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Full-Text Articles in Entire DC Network
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 …
Informality As A Bilateral Assurance Mechanism: Comments On Ronald Mann's 'The Role Of Letters Of Credit In Payment Transactions', Avery Wiener Katz
Informality As A Bilateral Assurance Mechanism: Comments On Ronald Mann's 'The Role Of Letters Of Credit In Payment Transactions', Avery Wiener Katz
Michigan Law Review
Ronald Mann's study of documentary defects in the presentation of commercial letters of credit is a valuable contribution to the commercial law literature in at least three respects. First, it offers a detailed and thorough empirical survey of an important though specialized aspect of commercial practice. Mann collected and coded a data sample of 500 randomly selected letter-of-credit transactions, personally evaluating each transaction to determine whether the documentary presentation by the beneficiary of the letter of credit (i.e., the seller) complied with the letter's formal terms. Then, for each case in which he found one or more documentary defects, Mann …
A Public Choice Approach To Private Ordering: Rent-Seeking At The World's First Futures Exchange: Comments On Mark West's 'Private Ordering At The World's First Futures Exchange', Omri Yadlin
Michigan Law Review
The literature on private ordering systems has expanded exponentially over the last decade. Yet, very few scholars have actually attempted to define the term "private ordering" - a failure that sometimes leads to confusion. Some scholars identify private ordering with non-state ordering. According to this view, the private legal systems Robert Ellickson, Lisa Bernstein, McMillan & Woodruff, Mark West, and others have investigated are "private" simply because their norms are not manufactured or enforced by the state. The alternative view emphasizes the decentralized feature of private ordering systems. Robert Ellickson, for example, studied "how people manage to interact to mutual …
Rethinking Relationship-Specific Investments: Subcontracting In The Japanese Automobile Industry, Yoshiro Miwa, J. Mark Ramseyer
Rethinking Relationship-Specific Investments: Subcontracting In The Japanese Automobile Industry, Yoshiro Miwa, J. Mark Ramseyer
Michigan Law Review
Longer ago than either of us cares to remember, one of us attended junior high in Tokyo. On Saturdays, he worked at a printed circuit factory. Or maybe "factory" makes it all sound too grand. A small building in back of a gas station, it had three or four punch presses. The "president" supervised matters (though he actually spent more time hanging out at the gas station), together with a sidekick who did assorted odd jobs besides. Several middle-aged women with no apparent technical education or skill ran the presses. The junior high kid spent his time trimming the sheets …
Reaffirming Relationship-Specific Investments: Comments On Miwa And Ramseyer's 'Rethinking Relationship-Specific Investments', Scott E. Masten
Reaffirming Relationship-Specific Investments: Comments On Miwa And Ramseyer's 'Rethinking Relationship-Specific Investments', Scott E. Masten
Michigan Law Review
I, too, have a work-related anecdote from my youth to relate. During one summer break from college, I had a job on the night shift in the canning plant of a Coca-Cola bottling franchisee in my hometown in New Hampshire. The process of canning tonic (known as "soda" outside of New England) consisted of three stages, beginning with the fabrication of cans in a room at one end of the building and concluding with the filling and sealing operations in a room at the other end. In between, workers in a third room inspected cans as they arrived by conveyor …
Commercial Norms And The Fine Art Of The Small Con: Comments On Daniel Keating's 'Exploring The Battle Of The Forms In Action', Douglas G. Baird
Commercial Norms And The Fine Art Of The Small Con: Comments On Daniel Keating's 'Exploring The Battle Of The Forms In Action', Douglas G. Baird
Michigan Law Review
The standard battle-of-the-forms story, often rehearsed in the classroom, is one in which merchants try to take advantage of their contracting opposites. A seller wants to escape the obligations that come with implied terms and seeks to disclaim them in its acknowledgment form. Its buyers do not realize they have been had until after the goods fail. Only then do they read the seller's form and discover that they are without remedy. Conspicuously absent in Dan Keating's fine article, however, is any evidence that supports this story. Some of his merchants talk about putting favorable terms in their forms, but …
The Sound Of One Form Battling: Comments On Daniel Keating's 'Exploring The Battle Of The Forms In Action', Richard Craswell
The Sound Of One Form Battling: Comments On Daniel Keating's 'Exploring The Battle Of The Forms In Action', Richard Craswell
Michigan Law Review
Daniel Keating has provided a thoughtful and useful study of the way that businesses form contracts. In particular, he has given us a good deal of data concerning the problem known as the "battle of the forms." Commercial lawyers have, of course, been wrangling over this problem for decades, so it is no small accomplishment to be able to offer a useful contribution. In Part I below, I describe more precisely just what Keating's data does and does not illuminate. Parts II and III then focus on a particular contracting practice that Keating has identified: the practice of getting both …
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 …
Private Order Under Dysfunctional Public Order, John Mcmillan, Christopher Woodruff
Private Order Under Dysfunctional Public Order, John Mcmillan, Christopher Woodruff
Michigan Law Review
Businesspeople need contractual assurance. Most transactions are less straightforward than a cash sale of an easily identifiable item. Buyers need assurance of the quality of what they are purchasing, and sellers need assurance that bills will be paid. The legal system may not always be available to provide contractual assurance - and when the law is dysfunctional, private order might arise in its place. Many developing and transition economies have dysfunctional legal systems, either because the laws do not exist or because the machinery for enforcing them is inadequate. In such countries, bilateral relationships, communal norms, trade associations, or market …
Front Matter, Michigan Law Review
Front Matter, Michigan Law Review
Michigan Law Review
Front matter for Volume 98, Issue 3 of Michigan Law Review.
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. …
Front Matter, Michigan Law Review
Front Matter, Michigan Law Review
Michigan Law Review
Front matter for Volume 98, Issue 1 of Michigan Law Review.
Citizen Suits Under The Resource Conservation And Recovery Act: Plotting Abstention On A Map Of Federalism, Charlotte Gibson
Citizen Suits Under The Resource Conservation And Recovery Act: Plotting Abstention On A Map Of Federalism, Charlotte Gibson
Michigan Law Review
In the shadow of the Supreme Court's constitutional federalism doctrines, lower federal courts have developed doctrines of common law federalism through vehicles such as abstention. In the environmental law arena, courts have employed a number of abstention theories to dismiss citizen suits brought under federal statutes. The appearance of primary jurisdiction and Burford abstention in citizen suits brought under the Resource Conservation and Recovery Act ("RCRA") exemplifies this trend. In rejecting RCRA suits, some courts have relied on primary jurisdiction, a doctrine conceived as a mechanism to allocate responsibility for limited fact-finding between courts and agencies, to dismiss RCRA citizen …
Recent Books, Michigan Law Review
Recent Books, Michigan Law Review
Michigan Law Review
A list of books recenlty received by Michigan Law Review.
Front Matter, Michigan Law Review
Front Matter, Michigan Law Review
Michigan Law Review
Front matter for Volume 97, Issue 8 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.