Law Commons^™

Commerce!, Deborah Jones Merritt

Michigan Law Review

In this article, I explore the Supreme Court's new definition of "Commerce ... among the several States."9 In Part I, I examine three new principles that Lopez announces and that could significantly rework the Court's Commerce Clause jurisprudence. Part II, however, shows that these principles must be understood in the context of almost a dozen factors narrowing the Supreme Court's Lopez decision. Part II also demonstrates that the lower courts have understood the contextual uniqueness of Lopez and already have distinguished the decision in upholding more than half a dozen broad exercises of congressional authority. Part III then shows that …

"A Government Of Limited And Enumerated Powers": In Defense Of United States V. Lopez, Steven G. Calabresi

Michigan Law Review

The Supreme Court's recent decision in United States v. Lopez marks a revolutionary and long overdue revival of the doctrine that the federal government is one of limited and enumerated powers. After being "asleep at the constitutional switch" for more than fifty years, the Court's decision to invalidate an Act of Congress on the ground that it exceeded the commerce power must be recognized as an extraordinary event. Even if Lopez produces no progeny and is soon overruled, the opinion has shattered forever the notion that, after fifty years of Commerce Clause precedent, we can never go back to the …

Recent Books, Michigan Law Review

Michigan Law Review

A List of Books Received from Michigan Law Review.

The Prima Facie Case Of Age Discrimination In Reduction-In-Force Cases, Jessica Lind

Michigan Law Review

This Note proposes that courts require the plaintiff in a RIF case to show, as part of her prima facie burden, that the employer reassigned at least part of her job responsibilities to a younger individual of equal or lesser qualifications. Part I describes the analytical framework applied to most intentional discrimination cases the McDonnell Douglas framework. Part II explains that the RIF plaintiff cannot meet the specific requirements of the prima facie case as articulated in McDonnell Douglas because her firing occurs in conjunction with the elimination of her position. This Part then examines two approaches taken by the …

Petty Offenses, Serious Consequences: Multiple Petty Offenses And The Sixth Amendment Right To Jury Trial, Jeff E. Butler

Michigan Law Review

In Blanton v. City of North Las Vegas, the Supreme Court set forth the definitive standard for distinguishing petty offenses from serious crimes.7 The benchmark used by the Court is the maximum prison term assigned to each offense by the legislature. Where the penalty exceeds six months' imprisonment, the offense is serious enough to trigger the right to jury trial. Where the penalty is six months' imprisonment or less, there is a strong presumption that the offense is petty; therefore, a defendant accused of that offense has no Sixth Amendment right to jury trial.

This Note argues that a criminal …

The Constitution's Forgotten Cover Letter: An Essay On The New Federalism And The Original Understanding, Daniel A. Farber

Michigan Law Review

At the end of the summer of 1787, the Philadelphia Convention issued two documents. One was the Constitution itself. The other document, now almost forgotten even by constitutional historians, was an official letter to Congress, signed by George Washington on behalf of the Convention. Congress responded with a resolution that the Constitution and "letter accompanying the same" be sent to the state legislatures for submission to conventions in each state.

The Washington letter lacks the detail and depth of some other evidence of original intent. Being a cover letter, it was designed only to introduce the accompanying document rather than …

Third-Party Modification Of Protective Orders Under Rule 26©, Patrick S. Kim

Michigan Law Review

This Note argues that similarly situated litigants always should be given access to protected discovered materials, while nonlitigants should gain access to protected materials only in exceptional circumstances. This approach effectively balances the privacy and property interests of the original parties and the intervening parties with the interests of adjudicative efficiency. Part I establishes that there is no general public right of access to civil discovery and that courts should disregard such purported rights when considering whether to modify a protective order. Part II identifies three interests that courts should weigh when considering whether to modify a protective order: the …

Due Process Review Under The Railway Labor Act, Christopher L. Sagers

Michigan Law Review

This Note contends that the RLA prohibits due process review and further argues that such a result is constitutional. Part I examines the statutory language of the RLA itself and contends that it limits district court review to the three statutory grounds. Part II argues that the Supreme Court's opinion in Sheehan reaffirms this interpretation because the Court's language unmistakably conveys an intent to bar due process review. Part III explains that such a limitation does not violate the Constitution. The only constitutional provision that could be implicated in an RLA proceeding, the right of procedural due process, is protected …

The Applicability Of Section 2462'S Statute Of Limitations To Sec Enforcement Suits In Light Of The Remedies Act Of 1990, Catherine E. Maxson

Michigan Law Review

This Note argues that section 2462's limitations period reaches all SEC civil suits for monetary fines but not those SEC actions seeking equitable relief. Part I interprets section 2462 and, in the process, demonstrates that the statute controls SEC enforcement suits for civil penalties. Part II argues that SEC actions requesting injunctions or disgorgement of profits, unlike those seeking monetary fines, are not subject to the time bar. Finally, Part III asserts that SEC administrative enforcement proceedings should not be immune from the statute of limitations found in section 2462 of title 28 because exempting administrative proceedings would be tantamount …

True Lies: The Role Of Pretext Evidence Under Batson V. Kentucky In The Wake Of St. Mary's Honor Center V. Hicks, David A. Sutphen

Michigan Law Review

In the process of determining whether a peremptory strike is valid, lower courts rely on the TI.tie VII burden-shifting framework originally laid out by the Supreme Court in McDonnell Douglas Corp. v. Green As a result, the order and presentation of proof in Batson cases deliberately parallels the order and presentation of proof in TI.tie VII intentional discrimination suits. In light of this similarity, the Supreme Court's recent TI.tie VII ruling in St. Mary's Honor Center v. Hicks - that proof of pretext under the McDonnell Douglas framework is not the legal equivalent to proof of intentional discrimination - raises …

Policy Distortion And Democratic Debilitation: Comparative Illumination Of The Countermajoritarian Difficulty, Mark Tushnet

Michigan Law Review

James Bradley Thayer set the terms of the past century's discussion of judicial review in The Origin and Scope of the American Doctrine of Constitutional Law. Thayer was concerned with what Alexander Bickel labeled the "countermajoritarian difficulty" with judicial review, that judicial review displaces decisions made by near-contemporaneous political majorities and therefore is open to the charge that it is undemocratic. Thayer attempted to minimize the displacement- of political majorities through his "clear error" rule, according to which courts should not overturn legislation unless "those who have the right to make laws have not merely made a mistake, but have …

Back To The Briarpatch: An Argument In Favor Of Constitutional Meta-Analysis In State Action Determinations, Ronald J. Krotoszynski Jr.

Michigan Law Review

Brer Rabbit, after claiming repeatedly that he would prefer almost anything to being thrown into the briarpatch, expressed glee once tossed there. In fact, Brer Rabbit wanted to be in the briarpatch because, like most rabbits, he could navigate the briarpatch with relative ease: the briarpatch was home.

Over the course of a century, the Supreme Court has developed a great degree of familiarity with the state action doctrine, a doctrinal briar patch. Like Brer Rabbit, the Court has disclaimed repeatedly any interest in being there.

In this article, I argue that the existing tests for establishing the presence of …

Radically Subversive Speech And The Authority Of Law, Steven D. Smith

Michigan Law Review

This essay attempts to use a familiar, relatively concrete constitutional question to think about a familiar, relatively abstract jurisprudential question - and vice versa. The constitutional question asks why we should give legal protection to what I will call "radically subversive speech." The jurisprudential question concerns the ancient problem of the legitimacy or authority of law in general. "What is law," as Philip Soper puts the question, "that I should obey it?" I will try in this essay to show that the abstract question sheds light on the more concrete one - and vice versa.

Homologizing Pregnancy And Motherhood: A Consideration Of Abortion, Julia E. Hanigsberg

Michigan Law Review

In this essay I reconsider abortion in order to bridge what initially seem to be two opposing frameworks: first, the conception of abortion as an issue of women's bodily integrity and liberty, and second, the acknowledgement of the existence and meaning of intrauterine life. The abortion choice is indeed deeply and necessarily tied to women's bodily integrity. I will discuss how taking away women's ability to control their decision not to become mothers can be severely damaging to their very sense of self, for this denial of decisionmaking divides women from their wombs and uses their wombs for a purpose …

Conditional Probative Value And The Reconstruction Of The Federal Rules Of Evidence, Dale A. Nance

Michigan Law Review

In a recent article, Richard Friedman articulates a modified and generalized version of the doctrine of conditional relevance, which he calls "conditional probative value." This version comes in response to a substantial body of academic criticism of the traditional doctrine. As one of the critics to whom Professor Friedman responds, I offer this reply with two purposes in mind: (1) to clarify the relationship between Friedman's analysis and my earlier reinterpretation of the conditional relevance doctrine; and (2) to address Friedman's specific proposals with regard to the Federal Rules of Evidence. I conclude that Friedman's articulation helps clarify the logic …

Recent Books, Michigan Law Review

Michigan Law Review

A list of Books Received by Michigan Law Review.

Further Evidence Of Discrimination In New Car Negotiations And Estimates Of Its Cause, Ian Ayres

Michigan Law Review

A 1991 test of new car dealerships in Chicago indicated that dealerships offered significantly lower prices to white male testers than to similarly situated black and-or female testers: white female testers were asked to pay 40% higher markups than white male testers; black male testers were asked to pay more than twice the markup of white male testers; and black female testers were asked to pay more than three times the markup of white male testers. This article extends the results of this initial test by presenting not only more authoritative evidence of discrimination but also a new quantitative method …

Religion-Based Peremptory Challenges After Batson V. Kentucky And J.E.B. V. Alabama: An Equal Protection And First Amendment Analysis, Benjamin Hoorn Barton

Michigan Law Review

This Note argues that under Batson, J.E.B., the First Amendment, and the Equal Protection Clause, religion-based peremptory challenges are unconstitutional. This Note asserts that the analysis of governmental religious discrimination, such as a peremptory challenge, is the same under either the First Amendment or the Equal Protection Clause because both apply strict scrutiny to purposeful government discrimination.

Part I examines Batson and J.E.B. in greater detail and states a model for analyzing discriminatory peremptory challenges in which such challenges are treated as intentional governmental discrimination subject to heightened scrutiny. Part II argues that under the First Amendment, intentional governmental …

Computer Bulletin Board Operator Liability For Users' Infringing Acts, M. David Dobbins

Michigan Law Review

This Note argues that a computer bulletin board operator's liability for copyright infringement by users of the bulletin board should be analyzed under the theory of contributory copyright infringement. This Note calls for a standard of liability under contributory copyright infringement that accommodates the competing interests at stake in the resolution of this issue. Part I provides an overview of copyright infringement law and argues that in most situations the operator's actions, viewed independently, do not constitute copyright infringement. Part II explores theories of third-party liability. This Part rejects the doctrine of vicarious liability as an effective means for establishing …

The Uniform Probate Code Upends The Law Of Remainders, Jesse Dukeminier

Michigan Law Review

Nothing is more settled in the law of remainders than that an indefeasibly vested remainder is transmissible to the remainderman's heirs or devisees upon the remainderman's death. Thus, where a grantor conveys property "to A for life, then to B and her heirs," B's remainder passes to B's heirs or devisees if B dies during the life of A. Inheritability of vested remainders was recognized in the time of Edward I, and devisability was recognized with the Statute of Wills in 1540.

Antitrust Standing In Private Merger Cases: Reconciling Private Incentives And Public Enforcement Goals, Joseph F. Brodley

Michigan Law Review

This article examines a vital problem of private antitrust enforcement - the standing of private merger litigants - where the unresolved tension between public antitrust goals and the private interests of litigants threatens enforcement breakdown. Private merger enforcement is at risk not because courts have determined that such enforcement is undesirable, but because courts have failed to see the problem as an issue of systems design requiring effective integration of public and private enforcement. Instead they have focused on particular elements of antitrust standing - feared abuses by wrongly motivated plaintiffs - neglecting system-wide effects and jeopardizing the health of …

The Impact Of The Americans With Disabilities Act On State Bar Examiner's Inquiries Into The Psychological History Of Bar Applicants, Carol J. Banta

Michigan Law Review

This Note argues that the use of any questions based upon an applicant's psychological history in the state bar application process violates the Americans with Disabilities Act. Part I demonstrates that Title II of the ADA applies to state boards of bar examiners, and that the ADA definition of a person with a disability includes a person who has sought or received psychological counseling. Part II applies the ADA and accompanying regulations to the psychological history inquiries currently used by state bar examiners and argues that such inquiries violate the ADA because they inquire specifically about disabled status. Part III …

The Last Minuet: Disparate Treatment After Hicks, Deborah C. Malamud

Michigan Law Review

The purpose of this article is to explain why the Court's much-maligned decision in Hicks was correct, and to further argue that in the aftermath of Hicks, the McDonnell Douglas-Burdine proof structure ought to be abandoned.

A Study In Regulatory Method, Local Political Cultures, And Jurisprudential Voice: The Application Of Federal Confidentiality Law To Project Head Start, Richard C. Boldt

Michigan Law Review

This article focuses on one particular set of issues raised by the effort to coordinate the activities of Head Start centers with those of substance abuse treatment programs and the introduction of treatment and prevention functions into the daily interactions of Head Start staff and parents. These issues involve the disclosure of potentially damaging information about a Head Start parent's drug or alcohol abuse and the confidentiality considerations that arise when she or he has sought or received treatment for that abuse. Although it is possible to characterize these issues as technical, doctrinal questions of statutory and regulatory interpretation, it …

The Public Safety Exception To Miranda: Analyzing Subjective Motivation, Marc Schuyler Reiner

Michigan Law Review

This Note argues, however, that the appropriate inquiry under Quarles is whether an actual and reasonable belief in an emergency motivated the interrogating officer. This Note proposes a two-prong test to facilitate this inquiry. The subjective motivation prong evaluates the officer's subjective motivation as revealed by objective factors: the. content of the officer's questions, when he asked them, and when the suspect received Miranda warnings. The objective reasonableness prong looks at the objective circumstances to determine the reasonableness of the officer's belief in an emergency.

Part I demonstrates that the Quarles opinion actually contemplates and requires analysis of the officer's …

Supplemental Jurisdiction Over Claims By Plaintiffs In Diversity Cases: Making Sense Of 28 U.S.C. § 1367 (B), Darren J. Gold

Michigan Law Review

This Note examines the language and legislative history of section 1367(b) and proposes a uniform test for determining the circumstances in which subsection (b) authorizes the exercise of supplemental jurisdiction. Part I of this Note explains the doctrines of pendent and ancillary jurisdiction and examines how the Supreme Court's decision in Finley v. United States called these doctrines into question. Part II examines the language and legislative history of section 1367 and concludes that the statute only prohibits the exercise of supplemental jurisdiction over claims by plaintiffs in diversity cases when doing so would permit plaintiffs to circumvent the complete …

Misunderstanding Positivism, Anthony J. Sebok

Michigan Law Review

It is important that I point out the limited purposes of this article. I cannot, in the context of the argument I make, prove that positivism will not inevitably collapse into a conservative theory of law. Nor can I prove that positivism is not vulnerable to jurisprudential arguments unrelated to the attempt to link positivism with formalism, legal process, and originalism. I recognize that strong arguments have been made that modem positivism's attempts to divorce itself from classical positivism's command theory of law has opened up more problems than it has solved. I have certain views on whether that divorce …

The Federal Arbitration Act And Individual Employment Contracts: A Better Means To An Equally Just End, William F. Kolakowski Iii

Michigan Law Review

This Note argues that courts should adopt a narrow reading of the employment contract exception to the FAA, thus making arbitration agreements in most individual employment contracts enforceable under the Act. Part I argues that a textual analysis of the FAA supports a narrow interpretation of the exception. Because some courts and commentators have argued that the text favors a broad interpretation, Part II examines the legislative history of the exception and demonstrates that no firm conclusions can be drawn about congressional intent regarding the exception's scope. Finally, Part III demonstrates that a narrow reading of the exception best serves …

The Case Against Section 1983 Immunity For Witnesses Who Conspire With A State Official To Present Perjured Testimony, Jennifer S. Zbytowski

Michigan Law Review

This Note argues that witnesses who conspire with a state official to present perjured testimony at a judicial proceeding should not have absolute immunity from a section 1983 suit for damages. Part I provides background information on section 1983 and explains why a witness-state conspiracy satisfies the requirements of a section 1983 cause of action. Part I also summarizes the Supreme Court's doctrinal approach to section 1983 immunity. Finally, Part I examines two Supreme Court cases which are relevant to the issue of immunity for witness conspirators: Briscoe v. LaHue, and Malley v. Briggs. Part II applies the …

De Jure Revolution?, Margaret M. Russell

Michigan Law Review

A Review of Failed Revolutions: Social Reform and the Limits of Legal Imagination by Richard Delgado and Jean Stefancic, and Crusaders in the Courts: How a Dedicated Band of Lawyers Fought for the Civil Rights Revolution by Jack Greenberg.