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Glosses On Dworkin: Rights, Principles, And Policies, Donald H. Regan

Articles

A great many people have attempted to explain what is wrong with the views of Ronald Dworkin. So many, indeed, that one who read only the critics might wonder why views so widely rejected have received so much attention. One reason is that, whatever may be wrong in Dworkin's theories, there is a good deal that is right in them. But what is right is not always clear. Important passages in Dworkin can be distressingly obscure, or tantalizingly incomplete. This essay is a set of loosely connected observations on themes from Dworkin. While I shall add some criticisms of my …

Pleas Of Guilty And The Loss Of Constitutional Rights: The Current Price Of Pleading Guilty, Stephen A. Saltzburg

Michigan Law Review

This Article proposes the same basic rule as Westen's to explain the Supreme Court's decisions, but for very different reasons which require several modifications of the Westen rule. I argue that all the guilty-plea cases, properly viewed, are consistent with, and therefore can be read as evidence of, a theory more easily applied than articulated by the Court: that some constitutional rights are largely premised on notions of litigation avoidance, that their "avoidance" rationales must be respected, and that these rights therefore prevent governments from establishing procedural rules that force criminal defendants to go to trial-to choose more rather than …

Forfeiture By Guilty Plea--A Reply, Peter Westen

Michigan Law Review

I will begin by describing what I think Professor Saltzburg and I both mean by a ''legal theory." I then apply that standard to test the validity of the two theories at issue here, first Professor Saltzburg's, then mine. I next discuss a third theory that is independent of both Professor Saltzburg's and mine, viz., that whether a constitutional claim survives a guilty plea depends on whether it is ''jurisdictional." Finally, I comment generally on the concept of forfeiture and its influence on the way one conceives of constitutional rights.

Bribery And Brokerage: An Analysis Of Bribery In Domestic And Foreign Commerce Under Section 2 ( C ) Of The Robinson-Patman Act, Michigan Law Review

Michigan Law Review

This Note first analyzes the substantive and jurisdictional criteria of section 2(c) to evaluate the possible and the desirable scope of its applicability to commercial bribery. The Note next asks whether this statute reaches bribery of domestic and foreign government officials and concludes that where the requirements of section 2(c) are otherwise met and where the person accepting the bribe is acting administratively rather than politically, the statute could be applied to bribery of agents of domestic governments. However, a wholesale application of section 2( c) to bribery of foreign government agents would leave American competitors in foreign commerce defenseless …

Young Adults As A Cognizable Group In Jury Selection, Donald H. Zeigler

Michigan Law Review

In support of its thesis, this Article presents what the literature has failed to provide: a comprehensive analysis of the concept of cognizability and empirical data. Part I traces the history of cognizability; identifies the sources of the cross-sectional right; and defines the criteria of cognizability, drawing special attention to the interests which a designation of cognizability protects. Part I also discusses the different approaches courts have taken to cognizability and suggests several factors which may explain the many treatments of the concept.

Part II reviews the case law concerning the cognizability of young adults in particular. That Part also …

The Legal Profession: Client Interests, Professional Roles, And Social Hierarchies, John P. Heinz, Edward O. Laumann

Michigan Law Review

There is a natural urge to study the extreme. The extreme case is likely to be conspicuous and dramatic. Sociological research on the American legal profession has not, for the most part, resisted the urge. The best-known studies examine lawyers at the extremes of the profession's prestige hierarchy-e.g., Carlin's study of solo practitioners and Smigel's study of the Wall Street lawyer. The profession's center has more often been neglected and few data are available on the bar's overall social structure. Ladinsky's study .of Detroit lawyers covers all types and specialities, and contributes substantially to our understanding of the …

Total-Sales Royalties Under The Patent-Misuse Doctrine: A Critique Of Zenith, Michigan Law Review

Michigan Law Review

This Note criticizes the Supreme Court's treatment of total-sales royalties. Part I outlines the scope of the patent-misuse doctrine, and Part II describes the development of the Zenith conditioning test. Part III analyzes that test; it suggests that the Zenith opinion is not internally consistent and that courts may not be able to apply the conditioning test satisfactorily. Finally, in response to Justice Harlan's dissenting opinion in Zenith, in which he notes the dearth of literature on the economic consequences of total-sales royalty provisions, 14 Part III undertakes an analysis of those consequences. The analysis demonstrates that total-sales royalty …

The Proposed Federal Rules Of Evidence: Of Privileges And The Division Of Rule-Making Power, Michigan Law Review

Michigan Law Review

This Note proposes that the lower federal courts accord the same binding authority to the Proposed Rules that they give those judicially promulgated procedural rules, such as the Federal Rules of Civil Procedure, that have been implicitly approved by Congress.

Part I of the Note analyzes the constitutional division of the rule-making power by examining both the policy considerations involved and the relevant constitutional language and doctrines. That examination indicates that the power to establish such rules is shared by Congress and the Supreme Court. To determine when that power is appropriately exercised by one branch rather than the other, …

Negative Attitudes Of Law Students: A Replication Of The Alienation And Dissatisfaction Factors, Paul D. Carrington, James J. Conley

Michigan Law Review

In 1976 we conducted a survey of law students at The University of Michigan. Demographic information; personal goals and values; and attitudes toward the law school, the faculty, and fellow students were surveyed. We factor-analyzed the items relating to attitudes, personal goals, and values. Three major factors were identified and labeled as alienation, dissatisfaction, and sociability. We have recently described the alienation factor extensively and outlined the dissatisfaction and sociability factors. In March 1977, we conducted a second survey designed to replicate the earlier study. Despite the addition of a few new items, the questionnaire was essentially unchanged. The new …

The Eighteenth-Century Background Of John Marshall's Constitutional Jurisprudence, William E. Nelson

Michigan Law Review

This analysis of Marshall's constitutional jurisprudence avoids the pitfalls of previous theories. It does not see the Federalist political program as the source of Marshall's constitutional doctrines and thus does not need to explain how Marshall qualified his political principles or how he convinced non-Federalist judges to accept them. Instead, this essay argues that legal, not political, principles underlay Marshall's jurisprudence, but it attempts to understand those principles in a manner consistent with the unavoidable twentieth-century assumption that law is a body of flexible rules responsive to social reality rather than a series of immutable, unambiguous doctrines derived from a …

The Evolution Of State Supreme Courts, Robert A. Kagan, Bliss Cartwright, Lawrence M. Friedman, Stanton Wheeler

Michigan Law Review

Part I of this Article describes in broad quantitative terms the changing relationship between the caseload of supreme courts and the population of the states in which these courts sit. Part II examines the various means states used to control supreme court caseloads, the political problems involved, and the types of courts that have resulted. Part III presents evidence that changes in court organization in response to caseload pressure are accompanied by changes in the kinds of cases state supreme courts hear, the style of their opinions, and the results of the cases.

Sexual Harassment And Title Vii: The Foundation For The Elimination Of Sexual Cooperation As An Employment Condition, Michigan Law Review

Michigan Law Review

Ten years after the enactment of Title VII, the federal judiciary confronted its first Title VII case in which sexual harassment was the primary allegation. In the next three-and-one-half years, six more claims of sexual harassment reached federal district courts, 4 and three federal circuit courts of appeal reviewed lower court holdings.

Neither these cases nor the considerable journalistic and academic attention they received reveals a consensus regarding the appropriate application of Title VII to cases of sexual harassment. This Note, therefore, examines the application of Title VII to the problem of sexual harassment and suggests a coherent framework for …

April 26, 1978, University Of Michigan Law School

Res Gestae

•Quad Residents Upset With Construction Din •La Raza National Convention Report •Notice •Day Old Bread •Crusader Rabbit Presents: The 1st Punk Rock Ode To Law School •Docket •LSSS Notes •Tentative Budget 1978-79 Approved by LSSS 4/17/78 •Al's Sports Corner

April 18, 1978, University Of Michigan Law School

Res Gestae

•1st Annual Law Revue is Smash Hit •SFF •WLSA End of the Year Report •Day Old Bread •Police Brutality and Community Relations in the Southwest •Campbell Chapter Phi Alpha Delta Banquet •Professors to Receive Honorary Degrees •Lack of Facilities for Women- Possible Title IX Violation

April 4, 1978, University Of Michigan Law School

Res Gestae

•Cook Lecturers Draw Top Scientists •Federal Judge Proposes National Commissions to Watchdog Public Inmate Institutions •MAD DOGgerel •Business is Booming for Expert Witnesses •Law School Senior Day •Interesting Failures From Cohen and Hell •The Docket •Statements by MSA Candidates •Portnoy's Cultural Corner •Oscar Poll •From the Editor •Al's Sports Corner •Sports Poll •Day Old Bread •Poisoned Water! •LSSS Notes •SFF Announcement •Al's Sports Corner

Appellate Justice, Ruggero J. Aldisert

University of Michigan Journal of Law Reform

Justice on Appeal is a pithy analysis of the problem facing appellate courts. Dragon hunters Carrington, Meador, and Rosenberg were not content to look at the problem from an armchair. Instead, they walked to the mouth of the cave; pulled the troublesome dragon into the light, counted its teeth, measured its girth and tail, and decided neither to kill it nor kiss it. They decided to try taming it. I agree with their analysis of the specimen, its size, its growth, and the urgent necessity to bring the beast under control. I have some modest disagreements with some of their …

Keys To Unlock The Interlocks: Dealing With Interlocking Directorates, Richard P. Murphy

University of Michigan Journal of Law Reform

The use of interlocking directorates by American industrial and commercial corporations is widespread. Section 8 of the Clayton Act has been interpreted as prohibiting only interlocks between directly competing firms. There are other kinds of interlocks with substantial anticompetitive effects, however, that have essentially escaped any regulation under the antitrust laws. This article will examine whether the deleterious effects of unregulated interlocks should be a source of concern. It will conclude that these interlocks should not remain unregulated because they are presumptively anticompetitive, produce problems that section 8 was designed to address, and conflict with the basic goals of the …

Justice On Appeal—One Way Or Many?, Michael E. Smith

University of Michigan Journal of Law Reform

After two centuries of our nation's existence, discussions of federalism are certain to sound familiar. The ground of argument has been worked so thoroughly, there is hardly a patch left unturned. Conventional watchwords suggest the competing interests: adaptability to local circumstances contrasted with efficiencies of scale, circumscribed experimentation contrasted with prevention of forum-shopping, local self-government contrasted with the cosmopolitan perspective. The most that can be done now, absent exceptional insight, is to display these choices in a fresh context.

What follows is yet another variation on the theme. It concerns the propriety, perhaps the desirability, of diversity among the federal …

The Trial Transcript—An Unnecessary Roadblock To Expeditious Appellate Review, William H. Erickson

University of Michigan Journal of Law Reform

A number of innovations have been made in the appellate process which expedite appeals and tend to eliminate the need for a trial transcript. The American Bar Association Standards Relating to Judicial Administration and Standards Relating to Criminal Justice have provided the procedural means for improving our entire system of criminal justice. This article explores some innovations in the appellate process which eliminate the need for a complete record on appeal and discusses the various means to obtain a record of the proceeding in the trial court.

The Professions And Noncommercial Purposes: Applicability Of Per Se Rules Under The Sherman Act, Jonathan Cobb Dickey

University of Michigan Journal of Law Reform

This article will examine the doctrine of noncommercial purpose in the professional context and assess whether conduct undertaken by the professions conforms to the presumptions underlying the per se doctrine. It is the thesis of this article that the per se doctrine should not preclude inquiry into whether a valid noncommercial purpose justifies conduct undertaken in good faith by a profession to regulate its membership or to advance some other public interest. This article concludes that, with respect to professions, the goals of the Sherman Act are better served by inquiry into noncommercial purposes and application of the rule of …

The Trigger Price Mechanism: Limitation On Administrative Discretion Under The Antidumping Laws, Mark Alan Kantor

University of Michigan Journal of Law Reform

The world steel market, Jong subject to cyclical fluctuations, is presently faced with a severe problem of overproduction. United States producers of steel in particular have suffered difficulties in the current crisis. While the industry's problems are not new, conditions of slack demand and overcapacity have recently resulted in the implementation of a new system to administer the antidumping Jaws of the United States to curb imports of foreign-produced steel. This article will describe and evaluate this new system, the trigger price mechanism (TPM), and consider its role as a constraint on the administrative discretion of the United States Department …

Judicial Administration And Invisible Justice, Mary Murphy Schroeder

University of Michigan Journal of Law Reform

My theme here is the conflict between the visibility of the appellate judge and recent procedural changes designed to cope with the quantum leaps in the numbers and complexity of cases. I will develop that theme, first, by suggesting the ways that three of the major controls on the system, namely the selection, evaluation, and discipline of judges, depend upon the exercise of recognizable and individual judicial responsibility; second, by illustrating how this "imperative" can be undermined if devices intended to cope with increased volume are adopted without vigilance; and finally by pointing up some approaches to permit courts to …

Tort Claims Under The Present And Proposed Bankruptcy Acts, Stephen Allen Edwards

University of Michigan Journal of Law Reform

Congress may soon enact the first complete revision of the United States bankruptcy laws in almost four decades. Among the numerous changes proposed by the legislature is a major alteration of the provability and dischargeability of tort claims asserted against the bankrupt's estate. This article will discuss the treatment of tort claims in the present Act and the changes to be made by the proposed Act, and will evaluate alternative approaches to compensating victims of bankrupt tortfeasors.

Tax Avoidance, Alan Gunn

Michigan Law Review

This Article attempts an almost purely negative criticism. I contend that efforts to explain the results of tax cases not involving penalties by reference to "tax avoidance" are never satisfactory, whether the reference is meant to describe a taxpayer's state of mind or to justify a tax rule by invoking some "need to prevent tax avoidance." Because many tax problems are commonly discussed in terms of "tax avoidance" in one of these senses, and in order to avoid the impression that my arguments would leave the tax law in shambles, I shall suggest some alternative ways of dealing with these …

Equal Protection: A Closer Look At Closer Scrutiny, Michigan Law Review

Michigan Law Review

This Note proposes to restore means-end analysis to legal respectability through a comprehensive integrated approach to purpose, misfit, and balancing. The search for a rational basis is meaningless if there are no constraints on the kind of purpose which may justify a classification. Therefore, this Note initially explores ways in which a court can more rigorously scrutinize statutory purpose. The next significant question is how a court should evaluate the degree of coincidence between the class picked out by the law and the class which would be picked out if the law were to achieve its goals. Such "misfit" analysis …

March 28, 1978, University Of Michigan Law School

Res Gestae

•ABA Urges Congress to Act to Combat Family Violence •Prof-Luck* •ABA Committee to Hold Hearings on Cameras in the Courtroom •Financial Assistance Program Helps Ex-prisoners Stay Out of Jail •Equal Justice Foundation Growing Fast: Michigan Leads the Way •Crusader Rabbit •Day Old Bread •Bureaucracy Roars Its Mighty Head •The Docket •Statement of Michael Jackson

March 22, 1978, University Of Michigan Law School

Res Gestae

•Professor Pooley Postpones Prospective Seminars •Student Organizations Ousted •Letters to the Editor •SFF Campaign •Law School Senior Day •Jane Mixer Memorial Award Nominations •Law School Admissions Standards a Sham? •1978-79 Senior Judgeships •Ethics Code-- 'A Treasure of Platitudes •1978 Midwest BALSA Convention Reports •BAR/BRI Review - Discounts •Report: National Women's Conference, Houston, Texas •Day Old Bread •State v. U*

March 14, 1978, University Of Michigan Law School

Res Gestae

•Dean Sandalow Looks Ahead •Nordby Named Susan B. Anthony Award Winner •Letter To The Editor: Hiding Behind a Veil of Anonymity •Michigan's Jessup Team Places 1st and 2nd •Flow Sports •Lempert Opposes Smaller Juries •L.S.S.S. Investigation •Day Old Bread •Law School Fund •???Query??? What Can a Michigan Law Student do With $30? •Dean Announces New Clinical Appts •Report: National Women's Conference, Houston, Texas •Spring Symposium •Pope v. Michelangelo

Restructuring The Corporate Board Of Directors: Fond Hope--Faint Promise?, Lewis D. Solomon

Michigan Law Review

Reforms, then, have been instituted, and an extensive literature on corporate reform has developed. It is time that we seriously examine the reforms and the literature to assess the accomplishments and possibilities of the corporate board of directors. This Article is a first step in that direction.

The Article begins by investigating the reasons for the impotence of corporate boards. It then examines two models of reformed boards and finds both models badly flawed. The Article proceeds to case studies of three corporations-Mattel, Inc., Northrop Corp., and Lockheed Corp.-which under court· order have attempted to reform their boards by increasing …

Racial Vote Dilution In Multimember Districts: The Constitutional Standard After Washington V. Davis, Michigan Law Review

Michigan Law Review

This Note argues that the effect-oriented standard for multimember-district vote-dilution claims is unaffected by the Washington intent requirement. Part I outlines the manner in which multimember districts can dilute minority voting strength. After summarizing Washington's intent requirement, Part II surveys the post-Washington vote dilution cases and demonstrates that the applicability of the intent standard to vote dilution claims is uncertain. Part III first suggests two ways in which White and Washington may be reconciled. That section then argues that White is unaffected by the intent requirement because the standard for vote dilution fits within a fundamental interest analysis …