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Restitution And Reform, Dale A. Oesterle

Michigan Law Review

A Review of Restitution and Reform by George E. Palmer

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 79, Issue 2 of Michigan Law Review

Black English And Equal Educational Opportunity, Michigan Law Review

Michigan Law Review

There is a danger that the King case will be misunderstood. The press has sometimes portrayed it as a vindication of the right to use black English in the classroom rather than of the educational opportunities of the children who speak it, and the King opinion itself is at times confusing. This Note clarifies the meaning of King and section 1703(f) by examining four critical steps in Judge Joiner's reasoning. Section I examines the court's holding that "language barriers" under section l 703(f) include impediments to equal educational opportunity arising from dialect differences, and concludes that although the court's argument …

Court Examination Of The Discovery File On A Motion For Summary Judgment, Michigan Law Review

Michigan Law Review

This Note examines the history and ambiguous language of rule 56 to determine whether courts have a duty to examine the discovery file before granting a summary judgment. Section I discusses courts' differing interpretations of the rule. Section II shows that the Supreme Court Advisory Committee which drafted the rule contemplated that courts would examine routinely filed discovery materials when considering a motion for summary judgment. Section III concludes, however, that the expansion of pre-trial discovery since the enactment of the federal rules renders such a trial court duty inconsistent with the drafters' intent that the rules "be construed to …

Notice By Citizen Plaintiffs In Environmental Litigation, Michigan Law Review

Michigan Law Review

This Note evaluates judicial handling of citizen suits tainted by defective notice. After reviewing the legislative history of the citizen suit provisions, the Note presents an array of judicial responses to defective notice and classifies decisions by their stringency in applying the notice provision. In the final section, the Note argues that Congress's purpose in requiring notice should determine the limits of judicial tolerance of defective notice. It concludes that courts should dismiss citizen suits unless actual notice of intent to sue, whether or not in the form specified by EPA regulations, was given sixty days before the filing of …

Periodical Index, Michigan Law Review

Michigan Law Review

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

Regulation Through The Looking Glass: Hospitals, Blue Cross, And Certificate-Of-Need, Sallyanne Payton, Rhoda M. Powsner

Michigan Law Review

A clear focus on the commitment of the public health and hospital establishments to the large teaching hospital and their belief in rationalizing the health care system through community-based planning allows us to understand the ideas and institutions that have produced our present system of hospital regulation. It can also help us to understand the structure and behavior of the hospital industry and can illuminate current controversies over health care policy.

What follows is a narrative account of the development of regional planning and certificate-of-need legislation. As part of that story, we trace the evolution of the Blue Cross, explain …

State Income Taxation Of Multijurisdictional Corporations: Reflections On Mobil, Exxon, And H.R. 5076, Walter Hellerstein

Michigan Law Review

The purpose of this Article is twofold: first, to analyze the Mobil and Exxon decisions; second, to consider the congressional reaction they may engender. Because the terrain that this Article covers may be unfamiliar to some readers, a few further words of introduction may be appropriate.

Taken together, the Mobil and Exxon decisions dealt with the three methods of dividing a multijurisdictional corporation's income among the states - specific allocation, separate accounting and apportionment by formula. Each method provides a different solution to the problem of determining the portion of the income of multistate businesses that should be taxable by …

Contribution Between Parties To A Discriminatory Collective Bargaining Agreement, Michigan Law Review

Michigan Law Review

This Note examines rules of title VII back pay liability and apportionment. Part I argues that all signatories to a discriminatory collective bargaining agreement should be jointly and severally liable to injured persons for back pay. Although a union or employer may object to joint and several liability if its opponent in collective bargaining proposed and bargained for the discriminatory term, the purposes of title VII require that the parties become jointly and severally liable upon signing the agreement. Since joint and several liability fully serves the compensatory purpose of the statute, Part II of the Note looks to deterrence …

Marcus Plant, Luke K. Cooperrider

Michigan Law Review

A Tribute to Marcus Plant

Recent Books, Michigan Law Review

Michigan Law Review

A List of Books Received for Michigan Law Review

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 79, Issue 1 of Michigan Law Review

Periodical Index, Michigan Law Review

Michigan Law Review

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

Social Investing And The Law Of Trusts, John H. Langbein, Richard A. Posner

Michigan Law Review

In Part I, after presenting a brief primer on the economics of securities markets, we analyze the economic and policy issues presented by social investing. We conclude that the usual forms of social investing involve a combination of reduced diversification and higher administrative costs not offset by net consumption gains to the investment beneficiaries. Social investing may therefore be economically unsound even though there is no reason to expect a portfolio constructed in accordance with the usual principles of social investment to yield a below-average rate of return - provided that administrative costs are ignored.

Part II relates our policy …

Incapacitating The Habitual Criminal: The English Experience, Sir Leon Radzinowicz, Roger Hood

Michigan Law Review

In this Article, Sir Leon Radzinowicz and .Dr. Roger Hood trace 150 years of unsuccessful English efforts to identify, sentence, and reform habitual criminal offenders. The Supreme Court's recent decision in Rummel v. Estelle has publicized habitual offender statutes in the United States. But Rummel primarily addressed the constitutionality, rather than the desirability, of a state habitual offender statute. This Article examines the broader policy questions common to habitual offender programs in both the United Stales and Great Britain. It describes the tension between liberal tradition and the state's desire to incapacitate those who repeatedly threaten life or property.

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 78, Issue 8 of Michigan Law Review

Interrogation Without Questions: Rhode Island V. Innis And United States V. Henry, Welsh S. White

Michigan Law Review

In Rhode Island v. Innis, the Court defined "interrogation" within the meaning of Miranda; and in United States v. Henry, it defined "deliberate elicitation" within the meaning of Massiah. This article explores the implications of Innis and Henry, suggests readings of the new tests consistent with their purposes, and applies the tests to several situations where the scope of the fifth and sixth amendment protections remains unclear.

Incorporation Of State Law Under The Federal Arbitration Act, Michigan Law Review

Michigan Law Review

This Note proposes a solution to this choice-of-law problem. Section I surveys the courts' response to Congress's silence and finds confusion and disarray. Section II argues that courts should apply the state law pertinent to arbitration unless that law places heavier burdens on arbitration contracts than on other contracts; where state law does discriminatorily burden arbitration, the courts should apply the pertinent state rules applicable to "any contract." It concludes that the "grounds . . . for the revocation of any contract," although determined as a matter of federal policy, are to be found in state law rather than in …

Books Received, 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 78: Subject Index, Tables of Cases, Articles, Authors, Book Reviews

Periodical Index, Michigan Law Review

Michigan Law Review

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

Preserving The Progressive Spirit In A Conservative Time: The Joint Reform Efforts Of Justice Brandeis And Professor Frankfurter, 1916-1933, David W. Levy, Bruce Allen Murphy

Michigan Law Review

On January 28, 1916, President Wilson sent the name of Louis D. Brandeis to the Senate for confirmation as a Justice of the United States Supreme Court. Wilson's act surprised many Americans and sparked one of the bitterest confirmation struggles in the history of the Republic. The nomination and the confirmation that followed also created a painful and highly personal dilemma for the new Justice. This dilemma led Brandeis to a private arrangement that opened an unusual and revealing chapter in the story of the extra judicial activities of American justices. Even more important, the arrangement constitutes a noteworthy episode …

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 78, Issue 7 of Michigan Law Review

The Three Faces Of Double Jeopardy: Reflections On Government Appeals Of Criminal Sentences, Peter K. Westen

Michigan Law Review

Every now and then a case ·comes along that tests the fundamental premises of a body of law. United States v. DiFrancesco presents such a test to the law of double jeopardy, raising the question whether the government may unilaterally appeal a defendant's criminal sentence for the purpose of increasing the sentence. The question cannot be answered by facile reference to the text of the fifth amendment, because the terms of the double jeopardy clause are not self-defining. Nor can it be settled by reference to history, because the issue has not arisen with any frequency until now.

The Propriety Of Benefit-Spreading Regulations Under The 10% Lending Limit Of The National Bank Act, Michigan Law Review

Michigan Law Review

This Note examines whether the ten percent lending limit of the National Bank Act should be used to promote benefit-spreading. Section I evaluates the legislative and judicial history of the lending limit and concludes that Congress never intended the Comptroller to issue regulations to foster benefit-spreading. Section II examines the practical ramifications of the benefit-spreading regulations. It concludes that the lending limit cannot effectively foster benefit-spreading without undermining the risk-reducing function of the statute; that compliance with the benefit-spreading regulations is costly while the penalties for noncompliance are inappropriate and unfair; and that existing statutes better promote benefit-spreading while avoiding …

Accelerated Depreciation: A Proper Allowance For Measuring Net Income?!!, Walter J. Blum

Michigan Law Review

In a recent article in the Michigan Law Review, Douglas A. Kahn strives to demonstrate that, given the general postulates of the federal income tax, accelerated depreciation is a proper allowance for measuring net income and should not be classed as a tax expenditure. 1 His defense of accelerated depreciation is unusual if not novel, and his presentation is engaging. For anyone who shares my view that most tax expenditure stuff is mainly political rhetoric and who is sympathetic to my position that our tax system is far too harsh in taxing income from capital investments, a new plug for …

Books Received, Michigan Law Review

Michigan Law Review

A List of Books Received by Michigan Law Review

The Case Against Living Probate, Mary Louise Fellows

Michigan Law Review

This Article presents the case against living probate in hopes of preventing a reform that was appropriately discarded a century ago. Part I describes the various living probate proposals, highlighting their similarities, differences, and procedural complexities, and the benefits they seek to realize. Part II lays out four failings of living probate that call the desirability of this reform into question. Finally, in Part III, I propose an alternative reform which concentrates on the underlying problem inspiring living probate proposals - the expense and uncertainty of a mental capacity requirement for executing a valid will.

The Foreign Intelligence Surveillance Act: Legislating A Judicial Role In National Security Surveillance, Michigan Law Review

Michigan Law Review

This Note evaluates the constitutionality of the Foreign Intelligence Surveillance Act. Section I summarizes the legal history of national security surveillance from 1940 until the passage of the FISA, and briefly discusses the three major circuit court rulings on warrantless foreign intelligence surveillance. Section II describes the provisions of the Act. Section III examines the Act's constitutionality, first considering the scope of congressional authority to regulate the conduct of foreign affairs, then considering whether the political question doctrine prevents judicial scrutiny of executive decisions to conduct foreign intelligence surveillance. The Note concludes that the FISA is an appropriate and constitutional …