Law Commons^™

Collective Bargaining Or "Collective Begging"?: Reflections On Antistrikebreaker Legislation, Samuel Estreicher

Michigan Law Review

The strike is a necessary part of collective bargaining. Workers should not ordinarily lose their jobs by pressing their disputes in this manner. But neither should strikes be viewed as a risk-free means of empowering unions to lock employers into uncompetitive contracts.

The Case Against Intermediate Owner Liability Under Cercla For Passive Migration Of Hazardous Waste, Robert L. Bronston

Michigan Law Review

This Note argues that Congress intended disposal to have an active meaning and therefore that courts should not hold prior intermediate owners liable for the passive migration of hazardous waste under section 107(a)(2). Part I examines CERCLA's definition of disposal. This Part concludes that the language of the definition, though somewhat ambiguous, supports the active defuiition. Part II considers the history of both CERCLA and the Resource Conservation and Recovery Act (RCRA), which CERCLA amended, in order to determine whether Congress intended to require affirmative conduct on the part of intermediate owners as a prerequisite to liability. Part II …

Federal Common Law And Gaps In Federal Statutes: The Case Of Erisa Plan Limitation Periods For Section 502(A)(1)(B) Actions, Jim Greiner

Michigan Law Review

This Note argues that federal courts should adopt a uniform national rule that upholds plan provisions modifying the limitation period for a section 502(a)(l)(B) action. Part I examines the reasoning of those courts that have borrowed state law to determine the validity of modifications of the limitation period applicable to actions arising under BRISA section 502(a)(l)(B) and under other federal statutes. Part I argues that those courts may have incorrectly characterized the validity of plan limitation periods as an issue of limitation law. As a consequence of this characterization, those courts have followed the Supreme Court's rule that, when borrowing …

Congressional Commentary On Judicial Interpretations Of Statutes: Idle Chatter Or Telling Response?, James J. Brudney

Michigan Law Review

There are two principal aspects of my thesis. First, it is desirable to consider seriously these legislative signals of approval and disapproval, because a blanket rejection, or even systematic hostility, imposes significant opportunity costs on Congress. If the judiciary refuses to consider these signals, Congress will have to expend extra resources to achieve the same ends. That expense will diminish the institution's ability to enact other laws and in some cases will alter the character of the other laws that it is able to enact. The consequent diminution or depletion of Congress's legislative authority is unhealthy from a democratic perspective …

Employment Discrimination Claims Under Erisa Section 510: Should Courts Require Exhaustion Of Arbitral And Plan Remedies?, Jared A. Goldstein

Michigan Law Review

This Note examines whether courts should require section 510 claimants to exhaust either plan-based or arbitral remedies before seeking judicial relief. It begins by comparing the basis for an exhaustion requirement with respect to benefits claims with the basis for such a requirement with respect to statutory claims - like those under section 510. Part I examines the rationale courts have offered for requiring exhaustion of plan remedies for benefits claims. Part I concludes that federal courts have correctly determined that Congress intended individuals bringing benefits claims to exhaust the remedies provided by the plan before seeking judicial relief. Part …

Employment Discrimination Law In Perspective: Three Concepts Of Equality, John J. Donohue Iii

Michigan Law Review

The essay begins with a discussion of which groups deserve the protection of employment discrimination law. With the protected categories of Title VII of the 1964 Civil Rights Act etched into the American consciousness, many might consider the appropriate categories to be fully self-evident. But of course, they are not, and many jurisdictions continue to struggle over whether certain dispreferred groups merit the law's solicitude.

No Time For Trumpets: Title Vii, Equality, And The Fin De Sièchle, D. Marvin Jones

Michigan Law Review

My essay seeks to examine the internal architecture of the discursive barrier - the wall - that the Supreme Court has built within the doctrinal framework of Title VII and concomitantly within the discourse of equality. To understand how the Court has erected this discursive wall, we must begin with history. Equality, while historically a vehicle for national identity and contemporaneously for modernist conceptions of justice, is synchronically and diachronically indeterminate. Equality is a deeply sedimented concept with not one objective meaning but successive levels of meaning built up over time. Each of those historic understandings is itself a unity …

Structuralist And Cultural Domination Theories Meet Title Vii: Some Contemporary Influences, Martha Chamallas

Michigan Law Review

This essay first looks at three important theoretical approaches - motivational, structural, and cultural - that mark the scholarly discourses on workplace equality since 1965. The motivational or individual choice theory is well established and has dominated legal discourse throughout this period. I concentrate in this essay on the other two visions, dating structuralist accounts from the mid1970s and cultural domination theories from the mid-1980s.

Title Vii And The Complex Female Subject, Kathryn Abrams

Michigan Law Review

One strength of Title VII has been its capacity to accommodate the changing conceptions of discrimination and the self-conceptions of subject groups. In the first decades of its enforcement, advocates have raised - and courts have endorsed - a range of contrasting conceptions in order to broaden the employment opportunities of protected groups. This flexibility is particularly evident with respect to women.

After exploring recent doctrinal efforts to respond to complex claimants, I address these questions and assess the prospects of change. Although the unitary or categorical notions of group identity under which Title VII has historically been enforced might …

Only Girls Wear Barrettes: Dress And Appearance Standards, Community Norms, And Workplace Equality, Katharine T. Bartlett

Michigan Law Review

In this essay I study both the judicial rationales and the scholarly criticisms thereof, agreeing with critics that community norms are too discriminatory to provide a satisfactory benchmark for defining workplace equality, but also questioning the usual implications of this critique. Critics assume that it is possible, and desirable, to evaluate dress and appearance rules without regard to the norms and expectations of the community - that is, according to stable or universal versions of equality that are uninfected by community norms. I question this assumption, arguing that equality, no less than other legal concepts, cannot transcend the norms of …

The Equal Access To Justice Act--Are The Bankruptcy Courts Less Equal Than Others?, Matthew J. Fischer

Michigan Law Review

This Note argues that the bankruptcy courts have authority under the BAJA to shift fees against the federal government. Part I discusses the relevant caselaw and examines the basis of the current controversy. Part II examines the statutory language, the legislative history, and the stated purposes of the BAJA and concludes that each of these aspects of the statute demonstrates a congressional intent to grant fee-shifting authority to the bankruptcy courts. Part III considers alternatives to finding bankruptcy court jurisdiction over BAJA disputes, rejecting each as inefficient and unnecessary. This Note concludes that courts should construe the BAJA consistently with …

Insider Trading Deterrence Versus Managerial Incentives: A Unified Theory Of Section 16(B), Merritt B. Fox

Michigan Law Review

Part I of this article assesses the social costs of a crude rule of thumb. Because section 16(b) applies to a given class of paired transactions, it deters both transactions based on inside information and transactions not so based. Each time section 16(b) is stretched to include a class of paired transactions, it deters some additional innocent transactions. This side effect will take the form of officers' and directors' purchasing fewer shares in their own companies and refusing to accept as large a portion of their compensation in a form based on share price. There are strong theoretical and empirical …

The New Gold Rush: Mine Tailings In Southeast Alaska And Perversion Of The Clean Water Act, Beth Leibowitz

University of Michigan Journal of Law Reform

Part I of this Note provides a basic explanation of the mine tailings problem. Part II of this Note discusses the evolution of the agencies' tailings decision and the statutory and regulatory context in which it occurred. Part III outlines briefly the actual decision, which involved the theory that neither the EPA nor the Corps should apply the usual CWA permit requirements to the initial discharge of mine waste. Part IV evaluates the legal basis for that decision and concludes, based on the language of the CWA, the EPA's own prior policy, and judicial precedent, that the decision was without …

The Individuals With Disabilities Education Act: A Parent's Perspective And Proposal For Change, Martin A. Kotler

University of Michigan Journal of Law Reform

For two years, beginning in the fall of 1991, I was involved in an ongoing legal battle with the Delaware County, Pennsylvania Intermediate Unit No. 25 regarding the "appropriateness" of preschool programming for my son. To a large degree, the following Article has its origin in that battle.

Nevertheless, the point of this Article is neither to get even for wrongs, real or imagined, nor to utilize these pages to supplement the already extensive briefs and formal arguments made in that case. Rather, I believe that my position as a law professor, lawyer, litigant, and parent of a disabled child …

The Key To Unlocking The Clubhouse Door: The Application Of Antidiscrimination Laws To Quasi-Private Clubs, Sally Frank

Michigan Journal of Gender & Law

This article focuses on discrimination in quasi-private clubs and the impact of laws and the United States Constitution on that discrimination. For the purposes of this article, a quasi-private club is any organization that claims to be private but which might in fact be viewed as public. The term "quasi-private" is used because litigation concerning discrimination in such organizations often rests on whether the entity is private, and therefore cannot be regulated.

Laws Separating Commercial Banking And Securities Activities As An Impediment To Free Trade In Financial Services: A Comparative Study Of Competitiveness In The International Market For Financial Services, Sarah A. Wagman

Michigan Journal of International Law

By comparing U.S., Japanese, and European institutions' competitiveness in the international market for financial services, this Note focuses on the possible implications of the Glass-Steagall Act in the international trade context as a means of exploring some of the additional arguments which have emerged in favor of reforming U.S. bank regulation.

Bringing Down Private Trade Barriers- An Assessment Of The United States' Unilateral Options: Section 301 Of The 1974 Trade Act And Extraterritorial Applications Of U.S. Antitrust Law, Aubry D. Smith

Michigan Journal of International Law

This note examines how the antitrust and trade law options operate, with the two-fold purpose of providing some idea of their potential effectiveness and also suggesting what limitations, if any, should be placed on their use. Parts I and II analyze the mechanics of applying the antitrust and Section 301 remedies to eliminate foreign trade-restrictive business practices. In light of this discussion of how the two processes work, Part III considers whether they are likely to get out of control and suggests how they ought to be restrained. Part III finds that Section 301 is subject to a number of …