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Michigan Law Review

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Who Cares About Courts? Creating A Constitutency For Judicial Independence In Africa, Mary L. Dudziak May 2003

Who Cares About Courts? Creating A Constitutency For Judicial Independence In Africa, Mary L. Dudziak

Michigan Law Review

While American scholars and judges generally assume that it is beneficial to insulate courts from politics, Jennifer Widner offers a contrasting perspective from another region of the world. In Building the Rule of Law: Francis Nyalali and the Road to Judicial Independence in Africa, Widner examines the role of courts and judicial review in democratization in Africa. She focuses on the role of one judge, a man who would see himself as embodying a role in Tanzania similar to that of Chief Justice John Marshall in the United States. Francis Nyalali, Chief Justice of the High Court of Tanzania, worked …

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Individual Vulnerability And Cultural Transformation, Eric J. Mitnick May 2003

Individual Vulnerability And Cultural Transformation, Eric J. Mitnick

Michigan Law Review

Perhaps the most pressing problem in multicultural theory and practice today is the problem of individual vulnerability. Most interested theorists and multicultural states now accept the basic premise that some degree of state accommodation of minority cultural practice is required as a matter of justice. Debate then shifts to the best justifications for, and the appropriate extent of, such groupdifferentiated policy. Too often lost amid these discussions is the plight of vulnerable members of accommodated cultural groups: individuals subject to repression within their cultural groups, but who lose a critical aspect of their identities upon exit; individuals who would retain …

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More Process Than Peace: Legitimacy, Compliance, And The Oslo Accords, Orde F. Kittrie May 2003

More Process Than Peace: Legitimacy, Compliance, And The Oslo Accords, Orde F. Kittrie

Michigan Law Review

The 21st century has inherited a number of bloody and long-unresolved intranational conflicts, including those in Kashmir, Northern Ireland, Burundi, Cyprus, Colombia, the Congo, the Philippines, and the Holy Land. Negotiated efforts to resolve these conflicts through legally binding peace settlements have been attempted from time to time, but without lasting success. Numerous negotiators' memoirs, political science books, and historians' tomes have been devoted to the subject of peace negotiations. But relatively little has been written about peace negotiations from a legal perspective. In particular, the legal literature contains virtually no discussion of what in the contents of a bilateral …

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The New Leviathan, Dennis Patterson May 2003

The New Leviathan, Dennis Patterson

Michigan Law Review

Reputation in any field is an elusive phenomenon: part notoriety, part honor, part fame, part critical assessment. Even in legal scholarship it has an uneven, unpredictable quality. It is hard to imagine a book by a law professor that has had more immediate impact on world leaders than Philip Bobbitt's The Shield of Achilles. Much of the national-security strategy devised by the U.S. administration after the September 11 attacks expresses ideas Bobbitt conceived long before; and from a different point on the political spectrum is the Archbishop of Canterbury, whose televised nationwide address in January explicitly took the book as …

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Attitudes About Attitudes, Michael J. Gerhardt May 2003

Attitudes About Attitudes, Michael J. Gerhardt

Michigan Law Review

Attitudes about the Supreme Court differ sharply, particularly among academics. Law professors believe the Constitution and other laws constrain the Court, while most political scientists do not. These different perspectives on justices' fidelity to the law ensure that legal scholars and political scientists have little to say about the Court that is of interest to each other. As a result, it should not be surprising that most legal scholars are unfamiliar with Harold Spaeth and Jeffrey Segal, the two political scientists most closely associated with the view that the law does not constrain the justices from voting their policy preferences. …

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What (If Anything) Can Economics Say About Equity?, Daniel A. Farber May 2003

What (If Anything) Can Economics Say About Equity?, Daniel A. Farber

Michigan Law Review

Does economics have anything to teach us about the meaning of fairness? The leading practitioners of law and economics disagree. Judge Richard Posner argues that economics is largely irrelevant to distributive issues. Posner maintains that the most useful economic measure of social welfare is cost-benefit analysis (which he calls wealth maximization). But, he observes, this economic measure "ratifies and perfects an essentially arbitrary distribution of wealth." Given an ethically acceptable initial assignment of wealth, rules based on economic efficiency may have some claim to be considered fair. On the critical issue of distributional equity, however, Posner apparently believes that economics …

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Consuming Government, Richard Schragger May 2003

Consuming Government, Richard Schragger

Michigan Law Review

In his ambitious new book, William Fischel, a Professor of Economics at Dartmouth College, gives us a new political animal: "The Homevoter." The homevoter is simply a homeowner who votes (p. ix). According to Fischel, she is the key to understanding the political economy of American local government. By implication, she is the key to understanding state and national government as well. Homeowners warrant special attention because "residents who own their own homes have a stake in the outcome of local politics that make them especially attentive to the public policies of local government" (p. ix). That is because local …

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The Serpentine Wall Of Separation, John Witte Jr. May 2003

The Serpentine Wall Of Separation, John Witte Jr.

Michigan Law Review

The task of separating the secular from the religious in education is one of magnitude, intricacy, and delicacy, Justice Jackson wrote, concurring in McCollum v. Board of Education, the Supreme Court's first religion in public schools case. "To lay down a sweeping constitutional doctrine" of absolute separation of church and state "is to decree a uniform . . . unchanging standard for countless school boards representing and serving highly localized groups which not only differ from each other but which themselves from time to time change attitudes." If we persist in this experiment, Justice Jackson warned his brethren, "we are …

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Toward A More Communitarian Future? Fukuyama As The Fundamentalist Secular Humanist, June Carbone May 2003

Toward A More Communitarian Future? Fukuyama As The Fundamentalist Secular Humanist, June Carbone

Michigan Law Review

With The End of History and the Last Man, Francis Fukuyama established himself as the prophet of liberal democracy and free markets, heralding their triumph as the only form of governance capable of commanding legitimacy. Asked to reflect on his predictions a decade later, Fukuyama concluded that the greatest threat to liberalism comes from biotechnology because it alone has the potential to remake the human nature that liberal democracy was designed to serve. Fukuyama makes a compelling case that biotechnology may produce developments that should concern us; he is ironically less persuasive in articulating a liberal-democratic framework for governing the …

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Cyberdemons: Regulating A Truly World-Wide Web, Andrew P. Lycans May 2003

Cyberdemons: Regulating A Truly World-Wide Web, Andrew P. Lycans

Michigan Law Review

In the decade leading up to the twenty-first century, the number of Internet-related legal disputes grew exponentially. This growth continues into the new millennium, introducing old problems in a new context. For instance, in the field of copyright, Eric Eldred, the operator of a website dedicated to posting literary works already in the public domain, challenged the Copyright Term Extension Act ("CTEA"). The CTEA blocked his plans to post works copyrighted in 1923, works which under the previous statute would have entered the public domain in 1999. Looking to trademark law, the field has become obsessed of late with providing …

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Disease And Cure?, L. A. Powe Jr. May 2003

Disease And Cure?, L. A. Powe Jr.

Michigan Law Review

Sunstein uses Franklin's remark to make two related points. First, citizens bear the burden of maintaining the American republic as a healthy, vibrant place; being a citizen is decidedly different from being a consumer. The former has duties, the latter wants (pp. 113-23). Second, and this is the gist of the slender book, the republic is jeopardized by the possibilities of the Internet. Sunstein assumes the correctness of MIT technology specialist Nicholas Negroponte's conclusion that in the not-too-distant future we will be able to create a "Daily Me" on the Internet that will provide the personalized information (including news) that …

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Lochner'S Feminist Legacy, David E. Bernstein May 2003

Lochner'S Feminist Legacy, David E. Bernstein

Michigan Law Review

Professor Julie Novkov's Constituting Workers, Protecting Women examines the so-called Lochner era of American constitutional jurisprudence through the lens of the struggle over the constitutionality of "protective" labor legislation, such as maximum hours and minimum wage laws. Many of these laws applied only to women, and Novkov argues that the debate over the constitutionality of protective laws for women - laws that some women's rights advocates saw as discriminatory legislation against women - ultimately had more important implications for the constitutionality of protective labor legislation more generally. Liberally defined, the Lochner era lasted from the Slaughter-House Cases in 1873 - …

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Patriotism: Do We Know It When We See It?, A. Wallace Tashima May 2003

Patriotism: Do We Know It When We See It?, A. Wallace Tashima

Michigan Law Review

In a small, triangular plot, a short distance north of the Capitol in Washington, D.C., is the recently dedicated "National Japanese American Memorial to Patriotism." One of the primary purposes of the memorial is to recall publicly the forced removal of Japanese Americans from the Pacific coast at the beginning of World War II and their imprisonment in government internment camps for the duration of the war. The incident is worth recalling, of course, if for no other reason than as a constant reminder that we must not let a similar tragedy befall any other group of Americans. But one …

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The Past, Present, And Future Of Bankruptcy Law In America, Todd J. Zywicki May 2003

The Past, Present, And Future Of Bankruptcy Law In America, Todd J. Zywicki

Michigan Law Review

As this Review was being written, Congress once again failed to pass the bipartisan bankruptcy-reform bill, although many expect it to be enacted at some point in the near future. At the same time, WorldCom, Enron, Global Crossing, and their ignominous peers continue to set records for the size, expense, and public attention drawn to business bankruptcy. For the first time, consumer bankruptcies surpassed the 1.5 million per year mark, continuing an irresistible upward trend. Meanwhile, law firms announce layoffs and salary freezes in most departments, and bankruptcy professionals prosper amidst the despair, billing $1 million per day on the …

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The Unruliness Of Rules, Peter A. Alces May 2003

The Unruliness Of Rules, Peter A. Alces

Michigan Law Review

Analytical jurisprudence depends on a posited relation between rules and morality. Before we may answer persistent and important questions of legal theory - indeed, before we can even know what those questions are - we must understand not just the operation of rules but their operation in relation to morality. Once that relationship is formulated, we may then come to terms with the likes of inductive reasoning in Law, the role of precedent, and the fit, such as it is, between Natural Law and Positivism as well as even the coincidence (or lack thereof) between inclusive and exclusive positivism. That …

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Meaning's Edge, Love's Priority, Patrick Mckinley Brennan May 2003

Meaning's Edge, Love's Priority, Patrick Mckinley Brennan

Michigan Law Review

The story is told of an American wending his way through the British Museum. Reaching the Rosetta Stone, he reached right over the railing, touched the scarred slab, and lamented: "It doesn't feel meaningful." Whereupon an old Briton was heard to mumble: "The poor American's got this old thing confused with the Blarney Stone." A bully presses his case, but meaning is much more modest. Powerless to insist upon itself, meaning lies in wait of discovery. What distinguishes the Rosetta Stone from other rocks of the same kind and size is that it was someone's - or rather a group's …

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The Politicization Of Clarence Thomas, Jagan Nicholas Ranjan May 2003

The Politicization Of Clarence Thomas, Jagan Nicholas Ranjan

Michigan Law Review

Perception often shapes memory. In particular, the way one perceives a noteworthy public figure often shapes that figure's historical legacy. For example, history largely remembers John Coltrane as one of the greatest jazz saxophone players of our time. His improvisational skill, innovative style, and mastery over his instrument all serve to classify him in the public memory as the ultimate jazz performer. Yet, as the example of Coltrane might demonstrate, perception is unjustly deficient. Coltrane was not merely a great saxophone player; he was first and foremost a religious figure whose spirituality drove his creativity and manifested itself in prayerful …

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Justices At Home: Three Supreme Court Memoirs, Laura Krugman Ray May 2003

Justices At Home: Three Supreme Court Memoirs, Laura Krugman Ray

Michigan Law Review

The Supreme Court, once an austere and remote institution, is increasingly the focus of popular attention. The Justices are profiled in the New York Times Magazine and the New Yorker, photographed with family members for mass-market books, and - on the evening the Court decided Bush v. Gore - televised leaving the courthouse parking garage. In the spring 2002 television season, two hour-long programs were set in the Supreme Court; both were briskly cancelled, but during their brief runs they featured Justices as heroic figures played by prominent actors. When a former law clerk recently published his account of internecine …

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The Heroes Of The First Amendment, Frederick Schauer May 2003

The Heroes Of The First Amendment, Frederick Schauer

Michigan Law Review

In 1950, Felix Frankfurter famously observed that "[i)t is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people." The circumstances of Justice Frankfurter's observation were hardly atypical, for his opinion arose in a Fourth Amendment case involving a man plainly guilty of the crime with which he had been charged - fraudulently altering postage stamps in order to make relatively ordinary ones especially valuable for collectors. Indeed, Fourth Amendment cases typically present the phenomenon that Frankfurter pithily identified, for most of the people injured by an …

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If History Mattered: John Marshall And Reframing The Constitution, Aviam Soifer May 2003

If History Mattered: John Marshall And Reframing The Constitution, Aviam Soifer

Michigan Law Review

What more can there be to learn about John Marshall? We have been blessed recently with a flood of fine books about Marshall and the Supreme Court over which he presided from 1801 until 1835. We also now have readily available an impressive collection of documents concerning the Court before Marshall, as well as a fine series collecting, introducing, and annotating Marshall's papers. With recent bicentennial celebrations marking the beginning of Marshall's career as Chief Justice and the anniversary of Marbury v. Madison, an outpouring of law review articles and scholarly symposia have offered learned exchanges about the great Chief …

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Orchestrated Experimentalism In The Regulation Of Work, Orly Lobel May 2003

Orchestrated Experimentalism In The Regulation Of Work, Orly Lobel

Michigan Law Review

Since the advent of the New Deal vision, work and the workplace have undergone dramatic changes. Policies and institutions that were designed to provide good working conditions and voice for workers are no longer fulfilling their promise. In Working in America: A Blueprint for the New Labor Market ("Blueprint"), four MIT economists take on the challenge of envisioning a new regulatory regime that will fit the realities of the new market. The result of several years of deliberation with various groups in business and labor, academia, and government, Blueprint provides a thoughtful yet unsettling vision of the future of work. …

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The New Privacy, Paul M. Schwartz, William M. Treanor May 2003

The New Privacy, Paul M. Schwartz, William M. Treanor

Michigan Law Review

In 1964, as the welfare state emerged in full force in the United States, Charles Reich published The New Property, one of the most influential articles ever to appear in a law review. Reich argued that in order to protect individual autonomy in an "age of governmental largess," a new property right in governmental benefits had to be recognized. He called this form of property the "new property." In retrospect, Reich, rather than anticipating trends, was swimming against the tide of history. In the past forty years, formal claims to government benefits have become more tenuous rather than more secure. …

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Live And Let Love: Self-Determination In Matters Of Intimacy And Identity, Kim Forde-Mazrui May 2003

Live And Let Love: Self-Determination In Matters Of Intimacy And Identity, Kim Forde-Mazrui

Michigan Law Review

Are you free to choose the race of your spouse, . . . of your child, . . . of yourself? Historically, the legal and social answer to these questions was No. Matters of racial identity and interracial intimacy were strictly circumscribed by ideologies of racial essentialism and separation, ostensibly rooted in science, morality, and religion. In contrast, according to Professor Randall Kennedy in his new book, Interracial Intimacies: Sex, Marriage, Identity, and Adoption, the answer to all three questions should be a resounding Yes. The exclusive source of racial identification and intimacy should be individual choice, free from legal …

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The Arrangements Of Race, Frank H. Wu May 2003

The Arrangements Of Race, Frank H. Wu

Michigan Law Review

In his debut novel, Stephen Carter takes pains to explain that although he and his protagonist, Talcott Garland (who goes by "Misha"), share superficial aspects of their identities, they should not be confused as twins. Carter and Misha may both be middle-aged professors at prestigious East Coast universities who grew up as members of the African-American elite that summered on Martha's Vineyard as segregation was officially ending; and they may both be passionate about chess. Beyond that, however, they are dissimilar. Carter drives no faster than the speed limit and otherwise leads a life that appears to be boring beyond …

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The Progressive Consuption Tax Revisited, Steven A. Bank May 2003

The Progressive Consuption Tax Revisited, Steven A. Bank

Michigan Law Review

Over the last decade, it has become increasingly evident that our current federal income tax is too complex, too easily evaded by the wealthy, and too likely to distribute the burdens of taxation to the people least able to bear it. Several years ago, frustration with these realities led to a groundswell of reform proposals, ranging from replacing the current graduated income tax rates with "flat," or proportionate, rates to abolishing the income tax altogether in favor of a national sales tax. While this tax reform frenzy dissipated almost as quickly as it began, the seeds of discontent remain. Professor …

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The Myth Of Pretax Income, Lawrence Zelenak May 2003

The Myth Of Pretax Income, Lawrence Zelenak

Michigan Law Review

What constitutes a fair distribution of the burdens of taxation among the members of a society? Even as politicians and academics vigorously debate the answer to that question, there is widespread agreement that all are asking the right question. In The Myth of Ownership, however, Liam Murphy and Thomas Nagel claim that everyone has been asking the wrong question. To ask about the fair distribution of tax burdens is to take the distribution of pretax incomes as "presumptively just," so that justice in taxation "is a question of what justifies departures from that baseline" (p. 15). But Murphy and Nagel …

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Appellate Courts Inside And Out, Maxwell L. Stearns May 2003

Appellate Courts Inside And Out, Maxwell L. Stearns

Michigan Law Review

While the United States Supreme Court has been the object of seemingly endless scholarly commentary, the United States Courts of Appeals are just now coming into their own as a subject of independent academic inquiry. This is an important development when one considers that the vast bulk of relevant precedents governing most federal court litigation comes not from the Supreme Court, but rather from the United States Courts of Appeals. Because relatively few courts of appeals decisions are reviewed in the Supreme Court, with rare exception, the federal circuit courts provide the functional equivalent of that Court's proverbial "last word." …

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Formalism, Pragmatism, And The Conservative Critique Of The Eleventh Amendment, Michael E. Solimine May 2003

Formalism, Pragmatism, And The Conservative Critique Of The Eleventh Amendment, Michael E. Solimine

Michigan Law Review

For many years the Second Amendment to the constitution was construed by most authorities to grant a communal right to bear arms, through state militias and the like. Some years ago Sanford Levinson labeled this interpretation "embarrassing" to liberal scholars. That characterization was deserved, Levinson argued, since liberal academics had been eager to defend expansive interpretations of other rights-granting provisions of the Constitution. But they failed to do so when it came to language in the Second Amendment, which could be plausibly construed to grant an individual right to bear arms. The failure might be attributed, in part, to the …

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White Interests And Civil Rights Realism: Rodrigo's Bittersweet Epiphany, Richard Delgado Mar 2003

White Interests And Civil Rights Realism: Rodrigo's Bittersweet Epiphany, Richard Delgado

Michigan Law Review

I had just settled down, taken off my tie, and was about to go over the two-page handout entitled "Information for Wedding Parties " that the minister of the small church had handed me minutes earlier, when I heard a knock and familiar voice from the other side of the anteroom door.

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Recent Books, Michigan Law Review Mar 2003

Recent Books, Michigan Law Review

Michigan Law Review

A list of books recenlty received by Michigan Law Review.

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