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Full-Text Articles in Entire DC Network
The Transformation Of World Trade, Joost Pauwelyn
The Transformation Of World Trade, Joost Pauwelyn
Michigan Law Review
This Article contests the traditional view of the evolution of the world trade system. Rather than a unidirectional process of legalization focused exclusively on the system's normative structure, Part I of the Article, "The Explosion of the GATT Club," recounts the transformation from GATT to WTO as a bidirectional interaction between law and politics; in particular, between the system's legal-normative structure and its political, decision making branch Part II of this Article, "The Threat of a WTO Fortress," challenges the view that a choice must be made between politics and law or, put differently, between, on the one hand, democratic …
Signatures Of Ideology: The Case Of The Supreme Court's Criminal Docket, Ward Farnsworth
Signatures Of Ideology: The Case Of The Supreme Court's Criminal Docket, Ward Farnsworth
Michigan Law Review
Everyone suspects that Supreme Court justices' own views of policy play a part in their decisions, but the size and nature of the part is a matter of vague impression and frequent dispute. Do their preferences exert some pressure at the margin or are they better viewed as the mainsprings of decision? The latter claim, identified with legal realism, has been lent some support by political scientists who point out that some justices regularly vote for or against certain kinds of claims (for example, under the Fourth Amendment), or that votes in some areas are broadly predictable according to a …
The Changing Meaning Of Patent Claim Terms, Mark A. Lemley
The Changing Meaning Of Patent Claim Terms, Mark A. Lemley
Michigan Law Review
The claims of a patent are central to virtually every aspect of patent law. The claims define the scope of the invention, and their meaning therefore determines both whether a defendant's product infringes a patent and whether the patent is valid. One of the most significant aspects of patent litigation is "claim construction," the process of defining the words of the claim in other, theoretically clearer words. Courts construe the claims of the patent by starting with the plain meaning of their terms as they would be understood by a person having ordinary skill in the art, or PHOSITA. Claim …
A Prudential Exercise: Abstention And The Probate Exception To Federal Diversity Jurisdiction, Christian J. Grostic
A Prudential Exercise: Abstention And The Probate Exception To Federal Diversity Jurisdiction, Christian J. Grostic
Michigan Law Review
Ann-Marie Brege's parents established an irrevocable trust in 1985, with Ann-Marie as sole beneficiary. When Merrill Lynch Trust Co. took over as trustee years later, however, the trust's principal dropped sharply, losing over half its value in just a few years. Ann-Marie sued in Michigan probate court, alleging that Merrill Lynch had violated its legal duties in administering the trust. Since Ann-Marie was from New York and Merrill Lynch had its headquarters in New Jersey, Merrill Lynch had an apparently easy argument for diversity jurisdiction. In an unremarkable turn of events, Merrill Lynch filed a notice of removal to federal …
"Electronic Fingerprints": Doing Away With The Conception Of Computer-Generated Records As Hearsay, Adam Wolfson
"Electronic Fingerprints": Doing Away With The Conception Of Computer-Generated Records As Hearsay, Adam Wolfson
Michigan Law Review
One night, in the hours just before daybreak, the computer servers at Acme Corporation's headquarters quietly hum in the silence of the office's darkened hallways. Suddenly, they waken to life and begin haphazardly sifting through their files. Several states away, a hacker sits in his room, searching through the mainframe via an internet connection. His attack is quick-lasting only a short five minutes-but the evidence of invasion is apparent to Acme's IT employees when they come in to work the next morning. Nearly a year later, federal prosecutors bring suit in the federal district court against the person they believe …
A Theory In Search Of A Court, And Itself: Judicial Minimalism At The Supreme Court Bar, Neil S. Siegel
A Theory In Search Of A Court, And Itself: Judicial Minimalism At The Supreme Court Bar, Neil S. Siegel
Michigan Law Review
According to the prevailing wisdom in academic public law, constitutional theory is a field that seeks to articulate and evaluate abstract accounts of the nature of the United States Constitution. Theorists offer those accounts as guides to subsequent judicial construction of constitutional provisions. As typically conceived, therefore, constitutional theory tends to proceed analytically from the general to the particular; its animating idea is that correct decisions in constitutional cases presuppose theoretical commitments to the methodological principles that should guide constitutional interpretation and the substantive values such interpretation should advance. In its enthusiasm for abstraction, constitutional theory has, at times, generated …
Search And Persuasion In Trademark Law, Barton Beebe
Search And Persuasion In Trademark Law, Barton Beebe
Michigan Law Review
The consumer, we are led to believe, is the measure of all things in trademark law. Trademarks exist only to the extent that consumers perceive them as designations of source. Infringement occurs only to the extent that consumers perceive one trademark as referring to the source of another. The most "intellectual" of the intellectual properties, trademarks are a property purely of consumers' minds. The simple idealist ontology underlying trademark law is largely responsible for the law's characteristic instability. Since 1992, the Supreme Court has considered - and in some cases, reconsidered - seven trademark cases. The Court's copyright cases garner …
The Myth Of Accountability And The Anti-Administrative Impulse, Edward Rubin
The Myth Of Accountability And The Anti-Administrative Impulse, Edward Rubin
Michigan Law Review
The idea of accountability is very much in fashion in legal and political thought these days. To be sure, the term is used in a variety of different ways, but that is the nature of fashion. Colored cloth ponchos may be in fashion this season, for example, but they can be shaped and colored in a variety of different ways. It is differences of this sort that sustain a fashion trend. If the only poncho available were red and square, the fashion trend would display an impressive unity, but it wouldn't last very long. In order to make sales, clothing …
Swancc'S Clear Statement: A Delimitation Of Congress's Commerce Clause Authority To Regulate Water Pollution, Matthew B. Baumgartner
Swancc'S Clear Statement: A Delimitation Of Congress's Commerce Clause Authority To Regulate Water Pollution, Matthew B. Baumgartner
Michigan Law Review
Perhaps the most controversial aspect of federal water pollution law is wetland regulation. Wetlands are typically marshy or swampy areas with hydrologic soils and vegetation. Their ecological value is widely recognized, but wetlands often stand in the way of lucrative commercial development projects. Thus, the battle over the validity of federal wetland regulation is a classic fight between environmentalists and industry. The wetlands controversy is also paradigmatic of the perpetual struggle to define the constitutional limits to federal regulation. The country's main water pollution control law, the Clean Water Act (CWA), purports to regulate all "navigable waters," which it defines …
Word Games: Raising And Resolving The Shortcomings In Accident-Insurance Doctrine That Autoerotic-Asphyxiation Cases Reveal, Sam Erman
Michigan Law Review
This Note argues that autoerotic asphyxiation deaths are accidents and not the results of intentionally self-inflicted injuries. Part I formally analyzes accident-insurance case law to show that current, viable approaches to accident insurance indicate that autoerotic asphyxiation deaths are accidental. Part II claims autoerotic asphyxiation deaths should not trigger intentionally self-inflicted injury exclusion clauses because the practice does not intentionally injure. This Note concludes beneficiaries should recover when accident-insurance policyholders die during autoerotic asphyxiation.
The Free Exercise Of Religion And Public Schools: The Implications Of Hybrid Rights On The Religious Upbringing Of Children, Michael E. Lechliter
The Free Exercise Of Religion And Public Schools: The Implications Of Hybrid Rights On The Religious Upbringing Of Children, Michael E. Lechliter
Michigan Law Review
This Note argues that parents have a fundamental right under the U.S. Constitution to direct the religious upbringing of their children and that courts interpreting Smith have systematically misunderstood and misapplied the Supreme Court's confusing hybrid rights language. Part I explains how Yoder and Smith create and preserve parents' right to direct the religious upbringing of their children. The essential point is that the free exercise right and the parental right are not examined independently and simply added together, but instead are incorporated together to provide a specific bite to the free exercise claim. Part I also examines the lower …
The Market For Criminal Justice: Federalism, Crime Control, And Jurisdictional Competition, Doron Teichman
The Market For Criminal Justice: Federalism, Crime Control, And Jurisdictional Competition, Doron Teichman
Michigan Law Review
Part I introduces the concepts of jurisdictional competition and crime displacement and argues that, as a positive matter, a decentralized criminal justice system may create a competitive process among the different units composing it, in which each such unit attempts to divert crime to neighboring communities. Part II then turns to evaluate the normative aspects of jurisdictional competition in the area of criminal justice. In this context I will show that competition can have both advantages and disadvantages. On one hand, the forces of competition might drive jurisdictions to fight crime efficiently, since any jurisdiction that functions inefficiently will suffer …
Police And Democracy, David Alan Sklansky
Police And Democracy, David Alan Sklansky
Michigan Law Review
Part I of the Article describes the emergence in postwar America of a particular understanding of a democracy, an understanding generally referred to as "democratic pluralism," "analytic pluralism," "pluralist theory," or simply "pluralism." We will spend a fair bit of time unpacking pluralism, because its fine points will prove important when we turn to the task of tracing its reflections in criminal procedure. That task is taken up in Part II, which examines the ways in which the central tenets of democratic pluralism found echoes in criminal procedure - construed broadly to include not only jurisprudence and legal scholarship but …
Subdivisions, Standing And The Supremacy Clause: Can A Political Subdivision Sue Its Parent State Under Federal Law, Brian P. Keenan
Subdivisions, Standing And The Supremacy Clause: Can A Political Subdivision Sue Its Parent State Under Federal Law, Brian P. Keenan
Michigan Law Review
This Note argues that political subdivisions should be able to seek protection from their parent states under the Supremacy Clause when alleging a conflict between state law and any federal law, be it the Constitution, treaty, or a federal statute. Part I argues that the precedential cases like Hunter and Trenton were limited to the constitutional provisions in question and therefore did not bar all suits under the Supremacy Clause. Part II shows that the issue is one of constitutional protection of political subdivisions, rather than Article III standing, which had a completely different meaning when Hunter and Trenton were …
No Good Deed Goes Unpunished: The Cercla Liability Exposure Unfortunately Created By Pre-Acquisition Soil Testing, Jennifer L. Scheller
No Good Deed Goes Unpunished: The Cercla Liability Exposure Unfortunately Created By Pre-Acquisition Soil Testing, Jennifer L. Scheller
Michigan Law Review
This Note argues that CERCLA, as it is currently written, requires courts to hold parties liable for pre-purchase soil investigations that spread or mix contamination because to conclude otherwise would stretch CERCLA beyond its breaking point. Part I argues that both those who order pre-acquisition soil testing and those who conduct the tests are PRPs if the testing spreads existing contamination. Part II argues that the statute does not allow for the judicial creation of a soil testing liability exception. Part III acknowledges the policy problems created by testing liability and advocates a legislative solution to exempt pre-purchase soil testing …
Impossible Subjects: Illegal Aliens And Alien Citizens, Leti Volpp
Impossible Subjects: Illegal Aliens And Alien Citizens, Leti Volpp
Michigan Law Review
America is a nation of immigrants, according to our national narrative. This is the America with its gates open to the world, as well as the America of the melting pot. Underpinning this national narrative is a very particular story of immigration that foregrounds the inclusion of immigrants, rather than their exclusion. Highlighted in this story is the period before 1924, of relatively unfettered European immigration, and the period after 1965, post the lifting of national origins quotas. Also underlying this national narrative is a particular story about what happens once immigrants enter. In this story the immigrant traverses smoothly …
National Identity In A Multicultural Nation: The Challenge Of Immigration Law And Immigrants, Kevin R. Johnson, Bill Ong Hing
National Identity In A Multicultural Nation: The Challenge Of Immigration Law And Immigrants, Kevin R. Johnson, Bill Ong Hing
Michigan Law Review
Samuel Huntington's provocative new book Who Are We?: The Challenges to National Identity is rich with insights about the negative impacts of globalization and the burgeoning estrangement of people and businesses in the United States from a truly American identity. The daunting question posed by the title of the book is well worth asking. After commencing the new millennium with wars in Afghanistan and Iraq, U.S. military torture of Iraqi prisoners, indefinite detentions of U.S. citizens declared by the President to be "enemy combatants," and a massive domestic "war on terror" that has punished and frightened Arab, Muslim, and other …
Against Interpretive Supremacy, Saikrishna Prakash, John Yoo
Against Interpretive Supremacy, Saikrishna Prakash, John Yoo
Michigan Law Review
Many constitutional scholars are obsessed with judicial review and the many questions surrounding it. One perennial favorite is whether the Constitution even authorizes judicial review. Another is whether the other branches of the federal government must obey the Supreme Court's interpretation of the Constitution and what, if anything, the other branches must do to execute the judiciary's judgments. Marbury v. Madison has been a full-employment program for many constitutional law scholars, including ourselves. Larry Kramer, the new Dean of Stanford Law School, shares this passion. He has devoted roughly the last decade of his career, with two lengthy law review …
The Originalist And Normative Case Against Judicial Activism: A Reply To Professor Randy Barnett, Steven G. Calabresi
The Originalist And Normative Case Against Judicial Activism: A Reply To Professor Randy Barnett, Steven G. Calabresi
Michigan Law Review
In Restoring the Lost Constitution: The Presumption of Liberty, Professor Randy E. Barnett lays out a bold defense of the theory of originalism in constitutional interpretation. Professor Barnett's book is perhaps the most important book about originalism since Robert H. Bork's The Tempting of America. Barnett presents a normative case as to why contemporary Americans should agree to be governed by the original meaning of the Constitution, and, like most sophisticated originalists, he nicely distinguishes between original meaning and original intent. Barnett correctly notes that what really matters in constitutional interpretation is not what the Framers intended that provision …
Equality, Objectivity, And Neutrality, Alafair S. Burke
Equality, Objectivity, And Neutrality, Alafair S. Burke
Michigan Law Review
When is homicide reasonable? That familiar, yet unanswered question continues to intrigue both courts and criminal law scholars, in large part because any response must first address the question, "reasonable to whom?" The standard story about why that threshold question is both difficult and interesting usually involves a juxtaposition of "objective" and "subjective" standards for judging claims of reasonableness. On the one hand, the story goes, is a "subjective" standard of reasonableness under which jurors evaluate the reasonableness of a criminal defendant's beliefs and actions by comparing them to those of a hypothetical reasonable person sharing all of the individual …
Judging The Law Of Politics, Guy-Uriel Charles
Judging The Law Of Politics, Guy-Uriel Charles
Michigan Law Review
Election law scholars are currently engaged in a vigorous debate regarding the wisdom of judicial supervision of democratic politics. Ever since the Court's 1962 decision in Baker v. Carr, the Court has increasingly supervised a dizzying array of election-related matters. These include the regulation of political parties, access to electoral ballots, partisanship in electoral institutions, the role of race in the design of electoral structures, campaign financing, and the justifications for limiting the franchise. In particular, and as a consequence of the Court's involvement in the 2000 presidential elections in Bush v. Gore, a central task of election …
Is U.S. Ceo Compensation Inefficient Pay Without Performance?, John E. Core, Wayne R. Guay, Randall S. Thompson
Is U.S. Ceo Compensation Inefficient Pay Without Performance?, John E. Core, Wayne R. Guay, Randall S. Thompson
Michigan Law Review
In Pay Without Performance, Professors Lucian Bebchuk and Jesse Fried develop and summarize the leading critiques of current executive compensation practices in the United States. This book, and their highly influential earlier article, Managerial Power and Rent Extraction in the Design of Executive Compensation, with David Walker offer a negative, if mainstream, assessment of the state of U.S. executive compensation: U.S. executive compensation practices are failing in a widespread manner, and much systemic reform is needed. The purpose of our Review is to summarize the book and to offer some counterarguments to try to balance what is becoming …
Gay Politics And Precedents, Frank B. Cross
Gay Politics And Precedents, Frank B. Cross
Michigan Law Review
One can find many analyses of the development of gay rights law in America but none are so illuminating as Daniel Pinello's in his book Gay Rights and American Law. More significantly, while it offers a superb understanding of the recent record of gay rights litigation, the book provides a fine-grained and sophisticated understanding of judicial decisionmaking in this important and developing area of the law. Indeed, the value of the book for students of judicial decisionmaking even transcends its value for students of gay rights jurisprudence. Quantitative empirical studies of judicial decisionmaking, well established in political science, have …
Caught In The Trap: Pricing Racial Housing Preferences, A. Mechele Dickerson
Caught In The Trap: Pricing Racial Housing Preferences, A. Mechele Dickerson
Michigan Law Review
In The Two-Income Trap, Harvard Law School Professor Elizabeth Warren and business consultant Amelia Warren Tyagi reach a startling conclusion: a two-income middle-class family faces greater financial risks today than a one-income family faced three decades ago. Middle-class families are caught in an "income trap" because they budget based on two incomes and face financial ruin if they lose an income or incur unexpected expenses. The authors suggest that most middle-class families cannot quickly adjust their budgets because their largest monthly expense is the fixed mortgage payment. The parents maintained that they had to allocate a significant portion of …
Pluralizing International Criminal Justice, Mark A. Drumbl
Pluralizing International Criminal Justice, Mark A. Drumbl
Michigan Law Review
From Nuremberg to The Hague scours the institutions of international criminal justice in order to examine their legitimacy and effectiveness. This collection of essays is edited by Philippe Sands, an eminent authority on public international law and professor at University College London. The five essays derive from an equal number of public lectures held in London between April and June 2002. The essays - concise and in places informal - carefully avoid legalese and arcania. Taken together, they cover an impressive spectrum of issues. Read individually, however, each essay is ordered around one or two well-tailored themes, thereby ensuring analytic …
Is There A Future For Leniency In The U.S. Criminal Justice System?, Nora V. Demleitner
Is There A Future For Leniency In The U.S. Criminal Justice System?, Nora V. Demleitner
Michigan Law Review
The spring 2004 release of the gruesome pictures of sexual humiliation and torture at Abu Ghraib prison outside of Baghdad revealed how some U.S. troops, intelligence officers, and private contractors treated Iraqi prisoners taken during and after the war. High-ranking government officials may have condoned, if not encouraged, the abuses. Only reluctantly have they agreed to extend protections customarily accorded civilians and military fighters during a war to individuals detained in Iraq and Afghanistan. As Congressional investigations appear to have stalled, military inquiries have been manifold but resultless. Only a handful of low ranking soldiers have been court-martialed, and a …
Was The Frog Prince Sexually Molested?: A Review Of Peter Westen's The Logic Of Consent, Heidi M. Hurd
Was The Frog Prince Sexually Molested?: A Review Of Peter Westen's The Logic Of Consent, Heidi M. Hurd
Michigan Law Review
Peter Westen's The Logic of Consent is nothing short of a tour de force. In the tradition of the very best and most significant contributions to legal theory, Professor Westen demonstrates that we do not know what we think we know about a capacity that on a daily basis turns trespasses into dinner parties, brutal batteries into football games, rape into lovemaking, and the commercial appropriation of name and likeness into biography. While we all employ claims of consent in everyday moral gossip to absolve some and withhold sympathy from others, and while courts of law across the nation commonly …
The Appeal, Alex Kozinski, Alexander Volokh
The Appeal, Alex Kozinski, Alexander Volokh
Michigan Law Review
Appeal from the United States District Court. Hermann Bendemann, District Judge, Presiding. Argued and Submitted July 3, 1926. Filed May 1, 2005. Before: Alex K., Bucephalus and Godot, Circuit Judges. Opinion by Judge Alex K.
Addressing Imperfections In The Tax System: Procedural Or Substantive Reform?, Leandra Lederman, Stephen W. Mazza
Addressing Imperfections In The Tax System: Procedural Or Substantive Reform?, Leandra Lederman, Stephen W. Mazza
Michigan Law Review
Books about tax administration tend to fall into one of two broad categories: those that paint the Internal Revenue Service ("IRS") as an agency peopled by corrupt, out-of-control bureaucrats who take pleasure in seeing innocent taxpayers suffer, and those that tell readers how to structure their affairs to minimize the risk of incurring an IRS employee's wrath during a tax audit. Perfectly Legal, the full title of which communicates David Cay Johnston's intent to focus on the tax system, does neither of those things. Instead, it is a book much like The Great American Tax Dodge, which explained …
Unity And Pluralism In Contract Law, Nathan Oman
Unity And Pluralism In Contract Law, Nathan Oman
Michigan Law Review
It is a cliché of contemporary legal scholarship that, in the last few decades, the study of law has witnessed a vast proliferation of competing theoretical approaches. The old faith in the careful honing of doctrinal concepts and the essential usefulness of legal analysis has given way to a cacophony of competing theoretical sects. Economists, moral philosophers, sociologists, historians, and others have stepped forward to offer the insights of this or that discipline as a new and superior path to legal enlightenment. Perhaps nowhere has this cliché been truer than in the realm of contracts scholarship, where, for a generation, …