is a poor proxy for meritlessness. Some plaintifs lack sufficient factual knowledge of the elements of their claims not because the claims lack merit but because the information they need is …

Understanding Pleading Doctrine, A. Benjamin Spencer

Michigan Law Review

Where does pleading doctrine, at the federal level, stand today? The Supreme Court's revision of general pleading standards in Bell Atlantic Corp. v. Twombly has not left courts and litigants with a clear or precise understanding of what it takes to state a claim that can survive a motion to dismiss. Claimants are required to show "plausible entitlement to relief' by offering enough facts "to raise a right to relief above the speculative level." Translating those admonitions into predictable and consistent guidelines has proven illusory. This Article proposes a descriptive theory that explains the fundaments of contemporary pleading doctrine in …

Trends In Protection For Informational Works Under Copyright Law During The 19th And 20th Centuries, Miriam Bitton

Michigan Telecommunications & Technology Law Review

The debate over databases protection has failed to identify and discuss some of its most basic and preliminary assumptions, accepting instead many of the historical aspects involved as given. This Article therefore seeks to challenge these underlying assumptions by providing a fresh look at the historical dimension of the debate. One common argument regarding database protection is that the U.S. Supreme Court decision in Feist v. Rural Publications Inc. brought about a dramatic change in the legal landscape, displacing the then-accepted "sweat of the brow" rationale for protecting rights in databases. This Article's historical analysis therefore thoroughly examines the treatment …

"When You Come To A Fork In The Road, Take It," And Other Sage Advice For First-Time Law School Exam Takers, Patrick Wiseman

Georgia State University Law Review

No abstract provided.

The 2005 Philip C. Jessup International Lawmoot Court Competition. The Case Concerning The Vessel The Mairi Maru, Isla Journal Of International & Comparative Law

ILSA Journal of International & Comparative Law

In April of 2001, an agreement was entered into between Appollonia (Applicant) and Maguffin (not party to this case) for the exportation of MOX, produced by an Appollonian State-owned power plant. Since then, Appollonia has exported MOX to Maguffin via shipments traveling through the waters of Raglan (Respondent), located halfway between Appollonia and Maguffin.

Purchasing While Black: How Courts Condone Discrimination In The Marketplace, Matt Graves

Michigan Journal of Race and Law

Given the sweeping language of § 1981 and 1982, it cannot be that sellers of goods can engage in intentional discrimination, so long as they make relatively minor attempts to cover it up. By exploring the interaction between substantive law, procedural law, legal culture, and real-world context, Graves seeks to demonstrate that judges cannot offer any legal or practical justification for heightened pleading requirements in § 1981 and 1982 actions. Through this argument, a conclusion is reached that § 1981 and 1982 plaintiffs must be given the same opportunity to litigate their claims that virtually all other plaintiffs are given. …

Scientific Facts Vs. Political Values, Thomas G. Field Jr.

RISK: Health, Safety & Environment (1990-2002)

Professor Field takes exception to a recent Science editorial.

The Separation Of Facts And Values, Arthur Kantrowitz

RISK: Health, Safety & Environment (1990-2002)

Dr. Kantrowitz maintains that much modern pessimism derives from failure to separate what is from what ought to be and urges that scientific conflicts be resolved as value neutrally as possible.

Which Scientist Do You Believe - Process Alternatives In Technological Controversies, Thomas G. Field Jr.

RISK: Health, Safety & Environment (1990-2002)

Beyond introducing these papers, Professor Field argues that those designing processes for tasks originally contemplated by the Science Court proposal should closely consider, e.g., intervening experience with alternative dispute resolution.

In My Opinion, Those Are Not Facts, Abner J. Mikva

Georgia State University Law Review

No abstract provided.

Foreword Evidence Symposium: A Comparative Study Of Federal And New York Evidence Practice, Honorable Frank X. Altimari

Touro Law Review

No abstract provided.

Taking Fact Analysis Seriously, Bernard Robertson, G. A. Vignaux

Michigan Law Review

A Review of Analysis of Evidence: How To Do Things with Facts Based on Wigmore's Science of Judicial Proof by Terence Anderson and William Twining

Procedural Choices In Regulatory Science, Sheila Jasanoff

RISK: Health, Safety & Environment (1990-2002)

This paper compares four approaches to using science in regulatory decision making - one very similar to the Science Court proposal. Professor Jasanoff argues generally that that proposal would be less useful than procedures more sensitive to the distinctive characteristics of regulatory science.

Elitism Vs. Checks And Balances In Communicating Scientific Information To The Public, Arthur Kantrowitz

RISK: Health, Safety & Environment (1990-2002)

The "father of the Science Court" describes his objective in proposing the institution as it has come to be known, his efforts to get a major public test of the concept, and insights gained since the initial proposal was made in 1967.

Search & Seizure

Touro Law Review

No abstract provided.

Burdens Of Proof, Jose E. Alvarez

Michigan Journal of International Law

Review of the book Fact-Finding Before International Tribunals edited by Richard B. Lillich

The Status Of Erisa Plan Benefits In Bankruptcy After Patterson V. Shumate, Honorable Sidney M. Weaver, Robin J. Baikovitz

Nova Law Review

The United States Supreme Court recently handed down a decision that puts to rest a conflict among courts around the country.

Payne V. Tennessee: The Arbitrary Imposition Of The Death Penalty And A Review Of Florida Case Law Since: Booth V. Maryland, Michael P. Koller

Nova Law Review

In Booth v. Maryland,1 the United States Supreme Court decided

that evidence relating to a victim's character and the extent of harm

caused to the victim's family and community was inadmissible to deter-

mine whether a defendant convicted of a capital crime should be put to

death. The majority in Booth, while empathizing with the grief of a

victim's family, recognized the potential danger such evidence has on a

jury to sentence defendants to death based on such arbitrary factors as

what kind of person the victim was and the unforeseeable harm the

victim's death had on others.

Rules And Regulations

Touro Law Review

No abstract provided.

Toward An Expanded Conception Of Law Reform: Sexual Harassment Law And The Reconstruction Of Facts, Holly B. Fechner

University of Michigan Journal of Law Reform

This Note uses feminist reform of sexual harassment law to show how the reconstruction of factual descriptions can lead to change in the law. Part I describes the feminist methodology of consciousness raising and analyzes Catharine MacKinnon's Sexual Harassment of Working Women as an example of a successful consciousness-raising tool. Part II discusses sexual harassment doctrine and presents a case study illustrating how changing the way legal decision makers think about facts can lead to law reform. Part III discusses how social construction theory aids understanding of changes in sexual harassment law.

The Use/Nonuse/Misuse Of Applied Social Research In The Courts, Michigan Law Review

Michigan Law Review

A Review of The Use/Nonuse/Misuse of Applied Social Research in the Courts edited by Michael J. Saks and Charles H. Baron

The Facts Of A Case, Irving Younger

University of Arkansas at Little Rock Law Review

No abstract provided.

An Expert's Reputation, Malcolm Merry

Dalhousie Law Journal

"Comment is free, but facts are sacred" is both a good working tale for journalists and a fairly accurate encapsulation of their obligations under the law of libel. The difficulty of course lies in sorting out fact from comment. It was this difficulty that faced the Nova Scotia courts in Barltrop v. Canadian Broadcasting Corporation, 1 and the appeal judges came up with a different answer from the trial judge. The case was one of the legal reverberations of the controversy about lead poisoning in Toronto during 1974. The C.B.C.'s programme "As It Happens" broadcast a special feature on the …