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Articles 1201 - 1230 of 8432
Full-Text Articles in Entire DC Network
Judicial Abuse Of "Process": Examining The Applicability Of Section 2f1.1(B)(4)(B) Of The Federal Sentencing Guidelines To Bankruptcy Fraud, Hideaki Sano
Michigan Law Review
The proliferation of bankruptcy filings over the past decade has coincided with a comparable increase in the incidence of bankruptcy fraud. In response to this growing problem, the United States Department of Justice has placed greater emphasis on federal prosecution of bankruptcy fraud. As a result, federal judges are increasingly applying the Federal Sentencing Guidelines ("Guidelines") to bankruptcy fraud and have begun to implement uniform standards for sentencing defendants convicted of this crime. Congress enacted the Guidelines pursuant to the Sentencing Reform Act of 1984. In instituting the Guidelines, Congress sought honesty, reasonable uniformity, and proportionality in sentencing. Congress attempted …
Judicial Review & The Policy Of Federal Abstention: A Juvenile's Right To Ensure The Existence Of A "Substantial Federal Interest", Matthew Drexler
Judicial Review & The Policy Of Federal Abstention: A Juvenile's Right To Ensure The Existence Of A "Substantial Federal Interest", Matthew Drexler
Michigan Law Review
The problem of juvenile delinquency must be dealt with in an effective and meaningful manner if we are to reduce the ever increasing levels of crime and improve the quality of life in America. With these words, the United States Senate opened its report in support of the first major federal juvenile delinquency statute in almost forty years. The goal of the statute and of federal involvement in juvenile delinquency proceedings was to give the highest attention to preventing juvenile crime and to minimizing the involvement of juveniles in the juvenile and criminal justice systems. Until 1974, the federal government …
Antitrust Beyond Competition: Market Failures, Total Welfare, And The Challenge Of Intramarket Second-Best Tradeoffs, Peter J. Hammer
Antitrust Beyond Competition: Market Failures, Total Welfare, And The Challenge Of Intramarket Second-Best Tradeoffs, Peter J. Hammer
Michigan Law Review
Should antitrust law ever sanction the accumulation of market power or permit other restraints of trade if such conduct would increase social welfare? This is the challenge raised by intramarket second- best tradeoffs. The lesson of second-best analysis is that one market failure can sometimes counteract the effects of another market failure. In the presence of multiple market failures, it is conceivable that mergers or other restraints traditionally viewed as anticompetitive may be welfare-enhancing. A social planner, given the mandate of maximizing total welfare, would permit such restraints. Could an antitrust judge come to the same result under a defensible …
Publish Or Perish, Gideon Parchomovsky
Publish Or Perish, Gideon Parchomovsky
Michigan Law Review
The race model has been the darling of patent economists and game theorists. This model assumes that the winner, namely the first to invent, takes the patent grant with the market dominance that comes with it, whereas the second comer, in the best tradition of sports contests, obligingly accepts her loss and quietly vanishes from the scene. While the sports analogy has provided a useful framework for understanding the economics of invention, it has obfuscated an important aspect of the inventive process: the possibility of strategic publication of research findings in order to prevent the issuance of a patent to …
The Price Of Law: How The Market For Lawyers Distorts The Justice System, Gillian K. Hadfield
The Price Of Law: How The Market For Lawyers Distorts The Justice System, Gillian K. Hadfield
Michigan Law Review
Bill Clinton's legal bills in connection with the Lewinsky scandal topped $10 million; the bill for Ken Starr's investigation of the President exceeded $50 million. The cost to the eight families portrayed in the bestseller A Civil Action for their tort suit against a manufacturing company accused of dumping hazardous chemicals into the water supply was $4.8 million (paid from a settlement of about $8 million); the cost for the defense exceeded $7 million. Lawyers who represented the three states in the nationwide suit by state attorneys general against tobacco companies to recoup smoking-related health care costs were awarded $8.2 …
Exploring The Battle Of The Forms In Action, Daniel Keating
Exploring The Battle Of The Forms In Action, Daniel Keating
Michigan Law Review
Like many commercial law professors, I have long been fascinated with the workings of the Uniform Commercial Code's section 2-207, the "battle of the forms" provision. There are two features of that section, one internal and one external, that make it such an intriguing statute to ponder. The internal source of fascination with section 2-207 is that it provides a classic model for teaching students about the intricacies of statutory construction. There is probably no other provision within U.C.C. Article 2 that provides more confusion to law students and more challenge to the instructor than does section 2-207. There is …
An Upbeat View Of English Justice In The Fourteenth Century, Charles Donahue Jr.
An Upbeat View Of English Justice In The Fourteenth Century, Charles Donahue Jr.
Michigan Law Review
The late Middle Ages are history's stepchild. Traditionally, medievalists are not interested in them. The earlier centuries, culminating in the twelfth and thirteenth, are much more typically "medieval." Traditionally too, early modern historians are interested in the late Middle Ages only for what they see as origins of the Reformation, or for decay of feudal structures out of which the national monarchies of the sixteenth century arose, or for Italian humanism, which they call "the Renaissance." Legal historians, on the other hand, are stuck with the late Middle Ages. With a few exceptions (including, most notably, the great run of …
Dissent, Free Speech, And The Continuing Search For The "Central Meaning" Of The First Amendment, Ronald J. Krotoszynski Jr.
Dissent, Free Speech, And The Continuing Search For The "Central Meaning" Of The First Amendment, Ronald J. Krotoszynski Jr.
Michigan Law Review
Since the Warren Court's expansive construction of the Free Speech Clause of the First Amendment, there has been no shortage of legal scholarship aimed at justifying the remarkably broad protections afforded the freedom of speech under landmark cases such as Brandenburg v. Ohio, New York Times Co. v. Sullivan, and Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. At the same time, in recent years, a growing chorus of free speech skeptics have made their voices heard.5 These legal scholars have questioned why a commitment to freedom of expression should displace other (constitutional) values such as equality, …
Building Community In The Twenty-First Century: A Post-Integrationist Vision For The American Metropolis, Sheryll D. Cashin
Building Community In The Twenty-First Century: A Post-Integrationist Vision For The American Metropolis, Sheryll D. Cashin
Michigan Law Review
[T]he problem of the Twentieth Century is the problem of the color-line. When W.E.B. DuBois wrote this prophetic statement at the dawn of the twentieth century, the American metropolis did not yet exist. Perhaps DuBois could not have predicted the sprawled, socioeconomically fragmented landscape that is so familiar to the majority of Americans who now live and work in metropolitan regions. But his prediction of a "color line" that would sear our consciousness and present the chief social struggle for the new century proved all too correct. As we contemplate the twenty-first century, Gerald Frug's book, City Making, makes clear …
The Importance Of Being Biased, Anthony M. Dillof
The Importance Of Being Biased, Anthony M. Dillof
Michigan Law Review
The war against bias crimes is far from finished. In contrast, the battle over bias-crime laws is largely over. Bias-crime laws, as commonly formulated, increase the penalties for crimes motivated by bias. The Supreme Court has held that such laws do not violate the First Amendment. Virtually every state has enacted some sort of biascrime law. Even the federal government, which may consider itself without power to enact a general bias-crime law, has made bias a sentence-aggravating factor for the range of federal criminal offenses. Bias-crime laws thus are an established feature of the legal landscape. Against this background, Frederick …
Ending Male Privilege: Beyond The Reasonable Woman, Stephanie M. Wildman
Ending Male Privilege: Beyond The Reasonable Woman, Stephanie M. Wildman
Michigan Law Review
A Law of Her Own: The Reasonable Woman as a Measure of Man by Caroline A. Forell and Donna M. Matthews aspires to provide a solution for an enigmatic jurisprudential problem - the systemic failure of the legal order to recognize and to redress the injuries that women experience. Feminist scholars have agreed that, for women, the legal separation of public and private spheres often insulates from legal review behavior that harms women. But even in the so-called public sphere, women suffer harms that remain invisible and unnamed. The authors identify four legal arenas in which the "spectrum of violence …
Enforcing Contracts In Dysfunctional Legal Systems: The Close Relationship Between Public And Private Orders: A Repy To Mcmillan And Woodruff, Ariel Porat
Michigan Law Review
When the public order is dysfunctional, a private order for enforcing contracts will develop. In the absence of courts, transactors will seek ways to secure performance without recourse to legal sanctions. Social and economic sanctions imposed on the party in breach, whether by the aggrieved party or by the economic and social community in which both parties operate, replace legal sanctions. These sanctions sometimes arise within a private order functioning spontaneously, as when ongoing contractual relationships prevail between the parties, or when a close-knit economic or social community exists in which information concerning breaches of contract flows freely. In other …
The Role Of Letters Of Credit In Payment Transactions, Ronald J. Mann
The Role Of Letters Of Credit In Payment Transactions, Ronald J. Mann
Michigan Law Review
Common justifications for the use of the letter of credit fail to explain its widespread use. The classic explanation claims that the letter of credit provides an effective assurance of payment from a financially responsible third party. In that story, the seller - a Taiwanese clothing manufacturer, for example - fears that the overseas buyer - Wal-Mart - will refuse to pay once the goods have been shipped. Cross-border transactions magnify the concern, because the difficulties of litigating in a distant forum will hinder the manufacturer's efforts to force the distant buyer to pay. The manufacturer-seller solves that problem by …
Letters Of Credit As Signals: Comments On Ronald Mann's 'The Role Of Letters Of Credit In Payment Transactions', Clayton P. Gillette
Letters Of Credit As Signals: Comments On Ronald Mann's 'The Role Of Letters Of Credit In Payment Transactions', Clayton P. Gillette
Michigan Law Review
Why would buyers and sellers transact with each other through a third party that charges a significant fee for its services and that typically is authorized to make payment notwithstanding noncompliance with the very prerequisites that it has been engaged to monitor? This is the puzzle that Ronald Mann's provocative and nuanced article purports to explain. Under the traditional story about the esoteric world of letters of credit, these transactions allow distant buyers and sellers to circumvent obstacles that would otherwise frustrate long-distance transactions. The traditional story explains that these credits induce buyers to approve payment prior to receiving conforming …
The Limits Of Empiricism: What Facts Tell Us: Comments On Daniel Keating's 'Exploring The Battle Of The Forms In Action', Dennis Patterson
The Limits Of Empiricism: What Facts Tell Us: Comments On Daniel Keating's 'Exploring The Battle Of The Forms In Action', Dennis Patterson
Michigan Law Review
The conventional legal academic wisdom about empiricism is that empirical information is by-and-large a good thing, that we need more of it, and that empirical analysis is preferable to many scholarly alternatives now on offer in the law review literature. I do not dispute the proposition that, all things considered, empirical information is a good thing. What I question is the notion that empirical information necessarily leads to knowledge. Put differently, it is one thing to marshal the facts, and another to know what to make of the facts. I shall raise these points both in a general way and …
On The Use Of Practitioner Surveys In Commercial Law Research: Comments On Daniel Keating's 'Exploring The Battle Of The Forms In Action', Avery Wiener Katz
On The Use Of Practitioner Surveys In Commercial Law Research: Comments On Daniel Keating's 'Exploring The Battle Of The Forms In Action', Avery Wiener Katz
Michigan Law Review
As Daniel Keating's principal article attests, the literature on U.C.C. section 2-207 and the "battle of the forms" is both vast and intricate. 1 That fact, together with the distinguished array of commentators assembled here, makes it unlikely that I will be able to say anything substantially original on that subject. Accordingly, in the spirit of this overall symposium, I will focus the bulk of my remarks not on the substantive issues raised by Keating's article, but on his methodology. In particular, I will suggest that Keating's empirical method - the free-form, oral interview conducted personally by the principal researcher …
Life On Campus Really Ain't So Bad, Avern Cohn
Life On Campus Really Ain't So Bad, Avern Cohn
Michigan Law Review
The Shadow University is a highly tendentious account of Alan Charles Kors and Harvey A. Silverglate's view of academic and student life in America's colleges and universities over the last twenty years. Kors and Silverglate see these colleges and universities turning from promoting personal and academic freedom to suppressing open expression and denying basic liberties to students and faculty alike. To make their point, they have scoured college and university campuses from coast to coast to find incidents involving student speech code violations, as well as student and faculty discipline and misbehavior proceedings. They also examine multicultural and diversity programs …
History Unbecoming, Becoming History, Toni M. Massaro
History Unbecoming, Becoming History, Toni M. Massaro
Michigan Law Review
The last few decades have seen a torrent of legal commentary supporting gay equality and attacking the punishment, failure to protect, and refusal to affirm gay conduct and identity. William Eskridge, a prominent voice in this fin-de-siecle literature, now draws together and expands on his previous work in Gaylaw: Challenging the Apartheid of the Closet. Though far more successful in shaping the uses of the past than in showing the way to the future, the book instructs even where it fails. It augurs a century that could well witness the end of official discrimination against gay individuals, and the relegation …
Word Games, War Games, Diane H. Mazur
Word Games, War Games, Diane H. Mazur
Michigan Law Review
In 1993, the country's interest in the issue of military service by gay citizens escalated to a level that can only be described as a national obsession, and "obsession" is by no means too strong a term. The subject of gay servicemembers was debated within all three branches of government, all ranks of the military, and all walks of civilian life.1 The issue of military service by gay citizens became a line in the sand, a cultural standoff on issues as sensitive and disparate as sexuality, patriotism, civil rights, and civic obligation. Janet Halley2 returns to that time of obsession …
Recovering The Original Fourth Amendment, Thomas Y. Davies
Recovering The Original Fourth Amendment, Thomas Y. Davies
Michigan Law Review
Claims regarding the original or intended meaning of constitutional texts are commonplace in constitutional argument and analysis. All such claims are subject to an implicit validity criterion - only historically authentic assertions should matter. The rub is that the original meaning commonly attributed to a constitutional text may not be authentic. The historical Fourth Amendment is a case in point. If American judges, lawyers, or law teachers were asked what the Framers intended when they adopted the Fourth Amendment, they would likely answer that the Framers intended that all searches and seizures conducted by government officers must be reasonable given …
Recent Books, Michigan Law Review
Recent Books, Michigan Law Review
Michigan Law Review
A list of books recenlty received by Michigan Law Review.
Decisionmaking About General Damages: A Comparison Of Jurors, Judges, And Lawyers, Roselle L. Wissler, Allen J. Hart, Michael J. Saks
Decisionmaking About General Damages: A Comparison Of Jurors, Judges, And Lawyers, Roselle L. Wissler, Allen J. Hart, Michael J. Saks
Michigan Law Review
Placing important decisions in the hands of the civil jury - made up of ordinary citizens untrained in the law - has long been criticized. For example, Erwin Griswold, law school dean and Solicitor General of the United States, asked, "Why should anyone think that 12 persons brought in from the street, selected in various ways, for their lack of general ability, should have any special capacity for deciding controversies between persons?" And Jerome Frank, law professor, aggressive legal realist, and judge, argued that juries are uncertain, capricious, and unpredictable, ignorant and prejudiced, poor factfinders, gullible, and incapable of following …
The Offense: Interpreting The Indictment Requirement In 21 U.S.C. § 851, Christopher Serkin
The Offense: Interpreting The Indictment Requirement In 21 U.S.C. § 851, Christopher Serkin
Michigan Law Review
Congress enacted the Comprehensive Drug Abuse Prevention and Control Act of 1970 ("the Act") to unify and rationalize its treatment of drug offenses. The Act was an enormous piece of legislation, requiring months of congressional hearings before it was passed. Today, the Act encompasses over 150 sections of title 21 of the U.S. Code and regulates behavior ranging from manufacturing and mislabeling to prescribing controlled substances. Like any piece of complex legislation, the Act has spawned its share of litigation. One controversy has defied satisfactory resolution: the meaning of the innocuous phrase, "the offense," in section 851(a)(2). The statute's structure …
Zoning Speech On The Internet: A Legal And Technical Model, Lawrence Lessig, Paul Resnick
Zoning Speech On The Internet: A Legal And Technical Model, Lawrence Lessig, Paul Resnick
Michigan Law Review
Speech, it is said, divides into three sorts - (1) speech that everyone has a right to (political speech, speech about public affairs); (2) speech that no one has a right to (obscene speech, child porn); and (3) speech that some have a right to but others do not (in the United States, Ginsberg speech, or speech that is "harmful to minors," to which adults have a right but kids do not). Speech-protective regimes, on this view, are those where category (1) speech predominates; speech-repressive regimes are those where categories (2) and (3) prevail. This divide has meaning for speech …
Is The Clean Air Act Unconstitutional?, Cass R. Sunstein
Is The Clean Air Act Unconstitutional?, Cass R. Sunstein
Michigan Law Review
This Article deals with two linked questions. The first involves the future of the Clean Air Act. The particular concern is how the Environmental Protection Agency ("EPA") might be encouraged, with help from reviewing courts, to issue better ambient air quality standards, and in the process to shift from some of the anachronisms of 1970s environmentalism to a more fruitful approach to environmental protection. The second question involves the role of the nondelegation doctrine in American public law, a doctrine that shows unmistakable signs of revival. I will suggest that improved performance by EPA and agencies in general, operating in …
Staking Out The Border Between Comandeering And Conditional Preemption: Is The Driver's Privacy Protection Act Constitutional Under The Tenth Amendment?, Rachel F. Preiser
Staking Out The Border Between Comandeering And Conditional Preemption: Is The Driver's Privacy Protection Act Constitutional Under The Tenth Amendment?, Rachel F. Preiser
Michigan Law Review
Congress passed the Driver's Privacy Protection Act of 1994 ("DPPA") in response to state sales of personal information contained in motor vehicle records to individuals and to direct marketing companies who use it to identify select groups of prospective customers for particular products. Thirty-four states sell their department of motor vehicles ("DMV") records to individual citizens and to direct marketers, essentially allowing their unregulated distribution to any party seeking them. This practice of selling and distributing personal information has serious implications for the privacy and safety of individual citizens. In considering the DPP A, Congress dwelt in particular on the …
Front Matter, Michigan Law Review
Front Matter, Michigan Law Review
Michigan Law Review
Front matter for Volume 98, Issue 2 of Michigan Law Review.
Recent Books, Michigan Law Review
Recent Books, Michigan Law Review
Michigan Law Review
A list of books recenlty received by Michigan Law Review.
Winning The Battle, Losing The War?: Judicial Scrutiny Of Prisoners' Statutory Claims Under The Americans With Disabilities Act, Christopher J. Burke
Winning The Battle, Losing The War?: Judicial Scrutiny Of Prisoners' Statutory Claims Under The Americans With Disabilities Act, Christopher J. Burke
Michigan Law Review
When he was convicted in 1994 of drunken driving, escape, and resisting arrest, Ronald Yeskey was sentenced to serve 18 to 36 months in a Pennsylvania prison. In addition, the judge recommended that Yeskey be sent to a motivational boot camp operated by the state. Upon successful completion of the boot camp program, Yeskey's sentence would then be reduced to six months. Although he eagerly wanted to participate, the prison refused him entrance into the boot camp program because of his history of hypertension, and also denied him admission into an alternative program for the disabled. As a result, he …
The Influence Of Race In School Finance Reform, James E. Ryan
The Influence Of Race In School Finance Reform, James E. Ryan
Michigan Law Review
It would be an exaggeration to say that school finance reform is all about race, but largely in the same way that it is an exaggeration to say that welfare reform is all about race. Like welfare reform, the controversy generated by school finance litigation and reform has, on the surface, little to do with race. Battles over school funding, which have been waged in nearly forty state supreme courts and at least as many state legislatures, instead appear to be over such issues as the redistribution of resources, retaining local control over education, and the efficacy of increased expenditures. …