Digital Commons Network^™

The Jurisprudence Of Skepticism, Richard A. Posner

Michigan Law Review

The skeptical vein in American thinking about law runs from Holmes to the legal realists to the critical legal studies movement, while behind Holmes stretches a European skeptical legal tradition that runs from Thrasymachus (in Plato's Republic) to Hobbes and Bentham and beyond. Against the skeptics can be arrayed a vast number of natural lawyers, legal conventionalists, and formalists, including Cicero, Coke, Blackstone, and Langdell, not to mention the majority of contemporary lawyers, judges, and law professors. This article will set forth and defend a moderately skeptical approach to law and judging, one not so far-reaching as that of …

Plebiscites, Participation, And Collective Action In Local Government Law, Clayton P. Gillette

Michigan Law Review

Participation is again in the air. Apparently fueled by current debates concerning decentralized power and republican versus pluralist traditions in our political and legal theory, those concerned with political decisionmaking have turned their attention to calls for increased public involvement in the process. As has been true in the past, the objectives of those who advocate increased participation are by no means uniform. Some stress the positive effects that broad participation would have on individual participants. The primary function of participation in these accounts lies in its educative value, its capacity to produce a more informed, hence more self-sufficient, citizenry. …

Labor Law's Alter Ego Doctrine: The Role Of Employer Motive In Corporate Transformations, Gary Alan Macdonald

Michigan Law Review

This Note examines the differing judicial approaches for reviewing NLRB alter ego findings, and concludes that a fundamental problem with all of the current approaches is the unwarranted consideration of motive in varying degrees. This Note proposes a modified "reasonably foreseeable benefit" standard which does not depend in any degree on the employer's motive for changing its corporate form. Part I discusses the origin and evolution of the alter ego doctrine, including its genesis in Southport Petroleum, the well-settled Crawford Door factors, and the related "successorship" doctrine. Part II analyzes the conflict among the federal courts of appeals over …

A Job For The Judges: The Judiciary And The Constitution In A Massive And Complex Society, Neil K. Komesar

Michigan Law Review

This article attempts that task by exploring the elements of institutional choice in constitutional law. Part I takes an overview of the general division of decisionmaking responsibility between the political processes and the courts. It also examines the failures of existing theories to take account of this division of responsibility. Part II identifies two theories of political malfunction - those circumstances in which political processes are subject to significant doubt or distrust and, therefore, prime candidates for judicial review. Part III examines the characteristics - limits, biases, and abilities - of the judiciary and the potential for judicial response to …

The Rhetoric Of Law And Economics, Donald N. Mccloskey

Michigan Law Review

Economics and law have contrasting rhetorics, which is one reason perhaps why economics has become influential in law. It is a new way of arguing, and lawyers are on the watch for new ways of arguing.

These "rhetorics" are not always bad. "Rhetoric" here is not merely ornament and trickery, but all persuasion, from arithmetic to moral character. We humans must decide what arguments we find persuasive. The lawyer's appeal to stare decisis or the economist's claim to scientific status are rhetorical acts, good or bad. I want to argue that economics is a sweet science, but the rhetoric of …

The 1986 And 1987 Affirmative Action Cases: It's All Over But The Shouting, Herman Schwartz

Michigan Law Review

For the moment, the affirmative action wars are over. In a ten-year set of decisions, culminating in five during the last two terms, the Court has now legitimated almost all types of race and gender preferences, even if they benefit nonvictims, including voluntarily adopted preferences in hiring, promotion, university admissions, and government contracting; hiring and promotion preferences in consent decrees; and court-ordered hiring and promotions. It has approved preferences by both public and private bodies, and for both racial-ethnic minorities and women. It has barred only layoffs of white (and presumably male) employees who have more seniority than employees hired …

Threshold Requirements For The Fbi Under Exemption 7 Of The Freedom Of Information Act, Richard A. Kaba

Michigan Law Review

This Note examines Exemption 7 of the FOIA as it relates to FBP0 information and seeks to determine the appropriate rule for the first prong of the Abramson test. Part I of this Note examines Exemption 7 in the 1966, 1974, and 1986 FOIAs, the judicial opinions interpreting this exemption, and the legislative histories of the 1966, 1974, and 1986 FOIAs as they relate to Exemption 7. Part II compares the per se and threshold tests in view of their practical effects and concludes that neither test is clearly superior. Part III proposes adoption of a per se rule with …

Wade H. Mccree, Jr.: A Compassionate And Great Judge, Horace W. Gilmore

Michigan Law Review

A Tribute to Wade H. McCree, Jr.

Wade H. Mccree, Jr.: Student Perspectives, Professor Mccree's Students

Michigan Law Review

A Tribute to Wade H. McCree, Jr.

Symbols, Perceptions, And Doctrinal Illusions: Establishment Neutrality And The "No Endorsement" Test, Steven D. Smith

Michigan Law Review

Section I of this article briefly describes the emergence and development of the "no endorsement" test. Section II then seeks to show that the test is deficient as doctrine, and thus incapable of providing the clarity and coherence that current doctrine so sorely lacks. Section III considers various likely theoretical justifications for the "no endorsement" proposal, including the justification advanced by Justice O'Connor, and concludes that these justifications, like the test itself, are seriously flawed. This conclusion provokes a question: If the "no endorsement" test is doctrinally deficient and without theoretical justification, why has it elicited such widespread enthusiasm? Section …

Safeguarding The Litigant's Constitutional Right To A Fair And Impartial Forum: A Due Process Approach To Improprieties Arising From Judicial Campaign Contributions From Lawyers, Mark Andrew Grannis

Michigan Law Review

This Note will argue that the improprieties arising from some campaign contributions are so egregious that they offend the due process clause of the fourteenth amendment. Consequently, states must either reform judicial campaigns to eliminate such improprieties, or, through mandatory judicial recusal or disqualification, respect the absolute constitutional right to an impartial forum. Part I of this Note will examine the history of disqualification at common law and in American practice, focusing on the extent to which it has been held to be a requirement of due process. Part II will argue that under the applicable due process standards, a …

Problems In The Application Of Political Philosophy To Law, Christopher T. Wonnell

Michigan Law Review

There are at least four reasons why one might expect differences between the philosophies one would want to serve the pure normative philosophy function and the applied political philosophy function. The problems of rationalization and limited knowledge suggest that sincere commitment to and successful application of a philosophy cannot be equated; the problems of attraction of the insincere and the lack of institutional checks on the abuse of philosophical concepts suggest that even a sincere commitment may not remain stable.

The remainder of this article seeks to substantiate the thesis that modern political philosophies suffer from insufficient attention to the …

A Subject Matter Approach To Hearsay Reform, Roger Park

Michigan Law Review

None of the three major reform proposals - the Model Code, the Uniform Rules, or the original Federal Rules - incorporated a systematic distinction between civil and criminal cases. The thesis of this article is that this distinction should be adopted. This article will explore the reasons for excluding hearsay, and conclude that they support different sets of rules in civil and criminal cases. In civil cases, rules excluding hearsay should be curtailed. Hearsay that fits under an established exception should be admitted, and other hearsay, without discretionary screening by the trial judge, should be admitted on proper notice. In …

An Interested Response To A "Wholly Disinterested Assessment": Lebel On Summers On Lebel On Summers On ….Er…Um…Oh, Yeah…Fuller, Paul A. Lebel

Michigan Law Review

In 1985, I published in the Michigan Law Review a review of a recent book by Professor Robert S. Summers on the legal philosophy of Lon Fuller. Professor Summers has published in the Cornell Law Review an ironically titled criticism of my review and of another review. In a number of respects, Professor Summers' Assessment has served to increase my understanding of his book, and I trust that other readers will be similarly benefited. Although Professor Summers' response to my review of his book takes issue with what I said on a number of points, I strongly suspect that few …

Index - Volume 85, Michigan Law Review

Michigan Law Review

Contents of Volume 85: Subject Index, Articles, Notes, Authors, Books Reviewed

Disorder In The Court: The Death Penalty And The Constitution, Robert A. Burt

Michigan Law Review

This article has two purposes. Its first aim is to trace the significance of these shifting characterizations of American society in the Justices' successive approaches to the death penalty by retelling the story of the Court's capital punishment jurisprudence. Its second purpose is to suggest that belief in implacable social hostility destroys the coherence of the judicial role in constitutional adjudication. America may indeed be an irreconcilably polarized society; I cannot dispositively prove or disprove the proposition. I mean only to claim that in constitutional adjudication a judge is obliged to act as if this proposition were false; and, moreover, …

Corporate Behavior And The Social Efficiency Of Tort Law, John A. Siliciano

Michigan Law Review

This article examines this dissonance between accepted theory and observed reality, between what the model envisions and what the tort system seems to deliver. After sketching the model in greater detail, the first section of the article reviews restraints within tort law on the achievement of efficient outcomes. The analysis then turns to the broader legal environment, and describes how legally sanctioned means of liability evasion - such as the corporate law doctrine of limited liability and the bankruptcy rules permitting discharge of obligations - may further undermine the practical utility of the social efficiency model of tort. The final …

Periodical Index, Michigan Law Review

Michigan Law Review

Subject Index of Articles, Comments, Notes, and Recent Developments Appearing in Leading Law Reviews

The Excessive History Of Federal Rule 15(C) And Its Lessons For Civil Rules Revision, Harold S. Lewis Jr.

Michigan Law Review

This case study of one Federal Rule of Civil Procedure is designed to suggest affirmative answers to these questions. My focus is on the surprisingly extensive body of case law, culminating in the Supreme Court's 1986 decision in Schiavone v. Fortune, that parses the second sentence of Federal Rule 15(c). Added in 1966, that sentence attempts to set standards for the relation back of party-changing amendments to pleadings. A more prototypically pedestrian, less prepossessing topic of the traditionalist type could scarcely be imagined. Yet a review of its history brings larger points into sharp relief: something is seriously amiss in …

Legality And Empathy, Lynne N. Henderson

Michigan Law Review

This article rejects the assumption that legality - by which I mean the dominant belief system about the Rule and role of Law - and empathy are mutually exclusive concepts. Failure to recognize the phenomenon of empathy explicitly in legal decisions more generally may result from a fear of the emotional realm as irrational, rather than a rational. It may stem from a belief that the divide between "subject" and "object" is uncrossable. The resistance to empathy may be attributable to the adversarial ideology acquired during law school understanding the adversary is not important unless it serves one's instrumental …

When Honesty Is "Simply…Impractical" For The Supreme Court: How The Constitution Came To Require Busing For School Racial Balance, Lino A. Graglia

Michigan Law Review

A Review of Swann's Way: The School Busing Case and the Supreme Court by Bernard Schwartz

Road Signs And The Goals Of Justice, Joseph Sanders

Michigan Law Review

Review of Ideals, Beliefs, Attitudes, and the Law: Private Law Perspectives on a Public Law Problem by Guido Calabresi

The Legal History Of The Family, Lee E. Teitelbaum

Michigan Law Review

A Review of Governing the Hearth: Law and the Family in Nineteenth-Century America by Michael Grossberg

The Moral Dimensions Of Politics, Steven G. Bradbury

Michigan Law Review

A Review of The Moral Dimensions of Politics by Richard J. Regan

No State Shall Abridge: The Fourteenth Amendment And The Bill Of Rights, Mark A. Grannis

Michigan Law Review

A Review of No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights by Michael Kent Curtis

Asbestos And The Dalkon Shield: Corporate America On Trial, Joseph A. Page

Michigan Law Review

A Review of At Any Cost: Corporate Greed, Women, and the Dalkon Shield by Morton Mintz and Outrageous Misconduct: The Asbestos Industry on Trial by Paul Brodeur

The Costs Of Complexity, Stephen B. Burbank

Michigan Law Review

A Review of Complex Litigation: Cases and Materials on Advanced Civil Procedure by Richard L. Marcus and Edward F. Sherman

All The Right Moves, Charles A. Reich

Michigan Law Review

A Review of Tactics of Legal Reasoning by Pierre Schlag and David Skover

The Jurisprudence Of Reasons, Frederick Schauer

Michigan Law Review

A Review of Law's Empire by Ronald Dworkin

Arguing About Rights, Charles M. Yablon

Michigan Law Review

A Review of by Rex Martin