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Congressional Power To Extend Preclearance: A Response To Professor Karlan, Ellen D. Katz Jan 2007

Congressional Power To Extend Preclearance: A Response To Professor Karlan, Ellen D. Katz

Articles

Is the core provision of the Voting Rights Act unconstitutional? Many people now think that the Act's preclearance requirement is invalid, but Professor Karlan is not among them. In part, that is because she is not convinced the problems that originally motivated Congress to impose preclearance have been fully remedied. Professor Karlan points out the many ways section 5 of the Voting Rights Act (VRA) shapes behavior in the jurisdictions subject to the statute--not just by blocking discriminatory electoral changes, but also by influencing less transparent conduct by various political actors operating in these regions. Do not be so sure, …

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Why Refugee Law Still Matters, James C. Hathaway Jan 2007

Why Refugee Law Still Matters, James C. Hathaway

Articles

I am concerned that the singular importance of international refugee law is profoundly misunderstood. My more specific worry is that erroneous and competing claims by governments and the refugee advocacy community about the structure and purpose of refugee law threaten its continuing ability to play a truly unique human rights role at a time when no meaningful alternative is in sight.

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Branch Rickey, '11: Much More Than Pioneering Baseball Leader, Richard D. Friedman Jan 2007

Branch Rickey, '11: Much More Than Pioneering Baseball Leader, Richard D. Friedman

Articles

Branch Rickey is best known as the president and general manager of the Brooklyn Dodgers who brought Jackie Robinson into big league baseball in 1947, thus integrating a major American institution seven years before Brown v. Board of Education. Even apart from this heroic step, Rickey would probably be known as the most significant baseball executive ever, primarily for his work with the Dodgers and, earlier, the St. Louis Cardinals; the modern farm system and extensive spring training facilities are chief among his many innovations. Less well known is the fact that Rickey was a 1911 graduate of the University …

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The Nondischargeability Of Student Loans In Personal Bankruptcy Proceedings: The Search For A Theory, John A. E. Pottow Jan 2007

The Nondischargeability Of Student Loans In Personal Bankruptcy Proceedings: The Search For A Theory, John A. E. Pottow

Articles

In fiscal year 2002, approximately 5.8 million Americans borrowed $38 billion (USD) in federal student loans. This was more than triple the $11.7 billion borrowed in 1990. As a rule of thumb, tuition has been increasing at roughly double the rate of inflation in recent years. This troubling trend of accelerating tuition, coupled with the fact that real income has stagnated for men and increased only modestly for women over the past two decades, means that more and more students are going to need to turn to borrowed money to finance their degrees absent a radical restructuring of the postsecondary …

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The Kerr Principle, State Action, And Legal Rights, Donald J. Herzog Jan 2007

The Kerr Principle, State Action, And Legal Rights, Donald J. Herzog

Articles

A Baltimore library refused to admit Louise Kerr to a training program because she was black. Not that it had anything against blacks, but its patrons did. When Kerr launched a civil suit against the library alleging a violation of equal protection of the laws, the courts credited the library's claim that it had no racist purpose, but Kerr still prevailed-even though the case occurred before Title VII and Brown v. Board of Education. Here a neutral and generally applicable rule ("serve the patrons"), when coupled with particular facts about private parties (the white patrons dislike blacks), yielded an …

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Crawford, Davis, And Way Beyond, Richard D. Friedman Jan 2007

Crawford, Davis, And Way Beyond, Richard D. Friedman

Articles

Until 1965, the Confrontation Clause of the Sixth Amendment to the United States Constitution hardly mattered. It was not applicable against the states, and therefore had no role whatsoever in the vast majority of prosecutions. Moreover, if a federal court was inclined to exclude evidence of an out-of-court statement, it made little practical difference whether the court termed the statement hearsay or held that the evidence did not comply with the Confrontation Clause.

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Regulatory Beneficiaries And Informal Agency Policymaking, Nina A. Mendelson Jan 2007

Regulatory Beneficiaries And Informal Agency Policymaking, Nina A. Mendelson

Articles

Administrative agencies frequently use guidance documents to set policy broadly and prospectively in areas ranging from Department of Education Title IX enforcement to Food and Drug Administration regulation of direct-to-consumer pharmaceutical advertising. In form, these guidances often closely resemble the policies agencies issue in ordinary notice-and-comment rulemaking. However, guidances are generally developed with little public participation and are often immune from judicial review. Nonetheless, guidances can prompt significant changes in behavior from those the agencies regulate. A number of commentators have guardedly defended the current state of affairs. Though guidances lack some important procedural safeguards, they can help agencies supervise …

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Francis A. Allen--The Gainesville Years, Jerold H. Israel Jan 2007

Francis A. Allen--The Gainesville Years, Jerold H. Israel

Articles

If the legal academy had a Hall of Fame, Frank Allen would surely be a first ballot, unanimous selection.' His nominators need only recite the bare-bones record of his career-his publications, his public service, his years of accomplished teaching, and the many honors he received. That record is neatly capsulized in an obituary, published in the Gainesville Sun, largely written by Frank and June's son, Neil (Neil was also Franks's coauthor on Frank's last publication2). In a concise, precise fashion, reminiscent of Frank's own writings, the obituary not only describes Frank's many accomplishments, but also touches upon his character and …

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The Road Goes On Forever And The Party Never Ends': A Response To Judge Tacoma's Prescription For A Return To Foster Care 'Limbo' And 'Drift', Frank E. Vandervort Jan 2007

The Road Goes On Forever And The Party Never Ends': A Response To Judge Tacoma's Prescription For A Return To Foster Care 'Limbo' And 'Drift', Frank E. Vandervort

Articles

This article responds to Judge Tacoma’s suggested changes in Michigan law. It begins with a very brief history of child welfare legislation at the federal and state levels. Next, it points out a number of errors in Judge Tacoma’s understanding of the current state of Michigan’s child welfare law.2 It is necessary to point out these errors because it seems that his misstatements of the law form the foundation for his recommended reforms. Then it will respond point-by-point to many of Judge Tacoma’s recommendations. Finally, I will off er several suggestions for addressing the problem of legal orphans that do …

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Without Color Of Law: The Losing Race Against Colorblindness In Michigan, Khaled Ali Beydoun Jan 2007

Without Color Of Law: The Losing Race Against Colorblindness In Michigan, Khaled Ali Beydoun

Michigan Journal of Race and Law

This Essay examines affirmative action, while discussing its fall in California, Washington State, and ultimately Michigan.

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Separate And Unequal: Federal Tough-On-Guns Program Targets Minority Communities For Selective Enforcement, Bonita R. Gardner Jan 2007

Separate And Unequal: Federal Tough-On-Guns Program Targets Minority Communities For Selective Enforcement, Bonita R. Gardner

Michigan Journal of Race and Law

This Article examines the Project Safe Neighborhoods program and considers whether its disproportionate application in urban, majority- African American cities (large and small) violates the guarantee of equal protection under the law. This Article will start with a description of the program and how it operates-the limited application to street-level criminal activity in predominately African American communities. Based on preliminary data showing that Project Safe Neighborhoods disproportionately impacts African Americans, the Article turns to an analysis of the applicable law. Most courts have analyzed Project Safe Neighborhoods' race-based challenges under selective prosecution case law, which requires a showing by the …

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We Need Inquire Further: Normative Sterotypes, Hasidic Jews, And The Civil Rights Act Of 1866, William Kaplowitz Jan 2007

We Need Inquire Further: Normative Sterotypes, Hasidic Jews, And The Civil Rights Act Of 1866, William Kaplowitz

Michigan Journal of Race and Law

According to modern Supreme Court opinions, The Civil Rights Act of 1866 prohibits only "discrimination [against members of protected groups] solely because of their ancestry or ethnic characteristics." The Court refers to this type of discrimination as 'racial animus.' In the 1987 case Shaare Tefila Congregation v. CobbJews were recognized as a protected ethnic group under these statutes, but the Supreme Court also reaffirmed that The Civil Rights Act only prohibits 'ethnic' or 'ancestral' discrimination. The Act does not encompass religious discrimination. Yet, despite the Supreme Court's rulings, the district courts held that both Rabbi LeBlanc-Sternberg's and Mr. Singers' allegations …

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The Pocahontas Exception: The Exemption Of American Indian Ancestry From Racial Purity Law, Kevin Noble Maillard Jan 2007

The Pocahontas Exception: The Exemption Of American Indian Ancestry From Racial Purity Law, Kevin Noble Maillard

Michigan Journal of Race and Law

"The Pocahontas Exception" confronts the legal existence and cultural fascination with the eponymous "Indian Grandmother." Laws existed in many states that prohibited marriage between Whites and non- Whites to prevent the "quagmire of mongrelization." Yet, this racial protectionism, as ingrained in law, blatantly exempted Indian blood from the threat to White racial purity. In Virginia, the Racial Integrity Act of 1924 made exceptions for Whites of mixed descent who proudly claimed Native American ancestry from Pocahontas. This Paper questions the juridical exceptions made for Native American ancestry in antimiscegenation statutes, and analyzes the concomitant exemptions in contemporary social practice. With …

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Same-Sex Loving:Subverting White Supremacy Through Same-Sex Marriage, Adele M. Morrison Jan 2007

Same-Sex Loving:Subverting White Supremacy Through Same-Sex Marriage, Adele M. Morrison

Michigan Journal of Race and Law

This Article marks the 40th anniversary of Loving v. Virginia- the landmark decision that responded to the question of the constitutionality of anti-miscegenation laws by firmly stating that the fundamental right to marry could not be restricted by race-by taking up the issue of the case's applicability in the context of same-sex marriage. The invocation of Loving has generally been in a manner that invites comparisons between interracial and same-sex marriage. Pro same-sex marriage arguments that utilize this comparison-which has come to be known as the "Loving Analogy"-- include the decision's freedom of choice and antidiscrimination elements, but rarely …

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Can Michigan Universities Use Proxies For Race After The Ban On Racial Preferences?, Brian T. Fitzpatrick Jan 2007

Can Michigan Universities Use Proxies For Race After The Ban On Racial Preferences?, Brian T. Fitzpatrick

Michigan Journal of Race and Law

In 2003, the Supreme Court of the United States held that public universities—and the University of Michigan in particular--had a compelling reason to use race as one of many factors in their admissions processes: to reap the educational benefits of a racially diverse student body. In 2006, in response to the Supreme Court's decision, the people of Michigan approved a ballot proposal--called the Michigan Civil Rights Initiative ("MCRI")-that prohibits public universities in the state from discriminating or granting preferential treatment on the basis of race. Shortly after the MCRI was approved, a number of Michigan universities suggested that they were …

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State Intelligence Gathering: Conflict Of Laws, Charles H.B. Garraway Jan 2007

State Intelligence Gathering: Conflict Of Laws, Charles H.B. Garraway

Michigan Journal of International Law

This Article begins with an examination of the development of the law of war (Part II) and human rights law (Part III) before looking at the differing legal categories of armed conflict (Part IV). It then examines the applicability of human rights law in situations of armed conflict (Part V) and the increasing complexity of defining violence, whether as armed conflict or otherwise (Part VI). The Article proceeds with an examination of the overlap between the law of war and human rights law (Part VII) and the risk of divergence that this overlap causes (Part VIII). Finally, it seeks to …

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What Is The Use Of International Law? International Law As A 21st Century Guardian Of Welfare, Emmanuelle Jouannet Jan 2007

What Is The Use Of International Law? International Law As A 21st Century Guardian Of Welfare, Emmanuelle Jouannet

Michigan Journal of International Law

The thesis of this Essay is that international law currently represents a welfare-driven and bio-political structuring mode for international society which not only counterbalances liberal economic globalization, but also draws from it. This inquiry offers a political interpretation of contemporary international law to clarify its functioning and the effects of its legal rationality, as well as to answer the question of its efficacy. An evolution has taken place for at least a century and has only attainted partial completion. It is the fruit of modernity that constantly projects its aspirations, its unity, and its contradictions onto the international legal system. …

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The Lotus Principle In Icj Jurisprudence: Was The Ship Ever Afloat?, Hugh Handeyside Jan 2007

The Lotus Principle In Icj Jurisprudence: Was The Ship Ever Afloat?, Hugh Handeyside

Michigan Journal of International Law

But Lotus has perhaps drawn as much criticism as affirmation. Ian Brownlie observes that "[i]n most respects the Judgment of the Court is unhelpful in its approach to the principles of jurisdiction, and its pronouncements are characterized by vagueness and generality." Nor does there appear to be any clear consensus on the decision's core holdings; in fact, commentators have read the decision in alarmingly divergent ways. This Note avoids the legal cacophony surrounding the specific holdings of the Lotus decision, focusing instead on the Lotus principle. Scholars have persistently (and often uncritically) taken the Lotus principle at face value, citing …

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What's International Law Got To Do With It? Transnational Law And The Intelligence Mission, James E. Baker Jan 2007

What's International Law Got To Do With It? Transnational Law And The Intelligence Mission, James E. Baker

Michigan Journal of International Law

This Article describes a continuum of contemporary threats to U.S. national security, with a focus on nonstate terrorism. Part III addresses the role of intelligence and national security law, and in particular law addressed to process, in combating these threats. Good process advances the liberty and safety interests embodied in the concept of national security. Good process improves the quality of decision. It also enhances accountability, which in turn improves decision. Where good process is defined in law to include executive directive, it is better insulated from the immediate imperatives of secrecy and speed.

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Not Like The South? Regional Variation And Political Participation Through The Lens Of Section 2, Ellen D. Katz Jan 2007

Not Like The South? Regional Variation And Political Participation Through The Lens Of Section 2, Ellen D. Katz

Book Chapters

Congress voted last summer to reauthorize the expiring provisions of the Voting Rights Act. Among the reauthorized provisions is the Section 5 preclearance process, which requires "covered" jurisdictions to obtain federal approval before implementing changes to their voting laws. It is widely assumed that the reauthorization of Section 5 will survive constitutional scrutiny only if the record Congress amassed to support the statute documents pervasive unconstitutional conduct in covered jurisdictions for which preclearance offers a remedy. This paper takes issue with that assumption, arguing that precedent requiring such a record for new congressional legislation enforcing civil rights ought not apply …

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Business, Steven R. Ratner Jan 2007

Business, Steven R. Ratner

Book Chapters

This chapter seeks to expose some of the divergences between doctrine and reality, and to suggest ways of understanding the field that take proper account of business. It does so first by examining the roles and goals of business entities with respect to international environmental law. It then examines how international law has accommodated the place of business in environmental policy with respect to two key issues: (1) corporations as the target of legal obligations; and (2) corporations as participants in the process of international environmental law, particularly with respect to law-making and implementation. I conclude with some thoughts regarding …

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Refugee Solution, Or Solutions To Refugeehood?, James C. Hathaway Jan 2007

Refugee Solution, Or Solutions To Refugeehood?, James C. Hathaway

Articles

This is the text of a lecture delivered by James C. Hathaway in London in October 2006 to mark the twenty-fifth anniversary of the founding of Jesuit Refugee Service. The lecture was sponsored jointly by the Centre for the Study of Human Rights, London School of Economics; the Heythrop Institute for Religion, Ethics, and Public Life; and Jesuit Refugee Service (UK).

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Taxation In Developing Countries: Some Recent Support And Challenges To The Conventional View, Reuven S. Avi-Yonah, Yoram Margolioth Jan 2007

Taxation In Developing Countries: Some Recent Support And Challenges To The Conventional View, Reuven S. Avi-Yonah, Yoram Margolioth

Articles

The general advice given by international institutions such as the International Monetary Fund (IMF) and the World Bank to developing countries over the past few decades has been to replace trade taxes with domestic consumption taxes, particularly value-added taxes (VAT), and to maintain relatively high corporate income tax rates. This article reviews recent literature that supports and challenges this conventional view.

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Boilerplate And Economic Power In Auto-Manufacturing Contracts, Omri Ben-Shahar, James J. White Jan 2007

Boilerplate And Economic Power In Auto-Manufacturing Contracts, Omri Ben-Shahar, James J. White

Book Chapters

This chapter examines the boilerplate contracts used by auto makers to procure parts from suppliers. It identifies drafting and negotiation techniques that are used to secure advantageous terms. It also explores some prominent specific arrangements as evidence that firms with bargaining power are exploiting their position to dictate self-serving but inefficient terms. Finally, it shows how standard contractual clauses solve the problem of ex-post hold-up by suppliers.

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Ennobling Direct Democracy, Sherman J. Clark Jan 2007

Ennobling Direct Democracy, Sherman J. Clark

Articles

In this essay, Professor Clark argues that we should be attentive to the effect that direct democracy might have on our public character. Building upon earlier work, Clark suggests that the initiative in particular threatens to debase us by undercutting a crucial character trait which might best be called "responsibility-taking." The bulk of this essay is devoted to explaining what this means, and why it matters. Why should we care about the effect of political processes on public character? Why is this particular trait important and worth preserving? How is it threatened by direct democracy? In conclusion, and by way …

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Insider Trading Laws And Stock Markets Around The World: An Empirical Contribution To The Theoretical Law And Economics Debate, Laura Nyantung Beny Jan 2007

Insider Trading Laws And Stock Markets Around The World: An Empirical Contribution To The Theoretical Law And Economics Debate, Laura Nyantung Beny

Articles

The primary goal of this Article is to bring empirical evidence to bear on the heretofore largely theoretical law and economics debate about insider trading. The Article first summarizes various agency, market, and contractual (or "Coasian") theories of insider trading propounded over the course of this longstanding debate. The Article then proposes three testable hypotheses regarding the relationship between insider trading laws and several measures of stock market performance. Exploiting the natural variation of international data, the Article finds that more stringent insider trading laws are generally associated with more dispersed equity ownership, greater stock price accuracy and greater stock …

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The Investor Compensation Fund, Alicia J. Davis Jan 2007

The Investor Compensation Fund, Alicia J. Davis

Articles

The prevailing view among securities regulation scholars is that compensating victims of secondary market securities fraud is inefficient. As the theory goes, diversified investors are as likely to be on the gaining side of a transaction tainted by fraud as the losing side. Therefore, such investors should have no expected net losses from fraud because their expected losses will be matched by expected gains. This Article argues that this view is flawed; even diversified investors can suffer substantial losses from fraud, presenting a compelling case for compensation. The interest in compensation, however, should be advanced by better means than are …

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Holmes V. South Carolina Upholds Trial By Jury, Samuel R. Gross Jan 2007

Holmes V. South Carolina Upholds Trial By Jury, Samuel R. Gross

Articles

Bobby Lee Holmes was convicted of a brutal rape-murder and sentenced to death. The only evidence that connected him to the crime was forensic: a palm print, and blood and fiber evidence. (Biological samples taken from the victim for two rape kits were compromised and yielded no identifiable evidence.) Holmes claimed that the state's forensic evidence was planted and mishandled, and that the rape and murder were committed by another man, Jimmy McCaw White. At a pretrial hearing three witnesses testified that they saw White near the victim's house at about the time of the crime, and four others testified …

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The Puzzle Of Complete Preemption, Gil Seinfeld Jan 2007

The Puzzle Of Complete Preemption, Gil Seinfeld

Articles

Part I introduces the central themes in the law of federal question jurisdiction. It describes the prevailing interpretations of the constitutional and statutory texts governing the federal courts' jurisdiction to adjudicate disputes involving questions of federal law, and it explores the reasons for the establishment of such jurisdiction. This Part also introduces the well-pleaded complaint rule and examines the reasons for its adoption by the Supreme Court. Part II provides a detailed account of complete preemption doctrine, under which parties are permitted to usher state-law claims into the federal courts despite the apparent absence of any federal question on the …

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Francis A. Allen--Architect Of Modern Criminal Procedure Scholarship, Yale Kamisar Jan 2007

Francis A. Allen--Architect Of Modern Criminal Procedure Scholarship, Yale Kamisar

Articles

Francis A. Allen, who spent the last eight years of his distinguished teaching career at the University of Florida, Fredric G. Levin College of Law, died at the age of eighty-seven. He was a leading figure in law teaching, and the legal profession generally, for more than four decades.

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