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Articles 1 - 30 of 114
Full-Text Articles in Law
The Rico Nexus Requirement: A "Flexible" Linkage, Michigan Law Review
The Rico Nexus Requirement: A "Flexible" Linkage, Michigan Law Review
Michigan Law Review
This Note argues that the RICO "nexus" requirement can be interpreted to limit effectively this overbroad use of RICO without emasculating the statute. The "nexus requirement" is generally described as defining the word "through" in section 1962(c), the provision of RICO that makes it illegal to "conduct or participate, directly or indirectly, in the conduct of [an] enterprise's affairs through a pattern of racketeering activity." This language establishes the necessity of proving a relationship between the enterprise and the racketeering. Once evidence of the alleged enterprise and the predicate racketeering acts has been submitted, the final element of proof must …
Claims Of Dual Nationals In The Modern Era: The Iran-United States Claims Tribunal, Michigan Law Review
Claims Of Dual Nationals In The Modern Era: The Iran-United States Claims Tribunal, Michigan Law Review
Michigan Law Review
This Note will discuss the considerations, implicit in the Tribunal's opinion, that support substituting the doctrine of dominant and effective nationality for the rule of state nonresponsibility in cases involving claims of dual nationals. Part I of this Note briefly examines the traditional framework of diplomatic protection and demonstrates that the policies supporting the doctrine of state nonresponsibility are anachronistic and that strict adherence to them leads to inequitable results. Part II argues that the doctrine of dominant and effective nationality is the preferred standard for determining the status of dual national claims. At the core of this doctrine is …
Administrative Regulation Of The High School Press, Michigan Law Review
Administrative Regulation Of The High School Press, Michigan Law Review
Michigan Law Review
This Note examines the constitutional limits on administrative regulation of publications by and for public high school students. Part I discusses the widely divergent standards adopted by different circuits. Part II describes the hard line the Supreme Court has taken against restraints on free expression in the adult context and the different circumstances that justify limiting freedom of expression in high schools. Part III discusses the timing of administrative regulation of student speech. This Part argues that prior restraint is constitutionally acceptable and, in fact, preferable to subsequent punishment so long as its use is governed by proper criteria. Part …
Second Generation State Takeover Legislation: Maryland Takes A New Tack, Michigan Law Review
Second Generation State Takeover Legislation: Maryland Takes A New Tack, Michigan Law Review
Michigan Law Review
This Note examines the approach recently adopted by the Maryland legislature in special session one year after the Supreme Court's decision in MITE. Maryland has departed radically from the regulatory approach of first generation statutes; however, this Note argues that the statute has failed to escape the constitutional infirmities of its predecessors. Part I outlines the various mechanisms that regulate acquisition of corporate control: the federal tender offer regulatory mechanism known as the Williams Act, state takeover legislation such as the Illinois statute invalidated in MITE, and the new Maryland statute. Part II analyzes the debate concerning the …
The Efficiency Of Specific Performance: Toward A Unified Theory Of Contract Remedies, Thomas S. Ulen
The Efficiency Of Specific Performance: Toward A Unified Theory Of Contract Remedies, Thomas S. Ulen
Michigan Law Review
The purpose of this essay is to begin the development of an integrated theory of contract remedies by delineating the circumstances under which courts should simply enforce a stipulated remedy clause or grant relief to the innocent party in the form of damages or specific performance. The conclusion, in brief, is that in the absence of stipulated remedies in the contract that survive scrutiny on the usual formation defenses, specific performance is more likely than any form of money damages to achieve efficiency in the exchange and breach of reciprocal promises. If specific performance is the routine remedy for breach, …
Backing Off Bivens And The Ramifications Of This Retreat For The Vindication Of First Amendment Rights, Joan Steinman
Backing Off Bivens And The Ramifications Of This Retreat For The Vindication Of First Amendment Rights, Joan Steinman
Michigan Law Review
In Part I of this Article, Chappell and Bush are analyzed against the backdrop of the preceding Bivens cases. The analysis explains how these cases presented situations that were similar to one another but unlike any the Supreme Court previously had faced in Bivens cases. It demonstrates how the Court departed from the line of analysis that its previous Bivens cases had established, in a way that makes it more difficult for at least some plaintiffs seeking vindication of their constitutional rights to succeed in having a money damage remedy implied directly under the Constitution. The Article then argues that …
The Self-Critical Analysis Privilege And Discovery Of Affirmative Action Plans In Title Vii Suits, Michigan Law Review
The Self-Critical Analysis Privilege And Discovery Of Affirmative Action Plans In Title Vii Suits, Michigan Law Review
Michigan Law Review
This Note argues that plaintiffs should have access to affirmative action plans in discovery. Part I describes the "self-critical analysis" or "self-evaluative" privilege that employers have advanced to block discovery of such plans. Part II examines the conflicting interests of society, employers and employees in allowing or denying discovery. Part III evaluates the application of a self-critical analysis privilege in light of these conflicting interests and concludes that the privilege should not be applied to affirmative action plans.
Exemption Of Erisa Benefits Under Section 522(B)(2)(A) Of The Bankruptcy Code, Michigan Law Review
Exemption Of Erisa Benefits Under Section 522(B)(2)(A) Of The Bankruptcy Code, Michigan Law Review
Michigan Law Review
This Note argues that the two federal statutes are exempting statutes under section 522(b)(2)(A), and thus BRISA funds should be exempt in a bankruptcy action when the debtor uses the state exemption scheme. Part I argues that standard principles of statutory interpretation, as applied to the language of the bankruptcy statute, refute the possibility that Congress intended the list of statutes in the legislative history to be exclusive. Having established that statutes other than those listed may be included under section 522(b )(2)(A), Part II first refutes the argument that the absence of BRISA from the list of exempting statutes …
Yankees Out Of North America: Foreign Employer Job Discrimination Against American Citizens, Michigan Law Review
Yankees Out Of North America: Foreign Employer Job Discrimination Against American Citizens, Michigan Law Review
Michigan Law Review
This Note explores Title VII's relationship to the hiring practices of foreign employers. It focuses on Japanese employers, who might face the toughest Title VII challenge to a business and cultural familiarity or citizenship requirement. Part I sets out arguments for and against finding intentional discrimination - disparate treatment - in either of these hiring requirements. It suggests that a court should refuse to find national origin discrimination when the employer imposes a business and cultural familiarity requirement. However, when an applicant is denied employment solely on the basis of citizenship, a strong argument may be made that the …
Consequences Of Supreme Court Decisions Upholding Individual Constitutional Rights, Jesse H. Choper
Consequences Of Supreme Court Decisions Upholding Individual Constitutional Rights, Jesse H. Choper
Michigan Law Review
The thrust of this Article is to attempt to ascertain just what differences the Court's judgments upholding individual constitutional rights have made for those who fall within the ambit of their protection. It seeks to address such questions as: What were the conditions that existed before the Court's ruling? How many people were subject to the regime that was invalidated by the Justices? Was the Court's mandate successfully implemented? What were the consequences for those affected? At a subjective level, were the repercussions perceived as salutary by those (or at least most of those) who were the beneficiaries of the …
Freedom Of Association After Roberts V. United States Jaycees, Douglas O. Linder
Freedom Of Association After Roberts V. United States Jaycees, Douglas O. Linder
Michigan Law Review
The decision of the U.S. Supreme Court in Roberts v. United States Jaycees, upholding a Minnesota ruling which requires the Minnesota Jaycees to admit women as full members, ended one controversy but marked only the beginning of a far larger one. It was predicted by many that U.S. Jaycees would answer the question of whether private associations with restrictive membership policies were vulnerable to state anti-discrimination laws or were constitutionally protected. It did not. Instead, while rejecting the Jaycees' constitutional claims, the Court established a comprehensive framework for analyzing future claims of associational freedom that contains a number of …
Redefining The "Cost Of Suit" Under Section Four Of The Clayton Act, Michigan Law Review
Redefining The "Cost Of Suit" Under Section Four Of The Clayton Act, Michigan Law Review
Michigan Law Review
This Note explores the possible interpretations of the "cost of suit" provision and the policies which it implicates. It concludes that the Copper Liquor interpretation best advances the goals of the antitrust laws set forth by Congress and the courts. Part I examines the development of the present controversy among the circuits. Part II analyzes and refutes the arguments which have been set forth in support of the traditional rule. Part III explores the policy considerations which underlie private treble damage actions and concludes that the Copper Liquor interpretation of the "cost of suit" provision serves them better than does …
Where The Money Is: Remedies To Finance Compliance With Strict Structural Injunctions, James M. Hirschhorn
Where The Money Is: Remedies To Finance Compliance With Strict Structural Injunctions, James M. Hirschhorn
Michigan Law Review
This Article examines the formal powers that are available to the federal courts to meet this situation. Part I places the problem in perspective, describing the party structure of the institutional reform decree, the :financial burdens it places on the government defendants, and the relationship of these defendants to the fiscal authorities. Part II surveys the coercive powers historically available to the federal courts sitting in equity. Part III discusses the use of these devices against government defendants who claim financial impossibility. It emphasizes the limited recognition of impossibility, the power to compel the defendants to use available resources efficiently …
Denial Of Unemployment Benefits To Otherwise Eligible Women On The Basis Of Pregnancy: Section 3304(A)(12) Of Federal Unemployment Tax Act, Michigan Law Review
Denial Of Unemployment Benefits To Otherwise Eligible Women On The Basis Of Pregnancy: Section 3304(A)(12) Of Federal Unemployment Tax Act, Michigan Law Review
Michigan Law Review
This Note examines the conflicting interpretations of section 3304(a)(12) of the Federal Act. The Porcher decision serves as a point of reference throughout this Note, since opposing constructions of the section were presented in the case. Part I describes the basic framework of FUTA and presents the disparate interpretations of section 3304(a)(12) that have been advanced.
Part II analyzes section 3304(a)(12) with reference to the statutory language and legislative history. As a preliminary matter, this part considers the degree of deference that should be afforded the Secretary of Labor's certification of state programs that treat pregnancy like all other medical …
The Establishment Clause And Religion In Child Custody Disputes: Factoring Religion Into The Best Interest Equation, Michigan Law Review
The Establishment Clause And Religion In Child Custody Disputes: Factoring Religion Into The Best Interest Equation, Michigan Law Review
Michigan Law Review
This Note examines when judges deciding custody disputes may consider potential custodians' religious practices without violating the establishment clause of the first amendment to the Constitution. Although courts agree that they may not prefer one parent to another for religious reasons when both parents are religious and neither parent's religious practices threaten the child's health or safety, some courts believe that they may constitutionally prefer a religious parent to a nonreligious parent. Part I argues that courts violate the establishment clause by preferring religion to nonreligion when there is no showing that the child has personal religious convictions. Part II …
The Unnecessary Doctrine Of Necessaries, Michigan Law Review
The Unnecessary Doctrine Of Necessaries, Michigan Law Review
Michigan Law Review
This Note argues that neither the traditional nor the modem necessaries doctrines are justifiable in contemporary society. Part I investigates the practical effects of both the traditional and contemporary necessaries doctrines and demonstrates that neither is an effective mechanism for providing support to a needy spouse. While a more successful support remedy might be devised to replace modem and traditional versions of the necessaries rule, Part II shows that yet another reformulation would not be worthwhile because the theoretical underpinnings of the doctrine are faulty. There is no persuasive evidence to establish the existence of the narrow support problem the …
The Treatment Of Mandatory Tax Withholdings In Calculating Afdc Benefits: Fairness As A Relevant Inference In Ascertaining Congressional Intent, Michigan Law Review
The Treatment Of Mandatory Tax Withholdings In Calculating Afdc Benefits: Fairness As A Relevant Inference In Ascertaining Congressional Intent, Michigan Law Review
Michigan Law Review
This Note contends that the more appropriate construction of the statute is to view mandatory tax withholdings as nonincome and nonwork expense items. Part I traces the pre-OBRA legislative and administrative history and examines the judicial interpretations of 42 U.S.C. section 602(a)(7) "income" and section 602(a)(8) "earned income." It concludes that under the "availability" principle, tax withholdings have always been regarded as nonincome items distinct from work expenses. It contends that, notwithstanding contradictory language in the regulations implementing section 602(a)(8), the status of tax withholdings as nonincome items under section 602(a)(7) is controlling. Part II considers the legislative history and …
Eric Stein -- A Tribute, Joseph H.H. Weiler
Eric Stein -- A Tribute, Joseph H.H. Weiler
Michigan Law Review
A tribute to Eric Stein
The European Community And The Requirement Of A Republican Form Of Government, Jochen Abr. Frowein
The European Community And The Requirement Of A Republican Form Of Government, Jochen Abr. Frowein
Michigan Law Review
The European Community - that is, the factual entity composed of three legally separate communities which has been and still is one of the basic concerns of Eric Stein - cannot be understood without taking into account European history after 1933. As an irony of history, the stage for a new beginning was set by the man who destroyed the old Europe and who was the reason that so many academics left the "old country" for the new world. This new start was not only influenced by the determination of those Europeans who had lived through the darkness to overcome …
Civil Enforcement Of Eec Antitrust Law, Francis G. Jacobs
Civil Enforcement Of Eec Antitrust Law, Francis G. Jacobs
Michigan Law Review
This paper examines whether and to what extent private civil remedies are, as a matter of law, and ought to be, as a matter of policy, available in the courts of the EEC Member States for breach of the antitrust provisions of the Treaty establishing the European Economic Community (the Treaty of Rome). These questions are addressed in Part I. Part II sets the issues in the broader context of the enforcement of the Treaty obligations of Member States. In this way, it is hoped to elucidate the relationship between national law and Community law, and also indirectly to illuminate …
The Court Of Justice Of The European Communities And Governance In An Economic Crisis, J. Mertens De Wilmars, J. Steenbergen
The Court Of Justice Of The European Communities And Governance In An Economic Crisis, J. Mertens De Wilmars, J. Steenbergen
Michigan Law Review
An economic crisis with the dimensions of the one raging in the world today confronts the judiciary - as well as business undertakings, parliaments and governments, workers, their trade unions and other organizations - with new responsibilities. New areas of law suddenly come to the forefront and even those matters which would appear to be the most firmly settled call for a critical reexamination. Such rethinking may maintain what might otherwise be swept away, or improve what deserves to be changed by way of judicial decisions, or demonstrate that legislative action is both necessary and urgent.
Legal Models For The International Regulation Of Exchange Rates, Joseph Gold
Legal Models For The International Regulation Of Exchange Rates, Joseph Gold
Michigan Law Review
No legal scholar has contributed more to the study of the harmonization of national interests by international agreement than Professor Eric Stein. This essay in his honor examines some of the efforts that have been made since the Bretton Woods Conference of July 1944 to bring order into the important international relationships that are called exchange rates. The subject has a further pertinence because of Eric Stein's work on the European Community. The law of the Community on exchange rates has been affected by the fortunes of the law of the International Monetary Fund (IMF). The Treaty of Rome relied …
The Crisis In Arms Control, Harold K. Jacobson
The Crisis In Arms Control, Harold K. Jacobson
Michigan Law Review
There is general agreement among observers of contemporary international affairs, and national and international officials from all sides, that there is a serious crisis in arms control. As of January 1984, the Soviet Union had broken off two major arms control negotiations: the Intermediate- Range Nuclear Force Talks (INF) and the Strategic Arms Reduction Talks (START). Negotiations in the United Nations Conference on Disarmament (CD) on a variety of arms control issues were stalemated. The United States was engaged in a large-scale military build up, and there was no sign that the Soviet Union would abate the extensive military programs …
The Right Of States To Use Armed Force, Oscar Schachter
The Right Of States To Use Armed Force, Oscar Schachter
Michigan Law Review
When the United Nations (UN) Charter was adopted, it was generally considered to have outlawed war. States accepted the obligation to settle all disputes by peaceful means and to refrain from the use or threat of use of force in their international relations. Only two exceptions were expressly allowed: force used in self-defense when an armed attack occurs, and armed action authorized by the UN Security Council as an enforcement measure. These provisions were seen by most observers as the heart of the Charter. and the most important principles of contemporary international law. They have been reaffirmed over and over …
Federalism And Company Law, Richard M. Buxbaum
Federalism And Company Law, Richard M. Buxbaum
Michigan Law Review
It would be a simplifying and historically dubious reduction to equate state interest in corporation law with interventionist or regulatory policies and federal interest with liberal or facilitative ones. So long as a federal legal system presupposes the continuing involvement of two governments with the same subject, however, it is only the subordinate polity's interest in intervention or regulation that makes for interesting reading. State facilitative policies in an era of national facilitative policies raise no questions, and a state's continuing adherence to laissez faire policies when the national government turns interventionist typically creates no conflict. It is only the …
Socialist Federation--A Legal Means To The Solution Of The Nationality Problem: A Comparative Study, Viktor Knapp
Socialist Federation--A Legal Means To The Solution Of The Nationality Problem: A Comparative Study, Viktor Knapp
Michigan Law Review
The history of federations is both long and short. It is long in that the federation originated with the Swiss Confederation, which dates back to the 1291 defense confederacy of the cantons of Uri, Schwyz and Unterwalden; it is short because the second federation in world history, one that has become a model for many others, did not come into being until almost five centuries later in America.
Trade Friction With Japan And The American Policy Response, Thomas J. Schoenbaum
Trade Friction With Japan And The American Policy Response, Thomas J. Schoenbaum
Michigan Law Review
In Toyko recently I called upon an official of the Ministry of International Trade and Industry (MITI) to discuss trade frictions between the United States and Japan. On the way to my appointment I passed by Hibiya Park in the center of the city. About 10,000 people were gathered in a peaceful demonstration against any lifting of Japan's quotas on imports of agricultural products. Inside the MIT! building I asked the official whether the quotas on beef and oranges would be abolished soon. He told me they would eventually be liberalized or abolished to please the United States, but that …
Direct And Indirect Judicial Control Of Community Acts In Practice: The Relation Between Articles 173 And 177 Of The Eec Treaty, Gerhard Bebr
Michigan Law Review
The European Economic Community (EEC) Treaty contains two different judicial controls over the exercise of the powers granted to the Community by the Treaty: (1) a direct control through an action in the European Court of Justice under article 173 to annul a Community act; and (2) an indirect control through reference by a national court to the Court of Justice under article 177 to review the validity of a Community act. Each of . these controls is designed to ensure the legal exercise of power by Community institutions. In form, however, they are quite different procedures.
The present study …
How Flexible Is Community Law? An Unusual Approach To The Concept Of "Two Speeds", Claus-Dieter Ehlermann
How Flexible Is Community Law? An Unusual Approach To The Concept Of "Two Speeds", Claus-Dieter Ehlermann
Michigan Law Review
The concept of "two speeds" de lege ferenda and the connected question of possible flexibility in Community law de lege lata raise a number of highly complex institutional questions that go to the very roots of the Community system. We offer the following analysis of such questions to Eric Stein, whose writing and teaching have contributed so greatly to the understanding of the Community's foundations.
The Case For Federalizing Rules Of Civil Jurisdiction In The European Community, Peter Hay
The Case For Federalizing Rules Of Civil Jurisdiction In The European Community, Peter Hay
Michigan Law Review
The European Community is an "incipient federal structure," even if its scope of operation is limited in subject matter and its creation derives from "a network of treaties rather than [from] a formal constitution." A federal structure at once protects, even nurtures, pluralism and coordinates the constituent units in the interest of a union. Federal legislation promotes the interests of the larger unit; a limitation of powers in the constitutive document preserves the integrity of the members. In the American federation, the United States Supreme Court defines the balance between the reach of state and federal law. The balance, moreover, …