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Articles 1 - 30 of 59
Full-Text Articles in Law
Property Rights And Liability Rules: The Ex Ante View Of The Cathedral, Lucian Arye Bebchuk
Property Rights And Liability Rules: The Ex Ante View Of The Cathedral, Lucian Arye Bebchuk
Michigan Law Review
This Article aims to contribute to the study of how the law should allocate and protect entitlements in the presence of externalities. In their classic article published thirty years ago, Calabresi and Melamed studied such questions and offered what they labeled "one view of the Cathedral." I seek to add to the inquiry started by Calabresi and Melamed by offering an ex ante perspective and analyzing how allocations of entitlements affect parties' ex ante actions and investments. Suppose that an upstream Factory would benefit from an activity that would pollute a river and harm an activity conducted by a downstream …
Swallowing The Apple Whole: Improper Patent Use By Local Rule, Ellisen S. Turner
Swallowing The Apple Whole: Improper Patent Use By Local Rule, Ellisen S. Turner
Michigan Law Review
During patent infringement litigation, the Federal Rules of Civil Procedure ("FRCP") and the federal district court's local rules govern the parties' pretrial discovery and motion practice. The U.S. District Court for the Northern District of California has adopted the most comprehensive local rules to date covering pretrial procedures in the patent litigation context. The Northern District of California Patent Local Rules ("Local Rules") may come to have a significant impact throughout the federal courts, as it appears that other jurisdictions and commentators are looking to the Local Rules for guidance. For instance, the American Bar Association Section of Intellectual Property …
The Pathological Politics Of Criminal Law, William J. Stuntz
The Pathological Politics Of Criminal Law, William J. Stuntz
Michigan Law Review
Substantive criminal law defines the conduct that the state punishes. Or does it? If the answer is yes, it should be possible, by reading criminal codes (perhaps with a few case annotations thrown in), to tell what conduct will land you in prison. Most discussions of criminal law, whether in law reviews, law school classrooms, or the popular press, proceed on the premise that the answer is yes. Law reform movements regularly seek to broaden or narrow the scope of some set of criminal liability rules, always on the assumption that by doing so they will broaden or narrow the …
Recent Books, Michigan Law Review
Recent Books, Michigan Law Review
Michigan Law Review
A list of books recenlty received by Michigan Law Review.
The Limits Of Localism, Richard C. Schragger
The Limits Of Localism, Richard C. Schragger
Michigan Law Review
In Chicago v. Morales, the Supreme Court struck down Chicago's Gang Congregation Ordinance, which barred "criminal street gang members from loitering with one another or with other persons in any public place." The stated purpose of the ordinance was to wrest control of public areas from gang members who, simply by their presence, intimidated the public and established control over identifiable areas of the city, namely certain inner-city streets, sidewalks, and corners. The ordinance required that police officers determine whether at least one of two or more persons present in a public place were members of a criminal street gang …
A Political History Of The Establishment Clause, John C. Jeffries Jr., James E. Ryan
A Political History Of The Establishment Clause, John C. Jeffries Jr., James E. Ryan
Michigan Law Review
Now pending before the Supreme Court is the most important church-state issue of our time: whether publicly funded vouchers may be used at private, religious schools without violating the Establishment Clause. The last time the Court considered school aid, it overruled precedent and upheld a government program providing computers and other instructional materials to parochial schools. In a plurality opinion defending that result, Justice Thomas dismissed as irrelevant the fact that some aid recipients were "pervasively sectarian." That label, said Thomas, had a "shameful pedigree." He traced it to the Blaine Amendment, proposed in 1875, which would have altered the …
Recent Books, Michigan Law Review
Recent Books, Michigan Law Review
Michigan Law Review
A list of books recenlty received by Michigan Law Review.
A Hybrid Approach To The Use Of Deliberate Ignorance In Conspiracy Cases, Jessica A. Kozlov-Davis
A Hybrid Approach To The Use Of Deliberate Ignorance In Conspiracy Cases, Jessica A. Kozlov-Davis
Michigan Law Review
When hunted, the ostrich is said to run a certain distance and then thrust its head into the sand, thinking, because it cannot see, that it cannot be seen by the hunters. Legal parlance therefore refers to the "ostrich instruction," used when a defendant acts with the awareness of a high probability of the existence of an incriminating fact, but remains deliberately ignorant as to whether the fact actually exists, hoping his ignorance will maintain his innocence. The defendant is like the ostrich - he thinks that if he does not actually see the facts, even though he knows they …
Optimal Delegation And Decoupling In The Design Of Liability Rules, Ian M. Ayres, Paul M. Goldbart
Optimal Delegation And Decoupling In The Design Of Liability Rules, Ian M. Ayres, Paul M. Goldbart
Michigan Law Review
Calabresi and Melamed began a scholarly revolution by showing that legal entitlements have two readily distinguishable forms of protection: property rules and liability rules. These two archetypal forms protect an entitlement holder's interest in markedly different ways - via deterrence or compensation. Property rules protect entitlements by trying to deter others from taking. Liability rules, on the other hand, protect entitlements not by deterring but by trying to compensate the victim of nonconsensual takings. Accordingly, the compensatory impetus behind liability rules focuses on the takee's welfare - making sure the sanction is sufficient to compensate the takee. The deterrent impetus …
Recent Books, Michigan Law Review
Recent Books, Michigan Law Review
Michigan Law Review
A list of books recenlty received by Michigan Law Review.
Dissing Congress, Ruth Colker, James J. Brudney
Dissing Congress, Ruth Colker, James J. Brudney
Michigan Law Review
The Supreme Court under Chief Justice Rehnquist's recent leadership has invalidated numerous federal laws, arguably departing from settled precedent to do so. The Rehnquist Court has held that Congress exceeded its constitutional authority in five instances during the 2000-01 Term, on four occasions during the 1999-2000 Term and in a total of twenty-nine cases since the 1994-95 Term. Commentators typically explain these decisions in federalism terms, focusing on the Court's use of its power to protect the States from an overreaching Congress. That explanation is incomplete and, in important respects, unpersuasive. The Rehnquist Court has not been as solicitous of …
When Constitutional Worlds Colide: Resurrecting The Framers' Bill Of Rights And Criminal Procedure, George C. Thomas Iii
When Constitutional Worlds Colide: Resurrecting The Framers' Bill Of Rights And Criminal Procedure, George C. Thomas Iii
Michigan Law Review
For two hundred years, the Supreme Court has been interpreting the Bill of Rights. Imagine Chief Justice John Marshall sitting in the dim, narrow Supreme Court chambers, pondering the interpretation of the Sixth Amendment right to compulsory process in United States v. Burr. Aaron Burr was charged with treason for planning to invade the Louisiana Territory and create a separate government there. To help prepare his defense, Burr wanted to see a letter written by General James Wilkinson to President Jefferson. In ruling on Burr's motion to compel disclosure, Marshall departed from the literal language of the Sixth Amendment - …
Toward A Motivating Factor Test For Individual Disparate Treatment Claims, Benjamin C. Mizer
Toward A Motivating Factor Test For Individual Disparate Treatment Claims, Benjamin C. Mizer
Michigan Law Review
Nathan Fields, an African-American employee at the New York State Office of Mental Retardation and Developmental Disabilities ("OMRDD"), was in many ways the typical Title VIP employment discrimination plaintiff, with a case that, on its face, suggested both discriminatory and benign actions by his employer. For six years, Fields worked as a maintenance assistant in the electrical shop at OMRDD's Oswald D. Heck Developmental Center ("Heck"). During that time, he twice applied for a promotion, and on each occasion, Heck selected white employees for the position. In addition, Fields claimed that he was discriminatorily singled out for disciplinary treatment, that …
How To Apply The Religious Freedom Restoration Act To Federal Law Without Violating The Constitution, Gregory P. Magarian
How To Apply The Religious Freedom Restoration Act To Federal Law Without Violating The Constitution, Gregory P. Magarian
Michigan Law Review
Learned commentators have called the Religious Freedom Restoration Act of 1993 ("RFRA" or "the Act") "perhaps the most unconstitutional statute in the history of the nation" and "the most egregious violation of the separation of powers doctrine in American constitutional history." In the 1997 case of City of Boerne v. Flores, the Supreme Court struck down the Act in its applications to state and local governments, declaring that "RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance." The Act's applications to federal law, however, survived Boerne, which means that plaintiffs with religious freedom claims against …
High Brow, Lee C. Bollinger
High Brow, Lee C. Bollinger
Michigan Law Review
Terry Sandalow has an extraordinary mind, its power suggested by his incredible brow and forehead. (I'm always reminded, in fact, of Melville's description of the massive size of the sperm whale's head as representing its huge intelligence.) By any measure, Terry is very smart, broadly educated, and deeply sensitive to the nuances of life. From my earliest days on the law faculty, I remember being continually impressed, at faculty discussions and seminars, by his illuminating questions and comments and aware of his reputation among students as one of the most intellectually challenging teachers. Colleagues routinely sought his advice and criticism …
Terry Sandalow: Mind And Man, Francis A. Allen
Terry Sandalow: Mind And Man, Francis A. Allen
Michigan Law Review
My first encounter with Terry Sandalow occurred in a classroom at the University of Chicago in the fall of 1956. I had just joined that faculty, and Terry, a third-year student, was a member of my class in constitutional law. Early in the course I called on Terry to state the case that was the subject of the morning's discussion. He replied that he had not been able to read the assignment prior to class. The response did not come as a complete surprise since I was dimly aware that he was a member of the law review staff and …
The Teachings Of Professor Sandalow, David Westin
The Teachings Of Professor Sandalow, David Westin
Michigan Law Review
Some courses you took at Michigan Law School because they were required. Some you took just because they sounded interesting. Some you thought were somehow related to what you expected to be doing after graduation. And then there was Federal Courts and the Federal System, taught by Professor Terry Sandalow. That course you took as a challenge - because it was there, and you knew that if you did not take it, you would always wonder how you would have done. I took the challenge in the Fall of 1977. I worked hard and thrived on the experience. For my …
Recent Books, Michigan Law Review
Recent Books, Michigan Law Review
Michigan Law Review
A list of books recenlty received by Michigan Law Review.
Integration Without Classification: Moving Toward Race-Neutrality In The Pursuit Of Public Elementary And Secondary School Diversity, Paul Diller
Michigan Law Review
Ever since the Supreme Court's invalidation of racially segregated public schools in Brown v. Board of Education, America has wrestled with the challenge of successfully dismantling educational apartheid. In recent years, the federal judiciary has largely retreated from enforcing desegregation in school districts that were once under court supervision for engaging in intentional racial discrimination, finding that the vestiges of past discrimination have been satisfactorily ameliorated. In some such unitary school districts, as well as in districts in which no intentional segregation was ever identified by the courts, boards of education, have voluntarily implemented student assignment plans designed to increase …
Cost-Benefit Default Principles, Cass R. Sunstein
Cost-Benefit Default Principles, Cass R. Sunstein
Michigan Law Review
Courts should be reluctant to apply the literal terms of a statute to mandate pointless expenditures of effort. . .. Unless Congress has been extraordinarily rigid, there is likely a basis for an implication of de minimis authority to provide exemption when the burdens of regulation yield a gain of trivial or no value. It seems bizarre that a statute intended to improve human health would .. . lock the agency into looking at only one half of a substance's health effects in determining the maximum level for that substance. [I]t is only where there is "clear congressional intent to …
Recent Books, Michigan Law Review
Recent Books, Michigan Law Review
Michigan Law Review
A list of books recenlty received by Michigan Law Review.
Should The Law Ignore Commercial Norms? A Comment On The Bernstein Conjuncture And Its Relevance For Contract Law Theory And Reform, Jason Scott Johnston
Should The Law Ignore Commercial Norms? A Comment On The Bernstein Conjuncture And Its Relevance For Contract Law Theory And Reform, Jason Scott Johnston
Michigan Law Review
Professor Bernstein's study of the interaction between private law and norms in the cotton industry is the latest installment in her ongoing investigation into the relationship between law and norms in trades ranging from the diamond market to grain and feed markets. Her incredibly detailed and thorough exploration of private lawmaking and commercial norms - and their interaction - stands as one of the most significant contributions to contract and commercial law scholarship made in the last half-century. The cotton industry study upon which I focus in this Comment not only reports fascinating findings about dispute resolution practices, but also …
Private Commercial Law In The Cotton Industry: Creating Cooperation Through Rules, Norms, And Institutions, Lisa Bernstein
Private Commercial Law In The Cotton Industry: Creating Cooperation Through Rules, Norms, And Institutions, Lisa Bernstein
Michigan Law Review
The cotton industry has almost entirely opted out of the public legal system, replacing it with one of the oldest and most complex systems of private commercial law. Most contracts for the purchase andsale of domestic cotton, between merchants or between merchants andmills, are neither consummated under the Uniform Commercial Code("Code") nor interpreted and enforced in court when disputes arise. Rather, most such contracts are concluded under one of several privately drafted sets of contract default rules and are subject to arbitration in one of several merchant tribunals. Similarly, most international sales of cotton are governed neither by state-supplied legal …
Budding Translation, Milner S. Ball
Budding Translation, Milner S. Ball
Michigan Law Review
Among the American classics in my library, Black Elk Speaks is one of the least willing to rest closed on the shelf. It is the story of a vision, the duty that accompanies the vision, and the life of those whom the vision would animate. It can be justly read as tragedy, indictment, and struggle with the past. But it can also be read as affirmation and as invocation of hope for the future, possibilities that present themselves on this revisit. There are risks in making Black Elk Speaks the subject of a Classics Revisited, more risks than in Kenji …
Science Gone Astray: Evolution And Rape, Elisabeth A. Lloyd
Science Gone Astray: Evolution And Rape, Elisabeth A. Lloyd
Michigan Law Review
Throughout A Natural History of Rape, coauthors Randy Thomhill and Craig Palmer resort to what is known among philosophers of science as "The Galileo Defense," which amounts to the following claim: I am telling the Truth and doing excellent science, but because of ideology and ignorance, I am being persecuted. The authors have repeated and elaborated upon this defense during the si:lable media flurry accompanying the book's publication in February 2000. Now, history has accepted this defense from Galileo. But in order for it to work for Thornhill and Palmer, of course, they must be telling the Truth and doing …
Understanding Sprawl: Lessons From Architecture For Legal Scholars, Mark S. Davies
Understanding Sprawl: Lessons From Architecture For Legal Scholars, Mark S. Davies
Michigan Law Review
What is suburban "sprawl"? Why is it undesirable? Why do many Americans nevertheless choose to live in sprawl? Do local zoning laws contribute to sprawl? Can democratic institutions discourage it? Legal scholars are beginning to study these urgent and complex questions. This Essay reviews Suburban Nation: The Rise of Sprawl and the Decline of the American Dream, by Andres Duany, Elizabeth Plater-Zyberk, and Jeff Speck, leading architects of the influential New Urbanism or traditional town planning movement. This review makes five points about the legal study of sprawl. First, Suburban Nation provides a definition of "sprawl" that the law can …
Foreword: On Academic Fads And Fashions, Cass R. Sunstein
Foreword: On Academic Fads And Fashions, Cass R. Sunstein
Michigan Law Review
Why did critical legal studies disappear? Will it reappear? Why does the Federalist Society prosper? Why, and when, do people write books on constitutional law, rather than tort law or antitrust? Why did people laugh at the notion of "animal rights," and why do they now laugh less? Why do law professors seem increasingly respectful of "textualism" and "originalism," ideas that produced ridicule and contempt just two decades ago? How do book reviewers choose what books to review? Why has law and economics had such staying power? Academics are generally committed to truth, and they are drawn to ideas that …
Morgan Kousser's Noble Dream, Heather K. Gerken
Morgan Kousser's Noble Dream, Heather K. Gerken
Michigan Law Review
J. Morgan Kousser, professor of history and social science at the California Institute of Technology, is an unusual academic. He enjoys the respect of two quite different groups - historians and civil rights litigators. As a historian, Kousser has written a number of important works on the American South in the tradition of his mentor, C. Vann Woodward, including a foundational book on southern political history, The Shaping of Southern Politics: Suffrage Restriction and the Establishment of the One-Party South, 1880-1910. Many of his writings have become seminal texts among election law scholars. Kousser has also used his historical skills …
Democratic Justice In Transition, Marion Smiley
Democratic Justice In Transition, Marion Smiley
Michigan Law Review
Ruti Teitel's Transitional Justice and Ian Shapiro's Democratic Justice come out of very different academic traditions. But they both develop a view of justice that might loosely be called pragmatic by virtue of its treatment of justice as a value that is simultaneously grounded in practice and powerful in bringing about social and political change. Moreover, they both use this shared pragmatic view of justice to provide us with two things that are of great importance to the study of transitional justice and democracy in general. The first is an explanatory framework for understanding how legal institutions and claims about …
Ever The Twain Shall Meet, Fred S. Mcchesney
Ever The Twain Shall Meet, Fred S. Mcchesney
Michigan Law Review
Instinctively, corruption is deplorable. Nobody likes private citizens paying governmental officials for special favors. Few have deplored corruption longer or in greater detail than economist Susan Rose-Ackerman. In Corruption and Government, Professor Rose-Ackerman discusses how corruption starts ("causes"), why it is bad ("consequences"), and how to stop it ("reform"), principally from an economic perspective. Professor Rose-Ackerman's interest in corruption derives partly from her outside work with international agencies, especially time spent at the World Bank - "a transformative experience" (p. xi). Her twenty-two page bibliography ranges across sources in economics and politics, plus many documents from the World Bank and …