Digital Commons Network^™

Alumni, University Of Michigan Law School

Law Quadrangle (formerly Law Quad Notes)

• Alumni directory work approaches completion
• Brian O’Neill, ‘74: The wheels of justice are stuck
• New Dean’s Advisory Council links Michigan Law, legal profession

Judging Magic: Can You See The Sleight Of Hand?, Rebecca Johnson

Michigan Law Review

Cultural critic bell hooks says, "Movies make magic. They change things. They take the real and make it into something else right before our very eyes." Movies do not, of course, have an exclusive hold on this ability to change one thing into something else. Law, too, possesses this power. Certainly, one must acknowledge some significant differences in the "magic" of filmic and legal texts. For the most part, as willing consumers of cultural products, we "choose" to subject ourselves to the magic of film. We sit in a darkened theater and let ourselves be taken away to a different …

Capital Defense Lawyers: The Good, The Bad, And The Ugly, Sean D. O'Brien

Michigan Law Review

Professor Welsh S. White's book Litigating in the Shadow of Death: Defense Attorneys in Capital Cases collects the compelling stories of "a new band of dedicated lawyers" that has "vigorously represented capital defendants, seeking to prevent their executions" (p.3). Sadly, Professor White passed away on New Year's Eve, 2005, days before the release of his final work. To the well-deserved accolades of Professor White that were recently published in the Ohio State Journal of Criminal Law, I can only add a poignant comment in a student blog that captures his excellence as a scholar and educator: "I wanted to …

Vol. 57, No. 9, February 20, 2007, University Of Michigan Law School

Res Gestae

•The Best Kept Secret in Michigan: Curacao •You Are Not Your GPA •New Building Plan Changes Direction •Introducing Miss Sandra D. •March Madness Hits Career Services •Insider Advice and Perspectives •No Other Warranties, Expressed or Implied •Washtenaw County Workers' Center •2nd Annual Juan Luis Tienda Banquet Photos •Grade Curves •You Know Everything About Same-Sex Marriage •Crossword

Preserving The Seeds Of Gender Fluidity: Tribal Courts And The Berdache Tradition, Andrew Gilden

Michigan Journal of Gender & Law

This Article outlines the particular cultural characteristics giving rise to traditional berdachism, the means by which American policies fostered their decline, and the Navajo tribal courts' re-infusion of these characteristics into contemporary jurisprudence. By tracking the interplay between the traditional values of child autonomy, gender equality, and tribal collectivism, the rise, fall and potential reemergence of the berdache tradition can be analyzed as resulting from shifts in its determinative cultural elements.

Fair Use And The Digital Millennium Copyright Act, Thomas J. Loos

Michigan Telecommunications & Technology Law Review

In the last decade of the 20th Century, more than 200 years after the first Copyright Act of 1790, the rights of copyright owners have increased relative to those of the public. The Visual Artists Rights Act of 1990 provided a limited right to visual artists to control their work; even after sold, limiting first use rights. The first copyright act had a 28 year term; in 1998, the term of copyright was increased to the life of the author plus 70 years. The Digital Millennium Copyright Act (DMCA) of 1998 dramatically shrank the fair use rights provided under 17 …

Copyright And Youtube: Pirate's Playground Or Fair Use Forum?, Kurt Hunt

Michigan Telecommunications & Technology Law Review

The entertainment industry has a history of framing new technology as piracy that threatens its very existence, regardless of the potential benefits of the technology or the legal limits of copyright rights. In the case of YouTube, copyright owners' attempts to retain content control negatively impact the public's ability to discuss culture in an online world. This implicates the basic policy behind fair use: to prevent copyright law from "stifl[ing] the very creativity which that law is designed to foster." The internet has become a powerful medium for expression. It is a vital tool in today's world for sharing original …

University Of Michigan Law School Faculty, 07/08, University Of Michigan Law School

Miscellaneous Law School History & Publications

Biographies of the University of Michigan Law School faculty.

The Word And The Law, James Boyd White

Articles

In this Article I shall first give a brief account of Milner Ball's book, The Word and the Law, saying something about the interesting and important way in which it connects theology, literature, and law. I shall then give a little more content to what I say about this achievement by engaging in a kind of reading of two texts, one theological and one literary, connecting both to the law. I mean this reading simultaneously to be my own and to reflect something of what I have learned from Milner. Another way to put this is to say that …

Criminal Justice And The 1967 Detroit 'Riot', Yale Kamisar

Articles

Forty years ago the kindling of segregation, racism, and poverty burst into the flame of urban rioting in Detroit, Los Angeles, Newark, and other U.S. cities. The following essay is excerpted from a report by Professor Emeritus Yale Kamisar filed with the National Advisory Commission on Civil Disorders (the Kerner Commission) regarding the disorders that took place in Detroit July 23-28, 1967. The report provided significant material and was the subject of one article in the series of pieces on the anniversary of the disturbances that appeared last summer in The Michigan Citizen of Detroit. Immediately after the disturbances ended, …

Procedural Injustice: How The Practices And Procedures Of The Child Welfare System Disempower Parents And Why It Matters, Vivek Sankaran, Itzhak Lander

Articles

Many of us appear surprised when families involved in the child protective system do not reunify. A parent’s path to reunification seems straightforward. Upon a finding of neglect, the court prescribes a basic regimen, typically consisting of parenting classes, counseling, drug testing, and a psychological evaluation, that a parent must fulfill prior to having the child returned to his/her custody. If a parent successfully completes these seemingly minimal requirements, the law requires reunification unless the return poses a “substantial risk of harm” to the child. With such high stakes involved, a clearly defined path for success, and the prospect of …

Vol. 57, No. 3, October 4, 2006, University Of Michigan Law School

Res Gestae

•Interview with Christine Gregory •Letter to the Editor •U.S. Solicitor General Speaks on SCOTUS •Mainstreaming Feminism in Legal Education •3Ls Stepping Up to the Nannes Challenge •Environmental Law Symposium •The Etiquette of Wrong •Focus on Public Service •Michigan Civil Rights Initiative Lecture Series Schedule •MCRI and Affirmative Action •Banned Book Day Pics •Grabbing a Bite •Pining for Piven •Crossword

Briefs, University Of Michigan Law School

Law Quadrangle (formerly Law Quad Notes)

U.S. Solicitor General Paul D. Clement: O'Connor, Alito, Roberts made for "historic" Supreme Court term; Inspiring Paths speakers discuss careers; Faculty and students share interests.

Special Section: An Eye On The World, University Of Michigan Law School

Law Quadrangle (formerly Law Quad Notes)

Why Japan? A Rube Goldberg experiment in comparative law; Why China? A startling transformation; Why Europe? Let me count the ways; Why India? World's largest democracy, with an Anglo-American common law system; Why globalization? International law and informal norms; Why Sudan? Ambiguous identities forge persistent conflict; Human rights should know neither gender nor border; A beacon in refugee law; Affiliated Overseas Faculty; People, times, Law School leadership join to launch South Africa program; A new way to understand human rights; From Hutchins Hall to The Hague; Reflections of an ICJ Law Clerk; DeRoy Visiting Professors offer international insights; Conferences, symposia …

Faculty, University Of Michigan Law School

Law Quadrangle (formerly Law Quad Notes)

Samuel D. Estep, '46; Recent books by James Boyd White; New faculty; Rebecca Scott's Degrees of Freedom wins multiple honors; New Business Law Faculty Fellows Program; Niehoff, '84, cited in ruling against warrantless surveillance; Miller to visit St. Andrews as Carnegie Centenary Professor; An evening of recognition; Activities.

Alumni, University Of Michigan Law School

Law Quadrangle (formerly Law Quad Notes)

Michigan Law alumni directory moves ahead; Matt Meyer, '02: Michigan Law known worldwide for service; Class of 2009 snapshot; Graduates' books offer tips for practitioners; John Warner Fitzgerald, '54; Reunion: A time to come back home; Peter G. Fitzgerald, '86: I care; Frank H. Wu, '91: Affirmative action brought me back; Classnotes; In Memoriam.

Europe's Evolving 'Constitution', Eric Stein

Law Quadrangle (formerly Law Quad Notes)

The following essay is an updated excerpt based on the keynote address the author delivered at the ninth International Conference of the European Union Studies Association last year in Austin, Texas, at which he was awarded EUSA’s Lifetime Contribution to the Field Prize. Stein was the first lawyer to receive the prize, which had been awarded three times previously. The complete address appears in the summer 2005 issue of EUSA Review, Vol. 18, No. 3.

Conscripting Attorneys To Battle Corporate Fraud Without Shields Or Armor? Reconsidering Retaliatory Discharge In Light Of Sarbanes-Oxley, Kim T. Vu

Michigan Law Review

This Note advocates that federal courts should allow attorneys to bring retaliatory discharge claims under SOX. Traditional rationales prohibiting the claims of retaliatory discharge by attorneys do not apply in the context of Sarbanes-Oxley. This Note contends that the Department of Labor and the federal courts should interpret the whistleblower provisions of § 806 as protecting attorneys who report under § 307. Assuring reporting attorneys that they have protection from retaliation will encourage them to whistleblow and thereby advance SOX's policy goal of ferreting out corporate fraud. Part I explores the legal landscape of retaliatory discharge suits by attorneys. This …

Katrina: Still A Need For Help, University Of Michigan Law School

Law Quadrangle (formerly Law Quad Notes)

Katrina: Still a need for help; Spring break: Gulfport, Mississippi; Like Ground Zero - for mile after mile after mile; 'I am amazed by all we have done and seen'.

Briefs, University Of Michigan Law School

Law Quadrangle (formerly Law Quad Notes)

World's first continental democracy; Through workers' eyes: immigration and social justice; Senior Day 2206: 'Be kind to each other'; Nobel laureate Shirin Ebadi; 28th Annual Aiden J. "Butch" Carpenter Memorial Scholarship Banquet; Michigan Law Clinic aids Native Americans; Sir Francis Jacobs: Europe's move to unity; Examining ethics, civility, and professionalism; U.S., South Aftrica approach equality differently; Digital advances concern copyright holders; Marriage and 'diverging destinies'; Women's Week 2006; Sharing Juan Tienda's story; KUDOS; Arts bloom at Michigan Law.

Unconscionable Contracting For Indigent Defense: Using Contract Theory To Invalidate Conflict Of Interest Clauses In Fixed-Fee Contracts, Jacqueline Mcmurtie

University of Michigan Journal of Law Reform

Indigent defense remains in crisis and yet constitutional challenges to promote systemic change have met with mixed success. This Article explores the new strategy of applying contract theory and principles to challenge indigent defense contracts that violate the canons of professional responsibility. This Article begins by discussing the author's experience working on cases of indigent defendants whose convictions were overturned through the efforts of the Innocence Project Northwest. The erroneous convictions were facilitated by the indigent defense contract in place at the time of the convictions. Pursuant to this contract, the indigent defense contractor agreed to provide representation in all …

The Current Landscape Of Race: Old Targets, New Opportunities, Richard Delgado

Michigan Law Review

It is difficult enough identifying areas within a current field of scholarship that are underdeveloped and in need of further attention. In science, one thinks of missing elements in the periodic table or planets in a solar system that our calculations tell us must be there but that our telescopes have not yet spotted. In civil-rights law, one thinks of such areas as women's sports or the problems of intersectional groups, such as women of color or gay black men. One also thinks of issues that current events are constantly thrusting forward, such as discrimination against Arabs or execution of …

Alumni, University Of Michigan Law School

Law Quadrangle (formerly Law Quad Notes)

Reunions marked by thought-provoking programs; Reunion Giving; Roll illuminates controversial lawyer/politician; Graduates' books; Zell receives honorary degree; Graduates win Fulbright, Skadden Fellowships; Law School ties with ABC News; Cohn wins service award; Graduates win Michigan State Bar honors; Moran named dean of Toronto's Faculty of Law; Class Notes: In Memoriam.

The Role Of Nonprofits In The Production Of Boilerplate, Kevin E. Davis

Michigan Law Review

Drafting contracts-by which I really mean the documents that embody contracts-requires investments of time, experience, and ingenuity. Those investments may yield significant returns because the quality of contractual terms can be an important determinant of the gains that parties realize from trade. This in tum suggests that, from an economic perspective, it is important to understand how contracts are produced. It seems particularly important to examine the production of contracts or individual contractual terms that are widely used-that is to say, "boilerplate." In a market oriented society, boilerplate is the predominant feature of the network of legal obligations that provides …

University Of Michigan Law School Faculty, 06/07, University Of Michigan Law School

Miscellaneous Law School History & Publications

Biographies of the University of Michigan Law School faculty.

People, Times, Law School Leadership Join To Launch South Africa Program, David L. Chambers

Articles

Professor Emeritus David Chambers launched Michigan Law’s South Africa externship program 10 years ago just as that country was emerging from apartheid and beginning to function under its new constitution, adopted in 1996. Here Chambers recalls how the externship program began. Now the Wade H. McCree Jr. Collegiate Professor Emeritus of Law, Chambers directed the program until his retirement from active teaching in 2003.

Two Distinct Roles/Bright Line Test, Donald N. Duquette

Articles

It is a mistake to try to develop a single lawyer role for children in child welfare cases which tries to accommodate their developing capacities from infants to articulate teens. The older child needs a traditional attorney; the youngest child, incapable of directing counsel, needs a substitute to define and advocate for his or her best interests. We should adopt different standards for the different advocate roles. Trying to define a single lawyer role for children of all ages and all capacities is an impossible task. A better approach towards recognizing and accommodating the child's developing cognitive abilities and judgment …

Hipaa-Cracy, Carl E. Schneider

Articles

The Department of Health and Human Services has recently been exercising its authority under the (wittily named) "administrative simplification" part of the Health Insurance Portability and Accountability Act to regulate the confidentiality of medical records. I love the goal; I loathe the means. The benefits are obscure; the costs are onerous. Putatively, the regulations protect my autonomy; practically, they ensnarl me in red tape and hijack my money for services I dislike. HIPAA (a misnomer-HIPAA is the statute, not the regulations) is too lengthy, labile, complex, confused, unfinished, and unclear to be summarized intelligibly or reliably. (Brevis esse laboro, …

On The Stickiness Of Default Rules, Omri Ben-Shahar, John A. E. Pottow

Articles

It was once perceived, and still is commonly taught, that default rules in contract law must mimic efficient arrangements. Otherwise, these rules impose needless transaction costs upon parties who seek to opt out of them to reach more efficient positions. In settings where these costs are high, parties might find themselves "stuck" in a default, unable to reach the outcome that they prefer. The strong version of this account-that the only factor that can make an inefficient default rule stick is the direct cost of drafting a tailored provision-has been gradually reappraised. It is by now recognized that factors beyond …

A Comment On Nielsen's And Albiston's Sample Selection Methodology, And Implications For The 'Have-Nots', Laura Nyantung Beny

Articles

Professors Nielsen and Albiston revisit the 1978 article, The Public Interest Law Industry, by Joel F. Handler, Betsy Ginsberg, and Arthur Snow, which presents an empirical study of the public interest law ("PIL") industry in the mid-1970s. At that time, there were only eighty-six PIL firms or public interest law organizations ("PILOs") in existence in the United States. Then, PILOs tended to be small, had relatively small operating budgets, received most of their funds from private sources, and tended to focus most of their effort in a single substantive area, among other characteristics noted by Professors Nielsen and Albiston. However, …