Digital Commons Network^™

Reforming Products Liability, Suzanne M. Lambert

Michigan Law Review

A Review of Reforming Products Liability by W. Kip Viscusi

An Academic Visit To The Modern Law Firm: Considering A Theory Of Promotion-Driven Growth, Frederick W. Lambert

Michigan Law Review

A Review of Tournament of Lawyers: The Transformation of the Big Law Firm by Marc Galanter and Thomas Palay

Some Lesson About The Law From Self-Referential Problems In Mathematics, John M. Rogers, Robert E. Molzon

Michigan Law Review

We first describe briefly mathematician Kurt Gödel's brilliant Incompleteness Theorem of 1931, and explore some of its general implications. We then attempt to draw a parallel between axiomatic systems of number theory (or of logic in general) and systems of law, and defend the analogy against anticipated objections. Finally, we reach two types of conclusions. First, failure to distinguish between language and metalanguage in mathematical self-referential problems leads to fallacies that are highly analogous to certain legal fallacies. Second, and perhaps more significantly, Gödel's theorem strongly suggests that it is impossible to create a legal system that is "complete" in …

Legislative Inputs And Gender-Based Discrimination In The Burger Court, Earl M. Maltz

Michigan Law Review

In An Interpretive History of Modem Equal Protection, Michael Klarman poses a powerful challenge to the conventional wisdom regarding the structure of Burger Court jurisprudence. Most commentators have concluded that during the Burger era the Court lacked a coherent vision of constitutional law, and was given to a "rootless" activism or a "pragmatic" approach to constitutional analysis. Klarman argues that, at least in the area of equal protection analysis, the Burger Court's approach did reflect a unifying theme, which he describes as a focus on "legislative inputs." According to Klarman, this approach "directs judicial review towards purging legislative decision-making of …

An Economic And Political Look At Federalism In Taxation, Daniel Shaviro

Michigan Law Review

Part I of this article examines the reasons for preferring locationally neutral taxes and explains the basic tension between locational neutrality and state and local autonomy in taxation. Part II examines the federal judicial check on state and local taxation, which often relies on a principle barring discrimination against outsiders or interstate commerce. Part III explores the need for a broad federal judicial check by examining state and local governments' reasons for imposing (or avoiding) locationally distortive taxes, the countervailing benefits of allowing such governments broad autonomy in taxation, and Congress' willingness to strike down locationally distortive taxes under its …

Legal Responses To Commercial Transactions Employing Novel Communications Media, John Robinson Thomas

Michigan Law Review

This Note analyzes contemporary business practices and specific characteristics of the new media, and suggests a judicial response consonant with courts' approaches to the earlier technologies of telegraphy and teletype. Part I examines the effect of the Statute of Frauds and rules of authentication upon contracts formed using these media. It concludes that documents produced by telefacsimile and electronic mail systems should be considered ordinary writings. Part II considers the Best Evidence Rule and argues that telefacsimiles and electronic mail transmissions should be considered the best evidence of the contract they memorialize. Part III evaluates doctrines of liability allocation in …

Periodical Index, Michigan Law Review

Michigan Law Review

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

Recent Books, Michigan Law Review

Michigan Law Review

A List of Books Received by the Michigan Law Review

Section 1983 And Implied Rights Of Action: Rights, Remedies, And Realism, Michael A. Mazzuchi

Michigan Law Review

This Note criticizes the Court's current reconciliation of the implied right of action and section 1983 inquiries, and argues that the availability of lawsuits under section 1983 should be the same as under an implied right of action test. Part I, by offering a working definition of rights, suggests an approach to identifying statutorily created rights. Part II discusses the evolution of the Court's implied right of action ' jurisprudence, and explores several explanations for the Court's hesitancy to create implied rights of action. Part III examines the influence of the Court's implied right of action test on its jurisprudence …

Balancing Commerce, History, And Geography: Defining The Navigable Waters Of The United States, John F. Baughman

Michigan Law Review

This Note develops a simple set of principles useful for defining navigable waters in a contemporary context. Part I considers why federal admiralty jurisdiction exists, and traces the evolution of the phrase navigable waters as a term of art. Part II analyzes the conflicting contemporary definitions of navigable waters. Part III resolves the conflict by proposing guidelines that address the major concerns of all competing definitions. The system advocated is consistent with the goals of admiralty, constitutionally sound, easy to apply, and focuses attention on the nexus test to resolve the issue of whether particular cases "belong" in admiralty.

Law, Politics, And The Claims Of Community, Stephen A. Gardbaum

Michigan Law Review

This article aims to provide this needed analysis and then to show how it illuminates many of the exchanges taking place within the legal academy. It argues that the first step toward understanding "the claims of community" - whether in law or moral and political theory - is to recognize that, as the phrase itself suggests, more than one claim is involved. Merely to observe that the various proponents of community have as yet failed to establish a common and coherent communitarian position, though certainly true, is to miss the more critical insight: they are not engaged in such an …

The Failed Discourse Of State Constitutionalism, James A. Gardner

Michigan Law Review

In this article, I approach these questions in two steps. First, I examine the status of state constitutional law as it is practiced today. I conclude that, contrary to the claims of New Federalism, state constitutional law today is a vast wasteland of confusing, conflicting, and essentially unintelligible pronouncements. I argue that the fundamental defect responsible for this state of affairs is the failure of state courts to develop a coherent discourse of state constitutional law that is, a language in which it is possible for participants in the legal system to make intelligible claims about the meaning of state …

Fighting Exclusion From Televised Presidential Debates: Minor-Party Candidates' Standing To Challenge Sponsoring Organizations' Tax-Exempt Status, Gregory P. Magarian

Michigan Law Review

This Note argues that courts should recognize minor-party presidential candidates' standing to challenge the section 50l(c)(3) tax-exempt status of organizations sponsoring televised debates that exclude minor-party candidates. Part I situates the issue within the context of the Supreme Court's standing jurisprudence and concludes that the validity of a third-party tax-status challenge by an aggrieved minor-party presidential candidate remains an open question. Part II analyzes the Second and District of Columbia Circuits' decisions and concludes that the Second Circuit's approach properly interprets the Supreme Court's standing doctrine and correctly resolves the particular arguments which both courts consider. Part III first demonstrates …

Periodical Index, Michigan Law Review

Michigan Law Review

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

Books Received, Michigan Law Review

Michigan Law Review

A List of Books received by Michigan Law Review

Looking At Our Language: Glendon On Rights, James Boyd White

Michigan Law Review

A Review of Rights Talk: The Impoverishment of Political Discourse by Mary Ann Glendon

Less Law Than Meets The Eye, David D. Friedman

Michigan Law Review

A Review of Order Without Law: How Neighbors Settle Disputes by Robert C. Ellickson

Guilt: Henry Friendly Meets The Maharal Of Prague, Irene Merker Rosenberg, Yale L. Rosenberg

Michigan Law Review

So while the overnight deliberation rule is at least partially bound up with the question of reliability and relates to the judicial process itself, the broader and more fundamental issue raised by this law is whether we should free the guilty to preserve a value that we deem necessary to proper working of the criminal justice process, regardless of the culpability of individual defendants. To this Judge Friendly's answer is generally no, 113 and the MaHaRaL's is yes.

Personal Jurisdiction Over Aliens In Patent Infringement Actions: A Uniform Approach Toward The Situs Of The Tort, David Wille

Michigan Law Review

This Note examines current approaches to the question of personal jurisdiction over alien patent infringers. Part I describes personal jurisdiction requirements in the context of patent infringement suits against aliens. The leading case addressing these requirements has been interpreted differently by several courts, thus resulting in conflicting outcomes. Part II explains the current controversy over the locus of the tort of patent infringement. The three different modes of reasoning currently used by courts to determine the locus of the tort would allow immunity from suit for the alien in at least two hypothetical cases. This Part concludes that in order …

Periodical Index, Michigan Law Review

Michigan Law Review

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

Misuse Of The Antitrust Laws: The Competitor Plaintiff, Edward A. Snyder, Thomas E. Kauper

Michigan Law Review

In this article we ask (1) under what circumstances are competitor suits meritorious, and (2) do existing rules, such as those requiring proof of market power or other so-called filters and the requirement that plaintiffs suffer "antitrust injury," afford a reasonable prospect of eliminating anticompetitive misuses of the remedy by competitor plaintiffs? We evaluate a sample of seventy-four cases in which plaintiffs sued their rivals to learn how competitor plaintiffs use the private antitrust remedy. And because many of these cases allege anticompetitive exclusionary practices, we consider how recent theories of exclusionary practices may be used to support competitor claims. …

The Breath Of The Unfee'd Lawyer: Statutory Fee Limitations And Ineffective Assistance Of Counsel In Capital Litigation, Albert L. Vreeland Ii

Michigan Law Review

This Note argues that fee limitations deprive indigent defendants of their right to effective assistance of counsel. Part I of this Note reviews state court decisions that address Sixth Amendment challenges to fee limitations, yet fail to address the broader concerns about the appointed counsel system. Part II considers the inherent disincentives and burdens fee limitations impose on attorneys and suggests that the limits threaten the indigent accused's right to effective assistance of counsel. A comparison of the fee limitations and the time required to prepare and try a capital case reveals the gross inadequacy of statutory fee provisions. In …

Remedying Environmental Racism, Rachel D. Godsil

Michigan Law Review

This Note addresses the equity issues that arise in the placement of commercial hazardous waste facilities. Currently, minorities are shouldering an unequal share of the burdens of hazardous waste16 while the benefits of production that results in hazardous waste are dispersed throughout society. Studies demonstrate that poor whites are overburdened as well. While inequitable distribution of wastesites along class lines is troubling and deserving of attention, this Note focuses specifically on the burdens facing racial minorities.

This Note contends that all races should share equitably the burdens and risks of hazardous waste facilities. Part I documents the disproportionate burden of …

Periodical Index, Michigan Law Review

Michigan Law Review

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

An Interpretive History Of Modern Equal Protection, Michael Klarman

Michigan Law Review

My enterprise here is to write a limited history of modem equal protection - one that will facilitate understanding of the important conceptual shifts that have occurred over time. By "modem" I mean the period following the switch-in-time in 1937 that signaled the demise of the Lochner era. By "limited" I mean an account that falls substantially short of a full-scale history of equal protection, which would, for example, necessarily encompass a good deal of political and social history. My aim here, rather, is to tell a story about the evolution of equal protection as a legal concept; I shall, …

Read My Lips: Examining The Legal Implications Of Knowingly False Campaign Promises, Stephen D. Sencer

Michigan Law Review

This Note does not argue that campaign speech should always be held to the same standards of accuracy to which other forms of speech are held. Campaign speech is unique in form, with its own idioms and rhetorical devices, and serves unique purposes.

Part I discusses the ways false campaign promises damage the political process and suggests that attaching legal liability to knowingly false campaign promises could serve important public policy interests. Part II applies common law contract doctrine to a hypothetical broken campaign promise, finding all the elements of a breach of contract claim. Part II concludes, however, that …

"The Eternal Triangles Of The Law": Toward A Theory Of Priorities In Conflicts Involving Remote Parties, Menachem Mautner

Michigan Law Review

Anglo-American priority law is premised on a doctrinal-derivational approach under which "triangle conflicts" are supposed to be resolved on the basis of the legal rights that the intermediate, wrongdoing party could have transferred from the first-in-time competing party to the second-in-time competing party. In Part I, I outline the major propositions of this approach. I argue that in focusing on the intermediate party, the doctrinal-derivational approach fails to address the primary consideration relevant to resolving triangle conflicts, namely the conduct of the two remote claimants involved in the conflict. In Part II, I focus on the two remote parties involved …

Rolling Down The Curtain On "Roll-Ups": The Case For Federal Legislation To Protect Limited Partners, Kenneth R. Hillier

Michigan Law Review

This Note examines roll-ups and the lack of alternatives available to reluctant limited partners. Part I focuses on existing judicial remedies for limited partners, such as injunctions and actions for damages, and explains why these courses of action provide inadequate protection. This Part then reviews recent attempts at statutory protection and points out the shortcomings of these remedies. Part II examines safeguards afforded analogously situated corporate shareholders and sets forth arguments why limited partners should receive similar protection. After demonstrating the need for legislation, Part III suggests a workable structure for this statutory protection. Then, the Note discusses the relative …

Limitations Of Sovereign Immunity Under The Clean Water Act: Empowering States To Confront Federal Polluters, Corinne Beckwith Yates

Michigan Law Review

This Note considers whether civil penalties that states impose on federal agencies for violations of NPDES permits arise under federal law and thus are covered by the Clean Water Act's waiver of sovereign immunity - an issue the Supreme Court is scheduled to address during the 1991 term. Part I outlines the history of the Clean Water Act, discussing Supreme Court decisions and statutory amendments that affect the sovereign immunity provision. Part II explains the mechanics of the NPDES state permit process and examines, through analysis of statutory provisions, the degree of control retained by the EPA over individual states …

Periodical Index, Michigan Law Review

Michigan Law Review

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