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Empty History, Erwin Chermerinsky

Michigan Law Review

A Review of Politics and the Constitution in the History of the United States, Volume 3: The Political Background of the Federal Convention by William Winslow Crosskey and William Jeffrey, Jr.

In Defense Of Equality: A Reply To Professor Westen, Erwin Chemerinsky

Michigan Law Review

Part I of this essay analyzes Professor Westen's arguments that the concept of equality is unnecessary. My contention is that Professor Westen never demonstrates that equality is meaningless; his arguments only prove the obvious, that equality by itself is insufficient. Part II argues that equality is a necessary principle: It is the only concept that tells us that different treatment of people does matter. Part III addresses Professor Westen's suggestion that equality is misleading and points out that none of his criticisms of the idea of equality are in any way inherent to that concept. Finally, Part IV demonstrates that …

Periodical Index, Michigan Law Review

Michigan Law Review

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

The Meaning Of Equality In Law, Science, Math, And Morals: A Reply, Peter Westen

Michigan Law Review

I shall set forth my thesis in Part I, using the Declaration of Independence ("all men are created equal") to illustrate that the emptiness of equality inheres in its very meaning, and that the confusions of equality result from neglecting its meaning. In Part II, I respond to Professors Chemerinsky's and D' Amato's reasons for believing that equality has independent normative content of its own. In Part III, I respond to Professor Chemerinsky's separate reasons for believing that equality is rhetorically useful.

Statutes Of Limitations And Opting Out Of Class Actions, Michigan Law Review

Michigan Law Review

This Note argues that one who opts out of a class action should not benefit from tolling for the time during which the individual was a class member. Part I develops an analytical framework, grounded in the underlying policies of statutes of limitations and applied in recent Supreme Court decisions, for resolving tolling questions. This Part concludes that a plaintiff must show that tolling will not conflict with the policy purposes animating statutes of limitations, as well as a policy reason that favors tolling. Part II applies the first of these parameters to the opt-out situation, and concludes that tolling …

The Taming Of A Duty--The Tort Liability Of Landlords, Olin L. Browder

Michigan Law Review

For one inclined to reform the first-year curriculum in law schools the most simple and comprehensive solution is to expand the treatment of the law on landlord and tenant, and only then break up into the traditional basic subjects to deal with matters not previously covered. Thereby one could embrace all the traditional first-year subjects except Criminal Law, and a good deal more as well.

The other side of this conceit is that one who approaches the modem law of landlord and tenant from traditional property perspectives encounters particular problems that arise from the margins, or along the frontal thrust, …

Prosecutorial Vindictiveness In The Criminal Appellate Process: Due Process Protection After United States V. Goodwin, Michigan Law Review

Michigan Law Review

This Note reformulates the doctrine of prosecutorial vindictiveness in light of the distinction drawn in Goodwin between pretrial and posttrial charging decisions. Part I recounts the development of the vindictiveness concept, and argues that in extending the doctrine beyond the factual settings which moved the Supreme Court to fashion its original prophylactic rule, the circuit courts have seriously eroded an essential due process safeguard. Part II critically examines the distinction between pretrial and posttrial charging decisions relied upon in Goodwin. Developing the logical corollary of the Goodwin holding, this Part argues that just as the pretrial situation does not …

Deducting The Cost Of Smoking Cessation Programs Under Internal Revenue Code Section 213, Michigan Law Review

Michigan Law Review

This Note argues that enrollment fees for a smoking cessation program should be classified as deductible medical expenses. Part I defends this conclusion without questioning the accepted interpretation of section 213(e). Recent medical evidence indicates that the nicotine addiction that cessation program patients seek to break is itself a disease. And even prior to the onset of more serious health consequences, sustained cigarette smoking significantly impairs the functioning of the lungs and heart. Under this analysis, enrollment fees should be deductible as expenses for the treatment of an existing disease or defect, and as "amounts paid . . . for …

Federal Agency Access To Grand Jury Transcripts Under Rule 6 (E), Michigan Law Review

Michigan Law Review

Part I examines the courts' current certainty-based perspective, and rejects this approach because it sacrifices important interests in civil law enforcement and judicial consistency for speculative and coincidental reductions in grand jury abuse. Part II defends the proposed standard by arguing that it comports with the language and intent of the rule while more effectively advancing the policy interests in civil law enforcement and grand jury secrecy.

Tax Treatment Of Previously Expensed Assets In Corporate Liquidations, Michigan Law Review

Michigan Law Review

This Note argues that although the Tennessee-Carolina majority adopts overbroad language and ignores established tax principles, a more careful refinement of its theory will yield the same proper result, without, in most situations, departing from accepted principles. The proper inquiry must focus first on whether the corporation has received any benefit, and then on whether that gain should be exempted by the nonrecognition provisions of section 336, or on any other basis. Part I of this Note examines these questions from a theoretical perspective, and concludes that expensed assets remaining at the time of liquidation give rise to corporate income, …

Index, Michigan Law Review

Michigan Law Review

Contents of Volume 80: Subject Index, Table of Cases, Articles, Authors, Book Reviews

The Sentencing Of White-Collar Criminals In Federal Courts: A Socio-Legal Exploration Of Disparity, Ilene H. Nagel, John L. Hagan

Michigan Law Review

This Article addresses that question by examining judicial sentencing philosophy as applied to white-collar criminality and reporting data that illuminate the operation of that philosophy. Part I of the Article argues that the traditional purposes and limits of criminal sentencing may plausibly justify either disparate or comparable sentences in cases of white-collar and common criminality. Part II describes the obstacles to an accurate empirical inquiry into how judges resolve these uncertainties in the theory of punishment. Part III presents a study designed to overcome as many of these obstacles as possible. What is most dramatic is that the resulting data …

From Pillory To Penitentiary: The Rise Of Criminal Incarceration In Early Massachusetts, Adam J. Hirsch

Michigan Law Review

While the transition from the old forms of criminal sanction to incarceration was perhaps not, as Jeremy Bentham claimed, "one of the most signal improvements that have ever yet been made in our criminal legislation," one does not overstate to call it a signal development in the history of Anglo-American criminal justice - a development, one may add, that still wants adequate examination, much less explanation. This Article attempts to do both for one sample region: Massachusetts. Though the jurisprudential movement from pillory to penitentiary took place throughout the new American republic, as well as much of western Europe, our …

Interest Representation And The Federal Land Policy And Management Act, Michigan Law Review

Michigan Law Review

The role of the BLM under the FLPMA, this Note argues, is accurately captured in the "interest representation" model of administrative law; judicial review under this model serves to vindicate the "participation rights" of parties interested in public lands management. Part I places the FLPMA in the context of other recent congressional reform efforts and attempts to justify heightened judicial scrutiny of the BLM's activities. To protect citizens' participation rights, it concludes, courts should recognize a limited right to initiate the planning and management provisions of the FLPMA. The Act, in other words, should be interpreted to comprehend "agenda forcing" …

Statutory And Common Law Considerations In Defining The Tort Liability Of Public Employee Unions To Private Citizens For Damages Inflicted By Illegal Strikes, Michigan Law Review

Michigan Law Review

This Note argues that in the absence of any clear indication that the legislature intended to bar such suits, courts should uphold private actions whenever plaintiffs can establish the elements of a common-law tort. Part I briefly outlines the various theories supporting the view that public sector collective bargaining statutes preempt private actions. The analysis is necessarily general, but Part I concludes that in most cases neither the language and structure of the applicable statute nor an analogy to federal labor law will resolve the preemption question. Part II, therefore, looks to the policies that animate no-strike provisions and argues …

Antitrust Suits By Targets Of Tender Offers, Frank H. Easterbrook, Daniel R. Fischel

Michigan Law Review

We explore in this Article the basis and consequences of the target's suit under the antitrust laws. We approach the question from the perspective of federal antitrust law and state corporation law.

We argue in Part I that the target is a singularly poor "private attorney general" because it is a beneficiary, not a victim, of any violation. An antitrust suit thus must be understood as an attempt by managers to defend their own positions, not as an attempt to vindicate the public interest. In the jargon of antitrust, the target is not a victim of "antitrust injury" and therefore …

Stone V. Powell And The Effective Assistance Of Counsel, Michigan Law Review

Michigan Law Review

Part I briefly identifies the considerations underlying the Stone Court's decision to limit habeas corpus review of fourth amendment claims. Part II then argues against applying Stone to the sixth amendment claim. After establishing the analytic difference between the two constitutional claims and examining Stone's "opportunity for full and fair litigation" standard, it concludes that Stone is fully consistent with free review of habeas corpus petitions alleging incompetent handling of fourth amendment questions. Finally, responding to a popular interpretation of Stone, Part II demonstrates that the possibility that ineffectiveness claims may not further the determination of a defendant's …

Another Theory Of Nonprofit Corporations, Ira Mark Ellman

Michigan Law Review

This Article argues that the distinction between donors and customers is critical, and that the contract failure model is therefore seriously flawed. It distinguishes two types of nonprofit corporations - those structured to satisfy donors' needs ("donative nonprofits") and those structured to satisfy customers' needs ("mutual benefit nonprofits"). This dichotomy suggests a very different nonprofit corporation law than the one urged by Hansmann. Once the concept of contract failure is limited to donors, it can be refined to serve as part of the rationale for donative nonprofits. Refining the concept of contract failure reveals, however, that it confuses the analysis …

Awarding Attorneys' Fees To Prevailing Pro Se Litigants, Michigan Law Review

Michigan Law Review

This Note examines- the propriety of awarding attorneys' fees to prevailing pro se litigants in the federal courts. It focuses on the four major statutes under which almost all pro se cases have been filed: the Freedom of Information Act of 1974 (FOIA), the Privacy Act of 1974 (Privacy Act), the Civil Rights Attorney's Fees Awards Act of 1976 (CRAFAA), and the Truth in Lending Act (TILA). In so doing, it will attempt to devise common principles that can be applied to most requests for pro se attorneys' fees. Part I looks first to the statutes' language and legislative histories …

The Effect Of Insider Trading Rules On The Internal Efficiency Of The Large Corporation, Robert J. Haft

Michigan Law Review

Academics have hotly debated these justifications for years, and none of the three has achieved universal acclaim. This Article suggests another perspective: Prohibiting insider trading may enhance business decision-making in large corporations. With the exception of proponents of the Business Property view, analysts have focused on how an insider trading rule affects the national securities markets and traders in those markets. The internal governance of the large corporation is a different matter, one deserving separate consideration.

Double Jeopardy And Federal Prosecution After State Jury Acquittal, Michigan Law Review

Michigan Law Review

This Note argues that the rationale of the Supreme Court's post-conviction cases cannot be extended to cases involving jury acquittal and that federal reprosecution after state jury acquittal violates the double jeopardy clause. One can give meaning to the clause, Part Iexplains, only by reference to its underlying constitutional values.Part II suggests that these values, while possibly compatible with federal prosecution after a state conviction, cannot countenance reprosecution after a jury acquittal. Part III proposes that courts determine whether such reprosecution is appropriate by applying the Blockhurger same offense standard: Two offenses are the same unless each requires proof of …

Intent Or Impact: Proving Discrimination Under Title Vi Of The Civil Rights Act Of 1964, Michigan Law Review

Michigan Law Review

This Note analyzes the controversy and concludes that courts must apply an impact standard in title VI cases. After reviewing the relevant Supreme Court decisions, Part I contends that Bakke did not overrule Lau's approval of an impact standard. Part II examines the regulations on which the Lau court relied. It first characterizes them as legislative; they derive the force of law from an explicit congressional delegation of substantive power. Part II then tests the regulations' impact standard against the language, legislative history, and policy of title VI and finds it valid. Since courts may not disregard valid legislative regulations, …

Economic Liberties And The Constitution, Michigan Law Review

Michigan Law Review

A Review of Economic Liberties and the Constitution by Bernard H. Siegan

Law As Lag: Inertia As A Social Theory Of Law, Richard L. Abel

Michigan Law Review

A Review of Society and Legal Change by Alan Watson

A New Political Economy?, Susan Rose-Ackerman

Michigan Law Review

A Review of The Power to Tax: Analytical Foundations of a Fiscal Constitution by Geoffrey Brennan and James Buchanan

An Act Of Faith, Jerry J. Phillips

Michigan Law Review

A Review of Modern Products Liability Law by Rocjard A. Epstein

Samuel E. Thorne And Legal History In Law Schools, Delloyd J. Guth

Michigan Law Review

A Review of On the Laws and Customs of England: Essays in Honor of Samuel E. Thorne edited by Morris S. Arnold, Thomas A. Green, Sally A. Scully and Stephen D. White

On The Craft And Philosophy Of Judging, James L. Oakes

Michigan Law Review

A Review of The Ways of a Judge: Reflections from the Federal Appellate Bench by Frank M. Coffin

The Skokie Legacy: Reflections On An "Easy Case" And Free Speech Theory, Lee C. Bollinger

Michigan Law Review

A Review of Defending My Enemy: American Nazis, the Skokie Case, and the Risks of Freedom by Aryeh Neier

Utilitarianism Reformed, L. W. Sumner

Michigan Law Review

A Review of Utilitarianism and Co-operation by Donald H. Regan