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Are People Probabilistically Challenged?, Alex Stein
Are People Probabilistically Challenged?, Alex Stein
Michigan Law Review
Daniel Kahneman's recent book, Thinking, Fast and Slow, is a must-read for any scholar or policymaker interested in behavioral economics. Behavioral economics is a young, but already well-established, discipline that pervasively affects law and legal theory. Kahneman, a 2002 Nobel Laureate, is the discipline's founding father. His pioneering work with Amos Tversky and others challenges the core economic concept of expected utility, which serves to determine the value of people's prospects. Under mainstream economic theory, the value of a person's prospect equals the prospect's utility upon materialization (U) multiplied by the probability of the prospect materializing (P). When the prospect …
Constitutional Change, Courts, And Social Movements, Douglas Nejaime
Constitutional Change, Courts, And Social Movements, Douglas Nejaime
Michigan Law Review
In Constitutional Redemption: Political Faith in an Unjust World, Professor Jack Balkin furnishes a positive account of constitutional change, advances a normative vision of the relationship between popular mobilizations and evolving constitutional principles, and develops an interpretive theory aimed at fulfilling the Constitution's promise. Rather than take an internal perspective that asks how courts alter constitutional doctrine, Balkin decenters adjudication and instead views the role of courts in constitutional change through the lens of social movements. In doing so, he convincingly exposes the feedback loop between social movements and courts: courts respond to claims and visions crafted by movements, and …
Jack Balkin's Rich Historicism And Diet Originalism: Health Benefits And Risks For The Constitutional System, Neil S. Siegel
Jack Balkin's Rich Historicism And Diet Originalism: Health Benefits And Risks For The Constitutional System, Neil S. Siegel
Michigan Law Review
Jack Balkin's Living Originalism is a sweet read. It is beautifully written, illuminating, and provocative. It is conducive to deep reflection about foundational questions. In the book, Balkin reasons from two points of view - the perspective of the constitutional system as a whole and the perspective of the faithful participant in that system (p. 130). First, he provides a systemic account of constitutional change, which he calls "living constitutionalism." Second, he offers an approach to constitutional interpretation and construction, which he calls "framework originalism." These two components-living constitutionalism and framework originalism - together constitute his overall theory of "living …
Black Marriage, White People, Red Herrings, Melissa Murray
Black Marriage, White People, Red Herrings, Melissa Murray
Michigan Law Review
Ralph Richard Banks's Is Marriage for White People? is worlds away from Agatha Christie's novels. Decidedly a work of nonfiction, Banks's book considers the plight of middle-class African Americans who, according to statistics, are the least likely of any demographic group to get and stay married. Despite these obvious differences, Is Marriage for White People? shares some important commonalities with Agatha Christie's mysteries. Banks seeks to solve a mystery, but red herrings draw attention away from the true issue that should be the subject of Banks's concern. The mystery, of course, is the black marriage decline. In 1950, 78 percent …
Criminal Justice, Local Democracy, And Constitutional Rights, Stephen J. Schulhofer
Criminal Justice, Local Democracy, And Constitutional Rights, Stephen J. Schulhofer
Michigan Law Review
Universally admired, and viewed with great affection, even love, by all who knew him, Harvard law professor Bill Stuntz died in March 2011 at the age of fifty-two, after a long, courageous battle with debilitating back pain and then insurmountable cancer. In a career that deserved to be much longer, Stuntz produced dozens of major articles on criminal law and procedure. He was a leader in carrying forward the work of scholars who had analyzed criminal justice through the lens of economic analysis, and he added his own distinctive dimension by insisting on the importance of political incentives, with their …
Tyrone Garner's Lawrence V. Texas, Marc Spindelman
Tyrone Garner's Lawrence V. Texas, Marc Spindelman
Michigan Law Review
Dale Carpenter's Flagrant Conduct: The Story of Lawrence v. Texas has been roundly greeted with well-earned praise. After exploring the book's understanding of Lawrence v. Texas as a great civil rights victory for lesbian and gay rights, this Review offers an alternative perspective on the case. Built from facts about the background of the case that the book supplies, and organized in particular around the story that the book tells about Tyrone Garner and his life, this alternative perspective on Lawrence explores and assesses some of what the decision may mean not only for sexual orientation equality but also for …
Justice Brennan: Legacy Of A Champion, Dawn Johnsen
Justice Brennan: Legacy Of A Champion, Dawn Johnsen
Michigan Law Review
During the 1980s, when the Court's approval rating was relatively high, commentators from both ends of the ideological spectrum remarked on the importance of Justices' values and views, and bemoaned the public's utter lack of attention to the Court and judicial appointments. President Ronald Reagan's Department of Justice prefaced an extensive analysis of the momentous issues at stake for the Court and the Constitution with a call for attention to the "critical" yet "often overlooked" "values and philosophies" of federal judges. Professor Laurence Tribe similarly introduced a historical analysis of the Court's vital role by describing Justices' "powerful, if often …
Rights Lawyer Essentialism And The Next Generation Of Rights Critics, Alan K. Chen
Rights Lawyer Essentialism And The Next Generation Of Rights Critics, Alan K. Chen
Michigan Law Review
Richard Thompson Ford does not care much for the current state of civil rights. In his provocative new book, Rights Gone Wrong: How Law Corrupts the Struggle for Equality, Ford lends an original, if often misdirected, voice to the chorus of contemporary critics of the American legal regime of rights. Situating himself among "second generation" rights critics (p. 259), Ford lays out a comprehensive indictment of current approaches to civil rights litigation as well as civil rights activism. His work is both intriguing and provocative, and it raises a number of issues that are surely worth serious consideration and discussion. …
What Ails The Law Schools?, Paul Horwitz
What Ails The Law Schools?, Paul Horwitz
Michigan Law Review
In January 2012, law professors from across the country arrived in Washington, D.C., for the annual conference of the Association of American Law Schools ("AALS"). It was an opportune moment. The legal economy was struggling. Graduates were begging for jobs and struggling with unprecedented levels of debt. The smart talk from the experts was that the legal economy was undergoing a fundamental restructuring. For these and other reasons, law schools were under fire, from both inside and outside of the academy. Judges - including the keynote speaker at the AALS conference himself! - derided legal scholarship as useless. Law school …
Family History: Inside And Out, Kerry Abrams
Family History: Inside And Out, Kerry Abrams
Michigan Law Review
The twenty-first century has seen the dawn of a new era of the family, an era that has its roots in the twentieth. Many of the social and scientific phenomena of our time - same-sex couples, in vitro fertilization, single-parent families, international adoption - have inspired changes in the law. Legal change has encompassed both constitutional doctrine and statutory innovations, from landmark Supreme Court decisions articulating a right to procreate (or not), a liberty interest in the care, custody, and control of one's children, and even a right to marry, to state no-fault divorce statutes that have fundamentally changed the …
Waylaid By A Metaphor: A Deeply Problematic Account Of Prison Growth, John F. Pfaff
Waylaid By A Metaphor: A Deeply Problematic Account Of Prison Growth, John F. Pfaff
Michigan Law Review
The incarceration rate in the United States has undergone an unprecedented surge since the 1970s. Between 1925 and 1975, the U.S. incarceration rate hovered around 100 per 100,000. Since then, that rate soared to 504 in 2009, dropping only slightly to 500 in 2010. In absolute numbers, the U.S. prison population grew from 241,000 in 1975 to 1.55 million in 2010. Not just exceptional by historical standards, this boom is unparalleled globally: the United States has the highest incarceration rate in the world. Despite having just 5 percent of the world's population, it houses nearly 25 percent of the world's …
Policeman, Citizen, Or Both? A Civilian Analogue Exception To Garcetti V. Ceballos, Caroline A. Flynn
Policeman, Citizen, Or Both? A Civilian Analogue Exception To Garcetti V. Ceballos, Caroline A. Flynn
Michigan Law Review
The First Amendment prohibits the government from leveraging its employment relationship with a public employee in order to silence the employee's speech. But the Supreme Court dramatically curtailed this right in Garcetti v. Ceballos by installing a categorical bar: if the public employee spoke "pursuant to her official duties," her First Amendment retaliation claim cannot proceed. Garcetti requires the employee to show that she was speaking entirely "as a citizen" and not at all "as an employee." But this is a false dichotomy - especially because the value of the employee's speech to the public is no less if she …
The Politics Of Privacy In The Criminal Justice System: Information Disclosure, The Fourth Amendment, And Statutory Law Enforcement Exemptions, Erin Murphy
Michigan Law Review
When criminal justice scholars think of privacy, they think of the Fourth Amendment. But lately its domain has become far less absolute. The United States Code currently contains over twenty separate statutes that restrict both the acquisition and release of covered information. Largely enacted in the latter part of the twentieth century, these statutes address matters vital to modern existence. They control police access to driver's licenses, educational records, health histories, telephone calls, email messages, and even video rentals. They conform to no common template, but rather enlist a variety of procedural tools to serve as safeguards - ranging from …
Commercial Speech In Crisis: Crisis Pregnancy Center Regulations And Definitions Of Commercial Speech, Kathryn E. Gilbert
Commercial Speech In Crisis: Crisis Pregnancy Center Regulations And Definitions Of Commercial Speech, Kathryn E. Gilbert
Michigan Law Review
Recent attempts to regulate Crisis Pregnancy Centers, pseudoclinics that surreptitiously aim to dissuade pregnant women from choosing abortion, have confronted the thorny problem of how to define commercial speech. The Supreme Court has offered three potential answers to this definitional quandary. This Note uses the Crisis Pregnancy Center cases to demonstrate that courts should use one of these solutions, the factor-based approach of Bolger v. Youngs Drugs Products Corp., to define commercial speech in the Crisis Pregnancy Center cases and elsewhere. In principle and in application, the Bolger factor-based approach succeeds in structuring commercial speech analysis at the margins of …
Employment Law And Social Equality, Samuel R. Bagenstos
Employment Law And Social Equality, Samuel R. Bagenstos
Michigan Law Review
What is the normative justification for individual employment law? For a number of legal scholars, the answer is economic efficiency. Other scholars argue, to the contrary, that employment law protects against (vaguely defined) imbalances of bargaining power and exploitation. Against both of these positions, this Article argues that individual employment law is best understood as advancing a particular conception of equality. That conception, which many legal and political theorists have called social equality, focuses on eliminating hierarchies of social status. This Article argues that individual employment law, like employment discrimination law, is justified as preventing employers from contributing to or …
The Mosaic Theory Of The Fourth Amendment, Orin S. Kerr
The Mosaic Theory Of The Fourth Amendment, Orin S. Kerr
Michigan Law Review
In the Supreme Court's recent decision on GPS surveillance, United States v. Jones, five justices authored or joined concurring opinions that applied a new approach to interpreting Fourth Amendment protection. Before Jones, Fourth Amendment decisions had always evaluated each step of an investigation individually. Jones introduced what we might call a "mosaic theory" of the Fourth Amendment, by which courts evaluate a collective sequence of government activity as an aggregated whole to consider whether the sequence amounts to a search. This Article considers the implications of a mosaic theory of the Fourth Amendment. It explores the choices and puzzles that …
Outsourcing Regulation: How Insurance Reduces Moral Hazard, Omri Ben-Shahar, Kyle D. Logue
Outsourcing Regulation: How Insurance Reduces Moral Hazard, Omri Ben-Shahar, Kyle D. Logue
Michigan Law Review
This Article explores the potential value of insurance as a substitute for government regulation of safety. Successful regulation of behavior requires information in setting standards, licensing conduct, verifying outcomes, and assessing remedies. In various areas, the private insurance sector has technological advantages in collecting and administering the information relevant to setting standards and could outperform the government in creating incentives for optimal behavior. We explore several areas that are regulated more by private insurance than by government. In those areas, the role of the law diminishes to the administration of simple rules of absolute liability or no liability, and affected …
Stare Decisis And The Rule Of Law: A Layered Approach, Jeremy Waldron
Stare Decisis And The Rule Of Law: A Layered Approach, Jeremy Waldron
Michigan Law Review
Stare decisis remains a controversial feature of the legal systems that recognize it. Some jurists argue that the doctrine is at odds with the rule of law; others argue that there are good rule-of-law arguments in favor of stare decisis. This Article considers one possible good rule-of-law argument. It suggests that we should approach stare decisis in a layered way, looking at what the rule of law requires of the various judges involved in the development of a precedent. One rule-of-law principle, the principle of constancy, counsels against lightly overturning such precedents as there are. But that is not in …
A Financial Economic Theory Of Punitive Damages, Robert J. Rhee
A Financial Economic Theory Of Punitive Damages, Robert J. Rhee
Michigan Law Review
This Article provides a financial economic theory of punitive damages. The core problem, as the Supreme Court acknowledged in Exxon Shipping Co. v. Baker, is not the systemic amount of punitive damages in the tort system; rather it is the risk of outlier outcomes. Low frequency, high severity awards are unpredictable, cause financial distress, and beget social cost. By focusing only on offsetting escaped liability, the standard law and economics theory fails to account for the core problem of variance. This Article provides a risk arbitrage analysis of the relationship between variance, litigation valuation, and optimal deterrence. Starting with settlement …
The Most-Cited Law Review Articles Of All Time, Fred R. Shapiro, Michelle Pearse
The Most-Cited Law Review Articles Of All Time, Fred R. Shapiro, Michelle Pearse
Michigan Law Review
This Essay updates two well-known earlier studies (dated 1985 and 1996) by the first coauthor setting forth lists of the most-cited law review articles. New research tools from the HeinOnline and Web of Science databases now allow lists to be compiled that are more thorough and more accurate than anything previously possible. Tables printed here present the 100 most-cited legal articles of all time, the 100 most-cited articles of the last twenty years, and some additional rankings. Characteristics of the top-ranked publications, authors, and law schools are analyzed as are trends in schools of legal thought. Data from the all-time …
Assessing Divisibility In The Armed Career Criminal Act, Ted Koehler
Assessing Divisibility In The Armed Career Criminal Act, Ted Koehler
Michigan Law Review
When courts analyze whether a defendant's prior conviction qualifies as a "violent felony" under the Armed Career Criminal Act's "residual clause," they use a "categorical approach," looking only to the statutory language of the prior offense, rather than the facts disclosed by the record of conviction. But when a defendant is convicted under a "divisible" statute, which encompasses a broader range of conduct, only some of which would qualify as a predicate offense, courts may employ the "modified categorical approach." This approach allows courts to view additional documents to determine whether the jury convicted the defendant of the Armed Career …
Dubious Delegation: Article Iii Limits On Mental Health Treatment Decisions, Adam Teitelbaum
Dubious Delegation: Article Iii Limits On Mental Health Treatment Decisions, Adam Teitelbaum
Michigan Law Review
A common condition of supervised release requires a defendant, post-incarceration, to participate in a mental health treatment program. Federal district courts often order probation officers to make certain decisions ancillary to these programs. However Article III delegation doctrine places limits on such actions. This Note addresses the constitutionality of delegating the "treatment program" decision, in which a probation officer decides which type of treatment the defendant must undergo; the choice is often between inpatient treatment and other less restrictive alternatives. The resolution of this issue ultimately depends on whether this decision constitutes a "judicial act." Finding support in lower court …
Contextualing Regimes: Institutionalization As A Response To The Limits Of Interpretation And Policy Engineering, Charles F. Sabel, William H. Simon
Contextualing Regimes: Institutionalization As A Response To The Limits Of Interpretation And Policy Engineering, Charles F. Sabel, William H. Simon
Michigan Law Review
When legal language and the effects of public intervention are indeterminate, generalist lawmakers (legislatures, courts, top-level administrators) often rely on the normative output of contextualizing regimes-institutions that structure deliberative engagement by stakeholders and articulate the resulting understanding. Examples include the familiar practices of delegation and deference to administrative agencies in public law and to trade associations in private law. We argue that resorting to contextualizing regimes is becoming increasingly common across a broad range of issues and that the structure of emerging regimes is evolving away from the well-studied agency and trade association examples. The newer regimes mix public and …
Empty Promises: Miranda Warnings In Noncustodial Interrogations, Aurora Maoz
Empty Promises: Miranda Warnings In Noncustodial Interrogations, Aurora Maoz
Michigan Law Review
You have the right to remain silent; anything you say can be used against you in a court of law. You have the right to an attorney; if you cannot afford an attorney, one will be provided to you at the state's expense. In 2010, the Supreme Court declined an opportunity to resolve the question of what courts should do when officers administer Miranda warnings in a situation where a suspect is not already in custody-in other words, when officers are not constitutionally required to give or honor these warnings. While most courts have found a superfluous warning to be …
De-Frauding The System: Sham Plaintiffs And The Fraudulent Joinder Doctrine, Matthew C. Monahan
De-Frauding The System: Sham Plaintiffs And The Fraudulent Joinder Doctrine, Matthew C. Monahan
Michigan Law Review
Playing off the strict requirements of federal diversity jurisdiction, plaintiffs can structure their suits to prevent removal to federal court. A common way to preclude removability is to join a nondiverse party. Although plaintiffs have a great deal of flexibility, they may include only those parties that have a stake in the lawsuit. Put another way, a court will not permit a plaintiff to join a party to a lawsuit when that party is being joined solely to prevent removal. The most useful tool federal courts employ to prevent this form of jurisdictional manipulation is Federal Rule of Civil Procedure …
Renegotiating The Social Contract, Jennifer S. Hendricks
Renegotiating The Social Contract, Jennifer S. Hendricks
Michigan Law Review
Despite an economic recession and record levels of personal bankruptcy filings due to healthcare costs, President Obama's healthcare reform initiative sparked a season of protests. A "public option"-not to mention a single-payer system-was off the table even before the discussion began. As the question of the reform package's constitutionality wound its way to the Supreme Court, it became clear that a substantial number of American people do not want their government helping them stay alive. In this climate, it is difficult to imagine an America in which the state is an accepted partner in meeting the challenges and responsibilities of …
Agency And Equity: Why Do We Blame Clients For Their Lawyers' Mistakes, Adam Liptak
Agency And Equity: Why Do We Blame Clients For Their Lawyers' Mistakes, Adam Liptak
Michigan Law Review
If you were to ask a child whether it would be fair to execute a prisoner because his lawyer had made a mistake, the answer would be no. You might even get a look suggesting that you had asked a pretty stupid question. But judges treat the issue as a hard one, relying on a theory as casually accepted in criminal justice as it is offensive to principles of moral philosophy. This theory holds that the lawyer is the client's agent. What the agent does binds the principal. But clients and lawyers fit the agency model imperfectly. Agency law is …
A Tale Of Two Sciences, Erin Murphy
A Tale Of Two Sciences, Erin Murphy
Michigan Law Review
It was the best of times, it was the worst of times . .. . So might one describe the contrasting portraits of DNA's ascension in the criminal justice system that are drawn in David Kaye's The Double Helix and the Law of Evidence and Sheldon Krimsky and Tania Simoncelli's Genetic Justice: DNA Data Banks, Criminal Investigations, and Civil Liberties. For Kaye, the double helix stands as the icon of twenty-first-century achievement, a science menaced primarily by the dolts (lawyers, judges, and the occasional analyst) who misuse it. For Krimsky and Simoncelli, DNA is a seductive forensic tool that is …
Restoring Restitution To The Canon, Douglas Laycock
Restoring Restitution To The Canon, Douglas Laycock
Michigan Law Review
The Restatement (Third) of Restitution and Unjust Enrichment brings clarity and light to an area of law long shrouded in fogs that linger from an earlier era of the legal system. It makes an important body of law once again accessible to lawyers and judges. This new Restatement should be on every litigator's bookshelf, and a broad set of transactional lawyers and legal academics would also do well to become familiar with it. Credit for this Restatement goes to its Reporter, Professor Andrew Kull. Of course his work benefited from the elaborate processes of the American Law Institute, with every …
The Great American Tax Novel, Lawrence Zelenak
The Great American Tax Novel, Lawrence Zelenak
Michigan Law Review
David Foster Wallace-author of the celebrated novel Infinite Jest and among the most acclaimed American fiction writers of his generation-killed himself in 2008 at the age of forty-six. He left in his office hundreds of pages of The Pale King, an unfinished novel set in the fictional Peoria, Illinois regional examination center ("REC") of the Internal Revenue Service ("IRS" or "the Service") in 1985. Although many chapters of the novel were seemingly complete, Wallace left no indication (other than what could be gleaned from the chapters themselves) of the order of the chapters (pp. vi-vii). Michael Pietsch, who had served …