Law Commons^™

Vol. 50, No. 6, December 1, 1999, University Of Michigan Law School

Res Gestae

•Prospective Faculty to Speak Within Next Week •Yingtao, Justified •Persian Pride •More Top 10 Lists •Shopping Guide •Tumble Freely •Dogma Trashed

Vol. 50, No. 5, November 9, 1999, University Of Michigan Law School

Res Gestae

•LSSS Recognizes Bill Bradley Student Group •Yingtao on Guns •New Winter Courses •The J Arch Project •Movie Reviews •Interview of the Year •Music Reviews

Vol. 50, No. 4, October 19, 1999, University Of Michigan Law School

Res Gestae

•Curriculum Committee Debates Changes to Interview Season •Winter Grade Curve •Email Abuse •Get Musical! •Hornbook Workout •Larry Returns! •TBIYTC

Vol. 50, No. 3, October 5, 1999, University Of Michigan Law School

Res Gestae

•Election Results are In •Affirmative Action •A2: Ripoff City •3 Second Memory •Fashion for Profs •More on Trolleys •Movie Reviews

Vol. 50, No.2, September 21, 1999, University Of Michigan Law School

Res Gestae

•Student Senate Elections Next Wednesday & Thursday •The Economist •1L Reflections •What Law Review? •3 Second Memory •Movie Reviews •Gotta Go

Vol. 50, No. 1, September 7, 1999, University Of Michigan Law School

Res Gestae

•Vol. 1, No. 1 •The Growing Quad •Issues Still With Us •Cartoons •Asking for Trouble •Interview Tips

The Jury And Scientific Evidence, Richard O. Lempert

Articles

Read court decisions and commentaries from 100, or evenfive years ago, and you will find that experts and scientific evidence were causing problems then just as they are causing problems now. I do not think that Daubert, Kumho Tire, or any change in a rule of evidence will keep expert scientific testimony from being a difficult area for the legal system. Yet we must still ask: "What are the best terms on which to deal with scientific experts, and how can weimprove the system?"

Regulating Doctors, Carl E. Schneider

Articles

Alawyer today can hardly speak to a doctor--or even be treated by one-without being assailed by lawyer jokes. These jokes go well beyond good-humored badinage and pass the line into venom and gall. They reflect, I think, the sense many doctors today have that they are embattled and endangered, cruelly subject to pervasive and perverse controls. This is puzzling, almost to the point of mystery. Doctors have long been the American profession with the greatest social prestige, the greatest wealth, and the greatest control over its work. Indeed, what other profession has been as all-conquering? One may need to go …

Juries, Hindsight, And Punitive Damage Awards: Failures Of A Social Science Case For Change, Richard O. Lempert

Articles

In their recent Arizona Law Review article entitled What Juries Can't Do Well: The Jury's Performance As a Risk Manager,' Professors Reid Hastie and W. Kip Viscusi purport to show that juries are likely to do a poor job in setting punitive damages, largely because jurors cannot avoid the influence of what is called "hindsight bias," or the tendency to see the likelihood of an event higher in retrospect than it would have appeared before it happened. In particular, they argue that hindsight bias and other cognitive biases undermine the utility of jury-set punitive damage awards as risk management devices. …

The Influence Of Income Tax Rules On Insurance Reserves, David F. Bradford, Kyle D. Logue

Book Chapters

An insurance company is a financial intermediary whose main line of business is the sale of a particular type of contingent contract, called an insurance policy. Under this contract, the insurer promises to pay some amount to the policyholder, or to some other beneficiary, following the occurrence of an insured event. In the context of property-casualty insurance, the relevant insured events include, for example, the accidental destruction of the insured's property or the award of a liability judgment against the insured. In return for this promise the insured pays the insurer a premium. The premium and the earnings on the …

Family Law In The Age Of Distrust, Carl E. Scheider

Articles

I have been invited to examine the relationship between American culture and American family law at the end of the century. No doubt I was foolish to accept the invitation, since the topic can hardly be sketched, much less discussed, within the compass of even a lengthy article. On the other hand, that happy fault forces me to accept the luxury of writing a speculative essay and of eschewing the footnotes that are the misery (and majesty) of the academic lawyer. But even thus set free I am still enchained. Family law is shaped by more cultural forces than I …

Vol. 49, No. 10, April 14, 1999, University Of Michigan Law School

Res Gestae

•SFF Auction Hauls in Over $29,000 •Campbell Finalists Defeat Vouchers •Letter to the Editor •Faculty Hiring Exposed •Alumni Update •Final Tale from Cambodia •Tenure Illustrated •Madness in DC •Interview: Yale Kamisar

Vol. 49, No. 9.5, April 1, 1999, University Of Michigan Law School

Res Gestae

•Final Plans for "New" Building Announced •US News Admits Ranking Error: UM Law #1 •ABA Accreditation in Jeopardy Due to Faculty Teaching Practices •The News as We See It •Interview with the Dean •Are You a BPOC? •3Ls Donate Integrity

Vol. 49, No. 9, March 29, 1999, University Of Michigan Law School

Res Gestae

•Liberian Book Drive Overwhelming Success •SFF Gears Up for Annual Fundraising Auction •$25,000 Directed by YOU •Fall 1998 Grade Curve •Bruce is Psychic •Going Once, Going Twice

Vol. 49, No. 8, March 17, 1999, University Of Michigan Law School

Res Gestae

•WLSA & Federalists Sponsor Debate •Debt Management Program Banishes 'Firm Future' Nightmares •Juan Tienda Lives On •The RG Finally Gets a Letter •Message from the President •Sure to Become a Classic •Tales from Cambodia •Lawyer Flick of the Year •Eggiweg McMuffin •CDs You've Never Heard Of

Vol. 49, No. 7, February 24, 1999, University Of Michigan Law School

Res Gestae

•Terrorism Symposium Sparks Debate •Success for Jessup Team •Think Like a Lawyer •SUV's and Nifty Loopholes •Desensitization •Droit de Seigneur •A Modest Proposal •Sage Advice •Guest Columnist Emeritus

Vol. 49, No. 6, February 15, 1999, University Of Michigan Law School

Res Gestae

•Stalking, Robbery, & Embezzlement •Saints Be Praised •Tales From Cambodia •Political Pronouns •Five Gavel Rating •Just Say No •Just Getting' By •Back to Nature

Vol. 49, No. 5, January 28, 1999, University Of Michigan Law School

Res Gestae

•On-Campus Interviews, Part Two •Winter Ball February 4 •Under New Management •Fly the Friendly Skies •For Your Creative Side •Everyone's a Critic •What IS His Problem? •Personal Politics •Ricta Returns

Minority Preferences Reconsidered, Terrance Sandalow

Reviews

During the academic year 1965-66, at the height of the civil rights movement, the University of Michigan Law School faculty looked around and saw not a single African-American student. The absence of any black students was not, it should hardly need saying, attributable to a policy of purposeful exclusion. A black student graduated from the Law School as early as 1870, and in the intervening years a continuous flow of African-American students, though not a large number, had been admitted and graduated. Some went on to distinguished careers in the law.

Failure And Forgiveness: A Review, James J. White

Reviews

In Failure and Forgiveness, Professor Karen Gross has written two books about bankruptcy. The first book, found in the first nine chapters, describes the bankruptcy law, the bankruptcy system, its operation, and the policies that support that law and system. This first book is written for a lay audience, and it is an admirable exposition of the law and policy. The second book, chapters ten to fifteen, contains several proposals for change in the bankruptcy law and states arguments to justify those proposals. The second book shows Professor Gross to be a kindly socialist, deeply suspicious of free markets and …

Dicta, University Of Michigan Law School

Miscellaneous Law School History & Publications

We all need art, and to see it flourish in our own academic community is cause for celebration and gratitude. Thank you, contributors, for sharing the fruits of your creative energy with your friends and colleagues.

The Editors would also like to extend a hearty thank you to the Law School Student Senate for its continued and generous financial support.

As always, we invite each member of the law school community to get involved with the journal - either as an editor or as a contributor. In the words of Dicta's founding law students, "don't let this good thing die"! …

Honors Convocation, University Of Michigan Law School

Commencement and Honors Materials

Program for the May 14, 1999 University of Michigan Law School Honors Convocation.

International Refugee Law: The Michigan Guidelines On The Internal Protection Alternative, James C. Hathaway

Articles

International refugee law is designed only to provide a back-up source of protection to seriously at-risk persons. Its purpose is not to displace the primary rule that individuals should look to their state of nationality for protection, but simply to provide a safety net in the event a state fails to meet its basic protective responsibilities.1 As observed by the Supreme Court of Canada, "[t]he international community was meant to be a forum of second resort for the persecuted, a 'surrogate,' approachable upon the failure of local protection. The rationale upon which international refugee law rests is not simply the …

In Memoriam: Lewis F. Powell, Jr., Christina B. Whitman

Articles

At the time of his resignation, Justice Lewis F. Powell, Jr. was justly praised as a moderate, flexible jurist - open-minded, suspicious of ideology, most often found at the center of a divided Supreme Court. Yet Justice Powell was a man of deeply conservative instincts. Suspicious of invitations to expand the scope of individual constitutional rights, he was a participant and even a leader in the Court's reassertion of a federalism that emphasized deference to states and in its reinvigoration of restrictions on access to federal courts. His jurisprudence was all of a piece. Justice Powell's reluctance to expand federal …

The Tentative Case Against Flexibility In Commercial Law, Omri Ben-Shahar

Articles

Well-rooted in modern commercial law is the idea that the law and the obligations that it enforces should reflect the empirical reality of the relationship between the contracting parties. The Uniform Commercial Code ("Code") champions this tradition by viewing the performance practices formed among the parties throughout their interaction as a primary source for interpreting and supplementing their explicit contracts. The generous recognition of waiver and modifications, as well as the binding force the Code accords to course of performance, course of dealings, and customary trade usages, effectively permits unwritten commercial practices to vary and to erode explicit contractual provisions.

Making Something Out Of Nothing: The Law Of Takings And Phillips V. Washington Legal Foundation, Michael A. Heller, James E. Krier

Articles

Phillips v. Washington Legal Foundation held that interest on principal amounts deposited into IOLTA accounts is the property of the various clients who handed over the money but expressed no view as to whether the Texas IOLTA program worked a taking, or, if it did, whether any compensation was due. The debates among the justices about the meaning of private property, argued in terms of contextual and conceptual severance, are unlikely to prove fruitful. We elaborate a better approach in terms of the underlying purposes of just compensation. We conclude that efficiency and justice are best served by uncoupling matters …

Why The Proposal To Legalize Physician-Assisted Suicide In Michigan Failed, Yale Kamisar

Articles

Some commentators and participants in the national debate over physician-assisted suicide (PAS) made much of the fact that in 1997 Oregon voters reaffirmed their support for assisted suicide by a much larger margin than the initial 1994 vote. The state legislature had put the initiative (which had initially passed by a 5149% vote) back on the ballot for an unprecedented second vote. This time the initiative was reaffirmed overwhelmingly, 60-40%. Barbara Coombs Lee, Executive Director of Compassion in Dying (an organization that counsels people considering PAS and one of the plaintiffs in Washington v. Glucksberg, 1997), hailed the second Oregon …

Legal Writing Scholarship: Point/Counterpoint, Jan M. Levine, Grace C. Tonner

Articles

Perhaps because the field of legal writing has now matured enough so that we professors constitute a critical mass of experienced teachers and scholars, we find ourselves frequently embroiled in debates about legal writing scholarship. What is it? Can we do it? Should we do it? Should it be considered part and parcel of our responsibilities as members of the law school world? To help us better present our shared view that legal writing professors not only can but should produce scholarship, we sought first to take on the role of devil’s advocate, presenting all the rationales we have heard …

Review Of The Repeal Of Reticence: A History Of America's Cultural And Legal Struggles Over Free Speech, Obscenity, Sexual Liberation, And Modern Art, Donald J. Herzog

Reviews

Our public sphere, which should have displayed and preserved the grandeur and beauty of our civic ideals and moral excellences, is instead inane and vacuous when it is not utterly mean, ugly, or indecent (p. 4). Troubled by the tawdry nonsense circulating in the public sphere-and she wrote before learned enquiries into whether the President's genitals had any distinguishing characteristics- Rochelle Gurstein turns to history to understand how we arrived at such a sorry destination. Hers is a tale of decline: The Victorians "we moderns" so routinelyd eridef or theirP uritanicalr epressivenessu nderstoodf ull well that certain things have to …

Beyond The Hero Judge: Institutional Reform Litigation As Litigation, Margo Schlanger

Reviews

In 1955, in its second decision in Brown v. Board of Education, the Supreme Court suggested that federal courts might be called upon to engage in long-term oversight of once-segregated schools. Through the 1960s, southern resistance pushed federal district and appellate judges to turn that possibility into a reality. The impact of this saga on litigation practice extended beyond school desegregation, and even beyond the struggle for African-American equality; through implementation of Brown, the nation’s litigants, lawyers, and judges grew accustomed both to issuance of permanent injunctions against state and local public institutions, and to extended court oversight of compliance. …