Law Commons^™

Postmodern Constitutionalism As Materialism, Francis J. Mootz Iii

Michigan Law Review

Professor J.M. Balkin's recent essay in the Michigan Law Review assesses the implications that postmodernism holds for constitutional law. Although I agree with Balkin about many of the specific issues that he believes must be addressed in a postmodern constitutionalism, I find that his manner of talking about postmodernism is unproductive in an important way. Balkin quite correctly argues that a postmodern constitutionalism should not mimic the fragmented and superficial culture of postmodernity, nor should it devolve simply to normative claims that postmodernity is desirable and should be embraced or adopted within the law. However, Balkin's thesis that a postmodern …

The Meaning Of "Under Color Of" Law, Steven L. Winter

Michigan Law Review

The argument proceeds as follows. In Part I, I examine why the conceptual problem of who or what is "the State" is so intractable. In Part II, I present the historical evidence that establishes beyond doubt the pedigree and meaning of the phrase under color of law. I explain why Frankfurter would have indulged in such an obvious historical error to take the position he did. I suggest that, as was the case with the invention of modem standing doctrine, Frankfurter was here engaged in a stealthy, anachronistic campaign against the jurisprudence of the Lochner era - attempting to …

A Bargaining Analysis Of American Labor Law And The Search For Bargaining Equity And Industrial Peace, Kenneth G. Dau-Schmidt

Michigan Law Review

In this article, I present an alternative economic analysis of unions and collective bargaining that utilizes recent advances in labor economics and some simple applications of game theory to address the deficiencies of the traditional monopoly model.

The article proceeds in four parts. In Part I, I provide a brief primer on the economic analysis of unions and collective bargaining. I discuss the various possible sources of union wage increases, possible employer responses to union wage demands, and alternative models of the costs of collective bargaining. In Part II, I outline the traditional monopoly theory of unions by combining the …

Defining Computer Program Parts Under Learned Hand's Abstractions Test In Software Copyright Infringement Cases, John W.L. Ogilive

Michigan Law Review

This Note proposes a set of computer program part definitions that develop Learned Hand's abstractions test to make it more useful in software infringement cases. The Note takes no position on the proper scope of protection for software under copyright law, but argues that no consensus is possible on which program parts deserve copyright protection until courts recognize that computer programs are composed of components whose definition lies beyond judicial control. Program parts defined in conclusory legal terms will never provide a stable basis for reasoned debate over the conclusions presumed in the definitions.

What's Standing After Lujan? Of Citizen Suits, "Injuries," And Article Iii, Cass R. Sunstein

Michigan Law Review

In this article, I have two principal goals. The first is to explain why Lujan's invalidation of a congressional grant of standing is a misinterpretation of the Constitution. It is now apparently the law that Article III forbids Congress from granting standing to "citizens" to bring suit. But this view, building on an unfortunate innovation in standing law by Justice William 0. Douglas, is surprisingly novel. It has no support in the text or history of Article III. It is essentially an invention of federal judges, and recent ones at that. Certainly it should not be accepted by judges …

A Failed Critique Of State Constitutionalism, David Schuman

Michigan Law Review

James A. Gardner begins The Failed Discourse of State Constitutionalism with a story describing "the experience of a great many lawyers in this country." The protagonist is an attorney whose client has an unlawful discrimination claim that for some reason cannot succeed under the U.S. Supreme Court's current equal protection jurisprudence. The attorney decides to present an argument based on her state constitution's equality guarantee, only to discover that the universe of material from which a plausible argument, not to mention a rich discourse, might emerge - existing case law and scholarship, "useful tidbits" of constitutional history and philosophy from …

Nondeposit Deposits And The Future Of Bank Regulation, Jonathan R. Macey, Geoffrey P. Miller

Michigan Law Review

We argue in this paper that the nation has already entered with a vengeance into the era of nondeposit deposit banking. The traditional bank deposit against which reserves must be held and deposit insurance paid is suffering encroachment from a wide variety of competitive instruments and arrangements, all of which, to one degree or another - often to a substantial degree - serve a function economically similar to that of the checking account at a depository institution.

The legal system may respond to these developments by attempting to bring nondeposit deposits under regulation, as it has done with other banking …

The Outer Fringes Of Chapter 11: Nonconsenting Senior Lenders' Rights Under Subordination Agreements In Bankruptcy, David Kravitz

Michigan Law Review

This Note focuses on the options a senior creditor in Frugal's position may have when a reorganization plan provides for payments in violation of a subordination agreement that the creditor wishes to enforce. Part I explains the different types of subordination agreements and discusses their treatment under pre-Code bankruptcy law and under the Bankruptcy Code. Because of the dearth of case law regarding nonconsenting senior lenders and subordination agreements, Part II considers a question in a related area of bankruptcy law where more authority exists: whether a reorganization plan may release a nonbankrupt guarantor from its obligations under the guaranty …

Rethinking Guild, Juries, And Jeopardy, George C. Thomas Iii, Barry S. Pollack

Michigan Law Review

We have attempted in this article to "begin over again and concentrate" by taking a fresh look at the interplay between guilt and jury verdicts. Somewhat to our surprise, we discovered that guilt is undefinable without reference to the larger society. We also discovered that our risk-of-error experiments implicated the principle of double jeopardy. When we began this thought experiment, we intended only to test the risk of error in various jury configurations and verdicts. We ended, however, by articulating a more fundamental principle: guilt is nothing more, and nothing less, than the judgment of society. Any verdict that accurately …

The Growing Disjunction Between Legal Education And The Legal Profession, Harry T. Edwards

Michigan Law Review

This article is my response to Professor Priest and all other legal academicians who disdain law teaching as an endeavor in pursuit of professional education. My view is that if law schools continue to stray from their principal mission of professional scholarship and training, the disjunction between legal education and the legal profession will grow and society will be the worse for it. My arguments are quite straightforward, and probably not wholly original. Nevertheless, they surely merit repetition.

Controlling The Competitor Plaintiff In Antitrust Litigation, William H. Page, Roger D. Blair

Michigan Law Review

In Misuse of the Antitrust Laws: The Competitor Plaintiff, Edward Snyder and Thomas Kauper survey a sample of private antitrust cases from the period 1973-1983 and review critically the recent economic literature on raising rivals' costs as an exclusionary practice.

Much in Snyder and Kauper's study is worthy of comment. They have given us a useful picture of private antitrust litigation during the period covered by the sample, one that may be more accurate than a reading of reported cases from that period would suggest. Moreover, their generally critical treatment of the literature on raising rivals' costs is clear …

Strange Visions In A Strange World: A Reply To Professors Bradley And Rosenzweig, Lynn M. Lopucki

Michigan Law Review

Much about chapter 11 is in need of improvement. But, as is so often the case, the resonant themes are not the right ones. All three legs of Bradley and Rosenzweig's argument for repeal are seriously flawed. The heart of their empirical argument is their claim to have shown that financially stronger companies reorganizing under chapter 11 have been paying less to both their creditors and their shareholders than did weaker companies reorganizing under prior law. In Part I below, I present several more plausible explanations for the stock and bond price phenomena they observed. In all likelihood, their data …

An Administrative Battle Of The Forms: The Eeoc's Intake Questionnaire And Charge Of Discrimination, Laurie M. Stegman

Michigan Law Review

This Note argues that the EEOC's interpretation of Title VII as reflected in its regulations is consistent with underlying statutory intent and strikes an appropriate balance between the needs of employers and employees. Therefore, Congress should amend section 706(b) of Title VII of the Civil Rights Act of 1964 to provide that a charge must be verified prior to the commencement of an EEOC investigation but not necessarily within the statutory filing period. Part I examines the legislative history of Title VII and its integrated procedures for obtaining administrative and judicial relief. Part II critiques the various ways in which …

The Left Critique Of Normativity: A Comment, Mark V. Tushnet

Michigan Law Review

"In today's legal academy, the critique of normativity is associated with the left." The preceding sentence, which I have constructed to summarize the starting point of this essay, is both largely true and arguably incoherent. The incoherence occurs because describing a position as "the left" connotes values like egalitarianism, which are obviously normative. This essay examines the ways in which some writers associated with the left in the legal academy have tried to resolve the incoherence. The first Part shows that these writers can be identified with the left even in their critiques of normativity and also shows that they …

Justifiably Punishing The Justified, Heidi M. Hurd

Michigan Law Review

Contemporary moral philosophy, political theory, and jurisprudence have converged to create a quite baffling dilemma. This dilemma is generated by the apparent incompatibility of three principles, each of which grounds features of our system of law and government, and each of which carries substantial normative weight. The first I shall call the punishment principle - a moral principle, doctrinally entrenched in American criminal and civil law, which holds that individuals who are morally justified in their actions ought not to be blamed or punished for those actions. The second is the principle of the rule of law - a complex …

Moral Responsibility In The Age Of Bureaucracy, David Luban, Alan Strudler, David Wasserman

Michigan Law Review

No twentieth-century writer has thought so deeply, or so yearningly, about natural law as Franz Kafka. Kafka's is a world in which we seek desperately to know the natural law that is sovereign in human affairs but find that knowledge of the law is withheld from us. For this reason, we lead our lives in a state of, if not original sin, then original guilt - guilt for violating the law, or perhaps guilt for not knowing the law, despite the fact that we wish to know it.

The Trial is Kafka's greatest elaboration of this theme. Joseph K. is …

Some Natural Confusions About Natural Law, Philip Soper

Michigan Law Review

To describe this renewed interest in natural law as a resurgence does imply, no doubt, that the ideas associated with the concept are too vital to be put permanently to rest; but resurgence also implies that natural law, for whatever reason, has been assigned the role of challenger to the reigning orthodoxy, rather than that of defending champ. By and large, this inference about the role assigned to natural law by the general public is, I think, correct. Natural law seems to evoke a degree of skepticism in our society that forces any theory that goes by the name to …

Moral Reality Revisited, Michael S. Moore

Michigan Law Review

Both the moral realist and the relational theses need clarification and motivation as much as they need defense. Because I have recently focused on the relational thesis, in this article I shall focus on the moral realist thesis. I shall ask three questions about the thesis. First, what does the thesis assert? This is a matter of clarifying what one means when one either asserts or denies that moral values are objective. Second, why should we care whether the moral realist thesis is true or false? I shall examine this question both in terms of the impact the truth or …

Allocation Of Loss Due To Fraudulent Wholesale Wire Transfers: Is There A Negligence Action Against A Beneficiary's Bank After Article 4a Of The Uniform Commercial Code?, Robert M. Lewis

Michigan Law Review

This Note argues that where a bank reasonably should have known of a fraud but still pays out a wire transfer to an unauthorized recipient, common law negligence should provide a basis for recovery despite the absence of an explicit Code provision imposing liability on the bank. Part I examines the UCC's language itself and analyzes possible cases, under 4A and under articles 3 and 4 by analogy, and discusses the applicability of these other parts of the UCC to wire transfers. Part II examines how extra-Code regulatory systems and the common law would determine wire transfer liability. Part II …

Injunctive Relief For Constitutional Violations: Does The Civil Service Reform Act Preclude Equitable Remedies?, Elizabeth A. Wells

Michigan Law Review

This Note argues that the federal courts retain power to furnish equitable relief for constitutional violations to ensure adequate protection of federal employees' rights. Statutory procedures and remedies available under the Civil Service Reform Act of 1978 (CSRA) and related legislation should preempt judicially created equitable relief only where the government or federal agency affirmatively demonstrates that these procedures are constitutionally sufficient. Part I canvasses the current lower court response to the question of preclusion and notes the various routes taken by the courts in inferring congressional intent to preempt. This Part discusses varying interpretations of the Civil Service Reform …

Legal Interpretation And A Constitutional Case: Home Building & Loan Association V. Blaisdell, Charles A. Bieneman

Michigan Law Review

The approaches of Hughes and Sutherland are but two extremes in constitutional interpretation. Though only two results were possible in the case - either the Act was constitutional or it was not - there are more than two methods by which an interpreter could reach those results. This Note explores possible ways of deciding Blaisdell, using the case as a vehicle for delimiting the boundaries of a positive constitutional command. As a sort of empirical investigation of legal philosophy, the Note examines how various interpretive theories affect an interpreter's approach to the case, and the results these theories might …

Cumulative Trauma Disorders: Osha's General Duty Clause And The Need For An Ergonomics Standard, David J. Kolesar

Michigan Law Review

This Note argues that neither the Act nor its underlying policies supports OSHA's current use of the general duty clause to prosecute alleged ergonomics violations and that the only way to protect workers from CTDs fairly and effectively is through the promulgation of an ergonomics standard. Part I examines the purposes of the Act, as well as the function of the Act's general duty clause. Part II analyzes the four requirements of the general duty clause in the context of CTDs and finds that the clause does not apply to CTDs. Part III argues that the Act's intended policies support …

Polarized Voting And The Political Process: The Transformation Of Voting Rights Jurisprudence, Samuel Issacharoff

Michigan Law Review

This article attempts to provide an analytic framework for the evolved voting rights law as it confronts the persistent effects of racial factionalism in the electoral arena. Insight into the corrosiveness of racially polarized voting and its frustration of minority electoral opportunity has organized and guided the new voting rights jurisprudence. This article will argue that the combination of process distortions from majority domination of electoral outcomes and substantive deprivation from minority exclusion defines this area of law and protects it against challenge from currently fashionable academic currents. The central insights gathered from the focus on polarized voting, I will …

A Critical Reexamination Of The Takings Jurisprudence, Glynn S. Lunney Jr

Michigan Law Review

To provide some insight into the nature of these disagreements, and to suggest a possible solution to the compensation issue, this article undertakes a critical reexamination of the takings jurisprudence. It focuses on the two bases which the modem Court has articulated as support for its resolution of the compensation issue: (1) the articulated purpose of using the just compensation requirement "to bar Government from forcing some people alone to bear public burdens"; and (2) the early case law. Beginning with the Court's first struggles with the compensation issue in the late nineteenth and early twentieth century, this article traces …

Remedies For Environmental Racism: A View From The Field, Luke W. Cole

Michigan Law Review

The Michigan Law Review's recent Note, Remedying Environmental Racism, is an important and timely analysis of a civil rights law-based approach to environmental justice work - one of the first to emerge from legal academia. It correctly points out the high hurdles that toxic racism's victims must overcome to successfully pursue such a strategy. Godsil's piece will hopefully spur more academic and on-the-ground work in this nascent legal field, which I call "environmental poverty law" - that is, representing low-income communities (often, in this field, communities of color) facing environmental hazards. As a practitioner of environmental poverty law …

Does A Copyright Coowner's Duty To Account Arise Under Federal Law?, Craig Y. Allison

Michigan Law Review

This Note discusses both the source of the accounting rule and the proper forum for applying the rule. Part I provides a general history of joint ownership and the duty to account and suggests that the number of litigants presenting joint ownership claims will probably increase. Part II discusses joint ownership case law chronologically. This Part shows that the case law is consistent with the view that the duty to account was a creation of the federal courts. Part III argues that the accounting rule is federal common law and that federal jurisdiction necessarily follows for all copyright accounting cases. …

Retroactive Application Of The Civil Rights Act Of 1991 To Pending Cases, Michele A. Estrin

Michigan Law Review

This Note addresses the applicability of the Civil Rights Act of 1991 to cases pending on the Act's date of enactment. Part I discusses current Supreme Court doctrine on the issue. This Part finds that the Court has endorsed two conflicting views on retroactively applying statutes to pending cases and that the lower federal courts consequently lack a principled framework for dealing with retroactivity issues in the 1991 Act. Part II describes the battle over the Civil Rights Acts of 1990 and 1991 and the subsequent confusion over the enacted statute's reach. This Part finds that Congress provided conflicting textual …

Voluntary Intoxication: A Defense To Intentional Injury Exclusion Clauses In Homeowner's Policies?, Tracy E. Silverman

Michigan Law Review

This Note argues that the current voluntary intoxication defense to the intentional injury exclusion clause should be modified to allow insurers subrogation rights against insureds who commit intentional acts while voluntarily intoxicated, subject to an exception for alcoholic insureds who successfully complete alcohol treatment programs. Part I discusses the public policy concerns of victim compensation and deterrence and how they influence courts deciding between the three traditional approaches to "intent." Part II analyzes the impact of these intent standards on courts' decisions to allow a voluntary intoxication defense and concludes that the defense as currently formulated promotes victim compensation at …

Three Attorney Fee-Shifting Rules And Contingency Fees: Their Impact On Settlement Incentives, Bradley L. Smith

Michigan Law Review

This Note seeks to predict the direction and magnitude of the change in settlement frequency under the three fee-shifting rules: American, British, and the British rule as modified by the PCC. Part I analyzes the proposed rule using the theoretical model of litigation and settlement developed by Hause. Part II examines the impact of fee-shifting when the plaintiff's lawyer receives reimbursement via a contingency fee. Analysis of indemnification in a contingency fee context raises several policy issues which section II.A addresses. Section II.B discusses the terms and assumptions made in adjusting Hause's model to reflect the standard contingency fee arrangement, …

What Is A Postmodern Constitutionalism?, J. M. Balkin

Michigan Law Review

I begin with a puzzle. It must certainly strike one as odd that the subject of postmodern constitutional law arises at a time when the actual arbiters of the Constitution - the federal judiciary and in particular the Supreme Court of the United States - appear to be more conservative than they have been for many years, and indeed, are likely to remain so for the foreseeable future. Postmodernism is often associated with what is new, innovative, and on the cutting edge of cultural development. Yet if we were to define the elements of a postmodern constitutional culture, it would …