Law Commons^™

Using The Federal Tort Claims Act To Remedy Property Damage Following Customs Service Seizures, Richard F. Neidhardt

University of Michigan Journal of Law Reform

Part I of this Note explains the general application of the FTCA to tort claims asserted against the federal government. Part II demonstrates the inadequacy of current judicial arguments regarding the adjudication of detention-related property damage claims under section 2680(c). Part III presents the. policy considerations behind the FTCA and concludes that those considerations allow courts to interpret the Act to cover detention-related property damage claims.

Refining The Lawmaking Function Of The Supreme Court, Frederick Schauer

University of Michigan Journal of Law Reform

In this Article, I will address this second type of lawmaking. I want to explore the ways in which the Supreme Court, in its opinions, does and can guide the conduct of lower courts, legislatures, government agencies, government employees, and the public at large. Each of these groups, and others, is likely at times to have some direct need to know what the law is. And to the extent that part of our law is set forth in the opinions of the Supreme Court, this aspect of the craft of lawmaking should not be ignored. Although it is common in …

Inequality In Marital Liabilities: The Need For Equal Protection When Modifying The Necessaries Doctrine, Debra S. Betteridge

University of Michigan Journal of Law Reform

This Note contends that the "primary/secondary" modification is unconstitutional because it ignores the husband's equal protection rights while unlawfully stigmatizing women as dependent. Part I discusses how the growing independence of women has led courts to modify the common law doctrine. Part II develops the test that the Supreme Court would apply in judging the constitutionality of any modification of the doctrine. Part III applies this test to the "primary/secondary" modification and concludes that the modification is unconstitutional and, therefore, not a legitimate reformation of the common law necessaries doctrine.

Notice To Class Members Under The Fair Labor Standards Act Representative Action Provision, Thomas Ashby

University of Michigan Journal of Law Reform

Federal courts currently apply different standards concerning the permissibility of notice. Although the Ninth Circuit forbids notice and the Seventh Circuit grants plaintiffs a right to send notice, the Second Circuit permits notice only in appropriate cases. This Note advocates that plaintiffs in FLSA and ADEA actions should be allowed to notify potential class members in appropriate cases. Part I analyzes inherent court powers, statutes, legislative history, and federal policies relating to notice. It concludes that enactment of FLSA and ADEA remedies did not alter the inherent power of federal courts to permit or prohibit notice. On the contrary, only …

Developing A Victims' Suit For Injuries Caused By A Compulsorily Released Prisoner, Leonard M. Niehoff

University of Michigan Journal of Law Reform

This Note advocates the development of a tort remedy for victims injured by a compulsorily released prisoner. This remedy would be based on existing tort theory permitting suits against third parties whose negligence causes or facilitates a criminal act. The victim would bring suit against both the state and third parties who aided in the criminal release determination . To support his claim, the victim would allege: (1) that state officials negligently selected the offending inmate for early release; and (2) that the state negligently maintained the unconstitutional prison conditions which precipitated the release.

Part I of this Note discusses …

Recognizing A Constitutional Right Of Media Access To Evidentiary Recordings In Criminal Trials, Teri G. Rasmussen

University of Michigan Journal of Law Reform

This Note advocates recognition of a constitutional right of press access to evidentiary recordings in criminal trials. It proposes methods for accommodating the competing rights of the news media to have access to evidentiary recordings used in criminal trials and the right of criminal defendants to a fair trial. Part I examines the source of controversy and sets forth the limitations inherent in the current common law presumption of press access to judicial records. Part II disusses the underlying values that require recognition of the constitutional right and suggests that such a right can be accommodated with a defendant's right …

Limiting The Use Of The Rico Act As A Defense To Hostile Corporate Takeovers, Mary Ann Lesniak

University of Michigan Journal of Law Reform

This Note argues that RICO could be a legitimate defense to a hostile corporate takeover pursuant to a cash tender off er if shareholders who retain stock will be harmed by the takeover. Part I of this Note examines the general background of the RICO Act. Part II applies the Act to a hostile cash tender offer and examines each element of a civil RICO action. Part III advocates the use of RICO's injury requirement to limit this application of the Act and analyzes the potential injuries to shareholders and management during a hostile cash tender offer. This limitation upon …

Government Compensation For The Costs Of Producting Subpoenaed Documents: A Proposal For Legislative Reform, Norman Gross

University of Michigan Journal of Law Reform

Current statutory and case law provide for the compensation of select categories of persons and entities that provide evidence to the federal government. This compensation scheme is inequitable insofar as it treats similarly situated persons and entities dissimilarly. This Note advocates the adoption of a blanket statutory provision to compensate all third party custodians for incurred costs in producing documents in compliance with a subpoena duces tecum issued on behalf of a federal authority. Part I describes the current federal reimbursement scheme. Part II examines the inequities that the current statutory scheme imposes upon similarly situated entities and argues for …

Improving Jury Deliberations: A Reconsideration Of Lesser Included Offense Instructions, Michael D. Craig

University of Michigan Journal of Law Reform

This Note approves of efforts to avoid hung juries by giving lesser included offense instructions but opposes those instructions that restrict juror decisions and coerce minority jurors. Rather, this Note offers a lesser included offense instruction that promotes flexibility and jury compromise without undermining the deliberative process. Part I describes the problem of hung juries and how courts have tried to prevent them with restrictive lesser included offense instructions. Part II analyzes the coercive impact of restrictive lesser included offense instructions and concludes that an instruction conditioning deliberations upon individual juror disagreement better promotes compromises on the merits while reducing …

The Deduction Of Unemployment Compensation From Back-Pay Awards Under Title Vii, Eric A. Martin

University of Michigan Journal of Law Reform

This Note argues that federal courts should not deduct unemployment insurance benefits from Title VII back-pay awards. Part I reviews the legislative history and purposes behind the remedial provisions of Title VII. Part I also presents the arguments that courts have advanced regarding the deduction of unemployment benefits from Title VII back-pay awards. Part II assesses these arguments in light of analogous common law doctrine and the legislative objectives of Title VII, and advances arguments not yet considered by the courts. Finally, Part II concludes that federal courts should resolve this division of authority by not deducting unemployment benefits from …

Soliciting Sophisticates: A Modest Proposal For Attorney Solicitation, Victor P. Filippini Jr.

University of Michigan Journal of Law Reform

This Note advocates an amendment to the ethical standards governing attorneys that will permit the personal solicitation for pecuniary gain of sophisticated prospective clients - that is, those persons having general knowledge of their legal needs and the expertise to assess adequately the information and presentation of an attorney. Part I of this Note shows that lawyer solicitation is a form of commercial speech under recent Supreme Court decisions. It also asserts that, though the traditional reasons for banning lawyer solicitation still have some validity, these reasons do not justify prohibiting the solicitation of sophisticated clients. Part II suggests some …

Habeas Corpus Review Of State Trial Court Failure To Give Lesser Included Offense Instructions, Michael H. Hoffheimer

University of Michigan Journal of Law Reform

This Note advocates that federal courts review state criminal convictions in habeas corpus proceedings when lesser included offense instructions are available under state law but were not given. Part I demonstrates that granting such review conforms to the modern jurisdictional scope of federal collateral review because failure to give the instructions undermines the fact-finding function of juries and is therefore unconstitutional. Part II analyzes the proper standard of review and determines that the federal interest in protecting the reliability of the fact-finding process should prevail over any conflicting state interest in refusing to give lesser included offense instructions. Part II …

Protection Against Unjust Discharge: The Need For A Federal Statute, Jack Stieber, Michael Murray

University of Michigan Journal of Law Reform

We argue that only a federal statute can fully protect American workers from the harsh consequences of the employment-at-will rule. Part I of this Article outlines the nature and scope of the problems caused by the at-will doctrine. Part II surveys a variety of potential solutions to these problems - unionism, voluntary internal grievance mechanisms, existing statutes, the Constitution, and judicially created exceptions to the at-will rule - and finds each an inadequate source of protection. The final Part urges the enactment of a federal statute to protect all American workers from unjust dicharge and sets out several substantive criteria …

Exploring Voluntary Arbitration Of Individual Employment Disputes, Alfred W. Blumrosen

University of Michigan Journal of Law Reform

This Article outlines an arbitration process which may be employed in individual employment contracts to achieve a fair disposition of disputes, with the maximum finality for an arbitration decision which is consistent with legal principles. Where finality is not possible, arbitration would be a condition precedent to formal legal processes. To assure fairness in the process, the employer would agree to pay the arbitrator's fee and the employee's attorney fees incurred in connection with the arbitration.

Employment Problems Of The Handicapped: Would Title Vii Remedies Be Appropriate And Effective?, Cornelius J. Peck

University of Michigan Journal of Law Reform

This Article argues that the employment problems of the handicapped are not well-suited for treatment under a statutory discrimination model. Underlying this argument is the belief that the concept of discrimination is not adaptable to the problems of the handicapped, and efforts to apply it will only worsen existing problems. Part I begins by defining the meaning of discrimination, and then explores the similarities and differences between discrimination against the handicapped, and discrimination based on race, sex, religion, and national origin. The purpose of this discussion is to provide a basic framework for understanding claims that the handicapped should be …

Protecting The Whistleblower From Retaliatory Discharge, Martin H. Malin

University of Michigan Journal of Law Reform

This approach to the problem of whistleblowing, however, is misguided; the appropriate balance is between the employee's interest in acting in accordance with his individual conscience and his duty of loyalty to his employer. This Article argues that although the law should protect individual acts of whistleblowing once they have occurred, it should not affirmatively encourage whistleblowing. Part I discusses the protection currently available to whistleblowers under the common law, collective bargaining agreements, and the antiretaliation provisions of several important statutes. Part II proposes a general standard of whistleblower protection that is designed to protect individual whistleblowers in appropriate circumstances, …

Reducing Court Costs And Delay: An Overview, Leonard S. Janofsky

University of Michigan Journal of Law Reform

The American legal system is unparalleled in its efforts to protect individual rights. A citizen's access to the legal system provides the basis for our government of laws. Yet, it must be recognized that serious problems confront the American system and persist despite a long history of efforts at reform by the organized bar, the judiciary, and other interested parties. Years of delay exist in many of the nation's busiest courts. The cost of maintaining or defending a suit has grown at an alarming rate. These infamous twin evils - delay and cost - do more than belie the standard …

Reforming At-Will Employment Law: A Model Statute, Liana Gioia, Per Ramford

University of Michigan Journal of Law Reform

Effective relief for at-will employees can only be achieved through statutory reform. Although specific legislation has been proposed on the federal

Challenging The Employment-At-Will Doctrine Through Modern Contract Theory, Clare Tully

University of Michigan Journal of Law Reform

This Note advocates an implied contract analysis that both satisfies contractual requirements and protects the reasonable expectations of employees and employers. Part I describes the various reliance interests that employees bring to their jobs, the employer inducements that cause this reliance, and the business benefits that accrue when employees rely upon these inducements. Part II examines in detail judicial reluctance to enforce either these reliance interests or employer promises as contract rights under the at-will doctrine. Part II also urges the increased use of modern contract theories such as promissory estoppel, quasi-contract, and implied contract to protect employee reliance interests …

Employment-At-Will Doctrine: Providing A Public Policy Exception To Improve Worker Safety, Daniel T. Schibley

University of Michigan Journal of Law Reform

Occupational safety would be greatly enhanced if employees had a viable option of refusing to work under unsafe conditions without risking their jobs. This Note proposes a public policy exception to the employment-at-will doctrine that would give a cause of action to an employee discharged for refusing to work under unsafe conditions. Part I examines the employment-at-will rule and its recognized exceptions. Part II analyzes the inadequacies of existing statutory remedies for a discharged employee who refused to work under unsafe conditions. Finally, Part III proposes an alternative remedy: providing a common-law exception to the employment-at-will rule that will give …

An Appellate Court Dilemma And A Solution Through Subject Matter Organization, Daniel J. Meador

University of Michigan Journal of Law Reform

The recent litigation explosion presents a two-pronged dilemma for American appellate courts. If, on the one hand, the number of appellate judges is not expanded to keep abreast of growing case loads, there is a risk that courts will rely too heavily on professional staff, thereby watering down the decision-making process. If, on the other hand, the number of judges is proportionately increased with the growth in appellate litigation, the number of three-judge decisional units will also increase, thereby threatening predictability and uniformity in the law of the jurisdiction. This Article undertakes to explain that dilemma and to offer a …

Colorado's Answer To The Local Rules Problem, William H. Erickson

University of Michigan Journal of Law Reform

This Article examines the checkered history of local rules in the state and federal courts. Part I sketches the development of local rule-making power. Part II focuses on the abuses that have resulted from a nonuniform procedural system. It concludes that the most serious consequence of that abuse - an increase in court costs and delay - has not been addressed adequately by the courts. Part III explores ways in which the local rules problem can be brought under control. Although a number of proposals are discussed, the purpose of this section is to present the approach recently undertaken by …

Court-Annexed Arbitration, A. Leo Levin

University of Michigan Journal of Law Reform

Court-annexed arbitration is utilized more extensively today than ever before. It commands widespread and increasing interest, not only because it serves the litigants well, but also because it offers to beleaguered courts a measure of relief from seriously overburdened dockets. This Article examines the use of court-annexed arbitration as an alternative method of dispute resolution. Part I describes how court-annexed arbitration works and the goals it is designed to achieve. Part II focuses on what the actual experience with court-annexed arbitration has been. Utilizing data from a recent empirical study on court-annexed arbitration by the Federal Judicial Center, this section …

Appellate Caseload: Meeting The Challenge In Rhode Island, Joseph R. Weisberger

University of Michigan Journal of Law Reform

Two of the most challenging and frustrating problems facing appellate courts in America are increasingly congested dockets and the sluggish pace of litigation. In an effort to combat these problems, the Supreme Court of Rhode Island has recently initiated several procedural techniques for screening and settling criminal and civil cases on appeal. These techniques have proven highly effective and should provide other appellate courts at least a partial answer to the burgeoning appellate caseload.

Introduction, Clyde W. Summers

University of Michigan Journal of Law Reform

Ten years ago a symposium on the subject of employment at will would have been unthinkable. There would have been few commentators willing to write on the subject, and few others interested in reading about it. The misbegotten legal doctrine was mechanically, and at times brutally, applied by the courts but was seldom examined or questioned. It was one of our inherited legal curses which we mindlessly accepted.

The symposium speaks to the task ahead - to use every legal device available to sweep away the remnants of the employment-at-will doctrine and bring a measure of freedom, respect, and dignity …

A Right Of Fair Dismissal: Enforcing A Statutory Guarantee, Janice R. Bellace

University of Michigan Journal of Law Reform

Support for the concept that employees should be protected against wrongful dismissal continues to grow in this country. Yet, many advocates of protection have thus far refrained from venturing into the legislative arena. Even though the movement to achieve this protection is still at an early stage, it is not too soon to focus on specific proposals designed to translate ideals into protections. By failing to coalesce behind a single proposal, supporters have retarded the progress of the movement. Without a proposal for specific legislation, supporters lack a rallying point and legislators have nothing concrete to debate. This Article attempts …

Oral Argument And Expediting Appeals: A Compatible Combination, Joy A. Chapper

University of Michigan Journal of Law Reform

The purpose of this Article is to explore these issues in light of Sacramento's experience with the expedited appeal procedure. The data presented here are drawn from an evaluation of the first twelve months of the procedure's operation. This evaluation was based on court records of the more than one hundred cases that followed the expedited procedure to completion, in-person interviews with members of the court and court staff, and telephone interviews with participating attorneys. Part I briefly sets out the new procedure and the context in which this procedure was introduced and integrated. Part II discusses the conclusions that …

The Organized Bar: A Catalyst For Court Reform, Paul R.J. Connolly

University of Michigan Journal of Law Reform

This Article theorizes that state and local bar associations can play a vital role in ridding their courts of excessive costs and delay. Theory can become practice, however, only if state and local bars are reorganized to broaden their oversight and lobbying functions, in order to make them more effective vehicles of reform. This Article, then, discusses the role the organized bar can and should play in achieving procedural reform that will reduce the delay and cost of litigation. Part I describes the various stages of the reform process, using the Kentucky experiment as a model, and outlines the contributions …