Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Law (4188)
- Constitutional Law (758)
- Supreme Court of the United States (499)
- Courts (456)
- State and Local Government Law (366)
-
- Legislation (360)
- Criminal Law (350)
- Legal History (332)
- Contracts (307)
- Torts (301)
- Evidence (285)
- Law Enforcement and Corrections (267)
- Property Law and Real Estate (248)
- Estates and Trusts (245)
- Criminal Procedure (244)
- Law and Society (241)
- Civil Rights and Discrimination (233)
- Jurisdiction (228)
- Labor and Employment Law (227)
- Legal Writing and Research (214)
- Business Organizations Law (191)
- Administrative Law (188)
- Banking and Finance Law (170)
- Law and Economics (169)
- Litigation (167)
- Commercial Law (159)
- Securities Law (159)
- Tax Law (159)
- Jurisprudence (158)
- Antitrust and Trade Regulation (157)
- Keyword
-
- United States Supreme Court (254)
- History (132)
- Judicial review (102)
- Book reviews (99)
- Constitution (99)
-
- Law reform (87)
- Race and law (87)
- State courts (87)
- Liability (82)
- Due process (79)
- Negligence (76)
- Corporations (71)
- Federal courts (71)
- Michigan (70)
- Regulation (69)
- Police (68)
- Fifth Amendment (67)
- Lawyers (62)
- Morality (55)
- Trials (54)
- Fraud (53)
- Racism (51)
- Statutory interpretation (50)
- Competition (47)
- Sherman Act (47)
- Federalism (45)
- Justice (45)
- New York (45)
- Clayton Act (44)
- Congress (44)
- Publication Year
Articles 451 - 480 of 4292
Full-Text Articles in Entire DC Network
Conditions On Taking The Initiative: The First Amendment Implications Of Subject Matter Restrictions On Ballot Initiatives, Anna Skiba-Crafts
Conditions On Taking The Initiative: The First Amendment Implications Of Subject Matter Restrictions On Ballot Initiatives, Anna Skiba-Crafts
Michigan Law Review
Nearly half of U.S. states offer a ballot initiative process that citizens may use to pass legislation or constitutional amendments by a popular vote. Some states, however, impose substantive restrictions on the types of initiatives citizens may submit to the ballot for a vote-precluding, for example, initiatives lowering drug penalties or initiatives related to religion. Circuit courts are split on whether and how such restrictions implicate the First Amendment. This Note argues that-rather than limiting "expressive conduct" protected only minimally by the First Amendment, or limiting pure conduct that does not garner any First Amendment protectionsubject matter restrictions on ballot …
Will Quants Rule The (Legal) World?, Edward K. Cheng
Will Quants Rule The (Legal) World?, Edward K. Cheng
Michigan Law Review
The quants are coming! And they are here to stay-so argues Professor Ian Ayres' in his new book, Super Crunchers, which details the brave new world of statistical prediction and how it has already begun to affect our lives. For years, academic researchers have known about the considerable and at times surprising advantages of statistical models over the considered judgments of experienced clinicians and experts. Today, these models are emerging all over the landscape. Whether the field is wine, baseball, medicine, or consumer relations, they are vying against traditional experts for control over how we make decisions. To be …
Establishing Inequality, Gene R. Nichol
Establishing Inequality, Gene R. Nichol
Michigan Law Review
Part I outlines Nussbaum's thesis and her similarly interesting, if perhaps not always completely consistent, applications of it. Part II touches on some challenges and potential shortcomings her theory presents-for clearly there are such. But, in Part III, I argue that her wide-ranging study of the work of the religion clauses nonetheless touches something residing at the core of American citizenship. No bosses. No masters. No insiders. None outcast. Finally, and far more idiosyncratically, in Part IV I explore and expand on Nussbaum's thesis in light of a modestly serious and rather public dispute over religious equality that occurred at …
Why Write?, Erwin Chemerinsky
Why Write?, Erwin Chemerinsky
Michigan Law Review
This wonderful collection of reviews of leading recent books about law provides the occasion to ask a basic question: why should law professors write? There are many things that law professors could do with the time they spend writing books and law review articles. More time and attention could be paid to students and to instructional materials. More professors could do pro bono legal work of all sorts. In fact, if law professors wrote much less, teaching loads could increase, faculties could decrease in size, and tuition could decrease substantially. The answer to the question "why write" is neither intuitive …
The Life Of The Mind And A Life Of Meaning: Reflections On Fahrenheit 451, Rodney A. Smolla
The Life Of The Mind And A Life Of Meaning: Reflections On Fahrenheit 451, Rodney A. Smolla
Michigan Law Review
Fahrenheit 451 still speaks to us, vibrantly and passionately, still haunts and vexes and disturbs. The novel has sold millions of copies, was reset for a fiftieth anniversary printing, and continues to be assigned reading in middle school, high school, and college courses. That power to endure is well worth contemplation, both for what it says about Ray Bradbury's literary imagination, and, more powerfully, for what it teaches us about our recent past, our present, and our own imagined future. First Amendment jurisprudence has taken giant leaps since Fahrenheit 451 was written, and American society has managed to avoid the …
The End Of Citizenship?, Jonathan Weinberg
The End Of Citizenship?, Jonathan Weinberg
Michigan Law Review
Part I of this Review challenges his view that the value of American citizenship is in decline. Part II critiques his discussion of the lines drawn by citizenship law-who is or can become a citizen-and what those lines mean for the nature of citizenship in the modem age. This Part urges that the lack of fit between our citizenship rules and the goal of organic community is hardly new; it was a feature of our citizenship law long before current globalization trends. Part III discusses the meaning of citizenship, and the basis for citizenship and immigration exclusions, in the context …
Do We Need A New Fourth Amendment?, Orin S. Kerr
Do We Need A New Fourth Amendment?, Orin S. Kerr
Michigan Law Review
Slobogin's book offers a new conceptualization of the Fourth Amendment rooted in what he calls the proportionality principle: An investigative technique should be permitted under the Constitution only if the strength of the government's justification for the technique is roughly proportionate to the level of intrusion it causes . Slobogin roots this principle in Terry v. Ohio and its pragmatic balancing of law-enforcement and privacy interests. To determine how much justification the Fourth Amendment requires, Slobogin argues, courts should assess the intrusiveness of the investigatory technique and then set a proportionate threshold of proof that the government must show. The …
Has Corporate Law Failed? Addressing Proposals For Reform, Antony Page
Has Corporate Law Failed? Addressing Proposals For Reform, Antony Page
Michigan Law Review
Part I of this Review discusses the modem "nexus of contracts" approach to corporations and highlights how Greenfield's views differ. Part II examines corporate goals and purposes, suggesting that Greenfield overstates the impact of the shareholder-primacy norm and does not offer a preferable alternative. Part III critiques the means to the ends--Greenfield's proposals for changing the mechanics of corporate governance. Although several of his proposals are intriguing, they seem unlikely to achieve their pro-social aims. This Review remains skeptical, in part because-even given its problems-the U.S. "director-centric governance structure has created the most successful economy the world has ever seen." …
Rationing The Infinite, Leonard M. Niehoff
Rationing The Infinite, Leonard M. Niehoff
Michigan Law Review
This Review raises a number of objections to Baker's arguments and proposals. Furthermore, this Review raises the fundamental question of whether Baker's central operating assumption-that media is a scarce resource that should be fairly distributed-remains timely in light of the far-reaching and fast-paced changes wrought by the internet. Nevertheless, this Review also recognizes that, as with Baker's prior works, Media Concentration and Democracy makes a serious contribution to the discussion of the political, social, and economic dynamics that challenge the existence of a strong and independent media. Media Concentration and Democracy does a better job of raising questions than of …
Supreme Neglect Of Text And History, William Michael Treanor
Supreme Neglect Of Text And History, William Michael Treanor
Michigan Law Review
Since his classic book Takings appeared in 1985, Richard Epstein's ideas have profoundly shaped debate about the Fifth Amendment's Takings Clause to a degree that no other scholar can even begin to approach. His broad, original, and stunningly ambitious reading of the clause has powerfully influenced thinking in academia, in the judiciary, and in the political arena. The firestorm of controvery that followed the Supreme Court's recent decision in Kelo - in which the Supreme Court upheld the constitutionality of a municipal urban renewal plan that displaced long-time homeowners and conveyed their land to developers - is in critical part …
Property And Relative Status, Nestor M. Davidson
Property And Relative Status, Nestor M. Davidson
Michigan Law Review
Property does many things-it incentivizes productive activity, facilitates exchange, forms an integral part of individual identity, and shapes communities. But property does something equally fundamental: it communicates. And perhaps the most ubiquitous and important messages that property communicates have to do with relative status, with the material world defining and reinforcing a variety of economic, social, and cultural hierarchies. This status-signalingf unction of property-withp roperty serving as an important locus for symbolic meaning through which people compare themselves to others-complicates premises underlying central discourses in contemporary property theory. In particular, status signaling can skew property's incentive and allocative benefits, leading …
The Supreme Court's Controversial Gvrs - And An Alternative, Aaron-Andrew P. Bruhl
The Supreme Court's Controversial Gvrs - And An Alternative, Aaron-Andrew P. Bruhl
Michigan Law Review
This Article addresses a relatively neglected portion of the Supreme Court's docket: the "GVR"-that is, the Court's procedure for summarily granting certiorari, vacating the decision below without finding error, and remanding the case for further consideration by the lower court. The purpose of the GVR device is to give the lower court the initial opportunity to consider the possible impact of a new development (such as a recently issued Supreme Court decision) and, if necessary, to revise its ruling in light of the changed circumstances. The Court may issue scores or even hundreds of these orders every year. This Article …
"Airbrushed Out Of The Constitutional Canon": The Evolving Understanding Of Giles V. Harris, 1903-1925, Samuel Brenner
"Airbrushed Out Of The Constitutional Canon": The Evolving Understanding Of Giles V. Harris, 1903-1925, Samuel Brenner
Michigan Law Review
Richard H. Pildes argued in an influential 2000 article that the U.S. Supreme Court's opinion in Giles v. Harris, which was written by Justice Oliver Wendell Holmes, was the "one decisive turning point" in the history of "American (anti)-democracy." In Giles, Holmes rejected on questionable grounds Jackson W. Giles's challenge to the new Alabama Constitution of 1901-a document which was designed to disfranchise and had the effect of disfranchising African Americans. The decision thus contributed significantly to the development of the all-white electorate in the South, and the concomitant marginalization of southern African Americans. According to Pildes, however, the …
Irrelevant Oversight: "Presidential Administration" From The Standpoint Of Arbitrary And Capricious Review, Daniel P. Rathbun
Irrelevant Oversight: "Presidential Administration" From The Standpoint Of Arbitrary And Capricious Review, Daniel P. Rathbun
Michigan Law Review
The president is now regularly and heavily involved in the decisionmaking processes of administrative agencies. What began in the mid-twentieth century as macro-level oversight has evolved, since the Reagan Administration, into controlling case-level influence. Scholars have hotly debated the legality of this shift and have compellingly demonstrated the need to ensure that agencies remain accountable and that their decisions remain nonarbitrary in the face of presidential involvement. However, as this Note demonstrates, the existing scholarship has not provided an adequate solution to these twin problems. This Note provides a novel and effective solution to the accountability and arbitrariness problems of …
The Family Law Doctrine Of Equivalence, Amy L. Wax
The Family Law Doctrine Of Equivalence, Amy L. Wax
Michigan Law Review
Students of patent law learn the doctrine of equivalents. According to the doctrine, a patent protects an invention that does "the same work in substantially the same way, and accomplish[ es] substantially the same result," as the device described in the patent, even if it differs "'in name, form, or shape." In her new book, Nancy Polikoff has fashioned something like a parallel doctrine for families. Let's call it (with a slight play on words) the family law Doctrine of Equivalence. In today's world, according to Polikoff, a broad set of relationships now plays the same role as marriage and …
Against Practice, Anthony V. Alfieri
Against Practice, Anthony V. Alfieri
Michigan Law Review
This Review examines the theory/practice dichotomy in legal education through the prism of the Carnegie Foundation's Educating Lawyers: Preparation for the Profession of Law. Descriptively, it argues that the Foundation's investigation of law school curricular deficiencies in the areas of clinical-lawyer skills, professionalism, and public service overlooks the relevance of critical pedagogies in teaching students how to deal with difference-based identity and how to build cross-cultural community in diverse, multicultural practice settings differentiated by mutable and immutable characteristics such as class, gender, and race. Prescriptively, it argues that the Foundation's remedial call for the curricular integration of clinical lawyer …
Can Courts Repair The Crumbling Foundation Of Good Citizenship? An Examination Of Potential Legal Challenges To Social Studies Cutbacks In Public Schools, Eli Savit
Michigan Law Review
In the wake of No Child Left Behind, many public schools have cut or eliminated social studies instruction to allot more time for math and literacy. Given courts' repeated celebration of education as the "foundation of good citizenship," this Note examines potential legal claims and litigation strategies that could be used to compel social studies instruction in public schools. This Note contends that the federal judiciary's civic conception of education leaves the door slightly ajar for a Fourteenth Amendment chrallenge on behalf of social studies-deprived students, but the Supreme Court's refusal in San Antonio v. Rodriguez to recognize education as …
The Many Faces Of Fault In Contract Law: Or How To Do Economics Right, Without Really Trying, Richard A. Epstein
The Many Faces Of Fault In Contract Law: Or How To Do Economics Right, Without Really Trying, Richard A. Epstein
Michigan Law Review
Modern law often rests on the assumption that a uniform cost-benefit formula is the proper way to determine fault in ordinary contract disputes. This Article disputes that vision by defending the view that different standards of fault are appropriate in different contexts. The central distinction is one that holds parties in gratuitous transactions only to the standard of care that they bring to their own affairs, while insisting on the higher objective standard of ordinary care in commercial transactions. That bifurcation leads to efficient searches. Persons who hold themselves out in particular lines of business in effect warrant their ability …
When Is A Willful Breach "Willful"? The Link Between Definitions And Damages, Richard Craswell
When Is A Willful Breach "Willful"? The Link Between Definitions And Damages, Richard Craswell
Michigan Law Review
The existing literature on willful breach has not been able to define what should count as "willful." I argue here that any definition we adopt has implications for just how high damages should be raised in those cases where a breach qualifies as willful. As a result, both of these issues-the definition of "willful," and the measure of damages for willful breach-need to be considered simultaneously. Specifically, if a definition of "willful" excludes all breachers who behaved efficiently, then in theory we can raise the penalty on the remaining inefficient breachers to any arbitrarily high level ("throw the book at …
The Case For The Third-Party Doctrine, Orin S. Kerr
The Case For The Third-Party Doctrine, Orin S. Kerr
Michigan Law Review
This Article offers a defense of the Fourth Amendment's third party doctrine, the controversial rule that information loses Fourth Amendment protection when it is knowingly revealed to a third party. Fourth Amendment scholars have repeatedly attacked the rule on the ground that it is unpersuasive on its face and gives the government too much power This Article responds that critics have overlooked the benefits of the rule and have overstated its weaknesses. The third-party doctrine serves two critical functions. First, the doctrine ensures the technological neutrality of the Fourth Amendment. It corrects for the substitution effect of third parties that …
The Success Of Chapter 11: A Challenge To The Critics, Elizabeth Warren, Jay Lawrence Westbrook
The Success Of Chapter 11: A Challenge To The Critics, Elizabeth Warren, Jay Lawrence Westbrook
Michigan Law Review
Although Chapter 11 has served as a model for bankruptcy reform around the world, the conventional wisdom has been that it is characterized by a relatively low success rate and endless delay. The data from large samples of Chapter 11 cases filed in 1994 and 2002 demonstrate that this characterization is wrong. Nearly all troubled companies choose Chapter 11 over Chapter 7 liquidation, which means that the system serves a critical screening function to eliminate hopeless cases relatively quickly. Almost half the unsuccessful cases were jettisoned within six months and almost eighty percent were gone within a year The cases …
Evaluating Punishment In Purgatory: The Need To Separate Pretrial Detainees' Conditions-Of-Confinement Claims From Inadequate Eighth Amendment Analysis, David C. Gorlin
Evaluating Punishment In Purgatory: The Need To Separate Pretrial Detainees' Conditions-Of-Confinement Claims From Inadequate Eighth Amendment Analysis, David C. Gorlin
Michigan Law Review
The Due Process Clause prohibits all "punishment" of pretrial detainees- individuals that are held by the Government, but not adjudged guilty of any crime. The Eighth Amendment only prohibits the infliction of "cruel and unusual punishments" upon convicted individuals. Despite the Supreme Court's insistence that the Due Process Clause, and not the Eighth Amendment, protects pretrial detainees from deplorable and harmful conditions of confinement, most federal circuits now assess pretrial detainees' claims under Eighth Amendment standards. Under the Eighth Amendment framework, pretrial detainees must establish that conditions subjected them to a substantial risk of serious harm, and that jailers were …
Uncertainty Revisited: Legal Prediction And Legal Postdiction, Ehud Guttel, Alon Harel
Uncertainty Revisited: Legal Prediction And Legal Postdiction, Ehud Guttel, Alon Harel
Michigan Law Review
Legal scholarship, following rational-choice theory, has traditionally treated uncertainty as a single category. A large body of experimental studies, however, has established that individuals treat guesses concerning the future differently than guesses concerning the past. Even where objective probabilities and payoffs are identical, individuals are much more willing to predict a future event (and are more confident in the accuracy of their predictions) than they are willing to postdict a past event (and are also less confident in the accuracy of their postdiction). For example, individuals are more willing to bet on the results of a future die toss than …
The Myth And The Reality Of American Constitutional Exceptionalism, Stephen Gardbaum
The Myth And The Reality Of American Constitutional Exceptionalism, Stephen Gardbaum
Michigan Law Review
This Article critically evaluates the widely held view inside and outside the United States that American constitutional rights jurisprudence is exceptional. There are two dimensions to this perceived American exceptionalism: the content and the structure of constitutional rights. On content, the claim focuses mainly on the age, brevity, and terseness of the text and on the unusually high value attributed to free speech. On structure, the claim is primarily threefold. First, the United States has a more categorical conception of constitutional rights than other countries. Second, the United States has an exceptionally sharp public/private division in the scope of constitutional …
Nothing Improper? Examining Constitutional Limits, Congressional Action, Partisan Motivation, And Pretextual Justification In The U. S. Attorney Removals, David C. Weiss
Michigan Law Review
The forced mid-term resignations of nine U.S. Attorneys was an unprecedented event in American history. Nearly one year after the administration executed the removals, the House Judiciary Committee was still reviewing and publicizing emails, memoranda, and other documents in an effort to understand how the firings were effectuated. This Note examines many of those documents and concludes that the removals were likely carried out for partisan reasons. It then draws on the Constitution, Supreme Court precedent, and separation of powers principles to argue that Congress is constitutionally empowered to enact removal limitations for inferior officers such as U.S. Attorneys so …
Practice Makes Perfect? An Empirical Study Of Claim Construction Reversal Rates In Patent Cases, David L. Schwartz
Practice Makes Perfect? An Empirical Study Of Claim Construction Reversal Rates In Patent Cases, David L. Schwartz
Michigan Law Review
This Article examines whether U.S. district court judges improve their skills at patent claim construction with experience, including the experience of having their own cases reviewed by the Court of Appeals for the Federal Circuit. In theory, higher courts teach doctrine to lower courts via judicial decisions, and lower courts learn from these decisions. This Article tests the teaching-and-learning premise on the issue of claim construction in the realities of patent litigation. While others have shown that the Federal Circuit reverses a large percentage of lower court claim constructions, no one has analyzed whether judges with more claim construction appeal …
Categorizing Categories: Property Of The Estate And Fraudulent Transfers In Bankruptcy, Michael R. Cedillos
Categorizing Categories: Property Of The Estate And Fraudulent Transfers In Bankruptcy, Michael R. Cedillos
Michigan Law Review
11 U.S.C. § 541 defines "property of the estate" in bankruptcy, but courts have not interpreted that section uniformly. The Fifth Circuit has read the term broadly to include both interests in property that the trustee recovers under § 541(a)(3) and legal or equitable interests under § 541(a)(1) that have purportedly been fraudulently transferred but which the trustee has not yet recovered. The Second Circuit, however, has taken a more restrained approach, holding that fraudulently transferred property that the trustee has not yet recovered does not constitute property of the estate. This Note argues that courts should adopt the Second …
Gatekeeper Failures: Why Important, What To Do, Merritt B. Fox
Gatekeeper Failures: Why Important, What To Do, Merritt B. Fox
Michigan Law Review
The United States was hit by a wave of corporate scandals that crested between late 2001 and the end of 2002. Some were traditional scandals involving insiders looting company assets - the most prominent being Tyco, HealthSouth, and Adelphia. But most were what might be called "financial scandals": attempts by an issuer to maximize the market price of its securities by creating misimpressions as to what its future cash flows were likely to be. Enron and WorldCom were the most spectacular examples of these financial scandals. In scores of additional cases, the companies involved and their executives were sued by …
Peace Through Law? The Failure Of A Noble Experiment, Robert J. Delahunty, John C. Yoo
Peace Through Law? The Failure Of A Noble Experiment, Robert J. Delahunty, John C. Yoo
Michigan Law Review
Ever since its publication in 1929, Erich Maria Remarque's All Quiet on the Western Front has been regarded as a landmark of antiwar literature. Appearing a decade after the end of the First World War, the novel became a literary sensation almost overnight. Within a year of publication, it had been translated into twenty languages, including Chinese, and by April 1930, sales for twelve of the twenty editions stood at 2.5 million. Remarque was reputed to have the largest readership in the world. Hollywood took note, and an equally successful film appeared in 1930. The success of the novel was …
Free Speech And The Case For Constitutional Exceptionalism, Roger P. Alford
Free Speech And The Case For Constitutional Exceptionalism, Roger P. Alford
Michigan Law Review
Embodied in the Universal Declaration of Human Rights is the evocative proposition that "[e]veryone has the right to freedom of opinion and expression." Beneath that abstraction there is anything but universal agreement. Modern democratic societies disagree on the text, content, theory, and practice of this liberty. They disagree on whether it is a privileged right or a subordinate value. They disagree on what constitutes speech and what speech is worthy of protection. They disagree on theoretical foundations, uncertain if the right is grounded in libertarian impulses, the promotion of a marketplace of ideas, or the advancement of participatory democracy. They …