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Michigan Law Review

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Articles 1261 - 1290 of 11192

Full-Text Articles in Law

Disease And Cure?, L. A. Powe Jr. May 2003

Disease And Cure?, L. A. Powe Jr.

Michigan Law Review

Sunstein uses Franklin's remark to make two related points. First, citizens bear the burden of maintaining the American republic as a healthy, vibrant place; being a citizen is decidedly different from being a consumer. The former has duties, the latter wants (pp. 113-23). Second, and this is the gist of the slender book, the republic is jeopardized by the possibilities of the Internet. Sunstein assumes the correctness of MIT technology specialist Nicholas Negroponte's conclusion that in the not-too-distant future we will be able to create a "Daily Me" on the Internet that will provide the personalized information (including news) that …

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Economic Inequality And The Role Of Law, Richard L. Kaplan May 2003

Economic Inequality And The Role Of Law, Richard L. Kaplan

Michigan Law Review

In this ambitious book, famed commentator and analyst Kevin Phillips attempts nothing less than a political history of American economic life with a specific focus on the wealthy. Succeeding far more often than not, Phillips interweaves the development of American technology with the rise and fall of economic fortunes, crafting a compelling tale with significant implications for the formulation of public policy and the laws that implement such policy. Festooned with more than seventy charts and graphs, the book explains how wealth has been accumulated throughout the entire history of the United States. It is full of intriguing insights and …

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Patriotism: Do We Know It When We See It?, A. Wallace Tashima May 2003

Patriotism: Do We Know It When We See It?, A. Wallace Tashima

Michigan Law Review

In a small, triangular plot, a short distance north of the Capitol in Washington, D.C., is the recently dedicated "National Japanese American Memorial to Patriotism." One of the primary purposes of the memorial is to recall publicly the forced removal of Japanese Americans from the Pacific coast at the beginning of World War II and their imprisonment in government internment camps for the duration of the war. The incident is worth recalling, of course, if for no other reason than as a constant reminder that we must not let a similar tragedy befall any other group of Americans. But one …

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The Past, Present, And Future Of Bankruptcy Law In America, Todd J. Zywicki May 2003

The Past, Present, And Future Of Bankruptcy Law In America, Todd J. Zywicki

Michigan Law Review

As this Review was being written, Congress once again failed to pass the bipartisan bankruptcy-reform bill, although many expect it to be enacted at some point in the near future. At the same time, WorldCom, Enron, Global Crossing, and their ignominous peers continue to set records for the size, expense, and public attention drawn to business bankruptcy. For the first time, consumer bankruptcies surpassed the 1.5 million per year mark, continuing an irresistible upward trend. Meanwhile, law firms announce layoffs and salary freezes in most departments, and bankruptcy professionals prosper amidst the despair, billing $1 million per day on the …

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The Unruliness Of Rules, Peter A. Alces May 2003

The Unruliness Of Rules, Peter A. Alces

Michigan Law Review

Analytical jurisprudence depends on a posited relation between rules and morality. Before we may answer persistent and important questions of legal theory - indeed, before we can even know what those questions are - we must understand not just the operation of rules but their operation in relation to morality. Once that relationship is formulated, we may then come to terms with the likes of inductive reasoning in Law, the role of precedent, and the fit, such as it is, between Natural Law and Positivism as well as even the coincidence (or lack thereof) between inclusive and exclusive positivism. That …

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Meaning's Edge, Love's Priority, Patrick Mckinley Brennan May 2003

Meaning's Edge, Love's Priority, Patrick Mckinley Brennan

Michigan Law Review

The story is told of an American wending his way through the British Museum. Reaching the Rosetta Stone, he reached right over the railing, touched the scarred slab, and lamented: "It doesn't feel meaningful." Whereupon an old Briton was heard to mumble: "The poor American's got this old thing confused with the Blarney Stone." A bully presses his case, but meaning is much more modest. Powerless to insist upon itself, meaning lies in wait of discovery. What distinguishes the Rosetta Stone from other rocks of the same kind and size is that it was someone's - or rather a group's …

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The Politicization Of Clarence Thomas, Jagan Nicholas Ranjan May 2003

The Politicization Of Clarence Thomas, Jagan Nicholas Ranjan

Michigan Law Review

Perception often shapes memory. In particular, the way one perceives a noteworthy public figure often shapes that figure's historical legacy. For example, history largely remembers John Coltrane as one of the greatest jazz saxophone players of our time. His improvisational skill, innovative style, and mastery over his instrument all serve to classify him in the public memory as the ultimate jazz performer. Yet, as the example of Coltrane might demonstrate, perception is unjustly deficient. Coltrane was not merely a great saxophone player; he was first and foremost a religious figure whose spirituality drove his creativity and manifested itself in prayerful …

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Justices At Home: Three Supreme Court Memoirs, Laura Krugman Ray May 2003

Justices At Home: Three Supreme Court Memoirs, Laura Krugman Ray

Michigan Law Review

The Supreme Court, once an austere and remote institution, is increasingly the focus of popular attention. The Justices are profiled in the New York Times Magazine and the New Yorker, photographed with family members for mass-market books, and - on the evening the Court decided Bush v. Gore - televised leaving the courthouse parking garage. In the spring 2002 television season, two hour-long programs were set in the Supreme Court; both were briskly cancelled, but during their brief runs they featured Justices as heroic figures played by prominent actors. When a former law clerk recently published his account of internecine …

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The Heroes Of The First Amendment, Frederick Schauer May 2003

The Heroes Of The First Amendment, Frederick Schauer

Michigan Law Review

In 1950, Felix Frankfurter famously observed that "[i)t is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people." The circumstances of Justice Frankfurter's observation were hardly atypical, for his opinion arose in a Fourth Amendment case involving a man plainly guilty of the crime with which he had been charged - fraudulently altering postage stamps in order to make relatively ordinary ones especially valuable for collectors. Indeed, Fourth Amendment cases typically present the phenomenon that Frankfurter pithily identified, for most of the people injured by an …

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If History Mattered: John Marshall And Reframing The Constitution, Aviam Soifer May 2003

If History Mattered: John Marshall And Reframing The Constitution, Aviam Soifer

Michigan Law Review

What more can there be to learn about John Marshall? We have been blessed recently with a flood of fine books about Marshall and the Supreme Court over which he presided from 1801 until 1835. We also now have readily available an impressive collection of documents concerning the Court before Marshall, as well as a fine series collecting, introducing, and annotating Marshall's papers. With recent bicentennial celebrations marking the beginning of Marshall's career as Chief Justice and the anniversary of Marbury v. Madison, an outpouring of law review articles and scholarly symposia have offered learned exchanges about the great Chief …

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Orchestrated Experimentalism In The Regulation Of Work, Orly Lobel May 2003

Orchestrated Experimentalism In The Regulation Of Work, Orly Lobel

Michigan Law Review

Since the advent of the New Deal vision, work and the workplace have undergone dramatic changes. Policies and institutions that were designed to provide good working conditions and voice for workers are no longer fulfilling their promise. In Working in America: A Blueprint for the New Labor Market ("Blueprint"), four MIT economists take on the challenge of envisioning a new regulatory regime that will fit the realities of the new market. The result of several years of deliberation with various groups in business and labor, academia, and government, Blueprint provides a thoughtful yet unsettling vision of the future of work. …

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Live And Let Love: Self-Determination In Matters Of Intimacy And Identity, Kim Forde-Mazrui May 2003

Live And Let Love: Self-Determination In Matters Of Intimacy And Identity, Kim Forde-Mazrui

Michigan Law Review

Are you free to choose the race of your spouse, . . . of your child, . . . of yourself? Historically, the legal and social answer to these questions was No. Matters of racial identity and interracial intimacy were strictly circumscribed by ideologies of racial essentialism and separation, ostensibly rooted in science, morality, and religion. In contrast, according to Professor Randall Kennedy in his new book, Interracial Intimacies: Sex, Marriage, Identity, and Adoption, the answer to all three questions should be a resounding Yes. The exclusive source of racial identification and intimacy should be individual choice, free from legal …

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The Arrangements Of Race, Frank H. Wu May 2003

The Arrangements Of Race, Frank H. Wu

Michigan Law Review

In his debut novel, Stephen Carter takes pains to explain that although he and his protagonist, Talcott Garland (who goes by "Misha"), share superficial aspects of their identities, they should not be confused as twins. Carter and Misha may both be middle-aged professors at prestigious East Coast universities who grew up as members of the African-American elite that summered on Martha's Vineyard as segregation was officially ending; and they may both be passionate about chess. Beyond that, however, they are dissimilar. Carter drives no faster than the speed limit and otherwise leads a life that appears to be boring beyond …

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The Progressive Consuption Tax Revisited, Steven A. Bank May 2003

The Progressive Consuption Tax Revisited, Steven A. Bank

Michigan Law Review

Over the last decade, it has become increasingly evident that our current federal income tax is too complex, too easily evaded by the wealthy, and too likely to distribute the burdens of taxation to the people least able to bear it. Several years ago, frustration with these realities led to a groundswell of reform proposals, ranging from replacing the current graduated income tax rates with "flat," or proportionate, rates to abolishing the income tax altogether in favor of a national sales tax. While this tax reform frenzy dissipated almost as quickly as it began, the seeds of discontent remain. Professor …

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The Myth Of Pretax Income, Lawrence Zelenak May 2003

The Myth Of Pretax Income, Lawrence Zelenak

Michigan Law Review

What constitutes a fair distribution of the burdens of taxation among the members of a society? Even as politicians and academics vigorously debate the answer to that question, there is widespread agreement that all are asking the right question. In The Myth of Ownership, however, Liam Murphy and Thomas Nagel claim that everyone has been asking the wrong question. To ask about the fair distribution of tax burdens is to take the distribution of pretax incomes as "presumptively just," so that justice in taxation "is a question of what justifies departures from that baseline" (p. 15). But Murphy and Nagel …

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Toward A More Communitarian Future? Fukuyama As The Fundamentalist Secular Humanist, June Carbone May 2003

Toward A More Communitarian Future? Fukuyama As The Fundamentalist Secular Humanist, June Carbone

Michigan Law Review

With The End of History and the Last Man, Francis Fukuyama established himself as the prophet of liberal democracy and free markets, heralding their triumph as the only form of governance capable of commanding legitimacy. Asked to reflect on his predictions a decade later, Fukuyama concluded that the greatest threat to liberalism comes from biotechnology because it alone has the potential to remake the human nature that liberal democracy was designed to serve. Fukuyama makes a compelling case that biotechnology may produce developments that should concern us; he is ironically less persuasive in articulating a liberal-democratic framework for governing the …

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Lochner'S Feminist Legacy, David E. Bernstein May 2003

Lochner'S Feminist Legacy, David E. Bernstein

Michigan Law Review

Professor Julie Novkov's Constituting Workers, Protecting Women examines the so-called Lochner era of American constitutional jurisprudence through the lens of the struggle over the constitutionality of "protective" labor legislation, such as maximum hours and minimum wage laws. Many of these laws applied only to women, and Novkov argues that the debate over the constitutionality of protective laws for women - laws that some women's rights advocates saw as discriminatory legislation against women - ultimately had more important implications for the constitutionality of protective labor legislation more generally. Liberally defined, the Lochner era lasted from the Slaughter-House Cases in 1873 - …

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The New Privacy, Paul M. Schwartz, William M. Treanor May 2003

The New Privacy, Paul M. Schwartz, William M. Treanor

Michigan Law Review

In 1964, as the welfare state emerged in full force in the United States, Charles Reich published The New Property, one of the most influential articles ever to appear in a law review. Reich argued that in order to protect individual autonomy in an "age of governmental largess," a new property right in governmental benefits had to be recognized. He called this form of property the "new property." In retrospect, Reich, rather than anticipating trends, was swimming against the tide of history. In the past forty years, formal claims to government benefits have become more tenuous rather than more secure. …

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Foreword: Why Retry? Reviving Dormant Racial Justice Claims, Martha Minow Mar 2003

Foreword: Why Retry? Reviving Dormant Racial Justice Claims, Martha Minow

Michigan Law Review

Two familiar arguments oppose lawsuits and legislative efforts to address racial injustices from our national past, and a third tacit argument can be discerned. "Why open old wounds?": this question animates the first argument. The evidence is stale - this expresses the second argument. The third, less explicit objection reflects worries that exposing some gross and unremedied racial injustices from the past will reveal the scale of imperfections in the systems of justice and government and thereby undermine the legitimacy of those systems. To introduce the meticulous and passionate essays in this Colloquium, I elaborate and respond to each of …

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White Interests And Civil Rights Realism: Rodrigo's Bittersweet Epiphany, Richard Delgado Mar 2003

White Interests And Civil Rights Realism: Rodrigo's Bittersweet Epiphany, Richard Delgado

Michigan Law Review

I had just settled down, taken off my tie, and was about to go over the two-page handout entitled "Information for Wedding Parties " that the minister of the small church had handed me minutes earlier, when I heard a knock and familiar voice from the other side of the anteroom door.

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Retrying Race, Anthony V. Alfieri Mar 2003

Retrying Race, Anthony V. Alfieri

Michigan Law Review

This Essay investigates the renewed prosecution of long-dormant criminal and civil rights cases of white-on-black racial violence arising out of the 1950s and 1960s. The study is part of an ongoing project on race, lawyers, and ethics within the criminal-justice system. Framed by this larger project, the Essay explores the normative and sociolegal meaning of that resurgent prosecution. My hope in pursuing this inquiry is to better understand, and perhaps begin to refashion, the prosecutor's redemptive role in cases of racial violence. Both descriptive and prescriptive in nature, the inquiry addresses race in relation to law and community. Grappling with …

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The Replacement Dilemma: An Argument For Eliminating A Non-Class Replacement Requirement In The Prima Facie Stage Of Title Vii Individual Disparate Treatment Discrimination Claims, Marla Swartz Mar 2003

The Replacement Dilemma: An Argument For Eliminating A Non-Class Replacement Requirement In The Prima Facie Stage Of Title Vii Individual Disparate Treatment Discrimination Claims, Marla Swartz

Michigan Law Review

Although manifestations of discrimination in the workplace have changed greatly over time, employment discrimination continues to be a tremendous problem in society. By enacting Title VII of the Civil Rights Act of 1964 ("Title VII"), Congress shielded employees from arbitrary adverse employment actions arising from discrimination related to race, color, religion, sex, or national origin. Three years later, Congress passed the Age Discrimination in Employment Act ("ADEA"), guaranteeing the same protections against discrimination based on age.4 Finally, the Americans with Disabilities Act ("ADA"), passed in 1990, prohibited discrimination based on personal disability. Ten years after Congress enacted the Civil Rights …

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American Racial Jusice On Trial - Again: African American Reparations, Human Rights, And The War On Terror, Eric K. Yamamoto, Susan K. Serrano, Michelle Natividad Rodriguez Mar 2003

American Racial Jusice On Trial - Again: African American Reparations, Human Rights, And The War On Terror, Eric K. Yamamoto, Susan K. Serrano, Michelle Natividad Rodriguez

Michigan Law Review

Much has been written recently on African American reparations and reparations movements worldwide, both in the popular press and scholarly publications. Indeed, the expanding volume of writing underscores the impact on the public psyche of movements for reparations for historic injustice. Some of that writing has highlighted the legal obstacles faced by proponents of reparations lawsuits, particularly a judicial system that focuses on individual (and not group-based) claims and tends to squeeze even major social controversies into the narrow litigative paradigm of a two-person auto collision (requiring proof of standing, duty, breach, causation, and direct injury). Other writings detail the …

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Recent Books, Michigan Law Review Mar 2003

Recent Books, Michigan Law Review

Michigan Law Review

A list of books recenlty received by Michigan Law Review.

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Cleansing Moments And Retrospective Justice, Margaret M. Russell Mar 2003

Cleansing Moments And Retrospective Justice, Margaret M. Russell

Michigan Law Review

We live in an era of questioning and requestioning long-held assumptions about the role of race in law, both in criminal prosecutions specifically and in the legal process generally. Certainly, the foundational framework is not new; for decades, both legal literature and jurisprudence have explored in great detail the realities of racism in the legal system. Even among those who might prefer to ignore the role of race discrimination in more than two centuries of American law, denial is no longer a viable or intellectually defensible option. Rather, debate now centers upon whether or not the extensive history of American …

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Interpretation And Institutions, Cass R. Sunstein, Adrian Vermeule Feb 2003

Interpretation And Institutions, Cass R. Sunstein, Adrian Vermeule

Michigan Law Review

Suppose that a statute, enacted several decades ago, bans the introduction of any color additive in food if that additive "causes cancer" in human beings or animals. Suppose that new technologies, able to detect low-level carcinogens, have shown that many potential additives cause cancer, even though the statistical risk is often tiny - akin to the risk of eating two peanuts with governmentally-permitted levels of aflatoxins. Suppose, finally, that a company seeks to introduce a certain color additive into food, acknowledging that the additive causes cancer, but urging that the risk is infinitesimal, and that if the statutory barrier were …

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Reply: The Institutional Dimension Of Statutory And Constitutional Interpretation, Richard A. Posner Feb 2003

Reply: The Institutional Dimension Of Statutory And Constitutional Interpretation, Richard A. Posner

Michigan Law Review

Cass Sunstein and Adrian Vermeule argue in Interpretation and lnstitutions that judicial interpretation of statutes and constitutions should take account both of the institutional framework within which interpretation takes place and of the consequences of different styles of interpretation; they further argue that this point has been neglected by previous scholars. The first half of the thesis is correct but obvious; the second half, which the authors state in terms emphatic to the point of being immodest, is incorrect. Moreover, the authors offer no feasible suggestions for how the relation between interpretation and the institutional framework might be studied better …

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Interpretive Theory In Its Infancy: A Reply To Posner, Cass R. Sunstein, Adrien Vermeule Feb 2003

Interpretive Theory In Its Infancy: A Reply To Posner, Cass R. Sunstein, Adrien Vermeule

Michigan Law Review

In law, problems of interpretation can be explored at different levels of generality. At the most specific level, people might urge that the Equal Protection Clause forbids affirmative action, or that the Food and Drug Act applies to tobacco products. At a higher level of generality, people might argue that the Equal Protection Clause should be interpreted in accordance with the original understanding of its ratifiers, or that the meaning of the Food and Drug Act should be settled with careful attention to its legislative history. At a still higher level of generality, people might identify the considerations that bear …

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Should We All Be Welfare Economists?, Richard H. Fallon Jr. Feb 2003

Should We All Be Welfare Economists?, Richard H. Fallon Jr.

Michigan Law Review

On what normative foundation should the edifice of law and public policy be built? What are proper grounds for claims of individual right, and how, generally, do those grounds relate to considerations of individual well-being and social welfare? In this Essay, I argue that individual well-being and a related concept of social welfare should be important considerations in the design of legal rules, but not the exclusive ones. When the notion of well-being receives substantive content, the most plausible and attractive definitions all allow a distinction between what will best promote a person's well-being and what that person might rationally …

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Section Five Overbreadth: The Facial Approach To Adjudicating Challenges Under Section Five Of The Fourteenth Amendment, Catherine Carroll Feb 2003

Section Five Overbreadth: The Facial Approach To Adjudicating Challenges Under Section Five Of The Fourteenth Amendment, Catherine Carroll

Michigan Law Review

In February 1996, the New York State Department of Transportation fired Joseph Kilcullen from his position as a snowplow driver in the Department's Highway Maintenance training program. Alleging that the state discharged him because of his epilepsy and learning disability, Kilcullen sued his former employer under the Americans with Disabilities Act ("ADA"), which abrogated states' sovereign immunity and permitted private suits for damages against states in a federal court. Kilcullen asserted only that he was not treated the same as similarly situated non-disabled employees; his claim did not implicate the ADA's requirement that employers provide "reasonable accommodation" to disabled employees. …

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