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Full-Text Articles in Law

Implementing The Tokyo Round: Legal Aspects Of Changing International Economic Rules, John H. Jackson, Jean-Victor Louis, Mitsuo Matsushita Dec 1982

Implementing The Tokyo Round: Legal Aspects Of Changing International Economic Rules, John H. Jackson, Jean-Victor Louis, Mitsuo Matsushita

Michigan Law Review

International economic and political interdependence has increased dramatically since the close of World War II. We now watch foreign wars on our living room television sets, move billions of dollars worth of funds across national borders daily, and feel the effects of political violence in the Mideast throughout our domestic farmlands. A corollary to economic and political interdependence, however, is the less visible but equally pervasive problem of legal interdependence. Any attempt, in the contemporary world, to create new international rules or institutions necessarily depends on the national legal and constitutional systems of a number of countries. This Article analyzes …


Statutes Of Limitations And Opting Out Of Class Actions, Michigan Law Review Dec 1982

Statutes Of Limitations And Opting Out Of Class Actions, Michigan Law Review

Michigan Law Review

This Note argues that one who opts out of a class action should not benefit from tolling for the time during which the individual was a class member. Part I develops an analytical framework, grounded in the underlying policies of statutes of limitations and applied in recent Supreme Court decisions, for resolving tolling questions. This Part concludes that a plaintiff must show that tolling will not conflict with the policy purposes animating statutes of limitations, as well as a policy reason that favors tolling. Part II applies the first of these parameters to the opt-out situation, and concludes that tolling …


Judicial Responses To The Eeoc's Failure To Attempt Conciliation, Michigan Law Review Dec 1982

Judicial Responses To The Eeoc's Failure To Attempt Conciliation, Michigan Law Review

Michigan Law Review

This Note suggests that a court faced with inadequate conciliation efforts by the EEOC should dismiss the action without prejudice. Part I argues that dismissal better serves the remedial purpose of the statute than summary judgment. Part II then demonstrates that dismissal satisfies the policy concerns of courts that dispose of inadequately conciliated suits. Although dismissal may not promote judicial efficiency as well as summary judgment, courts and the Commission can handle the dismissal to minimize duplication. Part III advances dismissal for failure to state a claim upon which relief can be granted as the appropriate procedural vehicle for disposing …


Deducting The Cost Of Smoking Cessation Programs Under Internal Revenue Code Section 213, Michigan Law Review Nov 1982

Deducting The Cost Of Smoking Cessation Programs Under Internal Revenue Code Section 213, Michigan Law Review

Michigan Law Review

This Note argues that enrollment fees for a smoking cessation program should be classified as deductible medical expenses. Part I defends this conclusion without questioning the accepted interpretation of section 213(e). Recent medical evidence indicates that the nicotine addiction that cessation program patients seek to break is itself a disease. And even prior to the onset of more serious health consequences, sustained cigarette smoking significantly impairs the functioning of the lungs and heart. Under this analysis, enrollment fees should be deductible as expenses for the treatment of an existing disease or defect, and as "amounts paid . . . for …


Prosecutorial Peremptory Challenge Practices In Capital Cases: An Empirical Study And A Constitutional Analysis, Bruce J. Winick Nov 1982

Prosecutorial Peremptory Challenge Practices In Capital Cases: An Empirical Study And A Constitutional Analysis, Bruce J. Winick

Michigan Law Review

As presently construed, the Constitution does not prohibit the death penalty. The states and the federal government may punish the commission of certain crimes with death, so long as the extreme penalty is not imposed on a mandatory basis and so long as the procedures used in imposing a death sentence meet constitutional scrutiny.

A demonstration that the prosecutor used the peremptory challenge in the manner described in a single case probably would be insufficient to support a constitutional challenge in the federal courts and in the vast majority of state courts. In these courts a prosecutor's use of the …


State Income Taxation Of Multijurisdictional Corporations, Part Ii: Reflections On Asarco And Woolworth, Walter Hellerstein Nov 1982

State Income Taxation Of Multijurisdictional Corporations, Part Ii: Reflections On Asarco And Woolworth, Walter Hellerstein

Michigan Law Review

The first part of this Article, State Income Taxation of Multijurisdictional Corporations: Reflections on Mobil, Exxon, and H.R. 5076, did not contemplate a sequel. The Supreme Court's decisions last term in two state corporate income tax cases, however, created an irresistible opportunity to write one. The Court's opinions in ASARCO and Woolworth picked up where its opinions in Mobil and Exxon left off. Yet the direction taken by these more recent decisions veers sharply from the course ostensibly set by their predecessors. This Article will consider the Court's latest pronouncements in this area in a continuing if quixotic effort to …


The Taming Of A Duty--The Tort Liability Of Landlords, Olin L. Browder Nov 1982

The Taming Of A Duty--The Tort Liability Of Landlords, Olin L. Browder

Michigan Law Review

For one inclined to reform the first-year curriculum in law schools the most simple and comprehensive solution is to expand the treatment of the law on landlord and tenant, and only then break up into the traditional basic subjects to deal with matters not previously covered. Thereby one could embrace all the traditional first-year subjects except Criminal Law, and a good deal more as well.

The other side of this conceit is that one who approaches the modem law of landlord and tenant from traditional property perspectives encounters particular problems that arise from the margins, or along the frontal thrust, …


Prosecutorial Vindictiveness In The Criminal Appellate Process: Due Process Protection After United States V. Goodwin, Michigan Law Review Nov 1982

Prosecutorial Vindictiveness In The Criminal Appellate Process: Due Process Protection After United States V. Goodwin, Michigan Law Review

Michigan Law Review

This Note reformulates the doctrine of prosecutorial vindictiveness in light of the distinction drawn in Goodwin between pretrial and posttrial charging decisions. Part I recounts the development of the vindictiveness concept, and argues that in extending the doctrine beyond the factual settings which moved the Supreme Court to fashion its original prophylactic rule, the circuit courts have seriously eroded an essential due process safeguard. Part II critically examines the distinction between pretrial and posttrial charging decisions relied upon in Goodwin. Developing the logical corollary of the Goodwin holding, this Part argues that just as the pretrial situation does not …


Eis Supplements For Improperly Completed Projects: A Logical Extension Of Judicial Review Under Nepa, Michigan Law Review Nov 1982

Eis Supplements For Improperly Completed Projects: A Logical Extension Of Judicial Review Under Nepa, Michigan Law Review

Michigan Law Review

This Note argues that the private cause of action under NEPA retains its utility despite the completion of the project sued upon. Part I describes the procedural implementation of the policy concerns underlying NEPA through the EIS process for proposed actions, and the EIS supplementation process for project changes made after the original EIS has been prepared. Part II examines current law applicable to projects completed in violation of NEPA and concludes that the denial of post-completion relief conflicts with the underlying goals of NEPA. Part III analyzes extension of relief to completed projects, and proposes court-ordered EIS supplementation for …


Tax Treatment Of Previously Expensed Assets In Corporate Liquidations, Michigan Law Review Aug 1982

Tax Treatment Of Previously Expensed Assets In Corporate Liquidations, Michigan Law Review

Michigan Law Review

This Note argues that although the Tennessee-Carolina majority adopts overbroad language and ignores established tax principles, a more careful refinement of its theory will yield the same proper result, without, in most situations, departing from accepted principles. The proper inquiry must focus first on whether the corporation has received any benefit, and then on whether that gain should be exempted by the nonrecognition provisions of section 336, or on any other basis. Part I of this Note examines these questions from a theoretical perspective, and concludes that expensed assets remaining at the time of liquidation give rise to corporate income, …


Mobility Factors In Antitrust Cases: Assessing Market Power In Light Of Conditions Affecting Entry And Fringe Expansion, William H. Wentz Aug 1982

Mobility Factors In Antitrust Cases: Assessing Market Power In Light Of Conditions Affecting Entry And Fringe Expansion, William H. Wentz

Michigan Law Review

To assist courts and litigants in developing and utilizing information on mobility factors in a meaningful manner, I have attempted in this Article to outline a basic approach for analyzing the competitive and efficiency significance of mobility factors in a litigative context. In Part I, I lay the necessary foundation: discussing the importance of mobility factors in accepted economic theory, explaining the sources of the current confusion and controversy about "entry barriers" and deriving from the debate areas of fundamental agreement among economists. Building on this common ground, I develop in Part II a basic approach to consideration of mobility …


Interview Notes Of Government Agents Under The Jencks Act, Michigan Law Review Aug 1982

Interview Notes Of Government Agents Under The Jencks Act, Michigan Law Review

Michigan Law Review

Most courts that have considered the issue have concluded that the Jencks Act does not require the government to retain and produce rough interview notes. This Note examines the language and purpose of the Act to determine whether interview notes should be considered Jencks Act statements. Part I examines the policy underlying the Jencks Act and argues that the majority position sanctioning pre-trial destruction of interview notes conflicts with these statutory purposes. Part II discusses the statutory language and argues that the status of the witness as a government agent or a private individual determines the applicable section of the …


Federal Agency Access To Grand Jury Transcripts Under Rule 6 (E), Michigan Law Review Aug 1982

Federal Agency Access To Grand Jury Transcripts Under Rule 6 (E), Michigan Law Review

Michigan Law Review

Part I examines the courts' current certainty-based perspective, and rejects this approach because it sacrifices important interests in civil law enforcement and judicial consistency for speculative and coincidental reductions in grand jury abuse. Part II defends the proposed standard by arguing that it comports with the language and intent of the rule while more effectively advancing the policy interests in civil law enforcement and grand jury secrecy.


Toward Understanding Unlawful Organizational Behavior, Diane Vaughan Jun 1982

Toward Understanding Unlawful Organizational Behavior, Diane Vaughan

Michigan Law Review

The emergence and growth of regulatory agencies charged with controlling organizational misconduct has been so widespread that the monitoring and regulation of corporate interactions has itself become "big business," with the complexity of the regulatory agencies at times matching or even exceeding that of the organizations they regulate. The effectiveness of these efforts to control unlawful organizational behavior has been assessed in many different ways. The records of agency investigations, administrative hearings, and judicial proceedings provide data on enforcement actions, court decrees, trials, convictions, penalties, and other indicators that allow empirical estimates to be made. A realistic assessment of agency …


The Criminal Liability Of Corporations And Other Groups: A Comparative View, L. H. Leigh Jun 1982

The Criminal Liability Of Corporations And Other Groups: A Comparative View, L. H. Leigh

Michigan Law Review

Briefly, three positions concerning corporate liability may be identified. First, there are systems of full corporate criminal liability, such as those in England and the United States. Second, there are systems that recognize only partial corporate criminal liability, for example Denmark, Belgium, and France. Finally, some systems do not permit such liability at all, or permit it only under the guise of administrative offenses. Italy and West Germany afford examples of this restrictive view of corporate liability.

This Article will sketch each of these positions in some detail, beginning, in Part I, with those systems that authorize full liability. Part …


The Organization As Weapon In White-Collar Crime, Stanton Wheeler, Mitchell Lewis Rothman Jun 1982

The Organization As Weapon In White-Collar Crime, Stanton Wheeler, Mitchell Lewis Rothman

Michigan Law Review

This Article explores the advantages of using organization or occupation in the more typical case. Our inquiry takes this as its central question: What difference does it make when a white-collar crime is committed in the course of one's occupation or when acting on behalf, or with the assistance, of an organization? If we are becoming, as some have argued, an organizational society, then we should see the results of this change reflected in illicit as well as licit behavior. The organizational form may be used for either social or antisocial ends. Our principal hypothesis, as the title suggests, is …


The Sentencing Of White-Collar Criminals In Federal Courts: A Socio-Legal Exploration Of Disparity, Ilene H. Nagel, John L. Hagan Jun 1982

The Sentencing Of White-Collar Criminals In Federal Courts: A Socio-Legal Exploration Of Disparity, Ilene H. Nagel, John L. Hagan

Michigan Law Review

This Article addresses that question by examining judicial sentencing philosophy as applied to white-collar criminality and reporting data that illuminate the operation of that philosophy. Part I of the Article argues that the traditional purposes and limits of criminal sentencing may plausibly justify either disparate or comparable sentences in cases of white-collar and common criminality. Part II describes the obstacles to an accurate empirical inquiry into how judges resolve these uncertainties in the theory of punishment. Part III presents a study designed to overcome as many of these obstacles as possible. What is most dramatic is that the resulting data …


Enforced Self-Regulation: A New Strategy For Corporate Crime Control, John Braithwaite Jun 1982

Enforced Self-Regulation: A New Strategy For Corporate Crime Control, John Braithwaite

Michigan Law Review

Part I outlines the concept of enforced self-regulation, sketches its theoretical underpinnings, and illustrates its application in the context of corporate accounting standards. Part II argues the merits of enforced self-regulation. Part III dispels notions that the proposal is a radical departure from existing regulatory practice and points to areas in which necessary empirical research could be conducted by discussing incipient manifestations of partial enforced self-regulation models in the aviation, mining, and pharmaceutical industries. Part IV considers in some detail the weaknesses of the proposed model. The final Part considers the importance of determining an optimal mix of regulatory strategies; …


Interest Representation And The Federal Land Policy And Management Act, Michigan Law Review May 1982

Interest Representation And The Federal Land Policy And Management Act, Michigan Law Review

Michigan Law Review

The role of the BLM under the FLPMA, this Note argues, is accurately captured in the "interest representation" model of administrative law; judicial review under this model serves to vindicate the "participation rights" of parties interested in public lands management. Part I places the FLPMA in the context of other recent congressional reform efforts and attempts to justify heightened judicial scrutiny of the BLM's activities. To protect citizens' participation rights, it concludes, courts should recognize a limited right to initiate the planning and management provisions of the FLPMA. The Act, in other words, should be interpreted to comprehend "agenda forcing" …


Luke K. Cooperrider, L. Hart Wright May 1982

Luke K. Cooperrider, L. Hart Wright

Michigan Law Review

A Tribute to Luke K. Cooperrider


From Pillory To Penitentiary: The Rise Of Criminal Incarceration In Early Massachusetts, Adam J. Hirsch May 1982

From Pillory To Penitentiary: The Rise Of Criminal Incarceration In Early Massachusetts, Adam J. Hirsch

Michigan Law Review

While the transition from the old forms of criminal sanction to incarceration was perhaps not, as Jeremy Bentham claimed, "one of the most signal improvements that have ever yet been made in our criminal legislation," one does not overstate to call it a signal development in the history of Anglo-American criminal justice - a development, one may add, that still wants adequate examination, much less explanation. This Article attempts to do both for one sample region: Massachusetts. Though the jurisprudential movement from pillory to penitentiary took place throughout the new American republic, as well as much of western Europe, our …


Antitrust Suits By Targets Of Tender Offers, Frank H. Easterbrook, Daniel R. Fischel May 1982

Antitrust Suits By Targets Of Tender Offers, Frank H. Easterbrook, Daniel R. Fischel

Michigan Law Review

We explore in this Article the basis and consequences of the target's suit under the antitrust laws. We approach the question from the perspective of federal antitrust law and state corporation law.

We argue in Part I that the target is a singularly poor "private attorney general" because it is a beneficiary, not a victim, of any violation. An antitrust suit thus must be understood as an attempt by managers to defend their own positions, not as an attempt to vindicate the public interest. In the jargon of antitrust, the target is not a victim of "antitrust injury" and therefore …


Statutory And Common Law Considerations In Defining The Tort Liability Of Public Employee Unions To Private Citizens For Damages Inflicted By Illegal Strikes, Michigan Law Review May 1982

Statutory And Common Law Considerations In Defining The Tort Liability Of Public Employee Unions To Private Citizens For Damages Inflicted By Illegal Strikes, Michigan Law Review

Michigan Law Review

This Note argues that in the absence of any clear indication that the legislature intended to bar such suits, courts should uphold private actions whenever plaintiffs can establish the elements of a common-law tort. Part I briefly outlines the various theories supporting the view that public sector collective bargaining statutes preempt private actions. The analysis is necessarily general, but Part I concludes that in most cases neither the language and structure of the applicable statute nor an analogy to federal labor law will resolve the preemption question. Part II, therefore, looks to the policies that animate no-strike provisions and argues …


Stone V. Powell And The Effective Assistance Of Counsel, Michigan Law Review May 1982

Stone V. Powell And The Effective Assistance Of Counsel, Michigan Law Review

Michigan Law Review

Part I briefly identifies the considerations underlying the Stone Court's decision to limit habeas corpus review of fourth amendment claims. Part II then argues against applying Stone to the sixth amendment claim. After establishing the analytic difference between the two constitutional claims and examining Stone's "opportunity for full and fair litigation" standard, it concludes that Stone is fully consistent with free review of habeas corpus petitions alleging incompetent handling of fourth amendment questions. Finally, responding to a popular interpretation of Stone, Part II demonstrates that the possibility that ineffectiveness claims may not further the determination of a defendant's …


A Territorial Approach To Representation For Illegal Aliens, Michigan Law Review May 1982

A Territorial Approach To Representation For Illegal Aliens, Michigan Law Review

Michigan Law Review

This Note rejects these arguments in favor of the thesis that the census clause affirmatively requires including illegal aliens in the census figures used to apportion representatives among the states. Part I argues that the framers intended to allocate representation among the states based on a number of considerations, including wealth, and chose total population within the territory of each state as the best measure of those considerations. Part II contends that the requirement of individual equality in voting rights does not apply to interstate comparisons of voting power. Rather, a specific structural agreement reached by the states as sovereign …


The Effect Of Insider Trading Rules On The Internal Efficiency Of The Large Corporation, Robert J. Haft Apr 1982

The Effect Of Insider Trading Rules On The Internal Efficiency Of The Large Corporation, Robert J. Haft

Michigan Law Review

Academics have hotly debated these justifications for years, and none of the three has achieved universal acclaim. This Article suggests another perspective: Prohibiting insider trading may enhance business decision-making in large corporations. With the exception of proponents of the Business Property view, analysts have focused on how an insider trading rule affects the national securities markets and traders in those markets. The internal governance of the large corporation is a different matter, one deserving separate consideration.


Intent Or Impact: Proving Discrimination Under Title Vi Of The Civil Rights Act Of 1964, Michigan Law Review Apr 1982

Intent Or Impact: Proving Discrimination Under Title Vi Of The Civil Rights Act Of 1964, Michigan Law Review

Michigan Law Review

This Note analyzes the controversy and concludes that courts must apply an impact standard in title VI cases. After reviewing the relevant Supreme Court decisions, Part I contends that Bakke did not overrule Lau's approval of an impact standard. Part II examines the regulations on which the Lau court relied. It first characterizes them as legislative; they derive the force of law from an explicit congressional delegation of substantive power. Part II then tests the regulations' impact standard against the language, legislative history, and policy of title VI and finds it valid. Since courts may not disregard valid legislative regulations, …


Donee Payment Of Gift Tax: Crane, Old Colony Trust, And The Need For Congressional Action, Michigan Law Review Apr 1982

Donee Payment Of Gift Tax: Crane, Old Colony Trust, And The Need For Congressional Action, Michigan Law Review

Michigan Law Review

The net gift theory achieves results that comport with congressional policy, but its focus on donative intent finds little support in the Code. The part-sale, part-gift theory undermines Congress' policy toward gifts, but follows logically from the Supreme Court's decision in Old Colony Trust. The Note concludes, therefore, that Congress should amend the Code to make clear that liability for gift taxes is shared by donors and donees. By ensuring that donee payments of gift taxes would riot constitute taxable gain to donors, this amendment would eliminate the inconsistency between Congress' goals and its operative language.


Another Theory Of Nonprofit Corporations, Ira Mark Ellman Apr 1982

Another Theory Of Nonprofit Corporations, Ira Mark Ellman

Michigan Law Review

This Article argues that the distinction between donors and customers is critical, and that the contract failure model is therefore seriously flawed. It distinguishes two types of nonprofit corporations - those structured to satisfy donors' needs ("donative nonprofits") and those structured to satisfy customers' needs ("mutual benefit nonprofits"). This dichotomy suggests a very different nonprofit corporation law than the one urged by Hansmann. Once the concept of contract failure is limited to donors, it can be refined to serve as part of the rationale for donative nonprofits. Refining the concept of contract failure reveals, however, that it confuses the analysis …


Double Jeopardy And Federal Prosecution After State Jury Acquittal, Michigan Law Review Apr 1982

Double Jeopardy And Federal Prosecution After State Jury Acquittal, Michigan Law Review

Michigan Law Review

This Note argues that the rationale of the Supreme Court's post-conviction cases cannot be extended to cases involving jury acquittal and that federal reprosecution after state jury acquittal violates the double jeopardy clause. One can give meaning to the clause, Part Iexplains, only by reference to its underlying constitutional values.Part II suggests that these values, while possibly compatible with federal prosecution after a state conviction, cannot countenance reprosecution after a jury acquittal. Part III proposes that courts determine whether such reprosecution is appropriate by applying the Blockhurger same offense standard: Two offenses are the same unless each requires proof of …