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Consent Decrees And The Rights Of Third Parties, Larry Kramer

Michigan Law Review

I begin in Part I by describing the dynamics of the consent decree process: why parties want consent decrees and why courts agree to enforce them. On the basis of this description, I construct a model of the consent decree as a device that encourages settlement by facilitating enforcement of the parties' agreement.

The remainder of the article then applies this model to third-party claims. Part II considers whether there is any reason to prevent third parties from bringing an independent action attacking a consent decree. Part II concludes that the collateral attack bar is a form of abstention, serving …

Book & Periodical Index, Michigan Law Review

Michigan Law Review

A List of Recent Books and Subject Index of Articles, Comments, Notes and Recent Developments Appearing in Leading Law Reviews

Tax Avoidance And Income Measurement, Joshua D. Rosenberg

Michigan Law Review

This article first will explain our system of "transaction taxation" and will further explore the problems caused by the transactional focus of our tax system. It then will consider the current judicial responses to these problems and examine their inadequacies. Finally, it will set forth and explore the alternative responses suggested above in more detail.

Corporate Auctions And Directors' Fiduciary Duties: A Third-Generation Business Judgment Rule, Steven G. Bradbury

Michigan Law Review

This Note proposes a rationale and a methodology for applying the business judgment rule when directors resist a hostile bid during the auction phase of a control contest. Part I examines the changes that occur in the responsibilities of target directors when a corporate auction is initiated. This Part describes the Unocal business judgment rule test and discusses its usefulness in the auction phase of a takeover. While the test requires modification if it is to complement effectively the auction-phase duties announced in Revlon, this Part suggests that the business judgment rule continues to be relevant and important during …

Book & Periodical Index, Michigan Law Review

Michigan Law Review

A List of Books Received and a Subject Index of Articles, Comments, Notes and Recent Developments Appearing in Leading Law Reviews

Statutory Interpretation, Legislative Inaction, And Civil Rights, Daniel A. Farber

Michigan Law Review

This month the Supreme Court will hear reargument in Patterson v. McLean Credit Union on the question of whether section 1981 prohibits discrimination by private parties. Professor Farber identifies three issues which lie at the heart of Patterson: Must statutes be construed to conform to the intent of the drafters? Does legislative inaction provide reliable guidance to interpreters of statutes? And should the nature of the claim at issue - here a claim of civil rights - influence the interpreters? On this last point, Professor Farber argues that public values must be relevant to statutory interpretation and that judges …

Interpreting Legislative Inaction, William N. Eskridge Jr.

Michigan Law Review

This month the Supreme Court will hear reargument in Patterson v. McLean Credit Union on the question of whether section 1981 prohibits discrimination by private parties. In this article, Professor Eskridge addresses the issue of how legislative inaction should affect statutory interpretation. He begins by constructing a detailed analysis of the Court's legislative inaction cases, arguing that the case law is much more coherent than previous analysts have suggested. Professor Eskridge then considers Justice Scalia's critique of that case law and provides support for Justice Scalia's views by distinguishing actual and presumed legislative intent, arguing that, based on a conception …

Updating Statutory Interpretation, T. Alexander Aleinikoff

Michigan Law Review

This month the Supreme Court will hear reargument in Patterson v. McLean Credit Union on the question of whether section 1981 prohibits discrimination by private parties. Professor Aleinikoff examines in depth the first issue raised by Professor Farber. Using metaphors of the archeological and the nautical Professor Aleinikoff describes theories of originalism and their application to statutory interpretation. Concluding that there are nonoriginalist (or nonarcheological) elements implicit in these theories, he proceeds to consider how an explicitly nonoriginalist (or nautical) theory of interpretation might work He concludes by commenting on the application of such a theory to Patterson.

Front Matter, Michigan Law Review

Michigan Law Review

Front matter for Volume 87, Issue 1 of Michigan Law Review

The Future Of Liberal Legal Scholarship, Ronald K.L. Collins, David M. Skover

Michigan Law Review

Earl Warren is dead.

A generation of liberal legal scholars continues, nevertheless, to act as if the man and his Court preside over the present. While this romanticism is understandable, it exacts a high price in a world transformed.

The following commentary is a reconstructive criticism written from the perspective of two liberals concerned about the future of "legal liberalism." We present our views as a commentary to emphasize their preliminary character; they represent our current assessment of where liberals stand and where they might redirect their energies.

A Board Does Not A Bench Make: Denying Quasi-Judicial Immunity To Parole Board Members In Section 1983 Damages Actions, Julio A. Thompson

Michigan Law Review

This Note argues that neither the majority nor the minority approach is realistic. A thorough examination of the parole process and section 1983 litigation will show that a third approach is more appropriate - that parole board members are entitled only to qualified immunity for all actions taken within the scope of their official duties. Part I argues that parole board members should not enjoy absolute, quasi-judicial immunity because the parole board decisionmaking process is not "functionally comparable" to judicial decisionmaking. The differences in procedure, political accountability, training, and background lead to two very different systems. Part II shows that …

Police Liability For Creating The Need To Use Deadly Force In Self-Defense, Frank G. Zarb Jr.

Michigan Law Review

Police officers are granted wide discretion in the use of their firearms. Allowing officers some discretion is unavoidable, because they must often make difficult decisions in the face of rapidly changing circumstances. Officers, however, may abuse this discretion and cause injury or death unnecessarily. In the face of this danger of abuse by officers, suspects are, in many states, prohibited from defending themselves. While it is better to have a court decide when a police officer has abused his discretion than to allow the suspect to make that decision at the moment of arrest, it is not clear what standards …

Books Received, Michigan Law Review

Michigan Law Review

A List of Recent Books Received by Michigan Law Review

The Practice And Discourse Of Legal Scholarship, Edward L. Rubin

Michigan Law Review

This article begins with a discussion of the critique of methodology, a characterization of standard legal scholarship in terms of the critique, and an exploration of the critique's relevance for this form of scholarship. The next section discusses the modes of legal analysis represented by the critical legal studies, law and literature, and law as practical reason movements, which draw from many of the same philosophic sources as the critique. Despite their common origin, these movements do not rely on the critique of methodology itself, and do not focus on standard legal scholarship. The Article then proceeds to offer a …

Negligent Accounting And The Limits Of Instrumental Tort Reform, John A. Siliciano

Michigan Law Review

This article first explores the relationship between the accountant and the reliant third party, and recounts the mounting judicial hostility to the accountant's traditional privity defense. Next, the article critically examines the arguments that have supported traditional privity-based regimes. The third section turns to the reform courts and tests whether the rationales offered for reform justify abandoning the privity requirement.

Concluding that a convincing case for reform has yet to be made and - given the complexity of a properly executed instrumental analysis - may never be made, the article's final section reconsiders the utility of instrumental reasoning as a …

Reciprocal Altruism As A Felony: Antitrust And The Prisoner's Dilemma, John Shepard Wiley Jr.

Michigan Law Review

This essay is about the idea of cooperation in antitrust law. At the outset, ·I clarify my terminology. Biologists often refer to reciprocal altruism. "Reciprocal altruism" in the antitrust context has an odd semantic ring. There is nothing altruistic or self-sacrificing about the cooperation that antitrust rules outlaw: cartel price fixing. Firms do it strictly for the money. I prefer the term reciprocity to describe a firm's strategy to pursue behavior that will profit it only if competing firms engage in similar behavior. This usage can create confusion in the present context, however, because reciprocity is also an antitrust term …

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 86, Issue 8 of Michigan Law Review

Periodical Index, Michigan Law Review

Michigan Law Review

Subject Index of Articles, Comments, Notes, and Recent Developments Appearing in Leading Law Reviews

Index, Michigan Law Review

Michigan Law Review

Contents of Volume 86: Subject Index, Articles, Notes, Authors, Books Reviewed

The Promise Of State Takeover Statutes, Richard A. Booth

Michigan Law Review

The purpose of this article is, first, to describe the problems associated with two-tier tender offers and the closely related, and perhaps still more coercive, partial tender offer. Second, the article will address the natural question why such offers have not already been banned, suggesting a better view of what coercion means in the context of a tender offer. Third, the article will offer a management-oriented view of coercion, explaining the legitimate interests of managers (and other groups) in resisting takeovers, as well as how greenmail and poison pills, though subject to abuse, can be used quite properly to combat …

A Bibliography Of The Works Of William W. Bishop, Jr., Michigan Law Review

Michigan Law Review

A Bibliography of the Works of William W. Bishop, Jr.

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 86, Issue 7 of Michigan Law Review

Books Received, Michigan Law Review

Michigan Law Review

A List of Books Received by the Michigan Law Review

Periodical Index, Michigan Law Review

Michigan Law Review

Subject Index of Articles, Comments, Notes, and Recent Developments Appearing in Leading Law Reviews

Territoriality And The Perils Of Formalism, Mark P. Gergen

Michigan Law Review

Recently in this journal Donald Regan published a pair of essays on CTS Corp. v. Dynamics Corp. of America. Much of the first essay elaborates his theory that what the Supreme Court should be doing and what it is doing under the dormant commerce clause is checking state laws adopted with a substantial protectionist purpose. The rest of the first essay and all of the second essay develop a different check on state lawmaking power in interstate affairs: a rule that states may not regulate conduct beyond their borders. He calls this the extraterritoriality principle. Elsewhere I have questioned …

Clarifying A "Pattern" Of Confusion: A Multi-Factor Approach To Civil Rico's Pattern Requirement, Ethan M. Posner

Michigan Law Review

In an attempt to provide some needed definitional clarity and redirect civil RICO toward its intended focus, this Note argues that the federal judiciary should interpret the pattern requirement narrowly, focusing on four basic factors that best demonstrate a prolonged, continuing example of criminal activity. By emphasizing (1) the presence of multiple victims, (2) the duration of the RICO defendant's criminal activity, (3) the number of illicit commercial transactions, and (4) the existence of independent criminal decisions, courts could consistently limit civil RICO to the most pernicious offenders. Part I of this Note will examine judicial interpretations of RICO and …

Omnibus Taxpayers' Bill Of Rights Act: Taxpayers' Remedy Or Political Placebo?, Creighton R. Meland Jr.

Michigan Law Review

This Note examines whether the bill, as drafted, addresses the problems which spawned it. It anticipates the bill's effects on existing law and identifies areas where the bill would likely create new problems in the administration of the federal tax laws. It further identifies areas where the bill would solve problems. This Note concludes that (1) the bill's audit provisions will not significantly expand taxpayer rights, and may in fact disrupt the audit process; (2) except for safeguards for installment agreements, the bill's attempts to reform IRS collections procedures will not achieve its intended objectives; and (3) the bill's damages …

The Apologetics Of Suppression: The Regulation Of Pornography As Act And Idea, Steven G. Gey

Michigan Law Review

The first three parts of this article discuss in detail the relationship between the Supreme Court's obscenity rulings and the academic theories that have been offered to bolster the conclusions reached by the Court in this area. Part IV of the article considers a contrary theory of free expression that requires constitutional protection for the dissemination and possession of pornography. In this section I argue that the present efforts to ban pornography are directly linked to a tolerance model of free expression. The tolerance model, which is usually contrasted with an analytical approach characterized by Holmesian skepticism, necessarily relies upon …

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 86, Issue 6 of Michigan Law Review

Law, Science, And History: Reflections Upon In The Best Interests Of The Child, Peggy C. Davis

Michigan Law Review

A Review of In the Best Interests of the Child by Joseph Goldstein, Anna Freud, Albert J. Solnit, and Sonja Goldstein