Law Commons^™

Constitutional Misconceptions, Radhika Rao

Michigan Law Review

A Review of Children of Choice: Freedom and the New Reproductive Technologies by John A. Robertson

Making Rules: An Introduction, Steven Croley

Michigan Law Review

A Review of Rulemaking: How Government Agencies Write Law and Make Policy by Cornelius M. Kerwin

Pragmatism, Feminism, And The Problem Of Bad Coherence, Catharine Pierce Wells

Michigan Law Review

A Review of Reinterpreting Property by Margaret Jane Radin

Putting Women First, Mary Coombs

Michigan Law Review

A Review of Gender, Crime, and Punishment by Kathleen Daly

Justice Lewis F. Powell And The Jurisprudence Of Centrism, Mark Tushnet

Michigan Law Review

A Review of Justice Lewis F. Powell, Jr by John C. Jeffries, Jr.

A Modern Hamlet In The Judicial Pantheon, Charles Alan Wright

Michigan Law Review

A Review of Learned Hand: The Man and the Judge by Gerald Gunther

Hugo Black Among Friends, Dennis J. Hutchinson

Michigan Law Review

A Review of Hugo Black: A Biography by Roger K. Newman

The Single-Scheme Exception To Criminal Deportations And The Case For Chevron's Step Two, David A. Luigs

Michigan Law Review

This Note applies the two-step Chevron analysis to the single-scheme exception and argues that courts should reject the BIA's single-act test. In applying Chevron, this Note uses the narrow controversy over the proper interpretation of the single-scheme exception as a window on the larger ambiguity that plagues the Supreme Court's Chevron jurisprudence. This Note suggests an answer to a broader issue that has remained unclear under the Supreme Court's precedents: how courts should review agency interpretations at Chevron's second step.

Reply: Self-Incrimination And The Constitution: A Brief Rejoinder To Professor Kamisar, Akhil Reed Amar, Renée B. Lettow

Michigan Law Review

A Reply to Yale Kamisar's Response to the "Fifth Amendment Principles: The Self-Incrimination Clause"

Fifth Amendment First Principles: The Self-Incrimination Clause, Akhil Reed Amar, Renée B. Lettow

Michigan Law Review

In Part I of this article, we examine the global puzzle of the Self-Incrimination Clause and the local confusion or perversion lurking behind virtually every key word and phrase in the clause as now construed. In Part II we elaborate our reading of the clause and show how it clears up the local problems and solves the overall puzzle.

Privacy's Problem And The Law Of Criminal Procedure, William J. Stuntz

Michigan Law Review

Part I of this article addresses the connection between privacy-based limits on police authority and substantive limits on government power as a general matter. Part II briefly addresses the effects of that connection on Fourth and Fifth Amendment law, both past and present. Part ID suggests that privacy protection has a deeper problem: it tends to obscure more serious harms that attend police misconduct, harms that flow not from information disclosure but from the police use of force. The upshot is that criminal procedure would be better off with less attention to privacy, at least as privacy is defined in …

Response: The Problems With Privacy's Problem, Louis Michael Seidman

Michigan Law Review

A Response to William J. Stuntz's "Privacy's Problem and the Law of Criminal Procedure"

Reply, William J. Stuntz

Michigan Law Review

A Reply to Louis Michael Seidman's Response

Should Courts Impose Rico's Pretrial Restraint Measures On Substitute Assets?, James M. Rosenthal

Michigan Law Review

This Note argues that courts should not apply RICO's pretrial restraint measures to substitute assets. Part I examines the text of RICO's forfeiture provisions in light of recent rulings by the Supreme Court providing guidance in interpreting the statute. Part I concludes that the statute's plain meaning limits pretrial restraint measures to tainted assets. Part II examines language in the legislative history of an earlier attempt to add a substitute asset provision to RICO and in the 1984 change from broad to specific language in the pretrial restraint provision. From this language, Part II concludes that Congress did not intend …

Transfer And Choice Of Federal Law: The Appellate Model, Robert A. Ragazzo

Michigan Law Review

In light of recent developments, a reexamination of the position that transferee federal law applies regardless of the context is in order. This article argues that the consensus that existed prior to the Marcus article and the Korean Air Lines case, although not based upon the most thorough analysis, comprises the better view: transferee federal law should apply after permanent but not MDL transfers.

White House Electronic Mail And Federal Recordkeeping Law: Press "D" To Delect History, James D. Lewis

Michigan Law Review

This Note argues that federal recordkeeping law should promote the preservation of history above all other concerns. First, courts should construe and apply the recordkeeping statutes with this goal in mind. Second, Congress should amend the recordkeeping statutes to correct enforcement deficiencies that leave irresponsible recordkeeping practices unchecked and risk the loss of a historical record of White House decisionmaking. Finally, executive officials should adopt guidelines that identify and preserve historically significant materials regardless of the medium in which they are captured.

Part I of this Note examines the statutes that currently regulate the management and public disclosure of White …

The Obsolescence Of Wall Street: A Contextual Approach To The Evolving Structure Of Federal Securities Regulation, Joel Seligman

Michigan Law Review

As a matter of analytical style, this article illustrates a contextualist approach. For a considerable period of time, the dominant analytical style in corporate and securities .law has been a variant of economic, or law and economics, analysis. The virtue of this type of analysis is that it focuses on what its authors deem to be crucial variables and reaches conclusions derived from the core of a specific legal problem. The defect of this type of analysis is that so much is assumed or often assumed away.

Are Trojan Horse Union Organizers "Employees"?: A New Look At Deference To The Nlrb's Iterpretation Of Nlra Section 2(3), Jonathan D. Hacker

Michigan Law Review

This Note takes a different approach to interpreting section 2(3). Although this Note agrees that section 2(3) neither clearly includes nor clearly excludes trojan horse organizers, it also argues that the definition of employee under section 2(3) must be determined by looking to common law principles of agency. In other words, the question whether courts should defer to the Board's interpretation of section 2(3) does not turn on statutory ambiguity. Rather, courts have a continuing duty to ensure that the Board interprets employee consistently with common law agency principles. Nevertheless, the correct interpretation of employee under agency principles ultimately turns …

The Dormant Commerce Clause And State-Mandated Preference Laws In Public Contracting: Developing A More Substantive Application Of The Market-Participant Exception, Benjamin C. Bair

Michigan Law Review

This Note argues that the current focus on the relationship between states and their local governments as the key determinant of the constitutional validity of state-mandated preference laws is flawed. Instead, a court considering the validity of a state-mandated preference law should uphold such a law only if it distributes the benefits of state expenditures to state residents and does not excessively burden interstate commerce.

The Case Against Intermediate Owner Liability Under Cercla For Passive Migration Of Hazardous Waste, Robert L. Bronston

Michigan Law Review

This Note argues that Congress intended disposal to have an active meaning and therefore that courts should not hold prior intermediate owners liable for the passive migration of hazardous waste under section 107(a)(2). Part I examines CERCLA's definition of disposal. This Part concludes that the language of the definition, though somewhat ambiguous, supports the active defuiition. Part II considers the history of both CERCLA and the Resource Conservation and Recovery Act (RCRA), which CERCLA amended, in order to determine whether Congress intended to require affirmative conduct on the part of intermediate owners as a prerequisite to liability. Part II …

Collective Bargaining Or "Collective Begging"?: Reflections On Antistrikebreaker Legislation, Samuel Estreicher

Michigan Law Review

The strike is a necessary part of collective bargaining. Workers should not ordinarily lose their jobs by pressing their disputes in this manner. But neither should strikes be viewed as a risk-free means of empowering unions to lock employers into uncompetitive contracts.

Response: Exaggerated And Misleading Reports Of The Death Of Conditional Relevance, Peter Tillers

Michigan Law Review

In 1980 the late Professor Vaughn C. Ball of the University of Georgia published an article called The Myth of Conditional Relevancy. Ball's article is widely admired. One well-known evidence scholar, Ronald J. Allen, liked Ball's article so much that he borrowed its title word for word. Although the extent of Allen's enthusiasm for Ball's analysis may be unmatched, a good number of students of evidence - including this writer - have said that Ball's analysis of conditional relevance is both original and important. Richard Friedman, by contrast, cannot be counted as one of Ball's more ardent admirers. Although Friedman …

Give Them Back Their Lives: Recognizing Client Narrative In Case Theory, Binny Miller

Michigan Law Review

This article is about case theory and its implications for incorporating client narratives in litigation. In seeking to understand the connections between voice, narrative, and case theory, I look not only to theory but to my experience as a clinical teacher and criminal defense attorney. I explore how the practice of lawyering can be reconstructed to embrace a greater role for clients in constructing case theories, both through the images of the client the lawyer presents in the case theory and through active client participation in developing and choosing the case theory. Although one aim of case theory is to …

Federal Common Law And Gaps In Federal Statutes: The Case Of Erisa Plan Limitation Periods For Section 502(A)(1)(B) Actions, Jim Greiner

Michigan Law Review

This Note argues that federal courts should adopt a uniform national rule that upholds plan provisions modifying the limitation period for a section 502(a)(l)(B) action. Part I examines the reasoning of those courts that have borrowed state law to determine the validity of modifications of the limitation period applicable to actions arising under BRISA section 502(a)(l)(B) and under other federal statutes. Part I argues that those courts may have incorrectly characterized the validity of plan limitation periods as an issue of limitation law. As a consequence of this characterization, those courts have followed the Supreme Court's rule that, when borrowing …

The Punishment Of Hate: Toward A Normative Theory Of Bias-Motivated Crimes, Frederick M. Lawrence

Michigan Law Review

This article explores how bias crimes differ from parallel crimes and why this distinction makes a crucial difference in our criminal law. Bias crimes differ from parallel crimes as a matter of both the resulting harm and the mental state of the offender. The nature of the injury sustained by the immediate victim of a bias crime exceeds the harm caused by a parallel crime. Moreover, bias crimes inflict a palpable harm on the broader target community of the crime as well as on society at large, while parallel crimes do not generally cause such widespread injury.

The distinction between …

Chix Nix Bundle-O-Stix: A Feminist Critique Of The Disaggregation Of Property, Jeanne L. Schroeder

Michigan Law Review

Property was dead, to begin with. The coroner, Wesley Newcomb Hohfeld, revealed that the unity, tangibility, and objectivity of property perceived by our ancestors was a phantom. Property is, in fact, merely a "bundle of sticks." When conceptualized as a collection of rights, property loses its distinctive qualities and its essence. It therefore does not, or at least should not, exist. Without unity and physicality, property loses its objectivity and can only be a myth. The rabble might still believe in the old gods of property, but the educated "specialists" now know that this was vulgar superstition. Once the populace …

Congressional Commentary On Judicial Interpretations Of Statutes: Idle Chatter Or Telling Response?, James J. Brudney

Michigan Law Review

There are two principal aspects of my thesis. First, it is desirable to consider seriously these legislative signals of approval and disapproval, because a blanket rejection, or even systematic hostility, imposes significant opportunity costs on Congress. If the judiciary refuses to consider these signals, Congress will have to expend extra resources to achieve the same ends. That expense will diminish the institution's ability to enact other laws and in some cases will alter the character of the other laws that it is able to enact. The consequent diminution or depletion of Congress's legislative authority is unhealthy from a democratic perspective …

Employment Discrimination Claims Under Erisa Section 510: Should Courts Require Exhaustion Of Arbitral And Plan Remedies?, Jared A. Goldstein

Michigan Law Review

This Note examines whether courts should require section 510 claimants to exhaust either plan-based or arbitral remedies before seeking judicial relief. It begins by comparing the basis for an exhaustion requirement with respect to benefits claims with the basis for such a requirement with respect to statutory claims - like those under section 510. Part I examines the rationale courts have offered for requiring exhaustion of plan remedies for benefits claims. Part I concludes that federal courts have correctly determined that Congress intended individuals bringing benefits claims to exhaust the remedies provided by the plan before seeking judicial relief. Part …

Psychological Barriers To Litigation Settlement: An Experimental Approach, Russell Korobkin, Chris Guthrie

Michigan Law Review

In this article, we seek to substantiate "psychological barriers," as illustrated by the constructs described above, as a third explanation for the failure of legal disputants to settle out of court. Although we are not the first to hypothesize that psychological processes can, in theory, affect legal dispute negotiations, we attempt to give more definition to the otherwise vague contours of the psychological barriers hypothesis by bringing empirical data to bear on the question. To achieve this end, we conducted a series of nine laboratory experiments - involving nearly 450 subjects - designed to isolate the effects of the three …

No Time For Trumpets: Title Vii, Equality, And The Fin De Sièchle, D. Marvin Jones

Michigan Law Review

My essay seeks to examine the internal architecture of the discursive barrier - the wall - that the Supreme Court has built within the doctrinal framework of Title VII and concomitantly within the discourse of equality. To understand how the Court has erected this discursive wall, we must begin with history. Equality, while historically a vehicle for national identity and contemporaneously for modernist conceptions of justice, is synchronically and diachronically indeterminate. Equality is a deeply sedimented concept with not one objective meaning but successive levels of meaning built up over time. Each of those historic understandings is itself a unity …