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Local Taxes, Federal Courts, And School Desegregation In The Proposition 13 Era, Michigan Law Review

Michigan Law Review

This Note examines a federal court's dilemma when the remedy of school desegregation collides with the trend of tax limitation - when a school desegregation order requires funds that the local school authorities do not have and cannot raise. Can the district court order a local tax levy to fund school desegregation when the school authorities have already reached their maximum taxing limit? Is there a better alternative remedy?

To tackle those questions, this Note first elucidates three equitable principles to guide courts in fashioning desegregation decrees. It then explores the history of judicial power to order state and local …

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 4 of Michigan Law Review

Reforming The Federal Grand Jury And The State Preliminary Hearing To Prevent Conviction Without Adjudication, Peter Arenella

Michigan Law Review

It is this Article's thesis that the substitution of plea-bargaining for the criminal trial as our primary method for determining legal guilt requires a fundamental reassessment of our pretrial screening processes. In a system where the prosecutor's decision to file charges is usually followed by a negotiated guilty plea, we can no longer pretend that the pretrial process does not adjudicate the defendant's guilt. Accordingly, this Article argues that it no longer makes sense to rely primarily on the trial to safeguard essential accusatorial principles when pretrial screening devices like the preliminary hearing and the grand jury perform the only …

Books Received, Michigan Law Review

Michigan Law Review

A List of Books Received by Michigan Law Review

Title Vi, Title Ix, And The Private University: Defining "Recipient" And "Program Or Part Thereof", Michigan Law Review

Michigan Law Review

This Note explores the meaning of "recipient" and "program or part thereof' in title VI and title IX. Section I studies federal court definitions of "recipient" and the legislative history of title VI; it concludes that only organizations that exercise discretion in disbursing federal funds to students are "recipients." Section II explores the "program or part thereof' language as applied to the university by examining legislative history and recent discrimination cases. It argues that, since Congress sought to protect beneficiaries both from discrimination and from overbroad cutoffs, courts and agencies should draw the perimeters of a funds cutoff by balancing …

Standards Of Willfulness Under The Fair Labor Standards Act, Michigan Law Review

Michigan Law Review

The statutes of limitations facing plaintiffs who bring actions under the Fair Labor Standards Act [FLSA] vary, depending upon the willfulness of the violation. The Act establishes two limitations: three years for willful violations, and two years for nonwillful violations. It does not, however, define willfulness, and federal courts have interpreted the concept in two very different ways. Under the more prevalent rule, the test is: "Did the employer know the FLSA was in the picture?" But other courts have been more guarded, reserving the longer limitations period for "violations which are intentional, knowing or voluntary as distinguished from accidental." …

Restrictions On Electric Utility Advertising, Michigan Law Review

Michigan Law Review

This Note reconsiders the constitutionality of New York's restriction on advertising by electric utilities. Section I explains how and why the Supreme Court's current analysis of the first amendment distinguishes commercial speech from other forms of speech. Section II looks at what protection is due commercial speech and weighs the competing interests in the specific context of utility advertising. The Note concludes that states may restrict utility advertising to encourage energy conservation.

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 78, Issue 3 of Michigan Law Review

Interest Analysis And The Myth Of Legislative Intent, Lea Brilmayer

Michigan Law Review

My critique begins with a brief analysis of the principles underlying the Currie school's calculations of whether a state has an interest in having its law applied; it seeks to expose the unarticulated biases inherent in that calculus. I then argue that Currie's principles cannot be justified as expressions of actual legislative intent regarding a statute's territorial scope. Indeed, the discrepancy between governmental interests and actual legislative intent has been overlooked only because, in the vast majority of cases, legislatures have no actual intent on territorial reach with which to contrast Currie's results.

But without actual legislative endorsement, interest analysis …

Is There Life For Erie After The Death Of Diversity?, Peter Westen, Jeffrey S. Lehman

Michigan Law Review

This Article is essentially an elaboration of these three themes. Section I sets forth the fundamental principles, or "axioms," that determine whether a particular federal rule is pertinent and valid. Once these axioms are understood, it should become apparent that Erie problems, if not easy, are not uniquely difficult either; instead, they are the kinds of "ordinary" problems that are commonplace in other areas of law. Section II applies these axioms to cases in diversity to determine the validity of various kinds of federal rules of decision. Section III examines the validity of federal rules of decision in federal question …

Search And Seizure: A Treatise On The Fourth Amendment, William H. Erickson

Michigan Law Review

A Review of Search and Seizure: A Treatise on the Fourth Amendment by Wayne R. LaFave

Books Received, Michigan Law Review

Michigan Law Review

A List of Books Received by 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

State Control Over The Reclamation Waterhole: Reality Or Mirage, Michigan Law Review

Michigan Law Review

This Note assesses how much state law section 8 saves from preemption. Section I reviews the interplay of state and federal water law in the West. It begins with a brief description of appropriation, the system of water rights found in the Western states, outlines the Reclamation Act of 1902, and then traces the Supreme Court's evolving construction of the Act. It culminates in a discussion of California v. United States, the Court's latest gloss on section 8. Section II expands the analysis of the California decision, integrating it with traditional preemption doctrine. It shows that section 8 respects …

Survival Of Rights Of Action After Corporate Merger, Michigan Law Review

Michigan Law Review

Once a corporation ceases to exist, most courts permit neither primary nor derivative suits to be brought in its name. If a merger precipitates that corporate demise, courts usually hold that standing to sue, like other assets of the "merged" corporation, passes to the surviving corporation. This Note ponders the merit of that rule of passage.

Section I categorizes the cases defining the rule of passage. Some courts have steadfastly adhered to the rule and denied standing to the merged corporation's shareholders. Other courts, fearing that the rule would preclude meritorious actions, have created exceptions allowing these shareholders to sue …

Abandoning Bankruptcy Law's "Identity Of Interest" Exception, Michigan Law Review

Michigan Law Review

Section I of this Note discusses the goals and weaknesses of the identity of interest exception; Section II explains the advantages of consolidation and novation; and the final Section suggests a way to separate cases where novation is appropriate from those where consolidation is the preferred remedy.

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 78, Issue 2 of Michigan Law Review

Land Without Plea Bargaining: How The Germans Do It, John H. Langbein

Michigan Law Review

The present Article demonstrates the error of this universalist theory of plea bargaining by showing how and why one major legal system, the West German, has so successfully avoided any form or analogue of plea bargaining in its procedures for cases of serious crime. The German criminal justice system functions without plea bargaining not by good fortune, but as a result of deliberate policies and careful institutional design whose essential elements are outlined in Part I. Part II addresses the American claims that a clandestine plea bargaining system lurks behind veils of German pretense.

Relaxation Of Implementation Plans Under The 1977 Clean Air Act Amendments, David P. Currie

Michigan Law Review

This Article probes the convoluted ameliorative provisions of the 1977 Amendments in three parts. Section I deals with delayed compliance orders - orders granted to stationary sources unable to meet the statutory deadlines for compliance. Section 113( d) is the fountainhead provision, and besides a general provision for delayed compliance, it also contains specific provisions for sources unable to comply due to retirement of present facilities, due to investment in innovative facilities with the promise of greater pollution reduction in the future or due to government orders to convert from cleaner fuels to coal.

Section II analyzes two specific relief …

Books Received, Michigan Law Review

Michigan Law Review

A List of Books Received by 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

Judicial Competence And Fundamental Rights, Earl S. Maltz, Ira C. Lupu

Michigan Law Review

In the April 1979 issue of the Michigan Law Review, Professor Ira Lupu added his valuable contribution to the continuing debate on the problem of defining the nature of fundamental rights under the Constitution. In many respects his article is a wholly admirable piece of scholarship, both well-researched and carefully reasoned. However, on one issue - the question of judicial competence to identify the values he defines as fundamental - Professor Lupu's discussion is seriously deficient. This letter will examine the problem of judicial competence and conclude that it is fatal to Professor Lupu's conception of the appropriate role …

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 78, Issue 1 of Michigan Law Review

Recent Books, Michigan Law Review

Michigan Law Review

A List of Books Received by Michigan Law Review

Alternative Models Of Ante-Mortem Probate And Procedural Due Process Limitations On Succession, Gregory S. Alexander, Albert M. Pearson

Michigan Law Review

In this Article, we shall challenge that assumption and propose a workable scheme of ante-mortem probate that both protects the testamentary plan against strike suits and preserves the confidentiality of the plan during the testator's lifetime. Section I reviews the conservatorship model as developed by Professor Langbein and identifies its objectionable features. In Section II, we address the general constitutional question of what property interests command due process protection. This context poses the constitutional problem narrowly, but our analysis has broad implications regarding constitutional notice requirements for any probate reform. Concluding in that Section that due process does not compel …

The Validity Of Ordinances Limiting Condominium Conversion, Michigan Law Review

Michigan Law Review

In 1974, the New York Times ran a front-page story about the dilemma of an elderly woman who lived in a Washington, D.C., apartment building that was being converted into a condominium. On a limited budget, she faced the choice of either finding a new place to live in the tight Washington housing market or paying $2000 down and $422.50 in monthly installments for the same one-bedroom apartment she had been renting for $ 155.00 per month. The woman's situation is not unusual: a federal study estimates that owners have recently converted 60,000 rental apartment units to condominiums, and real …

What Causes Fundamental Legal Ideas? Marital Property In England And France In The Thirteenth Century, Charles Donahue Jr.

Michigan Law Review

Categorizing broadly, the marital property systems of the Western nations today are divided into two types: those in which husband and wife own all property separately except those items that they have expressly agreed to hold jointly (in a nontechnical sense) and those in which husband and wife own a substantial portion or even all of their property jointly unless they have expressly agreed to hold it separately. The system of separate property is the "common law" system, in force in most jurisdictions where the Anglo-American common law is in force. The system of joint property is the community property …

Periodical Index, Michigan Law Review

Michigan Law Review

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

Roe V. Wade And The Lesson Of The Pre-Roe Case Law, Richard Gregory Morgan

Michigan Law Review

The politically unsettled and judicially confused law of abortion in 1971 and 1972, when the Court twice heard arguments and deliberated Roe, should have warned it not to decide the case. By doing so; the Court thrust itself into a political debate and stunted the development of a thoughtful lower-court case law. If the Court did perceive the warnings but continued toward a decision anyway, perhaps trusting that its own considerable wits would devise an answer the lower courts had not, the result suggests that the judicial system's axioms deserve more respect than they received. This Article, by showing …