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Articles 1081 - 1110 of 8523
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For Whom Does The Bell Toll: The Bell Tolls For Brown?, Angela Onwuachi-Willig
For Whom Does The Bell Toll: The Bell Tolls For Brown?, Angela Onwuachi-Willig
Michigan Law Review
Fifty years after the landmark decision Brown v. Board of Education, black comedian and philanthropist Dr. Bill Cosby astonished guests at a gala in Washington, D.C., when he stated, "'Brown versus the Board of Education is no longer the white person's problem. (Black people] have got to take the neighborhood back . . . . (Lower economic Blacks] are standing on the comer and they can't speak English.'" Cosby, one of the wealthiest men in the United States, complained about "lower economic" Blacks "not holding up their end in this deal." He then asked the question, "'Well, Brown …
Rule-Oriented Realism, Emily Sherwin
Rule-Oriented Realism, Emily Sherwin
Michigan Law Review
In his new book The Law and Ethics of Restitution, Hanoch Dagan undertakes to explain and justify the American law of restitution. He offers a broad theoretical account of this poorly understood subject, designed not only to fortify the substantive law of restitution but also to clarify the role and methodology of courts in developing the field. Dagan's book also provides lively discussion of the role of restitution in some of the most highly publicized legal developments of recent years. Those who think of restitution as an obscure branch of "legal remedies" may be surprised to read about the …
Theory Wars In The Conflict Of Laws, Louise Weinberg
Theory Wars In The Conflict Of Laws, Louise Weinberg
Michigan Law Review
Fifty years ago, at the height of modernism in all things, there was a great revolution in American choice-of-law theory. You cannot understand what is going on in the field of conflict of laws today without coming to grips with this central fact. With this revolution, the old formalistic way of choosing law was dethroned, and has occupied a humble position on the sidelines ever since. Yet there has been no lasting peace. The American conflicts revolution is still happening, and poor results are still frustrating good intentions. Now comes Dean Symeon Symeonides, the author of the choice of- law …
The Ghost Of Telecommunications Past, Philip J. Weiser
The Ghost Of Telecommunications Past, Philip J. Weiser
Michigan Law Review
When the canon for the field of information law and policy is developed, Paul Starr's The Creation of the Media will enjoy a hallowed place in it. Like Lawrence Lessig's masterful Code and Other Laws of Cyberspace, Starr's tour de force explains how policymakers have made a series of "constitutive choices" about how to regulate different information technologies that helped to shape the basic architecture of the information age. In so doing, Starr displays the same literary and analytical skill he used in writing the Pulitzer Prizewinning The Social Transformation of American Medicine, the firsthand experience he gained …
Killing The Willing: "Volunteers," Suicide And Competency, John H. Blume
Killing The Willing: "Volunteers," Suicide And Competency, John H. Blume
Michigan Law Review
When my client Robert South decided to waive his appeals so that his death sentence could be carried out, I understood why he might make that choice. Robert had a brain tumor that could not be surgically removed. Though not fatal, the tumor disrupted his sleep/wake cycle and had other negative physical consequences, including severe headaches, for his daily existence. He also had chronic post-traumatic stress disorder ("PTSD"), resulting from a profound history of childhood physical, emotional and sexual abuse. Robert suffered from daily recurrent flashbacks of the abuse. He had been on death row for almost a decade, and …
A New Understanding Of Tax, Edward J. Mccaffery
A New Understanding Of Tax, Edward J. Mccaffery
Michigan Law Review
Perhaps we should blame it all on Mill. A great deal and possibly all of the mind-numbing complexity of America's largest and least popular tax follows from the decision to have a progressive personal income tax. Proponents wanted an individual income tax notwithstanding - indeed, in large part because of - such a tax's "double taxation" of savings. This double-tax argument is an analytic point generally attributed to Mill's classic 1848 treatise, Principles of Political Economy. Historically, much of the support for the Sixteenth Amendment, ratified in 1913, came from Southern and Midwestern, progressive, agricultural interests, who wanted, in …
There Is Always A Need: The "Necessity Doctrine" And Class Certification Against Government Agencies, Daniel Tenny
There Is Always A Need: The "Necessity Doctrine" And Class Certification Against Government Agencies, Daniel Tenny
Michigan Law Review
On its face, Rule 23(b)(2) of the Federal Rules of Civil Procedure seems tailor-made for lawsuits against government. Rule 23(b)(2) allows a class action when "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." This situation arises frequently in people's dealings with government agencies: recipients of public benefits and consumers using public utilities, for example, constitute large groups of people all subject to identical government policies who might seek injunctive relief. Litigants attempting …
Private Attorneys General And The First Amendment, Trevor W. Morrison
Private Attorneys General And The First Amendment, Trevor W. Morrison
Michigan Law Review
The "private attorney general" is under fire again. It has been in and out of favor in the six decades since it was named, in part because it has come to signify so many different things. At its core, however, the term denotes a plaintiff who sues to vindicate public interests not directly connected to any special stake of her own. The remedies sought in such actions tend to be correspondingly broad: rather than seeking redress for discrete injuries, private attorneys general typically request injunctive or other equitable relief aimed at altering the practices of large institutions. From school desegregation …
The Unfulfilled Promise Of The Constitution In Executive Hands, Cornelia T.L. Pillard
The Unfulfilled Promise Of The Constitution In Executive Hands, Cornelia T.L. Pillard
Michigan Law Review
Many leading constitutional scholars now argue for greater reliance on the political branches to supplement or even supplant judicial enforcement of the Constitution. Responding to our national preoccupation with the judiciary as the mechanism of constitutional enforcement, these scholars stress that the executive and legislature, too, bear responsibility to think about the Constitution for themselves and to take steps to fulfill the Constitution's promise. Joining a debate that goes back at least as far as Marbury v. Madison, current scholars seek to reawaken the political branches to their constitutional potential, and urge the Supreme Court to leave the other …
Scylla Or Charybdis: Navigating The Jurisprudence Of Visual Clutter, M. Ryan Calo
Scylla Or Charybdis: Navigating The Jurisprudence Of Visual Clutter, M. Ryan Calo
Michigan Law Review
This Note argues that passing close to Discovery Network is the safest route - municipalities can still drastically reduce visual clutter by regulating commercial speech alone without violating the First Amendment. Part I looks at the onsite/offsite distinction, a singularly popular method of sign regulation, and concludes that this distinction runs squarely afoul of Metromedia. Part II looks at the once-accepted alternative route - the commercial/noncommercial distinction - and argues that this distinction does not run afoul of Discovery Network. Rather, a close reading of Discovery Network permits the regulation of exclusively commercial billboards where, as typically, they …
Planting A Standard: Proposing A Broad Reading Of In Re Elsner, Alicia L. Frostick
Planting A Standard: Proposing A Broad Reading Of In Re Elsner, Alicia L. Frostick
Michigan Law Review
This Note will show that one can read Elsner broadly to encompass both plant-type and widget-type inventions, and that applying Elsner to both plants and widgets is within the current statutory framework and case law. Such a reading would change the § 102 bar for inventions patentable under § 10i29 (hereinafter referred to as "widgets") as well as for plants. Part I of this Note argues that congressional sources require a flexible test-one that does not prejudice any objects under the Patent Act. Part II discusses the judicial interpretation of the Patent Act prior to Elsner in order to argue …
Does The Supreme Court Matter? Civil Rights And The Inherent Politicization Of Constitutional Law, Matthew D. Lassiter
Does The Supreme Court Matter? Civil Rights And The Inherent Politicization Of Constitutional Law, Matthew D. Lassiter
Michigan Law Review
More than a decade ago, in a colloquium sponsored by the Virginia Law Review, scholars of the civil rights movement launched a fierce assault on Michael J. Klarman's interpretation of the significance of the Supreme Court's famous school desegregation ruling in Brown v. Board of Education. Klarman's "backlash thesis," initially set forth in a series of law review and history journal articles and now serving as the centerpiece of his new book, revolves around two central claims. First, he argues that the advancements toward racial equality generally attributed to Brown were instead the inevitable products of long-term political, …
Beyond The "War" On Terrorism: Towards The New Intelligence Network, Ronald D. Lee, Paul M. Schwartz
Beyond The "War" On Terrorism: Towards The New Intelligence Network, Ronald D. Lee, Paul M. Schwartz
Michigan Law Review
In Terrorism, Freedom, and Security, Philip B. Heymann undertakes a wide-ranging study of how the United States can - and in his view should - respond to the threat of international terrorism. A former Deputy Attorney General of the United States Department of Justice ("DOJ") and current James Barr Ames Professor of Law at Harvard Law School, Heymann draws on his governmental experience and jurisprudential background in developing a series of nuanced approaches to preventing terrorism. Heymann makes clear his own policy and legal preferences. First, as his choice of subtitle suggests, he firmly rejects the widely used metaphor …
Government Corruption And The Right Of Access To Courts, Una A. Kim
Government Corruption And The Right Of Access To Courts, Una A. Kim
Michigan Law Review
This Note addresses the question left unanswered in Harbury: whether these denial of access-to-courts cases, which Justice Souter termed "backward-looking" access claims, are valid exercises of a constitutional right. Backward-looking access claims such as Harbury's differ from traditional denial of access-to-courts claims in that their aim is not to remove impediments to bringing causes of action in the future. Rather, backward-looking access claims allege that a suit that could have been filed in the past was not brought or was not litigated effectively, because access to the courts was at that time denied or obstructed by government officials. …
Copyright's Communications Policy, Timothy Wu
Copyright's Communications Policy, Timothy Wu
Michigan Law Review
There is something for everyone to dislike about early twenty-first century copyright. Owners of content say that newer and better technologies have made it too easy to be a pirate. Easy copying, they say, threatens the basic incentive to create new works; new rights and remedies are needed to restore the balance. Academic critics instead complain that a growing copyright gives content owners dangerous levels of control over expressive works. In one version of this argument, this growth threatens the creativity and progress that copyright is supposed to foster; in another, it represents an "enclosure movement" that threatens basic freedoms …
Mitigation And The Americans With Disabilities Act, Jill Elaine Hasday
Mitigation And The Americans With Disabilities Act, Jill Elaine Hasday
Michigan Law Review
It is an open question whether the prohibition on employment discrimination in the Americans with Disabilities Act (ADA) protects plaintiffs who have not attempted to mitigate the effect of their disability on their ability to work. Suppose, for example, that a job applicant has severely impaired vision because of a corneal disease. He can have corneal transplant surgery that his doctors recommend and expect will allow him to see much more clearly, but he does not want to have the surgery because of the complications sometimes associated with the operation and the possibility that the surgery will not work. He …
The Forgotten Constitutional Right To Present A Defense And Its Impact On The Acceptance Of Responsibility-Entrapment Debate, Katrice L. Bridges
The Forgotten Constitutional Right To Present A Defense And Its Impact On The Acceptance Of Responsibility-Entrapment Debate, Katrice L. Bridges
Michigan Law Review
This Note argues that Section 3El.1 of the Federal Sentencing Guidelines must be interpreted to allow defendants who claim entrapment at trial to remain eligible for the acceptance-of-responsibility adjustment. To interpret Section 3El.1 in any other way would run afoul of defendants' constitutional right to present a defense. Part I argues that the entrapment defense does not put factual guilt at issue; instead the entrapment defense challenges whether the statute should apply to the defendant's conduct. Part II contends that the legislative intent in creating the sentencing guidelines in general and the acceptance-of-responsibility adjustment in particular are furthered by requiring …
The Inclusive Command: Voluntary Integration Of Sexual Minorities Into The U.S. Military, Jennifer Gerarda Brown, Ian Ayres
The Inclusive Command: Voluntary Integration Of Sexual Minorities Into The U.S. Military, Jennifer Gerarda Brown, Ian Ayres
Michigan Law Review
Many opponents of gays in the military will accept the proposition that gay and lesbian soldiers, most of them closeted, have served their country bravely and well. General Colin Powell has referred to gay service members as "proud, brave, loyal, good Americans" who have "served well in the past and are continuing to serve well." General H. Norman Schwartzkopf agrees: "homosexuals have served in the past and have done a great job serving their country." What these opponents find harder to accept is the proposition that heterosexual people can effectively serve their country if openly gay people are in the …
Turning The Page On Section 5: The Implication Of Multiracial Coalition Districts On Section 5 Of The Voting Rights Act, Daniel A. Zibel
Turning The Page On Section 5: The Implication Of Multiracial Coalition Districts On Section 5 Of The Voting Rights Act, Daniel A. Zibel
Michigan Law Review
This Note analyzes the use of coalition districts in light of current section 5 and equal protection jurisprudence and argues that, in some circumstances, the Equal Protection Clause compels the use of coalition districts to achieve non retrogression under section 5. Part I examines the use of coalition districts, using the litigation in Page v. Bartels as an example. It then argues that the Supreme Court's opinion in Georgia v. Ashcroft permits jurisdictions to create viable racial coalition districts to comply with section 5. Part II argues that while Georgia v. Ashcroft permits the use of coalition districts to achieve …
Recent Books, Michigan Law Review
Recent Books, Michigan Law Review
Michigan Law Review
A list of books recently received by the Michigan Law Review.
Foreword: Loving Lawrence, Pamela S. Karlan
Foreword: Loving Lawrence, Pamela S. Karlan
Michigan Law Review
Two interracial couples. Two cases. Two clauses. In Loving v. Virginia, the Supreme Court struck down a Virginia statute outlawing interracial marriage. In Lawrence v. Texas, the Court struck down a Texas statute outlawing sexual activity between same-sex individuals. Each case raised challenges under both the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment.
The Unknown Past Of Lawrence V. Texas, Dale Carpenter
The Unknown Past Of Lawrence V. Texas, Dale Carpenter
Michigan Law Review
On the night of September 17, 1998, someone called the police to report that a man was going crazy with a gun inside a Houston apartment. When Harris County sheriff's deputies entered the apartment they found no person with a gun but did witness John Lawrence and Tyron Gamer having anal sex. This violated the Texas Homosexual Conduct law, and the deputies hauled them off to jail for the night. Lawyers took the men's case to the Supreme Court and won a huge victory for gay rights. So goes the legend of Lawrence v. Texas. Do not believe it. …
Sexual Orientation And The Paradox Of Heightened Scrutiny, Nan D. Hunter
Sexual Orientation And The Paradox Of Heightened Scrutiny, Nan D. Hunter
Michigan Law Review
In Lawrence v. Texas, the Supreme Court performed a double move, creating a dramatic discursive moment: it both decriminalized consensual homosexual relations between adults, and, simultaneously, authorized a new regime of heightened regulation of homosexuality. How that happened and what we can expect next are the subjects of this essay. The obvious point of departure for an analysis of Lawrence is its decriminalization of much sexual conduct. Justice Scalia began this project with his dire warning that "[s]tate laws against bigamy, samesex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are . . . sustainable only in …
Lawrence V. Texas And Judicial Hubris, Nelson Lund, John O. Mcginnis
Lawrence V. Texas And Judicial Hubris, Nelson Lund, John O. Mcginnis
Michigan Law Review
The republic will no doubt survive the Supreme Court's decision, in Lawrence v. Texas, to invalidate laws against private, consensual sodomy, including those limited to homosexual behavior. Such laws are almost never enforced, and the rare prosecutions for such acts are necessarily capricious. So the principal direct effect of the Court's decision is likely to be extremely limited, and largely salutary: a few individuals will be spared the bad luck of getting a criminal conviction for violating laws that are manifestly out of step with prevailing sexual mores. Nor are we likely to see anything like the intense political …
Surviving Lawrence V. Texas, Marc Spindelman
Surviving Lawrence V. Texas, Marc Spindelman
Michigan Law Review
The lesbian and gay communities have reacted to the Supreme Court's decision in Lawrence v. Texas - striking down state sodomy laws on Due Process grounds - with unbridled enthusiasm. Lawrence has variously been praised as an unmitigated victory for lesbian and gay rights, a turning point in our community's history, and the moment when we have gone from second-class political outcasts to constitutional persons with first-class rights. Obviously, something remarkable happened in Lawrence. In an opinion written by Justice Anthony Kennedy, the Court declared that John Geddes Lawrence and Tyrone Gamer, who had been convicted under Texas's sodomy …
1984, William H. Rehnquist
1984, William H. Rehnquist
Michigan Law Review
1984 by George Orwell was published in 1949. Set in London thirty-five years in the future, the world has greatly changed. It is now dominated by only three powers - Eastasia, composed of China, Japan, and Southeast Asia; Eurasia, composed of continental Europe and Northern Africa; and Oceania, composed of North and South America and the British Isles. The latter no longer exists as a political entity - they are known as Airstrip Seven. But London is still London, the capital of Airstrip Seven. The novel recounts the life of Winston Smith, a midlevel bureaucrat in a society totally controlled …