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Full-Text Articles in Law
Of Bodies Politic And Pecuniary: A Brief History Of Corporate Purpose, David B. Guenther
Of Bodies Politic And Pecuniary: A Brief History Of Corporate Purpose, David B. Guenther
Michigan Business & Entrepreneurial Law Review
American corporate law has long drawn a bright line between for-profit and non-profit corporations. In recent years, hybrid or social enterprises have increasingly put this bright-line distinction to the test. This Article asks what we can learn about the purpose of the American business corporation by examining its history and development in the United States in its formative period from roughly 1780-1860. This brief history of corporate purpose suggests that the duty to maximize profits in the for-profit corporation is a relatively recent development. Historically, the American business corporation grew out of an earlier form of corporation that was neither …
Equality At The Cemetery Gates: Study Of An African American Burial Ground, William A. Engelhart
Equality At The Cemetery Gates: Study Of An African American Burial Ground, William A. Engelhart
Michigan Journal of Race and Law
In Charlottesville, Virginia, the University Cemetery serves as the final resting place of many of the most prominent community members of the University of Virginia. In 2011, the University planned an expansion. During archaeological research to this end, sixty-seven previously unidentified interments, in both adult and child-sized grave shafts, were discovered on the proposed site of expansion, to the northeast of the University Cemetery. Further archival research revealed that “at least two late nineteenth century references note that enslaved African Americans were buried north of but outside the enclosed University, in an adjacent wooded area.” In one, Col. Charles Christian …
Racial Purges, Robert L. Tsai
Racial Purges, Robert L. Tsai
Michigan Law Review
Review of Beth Lew-Williams' The Chinese Must Go: Violence, Exclusion, and the Making of the Alien in America.
Reckless Juveniles, Kimberly Thomas
Reckless Juveniles, Kimberly Thomas
Articles
Modern doctrine and scholarship largely take it for granted that offenders should be criminally punished for reckless acts.1 Yet, developments in our understanding of human behavior can shed light on how we define and attribute criminal liability, or at least force us to grapple with the categories that have existed for so long. This Article examines recklessness and related doctrines in light of the shifts in understanding of adolescent behavior and its biological roots, to see what insights we might attain, or what challenges these understandings pose to this foundational mens rea doctrine. Over the past decade, the U.S. Supreme …
Second Redemption, Third Reconstruction, Richard A. Primus
Second Redemption, Third Reconstruction, Richard A. Primus
Articles
In The Accumulation of Advantages, the picture that Professor Owen Fiss paints about equality during and since the Second Reconstruction is largely a picture in black and white. That makes some sense. The black/white experience is probably the most important throughline in the story of equal protection. It was the central theme of both the First and Second Reconstructions. In keeping with that orientation, the picture of disadvantage described by Fiss’s theory of cumulative responsibility is largely drawn from the black/white experience. Important as it is, however, the black/white experience does not exhaust the subject of constitutional equality. So in …
Be Careful What You Wish For? Reducing Inequality In The Twenty-First Century, Reuven S. Avi-Yonah, Orli K. Avi-Yonah
Be Careful What You Wish For? Reducing Inequality In The Twenty-First Century, Reuven S. Avi-Yonah, Orli K. Avi-Yonah
Michigan Law Review
A review of Walter Scheidel, The Great Leveler: Violence and the History of Inequality from the Stone Age to the Twenty-First Century.
Disability, Universalism, Social Rights, And Citizenship, Samuel R. Bagenstos
Disability, Universalism, Social Rights, And Citizenship, Samuel R. Bagenstos
Articles
The 2016 election has had significant consequences for American social welfare policy. Some of these consequences are direct. By giving unified control of the federal government to the Republican Party for the first time in a decade, the election has potentially empowered conservatives to ram through a bill to repeal the Affordable Care Act—the landmark “Obamacare” law that marked the most significant expansion of the social welfare state since the 1960s. Other consequences are more indirect. Both the election result itself, and Republicans’ actions since, have spurred a renewed debate within the left-liberal coalition regarding the politics of social welfare …
The New Labor Law, Kate Andrias
The New Labor Law, Kate Andrias
Articles
Labor law is failing. Disfigured by courts, attacked by employers, and rendered inapt by a global and fissured economy, many of labor law’s most ardent proponents have abandoned it altogether. And for good reason: the law that governs collective organization and bargaining among workers has little to offer those it purports to protect. Several scholars have suggested ways to breathe new life into the old regime, yet their proposals do not solve the basic problem. Labor law developed for the New Deal does not provide solutions to today’s inequities. But all hope is not lost. From the remnants of the …
Rights Lawyer Essentialism And The Next Generation Of Rights Critics, Alan K. Chen
Rights Lawyer Essentialism And The Next Generation Of Rights Critics, Alan K. Chen
Michigan Law Review
Richard Thompson Ford does not care much for the current state of civil rights. In his provocative new book, Rights Gone Wrong: How Law Corrupts the Struggle for Equality, Ford lends an original, if often misdirected, voice to the chorus of contemporary critics of the American legal regime of rights. Situating himself among "second generation" rights critics (p. 259), Ford lays out a comprehensive indictment of current approaches to civil rights litigation as well as civil rights activism. His work is both intriguing and provocative, and it raises a number of issues that are surely worth serious consideration and discussion. …
Family History: Inside And Out, Kerry Abrams
Family History: Inside And Out, Kerry Abrams
Michigan Law Review
The twenty-first century has seen the dawn of a new era of the family, an era that has its roots in the twentieth. Many of the social and scientific phenomena of our time - same-sex couples, in vitro fertilization, single-parent families, international adoption - have inspired changes in the law. Legal change has encompassed both constitutional doctrine and statutory innovations, from landmark Supreme Court decisions articulating a right to procreate (or not), a liberty interest in the care, custody, and control of one's children, and even a right to marry, to state no-fault divorce statutes that have fundamentally changed the …
Against The New Maternalism, Naomi Mezey, Cornelia T. L. Pillard
Against The New Maternalism, Naomi Mezey, Cornelia T. L. Pillard
Michigan Journal of Gender & Law
Parenting is a major preoccupation in law and culture. As a result of efforts of the American women's movement over the past forty years, the legal parent is, for the first time in history, sex-neutral. Our law has abandoned restrictions on women's education, employment, and civic participation that sprang from and reinforced beliefs about the primacy of motherhood as women's best destiny. On the flip side, U.S. law now also generally rejects formal constraints on men's family roles by requiring sex-neutrality of laws regulating custody, adoption, alimony, spousal benefits, and the like. The official de-linking of presumptive parenting roles from …
But How Will The People Know? Public Opinion As A Meager Influence In Shaping Contemporary Supreme Court Decision Making, Tom Goldstein, Amy Howe
But How Will The People Know? Public Opinion As A Meager Influence In Shaping Contemporary Supreme Court Decision Making, Tom Goldstein, Amy Howe
Michigan Law Review
Chief Justice John Roberts famously described the ideal Supreme Court Justice as analogous to a baseball umpire, who simply "applies" the rules, rather than making them. Roberts promised to "remember that it's my job to call balls and strikes and not to pitch or bat." At her own recent confirmation hearings, Elena Kagan demurred, opining that Roberts's metaphor might erroneously suggest that "everything is clear-cut, and that there's no judgment in the process." Based on his 2009 book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, Barry Friedman …
Racial Cartels, Daria Roithmayr
Racial Cartels, Daria Roithmayr
Michigan Journal of Race and Law
This Article argues that we can better understand the dynamic of historical racial exclusion if we describe it as the anti-competitive work of "racial cartels." We can define racial cartels to include a range of all-White groups - homeowners' associations, school districts, trade unions, real estate boards and political parties - who gained signficant social, economic and political profit from excluding on the basis of race. Far from operating on the basis of irrational animus, racial cartels actually derived significant profit from racial exclusion. By creating racially segmented housing markets, for example, exclusive White homeowners' associations enjoyed higher property values …
Determining The (In)Determinable: Race In Brazil And The United States, D. Wendy Greene
Determining The (In)Determinable: Race In Brazil And The United States, D. Wendy Greene
Michigan Journal of Race and Law
In recent years, the Brazilian states of Rio de Janeiro, So Paulo, and Mato Grasso du Sol have implemented race-conscious affirmative action programs in higher education. These states established admissions quotas in public universities for Afro-Brazilians or afrodescendentes. As a result, determining who is "Black'' has become a complex yet important undertaking in Brazil. Scholars and the general public alike have claimed that the determination of Blackness in Brazil is different than in the United States; determining Blackness in the United States is allegedly a simpler task than in Brazil. In Brazil it is widely acknowledged that most Brazilians are …
Gitano Legal Codes: Social Change, Ngo's, And External Legal Systems' Influence On Governance Of Spanish Roma Communities, Jennifer Hu Corriggio
Gitano Legal Codes: Social Change, Ngo's, And External Legal Systems' Influence On Governance Of Spanish Roma Communities, Jennifer Hu Corriggio
Michigan Journal of Race and Law
Gitanos are the Roma, otherwise known as Gypsies, of Spain that are predominantly concentrated in the southern province of Andaluda. Although the Roma are Europe's largest transnational minority, very little efforts have been made to understand their legal systems. Additionally, due to their long histories of oppression in Europe and internal legal codes that discourage sharing details of their legal systems with outsiders, their legal systems are particularly difficult to understand and for the most part, remain enigmatic and misunderstood. This Article analyzes the historical factors affecting the development of the Gitano legal system by using a horizontal axis metaphor, …
Forum, Donald J. Herzog
Forum, Donald J. Herzog
Reviews
Psst: here’s my secret wry suspicion. Political theorists are allergic to facts. They feel entitled to firm beliefs—about state-building, modernization, the rise of the bourgeoisie, you name it—because they’ve read some fancy theory books. So a lot of theory reads like a conceptual shell game, with various intoxicating abstractions shuffled about. I’m enough of a vulgar pragmatist to think that theory isn’t what you get when you leave out the facts. So I found Wahrman’s Making of the Modern Self sheer joy, from start to finish. The bottom line first: this is a mustread across the humanities and humanistic social …
Vigilante Racism: The De-Americanization Of Immigrant America, Bill Ong Hing
Vigilante Racism: The De-Americanization Of Immigrant America, Bill Ong Hing
Michigan Journal of Race and Law
Sadly, the de-Americanization process is capable of reinventing itself generation after generation. We have seen this exclusionary process aimed at those of Jewish, Asian, Mexican, Haitian, and other descent throughout the nation's history. De-Americanization is not simply xenophobia, because more than fear of foreigners is at work. This is a brand of nativism cloaked in a Euro-centric sense of America that combines hate and racial profiling. Whenever we go through a period of de-Americanization like what is currently happening to South Asians, Arabs, Muslim Americans, and people like Wen Ho Lee-a whole new generation of Americans sees that exclusion and …
Law, Self-Pollution, And The Management Of Social Anxiety, Geoffrey P. Miller
Law, Self-Pollution, And The Management Of Social Anxiety, Geoffrey P. Miller
Michigan Journal of Gender & Law
This article considers the anxieties about masturbation and spermatorrhoea from the standpoint of cultural-legal analysis. Seen from this perspective, the worries about masturbation provided an object onto which social anxieties could be displaced and thereby managed. Norm entrepreneurs who played on public fears manipulated basic cultural polarities in order to present masturbation and spermatorrhoea as objects of horror and disgust-things that needed to be expelled, if possible, from the body social.
Facing History, Facing Ourselves: Eric Yamamoto And The Quest For Justice, Robert S. Change
Facing History, Facing Ourselves: Eric Yamamoto And The Quest For Justice, Robert S. Change
Michigan Journal of Race and Law
Review of Interracial Justice: Conflict and Reconciliation in Post-Civil Rights America by Eric Yamamoto
Review Of The Repeal Of Reticence: A History Of America's Cultural And Legal Struggles Over Free Speech, Obscenity, Sexual Liberation, And Modern Art, Donald J. Herzog
Review Of The Repeal Of Reticence: A History Of America's Cultural And Legal Struggles Over Free Speech, Obscenity, Sexual Liberation, And Modern Art, Donald J. Herzog
Reviews
Our public sphere, which should have displayed and preserved the grandeur and beauty of our civic ideals and moral excellences, is instead inane and vacuous when it is not utterly mean, ugly, or indecent (p. 4). Troubled by the tawdry nonsense circulating in the public sphere-and she wrote before learned enquiries into whether the President's genitals had any distinguishing characteristics- Rochelle Gurstein turns to history to understand how we arrived at such a sorry destination. Hers is a tale of decline: The Victorians "we moderns" so routinelyd eridef or theirP uritanicalr epressivenessu nderstoodf ull well that certain things have to …
In Defense Of Revenge, William I. Miller
In Defense Of Revenge, William I. Miller
Book Chapters
One of the risks of studying the Icelandic sagas and loving them, is, precisely, loving them. And what is one loving when one loves them? The wit, the entertainment provided by perfectly told tales? And just how are these entertaining tales and this wit separable from their substance: honor, revenge, individual assertion, and yes, some softer values, too, like peacefulness and prudence? Yet one suspects, and quite rightly, that the softer values are secondary and utterly dependent on being responsive to the problems engendered by the rougher values of honor and vengeance. Is it possible to study the sagas and …
Law And Religion In Israel And Iran: How The Integration Of Secular And Spiritual Laws Affects Human Rights And The Potential For Violence, S. I. Strong
Michigan Journal of International Law
Part I of this article provides a brief sketch of the principles of the two majority religions at issue in this discussion and an overview of the history of both Israel and Iran. It explains why each nation has chosen to structure itself as it has and why the imposition of U.S.-style secularism would be an inappropriate method of dealing with the religio-legal conflict in the two societies. Part II compares the fundamental or constitutional laws of the two nations by analyzing the provisions, policies, and practices most influenced by religion. After identifying and analyzing the laws themselves in Part …
In Sisterhood, Lisa C. Ikemoto
In Sisterhood, Lisa C. Ikemoto
Michigan Journal of Race and Law
A review of Where Is Your Body? by Mari Matsuda
Language Of Lullabies: The Russification And De-Russification Of The Baltic States, Sonia Bychkov Green
Language Of Lullabies: The Russification And De-Russification Of The Baltic States, Sonia Bychkov Green
Michigan Journal of International Law
This article argues that the laws for promotion of the national languages are a legitimate means for the Baltic states to establish their cultural independence from Russia and the former Soviet Union.
The Dangers Of Misappropriation: Misusing Martin Luther King, Jr.'S Legacy To Prove The Colorblind Thesis, Ronald Turner
The Dangers Of Misappropriation: Misusing Martin Luther King, Jr.'S Legacy To Prove The Colorblind Thesis, Ronald Turner
Michigan Journal of Race and Law
This Article focuses on one particular aspect of the colorblind thesis: the misuse of Martin Luther King, Jr.'s image and legacy by liberals, neoliberals, conservatives, and neoconservatives "who cheaply invoke Dr. King's words even as they kill the substance and spirit of his radical message." The campaign supporting the adoption of Proposition 209, the California Civil Rights Initiative ("CCRI"), directly illustrates the misappropriation of King's legacy. Supporters of this anti-affirmative action proposal which calls for racial neutrality and a colorblind America, regularly invoked King's name, suggesting that he would have embraced such a measure. The California Republican Party prepared a …
The Color Of Truth: Race And The Assessment Of Credibility, Sheri Lynn Johnson
The Color Of Truth: Race And The Assessment Of Credibility, Sheri Lynn Johnson
Michigan Journal of Race and Law
This article will address specifically the relationship between race and credibility in legal cases, while acknowledging that broader bias issues are often, though sometimes imperceptibly, intertwined in racially biased credibility determinations. Part I will survey race and credibility issues that have arisen in courts, with particular focus on two modern habeas corpus cases. Part II will summarize the legal rules that presently regulate racially influenced assessments of credibility; it may surprise some readers to realize that there is no established mechanism for challenging racially biased credibility determinations. Part I will propose some standards for determining when race is permissibly used …
The Trouble With Hairdressers, Donald J. Herzog
The Trouble With Hairdressers, Donald J. Herzog
Articles
Why should hairdressers, of all unlikely candidates, have come to exemplify equality, to be a cultural obsession of sort? Suffice it to say that hairdressers happened to occupy a social position that made it possible to demonize them.
A Distant Heritage: The Growth Of Free Speech In Early America, Jim Greiner
A Distant Heritage: The Growth Of Free Speech In Early America, Jim Greiner
Michigan Law Review
A Review of A Distant Heritage: The Growth of Free Speech in Early America by Larry D. Eldridge
The Romance Of Revenge: Capital Punishment In America, Samuel R. Gross
The Romance Of Revenge: Capital Punishment In America, Samuel R. Gross
Articles
On February 17, 1992, Jeffrey Dahmer was sentenced to 15 consecutive terms of life imprisonment for killing and dismembering 15 young men and boys (Associated Press 1992a). Dahmer had been arrested six months earlier, on July 22, 1991. On January 13 he pled guilty to the fifteen murder counts against him, leaving open only the issue of his sanity. Jury selection began two weeks later, and the trial proper started on January 30. The jury heard two weeks of testimony about murder, mutilation and necrophilia; they deliberated for 5 hours before finding that Dahmer was sane when he committed these …
I Hear A Rhapsody: A Reading Of The Republic Of Choice, Donald J. Herzog
I Hear A Rhapsody: A Reading Of The Republic Of Choice, Donald J. Herzog
Reviews
Readers coming to another volume by Lawrence Friedman might well expect a tightly crafted legal history. But this book is quite different. It offers a sweeping account of the transformation of modern law, a synoptic overview of what is finally distinctive about our legal culture, even a broadbrushed portrait of Western individualism. It does so breathlessly, in prose style and velocity. It's sometimes an engaging read, sometimes a distressing one, but-and here's what really matters-never a persuasive one. Or, worse yet, when it is persuasive it's because of its poetic and ideological features, not any kind of rigorous analysis.