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Michigan Law Review

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Recent Books, Michigan Law Review Mar 1999

Recent Books, Michigan Law Review

Michigan Law Review

A list of books recenlty received by Michigan Law Review.

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Affirmative Action, Caste, And Cultural Comparisons, Cass R. Sunstein Mar 1999

Affirmative Action, Caste, And Cultural Comparisons, Cass R. Sunstein

Michigan Law Review

What is permitted, and what is prohibited, by the equality principle of a liberal democracy? Does affirmative action run afoul of that principle? And where should we look to answer these questions? Many critics of affirmative action take it as axiomatic that affirmative action violates the equality principle. But this is far from clear. Every law classifies. The current law of equality itself classifies by, for example, treating discrimination on the basis of race differently from discrimination on the basis of age. No one thinks that the law of equality is, for this reason, inconsistent with the Equal Protection Clause. …

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Recent Books, Michigan Law Review Feb 1999

Recent Books, Michigan Law Review

Michigan Law Review

A list of books recenlty received by Michigan Law Review.

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The Quality Of Mercy Is Not Strained: Interpreting The Notice Requirement Of The Federal Tort Claims Act, Ann Mcguire Feb 1999

The Quality Of Mercy Is Not Strained: Interpreting The Notice Requirement Of The Federal Tort Claims Act, Ann Mcguire

Michigan Law Review

Under the Federal Tort Claims Act of 1946 {FfCA), the United States is liable for tort claims "in the same manner and to the same extent as a private individual under like circumstances." This limited waiver of sovereign immunity, subject to certain exceptions, grants federal district courts exclusive jurisdiction over civil tort actions against the United States for money damages. The Act requires a claimant suing the United States to file her claim first with the appropriate administrative agency. If the agency denies the claim, it mails a notice of final denial, and the claimant then has six months to …

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The Efficient Norm For Corporate Law: A Neotraditional Interpretation Of Fiduciary Duty, Thomas A. Smith Jan 1999

The Efficient Norm For Corporate Law: A Neotraditional Interpretation Of Fiduciary Duty, Thomas A. Smith

Michigan Law Review

To economically oriented corporate law professors, distinguishing between directors' fiduciary duty to shareholders and a duty to the corporation1 itself smacks of reification - treating the fictional corporate entity as if it were a real thing. Now the orthodox view among corporate law scholars is that the corporate fiduciary duty is a norm that requires firm managers to "maximize shareholder value." Giving the corporation itself any serious role in the analysis of fiduciary duty, the thinking goes, obscures scientific insight with bad legal metaphysics. Some recent scholarship and legislation, such as constituency statutes, have challenged this "shareholder primacy" view. Contestants …

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The Courage Of Our Convictions, Sherman J. Clark Jan 1999

The Courage Of Our Convictions, Sherman J. Clark

Michigan Law Review

This article argues that criminal trial juries perform an important but inadequately appreciated social function. I suggest that jury trials serve as a means through which we as a community take responsibility for - own up to - inherently problematic judgments regarding the blameworthiness or culpability of our fellow citizens. This is distinct from saying that jury trials are a method of making judgments about culpability. They are that; but they are also a means through which we confront our own agency in those judgments. The jury is an institution through which we as individuals take a turn acknowledging and …

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Caste, Class, And Equal Citizenship, William E. Forbath Jan 1999

Caste, Class, And Equal Citizenship, William E. Forbath

Michigan Law Review

There is a familiar egalitarian constitutional tradition and another we have largely forgotten. The familiar one springs from Brown v. Board of Education; its roots lie in the Reconstruction era. Court-centered and countermajoritarian, it takes aim at caste and racial subordination. The forgotten one also originated with Reconstruction, but it was a majoritarian tradition, addressing its arguments to lawmakers and citizens, not to courts. Aimed against harsh class inequalities, it centered on decent work and livelihoods, social provision, and a measure of economic independence and democracy. Borrowing a phrase from its Progressive Era proponents, I will call it the social …

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Exit And Voice In The Age Of Globalization, Eyal Benvenisti Jan 1999

Exit And Voice In The Age Of Globalization, Eyal Benvenisti

Michigan Law Review

The "globalization" of commerce provides ever-growing opportunities for producers, employers, and service providers to shop the globe for more amenable jurisdictions. While they enjoy a "race to the top," an international "race to the bottom," spawned by decreasing relocation costs, threatens to compromise the achievements of the welfare state and lower standards of consumer protection. National governments, weakened by competition that entails leaner budgets, find it increasingly difficult to cooperate in the appropriation of crucial shared natural resources, seriously endangering these assets while damaging the environment. Not only does the growing global competition create both efficiency losses and social-welfare problems, …

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Private Ordering At The World's First Futures Exchange, Mark D. West Jan 1999

Private Ordering At The World's First Futures Exchange, Mark D. West

Michigan Law Review

Modern derivative securities - financial instruments whose value is linked to or "derived" from some other asset - are often sophisticated, complex, and subject to a variety of rules and regulations. The same is true of the derivative instruments traded at the world's first organized futures exchange, the Dojima Rice Exchange in Osaka, Japan, where trade flourished for nearly 300 years, from the late seventeenth century until shortly before World War II. This Article analyzes Dojima's organization, efficiency, and amalgam of legal and extralegal rules. In doing so, it contributes to a growing body of literature on commercial self-regulation while …

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Lawyers, Law, And Contract Formation: Comments On Daniel Keating's 'Exploring The Battle Of The Forms In Action', Robert K. Rasumssen Jan 1999

Lawyers, Law, And Contract Formation: Comments On Daniel Keating's 'Exploring The Battle Of The Forms In Action', Robert K. Rasumssen

Michigan Law Review

Attempting to infuse the austerity of theory with a dose of reality, an intrepid group of legal scholars has left the security of the office and ventured into the work-a-day world of commercial practices. The information that they have gathered and are sharing with the rest of us is furthering our understanding of the interaction between commercial law and commercial practice. Embedded in much of the research they have generated is the not-so-flattering conclusion that law professors suffer from a self-serving bias. Those of us in the academy engage in the assumption, often unstated or even unacknowledged, that the law …

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The Richness Of Contract Theory, Randy E. Barnett Jan 1999

The Richness Of Contract Theory, Randy E. Barnett

Michigan Law Review

When I teach the doctrine of good faith performance, I assign an exchange between two distinguished contracts scholars, Robert Summers and Steven Burton, that has come to be known as the "Summers-Burton" debate. This debate is interesting not only for the contrasting views of its protagonists concerning the doctrine of good faith, but also because of the generational shift in modes of scholarship it represents. In the 1950s and 1960s, contracts scholars, like so many others, rejected so-called "conceptualist" or "formalist" approaches that attempted to dictate the outcome of cases with general concepts and rules. Contracts scholarship was dominated by …

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Open Chambers?, Richard W. Painter Jan 1999

Open Chambers?, Richard W. Painter

Michigan Law Review

Edward Lazarus has written the latest account of what goes on behind the marble walls of the Supreme Court. His book is not the first to selectively reveal confidential communications between the Justices and their law clerks. Another book, Bob Woodward and Scott Armstrong's The Brethren2 achieved that distinction in 1979. Closed Chambers: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court, however, adds a new twist. Whereas The Brethren was written by journalists who persuaded former law clerks to breach the confidences of the Justices, Lazarus was himself a law clerk to Justice Harry Blackmun. Closed …

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Apparently Substantial, Oddly Hollow: The Enigmatic Practice Of Justice, Heidi Li Feldman Jan 1999

Apparently Substantial, Oddly Hollow: The Enigmatic Practice Of Justice, Heidi Li Feldman

Michigan Law Review

The Practice of Justice: A Theory of Lawyers' Ethics, by William H. Simon, is one of the most thoughtful and important books in legal theory - not just legal ethics - published in the past ten years. Like David Luban's seminal contribution to legal ethics, Lawyers and Justice: An Ethical Study, published a decade ago, Simon's book is a deliberate rival to accounts of lawyers' professional responsibility that begin with a command to zealous advocacy, end with a prohibition on outright illegal conduct, and offer nothing in between. Authors and commentators have grown increasingly dissatisfied with this as the basic …

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Counseling Counsel For Children, Martin Guggenheim Jan 1999

Counseling Counsel For Children, Martin Guggenheim

Michigan Law Review

You are a lawyer working in juvenile court, representing children in proceedings in which their parents are accused of being unfit. Your clients range in age from newborns to seventeen-yearolds. At any one time you have 125 active cases on your docket. You work hard at your job, and you believe deeply in the rights of the children you represent. Occasionally, it occurs to you that you don't really have as good a sense as perhaps you should of your precise role and how you ought to discharge your responsibilities to your clients. But you don't ever seem to have …

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Revisionism Misplaced: Why This Is Not The Time To Bury Autonomy, David J. Rothman Jan 1999

Revisionism Misplaced: Why This Is Not The Time To Bury Autonomy, David J. Rothman

Michigan Law Review

For the past twenty years, bioethics has exerted a profound influence on American medicine. Although its full impact cannot be precisely measured, one need only speak to European physicians and clinical investigators to grasp the full extent of the change. Americans may debate the sufficiency of the information that physicians share with their patients, but hear a European doctor exclaim angrily that it is criminal to ask a woman to decide whether to have a radical mstectomy or lumpectomy, and you know that bioethics has made a significant difference in the United States. So too, Americans, far more intensely than …

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Civics 2000: Process Constitutionalism At Yale, Daniel J. Hulsebosch Jan 1999

Civics 2000: Process Constitutionalism At Yale, Daniel J. Hulsebosch

Michigan Law Review

One or another form of historical fidelity has long been in the repetoire of constitutional interpretation, and during the last two decades conservative jurists have searched for the "original intent" of various clauses. Increasingly, however, it is liberal law professors who are turning to history to make sense of American constitutionalism. What they find there is not a document listing eternal rights or duties but rather a multidimensional structure of government, captured as much in practice as on paper, that has metamorphosed over time. It seems we have, in that familiar phrase, a living Constitution. But interest is shifting from …

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Direct Democracy In America, Sherman J. Clark Jan 1999

Direct Democracy In America, Sherman J. Clark

Michigan Law Review

The phrase "laboratories of democracy," as applied to the states, seems most often to mean something more like "democratic laboratories" - democratic testing grounds for various approaches to social problems. What sort of welfare reform will be most effective? Let Wisconsin try out Plan A, while Michigan experiments with Plan B. What combination of tort liability rules will achieve desired levels of compensation and deterrence? Let the states experiment with strict liability, comparative negligence, or various nofault schemes. It is also true, however, that the states are literally laboratories of democracy - arenas in which democratic institutions are themselves experimented …

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Making The Law Safe For Democracy: A Review Of "The Law Of Democracy Etc.", Burt Neuborne Jan 1999

Making The Law Safe For Democracy: A Review Of "The Law Of Democracy Etc.", Burt Neuborne

Michigan Law Review

Henry Hart began his 1964 Holmes Lectures by asking what a "single" would be without baseball. We rolled our eyes at that one, reveling in the maestro's penchant for the occult. As usual, though, Professor Hart was trying to tell us groundlings something precious. He was warning us that conventional legal thinking, by stressing rigorous deconstructive analysis, can obscure an important unity in favor of components that should be analyzed, not solely as freestanding phenomena, but as part of the unity. Without recognition of the unity, analysis of the components risks being carried on in a normative vacuum that will …

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Farewell To An Idea? Ideology In Legal Theory, David Charny Jan 1999

Farewell To An Idea? Ideology In Legal Theory, David Charny

Michigan Law Review

In 1956, Morocco inaugurated a constitutional democratic polity on the Western model. Elections were to be held, and political parties formed, with voters to be registered by party. The Berbers, however, did not join the parties as individual voters. Each Berber clan joined their chosen party as a unit. To consecrate (or, perhaps, to accomplish) the clan's choice, a bullock was sacrificed. These sacrificial rites offer a useful parable about the relationship between law and culture. The social order imposed by law depends crucially on the "culture" of the participants in the system - their habits, dispositions, views of the …

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The Myth Of Choice Of Law: Rethinking Conflicts, Kermit Roosevelt Iii Jan 1999

The Myth Of Choice Of Law: Rethinking Conflicts, Kermit Roosevelt Iii

Michigan Law Review

Choice of law is a mess. That much has become a truism. It is a "dismal swamp," a morass of confusion, a body of doctrine "killed by a realism intended to save it," and now "universally said to be a disaster." One way to demonstrate its tribulations would be to look at the academic dissensus and the hopelessly underdeterminative Restatement (Second) of Conflict of Laws. Another would be to examine the Supreme Court's abdication of the task of articulating constitutional constraints on state choice-of-law rules. This article will do both. At the outset, though, I want to suggest that one …

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The Distributive Foundation Of Corrective Justice, Hanoch Dagan Jan 1999

The Distributive Foundation Of Corrective Justice, Hanoch Dagan

Michigan Law Review

There are two, apparently conflicting, approaches to private law theorizing. One approach - by now, dare I say, the prevailing approach - analyzes private law through the lens of its social, economic, cultural, or political meanings and ramifications. For the purposes of this Article, we may call the proponents of this approach the "social values school." Other theorists, those who take a corrective justice approach, insist that the adjective "private" is significant and should be the starting point for any understanding of "private law." They claim that this starting point inevitably generates a radically different understanding of private law. Organized …

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The Political Economy Of Statutory Reach: U.S. Disclosure Rules In A Globalizing Market For Securities, Merritt B. Fox Dec 1998

The Political Economy Of Statutory Reach: U.S. Disclosure Rules In A Globalizing Market For Securities, Merritt B. Fox

Michigan Law Review

This Article addresses the appropriate reach of the U.S. mandatory securities disclosure regime. While disclosure obligations are imposed on issuers, they are triggered by transactions:- the public offering of, or public trading in, the issuers' shares. Share transactions are taking o n an increasingly transnational character. The barriers to a truly global market for equities continue to lessen: financial information is becoming increasingly globalized and it is becoming increasingly inexpensive and easy to effect share transactions abroad. There are approximately 41,000 issuers of publicly traded shares in the world. For an ever larger portion of these issuers, there will be …

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An Original Model Of The Independent Counsel Statute, Ken Gormley Dec 1998

An Original Model Of The Independent Counsel Statute, Ken Gormley

Michigan Law Review

On Friday, October 19, 1973, President Richard M. Nixon took a risky step to de-fang the Watergate investigation that had become a "viper in the bosom" of his Presidency. The U.S. Court of Appeals had just directed him to tum over tape-recordings subpoenaed by Watergate Special Prosecutor Archibald Cox; these taperecordings might prove or disprove White House involvement in the Watergate cover-up. Rather than challenge this ruling, the President conceived a new plan. The White House would prepare summaries of the nine tape-recordings in question, which would be verified by Senator John Stennis, a seventy-two-year-old Democrat from Mississippi, working alone …

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Prohibiting Conduct, Not Consequences: The Limited Reach Of The Migratory Bird Treaty Act, Benjamin Means Dec 1998

Prohibiting Conduct, Not Consequences: The Limited Reach Of The Migratory Bird Treaty Act, Benjamin Means

Michigan Law Review

Dissatisfied with the protection afforded wildlife by more recent environmental laws, some environmentalists seek to reinterpret one of the oldest federal environmental laws, the Migratory Bird Treaty Act (MBTA). Long understood simply to regulate hunting, the MBTA makes it illegal to "take" or "kill" migratory birds without a permit. The MBTA imposes strict liability for a violation. A heady combination of strict liability, criminal penalty provisions, and vague language, the MBTA appeals to those seeking to control land use activity. Some environmentalists advocate an interpretation of the MBTA that, contrary to legislative intent and 80 years of enforcement practice, would …

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Equal Rights, Special Rights, And The Nature Of Antidiscrimination Law, Peter J. Rubin Nov 1998

Equal Rights, Special Rights, And The Nature Of Antidiscrimination Law, Peter J. Rubin

Michigan Law Review

Despite the continued belief held by most Americans that certain characteristics should not form the basis for adverse decisions about individuals in employment, housing, public accommodations, and the provision of a wide range of governmental and private services and opportunities, antidiscrimination laws have increasingly come under attack on the ground that they provide members of the group against whom discrimination is forbidden with "special rights." The "special rights" objection has been voiced most strongly, but not exclusively, against laws that seek to prohibit discrimination on the basis of sexual orientation. This line of attack has not always been effective, but …

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Reflecting On The Subject: A Critique Of The Social Influence Conception Of Deterrence, The Broken Windows Theory, And Order-Maintenance Policing New York Style, Bernard E. Harcourt Nov 1998

Reflecting On The Subject: A Critique Of The Social Influence Conception Of Deterrence, The Broken Windows Theory, And Order-Maintenance Policing New York Style, Bernard E. Harcourt

Michigan Law Review

In 1993, New York City began implementing the quality-of-life initiative, an order-maintenance policing strategy targeting minor misdemeanor offenses like turnstile jumping, aggressive panhandling, and public drinking. The policing initiative is premised on the broken windows theory of deterrence, namely the hypothesis that minor physical and social disorder, if left unattended in a neighborhood, causes serious crime. New York City's new policing strategy has met with overwhelming support in the press and among public officials, policymakers, sociologists, criminologists and political scientists. The media describe the "famous" Broken Windows essay as "the bible of policing" and "the blueprint for community policing." Order-maintenance …

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The Treaty Power And American Federalism, Curtis A. Bradley Nov 1998

The Treaty Power And American Federalism, Curtis A. Bradley

Michigan Law Review

For much of this century, American foreign affairs law has assumed that there is a sharp distinction between what is foreign and what is domestic, between what is external and what is internal. This assumption underlies a dual regime of constitutional law, in which federal regulation of foreign affairs is subject to a different, and generally more relaxed, set of constitutional restraints than federal regulation of domestic affairs. In what is perhaps its most famous endorsement of this proposition, the Supreme Court stated in 1936 that "the federal power over external affairs [is] in origin and essential character different from …

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Recent Books, Michigan Law Review Nov 1998

Recent Books, Michigan Law Review

Michigan Law Review

A list of books recenlty received by Michigan Law Review.

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Lochner In Cyberspace: The New Economic Orthodoxy Of "Rights Management", Julie E. Cohen Nov 1998

Lochner In Cyberspace: The New Economic Orthodoxy Of "Rights Management", Julie E. Cohen

Michigan Law Review

Ninety-three years ago, in Lochner v. New York, the Supreme Court struck down a maximum-working-hours law for bakers as an impermissible invasion of employer-employee liberty of contract and, by implication, of the employer's property rights in his business. Lochner came to symbolize, and was vilified for, a vision of state power as rigidly circumscribed by the operation of judicially-determined laws of social ordering. By the late 1930s, the Court had changed course and accepted that the states' police power - or, in the case of Congress, the commerce power - encompassed even protective regulation of the parameters of the private …

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Ultra Vires Takings, Matthew D. Zinn Oct 1998

Ultra Vires Takings, Matthew D. Zinn

Michigan Law Review

When does legislative or administrative regulatory action "go[] too far" and effectively amount to an .appropriation of private property for which the Fifth Amendment requires just compensation? This question has turned out to be one of the thorniest in American constitutional law. The Supreme Court has identified several circumstances in which one can expect to find a regulatory taking, but its numerous pronouncements on the subject give no clear rule to distinguish compensable takings from noncompensable interference with property rights. Notwithstanding its volume, the commentary on the Takings Clause by and large addresses only proper governmental action that rises to …

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