Law Commons^™

Vol. 42, No. 8, December 6, 1991, University Of Michigan Law School

Res Gestae

•Gottschalk: We Can Meet '92-'93 Needs •Huber Trashes Junk Science •1Ls Find Time for Moot Court •Thinking About That Future Job? Don't Forget Academia •Semester Ends: Did We Get Our Money's Worth? •Streisand's Prince Gets You All Gushy Inside •Speaker: Soviet Jews Face Immigration Challenges •Professor Pildes v. Dr. Manitsky

Misuse Of The Antitrust Laws: The Competitor Plaintiff, Edward A. Snyder, Thomas E. Kauper

Michigan Law Review

In this article we ask (1) under what circumstances are competitor suits meritorious, and (2) do existing rules, such as those requiring proof of market power or other so-called filters and the requirement that plaintiffs suffer "antitrust injury," afford a reasonable prospect of eliminating anticompetitive misuses of the remedy by competitor plaintiffs? We evaluate a sample of seventy-four cases in which plaintiffs sued their rivals to learn how competitor plaintiffs use the private antitrust remedy. And because many of these cases allege anticompetitive exclusionary practices, we consider how recent theories of exclusionary practices may be used to support competitor claims. …

The Breath Of The Unfee'd Lawyer: Statutory Fee Limitations And Ineffective Assistance Of Counsel In Capital Litigation, Albert L. Vreeland Ii

Michigan Law Review

This Note argues that fee limitations deprive indigent defendants of their right to effective assistance of counsel. Part I of this Note reviews state court decisions that address Sixth Amendment challenges to fee limitations, yet fail to address the broader concerns about the appointed counsel system. Part II considers the inherent disincentives and burdens fee limitations impose on attorneys and suggests that the limits threaten the indigent accused's right to effective assistance of counsel. A comparison of the fee limitations and the time required to prepare and try a capital case reveals the gross inadequacy of statutory fee provisions. In …

Personal Jurisdiction Over Aliens In Patent Infringement Actions: A Uniform Approach Toward The Situs Of The Tort, David Wille

Michigan Law Review

This Note examines current approaches to the question of personal jurisdiction over alien patent infringers. Part I describes personal jurisdiction requirements in the context of patent infringement suits against aliens. The leading case addressing these requirements has been interpreted differently by several courts, thus resulting in conflicting outcomes. Part II explains the current controversy over the locus of the tort of patent infringement. The three different modes of reasoning currently used by courts to determine the locus of the tort would allow immunity from suit for the alien in at least two hypothetical cases. This Part concludes that in order …

Guilt: Henry Friendly Meets The Maharal Of Prague, Irene Merker Rosenberg, Yale L. Rosenberg

Michigan Law Review

So while the overnight deliberation rule is at least partially bound up with the question of reliability and relates to the judicial process itself, the broader and more fundamental issue raised by this law is whether we should free the guilty to preserve a value that we deem necessary to proper working of the criminal justice process, regardless of the culpability of individual defendants. To this Judge Friendly's answer is generally no, 113 and the MaHaRaL's is yes.

Vol. 42, No. 7, November 18, 1991, University Of Michigan Law School

Res Gestae

•Law School Spearhead's Domestic Partnership Law •Commission Criticizes Gas Attack •Panel Debates Hate Speech, Censorship •Magic Johnson, Immunity and Successful Futures •…On MSA Fee Assessment •They Relied on Staffers During the Hearings, What the Senators Really Thought •A Few Modest Propositions... •The Docket •Cape Fear! Private Idaho! Wayne's World! •For Those Interested in French Surreal Estate •#1 'Canes Huffing and Puffing •The Commriss Clause •Law in the Raw

Vol. 42, No. 6, November 4, 1991, University Of Michigan Law School

Res Gestae

•Regents Question Bollinger's Advice on Speech Restrictions •Kamisar Defends Exclusionary Rule •Public Officials and Private Affairs: What Matters? •… On the Michigan Daily's Ad •U.S. Senators Lack "Political Guts" •The List is Here… Grades •The Docket •LSSS Discusses Changing Grading System •Turow "One L" No Longer

Telling Tales In Court: Trial Procedure And The Story Model, Richard O. Lempert

Articles

There are three ways in which stories may figure prominently at trials. First, litigants may tell stories to jurors. Not only is there some social science evidence that this happens, but trial lawyers have an instinctive sense that this is what they do. Ask a litigator to describe a current case and she is likely to reply, "Our story is ... " Second, jurors may try to make sense of the evidence they receive by fitting it to some story pattern. If so, the process is likely to feed back on itself. That is, jurors are likely to build a …

Some Caveats Concerning Dna As Criminal Identification Evidence: With Thanks To The Reverend Bayes, Richard O. Lempert

Articles

The conference panel at which this paper was originally presented was structured along the lines of a debate. The three speakers who were supposed to advocate the use of DNA evidence were labeled, as is customary, Proponents. But those who were supposed to take the negative side were not called Opponents. Rather they were labeled Caveators. I do not know who is responsible for this label, but I think it gets things exactly right. To my mind anyone considering DNA as criminal identification evidence should be a Caveator. The promise and utility of DNA analysis in identifying the perpetrators of …

Remedying Environmental Racism, Rachel D. Godsil

Michigan Law Review

This Note addresses the equity issues that arise in the placement of commercial hazardous waste facilities. Currently, minorities are shouldering an unequal share of the burdens of hazardous waste16 while the benefits of production that results in hazardous waste are dispersed throughout society. Studies demonstrate that poor whites are overburdened as well. While inequitable distribution of wastesites along class lines is troubling and deserving of attention, this Note focuses specifically on the burdens facing racial minorities.

This Note contends that all races should share equitably the burdens and risks of hazardous waste facilities. Part I documents the disproportionate burden of …

An Interpretive History Of Modern Equal Protection, Michael Klarman

Michigan Law Review

My enterprise here is to write a limited history of modem equal protection - one that will facilitate understanding of the important conceptual shifts that have occurred over time. By "modem" I mean the period following the switch-in-time in 1937 that signaled the demise of the Lochner era. By "limited" I mean an account that falls substantially short of a full-scale history of equal protection, which would, for example, necessarily encompass a good deal of political and social history. My aim here, rather, is to tell a story about the evolution of equal protection as a legal concept; I shall, …

Read My Lips: Examining The Legal Implications Of Knowingly False Campaign Promises, Stephen D. Sencer

Michigan Law Review

This Note does not argue that campaign speech should always be held to the same standards of accuracy to which other forms of speech are held. Campaign speech is unique in form, with its own idioms and rhetorical devices, and serves unique purposes.

Part I discusses the ways false campaign promises damage the political process and suggests that attaching legal liability to knowingly false campaign promises could serve important public policy interests. Part II applies common law contract doctrine to a hypothetical broken campaign promise, finding all the elements of a breach of contract claim. Part II concludes, however, that …

Vol. 42, No. 5, October 21, 1991, University Of Michigan Law School

Res Gestae

•Focus on Sexual Harassment puts MacKinnon in Spotlight •Thomas Forum Fails to Spark Debate •New LSSS Reps Welcomed •U.S. Senate is Out of Touch with Reality •…On Deconstructing Sensitivity •Letters to the Editor •The Docket •Pixies: Si, Faeries: No •A Note from the Doctor •Law in the Raw

Vol. 42, No. 4, October 7, 1991, University Of Michigan Law School

Res Gestae

•Don't Faint: Scalia Coming to Judge Moot Court Finals •Judge Tells Students TV Law Not Reality •Economic Woes Heighten Job Anxiety •Reflections on Student Ethos •Letters to the Editor •… On the American Economy •Brookner Out of Control? •Students Told: It's Never too Early to Make a Career Choice •Warren Commission Continues Investigation •1L Student Senate Candidates Speak Out •The Docket •It's up and It's... •Tenacious Twin to Topple Tawdry Toronto •Zedd & Music: A Fateful Attraction •Jesse Enters Race, Runs Away with Iowa •From Family Law to Family Ties •Panty Raider Stalks Laundry Room •Law in the Raw

On Coming Of Age: Twenty-Five Years Of The University Of Michigan Journal Of Law Reform, Francis A. Allen

University of Michigan Journal of Law Reform

A reflection on the first twenty-five years of the University of Michigan Journal of Law Reform.

Gatekeepers Of The Profession: An Empirical Profile Of The Nation's Law Professors, Robert J. Borthwich, Jordan Schau

University of Michigan Journal of Law Reform

Part I of this Note surveys the existing body of literature on legal education, with a particular emphasis on previous empirical studies concerning law professors. Part II focuses on the increasing number of women in the teaching profession. Part III looks at the nonteaching experience of law teachers, including judicial clerkships, private practice, government experience, and public interest experience. Finally, Part IV examines the influence of "elite schools" in law school hiring and tenure decisions.

Paradox And Pandora's Box: The Tragedy Of Current Right-To-Die Jurisprudence, Cathaleen A. Roach

University of Michigan Journal of Law Reform

Part I of this Article examines the trilogy of recent right-to-die cases and contrasts the results of those cases with recent national opinion polls and statistical surveys of the issue. Part II examines federal and state legislative responses to the debate. It suggests that both the courts and legislatures are out of sync with an emerging national consensus on the death-with- dignity debate. In fact, the federal legislative response may only exacerbate the problem. Instead of creating new rights, it feeds individuals into the existing state network, which is a quagmire of confusing and inequitable statutory provisions. Part III examines …

Rolling Down The Curtain On "Roll-Ups": The Case For Federal Legislation To Protect Limited Partners, Kenneth R. Hillier

Michigan Law Review

This Note examines roll-ups and the lack of alternatives available to reluctant limited partners. Part I focuses on existing judicial remedies for limited partners, such as injunctions and actions for damages, and explains why these courses of action provide inadequate protection. This Part then reviews recent attempts at statutory protection and points out the shortcomings of these remedies. Part II examines safeguards afforded analogously situated corporate shareholders and sets forth arguments why limited partners should receive similar protection. After demonstrating the need for legislation, Part III suggests a workable structure for this statutory protection. Then, the Note discusses the relative …

Faculty & Student Newsletter, University Of Michigan Law School

Newsletters

Volume 2, no. 2 of the University of Michigan Law Library Faculty & Student Newsletter.

Two (Federal) Wrongs Make A (State) Right: State Class Action Procedures As An Alternative To The Opt-In Class Action Provisions Of The Adea, Janet M. Bowermaster

University of Michigan Journal of Law Reform

This Article argues that the opt-in class action of the ADEA is an anachronism and that age-discrimination litigants can take advantage of the broader protection afforded to Title VII litigants by bringing their ADEA suits as Rule 23 class actions in state courts. A comparison of the two statutes reveals similar purposes and nearly identical substantive provisions, but procedural provisions that provide less protection to victims of age discrimination, including widely disparate class-action provisions.

Accountability In Government And Section 1983, Mark R. Brown

University of Michigan Journal of Law Reform

Part I of this Article traces the legal history behind derivative supervisory liability as well as its status today. Part II addresses obstacles that might block the development of derivative supervisory liability, at least in the federal court system. Part III offers a solution premised on federalizing the question of duty. Finally, Part IV turns to the unique problem of preserving supervisory liability even in the absence of constitutional fault by the errant subordinate.

"The Eternal Triangles Of The Law": Toward A Theory Of Priorities In Conflicts Involving Remote Parties, Menachem Mautner

Michigan Law Review

Anglo-American priority law is premised on a doctrinal-derivational approach under which "triangle conflicts" are supposed to be resolved on the basis of the legal rights that the intermediate, wrongdoing party could have transferred from the first-in-time competing party to the second-in-time competing party. In Part I, I outline the major propositions of this approach. I argue that in focusing on the intermediate party, the doctrinal-derivational approach fails to address the primary consideration relevant to resolving triangle conflicts, namely the conduct of the two remote claimants involved in the conflict. In Part II, I focus on the two remote parties involved …

Legal Images Of Battered Women: Redefining The Issue Of Separation, Martha R. Mahoney

Michigan Law Review

Part I of this article discusses violence in the ordinary lives of women, describing individual and societal denial that pretends domestic violence is rare when statistics show it is common, and describing the ways in which motherhood shapes women's experience of violence and choices in response to violence. Part II examines definitions of battering and evaluates their effectiveness at disguising or revealing the struggle for control at the heart of the battering process. I then describe in Part III the pressures that self-defense and custody cases place on legal and cultural images of battered women and contrast the development of …

Limitations Of Sovereign Immunity Under The Clean Water Act: Empowering States To Confront Federal Polluters, Corinne Beckwith Yates

Michigan Law Review

This Note considers whether civil penalties that states impose on federal agencies for violations of NPDES permits arise under federal law and thus are covered by the Clean Water Act's waiver of sovereign immunity - an issue the Supreme Court is scheduled to address during the 1991 term. Part I outlines the history of the Clean Water Act, discussing Supreme Court decisions and statutory amendments that affect the sovereign immunity provision. Part II explains the mechanics of the NPDES state permit process and examines, through analysis of statutory provisions, the degree of control retained by the EPA over individual states …

Vol. 42, No. 3, September 30, 1991, University Of Michigan Law School

Res Gestae

•Warren Spearheads Gassing Investigation •Hurtado Offers Views On Campus Racial Tensions •Oppose the Military's Homophobic Policy •Boy Scouts' Policies Are Justified •Letter to the Editor •The Freight Train Out of Control •Take Home Exams Unfair •The Docket •A Free Ticket •Intramural Sports •This Time the Tears Were Real •Love, Gum & Big Mac •Law in the Raw

Vol. 42, No. 2, September 23, 1991, University Of Michigan Law School

Res Gestae

•Study: Minority Professors Less Likely to Receive Tenure •Students Give up Lavish Flybacks to Help Homeless •Kamisar, Kahn Debate Fourth Amendment Issues •Sanor Pitches RG Ball to Mandel •Letters to the Editor •To Be or Not to Be… PC: An Essay on Diversity •The Politics of a Judicial Nomination •Business School Students Learn "Global Citizenship" •Danilenko Describes Soviet Union's Many Problems •Reflections on a Summer Past •The Docket •The Madden Rule •Intramural Sports •Sarah Bernhard and That Singing Feeling •Thoughts from the Armchair... •Dr. Manitsky Gets Tough •Law in the Raw

International Alumni Reunion, University Of Michigan Law School

Event Materials

Program for the 1991 International Alumni Reunion.

Vol. 42, No. 1, September 16, 1991, University Of Michigan Law School

Res Gestae

•Record Number of Women and Minorities in Class of 1994 •ACLU President Shuns Conservative Court •1991 Law School Honors Graduate Dies in Accident •Mein Campus? Ah, To be a Lawyer in '91 •PC Revisited •On Finding a Mission… •MSA Debates Supporting Victim of Racial Attack •The Docket •U-M v. ND: Bringing Tears to Your Eyes •Introducing Ramblin' Lance •In the Venal Colony •The Best of Dr. Manitsky •Law in the Raw

Copyright As Myth, Jessica D. Litman

Articles

It has become fashionable to seek to formulate, or reformulate, copyright law as an expression of overarching grand theory. Perhaps the most prominent manifestation of this trend has been the recasting of copyright law in the mold of economic incentives; a more recent upstart competitor seeks to reclaim the debate by invoking the philosophical precepts of Hohfeld, Hegel and Locke. Occasionally, the literature gives us polite debates about which of the competing theoretical models is more misguided. Meanwhile, another voice in the copyright literature has been complaining that the law is remarkably unaccommodating of the actual process of creating works …

The Fourth Amendment And Its Exclusionary Rule, Yale Kamisar

Articles

"The history of liberty," Justice Felix Frankfurter once noted, "has largely been the history of observance of procedural safeguards" and "the history of the destruction of liberty," Professor Anthony Amsterdam has added, "has largely been the history of the relaxation of those safeguards in the face of plausible sounding governmental claims of a need to deal with widely frightening and emotion freighted threats to the good order of society." These plausible-sounding government claims are being heard today -and they are putting enormous pressure on the Fourth Amendment, the constitutional provision that protects "the right of the people to be secure …