Digital Commons Network^™

Blue-Sky Merit Regulation: Benefit To Investors Or Burden On Commerce?, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

In The End, Truth Will Out’...Or Will It?. ‘Merchant Of Venice,’ Act Ii, Scene 2, Donald Magnetti

Faculty Scholarship

No abstract provided.

Chernobyl Fallout: Recent Iaea Conventions Expand Transboundary Nuclear Pollution Law, Michael A. Heller

Faculty Scholarship

After releasing a radioactive cloud over Europe, the April 1986 nuclear power plant accident at Chernobyl in the USSR sparked a chain-reaction of diplomatic negotiation that culminated in two recent International Atomic Energy Agency (IAEA) conventions on nuclear accidents. The Convention on Early Notification of a Nuclear Accident (Convention on Early Notification) and the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency (Convention on Assistance) were both opened for signature on September 26, 1986 at the end of a three-day IAEA special session on the lessons of the Soviet nuclear plant disaster. In the months …

Rethinking The Class Action: A Policy Primer On Reform, John C. Coffee Jr.

Faculty Scholarship

Today, virtually everyone has a proposal for "reforming" class action litigation but both consensus and coherence are lacking. Some proposals are bluntly restrictive. For example, the Reagan Administration would reduce attorney's fees, place a ceiling on product liability, and partially repeal treble damage statutes. In the same vein, the United States Supreme Court has shown itself parsimonious on the question of fee awards, by authorizing fee waivers, approving offers of settlement that seemingly permit fee shifting against the plaintiff's attorney, and curtailing the traditional bases on which a fee award may be enhanced. Other proposals have offered essentially neutral procedural …

Use Of Comparative Risk Methods In Regulatory And Common Law, Michael S. Baram

Faculty Scholarship

Several persistent problems afflict risk decisionmaking. In the regulatory context, agencies confront the problems of how to prioritize risks for best use of their limited resources and how to determine "how safe is safe enough," or a risk limit, when action is to be taken on a particular risk.

In the trial courts hearing toxic tort actions, the jury must often determine whether an activity is "unreasonably dangerous" or a product is "defective" because of its risk attributes.

To resolve these problems, many have proposed the use of risk comparisons. Now that we can quantify risks, why not compare them …

Death And The Magic Machine: Informed Consent To The Artificial Heart, George J. Annas

Faculty Scholarship

Jay Katz introduces his remarkable and insightful book, The Silent World of Doctor and Patient, by recounting a portion of Solzhenitsyn's Cancer Ward. He describes an encounter between a patient, Oleg Kostoglotov, and his doctor, Dr. Ludmilla Afanasyevna. The doctor wanted to use experimental hormone treatment, but the patient refused. Katz argues that what made conversation impossible between them was the patient's undisclosed intention of leaving the hospital to treat himself with "a secret medicine, a mandrake root from Issyk Kul." He could not trust the doctor with this information because the doctor would make the decision for the patient …

Formal And Functional Approaches To Separation-Of-Powers Questions – A Foolish Inconsistency?, Peter L. Strauss

Faculty Scholarship

Is it possible to give contemporary shape to the principles of constitutional structure we know as "separation of powers"? That question was sharply presented once again on the final day of the Supreme Court's most recent Term, when it decided two cases raising separation-of-powers issues. In Bowsher v. Synar, the subject of this symposium, the Court found constitutional fault in Congress's asserted expansion of its own powers at the expense of the President's article II authority. Commodity Future Trading Commission v. Schor, far less widely noted, upheld against constitutional challenge Congress's assignment to an administrative adjudicator of the …

Troubled Marriage Of Retirement Security And Tax Policies, Michael J. Graetz

Faculty Scholarship

This Article concentrates on equitable and distributional aspects of the retirement security problem, although the unified view taken here seems essential to an adequate assessment of the fairness or efficacy either of the three components taken together or of any one of the three. Moreover, because tax legislation serves as the dominant public mechanism for implementing national retirement policy, whether through funding Social Security via the payroll tax or providing tax incentives for both private pensions and individual savings, a unified view of retirement security policy highlights interrelationships, confluences, and potential conflicts between retirement security and tax policy concerns.

This …

Public Contracts, Private Contracts, And The Transformation Of The Constitutional Order, Thomas W. Merrill

Faculty Scholarship

Modern interpretation of the Contract Clause of article 1, section 10 has created a dual standard of judicial review that bottoms upon the classification of a particular contract as public or private. However, which particular category has received greater deference has changed depending upon the precedential climate. Within his Article, Professor Merrill outlines three modern justifications for affording greater protection to public obligations “Kantian theory,” “process theory,” and “utilitarian theory.” He argues, however, that none of these theories adequately justify the dual standard of review, and concludes that a unitary analysis of the contract clause that affords no presumptions in …

Introduction, Barbara Aronstein Black

Faculty Scholarship

It is with great pride and pleasure that I welcome the appearance of the inaugural issue of the Journal of Chinese Law.

Wade H. Mccree, Jr., Lee C. Bollinger

Faculty Scholarship

Wade McCree was a member of the Michigan Law School faculty for six years. He came to us not as a young and inexperienced person but as a distinguished jurist and public official. He was the Lewis M. Simes Professor of Law. He taught courses on constitutional litigation, the legal profession, and constitutional law.

Now these are the biographical details of Wade McCree's time with the Law School. But what images remain and will remain upon our parting? What is the spirit that Professor McCree added to our institution, to us as students and as colleagues?

The Regulation Of Entrepreneurial Litigation: Balancing Fairness And Efficiency In The Large Class Action, John C. Coffee Jr.

Faculty Scholarship

Just as war is too important to be left to generals, civil procedure – with apologies to Clemenceau – is too important to be left to proceduralists. Although it would be a serious overstatement to claim that all civil procedure scholars are confined by a tunnel vision focused only on the Federal Rules of Civil Procedure, they have as a group been reluctant to engage explicitly in incentive-based reasoning and seem particularly hesitant to reexamine what they must know to be a noble myth: namely, that the client can and should control all litigation decisions. Within an important and expanding …

A Lawyer's Privilege Against Self-Incrimination In Professional Disciplinary Proceedings, Geoffrey C. Hazard Jr., Cameron Beard

Faculty Scholarship

No abstract provided.

Philadelphia Newspapers V. Hepps: Unanswered Defamation Questions, John L. Diamond

Faculty Scholarship

No abstract provided.

Overprotecting The Consumer? Section 2-607(3)(A) Notice Of Breach In Nonprivity Contexts, H.G. Prince

Faculty Scholarship

No abstract provided.

The "Contemporaneous" Traders Who Can Sue An Inside Trader, William K.S. Wang

Faculty Scholarship

No abstract provided.

Made In The U.S.A.: Legal And Ethical Issues In Artificial Heart Experimentation, George J. Annas

Faculty Scholarship

The death of William Schroeder in Louisville, Kentucky, on August 6, 1986, brought to a close a remarkable chapter in public human experimentation. Artificial heart implants represent the most public experiments in the history of the world. The manner in which they are conducted is a matter of utmost public and professional concern, since it graphically portrays the seriousness with which we take our laws and ethical rules regarding the protection of the rights and welfare of human subjects. Unfortunately, the brief history of artificial heart implants is neither a happy nor a proud one. Begun with high hopes and …

Chemical Industry Accidents, Liability, And Community Right To Know, Michael S. Baram

Faculty Scholarship

The Bhopal, India tragedy and other industrial accidents (e.g., Seveso, Flixborough, Mexico City, Institute, WV) have frightened the citizens of developed and undeveloped countries. These accidents, along with numerous hazardous waste problems, have led to a dramatic loss of public confidence in chemical industry management and their safety experts. The occurrence of such accidents also provides vivid evidence of the serious gap between government legislative promises and government performance in the actual control of industrial hazards.'

As a result, persons who believe they have been injured or put at risk by industry are now using tort law to secure private …

Conflict Of Laws (1986), James Paul George, Fred C. Pedersen

Faculty Scholarship

Conflicts of law occur when foreign elements appear in a lawsuit. Nonresident plaintiffs or defendants, incidents in other state or countries, and lawsuits outside of Texas are all foreign elements that may create conflicts problems with judicial jurisdiction, choice of law, or the recognition and enforcement of foreign judgments. This Article will review Texas conflicts of law during the Survey period from late 1984 through 1985. The Survey includes cases from Texas state and federal courts, and non-Texas cases affecting Texas practice.

During the Survey period, judicial jurisdiction continued its uncertain theoretical expansion, with Texas courts raising important questions. Foreign …

Some Reflections On Gramm-Rudman-Hollings, Gordon G. Young

Faculty Scholarship

No abstract provided.

"Tastes Great, Less Filling": The Law School Clinic And Political Critique, Robert J. Condlin

Faculty Scholarship

No abstract provided.

An Overview Of Health Law Research And An Annotated Bibliography, Richard A. Danner, Claire M. Germain

Faculty Scholarship

No abstract provided.

The Enduring Contributions Of Professor Nimmer, J. H. Reichman

Faculty Scholarship

No abstract provided.

Sensory Function And Gating Of Histaminergic Neuron C2 In Aplysia, Hillel J. Chiel

Faculty Scholarship

This paper explores the possible sensory function of the identified histaminergic neuron C2. Mechanical stimulation of a narrow region around the mouth of the animal (perioral zone) elicits brief depolarizing potentials in C2. Extracellular recordings from the peripheral axons of C2 indicate that the depolarizing potentials are due to action potentials that are conveyed from the periphery but do not invade the cell body, since they fail at a region with a low safety factor within the cerebral ganglion. These blocked axonal spikes (A- spikes) function as if they were excitatory synaptic inputs to C2, since the synaptic output of …

What Disabilities Are Protected Under The Rehabilitation Act Of 1973?, David Larson

Faculty Scholarship

It can be difficult for an employer or a recipient of federal funds to determine exactly what types of disabilities are protected by the Rehabilitation Act of 1973. Relevant literature has not given a great deal of attention to this specific question. Recent cases, however, provide additional information that can assist in determining which disabilities are protected. The question of what is protected handicap differs from the question of whether a handicapped person is also “qualified.” This article focuses on the threshold question of determining whether a handicap actually exists, concentrating on the Rehabilitation Act of 1973. The definition of …

The Interpretation Of Means Expressions During Prosecution, R. Carl Moy

Faculty Scholarship

This article briefly explains how the scope of a claim including a means expression is determined both under the PTO view and a strict application of the statutory language. The lack of consensus and current state of the law in the area are illustrated through an analysis of several recent decisions of the Federal Circuit. The policies underlying the PTO and statutory methods of interpreting means expressions during prosecution are examined in an effort to demonstrate that the statutory method more effectively furthers the policies underlying the patent system.

The Forgotten Era, David S. Bogen

Faculty Scholarship

No abstract provided.

New Rules: A Pocket Introduction, James Hambleton, Jim Paulsen

Faculty Scholarship

All in all, though, the new Rules of Appellate Procedure, effective Sept. 1, 1986, should be welcomed by bench and bar alike. The cooperation of this state's two high courts has produced a coordinated system of rules that should reduce confusion among attorneys and court personnel. In the process, the rules formerly applicable only to civil appeals have been reorganized, and are now presented in a format that more logically follows the flow of an appeal.

The Pitfalls Of Empirical Research: Studying Faculty Publication Studies, David H. Kaye, Ira Mark Ellman

Faculty Scholarship

This article critiques empirical studies by attorneys in the hopes that they will be held to the minimal standards of research competence that are to be found in other academic fields which rely on empirical studies. Because law-trained scholars are notoriously weak at empirical research, this article identifies some of the methodological considerations that should inform empirical research. These fall into four broad categories: (1) problems of conceptualization, (2) problems of measurement, (3) problems of data presentation and analysis, and (4) problems of inference. This article examines all of these considerations in the context of an empirical survey done by …

From Confidential Supervision To Market Discipline: The Role Of Disclosure In The Regulation Of Commercial Banks, Alfred Dennis Mathewson

Faculty Scholarship

This Article examines traditional regulatory discipline, the development of a legal basis for confidential supervision, the role of the SEC and federal securities laws in the development of a public disclosure system for banks and bank holding companies, and the utilization of public disclosure to achieve market discipline as a major tool in preventing bank failure and maintaining the stability of the banking system. The scope of this Article is limited to the regulation of commercial banks, whether state or federally chartered, by the following federal bank regulatory agencies: the Office of the Comptroller of the Currency (Comptroller), the Federal …