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2009

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Articles 91921 - 91950 of 95685

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Front Matter Jan 2009

Front Matter

Michigan Law Review

No abstract provided.


Front Matter Jan 2009

Front Matter

Michigan Law Review

No abstract provided.


Can Courts Repair The Crumbling Foundation Of Good Citizenship? An Examination Of Potential Legal Challenges To Social Studies Cutbacks In Public Schools, Eli Savit Jan 2009

Can Courts Repair The Crumbling Foundation Of Good Citizenship? An Examination Of Potential Legal Challenges To Social Studies Cutbacks In Public Schools, Eli Savit

Michigan Law Review

In the wake of No Child Left Behind, many public schools have cut or eliminated social studies instruction to allot more time for math and literacy. Given courts' repeated celebration of education as the "foundation of good citizenship," this Note examines potential legal claims and litigation strategies that could be used to compel social studies instruction in public schools. This Note contends that the federal judiciary's civic conception of education leaves the door slightly ajar for a Fourteenth Amendment chrallenge on behalf of social studies-deprived students, but the Supreme Court's refusal in San Antonio v. Rodriguez to recognize education as …


Front Matter Jan 2009

Front Matter

Michigan Law Review

No abstract provided.


The Many Faces Of Fault In Contract Law: Or How To Do Economics Right, Without Really Trying, Richard A. Epstein Jan 2009

The Many Faces Of Fault In Contract Law: Or How To Do Economics Right, Without Really Trying, Richard A. Epstein

Michigan Law Review

Modern law often rests on the assumption that a uniform cost-benefit formula is the proper way to determine fault in ordinary contract disputes. This Article disputes that vision by defending the view that different standards of fault are appropriate in different contexts. The central distinction is one that holds parties in gratuitous transactions only to the standard of care that they bring to their own affairs, while insisting on the higher objective standard of ordinary care in commercial transactions. That bifurcation leads to efficient searches. Persons who hold themselves out in particular lines of business in effect warrant their ability …


When Is A Willful Breach "Willful"? The Link Between Definitions And Damages, Richard Craswell Jan 2009

When Is A Willful Breach "Willful"? The Link Between Definitions And Damages, Richard Craswell

Michigan Law Review

The existing literature on willful breach has not been able to define what should count as "willful." I argue here that any definition we adopt has implications for just how high damages should be raised in those cases where a breach qualifies as willful. As a result, both of these issues-the definition of "willful," and the measure of damages for willful breach-need to be considered simultaneously. Specifically, if a definition of "willful" excludes all breachers who behaved efficiently, then in theory we can raise the penalty on the remaining inefficient breachers to any arbitrarily high level ("throw the book at …


The Case For The Third-Party Doctrine, Orin S. Kerr Jan 2009

The Case For The Third-Party Doctrine, Orin S. Kerr

Michigan Law Review

This Article offers a defense of the Fourth Amendment's third party doctrine, the controversial rule that information loses Fourth Amendment protection when it is knowingly revealed to a third party. Fourth Amendment scholars have repeatedly attacked the rule on the ground that it is unpersuasive on its face and gives the government too much power This Article responds that critics have overlooked the benefits of the rule and have overstated its weaknesses. The third-party doctrine serves two critical functions. First, the doctrine ensures the technological neutrality of the Fourth Amendment. It corrects for the substitution effect of third parties that …


The Success Of Chapter 11: A Challenge To The Critics, Elizabeth Warren, Jay Lawrence Westbrook Jan 2009

The Success Of Chapter 11: A Challenge To The Critics, Elizabeth Warren, Jay Lawrence Westbrook

Michigan Law Review

Although Chapter 11 has served as a model for bankruptcy reform around the world, the conventional wisdom has been that it is characterized by a relatively low success rate and endless delay. The data from large samples of Chapter 11 cases filed in 1994 and 2002 demonstrate that this characterization is wrong. Nearly all troubled companies choose Chapter 11 over Chapter 7 liquidation, which means that the system serves a critical screening function to eliminate hopeless cases relatively quickly. Almost half the unsuccessful cases were jettisoned within six months and almost eighty percent were gone within a year The cases …


Evaluating Punishment In Purgatory: The Need To Separate Pretrial Detainees' Conditions-Of-Confinement Claims From Inadequate Eighth Amendment Analysis, David C. Gorlin Jan 2009

Evaluating Punishment In Purgatory: The Need To Separate Pretrial Detainees' Conditions-Of-Confinement Claims From Inadequate Eighth Amendment Analysis, David C. Gorlin

Michigan Law Review

The Due Process Clause prohibits all "punishment" of pretrial detainees- individuals that are held by the Government, but not adjudged guilty of any crime. The Eighth Amendment only prohibits the infliction of "cruel and unusual punishments" upon convicted individuals. Despite the Supreme Court's insistence that the Due Process Clause, and not the Eighth Amendment, protects pretrial detainees from deplorable and harmful conditions of confinement, most federal circuits now assess pretrial detainees' claims under Eighth Amendment standards. Under the Eighth Amendment framework, pretrial detainees must establish that conditions subjected them to a substantial risk of serious harm, and that jailers were …


Front Matter Jan 2009

Front Matter

Michigan Law Review

No abstract provided.


Voice, Self, And Persona In Legal Writing, Chris Rideout Jan 2009

Voice, Self, And Persona In Legal Writing, Chris Rideout

Faculty Articles

From the author's view, sorting out the complexity of voice—and discussing voice in legal prose—requires a rethinking of who the writer is in legal discourse and, importantly, how that writer is represented in legal prose. It becomes a question not of self expression, but of self-representation and persona. This article will first look at discussions of voice in writing—beginning with what we might mean by voice, then with discussion of personal voice, and then of professional voice. The article then offers another model for looking at voice — a discoursal model — and use that model to reconstruct the idea …


Richard Delgado And The Politics Of Citation, Robert S. Chang Jan 2009

Richard Delgado And The Politics Of Citation, Robert S. Chang

Faculty Articles

Twenty-five years ago, Professor Richard Delgado published The Imperial Scholar. The article asserted that a group of white scholars dominated the field of civil rights scholarship to the exclusion of minority scholars. It created a firestorm of sorts with what one critic called a "serious charge of invidious racism on the part of respected legal scholars." Professor Derrick Bell described the piece as "an intellectual hand grenade, tossed over the wall of the establishment as a form of academic protest." Whether as firestorm or grenade, this foundational piece had a tremendous impact on the legal landscape. This brief essay examines …


Democratizing The Courts: How An Amicus Brief Helped Organize The Asian American Community To Support Marriage Equality, Robert S. Chang, Karin Wang Jan 2009

Democratizing The Courts: How An Amicus Brief Helped Organize The Asian American Community To Support Marriage Equality, Robert S. Chang, Karin Wang

Faculty Articles

In this essay, the authors offer an alternative rationale for amicus practice. This rationale emerges from thier experience working on a brief in support of marriage equality that sixty-three Asian American organizations endorsed. They found that an amicus brief can be an effective tool to engage and educate community-based organizations and their constituencies, thereby helping to advance social justice issues. Their story also illustrates how amicus practice can be used to organize communities around a legal issue and to democratize the courts. In this way, even if the effect of amicus briefs on litigation outcomes may be marginal, the process …


How Privacy Killed Katz: A Tale Of Cognitive Freedom And The Property Of Personhood As Fourth Amendment Norm, Christian Halliburton Jan 2009

How Privacy Killed Katz: A Tale Of Cognitive Freedom And The Property Of Personhood As Fourth Amendment Norm, Christian Halliburton

Faculty Articles

This article seeks for the very first time to inform that debate with a notion of property as an essential aspect of human identity in a "mash-up of sorts that might be called Fourth Amendment jurisprudence meets the Radinesque Property of Personhood. Using an expanded version of the notion of property developed by Professor Margaret Radin in her pioneering work Property and Personhood, the Fourth Amendment must contend with the social reality that some aspects of "ownership" or entitlement to property, and some level of vindication of those interests, are essential to the formation and viability of complete human beings. …


Critical Error: Courts’ Refusal To Recognize Intentional Race Discrimination Findings As Constitutional Facts, Bryan Adamson Jan 2009

Critical Error: Courts’ Refusal To Recognize Intentional Race Discrimination Findings As Constitutional Facts, Bryan Adamson

Faculty Articles

Critical Error: Courts’ Refusal To Recognize Intentional Race Discrimination Findings as Constitutional Facts raises a novel double standard: while fact-specific trial court findings of actual malice are reviewed under the “independent judgment” standard (a wholesale re-weighting of the trial court record and decision) on appeal, intentional race discrimination findings are reviewed under the far more deferential Federal Rule of Civil Procedure 52 clear error standard. Both legal concepts are arrived at through assessing state-of-mind determinations; both directly trigger constitutional proscriptions. Only actual malice, however, is classified as a constitutional fact, thus taking it out of the more deferential standard of …


Asking Jurors To Do The Impossible: A Response To Peter Tiersma, Janet Ainsworth Jan 2009

Asking Jurors To Do The Impossible: A Response To Peter Tiersma, Janet Ainsworth

Faculty Articles

Comments from Janet Ainsworth at the Summers-Wyatt Symposium - Asking Jurors to Do the Impossible - Friday March 27, 2009 Transcript.


International Judicial Affairs, Robert Alsdorf Jan 2009

International Judicial Affairs, Robert Alsdorf

Faculty Articles

The article reports on training programs launched by several countries for their judges. It is reported that the International Judicial Affairs (IJA) Committee was established in the U.S. in the year 2007 to develop opportunities for judges to work with fellow judges in other jurisdictions in mutually beneficial ways. Sierra Leone, as reported, has also carried out reforms in their legal system through their Justice Sector Reform Programme (JSRP).


Knocked Down Again: An East L.A. Story On The Geography Of Color And Colors, Steven W. Bender Jan 2009

Knocked Down Again: An East L.A. Story On The Geography Of Color And Colors, Steven W. Bender

Faculty Articles

The article discusses the history of struggle of Latin Americans and the legacy of gang violence in East Los Angeles, California. The author states that the positive thing about the place is the closeness of the community and families. However, the 2000 Census states that ninety-seven percent of the city's population is Latin American with about a quarter living below poverty line. Moreover, sociologists consider gang warfare as a defense of turf marked by defined geographic boundaries.


Secrecy And Democratic Decisions, Mark A. Chinen Jan 2009

Secrecy And Democratic Decisions, Mark A. Chinen

Faculty Articles

Secrecy to protect intelligence sources and methods appears often in the nation's discourse about controversial national security matters. Often it is asked whether such secrecy is consistent with the nation's democratic principles and processes. This article argues such principles and processes provide a framework through which we try to answer questions about secrecy and indeed legitimate them, but are often too broad to provide definitive guidance in specific cases. At the same time, the sources and methods argument itself is overbroad because of the nature of the sources and methods themselves; the tentative nature of intelligence assessments derived from those …


Marks Of Rectitude, Margaret Chon Jan 2009

Marks Of Rectitude, Margaret Chon

Faculty Articles

Trademarks and certification marks increasingly denote sustainability or social responsibility standards. These marks of rectitude are particularly noticeable in the context of global trade, where market integration is accompanied by relatively uneven integration of environmental, labor and other standards, and where consumers in the so-called global North choose how to empower producers and/or encourage development of markets in the global South. But consumer participation in these transactions is under-explored by reference to criteria such as the quality not to mention accountability and transparency of the standards embedded within the goods or services. Newer stakeholders and meaning-makers such as the largely …


Recovering Access: Rethinking The Structure Of Federal Civil Rulemaking, Brooke Coleman Jan 2009

Recovering Access: Rethinking The Structure Of Federal Civil Rulemaking, Brooke Coleman

Faculty Articles

Access to the justice system, which is broadly defined in the article as the opportunity to resolve the merits of a legal claim, is declining. One source of this decline is the Civil Rules. This article examines how the institutional failings of the civil rulemaking process have allowed for the production of rules that diminish access. Rule 1 of the Federal Rules of Civil Procedure provides that the Civil Rules should facilitate the "just, speedy, and inexpensive resolution" of legal claims. While the Civil Rules Committee considers this timeworn mandate when drafting the rules, there is no agreement about how …


Crossover, Richard Delgado Jan 2009

Crossover, Richard Delgado

Faculty Articles

Should minority writers aim for a "crossover" audience of mainstream (white) readers or write mainly for a circle of readers like themselves, viz., minorities or people of color? Despite the attractions of achieving crossover status -- including fame, fortune, and book reviews -- the article argues that writers of color should usually visualize an audience of their peers, that is, readers of color. Writing for a broad audience of mostly white readers risks that the minority writer will adopt topics, language, and approaches that will appeal and ring true to this group. Consciously or unconsciously the writer may pull his …


Liberal Mccarthyism And The Origins Of Critical Race Theory, Richard Delgado Jan 2009

Liberal Mccarthyism And The Origins Of Critical Race Theory, Richard Delgado

Faculty Articles

The article discusses the emergence of liberal McCarthyism and the origins of critical race theory in the U.S. It reviews the conflicting stories from Harvard Law School in Massachusetts and the University of California in Berkeley and Los Angeles about critical race theory. The article examines the role of radical professors Kingman Brewster, James Conant, Clark Kerr and Albert Bowker in McCarthyism. The author relates how professors David Trubek, Richard Abel, Staughton Lynd and Anthony Platt lost their job due to liberal McCarthyism.


Externships For Millennial Generation Law Students: Bridging The Generation Gap, Susan Mcclellan Jan 2009

Externships For Millennial Generation Law Students: Bridging The Generation Gap, Susan Mcclellan

Faculty Articles

This article examines the literature about our newest generation of law students, the Millennials, and offers suggestions to help externship faculty work with supervisors and students to avoid potential problems that may arise from generational differences. After reviewing the literature, the article discusses both positive and negative Millennial generation traits and explains how identified generational problems might arise in externship field placements. The article then offers suggestions from psychologists, managerial literature, and the author's experience to help externship directors and faculty work with field supervisors and students to avoid or resolve issues. The article concludes that members of the Millennial …


A Tragedy Of The Commons: Property Rights Issues In Shanghai Historic Residences, Kara Phillips, Amy Sommers Jan 2009

A Tragedy Of The Commons: Property Rights Issues In Shanghai Historic Residences, Kara Phillips, Amy Sommers

Faculty Articles

This article explores the tensions between China’s newly privatized model of urban housing ownership and its socialist foundations. Through a combination of interviews and local research, the authors investigate the evolution of property ownership in Shanghai’s architecturally-distinctive stock of historic housing, encompassing various architectural periods and styles (including leading examples of Art Deco), which have gone through periods of private ownership (pre-1949), gradual socialization (1949-1965), militant squatting and occupation (1966-1976), and now privatization (1977 to current). Originally single-family residences, many were gerrymandered into multi-family units, in which the original owner/resident was relegated a small portion of space, and the remainder …


Elevated Corticotropin-Releasing Hormone In Human Pregnancy Increases The Risk Of Postpartum Depressive Symptoms, Ilona S. Yim, Laura M. Glynn, Christine Dunkel Schetter, Calvin J. Hobel, Aleksandra Chicz-Demet, Curt A. Sandman Jan 2009

Elevated Corticotropin-Releasing Hormone In Human Pregnancy Increases The Risk Of Postpartum Depressive Symptoms, Ilona S. Yim, Laura M. Glynn, Christine Dunkel Schetter, Calvin J. Hobel, Aleksandra Chicz-Demet, Curt A. Sandman

Psychology Faculty Articles and Research

Postpartum depression (PPD) is common and has serious implications for the mother and her newborn. A possible link between placental corticotropin-releasing hormone (pCRH) and PPD incidence has been discussed, but there is a lack of empirical evidence.


Maturation Of The Human Fetal Startle Response: Evidence For Sex-Specific Maturation Of The Human Fetus, Claudia Buss, Elyssia Poggi Davis, Quetzal A. Class, Matt Gierczak, Carol Pattillo, Laura M. Glynn, Curt A. Sandman Jan 2009

Maturation Of The Human Fetal Startle Response: Evidence For Sex-Specific Maturation Of The Human Fetus, Claudia Buss, Elyssia Poggi Davis, Quetzal A. Class, Matt Gierczak, Carol Pattillo, Laura M. Glynn, Curt A. Sandman

Psychology Faculty Articles and Research

Despite the evidence for early fetal experience exerting programming influences on later neurological development and health risk, very few prospective studies of human fetal behavior have been reported. In a prospective longitudinal study, fetal nervous system maturation was serially assessed by monitoring fetal heart rate (FHR) responses to vibroacoustic stimulation (VAS) in 191 maternal/fetal dyads. Responses were not detected at 26 weeks gestational age (GA). Sex-specific, age-characteristic changes in the FHR response to VAS were observed by 31 weeks' GA. Males showed larger responses and continued to exhibit maturational changes until 37 weeks'GA, females however, presented with a mature FHR …


Intergenerational Wealth Transmission And The Dynamics Of Inequality In Small-Scale Societies, Monique Borgerhoff Mulder, Samuel Bowles, Tom Hertz, Adrian Bell, Jan Beise, Greg Clark, Ila Fazzio, Michael Gurven, Kim Hill, Paul L. Hooper, William Irons, Hillard Kaplan, Donna Leonetti, Bobbi Low, Frank Marlowe, Richard Mcelreath, Suresh Naidu, David Nolan, Patrizio Piraino, Robert Quinlan, Eric Schniter, Rebecca Sear, Mary Shenk, Eric Alden Smith, Christopher Von Reuden, Polly Wiessner Jan 2009

Intergenerational Wealth Transmission And The Dynamics Of Inequality In Small-Scale Societies, Monique Borgerhoff Mulder, Samuel Bowles, Tom Hertz, Adrian Bell, Jan Beise, Greg Clark, Ila Fazzio, Michael Gurven, Kim Hill, Paul L. Hooper, William Irons, Hillard Kaplan, Donna Leonetti, Bobbi Low, Frank Marlowe, Richard Mcelreath, Suresh Naidu, David Nolan, Patrizio Piraino, Robert Quinlan, Eric Schniter, Rebecca Sear, Mary Shenk, Eric Alden Smith, Christopher Von Reuden, Polly Wiessner

Psychology Faculty Articles and Research

Small-scale human societies range from foraging bands with a strong egalitarian ethos to more economically stratified agrarian and pastoral societies. We explain this variation in inequality using a dynamic model in which a population’s long-run steady-state level of inequality depends on the extent to which its most important forms of wealth are transmitted within families across generations. We estimate the degree of intergenerational transmission of three different types of wealth (material, embodied, and relational), as well as the extent of wealth inequality in 21 historical and contemporary populations. We show that intergenerational transmission of wealth and wealth inequality are substantial …


Evidence For Menstrual Cycle Shifts In Women’S Preferences For Masculinity: A Response To Harris (In Press) “Menstrual Cycle And Facial Preferences Reconsidered", Lisa Debruine, Benedict C. Jones, David Frederick, Martie Haselton, Ian S. Penton-Voak, David I. Perrett Jan 2009

Evidence For Menstrual Cycle Shifts In Women’S Preferences For Masculinity: A Response To Harris (In Press) “Menstrual Cycle And Facial Preferences Reconsidered", Lisa Debruine, Benedict C. Jones, David Frederick, Martie Haselton, Ian S. Penton-Voak, David I. Perrett

Psychology Faculty Articles and Research

Over the last decade, a growing literature has shown that women in the fertile phase of the menstrual cycle demonstrate stronger preferences for men with masculine traits than they do when in the non-fertile phases of the cycle (see Gangestad and Thornhill, 2008 and Jones et al., 2008 for recent reviews). In a recent article, Harris (in press; Sex Roles) failed to replicate this increase in women's preferences for masculine faces when women are near ovulation. Harris represented her study as one of only three studies on the topic, and as the largest of the existing studies. There are, however, …


Review Of The Americanization Of Social Science: Intellectuals And Public Responsibility In The Postwar United States. David Paul Haney. Reviewed By Richard K. Caputo., Richard K. Caputo Jan 2009

Review Of The Americanization Of Social Science: Intellectuals And Public Responsibility In The Postwar United States. David Paul Haney. Reviewed By Richard K. Caputo., Richard K. Caputo

The Journal of Sociology & Social Welfare

Book review of David Paul Haney, The Americanization of Social Science: Intellectuals and Public Responsibility in the Postwar United States. Philadelphia, PA: Temple University Press, 2008. $54.50, hardcover, $24.95 papercover.