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Michigan Law Review

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Foreword, Jeffrey Rosen May 1999

Foreword, Jeffrey Rosen

Michigan Law Review

America now is a society addicted to legalism that has lost its faith in legal argument. The impeachment of Bill Clinton was only the most visible manifestation of this paradox. Both Democrats and Republicans professed a rhetorical commitment to the rule of law while revealing a deep pessimism about the ability of courts, legislatures, or even citizens to transcend their biases and to converge, through deliberation, on impartial and democratically acceptable outcomes. The simplistic Supreme Court decisions that precipitated the impeachment - in particular, Morrison v. Olson,1 upholding the Independent Counsel law, and Jones v. Clinton,2 denying the President temporary …

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Reconstructing Atticus Finch, Steven Lubet May 1999

Reconstructing Atticus Finch, Steven Lubet

Michigan Law Review

Atticus Finch. No real-life lawyer has done more for the self-image or public perception of the legal profession than the hero of Harper Lee's novel, To Kill a Mockingbird. For nearly four decades, the name of Atticus Finch has been invoked to defend and inspire lawyers, to rebut lawyer jokes, and to justify (and fine-tune) the adversary system. Lawyers are greedy. What about Atticus Finch? Lawyers only serve the rich. Not Atticus Finch. Professionalism is a lost ideal. Remember Atticus Finch. In the unreconstructed Maycomb, Alabama of the 1930s, Atticus was willing to risk his social standing, professional reputation, and …

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Reconstructing Atticus Finch? A Response To Professor Lubet, Ann Althouse May 1999

Reconstructing Atticus Finch? A Response To Professor Lubet, Ann Althouse

Michigan Law Review

In one of her childishly obtuse moments, Scout, the narrator of Harper Lee's To Kill a Mockingbird, denies that her father Atticus Finch is any sort of proper example of how a lawyer ought to act when cross-examining a witness. The prosecutor's crossexamination of the accused Tom Robinson has moved her friend Dill to tears: "I couldn't stand . . . [t]hat old Mr. Gilmer doin' him thataway, talking so hateful to him _" Scout, who has taken her friend out of the courtroom, explains: "Dill, that's his job . . . . He's supposed to act that way." Atticus, …

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Response To Steven Lubet: A Reaction: "Stand Up, Your Father [A Lawyer] Is Passing", Burnele V. Powell May 1999

Response To Steven Lubet: A Reaction: "Stand Up, Your Father [A Lawyer] Is Passing", Burnele V. Powell

Michigan Law Review

Professor Steven Lubet's review examines in the lawyering context the truth of Due de La Rochefoucauld's observation that "[o]ur virtues are mostly but vices in disguise." His question - one going to the very heart of what lawyering is about - asks readers of To Kill a Mockingbird whether they would be equally prepared to accept the fictional Atticus Fmch as the personification of the good lawyer if his black client, defendant Tom Robinson, actually committed the rape of the white woman, Mayella Ewell, for which he was charged. If Robinson was a rapist, how then does one square Atticus's …

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Moral Icons: A Comment On Steven Lubet's Reconstructing Atticus Finch, William H. Simon May 1999

Moral Icons: A Comment On Steven Lubet's Reconstructing Atticus Finch, William H. Simon

Michigan Law Review

Atticus Finch's conduct would have been justified by the bar's conventional norms even if he had known Tom Robinson to be guilty. That fact, however, is not the source of the admiration for him that To Kill a Mockingbird has induced in so many readers. That admiration depends on the clear premise of the novel that Finch plausibly believes that Tom Robinson is innocent. Thus, the bar's invocation of Finch as a sympathetic illustration of its norms is misleading. The ethics of the novel are quite different from those of the bar. Steven Lubet does a good job of showing …

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The Qualities Of Completeness: More? Or Less?, Mark R. Killenbeck May 1999

The Qualities Of Completeness: More? Or Less?, Mark R. Killenbeck

Michigan Law Review

On January 14, 1983, Chief Judge W. Brevard Hand announced what he knew would be widely regarded as a rather startling proposition. Believing that "[t]he first amendment in large part was a guarantee to the states which insured that the states would be able to continue whatever church-state relationship existed in 1791," Judge Hand held that the people of Alabama were perfectly free to "establish[] a religion," in this instance by allowing public school teachers to begin the school day with prayer. The ruling reversed an earlier decision in the same case, which characterized the statutory provision at issue as …

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The Assault That Failed: The Progressive Critique Of Laissez Faire, Richard A. Epstein May 1999

The Assault That Failed: The Progressive Critique Of Laissez Faire, Richard A. Epstein

Michigan Law Review

Robert Lee Hale has long been an intellectual thorn in the side of the defenders of laissez faire, among whom I am quite happy to count myself. As Barbara Fried notes in her meticulous study of Hale's work, his name is hardly a household word. But both directly and indirectly, his influence continues to be great. His best known work is perhaps Coercion and Distribution in a Supposedly Non-Coercive State, published in 1923 as a review of Thomas Nixon Carver's Principles of National Economy, itself a defense of the classical principles of laissez faire, remembered today only for the drubbing …

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Positivism, Emergent And Triumphant, Vincent A. Wellman May 1999

Positivism, Emergent And Triumphant, Vincent A. Wellman

Michigan Law Review

Positivism is one of those words that triggers passionate and often contradictory responses. For some, positivism is a pejorative. Lon Fuller, perhaps more than anyone, charged that positivism was confused about the nature of law, blind to law's inherent morality, and morally corrupting to boot. He even suggested, in different ways, that positivism helped promote the rise of fascism in Europe. Others, in contrast, have treated positivism as a modest and undeniable truth about law. Law, they argued, is morally fallible, and accordingly, the existence and validity of law is a matter of social fact rather than moral necessity. H.L.A. …

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A New Economic Theory Of Regulation: Rent Extraction Rather Than Rent Creation, Douglas Ginsburg May 1999

A New Economic Theory Of Regulation: Rent Extraction Rather Than Rent Creation, Douglas Ginsburg

Michigan Law Review

Once upon a time, people believed that the government regulated various indus tries in "the public interest." The idea was that certain conditions, such as "natural monopoly" or the ability to externalize significant costs, caus ed markets to fail and governments to step in to correct that failure. Econmnic regulation predicated upon market failure can be dated conveniently to the Interstate Commerce Act of 1887, in which the Congress established the Inters tate Commerce Commission to regulate railroads in the interests of shippers, principally farmers and small businesses. The legal notion of "affectation with the public interest" dates back much …

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The Foundations Of Liberty, Lawrence B. Solum May 1999

The Foundations Of Liberty, Lawrence B. Solum

Michigan Law Review

Randy Barnett's The Structure of Liberty is an ambitious book. The task that Barnett sets himself is to offer an original and persuasive argument for a libertarian political theory, a theory that challenges the legitimacy of the central institutions of the modern regulatory-welfare state. The Structure of Liberty is that rare creature, a book that delivers on most of the promises it makes. Already the book is on its way to becoming a contemporary classic, the successor in interest to Robert Nozick's Anarchy, State and Utopia as a source of ideas and arguments for the revitalization of an important intellectual …

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Subversive Thoughts On Freedom And The Common Good, Larry Alexander, Maimon Schwarzschild May 1999

Subversive Thoughts On Freedom And The Common Good, Larry Alexander, Maimon Schwarzschild

Michigan Law Review

Richard Epstein is a rare and forceful voice against the conventional academic wisdom of our time. Legal scholarship of the past few decades overwhelmingly supports more government regulation and more power for the courts, partly in order to control businesses for environmental and other reasons, but more broadly in hopes of achieving egalitarian outcomes along the famous lines of race, gender, and class. Epstein is deeply skeptical that any of this is the shining path to a better world. Epstein's moral criterion for evaluating social policy is to look at how fully it allows individual human beings to satisfy their …

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Rights And Wrongs, John C.P. Goldberg May 1999

Rights And Wrongs, John C.P. Goldberg

Michigan Law Review

If one were to ask an American lawyer or legal scholar for a definition of liberalism, her explanation would likely include mention of constitutional provisions such as the First and Fourth Amendments. This is because liberalism is today understood primarily as a theory of what government officials may not do to citizens. Its most immediate expression in law is thus taken to be those parts of the Bill of Rights that set limits on state action. This tendency to conceive of liberalism exclusively as a theory of rights against government is a twentieth century phenomenon. To be sure, liberalism has …

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Punishing Hateful Motives: Old Wine In A New Bottle Revives Calls For Prohibition, Carol S. Steiker May 1999

Punishing Hateful Motives: Old Wine In A New Bottle Revives Calls For Prohibition, Carol S. Steiker

Michigan Law Review

Hate crimes are nothing new: crimes in which the victim is selected because of the victim's membership in some distinctive group (be it racial, ethnic, religious, or other) have been with us as long as such groups have coexisted within legal systems. What is relatively new is their recognition and designation as a discrete phenomenon. But as appellations like "sexual harassment" and "community policing" have begun to teach us, words are only the beginning of the life cycle of a new socio-legal concept. What follows are debates about whether the new category is really a coherent one, what activities should …

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Which Queue?, Robert J. Sternberg, Elena L. Grigorenko May 1999

Which Queue?, Robert J. Sternberg, Elena L. Grigorenko

Michigan Law Review

It is annoying when one is in a long line - at a ticket counter, at a supermarket, at a bank - and someone "jumps the queue," taking a position in line ahead of other people who lined up first. The title of Mark Kelman and Gillian Lester's book, Jumping the Queue, gives the reader advance warning of the authors' position on people who edge ahead in line. But the topic of their book is not ticket, supermarket, or bank lines, but rather the line to enjoy the benefits of society. And the focus of the analysis of queue-jumpers is …

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The Convergence Of The First Amendment And Vatican Ii On Religious Freedom, Robert F. Drinan S.J. May 1999

The Convergence Of The First Amendment And Vatican Ii On Religious Freedom, Robert F. Drinan S.J.

Michigan Law Review

Did the United States radiate the views of James Madison on the free exercise of religion to the world? That, in essence, is the main thrust of this provocative study by John T. Noonan, Jr., Professor Emeritus at the University of California Law School, Berkeley, and a Senior Judge of the U.S. Court of Appeals for the Ninth Circuit. Noonan is, of course, the author of magisterial books on abortion, birth control, legal ethics, and related issues. He writes as a committed Catholic who takes pride in the religion that he learned as a child in his native Brookline, Massachusetts. …

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These Are The People In Your Neighborhood, Elliot Regenstein May 1999

These Are The People In Your Neighborhood, Elliot Regenstein

Michigan Law Review

The 1997 St. Louis Rams media guide contains a glowing description of the team's star rookie from the prior season. The guide highlights his brilliant college career, describes his solid first professional season, and mentions that he grew up in Los Angeles. In a gray box above his football statistics, it notes that he frequently visits the Emergency Children's Home (ECHO) for troubled youth, where he talks to kids and plays basketball with them. The description would all look pretty normal if it wasn't a portrait of Lawrence Phillips. Almost every other sporting publication has written of Phillips not as …

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The Democracy-Forcing Constitution, Neal Devins May 1999

The Democracy-Forcing Constitution, Neal Devins

Michigan Law Review

During my freshman year in college, I was told not to judge a book by its cover. The book in question - Lolita; the cover suggested something quite salacious. My professor explained that a soldier, who had purchased Lolita to work out some of the kinks of military life, found himself tossing the book out, proclaiming in disgust "Literature!" Well, I cannot claim precisely the same reaction to Cass Sunstein's One Case at a Time (my expectations were lower than the soldier's). Nevertheless, for those expecting a lefty defense of judicial restraint, One Case at a Time is not your …

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Television In The Courtroom: Mightier Than The Pen?, Richard P. Matsch May 1999

Television In The Courtroom: Mightier Than The Pen?, Richard P. Matsch

Michigan Law Review

In his Introduction, author Ronald L. Goldfarb explains that his purpose is to address all the arguments advanced against televised trials, cover the points made by proponents of televised trials, and find a sensible solution to what he believes is the fundamental issue: "How can we best blend new media technologies with our traditional and revered commitment to democracy and justice?" (p. xxiv). He ends the book with this prospective paragraph: "I expect that all the courtrooms of the future - state and federal, trial and appellate - will be equipped with cameras. I suggest that all trials should be …

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The Rise Of America's Two National Pastimes: Baseball And The Law, Cleta Deatherage Mitchell May 1999

The Rise Of America's Two National Pastimes: Baseball And The Law, Cleta Deatherage Mitchell

Michigan Law Review

Mark McGwire's seventieth home run ball sold at auction in January of this year for $3,005,000. In late 1998, Baltimore Orioles owner Peter Angelos sued a former Orioles manager and his daughter in the circuit court of Cook County, Illinois. Angelos alleged that the original lineup card from the 1995 game when Cal Ripken, Jr., broke Lou Gehrig's consecutive game record belongs to the Orioles, not to the former manager and certainly not to his daughter. There may be no crying in baseball, but there is money. And wherever earthly treasure gathers two or more, a legal system arises. From …

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From Renaissance Poland To Poland's Renaissance, Daniel H. Cole May 1999

From Renaissance Poland To Poland's Renaissance, Daniel H. Cole

Michigan Law Review

Poland is located in Eastern Europe - the "other Europe" - which shares a continent, but seemingly little else, with Western Europe. Most histories of Europe, legal histories included, are actually histories of Western Europe only. The "euro-centrism" some scholars complain about is, more accurately, a "western eurocentrism." The eastern half of the continent is ignored like the embarrassing black sheep of the European family. Economic historians have described Eastern Europe as a "backward" place, where feudal and mercantilist economies persisted as Western European economies modernized and industrialized. In geopolitical terms, Eastern Europe has been characterized as a region of …

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War Crimes And The Limits Of Legalism, Gary Jonathan Bass May 1999

War Crimes And The Limits Of Legalism, Gary Jonathan Bass

Michigan Law Review

In April 1945, Sir John Simon, Britain's Lord Chancellor, drew up a memorandum that was the last gasp in the diplomatic struggle against Nuremberg. Under American pressure, and despite British objections, the Allies were poised to agree to put the Axis leadership on trial for war crimes. In the kind of magnificent understatement that the British government could sometimes inadvertently achieve, it was entitled "The Argument for Summary Process against Hitler & Co." The memorandum was a series of arguments to be used by the British delegation at the San Francisco conference in a last-ditch effort to win over the …

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Reply To Comments On Reconstructing Atticus Finch, Steven Lubet May 1999

Reply To Comments On Reconstructing Atticus Finch, Steven Lubet

Michigan Law Review

Reconstructing Atticus Finch was intended to be provocative, so I am not surprised at the strength of the responses. Neither should I be surprised by the continuing reverence engendered by the fictional Atticus Finch; as I pointed out in my original essay, he is our moral archetype. Indeed, it was the accepted nobility of the character that made my question worth asking in the first place. What if Mayella had been attacked by Tom Robinson? Would Atticus still be a hero? To ask that question about a lesser figure would inevitably invite stock responses. Champions of the adversary system would …

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Monuments To The Past In A Leveling Wind, Benjamin Means May 1999

Monuments To The Past In A Leveling Wind, Benjamin Means

Michigan Law Review

Early in the twentieth century, the Emperor Franz Joseph sponsored a monument to Hungary's history - a Millennium Monument containing statues of the country's heroes, as well as statues of the proud sponsor and his family (p. 5). When the communists took over in 1919, the statues of Franz Joseph and the rest of the Hapsburgs were dragged out of the Millennium Monument and replaced with more politically correct statuary (p. 8). Counterrevolutionaries, though, retook the country and reinstated the Hapsburg Statues in the Millennium Monument - until a later regime once again reshuffled the millennial display (pp. 9-10). Professor …

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Forgotten Constitutional History: The Production And Migration Of Meaning Within Constitutional Cultures, Gregory A. Mark May 1999

Forgotten Constitutional History: The Production And Migration Of Meaning Within Constitutional Cultures, Gregory A. Mark

Michigan Law Review

When was the last time you read a serious, recently published work of constitutional history that did not deal mainly with the work of the Supreme Court? When, even among those works, did the author look beyond the immediate litigants to give the reader a sense of an evolving constitutional culture - a culture in symbiosis with the larger political and social culture - its eddies and byways, as well as its mainstream? My strong hunch is that anyone who can triumphantly respond to the implicit condemnation of narrowness in these questions will do so in large measure having read …

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The Common Law In Cyberspace, Tom W. Bell May 1999

The Common Law In Cyberspace, Tom W. Bell

Michigan Law Review

Wrong in interesting ways, counts for high praise among academics. Peter Huber's stirring new book, Law and Disorder in Cyberspace, certainly merits acclaim by that standard. The very subtitle of the book, Abolish the FCC and Let Common Law Rule the Telecosm, announces the daring arguments to follow. A book so bold could hardly fail to make some stimulating errors, the most provocative of which this review discusses. Thanks to his willingness to challenge musty doctrines of telecommunications law and policy, moreover, Huber gets a great deal right. Law and Disorder in Cyberspace argues at length that the Federal Communications …

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Reconceiving The Right To Present Witnesses, Richard A. Nagareda Mar 1999

Reconceiving The Right To Present Witnesses, Richard A. Nagareda

Michigan Law Review

Modem American law is, in a sense, a system of compartments. For understandable curricular reasons, legal education sharply distinguishes the law of evidence from both constitutional law and criminal procedure. In fact, the lines of demarcation between these three subjects extend well beyond law school to the organization of the leading treatises and case headnotes to which practicing lawyers routinely refer in their trade. Many of the most interesting questions in the law, however, do not rest squarely within a single compartment; instead, they concern the content and legitimacy of the lines of demarcation themselves. This article explores a significant, …

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In Defense Of The Good Samaritan, Hanoch Dagan Mar 1999

In Defense Of The Good Samaritan, Hanoch Dagan

Michigan Law Review

In the year 1880, in Dalles City, Oregon, a large and valuable load of lumber fell into the Columbia River and was about to be carried away by the river's waters. Since Savage, the owner of this lumber, was absent from the scene, Glenn - who, at that time, was doing construction work for Savage - "furnished help and did service" in saving the lumber "from being washed away and lost." Seven years later, the Supreme Court of Oregon rejected Glenn's claim that Savage owed him "the reasonable value" of his services as well as of the services of the …

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Constitutional Fact And Theory: A Response To Chief Judge Posner, Deborah Jones Merritt Mar 1999

Constitutional Fact And Theory: A Response To Chief Judge Posner, Deborah Jones Merritt

Michigan Law Review

In his James Madison Lecture on Constitutional Law, Chief Judge Richard Posner chides both professors and judges for devoting too much attention to constitutional theory and too little time to empiricism. Although I agree with Judge Posner's endorsement of empiricism, I dispute the roles he assigns empiricism and theory. Social science matters when interpreting the Constitution, but not in the way Posner posits. Facts cannot replace constitutional theories, nor can they mechanically resolve questions posed by theory. Instead, empirical knowledge is most useful in unmasking the theoretical assumptions that undergird constitutional law, in focusing those theories, and in contributing to …

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Dissecting The State: The Use Of Federal Law To Free State And Local Officials From State Legislatures' Control, Roderick M. Hills Jr. Mar 1999

Dissecting The State: The Use Of Federal Law To Free State And Local Officials From State Legislatures' Control, Roderick M. Hills Jr.

Michigan Law Review

In discussions about American federalism, it is common to speak of a "state government" as if it were a black box, an individual speaking with a single voice. State governments are, of course, no such thing. Rather, a "state" actually incorporates a bundle of different subdivisions, branches, and agencies controlled by politicians who often compete with each other for electoral success and governmental power. In particular, these institutions compete with each other for the power to control federal funds and implement federal programs. This article explores one aspect of this intrastate competition - the extent to which federal law can …

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Race, Class, Caste…? Rethinking Affirmative Action, Clark D. Cunningham, N.R. Madhava Menon Mar 1999

Race, Class, Caste…? Rethinking Affirmative Action, Clark D. Cunningham, N.R. Madhava Menon

Michigan Law Review

Many who oppose affirmative action programs in the United States because they use "racial" categories such as black, African American, or Latino, claim that equally effective and more equitable programs can be developed using only class categories, such as "low income." A key test case for the "race v. class" debate is admission to law schools, made urgent by recent legal prohibitions on the use of "race" in the admission procedures to state universities in California, Washington, and Texas. An empirical study by Linda Wightman, the former director of research for the Law School Admissions Council (LSAC), has shown that …

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