Law Commons^™

Misuse Of The Antitrust Laws: The Competitor Plaintiff, Edward A. Snyder, Thomas E. Kauper

Michigan Law Review

In this article we ask (1) under what circumstances are competitor suits meritorious, and (2) do existing rules, such as those requiring proof of market power or other so-called filters and the requirement that plaintiffs suffer "antitrust injury," afford a reasonable prospect of eliminating anticompetitive misuses of the remedy by competitor plaintiffs? We evaluate a sample of seventy-four cases in which plaintiffs sued their rivals to learn how competitor plaintiffs use the private antitrust remedy. And because many of these cases allege anticompetitive exclusionary practices, we consider how recent theories of exclusionary practices may be used to support competitor claims. …

Guilt: Henry Friendly Meets The Maharal Of Prague, Irene Merker Rosenberg, Yale L. Rosenberg

Michigan Law Review

So while the overnight deliberation rule is at least partially bound up with the question of reliability and relates to the judicial process itself, the broader and more fundamental issue raised by this law is whether we should free the guilty to preserve a value that we deem necessary to proper working of the criminal justice process, regardless of the culpability of individual defendants. To this Judge Friendly's answer is generally no, 113 and the MaHaRaL's is yes.

Personal Jurisdiction Over Aliens In Patent Infringement Actions: A Uniform Approach Toward The Situs Of The Tort, David Wille

Michigan Law Review

This Note examines current approaches to the question of personal jurisdiction over alien patent infringers. Part I describes personal jurisdiction requirements in the context of patent infringement suits against aliens. The leading case addressing these requirements has been interpreted differently by several courts, thus resulting in conflicting outcomes. Part II explains the current controversy over the locus of the tort of patent infringement. The three different modes of reasoning currently used by courts to determine the locus of the tort would allow immunity from suit for the alien in at least two hypothetical cases. This Part concludes that in order …

The Breath Of The Unfee'd Lawyer: Statutory Fee Limitations And Ineffective Assistance Of Counsel In Capital Litigation, Albert L. Vreeland Ii

Michigan Law Review

This Note argues that fee limitations deprive indigent defendants of their right to effective assistance of counsel. Part I of this Note reviews state court decisions that address Sixth Amendment challenges to fee limitations, yet fail to address the broader concerns about the appointed counsel system. Part II considers the inherent disincentives and burdens fee limitations impose on attorneys and suggests that the limits threaten the indigent accused's right to effective assistance of counsel. A comparison of the fee limitations and the time required to prepare and try a capital case reveals the gross inadequacy of statutory fee provisions. In …

Read My Lips: Examining The Legal Implications Of Knowingly False Campaign Promises, Stephen D. Sencer

Michigan Law Review

This Note does not argue that campaign speech should always be held to the same standards of accuracy to which other forms of speech are held. Campaign speech is unique in form, with its own idioms and rhetorical devices, and serves unique purposes.

Part I discusses the ways false campaign promises damage the political process and suggests that attaching legal liability to knowingly false campaign promises could serve important public policy interests. Part II applies common law contract doctrine to a hypothetical broken campaign promise, finding all the elements of a breach of contract claim. Part II concludes, however, that …

Remedying Environmental Racism, Rachel D. Godsil

Michigan Law Review

This Note addresses the equity issues that arise in the placement of commercial hazardous waste facilities. Currently, minorities are shouldering an unequal share of the burdens of hazardous waste16 while the benefits of production that results in hazardous waste are dispersed throughout society. Studies demonstrate that poor whites are overburdened as well. While inequitable distribution of wastesites along class lines is troubling and deserving of attention, this Note focuses specifically on the burdens facing racial minorities.

This Note contends that all races should share equitably the burdens and risks of hazardous waste facilities. Part I documents the disproportionate burden of …

An Interpretive History Of Modern Equal Protection, Michael Klarman

Michigan Law Review

My enterprise here is to write a limited history of modem equal protection - one that will facilitate understanding of the important conceptual shifts that have occurred over time. By "modem" I mean the period following the switch-in-time in 1937 that signaled the demise of the Lochner era. By "limited" I mean an account that falls substantially short of a full-scale history of equal protection, which would, for example, necessarily encompass a good deal of political and social history. My aim here, rather, is to tell a story about the evolution of equal protection as a legal concept; I shall, …

Rolling Down The Curtain On "Roll-Ups": The Case For Federal Legislation To Protect Limited Partners, Kenneth R. Hillier

Michigan Law Review

This Note examines roll-ups and the lack of alternatives available to reluctant limited partners. Part I focuses on existing judicial remedies for limited partners, such as injunctions and actions for damages, and explains why these courses of action provide inadequate protection. This Part then reviews recent attempts at statutory protection and points out the shortcomings of these remedies. Part II examines safeguards afforded analogously situated corporate shareholders and sets forth arguments why limited partners should receive similar protection. After demonstrating the need for legislation, Part III suggests a workable structure for this statutory protection. Then, the Note discusses the relative …

"The Eternal Triangles Of The Law": Toward A Theory Of Priorities In Conflicts Involving Remote Parties, Menachem Mautner

Michigan Law Review

Anglo-American priority law is premised on a doctrinal-derivational approach under which "triangle conflicts" are supposed to be resolved on the basis of the legal rights that the intermediate, wrongdoing party could have transferred from the first-in-time competing party to the second-in-time competing party. In Part I, I outline the major propositions of this approach. I argue that in focusing on the intermediate party, the doctrinal-derivational approach fails to address the primary consideration relevant to resolving triangle conflicts, namely the conduct of the two remote claimants involved in the conflict. In Part II, I focus on the two remote parties involved …

Legal Images Of Battered Women: Redefining The Issue Of Separation, Martha R. Mahoney

Michigan Law Review

Part I of this article discusses violence in the ordinary lives of women, describing individual and societal denial that pretends domestic violence is rare when statistics show it is common, and describing the ways in which motherhood shapes women's experience of violence and choices in response to violence. Part II examines definitions of battering and evaluates their effectiveness at disguising or revealing the struggle for control at the heart of the battering process. I then describe in Part III the pressures that self-defense and custody cases place on legal and cultural images of battered women and contrast the development of …

Limitations Of Sovereign Immunity Under The Clean Water Act: Empowering States To Confront Federal Polluters, Corinne Beckwith Yates

Michigan Law Review

This Note considers whether civil penalties that states impose on federal agencies for violations of NPDES permits arise under federal law and thus are covered by the Clean Water Act's waiver of sovereign immunity - an issue the Supreme Court is scheduled to address during the 1991 term. Part I outlines the history of the Clean Water Act, discussing Supreme Court decisions and statutory amendments that affect the sovereign immunity provision. Part II explains the mechanics of the NPDES state permit process and examines, through analysis of statutory provisions, the degree of control retained by the EPA over individual states …

William J. Pierce, Lawrence J. Bugge

Michigan Law Review

A tribute to William J. Pierce

On The Need For A Uniform Choice Of Law Code, Larry Kramer

Michigan Law Review

At first blush, the notion of a uniform choice of law code seems almost paradoxical. After all, the primary mission of the National Conference of Commissioners on Uniform State Laws (NCCUSL) is to promote uniformity in the law, while choice of law exists only because laws are not uniform. To be sure, the Constitution of the NCCUSL limits the organization's objective to promoting uniformity "where uniformity is desirable and practicable," which leaves plenty of room for different laws and hence for choice of law. But even so, one would expect the Commissioners to devote their limited resources to reducing the …

Discretion, Rules, And Law: Child Custody And The Umda's Best-Interest Standard, Carl E. Schneider

Michigan Law Review

One barrier facing any attempt to devise a uniform law for diverse jurisdictions is the occasional - perhaps even frequent - difficulty of writing rules that will accurately guide judges. The law's ordinary solution to that difficulty is to give judges some measure of discretion. This article inquires into the nature and legitimacy of that technique. It does so by analyzing a particularly controversial provision of the Uniform Marriage and Divorce Act (UMDA). Section 402 of that Act states: "The court shall determine custody in accordance with the best interest of the child." It then instructs the court to "consider …

Interpreting Codes, Bruce W. Frier

Michigan Law Review

Large systematically codified bodies of law, such as the European codes or the UCC, gradually effect, or at least encourage, a different kind of legal culture, in which, as such codes are integrated within a national legal heritage, general clauses and principles become more salient within an expanded interpretive community. Because of the open texture of their rules, codes foster an altered legal posture; ancient judicial vigilance against the intrusive legislation may give way to a new ethos of cooperation in the development of law. To be sure, it remains uncertain whether the resulting law will be, in fact, "better," …

A Rule Unvanquished: The New Value Exception To The Absolute Priority Rule, Clifford S. Harris

Michigan Law Review

This Note examines whether the new value exception remains part of the revised Bankruptcy Code. Part I discusses the background of the new value exception. Part II traces the development of the conflict concerning the survival of the new value exception subsequent to the adoption of the Code. It then discusses the Supreme Court's opinions in Mid/antic National Bank v. New Jersey Department of Environmental Protection and its progeny, which established the methodology for determining the impact of the revised Bankruptcy Code on preexisting bankruptcy law. Based on an analysis of the Midlantic doctrine, Part II concludes that Congress did …

The European Alternative To Uniformity In Corporation Laws, Alfred F. Conard

Michigan Law Review

Although the European Communities chose many patterns of business law that were parallel to the American, they deliberately rejected the American freedom of each state to frame its corporation law to suit itself. They decided to impose not complete uniformity, but a degree of "coordination" of "equivalent safeguards" that they deemed appropriate to the existence of an economic union. Leading commentators have described the process as "harmonization."

The decision to coordinate stimulates reflection on the relative merits of the American system of giving states a free choice of corporation regimes, restricted only marginally by federal securities regulation, and the European …

Way Beyond Candor, Gail Heriot

Michigan Law Review

Scott Altman's excellent article, Beyond Candor, causes me to pose this query: Does his theory contain not only the seeds of its own rejection, but perhaps also (if I am not careful) the seeds of the rejection of its rejection?

Altman tells us of the orthodox view that judges should be encouraged to be both honest with the public and honest with themselves about how they arrive at their decisions. Through this combination of public candor and critical introspection, judges will produce better judicial opinions and ultimately a better legal system, or so the argument runs.

Shame, Culture, And American Criminal Law, Toni M. Massaro

Michigan Law Review

The purpose of this Article is to analyze whether this link is one that American criminal court judges can, or should, exploit. I begin with a description of the new shaming sanctions and the possible justifications for this type of penalty. I then identify both psychological and anthropological aspects of the phenomenon of shame, or "losing face." I describe several cultures in which shaming practices are, or were, significant means of sanctioning behavior, and outline the shared features of these cultures.

These psychological and anthropological materials, taken together, suggest that shaming practices are most effective and meaningful when five conditions …

Employer Recapture Of Erisa Contributions Made By Mistake: A Federal Common Law Remedy To Prevent Unjust Enrichment, J. Daniel Plants

Michigan Law Review

This Note investigates more fully the policies animating ERISA in order to ascribe an appropriate construction to the mistaken contribution section. Part I analyzes the Ninth Circuit's anomalous implied cause of action theory. Searching the legislative history as well as ERISA's language and structure, this Part finds lacking the requisite expression of congressional intent to support a statutorily implied remedy. As an alternative, Part II explores the appropriateness of common law relief. Part II defends the creation of common law relief by the federal courts as consistent with the direct and indirect evidence suggesting that Congress envisioned judicial supplementation of …

Hypothetical Bargains: The Normative Structure Of Contract Interpretation, David Charny

Michigan Law Review

The argument here amplifies the contract literature with respect to basic contract theory and its doctrinal applications. The argument extends and corrects the current understanding of contract theory in several respects. First, it clarifies the role of liberal and communitarian argument in constructing interpretive conventions for contract. As currently understood among lawyers, the predominant noninstrumental theories of contract are in large measure indeterminate as to the question of default rules. Nonetheless, as I shall explain, these theories do have limited implications for the ground rules that govern interpretive conventions. The argument here, then, clarifies the role of noninstrumental theory in …

Bright Lines, Dark Deeds: Counting Convictions Under The Armed Career Criminal Act, James E. Hooper

Michigan Law Review

The Armed Career Criminal Act of 1984 (ACCA) enables the federal government to help state authorities more effectively prosecute "career criminals.'' The ACCA imposes a mandatory sentence of at least fifteen years, and up to life imprisonment, for illegal possession of a firearm by anyone who has three prior convictions for violent felonies or serious drug offenses "committed on occasions different from one another."

To apply the ACCA, judges must determine first whether the defendant's prior convictions meet the definitions of "violent felony or serious drug offense," and secondly whether the offenses were committed on different occasions so that they …

Insurance Law Out Of The Shadows, Kent D. Syverud

Michigan Law Review

A Review of Insurance Law and Regulation: Cases and Materials by Kenneth S. Abraham

Electing Justice, Sol Wachtler

Michigan Law Review

A Review of In Pursuit of Justice: Reflections of a State Supreme Court Justice by Joseph R. Grodin

Beyond The War On Drugs: Overcoming A Failed Public Policy, Kenneth R. Hillier

Michigan Law Review

A Review of Beyond the War on Drugs: Overcoming a Failed Public Policy by Steven Wisotsky

Beyond The Constitution, Christopher J. Peters

Michigan Law Review

A Review of Beyond the Constitution by Hadley Arkes

The Law's Conscience: Equitable Constitutionalism In America, Neil A. Riemann

Michigan Law Review

A Review of The Law's Conscience: Equitable Constitutionalism in America by Peter Charles Hoffer

Moral Foundations Of Constitutional Thought: Current Problems, Augustinian Prospects, Arthur J. Burke

Michigan Law Review

A Review of Moral Foundations of Constitutional Thought: Current Problems, Augustinian Prospects by Graham Walker

Liberal Theory And The Need For Politics, Steven Shiffrin

Michigan Law Review

A Review of Liberalism and the Good Edited by R. Bruce Douglass, Gerald M. Mara, and Henry S. Richardson

The Determinants Of Legal Doubt, Frederick Schauer

Michigan Law Review

A Review of The Case Law System in America by Karl N. Llewellyn