Law Commons^™

Coal Policy--Need It Be The West Against The Rest?, C. Peter Goplerud Iii, Duffy Ruimerman

University of Michigan Journal of Law Reform

This Article will analyze the legal issues involved in this "West against the rest" conflict. While numerous areas of disagreement exist within the larger picture of Western-federal relations, the Article will focus on two specific issues of present concern. First, the Article will explore the role of the states under the Surface Mining Control and Reclamation Act of 1977. This section includes an analysis of recent litigation involving regulations promulgated by the Secretary of the Interior relating to the establishment of state mining programs. Second, the Article will address the imposition of state severance taxes on coal, with particular emphasis …

Corporate Indemnification Of Directors And Officers: Time For A Reappraisal, K.G. Jan Pillai, Craig Tractenberg

University of Michigan Journal of Law Reform

This Article evaluates the benefits and burdens of shifting litigation risk from management to the enterprise. The Article begins by considering the nature of the legal risks confronting the corporate executive, and the principles of common law that developed to counter those risks. The Article proceeds to assess the two statutory responses to threats of personal liability against the corporate executive: indemnification statutes, and director and officer insurance. Finally, after comparing the effective absolute immunity available to corporate executives with the qualified immunity enjoyed by high-level government officials, the Article concludes that indemnification practices have overinsulated the corporate officer from …

The Courts And The 1980 Census Challenges: Tailoring Rights To Fit Remedies, David B. Tachau

University of Michigan Journal of Law Reform

This Note thus presents a vivid illustration of how the recognition of legal rights sometimes may depend wholly upon the efficacy of awarding relief. Parts I and II survey the 1980 census challenges and explore whether the 1980 litigants presented sound grievances. Part III argues that the 1980 census challengers may have failed because the reviewing courts could envision no feasible remedies for their injuries, and not because the challengers presented flawed legal and constitutional arguments. Finally, part IV criticizes the courts for dismissing the census challenges without confronting or acknowledging the gravity of the constitutional injuries threatened by census …

Parent-Child Incest: Proof At Trial Without Testimony In Court By The Victim, Dustin P. Ordway

University of Michigan Journal of Law Reform

This Note argues that the incest victim should not testify personally at trial. Rather, the child's testimony should be replaced with tape-recorded pretrial examinations of the victim by an expert, supplemented by the in-court testimony of the examining expert. Part I discusses how the present system of requiring in-court testimony by the victim harms the child, fails to correct the incest problem, and produces unreliable evidence. Part II outlines and discusses the merits of the proposed reform. Part ill examines the proposed reform in light of the defendant's constitutional rights to due process and to confront witnesses against him. The …

Comparison Evidence In Obscenity Trials, Marguerite Munson Lentz

University of Michigan Journal of Law Reform

This Article critiques the approach endorsed in Hamling, particularly regarding the Court's failure to consider how the presentation of proof in an obscenity trial affects the defendant's constitutional rights. The Article urges that relevant comparison evidence should be admissible despite the risk of confusion or the opportunity to present expert testimony, and furthermore, that a court should be required to make explicit its findings regarding the relevancy of comparison evidence. Part I of the Article demonstrates the constitutional significance to the obscenity defendant of evidence, particularly comparison exhibits, bearing on prevailing community standards. Part II considers the assessment of …

Regulatory Reform In The Intercity Bus Industry, Cornish F. Hitchcock

University of Michigan Journal of Law Reform

This Article will analyze the economic structure of the intercity bus industry and the type of service received by the public under the present regulatory scheme. It will then discuss what regulatory reforms could improve service, how these issues are addressed in the recent House-passed bill, and what further legislative reforms should be made.

A Proposal For Apportioning Damages In Fair Representation Suits, Kenneth B. Mcclain

University of Michigan Journal of Law Reform

Apportionment of damages in fair representation suits represents one of the most unsettled issues in labor law today. Although the Supreme Court has attempted to establish a single "governing principle" for apportioning damages, lower courts have read this principle as authorizing two divergent standards for apportionments. Part I of this article traces the evolution from the Court's original standard presented in Vaca v. Sipes through two subsequent applications of that standard: the Czosek v. O'Mara standard, which interpreted Vaca as placing the bulk of damages on the employer, and Justice Stewart's standard taken from his concurrence in Hines v. Anchor …

Beyond Custody: Expanding Collateral Review Of State Convictions, Timothy C. Hester

University of Michigan Journal of Law Reform

This article advocates extension of collateral review to embrace all parties alleging deprivation of federally guaranteed rights in the state criminal process, regardless of whether the party fulfills the habeas corpus custody requirement. Part I assesses the sufficiency of Supreme Court certiorari jurisdiction to monitor adequately state adjudications of federal constitutional rights, coupled with an evaluation of the technical competency and institutional posture of state courts. Part II examines the significance of the custody limitation on collateral review, both as a substantive element of habeas corpus relief and as a mechanism for funnelling limited judicial resources. Part III presents two …

The Nonprofit Health Care Corporation Reform Act Of 1980, David L. Hollister, Patience A. Drake

University of Michigan Journal of Law Reform

In recent years, Blue Cross/Blue Shield has been the subject of considerable controversy. Its critics charge the non-profit, tax-exempt corporation with being unduly secretive, arrogantly unresponsive to consumer interest and not vigorous in its cost containment efforts. These criticisms, along with a variety of other factors, led to the legislative reform I am here to talk to you about this evening.

Implied Private Rights Of Action Under The Securities Act Of 1933 Section 17(A), Steven M. Stankewicz

University of Michigan Journal of Law Reform

This article considers the existence of a private right of action under Securities Act section 17(a). Part I examines the evolving implication doctrines, and their applicability to section 17(a).Part II discusses the need for a statutory solution and the treatment of implied rights of action under the American Law Institute's proposed Federal Securities Code.

Workers' Compensation Reform: A Case Study Of The Legislative Process In Michigan, Robert Vanderlaan, Richard K. Studley

University of Michigan Journal of Law Reform

At a 1979 workers' compensation seminar for the Michigan Legislature, University of Michigan law professor Marcus Plant closed by noting that "[m]y intent was to sketch in broad strokes the background of our workers' disability compensation law. It is my firm belief that wise decisions as to where we should go cannot be made unless we know how we got where we are. " I share Professor Plant's belief. I feel strongly that wise public policy decisions about where we should go next in the reform process depend substantially on a good understanding of how we got where we are …

Abolishing The "Extraordinary Nuclear Occurrence" Threshold Of The Price-Anderson Act, Dean R. Tousley

University of Michigan Journal of Law Reform

This article critically examines the extraordinary nuclear occurrence threshold in light of its congressional purpose. Part I surveys the Price-Anderson Act's nuclear liability scheme. Part II focuses on the extraordinary nuclear occurrence threshold, scrutinizing its content and its application to the Three Mile Island accident. Part III discusses the need for reform of the nuclear liability waiver of defenses scheme, concluding that the threshold should be abolished.

Bankruptcy Court Jurisdiction To Modify Alimony Payments Of Chapter 13 Debtors, Peter Swiecicki

University of Michigan Journal of Law Reform

This article examines a bankruptcy court's power to modify a chapter 13 debtor's alimony payments. Part I discusses the bankruptcy court's jurisdiction in chapter 13 cases and the connection between the chapter 13 case and alimony modification proceedings. It then outlines the domestic relations limitation and the resulting conflict between bankruptcy courts and state courts with respect to alimony modification. Part II analyzes various arguments for and against allowing bankruptcy courts to hear alimony modification requests in chapter 13 cases. This analysis reveals that any state interests are far outweighed by the substantial benefits to be gained from consolidating the …

The Privacy Protection Act Of 1980: Curbing Unrestricted Third-Party Searches In The Wake Of Zurcher V. Stanford Daily, Jose M. Sariego

University of Michigan Journal of Law Reform

This article analyzes the Privacy Protection Act as a response to Zurcher. Part I discusses the Zurcher decision and its effect on First and Fourth Amendment rights, as well as its impact on state testimonial privileges. Part II critically examines key features of the statute, focusing on the parties and materials protected, the police practices regulated, the remedies provided for violations, and the Act's constitutional underpinnings. Part II also offers suggestions for remedying the problems the Act currently presents. The article concludes that the Privacy Protection Act, while a necessary first step to minimizing the impact of Zurcher, is …

Reflections On Alfred Hill's "Testimonial Privilege And Fair Trial", Peter Westen

University of Michigan Journal of Law Reform

I have learned a great deal from "Testimonial Privilege and Fair Trial"-as I always do from Professor Hill's work. Indeed, he has changed my way of thinking in this area in several important respects. At the same time, I come to rather different conclusions than he regarding each of his three major topics. Part I of this article examines the problem of finding a "remedy" for testimonial privileges that violate a defendant's right to a fair trial. Part II discusses the problem of determining when a defendant is entitled to assert that the "right" has been violated. Finally, Part III …

Selected Problems In Wrap-Around Financing: Suggested Approaches To Due-On-Sale Clauses And Purchaser's Depreciable Basis, Sanford M. Guerin

University of Michigan Journal of Law Reform

This article will address two unresolved issues surrounding the WA transaction which result from the inherent flexibility available for negotiating financing terms in the absence of an institutional lender. Part I discusses the circumstances warranting exclusion of the WA loan from the purchaser's depreciable basis. Part II addresses whether, and when, a due-on-sale clause in the senior mortgage should negate the possibility of utilizing WA financing.

The Social And Political Challenge Of Inflation: An Economist's View, Harold T. Shapiro

University of Michigan Journal of Law Reform

This Special Issue of the Journal of Law Reform has been nourished, at least in an emotional sense, by this same concern. The editors of the Journal apparently share the widespread frustration regarding what seem to increasing numbers of citizens as the largely intractable nature of the country's current economic ills. There is a certain apprehension that we may not be able to develop solutions to our lagging productivity, to our continuing inflation and unemployment, to our energy "problem," or to a host of other "economic" issues currently outstanding on the national agenda: unemployment of young people and minorities, environmental …

Preface, Journal Of Law Reform

University of Michigan Journal of Law Reform

This Special Issue of the Journal of Law Reform explores the relationship between law and a troubled United States economy. Persistent inflation, declining productivity, plant closings in basic industries, and a host of other economic ills have forced the legal system to respond in at least two fundamental ways. First, the law has been called upon to solve economic crises. Wage-price controls and aggressive antitrust enforcement present two examples of this more activist role. Secondly, the law has had to adapt to a fluctuating economic landscape. In areas such as antitrust, pension, and bankruptcy law, courts and legislatures have had …

The Monopoly Component Of Inflation In Food Prices, Neal Smith

University of Michigan Journal of Law Reform

Part I examines monopoly power in the food industry, paying close attention to the increased economic strength of monopolies and the economic costs caused by monopoly power. Part II details the problems resulting from monopoly power in one segment of the food industry-the meatpacking industry. Part III calls upon the Congress to undertake new antitrust initiatives to reverse the food industry's trend toward increasing concentration. It cannot be said with certainty that food price inflation would totally disappear if the consumer loss due to monopoly were removed from the food manufacturing and retailing sectors. Doing away with these losses, however, …

Tax-Based Incomes Policy (Tip) As A Alternative To Wage And Price Controls, Steven R. Hunsicker

University of Michigan Journal of Law Reform

Part I of this article will evaluate the major arguments opposing such policies against the background of the recent American experience with wage and price controls. Part II, in light of the applicability of these arguments to TIPs, will consider whether some variant of TIP could realize the claimed benefits while minimizing the economic and administrative costs usually associated with wage and price controls.

Failing Companies And The Antitrust Laws, Janet L. Mcdavid

University of Michigan Journal of Law Reform

This article will examine two areas in which the courts have given financially-troubled companies special treatment under the antitrust laws. Part I discusses the acquisition of a failing company, which may constitute a judicially-created exemption from section 7 of the Clayton Act. Part II considers certain cases involving failing companies whose conduct is challenged under section 1 of the Sherman Act.

Antitrust Law, Competition, And The Macroeconomy, Peter C. Carstensen

University of Michigan Journal of Law Reform

This article examines the links between antitrust law-one possible tool for dealing with economic ills-and macroeconomic structure. It analyzes the current policy and economic assumptions underlying the importance of antitrust enforcement in reaching a healthy, competitive economy and concludes that such enforcement does contribute to the increased effectiveness of macroeconomic tools.

Part I explores the current macroeconomic theories and their policy implications. Part II discusses the related concepts of market power and competition and concludes that dissipation of market power is preferable, but that the regulation of market power may yield significant social and economic benefits in the short run, …

Filing For Personal Bankruptcy: Adoption Of A "Bona Fide Effort" Test Under Chapter 13, Stephan M. Vidmar

University of Michigan Journal of Law Reform

Part I discusses the history and current application of the Chapter 13 wage earner relief provisions, focusing on the present "good faith" controversy. Part II analyzes the "bona fide effort" test and examines its current congressional status. Part III suggests that more specific statutory guidance is necessary in order to effectively apply the "bona fide effort" test and recommends specific guidelines for its use. The article concludes that by following such a set of standard guidelines when applying the "bona fide effort" test, bankruptcy courts would promote uniform treatment of debtors, enhance judicial economy, and facilitate appellate review of Chapter …

Advance Notice Of Plant Closings: Toward National Legislation, Joseph A. Cipparone

University of Michigan Journal of Law Reform

This article advocates the adoption of national legislation requiring advance notice for plants closed or relocated for ostensibly economic reasons. Part I discusses the magnitude of the plant closing problem, focusing upon the costs associated with such closings, the types of assistance available for terminated workers, and the inadequacies of current relief efforts. Parts II and III examine the arguments for and against requiring advance notice of plant closings, and conclude that such a requirement represents sound public policy. Part IV proposes a complete model advance notice statute. The model statute establishes minimum requirements for a viable advance notice system, …

Protecting Retired Workers From Inflation: Collective Bargaining For Retiree Benefits, Richard M. Bank, Thomas C. Woodruff

University of Michigan Journal of Law Reform

The purpose of this article is to explore whether the collective bargaining process in its present form, or with certain modifications, can provide workers with meaningful protection against inflation. Part I evaluates the adequacy of the collective bargaining process by examining the internal dynamics of unions, the interests of employers and the application of the doctrine of fair representation to collective bargaining. After concluding that the current system inadequately protects retirees, Part II proposes alternative methods to strengthen the role of retirees in the collective bargaining process.

Consumer Warranty Claims Against Companies In Chapter 11 Reorganizations, Elizabeth Warner

University of Michigan Journal of Law Reform

This article examines the rights of individuals who have purchased warranted goods from a business that subsequently undergoes reorganization under Chapter 11 of the Bankruptcy Reform Act of 1978. Part I establishes that warranty rights are claims in bankruptcy and outlines the procedure that must be followed by a creditor for distribution from the debtor's estate. Part II focuses on how warranty claims are treated in Chapter 11. Part III discusses ways to alleviate the warranty creditor's representational burden, particularly through the intervention and aid of public interest groups. This article concludes that . warranty creditors will receive favorable treatment …