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Books Received, Michigan Law Review

Michigan Law Review

A List of Books Received by Michigan Law Review

History Against Free Speech: The New German Law Against The "Auschwitz" -- And Other -- "Lies", Eric Stein

Michigan Law Review

An American observer would expect the central issue in the public debate to be the conflict between the constitutionally protected values of individual freedom of expression on the one hand and public security and personal honor on the other. This, however, has not been the case. To the contrary, the constitutional issue has played a marginal role in the legislative process, and it has been resolved by the courts with obvious ease in favor of the constitutionality of the previous legislation on the same general subject. There is every reason to believe that the new law will also be upheld, …

Periodical Index, Michigan Law Review

Michigan Law Review

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

The Bfoq Defense In Adea Suits: The Scope Of "Duties Of The Job", Robert L. Fischman

Michigan Law Review

This Note examines these three possible interpretations of which job characteristics a court must examine when determining the validity of a BFOQ defense to an ADEA suit and concludes that the Eighth Circuit's standard is correct. Because disputes over which interpretation is proper arise almost exclusively in cases involving public safety occupations, this Note discusses the standards for measuring that scope within the framework of the policy considerations associated with public safety. Part I of this Note discusses the three current standards used to determine the scope of the BFOQ defense. Part II illuminates the problems inherent in having three …

Federal Venue Under Section1392(A): The Problem Of The Multidistrict Defendant, Brent E. Johnson

Michigan Law Review

This Note argues that a broad construction of section 1392(a) which would allow Aunt Bea to bring suit in the Southern District of California where Mayberry alone resides is preferable to a narrow construction which would restrict Bea to the Northern District where both defendants reside. Part I of this Note maintains that the language of section 1392(a) is ambiguous and does not indicate the clear intent of Congress, despite assertions to the contrary by proponents of both the broad and narrow constructions of the statute. Part II demonstrates that a superficially relevant Supreme Court decision tending to support the …

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for volume 85, Issue 1 of Michigan Law Review

Target Litigation, Michael Rosenzweig

Michigan Law Review

In Part I, I explore the motives of litigious target managers. I briefly examine the takeover defense literature and empirical evidence regarding the frequency of target litigation, both of which indicate that target managers usually sue bidders in order to defeat unwanted takeover attempts. I also suggest that judicial reactions to target lawsuits largely confirm this hypothesis.

I then discuss, in Part II, target management's conflict of interest in control contests and the particular strategic considerations that lead target managers to sue hostile bidders. I argue that target litigation is peculiarly likely to be frivolous and, based on a study …

A New Approach To Review Of Nepa Findings Of No Significant Impact, Geoffrey Garver

Michigan Law Review

This Note examines the confused array of judicial approaches for reviewing agency findings of no significant environmental impact and proposes a standardized, comprehensive approach that ensures compliance with both the procedural and substantive aspects of NEPA. Part I reviews agency procedures mandated by NEPA which ensure that agencies develop a detailed record for judicial scrutiny and constitute the legal basis against which to check agency threshold decisions. Part II examines the conflicting approaches of the lower courts, emphasizing their reliance on Supreme Court decisions, their characterization of the threshold decision as legal or factual, and the burden of proof each …

Shareholders Versus Managers: The Strain In The Corporate Web, John C. Coffee Jr.

Michigan Law Review

Part I will seek to understand why firms trade in the stock market at a substantial discount from their asset value. It will answer that existing theories of the firm have not given adequate attention to a critical area where shareholders and managers have an inherent conflict, one that the existing structure of the firm does not resolve or mitigate. Despite the significant changes in the internal structure of the corporation over the last half century that have been described by business historians, there remains a deep internal strain between shareholders, on the one hand, and managers and employees, on …

Books Received, Michigan Law Review

Michigan Law Review

A List of Books Received from Michigan Law Review

Extended Voluntary Departure: Limiting The Attorney General's Discretion In Immigration Matters, Lynda J. Oswald

Michigan Law Review

Fifteen times in the past quarter-century, the Attorney General has decreed that aliens of certain nationalities could temporarily remain in the United States regardless of their visa status. Government officials have characterized these grants of blanket extended voluntary departure (EVD) as a means of protecting aliens from life-threatening conditions in their homelands. The Attorney General's actions were apparently undertaken for humanitarian reasons and went largely unnoticed by the public.

Part I of this Note defines EVD and distinguishes it from related forms of deportation relief. Part II describes the Employees Union court's holding. The evolution of American perceptions of immigration …

Periodical Index, Michigan Law Review

Michigan Law Review

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

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 84, Issue 8 of Michigan Law Review

Workable Antitrust Policy, Frank H. Easterbrook

Michigan Law Review

One of the schools of thought in the economics of antitrust was called "workable competition." The adherents to this school believed that markets were prone to cartelization and that concentration was death on competition, but that occasionally competition might prove "workable." These scholars were suspicious of almost every industrial practice they saw. One of the manifestations of their work came to be known as the "structure-conduct-performance paradigm." The thesis was that you could tell whether competition was feasible from the structure of the market. If the top four firms had fifty percent or so of the sales, we should abandon …

Consumer Beware Chicago, Eleanor M. Fox

Michigan Law Review

Professor Hovenkamp's article, Antitrust Policy After Chicago, reveals an important truth. Chicago School economics does not provide a superior roadmap to efficiency. I would take the critique one step further and assert: The main gap between Chicago and its critics is not even the design of the roadmap to efficiency. The main gap is social and political philosophy.

18 U.S.C. § 3501 And The Admissibility Of Confessions Obtained During Unnecessary Prearraignment Delay, Matthew W. Frank

Michigan Law Review

Part I thus argues that the admissibility of post-sixth-hour confessions is governed by Mallory, under which a voluntary confession is inadmissible if, but only if, it follows a period of unnecessary delay. Part II addresses a possible objection to this conclusion - namely, that, with limited exceptions, subsection 350l(c) renders all post-sixth hour confessions inadmissible without regard to the reasonableness of the prearraignment delay. This interpretation is derived by negative implication from the proviso in subsection 350l(c) and would require courts to suppress confessions even though there has been no unnecessary delay, and even though the confessions would be …

Periodical Index, Michigan Law Review

Michigan Law Review

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

Legal Modernism, David Luban

Michigan Law Review

What are the roots of Critical Legal Studies? "The immediate intellectual background . . . is the . . . achievement of early twentieth century modernism ... ," writes Roberto Unger in his CLS manifesto; he elaborates this modernist connection in his deep and subtle book Passion. Other CLS members also draw parallels between their endeavor and artistic modernism.

Obviously, CLS is first and foremost a movement of left-leaning legal scholars; it is also associated with distinctive theoretical claims about law. But it should be equally obvious that CLS involves sensibilities and affinities that are strikingly similar to those …

Rhetoric And Skepticism In Antitrust Argument, Herbert Hovenkamp

Michigan Law Review

In his essay on Workable Antitrust Policy Judge Easterbrook professes an extraordinary skepticism about economic models in general, and particularly about the ability of courts to use economic models to distinguish the competitive from the anticompetitive. But a profession of skepticism is itself a very powerful rhetorical device; it creates a perception of tough-mindedness, of refusal to yield real-world observations to analytic models or other abstractions, of extreme reluctance to accept any proposition that has not been clearly proven. Further, it is always very easy to be a skeptic, because every position ever taken except perhaps for a few tautologies …

Interlocutory Appeal Of Preindictment Suppression Motions Under Rule 41 ( E ), Clifford A. Godiner

Michigan Law Review

This Note argues that preindictment rulings denying 41(e) motions are not immediately appealable. Part I discusses decisions that mandate dismissal of such appeals for want of jurisdiction. Part II examines the policy rationales behind these precedents. Finally, Part III argues that an adequate remedy exists outside of rule 41(e), rendering immediate appellate review of rulings on 41(e) motions unnecessary.

Recent Books, Michigan Law Review

Michigan Law Review

A List of Books Received by Michigan Law Review

Index, Michigan Law Review

Michigan Law Review

Contents of Volume 84: Subject Index, Articles, Notes, Authors, Books Reviewed

The Perils Of Privilege: Waiver And The Litigator, Richard L. Marcus

Michigan Law Review

Waiver can be made less tricky, although it will never yield algebraic accuracy. Focusing on civil litigation, this article develops a framework for waiver decisions. It begins by stressing a factor that others have neglected - the costs generated by broad traditional waiver rules. These costs result largely from changes in lawyer behavior to reduce waiver risks. Thus, enormous energy can be expended to guarantee that privileged materials are not inadvertently revealed in discovery, and lawyers may adopt elaborate witness preparation strategies in order to prevent witnesses from seeing privileged materials. Judges also feel the burden; where waiver is at …

Employer Postcertification Polls To Determine Union Support, James D. Dasso

Michigan Law Review

This Note evaluates these competing standards in light of the two major policy objectives of the NLRA: industrial stability and employee free choice. It concludes that the courts of appeals properly apply a less stringent standard. Part I considers employer polling in the larger context of the general law of employer interrogation. This section concludes that the Board's standard for postcertification polling deviates significantly from the general law of employer interrogation as well as the more specific rules established for precertification polling. The remainder of this Note demonstrates that the Board's distinctions between pre- and postcertification polling do not justify …

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 84, Issue 7 of Michigan Law Review

From False Paternalism To False Equality: Judicial Assaults On Feminist Community, Illinois 1869-1895, Frances Olsen

Michigan Law Review

This essay will examine the "equal treatment" versus "special treatment" for women issue as it arose in Illinois in the late nineteenth century. In 1869 the Illinois Supreme Court barred Myra Bradwell from the practice of law on the basis that she was a married woman, and in 1870 it reaffirmed its exclusion of women in In re Bradwell, the state decision the United States Supreme Court upheld in Bradwell v. Illinois. This denial of equal treatment to women, especially the concurring opinion by United States Supreme Court Justice Bradley, appears to many to represent paternalism at its …

Fifth Amendment Privilege For Producing Corporate Documents, Nancy J. King

Michigan Law Review

This Note argues that a person should be able to assert her fifth amendment privilege against self-incrimination when her act of producing corporate documents pursuant to a subpoena causes her to make testimonial admissions that are incriminating. Part I briefly examines the two approaches the Supreme Court has used to decide claims of self-incrimination for records production. First, it explains the Court's traditional entity doctrine which, by focusing on the nature of the documents and the capacity in which they are held, has prohibited records producers from invoking the fifth amendment privilege against self-incrimination if the records produced are those …

Constituting Communities Through Words That Bind: Reflections On Loyalty Oaths, Sanford Levinson

Michigan Law Review

Preparation of this essay has not served to resolve my own ambivalences about what, after all, Duncan Kennedy once named the "fundamental contradiction" of all social life, the tension between "individual freedom" and the coercive communal life with "[o]thers (family, friends, bureaucrats, cultural figures, the state)" that is "necessary if we are to become persons at all - they provide us the stuff of our selves and protect us ,in crucial ways against destruction." It should not be surprising if something so fundamental does not prove amenable to resolution. In any case, the reader should not expect to find a …

Theories Of Loss Of Citizenship, T. Alexander Aleinikoff

Michigan Law Review

The underlying issue that I address in this essay is whether the Constitution ought to be read to prohibit denationalization of U.S. citizens. (I will use the term "denationalization" to refer to the government's act of terminating citizenship. "Expatriation" will be used to refer to an individual's voluntary relinquishment of citizenship.) In examining this question, I will explore citizenship from four different perspectives - rights, consent, contract, and community - in search of a theoretical framework for the Supreme Court's doctrine in the denationalization cases.

Community, Citizenship, And The Search For National Identity, Frederick Schauer

Michigan Law Review

As a test of this proposition, I want to explore the issue of alienage restrictions. Under what circumstances is it justifiable to draw lines based on whether a person is a citizen? Lines drawn on the basis of citizenship are a useful test of how seriously we take the idea of the nation as a relevant community and, more tangentially, of how seriously we take the idea of community itself. To the extent that we are skeptical of such lines, our concerns are to that extent individual-oriented, primarily focused on the adverse consequences of excluding some people from benefits or …