Law Commons^™

Kevin E. Kennedy, Elizabeth S. Ferguson

Michigan Law Review

A tribute to Kevin E. Kennedy

Copyright, Computer Software, And Work Made For Hire, Matthew R. Harris

Michigan Law Review

Prior to the Supreme Court's 1989 decision in Community for Creative Non-Violence v. Reid, the Circuits had disagreed over the question of whether independent contractors could qualify as "employees" under the doctrine. The Fifth, Ninth, and D.C. Circuits defined "employee" narrowly, thereby excluding the majority of commissioned works from potential work for hire status. Applying a much broader definition of the term, the Second and Seventh Circuits included virtually all commissioned works as work for hire. The disagreement was not surprising, since the copyright statute does not include a definition of the term, and the legislative history fails to …

Controlling Discretion By Administrative Regulations: The Use, Misuse, And The Nonuse Of Police Rules And Policies In Fourth Amendment Adjudication, Wayne R. Lafave

Michigan Law Review

In assaying fourth amendment jurisprudence, it is useful to take into account available knowledge regarding the actual search and seizure practices of the police. Especially helpful is the perspective afforded by the American Bar Foundation's Survey of the Administration of Criminal Justice in the United States, which ranks as the preeminent empirical study of law enforcement procedures in this country. Despite the fact - or, more likely, because of the fact that the ABF Survey was published over twenty years ago, certain insights from that study highlight some recent and significant changes in this corpus juris inconstans .

Clearly "the …

Self-Regulation Of Judicial Misconduct Could Be Mis-Regulation, Anthony D'Amato

Michigan Law Review

Judge Harry T. Edwards has written a lucid and seemingly logical plea for the judiciary to be granted exclusive self-regulation over all matters of judicial misconduct that fall short of crimes or impeachable offenses. His essay demonstrates the seriousness with which he regards misconduct that would bring shame to the federal judiciary. He believes that the judiciary as a whole is the best institution to ascertain and take measures against individual aberrant judges who are guilty of various forms of misconduct, and I have no doubt of the sincerity of his belief. Yet when we look at claims for self-regulation …

Shareholder Passivity Reexamined, Bernard S. Black

Michigan Law Review

This article argues that shareholder monitoring is possible: It's an idea that hasn't been tried, rather than an idea that has failed. I defer to a second article currently in draft the question of whether more monitoring by institutional shareholders is desirable. Will direct shareholder oversight, or indirect oversight through shareholder-nominated directors, improve corporate performance, prove counterproductive, or, perhaps, not matter much one way or the other? What are the benefits and risks in giving money managers - themselves imperfectly monitored agents - more power over corporate managers? If more shareholder voice is desirable, how much more and …

Errors In Good Faith: The Leon Exception Six Years Later, David Clark Esseks

Michigan Law Review

Given this vast literature on the good faith exception, little room appears to exist for additional commentary on the propriety of the decision, its theoretical weaknesses or strengths, or what further changes in constitutional criminal procedure it forebodes. This Note will not add to the many voices complaining of the Court's misconstrual of the grounding of the exclusionary rule, nor of its crabbed notion of deterrence. Instead, it accepts, arguendo, the propriety of the exception and its underlying purpose, and then examines the six-year experience with the revised rule. The proliferation of reported applications of the good faith exception …

Tis A Gift To Be Simple: Aesthetics And Procedural Reform, Janice Toran

Michigan Law Review

This essay advances the hypothesis that aesthetic considerations play a role in the formulation of new legal procedures and the preference for one procedure over another. Of course, other considerations like the social impact of a particular procedure or procedural system, its economic consequences, and its role within existing legal institutions are important, often decisive, factors influencing procedural choice. My argument is simply that additional unarticulated and unrecognized aesthetic considerations also play a role in the procedural reform process. I refer to these elements as "aesthetic" because they focus on the formal qualities of a procedure (simplicity, elegance, coherence, and …

Recent Books, Michigan Law Review

Michigan Law Review

A List of Books Received by Michigan Law Review.

Beyond Candor, Scott Altman

Michigan Law Review

In Part I, I consider whether judges might hold inaccurate beliefs that make them more candid and constrained. I suggest that even if theories of neutral decisionmaking are incomplete and inaccurate, a legal system in which judges hold these beliefs about their own behavior could have advantages. If many judges believe that they can, should, and do decide almost all cases by following the law, they might behave differently than they would if they held more accurate beliefs. They might behave so as to facilitate repression and denial, because their self-esteem depends on maintaining the belief that they decide as …

The Strategic Structure Of Offer And Acceptance: Game Theory And The Law Of Contract Formation, Avery Katz

Michigan Law Review

The purpose of this article is to promote a particular research program; namely, the use of game theory to analyze the law of contract formation. Although I will often simply speak of offer and acceptance in my discussion, I mean to refer to a broader set of issues than are commonly denoted by this doctrinal label. My program transcends the narrow issue of whether particular communications technically should be classified as offers and acceptances, and includes questions often analyzed under the rubrics of implication and interpretation. At its broadest, my argument addresses all legal rules that answer two types of …

The First Word: The President's Place In "Legislative History", Kathryn Marie Dessayer

Michigan Law Review

This Note examines the extent to which courts interpreting statutes should consider presidential participation in the legislative process. Part I concludes that courts should afford presidential input greater weight in statutory interpretation given the constitutional foundations and the empirical reality of the President's involvement in the lawmaking process. This conclusion follows from an examination of the President's authority to propose legislation and his power to review legislation via the presentment clause. To demonstrate the advantages of using presidential documents, Part II considers a series of cases in which courts used executive documents in the statutory interpretation process. Although federal courts …

Selecting Law Clerks, Patricia M. Wald

Michigan Law Review

April may indeed have been "the cruellest month" this year for federal judges and their prospective clerks. For a decade now, federal judges have been trying - largely without success - to conduct a dignified, collegial, efficient law clerk selection process. Because each federal judge has only to choose two to three clerks each year, and there is a large universe of qualified applicants graduating each year from our law schools, this would not seem an insurmountable task. And because each federal judge has choice first-year positions to offer and has no need or ability to dicker on salary or …

Narrowing The Scope Of Civil Drug Forfeiture: Section 881, Substantial Connection And The Eighth Amendment, James B. Speta

Michigan Law Review

This Note offers two justifications for narrowing the scope of section 881 forfeiture. Part I argues that courts should apply the substantial connection test to section 881 forfeitures. This Part analyzes the statute using the traditional tools of statutory interpretation. While the text of the statute seems to support the broadest possible interpretation, the legislative history and context of adoption suggest that the substantial connection test is consistent with Congressional intent. In amending section 881, subsequent Congresses have favored application of the substantial connection test. Consistent with this narrower reading, present strategy in the "war on drugs" focuses stiff penalties …

The Role Of The Democratic And Republican Parties As Organizers Of Shadow Interest Groups, Jonathan R. Macey

Michigan Law Review

This article advances a new theory to explain the relationship between political parties and interest groups. Among the as yet unanswered questions that I resolve are: (1) why many politicians -both Republicans and Democrats - develop a reputation for "party loyalty" despite the parties' inability to employ any meaningful sanctions against politicians who deviate from the party line; (2) why candidates for public office run in contested primaries when running as an independent generally would be a less costly mechanism for getting on the ballot; (3) why the two major U.S. political parties continue to attract resources from contributors and …

Curtailing Inherited Wealth, Mark L. Ascher

Michigan Law Review

One of the most dominant themes in American ideology is equality of opportunity. In our society, ability and willingness to work hard are supposed to make all things possible. But we know there are flaws in our ideology. Differences in native ability unquestionably exist. Similarly, some people seem to have distinctly more than their fair share of good luck. Both types of differences are, however, beyond our control. So we try to convince ourselves that education evens out most differences. Still, we know there are immense differences in the values various parents imbue in their children. And we also know …

Recent Books, Michigan Law Review

Michigan Law Review

A List of Books Received by Michigan Law Review.

The Case Of The Amorous Defendant: Criticizing Absolute Stare Decisis For Statutory Cases, William N. Eskridge Jr.

Michigan Law Review

Earlier in this the first year of the new millennium, Professor Larry Marshall was appointed Chief Justice of the United States. The first important case coming before the Marshall Court involved the government's prosecution of Frankly Amorous under the White Slave Traffic Act of June 25, 1910 (the Mann Act), as amended. Defendant Amorous was a law student in Virginia who paid for the airplane ticket of his female lover to travel from North Carolina to Virginia for the admitted purpose of having extramarital sexual relations. The U.S. Attorney prosecuted Amorous for violating the Mann Act, which criminalizes the knowing …

Recent Books, Michigan Law Review

Michigan Law Review

A list of books received by Michigan Law Review

Of Two Minds About Law And Minds, Larry Alexander

Michigan Law Review

Present-oriented interpretation is an interpretive approach to legal texts that assigns them the best meaning, in terms of contemporary social policy, that they could plausibly convey were they written today rather than at the actual times of their enactment. Steven Smith has recently argued that present-oriented interpretation is a view of law in which law is literally "mindless." That is, present-oriented interpretation would have us be ruled by the fortuity of what present meanings the words of a text can bear, whereas, according to Smith, we should be ruled by what the enacting political authorities actually decided furthers the public …

Tort Law As Corrective Justice: A Pragmatic Justification For Jury Adjudication, Catharine Pierce Wells

Michigan Law Review

The purpose of this article is to develop a pragmatic analysis of corrective justice that will serve as a partial justification for current practices of tort adjudication. Part I discusses the concept of corrective justice and explores its relationship to the problem of justifying tort law. Part II argues that certain contemporary theories of corrective justice fail to provide an adequate basis for regarding individual tort outcomes as just. Part III develops a pragmatic account of corrective justice and argues that it accurately describes current practices of tort adjudication. Finally, Part IV argues that these practices are justified in the …

Contempt Of Congress: A Reply To The Critics Of An Absolute Rule Of Statutory Stare Decisis, Lawrence C. Marshall

Michigan Law Review

In the law school tradition of "suspending belief," Professor Eskridge has created a hypothetical in which I, in my first case as Chief Justice of the United States, must decide whether to adhere to various antiquated and seemingly erroneous precedents interpreting the Mann Act. Eskridge assumes that I will feel compelled to adhere to these decisions, for to do otherwise, he contends, would force me to abandon the proposal for an absolute rule of statutory stare decisis that I advanced recently in this Law Review. Eskridge then offers a variety of critiques of my thesis, coming from perspectives as diverse …

Making Sense Of Billboard Law: Justifying Prohibitions And Exemptions, R. Douglass Bond

Michigan Law Review

Part I of this Note surveys the trends in the aesthetic regulation of billboards, culminating in the Supreme Court of California's decision in Metromedia, Inc. v. City of San Diego, and the Supreme Court's review of that decision. Part II analyzes the five Metromedia opinions in order to present properly the contemporary debate over billboard law. It inquires whether a sign prohibition should hinge on the commercial or noncommercial status of the targeted signs. Part III indicates how ambiguities in the Metromedia plurality opinion have produced the conflict in lower courts between the commercial/noncommercial distinction and the onsite/ off …

The Negative Constitution: A Critique, Susan Bandes

Michigan Law Review

Part I describes the current approach, which demands adherence to the notion of a negative constitution. Part II critiques the assumptions underlying the current approach and demonstrates its undesirable consequences in decisional law. Part III explores the tenacious barriers to recognition of affirmative governmental duties: the constitutional, philosophical, and common law roots of the notion of a negative constitution, as well as the belief that recognizing affirmative duties would be an invitation to chaos. Finally, Part IV proposes discarding the rhetoric of negative rights and suggests an approach for constructing a theory better designed to effectuate constitutional goals.

Women Lawyers And The Quest For Professional Identity In Late Nineteenth-Century America, Virginia G. Drachman

Michigan Law Review

Whenever Lelia Robinson, a nineteenth-century woman lawyer, prepared to take a case to court, she faced a particular problem what to do about her hat. "Shall the woman attorney wear her hat when arguing a case or making a motion in court," she asked in 1888, "or shall she remove it?" Robinson's question was not a frivolous matter of fashion, but a serious concern to every woman lawyer who entered the courtroom. As a proper lady of her day, it was not only appropriate that she wear a hat in public, it was expected of her. But as a lawyer, …

Realization, Recognition, Reconciliation, Rationality And The Structure Of The Federal Income Tax System, Patricia D. White

Michigan Law Review

There are a few structural requirements that are necessarily common to any tax system. In Part I of this article I examine those requirements. I show that by isolating the necessary structure of a tax system from its particular content or goals, we can better understand the role played within the federal system of certain of its most characteristic features. In particular, I trace the function of the realization requirement for the recognition of income and distinguish it from another sort of function that could lead to the recognition of income within an income tax system. This second function is …

Groping And Coping In The Shadow Of Murphy's Law: Bankruptcy Theory And The Elementary Economics Of Failure, James W. Bowers

Michigan Law Review

Part I briefly examines the conventional explanation for bankruptcy's defining characteristic, its default distributional rule. It concludes that the conventional explanation is insufficiently informative for us to tell whether the Bankruptcy Code (Code) is actually working or not. Part II argues that the only existing systematic attempt to explain bankruptcy law, the so-called "Creditors' Bargain" Theory, is inadequate for two reasons. First, the predictions it generates are belied by real-world events. Second, it is mistaken on theoretical grounds, primarily because it ignores how debtors are likely to manage their assets. Part III presents the Murphian theory of failing behavior, the …

Adequate Protection And Administrative Expense: Toward A Uniform System For Awarding Superpriorities, Julia A. Goatley

Michigan Law Review

Part I of this Note reviews the legislative history of relevant Code sections and the Code language that pertain to the granting of adequate protection. Section 361 of the Code provides for three types of adequate protection. Sections 362, 363, and 364 set out instances when actions by the trustee that result in a decrease in the value of a secured party's interest require the provision of adequate protection. Finally, sections 503 and 507 designate circumstances when prepetition secured creditors are eligible to receive administrative expenses. Section 507(b) authorizes allowance of an administrative expense claim when the adequate protection provided …

Recent Books, Michigan Law Review

Michigan Law Review

A List of Books Received by Michigan Law Review

Applying Section 2 Of The Voting Rights Act To Single-Member Offices, Edward J. Sebold

Michigan Law Review

This Note questions whether an exemption for single-member offices is justified. Part I provides a brief overview of the Voting Rights Act and the types of discrimination in the political process to which it applies., Part I then reviews the decisions on single-member offices, including the courts' attempts to define single-member offices. This Part concludes neither Congress nor the Supreme Court dictates an exemption for single-member offices. Instead, single-member offices should be open to challenge if they hamper the achievement of section 2's goals. Part II identifies the goals of section 2 by developing a number of theories to give …

Pure Politics, Girardeau A. Spann

Michigan Law Review

Part I of this article considers the impact that judicial discretion has on the traditional model of judicial review, and that model's reliance on the Supreme Court as the primary guardian of minority interests. Part II argues that the interests of racial minorities can be better advanced through the ordinary political process than through the process of Supreme Court adjudication. Part Ill emphasizes that minority participation in Supreme Court proceedings cannot ultimately be avoided and, accordingly, suggests a political model of the Court that minorities can use in an effort to neutralize the Court's distortion of the political process. Part …