Legal Writing and Research Commons^™

Can Prostitution Law Reform Curb Sex Trafficking? Theory And Evidence On Scale Substitution, And Replacement Effects, Simon Hedlin

University of Michigan Journal of Law Reform

Sex trafficking, a pervasive problem in many parts of the world, has become increasingly salient to policymakers and the general public. Activists, politicians, and scholars continue to engage in debates about how best to curb it. This Article discusses one especially contentious dimension of these debates: does banning prostitution reduce sex trafficking? Or is legalizing prostitution the optimal approach? Or is there a third, better way? Proceeding both theoretically and empirically, this Article seeks to cast light on the relationship between different types of prostitution laws and the prevalence of sex trafficking and human trafficking. It attempts to make three …

Think Of The Children: Using Iied To Reformulate Disturbing Speech Restrictions, Richard Lorren Jolly

University of Michigan Journal of Law Reform

The Colorado State Court of Appeals recently upheld an injunction restricting public displays of aborted fetuses. The court held that the restriction passed strict scrutiny because the state had a compelling interest in protecting children from the psychological harm of “disturbing images” and the injunction was narrowly tailored. This marked the first time an injunction had been upheld on this rationale. This Note critiques that holding and others. It contends that while some federal and state courts have recognized the interest in protecting the psychological wellbeing of children from disturbing speech as compelling, the interest is not supported by precedent. …

Minimizing Probate-Error Risk, Mark Glover

University of Michigan Journal of Law Reform

Probate-error risk is the possibility that a court will incorrectly assess the authenticity of a will. By prescribing the method courts use to evaluate the authenticity of wills, the law of will-execution allocates probate-error risk between false-positive outcomes and false-negative outcomes. When a court validates an inauthentic will, it creates a false-positive outcome. When a court invalidates an authentic will, it creates a false-negative outcome. Because false-positive outcomes result in the admission to probate of inauthentic wills and false-negative outcomes result in the denial of probate of genuine wills, both can be characterized as probate errors. This framework has been …

Restrictions On Publication And Citation Of Judicial Opinions: A Reassessment, Robert J. Martineau

University of Michigan Journal of Law Reform

In response to the "crisis of volume," state and federal appellate courts have been restricting the opinions they write to those opinions which will: (1) establish a new. rule of law or expand, alter, or modify an existing rule; (2) involve a legal issue of continuing public interest; (3) criticize existing law; or (4) resolve a conflict of authority. All other opinions are limited to brief statements of the reasons for the decision, go unpublished, and generally carry a prohibition against their being cited as precedent. Recently, critics have alleged a number of faults with this practice, including the supposed …

On Coming Of Age: Twenty-Five Years Of The University Of Michigan Journal Of Law Reform, Francis A. Allen

University of Michigan Journal of Law Reform

A reflection on the first twenty-five years of the University of Michigan Journal of Law Reform.

Concerned Readers V. Judicial Opinion Writers, Erik Paul Belt

University of Michigan Journal of Law Reform

In this action, Plaintiffs sought a writ of mandamus compelling the offending judges to write better, but the court below denied the writ. Plaintiffs then petitioned for relief from poor writing. Because some judges do, in fact, write clear and effective opinions, we have granted certiorari to resolve the differences between the various courts. The issue before us, then, is whether judges and clerks have abused their discretion by writing weak opinions and, if so, how they can improve their writing. Because stronger writing greatly eases the reader's job and makes opinions more effective, we hold that judges and clerks …

Affirmative Action On Law Reviews: An Empirical Study Of Its Status And Effect, Frederick Ramos

University of Michigan Journal of Law Reform

This Note discusses the issues involved in affirmative action on law reviews. Part I examines law review affirmative action admissions schemes and alternative types of affirmative action programs. Part II considers the arguments supporting and opposing the implementation of affirmative action programs by law reviews. Part III presents the results of a survey of law reviews concerning affirmative action. This Note concludes that affirmative action programs are the most effective means of increasing minority membership on law reviews, but that law reviews may increase minority membership through other methods.

Introduction: "Plus Ça Change …?", Stephen B. Burbank

University of Michigan Journal of Law Reform

This is a time of self-conscious attention to legal scholarship that, although hardly unprecedented, must seem remarkable to many in the profession. We hear of "malaise" in the academy, of the decline of doctrinal scholarship, and more generally, of the decline of law as an autonomous discipline. For some who believe it, the news may be profoundly disturbing, tolling the thirteenth hour on entire careers. For others, bearing the news-and having it believed-may be essential to launching or sustaining careers.

Most of us, I suspect, are inclined to suspend judgment, inured more than most mortals to the harsh reality that …

Reflections On Fuller And Perdue's The Reliance Interest In Contract Damages: A Positive Economic Framework, Avery Katz

University of Michigan Journal of Law Reform

Fuller and Perdue's classic article, The Reliance Interest in Contract Damages, is regarded by many contemporary contracts scholars as the single most influential law review article in the field. For those of us who teach and think about contracts from the perspective of law and economics, the consensus would probably be close to unanimous. The article displays an approach highly congenial to an economic perspective. The connection goes beyond Fuller and Perdue's explicitly functional approach to law (which law and economics shares with other schools of thought descended from the legal realists) and beyond Fuller and Perdue's focus on …

Appellate Justice Bureaucracy And Scholarship, William M. Richman, William L. Reynolds

University of Michigan Journal of Law Reform

Many of the other Articles in this Symposium demonstrate that a single great piece of legal scholarship can have an enormous impact on the development of legal doctrine. This Article differs in two respects. First, it focuses not on a single seminal work, but rather on a developing literature authored by a large group of scholars. Second, it attempts to assess the impact of that literature not on the growth of legal theory, but on the development of a single legal institution-the United States Courts of Appeals.

Derek Bok And The Merger Of Law And Economics, Herbert Hovenkamp

University of Michigan Journal of Law Reform

Both the novelty and the uniqueness of the "law and economics" movement of the last fifteen years have been greatly exaggerated. Law and economics has been with us for at least a half century, in nearly every area of private and public law. The most outspoken protagonists of law and economics admit that economics had a presence in antitrust and regulatory policy long before the work of Ronald Coase, Lester Telser, and others inspired its expanded use in areas of private law, such as tort and contract. But even then, some of those who would make such an admission would …

Public Law Litigation And Legal Scholarship, Richard L. Marcus

University of Michigan Journal of Law Reform

It is hard to turn around nowadays without hearing about the malaise in legal scholarship. For example, Richard Posner, a former president of the Harvard Law Review, announced in that periodical's centenary issue that the Review "may have reached the peak of its influence-may, indeed, have started its journey down the mountain." If even the august Harvard Law Review is sliding, one does sense an ancien regime aroma of decay. But Posner's main message was that scholarship has become more diverse, and that the hegemony of traditional doctrinal analysis has been broken. More generally, the malaise is attributed to …

Neutral Principles In The 1950'S, Gary Peller

University of Michigan Journal of Law Reform

In this Essay, I explore the intellectual setting within which Wechsler believed that defending freedom also required defending the legality of racial domination. I argue that the key to understanding this apparent paradox is to grasp the ideological/ cultural complex of the 1950's within which mainstream American intellectuals in law and in other disciplines came to terms with the disintegration of the traditional, "old order" paradigms of the late nineteenth and early twentieth centuries by means of an intense and overriding distinction between controversial issues of values and noncontroversial questions of framework and structure within which substantive conflict would take …

The Anatomy Of A Leading Case: Lawrence V. Fox In The Courts, The Casebooks, And The Commentaries, M. H. Hoeflich, E. Perelmuter

University of Michigan Journal of Law Reform

In spite of the wide diversity of training, practice, and location of lawyers throughout the United States, virtually all share one experience: the standard core curriculum of the first year of law school taught by the case method. The extent to which that experience in parsing cases in contracts, torts, and property shapes the American legal mentality is open to debate, but it undeniably has an impact. The first-year experience socializes law students in the culture of the law. During this period, students learn the language of the law and the ways that lawyers think. During this period, too, students …

Law Review Articles That Backfire, Gerald L. Neuman

University of Michigan Journal of Law Reform

Other articles in this Symposium have chronicled the real-world triumphs of legal scholarship. I have sadder tales to tell. I would like to discuss law review articles that have had an apparent influence on the course of legal development, but not in the manner that the author intended.

Many of the readers of this Symposium may have their favorite examples of this phenomenon. Such misfortunes can befall anyone; both of the instances I will describe involve a highly respected constitutional scholar, Professor Henry Paul Monaghan of Columbia Law School. They illustrate two mechanisms by which good scholarship can lead …

The Next Step: Definition, Generalization, And Theory In American Family Law, Carl E. Schneider

University of Michigan Journal of Law Reform

The Journal of Law Reform's Symposium on Family Law comes opportunely, in legal scholarship's spring of hope, its winter of despair, at a time when we have everything before us, when we have nothing before us. As is natural in such an epoch, reflection about legal scholarship, about its history, purposes, and methods, has flourished. This Symposium invites us to extend that reflection to family law, and this essay attempts, tentatively and speculatively, to accept the invitation.

A Commentary On American Legal Scholarship Concerning The Admission Of Migrants, James A.R. Nafziger

University of Michigan Journal of Law Reform

The following essay will focus attention on American legal scholarship concerning the admission of migrants. This topic is instructive and practical because of its impact on both municipal and global law. An eminent international jurist observed that greater foresight by scholars twenty-five years ago could have averted many current problems of migration. Today, these problems arise from such sources as the population explosion, periodic droughts, the pull factor of opportunities in advanced economies, and massive political unrest in the Horn of Africa, Afghanistan, Southeast Asia, Central America, and elsewhere. Migrants are knocking at the gates of sovereignty, even crashing some …

The Journal: After A Decade, Alexander R. Domanskis

University of Michigan Journal of Law Reform

Our legal institutions must have the flexibility to adapt to rapidly changing conditions. Often, laws are passed and implemented at a time when changed circumstances make them outmoded or unworkable. The legal community thus faces an enormous and important challenge: law reform. Legislatures, the framers of policies and the makers of law, need suggestions for law reform. Courts, the interpreters of the laws and the arbiters of private and public disputes, need guidance in dealing with new situations and new statutes. Administrative agencies, the delegated experts carrying out the legislative mandate, need guidance in defining their functions and roles. Suggestions …

A Prospectus For Reform, Francis A. Allen

University of Michigan Journal of Law Reform

The interests of this journal are not focused narrowly on any particular areas of law reform. It will be concerned with issues relating to the improvement of both private law and public law, judicial administration, law enforcement, administrative regulation, and much more. In short, it seeks to promote the improvement of law and its administration in all areas in which needs are disclosed and in which useful proposals can be advanced. No doubt, many of the problems to be discussed will be those with an important local impact. One of the interesting developments of our times is the degree to …