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Articles 1 - 30 of 51
Full-Text Articles in Law
Jury Voting Paradoxes, Jason Iuliano
Jury Voting Paradoxes, Jason Iuliano
Michigan Law Review
The special verdict is plagued by two philosophical paradoxes: the discursive dilemma and the lottery paradox. Although widely discussed in the philosophical literature, these paradoxes have never been applied to jury decision making. In this Essay, I use the paradoxes to show that the special verdict’s vote-reporting procedures can lead judges to render verdicts that the jurors themselves would reject. This outcome constitutes a systemic breakdown that should not be tolerated in a legal system that prides itself on the fairness of its jury decision-making process. Ultimately, I argue that, because the general verdict with answers to written questions does …
Passive Takings: The State's Affirmative Duty To Protect Property, Christopher Serkin
Passive Takings: The State's Affirmative Duty To Protect Property, Christopher Serkin
Michigan Law Review
The purpose of the Fifth Amendment’s Takings Clause is to protect property owners from the most significant costs of legal transitions. Paradigmatically, a regulatory taking involves a government action that interferes with expectations about the content of property rights. Legal change has therefore always been central to regulatory takings claims. This Article argues that it does not need to be and that governments can violate the Takings Clause by failing to act in the face of a changing world. This argument represents much more than a minor refinement of takings law because recognizing governmental liability for failing to act means …
Broker-Dealers And Investment Advisers: A Behaviorial-Economics Analysis Of Competing Suggestions For Reform, Polina Demina
Broker-Dealers And Investment Advisers: A Behaviorial-Economics Analysis Of Competing Suggestions For Reform, Polina Demina
Michigan Law Review
For the average investor trying to save for retirement or a child’s college fund, the world of investing has become increasingly complex. These retail investors must turn more frequently to financial intermediaries, such as broker-dealers and investment advisers, to get sound investment advice. Such intermediaries perform different duties for their clients, however. The investment adviser owes his client a fiduciary duty of care and therefore must provide financial advice that is in the client’s best interests, while the broker-dealer must merely provide advice that is suitable to the client’s interests—a lower standard than the fiduciary duty of care. And yet …
A Blended Approach To Reducing The Costs Of Shareholder Litigation, Valian A. Afshar
A Blended Approach To Reducing The Costs Of Shareholder Litigation, Valian A. Afshar
Michigan Law Review
Multiforum litigation and federal securities law class actions impose heavy costs on corporations and their shareholders without producing proportionate benefits. Both are largely the result of the agency problem between shareholders and their attorneys, driven more by the attorneys’ interests in generating fees than by the interests of their clients. In response to each of these problems, commentators have recommended a number of solutions. Chief among them are forum selection and mandatory arbitration provisions in a corporation’s charter or bylaws. This Note recommends that corporations unilaterally adopt both forum selection and mandatory arbitration bylaws to address shareholder lawsuits under state …
The Scope Of Precedent, Randy J. Kozel
The Scope Of Precedent, Randy J. Kozel
Michigan Law Review
The scope of Supreme Court precedent is capacious. Justices of the Court commonly defer to sweeping rationales and elaborate doctrinal frameworks articulated by their predecessors. This practice infuses judicial precedent with the prescriptive power of enacted constitutional and statutory text. The lower federal courts follow suit, regularly abiding by the Supreme Court’s broad pronouncements. These phenomena cannot be explained by—and, indeed, oftentimes subvert—the classic distinction between binding holdings and dispensable dicta. This Article connects the scope of precedent with recurring and foundational debates about the proper ends of judicial interpretation. A precedent’s forward- looking effect should not depend on the …
Reinventing Copyright And Patent, Abraham Bell, Gideon Parchomovsky
Reinventing Copyright And Patent, Abraham Bell, Gideon Parchomovsky
Michigan Law Review
Intellectual property systems all over the world are modeled on a one-size-fitsall principle. However important or unimportant, inventions and original works receive the same scope of protection, for the same period of time, backed by the same variety of legal remedies. Essentially, all intellectual property is equal under the law. This equality comes at a heavy price, however. The equality principle gives all creators access to the same remedies, even when those remedies create perverse litigation incentives. Moreover, society overpays for innovation through more monopoly losses than are strictly necessary to incentivize production. In this Article, we propose a solution …
Speedy Trial As A Viable Challenge To Chronic Underfunding In Indigent-Defense Systems, Emily Rose
Speedy Trial As A Viable Challenge To Chronic Underfunding In Indigent-Defense Systems, Emily Rose
Michigan Law Review
Across the country, underresourced indigent-defense systems create delays in taking cases to trial at both the state and federal levels. Attempts to increase funding for indigent defense by bringing ineffective assistance of counsel claims have been thwarted by high procedural and substantive hurdles, and consequently these attempts have failed to bring significant change. This Note argues that, because ineffective assistance of counsel litigation is most likely a dead end for system-wide reform, indigent defenders should challenge the constitutionality of underfunding based on the Sixth Amendment guarantee of speedy trial. Existing speedy trial jurisprudence suggests that the overworking and furloughing of …
Rethinking The Timing Of Capital Clemency , Adam M. Gershowitz
Rethinking The Timing Of Capital Clemency , Adam M. Gershowitz
Michigan Law Review
This Article reviews every capital clemency over the last four decades. It demonstrates that in the majority of cases, the reason for commutation was known at the conclusion of direct appeals—years or even decades before the habeas process ended. Yet when governors or pardon boards actually commuted the death sentences, they typically waited until the eve of execution, with only days or hours to spare. Leaving clemency until the last minute sometimes leads to many years of unnecessary state and federal habeas corpus litigation, and this Article documents nearly 300 years of wasted habeas corpus review. Additionally, last-minute commutations harm …
The Political Safeguards Of Horizontal Federalism, Heather K. Gerken, Ari Holtzblatt
The Political Safeguards Of Horizontal Federalism, Heather K. Gerken, Ari Holtzblatt
Michigan Law Review
For decades, we have debated whether “political safeguards” preserve healthy relations between the states and the federal government and thus reduce or eliminate the need for judges to referee state–federal tussles. No one has made such an argument about relations among the states, however, and the few scholars to have considered the question insist that such safeguards don’t exist. This Article takes the opposite view and lays down the intellectual foundations for the political safeguards of horizontal federalism. If you want to know what unites the burgeoning work on horizontal federalism and illuminates the hidden logic of its doctrine, you …
Protecting Whistleblower Protections In The Dodd-Frank Act, Samuel C. Leifer
Protecting Whistleblower Protections In The Dodd-Frank Act, Samuel C. Leifer
Michigan Law Review
In 2008, the United States fell into its worst economic recession in over seventy years. In response, Congress enacted the near-comprehensive Dodd–Frank Wall Street Reform and Consumer Protection Act. Section 922 of Dodd–Frank, in particular, includes specific provisions designed to incentivize and protect corporate whistleblowers. These provisions demonstrated Congress’s belief that a comprehensive and robust whistleblower protection scheme was essential to preventing many of the abuses that caused the financial crisis. Unfortunately, this section’s inconsistent language has produced conflicting decisions within the federal judiciary. In accordance with the Securities and Exchange Commission (“SEC”)’s own reading of Section 922, several district …
A Comprehensive Administrative Solution To The Armed Career Criminal Act Debacle , Avi M. Kupfer
A Comprehensive Administrative Solution To The Armed Career Criminal Act Debacle , Avi M. Kupfer
Michigan Law Review
For thirty years, the Armed Career Criminal Act (“ACCA”) has imposed a fifteen-year mandatory minimum sentence on those people convicted as felons in possession of a firearm or ammunition who have three prior convictions for a violent felony or serious drug offense. Debate about the law has existed mainly within a larger discussion on the normative value of mandatory minimums. Assuming that the ACCA endures, however, administering it will continue to be a challenge. The approach that courts use to determine whether past convictions qualify as ACCA predicate offenses creates ex ante uncertainty and the potential for intercourt disparities. Furthermore, …
The Audience In Intellectual Property Infringement, Jeanne C. Fromer, Mark A. Lemley
The Audience In Intellectual Property Infringement, Jeanne C. Fromer, Mark A. Lemley
Michigan Law Review
Every intellectual property (“IP”) right has its own definition of infringement. In this Article, we suggest that this diversity of legal rules is largely traceable to differences in the audience in IP cases. Patent, trademark, copyright, and design patent each focus on a different person as the fulcrum for evaluating IP infringement. That patent law, for example, focuses on an expert audience while trademark looks to a consumer audience explains many of the differences in how patent and trademark cases are decided. Expert audiences are likely to evaluate infringement based on the technical similarity between the plaintiff’s and defendant’s works. …
Presidential Inaction And The Separation Of Powers, Jeffrey A. Love, Arpit K. Garg
Presidential Inaction And The Separation Of Powers, Jeffrey A. Love, Arpit K. Garg
Michigan Law Review
Imagine two presidents. The first campaigned on an issue that requires him to expand the role of the federal government-—maybe it was civil rights legislation or stricter sentencing for federal criminals. In contrast, the second president pushes policies—-financial deregulation, perhaps, or drug decriminalization—-that mean less government involvement. Each is elected in a decisive fashion, and each claims a mandate to advance his agenda. The remaining question is what steps each must take to achieve his goals. The answer is clear, and it is surprising. To implement his preferred policies, the first president faces the full gauntlet of checks and balances-—from …
A Disclosure-Focused Approach To Compelled Commercial Speech, Andrew C. Budzinski
A Disclosure-Focused Approach To Compelled Commercial Speech, Andrew C. Budzinski
Michigan Law Review
In 2010, the Food and Drug Administration passed a rule revising compelled disclaimers on tobacco products pursuant to the Family Smoking Prevention and Tobacco Control Act. The rule required that tobacco warnings include something new: all tobacco products now had to bear one of nine graphic images to accompany the text. Tobacco companies filed suit contesting the constitutionality of the rule, arguing that the government violated their right to free commercial speech by compelling disclosure of the graphic content. Yet First Amendment jurisprudence lacks a doctrinally consistent standard for reviewing such compelled disclosures. Courts’ analyses typically depend on whether the …
A Pragmatic Republic, If You Can Keep It, William R. Sherman
A Pragmatic Republic, If You Can Keep It, William R. Sherman
Michigan Law Review
These things we know to be true: Our modern administrative state is a leviathan unimaginable by the Founders. It stands on thin constitutional ice, on cracks between the executive, legislative, and judicial branches. It burdens and entangles state and local governments in schemes that threaten federalism. And it presents an irresolvable dilemma regarding democratic accountability and political independence. We know these things to be true because these precepts animate some of the most significant cases and public law scholarship of our time. Underlying our examination of administrative agencies is an assumption that the problems they present would have been bizarre …
Institutional Autonomy And Constitutional Structure, Randy J. Kozel
Institutional Autonomy And Constitutional Structure, Randy J. Kozel
Michigan Law Review
This Review makes two claims. The first is that Paul Horwitz’s excellent book, First Amendment Institutions, depicts the institutionalist movement in robust and provocative form. The second is that it would be a mistake to assume from its immersion in First Amendment jurisprudence (not to mention its title) that the book’s implications are limited to the First Amendment. Professor Horwitz presents First Amendment institutionalism as a wide-ranging theory of constitutional structure whose focus is as much on constraining the authority of political government as it is on facilitating expression. These are the terms on which the book’s argument — and, …
The Banality Of Wrongful Executions, Brandon L. Garrett
The Banality Of Wrongful Executions, Brandon L. Garrett
Michigan Law Review
What is so haunting about the known wrongful convictions is that those cases are the tip of the iceberg. Untold numbers of unnoticed errors may send the innocent to prison — and to the death chamber. That is why I recommend to readers a trilogy of fascinating new books that peer deeper into this larger but murkier problem. Outside the rarified group of highly publicized exonerations, which have themselves done much to attract attention to the causes of wrongful convictions, errors may be so mundane that no one notices them unless an outsider plucks a case from darkness and holds …
Rationality's Reach, Adam B. Badawi
Rationality's Reach, Adam B. Badawi
Michigan Law Review
Economic analysis and the rational actor model have dominated contracts scholarship for at least a generation. In the past fifteen years or so, however, a group of behaviorists has challenged the ability of the rational choice model to account for consumer behavior. These behaviorists are not trying to dismantle the entire enterprise. They generally accept the fundamentals of economic analysis but argue that the rational actor model can be improved by incorporating evidence of decisionmaking flaws that people exhibit. Oren Bar-Gill has been one of the foremost and influential proponents of a behaviorist take on contracts, and his recent book, …
Is Religious Freedom Irrational?, Michael Stokes Paulsen
Is Religious Freedom Irrational?, Michael Stokes Paulsen
Michigan Law Review
Brian Leiter is almost exactly half right. There is no convincing secular-liberal argument for religious liberty, in the sense of unique accommodation of religious beliefs and practices specifically because they are religious. Indeed, from a thoroughgoing secularist perspective — from a stance of committed disbelief in the possible reality of God or religious truth, and perhaps also from the perspective of unswerving agnosticism — “toleration” of religion is almost intolerably foolish. Affirmatively protecting the free exercise of religion, in the strong sense of freedom of persons and groups to act on religious convictions in ways opposed to secular legal norms, …
Missing Mcveigh, Michael E. Tigar
Missing Mcveigh, Michael E. Tigar
Michigan Law Review
The bombing that killed at least 169 people became an event by which time was thereafter measured — at least in Oklahoma. Ninety minutes after the bombing, a state trooper arrested Timothy McVeigh on a traffic charge; within hours, he was linked to the bombing, and the legal process began. Terry Nichols, who had met McVeigh when they were in the army together, was arrested in Herington, Kansas, where he lived with his wife and daughter. The Tenth Circuit chief judge designated Richard Matsch, chief judge for the District of Colorado, to preside over the case. Judge Matsch came to …
Letting Go Of Old Ideas, William D. Henderson
Letting Go Of Old Ideas, William D. Henderson
Michigan Law Review
Two recently published books make the claim that the legal profession has changed (Steven Harper’s The Lawyer Bubble: A Profession in Crisis) or is changing (Richard Susskind’s Tomorrow’s Lawyers: An Introduction to Your Future). The books are interesting because they discuss the types of changes that are broad, sweeping, and dramatic. In suitable lawyer fashion, both books are unfailingly analytical. They both also argue that the old order is collapsing. The Lawyer Bubble is backward looking and laments the legacy we have squandered, while Tomorrow’s Lawyers is future oriented and offers fairly specific prescriptive advice, particularly to those lawyers entering …
Racial Templates, Richard Delgado, Juan F. Perea
Racial Templates, Richard Delgado, Juan F. Perea
Michigan Law Review
This riveting tale of greed, international skullduggery, and behind-the-scenes heroism recounts the events that led up to America’s “wicked war” with Mexico. It depicts how expansionist ambitions in high circles fueled jingoistic propaganda (pp. 25, 34–35, 58), fed a public eager for national muscle flexing (pp. 57, 103, 108), and set the stage for a military skirmish in a disputed region between two rivers (pp. 75–77, 95, 100, 138) that provided the pretext for a savage and short-lived military campaign against the weak new nation of Mexico in which the U.S. Army, under General Scott, marched all the way to …
Some Kind Of Judge: Henry Friendly And The Law Of Federal Courts, Aaron P. Brecher
Some Kind Of Judge: Henry Friendly And The Law Of Federal Courts, Aaron P. Brecher
Michigan Law Review
Uberfans of the federal judiciary owe a lot to David Dorsen. His illuminating biography of Judge Henry Friendly is a fitting tribute to the contributions of a jurist that many consider to be among the finest judges never to sit on the U.S. Supreme Court. Judicial biography is a difficult genre to do well, and most authors choose to focus on Supreme Court justices. But Henry Friendly, Greatest Judge of His Era is an excellent source of information on Friendly’s life and, far more important, his views on the law and his relationships with some of the most fascinating figures …
Taking States (And Metaphysics) Seriously, Sanford Levinson
Taking States (And Metaphysics) Seriously, Sanford Levinson
Michigan Law Review
Sotirios A. Barber has written many incisive and important books, in addition to coediting an especially interesting casebook on constitutional law and interpretation. He is also a political theorist. An important part of his overall approach to constitutional theory is his philosophical commitment to “moral realism.” He believes in the metaphysical reality of moral and political truths, the most important of which, for any constitutional theorist, involve the meanings of justice and the common good. He not only believes in the ontological reality of such truths — that is, that these truths are more than mere human conventions or social …
What Books On Law Should Be, Richard A. Posner
What Books On Law Should Be, Richard A. Posner
Michigan Law Review
I have thought it might be useful to our profession, and appropriate to a foreword to a collection of reviews of newly published books on law, to set forth some ideas on how books can best serve members of the different branches of the legal profession — specifically judges, practicing lawyers, law students, and academic lawyers — plus persons outside the legal profession who are interested in law. I am not interested in which already published books should be retained and which discarded, but in what type of book about law should be written from this day forward. I will …
Frost For Lawyers: 'The Best Thing That We're Put Here For's To See', Sherman J. Clark
Frost For Lawyers: 'The Best Thing That We're Put Here For's To See', Sherman J. Clark
Michigan Law Review
Why should lawyers read Frost? First of all, of course, it can bring great pleasure. As Robert Pinsky put it, poetry brings pleasures “both intellectual and bodily” and can provide “a satisfaction central to life.” And this is particularly true of Frost, whose poems are both accessible and enjoyable. This does not mean that there are no challenges in his poems. Frost does make us work. Indeed, as I hope to explore in this Essay, the work he asks us to do is essential to what we can learn from his poems. But this work is itself engaging and invigorating …
Regulation Through Boilerplate: An Apologia, Omri Ben-Shahar
Regulation Through Boilerplate: An Apologia, Omri Ben-Shahar
Michigan Law Review
You have to salute Peggy Radin. She has said what others who agree with her have for so long been hesitant to utter out loud: the fine print is not a contract. There is no agreement to it, no real consent, not even “blanket assent.” It is nothing but paperwork and should have the legal fortune of junk mail. Those lengthy, unreadable pages with terms and conditions that come prepacked with consumer products or that demand to be clicked (“We Accept”) on computer screens — does anyone really think that they contain arrangements that people knowingly agreed to? How is …
Diverging Destinies Redux, Amy L. Wax
Diverging Destinies Redux, Amy L. Wax
Michigan Law Review
My recent “where to live” conversation with a newly hired colleague yielded an unsurprising list of “possibles”: selected blocks of Mount Airy and Germantown, plus the Main Line towns of Bryn Mawr, Ardmore, Haverford, Villanova, Gladwyne, and so forth. Despite my colleague’s professed open mind about potential neighborhoods, Jenkintown — my own somewhat obscure and distinctly unfashionable (but much more affordable) suburb — drew a blank stare, as did a dozen other solidly middleclass areas I mentioned. By my calculation, there are over 400 zip codes within a thirty-mile radius of Rittenhouse Square, which is in the center of downtown …
Law Matters, Even To The Executive, Julian Davis Mortenson
Law Matters, Even To The Executive, Julian Davis Mortenson
Michigan Law Review
In both constitutional and international law, many legal rules cannot be implemented without what most people would describe as the voluntary compliance of their target. Is that really “law”? Or is rule compliance in such circumstances just an expression of “interests”? Forget jurisprudence for the moment. As a practical matter, what does it mean to work as a lawyer in a field where the rules are not coercively enforced against private parties by an independent judiciary whose orders are implemented by a cooperative executive? This question has particularly high stakes for national security policy, where we find judicial deference at …
Paternalistic Interventions In Civil Rights And Poverty Law: A Case Study Of Environmental Justice, Anthony V. Alfieri
Paternalistic Interventions In Civil Rights And Poverty Law: A Case Study Of Environmental Justice, Anthony V. Alfieri
Michigan Law Review
Low-income communities of color in Miami and in cities across the nation both share aspirations of equal justice and democratic participation and suffer the burdens of legal underrepresentation and political disenfranchisement. Such burdens become crippling when, as in Miami, local legal aid offices, public interest organizations, and bar associations lack the resources to provide meaningful private access to justice or to muster significant public engagement in the political process. These burdens become especially crippling when, again as in Miami, local and state governments adopt policies that engender inner-city neglect, economic displacement, and racial exclusion. In these circumstances, volunteer lawyers from …