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Articles 1831 - 1860 of 4291
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Aliens And Equal Protection: Why Not The Right To Vote?, Gerald M. Rosberg
Aliens And Equal Protection: Why Not The Right To Vote?, Gerald M. Rosberg
Michigan Law Review
A constitutional right of at least some aliens to vote does not seem to me at all unthinkable. Throughout much of the nineteenth century and part of the twentieth, aliens enjoyed the right to vote in a great many states. The states that extended the franchise to aliens plainly did not believe that they were acting under constitutional compulsion. But given our present understanding of the mission of the equal protection clause, much can now be said in defense of such a constitutional right. My purpose here is to outline the case that might be made for the right of …
Away From Waiver: A Rationale For The Forfeiture Of Constitutional Rights In Criminal Procedure, Peter Westen
Away From Waiver: A Rationale For The Forfeiture Of Constitutional Rights In Criminal Procedure, Peter Westen
Michigan Law Review
Ten years ago, when I was a student in law school, I learned that it was difficult for a criminal defendant to lose completely his right to assert constitutional defenses. The only way he could relinquish his constitutional defenses, I was told, was by actually "waiving" them. Moreover, in order to establish that a defendant had waived his defenses, the state faced a rigorous test: it had to show, in the famous phrase, that his waiver was "knowing, intelligent, and voluntary." In other words, before the state could permanently prevent a defendant from asserting constitutional defenses, it had to show …
Carter's Projected "Zero-Based" Review Of The Internal Revenue Code: Is Our Tax Code To Be "Born Again"?, L. Hart Wright
Carter's Projected "Zero-Based" Review Of The Internal Revenue Code: Is Our Tax Code To Be "Born Again"?, L. Hart Wright
Michigan Law Review
The evolution of today's Internal Revenue Code, which began with the mere embryo that Congress created in 1913, has absorbed over the ensuing sixty-four years more creative energy on the part of more co-authors than any other law in history. Despite this unstinted expenditure of "blood, sweat, and tears," the resulting document--were it possessed of human senses--would recognize that, for a foreseeable period, its life will be anything but serene. The plight in which it would find itself could even be compared to that early morning scene observed one hundred years ago by General Custer, when hostile forces were massed …
Modeling Relevance, Richard O. Lempert
Modeling Relevance, Richard O. Lempert
Michigan Law Review
During the past decade, particularly during the years immediately following the California Supreme Court's decision in People v. Collins, a number of articles have appeared suggesting ways in which jurors might use certain mathematical techniques of decision theory as aids in the rational evaluation of circumstantial evidence. Professor Tribe, in an important response to the post-Collins articles, argues against introducing these techniques into the factfinding process. Problems that Tribe foresees include the necessary imprecision of the probabilistic estimates that these techniques require, the dwarfing of soft variables by those that are more readily quantified, and the potential dehumanization …
The Interlocking Death And Rebirth Of Contract And Tort, Jeffrey O'Connell
The Interlocking Death And Rebirth Of Contract And Tort, Jeffrey O'Connell
Michigan Law Review
The first portion of this article will examine the growing inclination of courts to apply tort principles to cases based on contracts; at the same time, the defects of tort will be discussed insofar as they militate against the wisdom of so extending tort principles. In the last half of the article, an alternative contractual method for allocating losses in one particular area will briefly be presented; this method does not contain the defects in loss allocation that have impelled courts to reject traditional contractual principles, but it also avoids many inefficiencies of traditional tort remedies.
Antitrust Law: An Economic Perspective, Thomas E. Kauper
Antitrust Law: An Economic Perspective, Thomas E. Kauper
Michigan Law Review
A Review of Antitrust Law: An Economic Perspective by Richard A. Posner
Intra-Enterprise Conspiracy Under Section 1 Of The Sherman Act: A Suggested Standard, Michigan Law Review
Intra-Enterprise Conspiracy Under Section 1 Of The Sherman Act: A Suggested Standard, Michigan Law Review
Michigan Law Review
Section I of this Note analyzes the cases in which the Supreme Court has implied a doctrine of intra-enterprise conspiracy. Section II then sets forth the theoretical and practical difficulties that such a doctrine entails. Section III, in turn, considers previous proposals for limiting the scope of the intra-enterprise conspiracy doctrine and examines their deficiencies. Finally, section IV presents an alternative analysis of the intra-enterprise conspiracy issue and proposes a standard for determining when application of section 1 of the Sherman Act to parent-subsidiary relations is inappropriate.
The Ftc's Injunctive Authority Against False Advertising Of Food And Drugs, Michigan Law Review
The Ftc's Injunctive Authority Against False Advertising Of Food And Drugs, Michigan Law Review
Michigan Law Review
Two judicial decisions in the early 1950s construing the FTC's section 13 (a) power produced a conflict that has not been resolved either by later courts or by the amendments to section 13 enacted in 1973. The dispute basically concerns the depth of the courts' inquiry into whether an advertisement violates- section 12 and the applicability of traditional equitable concepts in the context of the statutory injunction procedure. This Note contends that the legislative history of pertinent provisions of the Act suggests an appropriate resolution of the conflict through a two-step approach that would relax the scrutiny ordinarily accorded petitions …
Legal Theory And The Obligation Of A Judge: The Hart/Dworkin Dispute, E. Philip Soper
Legal Theory And The Obligation Of A Judge: The Hart/Dworkin Dispute, E. Philip Soper
Michigan Law Review
This article offers a review of the Hart-Dworkin dispute and a qualified defense of the positivist's model against Dworkin's attack. The defense is cast primarily in the form of the second possible response to a descriptive theory: Dworkin's attack fails, I suggest, because it involves descriptive claims that can be accommodated to the positivist's conceptual theory regardless of one's view about the plausibility of those claims.
Public Participation In The Adoption Of Interpretive Rules And Policy Statements, Michael Asimow
Public Participation In The Adoption Of Interpretive Rules And Policy Statements, Michael Asimow
Michigan Law Review
Section I of this article surveys the practices of a selected group of federal agencies in the adoption of interpretive rules and policy statements. It emphasizes the importance of these rules both to members of the public and to the administrative process. Section II analyzes the cases that have considered the AP A exemption of interpretive rules and policy statements from preadoption notice and comment procedures. These cases are in disarray for several reasons. For one thing, the bright lines traditionally assumed to distinguish interpretive rules and policy statements from legislative rules have become blurred and indistinct. Moreover, the courts …
Congressional Power Under The Appointments Clause After Buckley V. Valeo, Michigan Law Review
Congressional Power Under The Appointments Clause After Buckley V. Valeo, Michigan Law Review
Michigan Law Review
This Note examines the constitutional power of Congress to control the selection of government officers. It first discusses the article II grant itself and concludes that the Court in Buckley correctly interpreted that provision to prohibit direct appointment by Congress of officers who are found to possess "significant authority." The Note then explores possible means not explicitly foreclosed in Buckley by which Congress might influence such appointments and argues that these alternatives are restricted by the same constitutional principles that prohibit direct congressional appointments.
Periodical Index, Michigan Law Review
Periodical Index, Michigan Law Review
Michigan Law Review
Subject Index of Articles, Comments, Notes, and Recent Developments Appearing in Leading Law Reviews
Adjudication Of Federal Causes Of Action In State Court, Martin H. Redish, John E. Muench
Adjudication Of Federal Causes Of Action In State Court, Martin H. Redish, John E. Muench
Michigan Law Review
The first section of this article considers the power of state courts to hear federal cases. Since it is now well established that state courts have the constitutional power to adjudicate federal causes of action if Congress so desires, the significant questions concern the method by which the judiciary is to decipher congressional intent. Although the courts have no difficulty where Congress has explicitly addressed the issue of state court jurisdiction, problems do arise in situations where Congress has remained silent on the question. The first section critically examines the traditional criteria employed by the courts for determining congressional intent …
Vertical Distributional Restraints Under Schwinn And Sylvania: An Argument For The Continuing Use Of A Partial Per Se Approach, Martin B. Louis
Vertical Distributional Restraints Under Schwinn And Sylvania: An Argument For The Continuing Use Of A Partial Per Se Approach, Martin B. Louis
Michigan Law Review
This phenomenon has been manifested in the vertical distribution cases, which seem to cry out for a departure from the rule of reason approach for several reasons. First, as section I of this article will show, vertical cases frequently involve a package of restraints--a characteristic that compounds all of the difficulties of evaluation mentioned above. Second, vertical restraints reduce intrabrand competition in order, supposedly, to promote interbrand competition. Thus, even if we could identify and measure both the procompetitive and anticompetitive effects of a particular restraint, we cannot assume a one-to-one equivalency, and we lack a workable process by which …
Jus Non Scriptum And The Reliance Principle, Stanley L. Paulson
Jus Non Scriptum And The Reliance Principle, Stanley L. Paulson
Michigan Law Review
On the Continent, a general theory of customary law has been developed-what I term the Continental theory; it identifies formation and validity as the central issues in the analysis of custom and customary law. Yet the Continental theory, notwithstanding its longevity and continuing favorable reception among international lawyers, is ridden with problems. In particular, as I argue in the following section, the theory fails for want of a coherent position on the formation issue. In the course of my argument, I suggest a classification of the norms of customary law in terms of a generic category broader in scope than …
Injury To Reputation And The Constitution: Confusion Amid Conflicting Approaches, George C. Christie
Injury To Reputation And The Constitution: Confusion Amid Conflicting Approaches, George C. Christie
Michigan Law Review
It is the thesis of this article that the long-run implications of Firestone and Paul v. Davis will force a radical reformulation of the circumstances under which an individual may obtain legal redress for injury to his reputation brought about by falsehoods. The Court will eventually be obliged to abandon its fragmented treatment of the subject: At present, some injured persons have no chance of recovery; others are faced with requirements of proof that make recovery very difficult; still others can recover under significantly more relaxed standards of proof. The nature of the Court's likely reformulation will be developed later …
Consent In Criminal Law: Violence In Sports, Michigan Law Review
Consent In Criminal Law: Violence In Sports, Michigan Law Review
Michigan Law Review
Because there have been few criminal prosecutions for violence in sports, there are several difficult issues that have received only cursory analysis. This Note will focus on one such issue-the existence and effect of the consent of the injured party. In section I, it will analyze the various general theories relating to the nature of actual consent and will suggest that the current theoretical framework's emphasis on ascertaining the victim's subjective state of mind is, in some contexts, ill-conceived and unhelpful. It will argue that societal interests involved in human interactions should become a major focus of any analysis, particularly …
Measuring The Duration Of Judicial And Administrative Proceedings: A Comment, David P. Doane
Measuring The Duration Of Judicial And Administrative Proceedings: A Comment, David P. Doane
Michigan Law Review
Professors Clark and Merryman propose a useful indirect measure of the duration of litigation whose primary virtue is its ease of computation from published court data. As the authors note, such a measure of duration may be useful to persons involved in judicial administration and to attorneys formulating strategy in litigation, and the legal community should find informative their illustration of the concept with Italian court data. Concluding on a pragmatic note, Professors Clark and Merryman appear to suggest that attorneys, clients, judges, court administrators, and social scientists must ultimately assess the utility of their concept. In making this assessment, …
Program Environmental Impact Statements: Review And Remedies, Michigan Law Review
Program Environmental Impact Statements: Review And Remedies, Michigan Law Review
Michigan Law Review
This Note discusses the application of NEPA to federal programs. It first analyzes when the courts have required a program impact statement and draws upon that analysis to explain the relative functions of site-specific and program statements. It then examines the appropriate scope of judicial inquiry and the proper standards for reviewing federal program compliance with NEPA. Finally, the Note scrutinizes the types of remedies that may be imposed if a program does not comply with NEPA and proposes a procedure for determining the proper scope of judicial remedies.
Hostile-Audience Confrontations: Police Conduct And First Amendment Rights, Michigan Law Review
Hostile-Audience Confrontations: Police Conduct And First Amendment Rights, Michigan Law Review
Michigan Law Review
This Note first suggests an explicit standard for police conduct in the hostile-audience situation that defines procedures the police must follow at various stages to avoid violating the first amendment. The standard reflects the fact that first amendment free speech rights are not absolute and that such rights must be weighed against both compelling state interests and the competing constitutional claims of other persons. It seeks to reconcile the interest in public order with our constitutional commitment to open discussion and robust debate. Finally, to deter police abuse of first amendment rights in the hostile-audience context, reforms of tort law …
Index, Michigan Law Review
Index, Michigan Law Review
Michigan Law Review
Contents of Volume 74: Subject Index, Table of Cases, Articles, Authors, Book Reviews
Admiralty Procedure And Jurisdiction After The 1966 Unification, David W. Robertson
Admiralty Procedure And Jurisdiction After The 1966 Unification, David W. Robertson
Michigan Law Review
From the nation's beginning, the federal district courts have been vested with jurisdiction in cases "of admiralty or maritime jurisdiction." Like its predecessor statute, section 1333 of the present Judicial Code asserts that the jurisdiction is "exclusive of the courts of the states," but the infamous "saving clause" goes on to negate that exclusivity in the bulk of maritime cases by giving the plaintiff the option of maintaining his action in any other court having jurisdiction over it. In "saving clause" cases--that is, cases that could have been brought in federal court under the admiralty jurisdiction, but which were maintained, …
Punitive Damages In Products Liability Litigation, David G. Owen
Punitive Damages In Products Liability Litigation, David G. Owen
Michigan Law Review
This article will first explore the doctrine of punitive damages and its compatibility with the theories of products liability. The functions of punitive damages and their applicability in the products liability context will then be examined, with particular consideration given to the three complicating factors raised by Judge Friendly in Roginsky. In the following section attention will focus on the various contexts in which manufacturer misconduct has arisen in the reported decisions and a number of unreported cases that have involved this issue. Finally, guidelines will be developed from these cases for determining the appropriateness of punitive damages awards …
Dworkin's "Rights Thesis", Michigan Law Review
Dworkin's "Rights Thesis", Michigan Law Review
Michigan Law Review
This Note argues that the rights thesis is untenable. It shows that Dworkin's distinction between arguments of principle and arguments of policy, upon which the rights thesis is based, cannot withstand close scrutiny. The Note questions whether it is sensible to speak of an objectively soundest theory of law, and argues that, even if such a theory is feasible, Dworkin has failed to prove that it will always dictate a unique result (or, put in different words, that the rights thesis is part of the putative soundest theory). If Dworkin's idea of a soundest theory is oppugned, or if the …
Foreign Bribes And The Securities Acts' Disclosure Requirements, Michigan Law Review
Foreign Bribes And The Securities Acts' Disclosure Requirements, Michigan Law Review
Michigan Law Review
The Securities Act of 1933 and the Securities Exchange Act of 1934 require most major corporations to disclose to investors all material information concerning company operations. Although they were not intended to regulate the conduct of business, these disclosure obligations can have a deterrent effect upon improper corporate activities. The recent revelation that a significant number of corporations have been making bribes and similar payments abroad has created interest in the feasibility of employing the disclosure requirements to curtail this practice. This Note will show that, despite recent pressures for change, the Securities and Exchange Commission has continued to view …
The Legacy Of The Stubborn And Rebellious Son, Irene Merker Rosenberg, Yale L. Rosenberg
The Legacy Of The Stubborn And Rebellious Son, Irene Merker Rosenberg, Yale L. Rosenberg
Michigan Law Review
In twentieth century America, as in Biblical ,times, parents unable to subdue their disobedient children are authorized to invoke the coercive power of the state. As recently as 1971, for example, the Supreme Judicial Court of Massachusetts rejected constitutional challenges to the state's "stubborn child" law, which at the time of its original enactment in 1646 was patterned after the above-quoted verse from Deuteronomy. The court upheld an adjudication that an adolescent girl who refused to submit to a medical examination, used vulgar language, slammed doors, and stayed outside the home "probably talking with the boys," was a "stubborn child" …
Professor Bishop's Contributions To International Law, Brunson Macchesney
Professor Bishop's Contributions To International Law, Brunson Macchesney
Michigan Law Review
A Tribute to William W. Bishop, Jr.
Periodical Index, Michigan Law Review
Periodical Index, Michigan Law Review
Michigan Law Review
Subject Index of Articles, Comments, Notes, and Recent Developments Appearing in Leading Law Reviews
The Role Of The Local Comprehensive Plan In Land Use Regulation, Daniel R. Mandelker
The Role Of The Local Comprehensive Plan In Land Use Regulation, Daniel R. Mandelker
Michigan Law Review
This article will deal with the enlarged role of the comprehensive plan in the local land use control process. Part I examines traditional judicial views of the role of the comprehensive plan as a guide to zoning administration. Part II suggests that innovations in land use control and comprehensive planning techniques evidence a need for mandatory planning. Subsequent sections examine changes in the judicial attitude toward the role of the comprehensive plan in land use control administration, and survey some enacted and proposed state legislation that modifies the early planning acts by requiring comprehensive planning. This legislation is analyzed to …
A Framework For The Allocation Of Prevention Resources With A Specific Application To Insider Trading, Michigan Law Review
A Framework For The Allocation Of Prevention Resources With A Specific Application To Insider Trading, Michigan Law Review
Michigan Law Review
This Note enumerates and analyzes the three principal forces that induce individuals to abide by societal laws. These forces, or elements of effective prevention, are then combined to form a framework of general deterrence that both identifies the areas in which society can introduce resources into the prevention plan and explains in a general manner what the effect of particular expenditures will be. In the final section of the Note, the framework is applied to a specific prohibited activity-insider trading in securities-to exemplify its utility in determining more effective applications of prevention resources.