Law Commons^™

Lawyers, Scholars, And The "Middle Ground", Robert W. Gordon

Michigan Law Review

The Judge seems to be arguing that both teachers and firm lawyers have been seduced from their real vocation by the fatal attraction of neighboring cultures: the practitioners by the commercial culture of their business clients, the academics by the disciplinary paradigms and prestige of theory in the rest of the university. The "deserted middle ground" is the ground of professional practice - practical, yet also public-minded. Perhaps without straining his thesis too far we could ascribe to Judge Edwards a "republican" view of the legal profession, in which legal scholars, practitioners, judges, legislators, and administrators - despite their separate …

The Disjunction Between Judge Edwards And Professor Priest, Louis H. Pollak

Michigan Law Review

With characteristic vigor, Judge Harry Edwards, in his essay The Growing Disjunction Between Legal Education and the Legal Profession, has censured the law schools and, secondarily, the bar, for what he sees as profoundly disturbing trends pulling academics and practitioners farther and farther apart. Judge Edwards' censure is not proffered off the cuff. He has carefully polled his former law clerks on their perceptions of their law school years and of their postclerkship professional experiences - whether in private practice, in government, or in teaching. In the text and footnotes of his essay, Judge Edwards quotes his law clerks' …

Pro Bono Legal Work: For The Good Of Not Only The Public, But Also The Lawyer And The Legal Profession, Nadine Strossen

Michigan Law Review

I agree with Judge Edwards that "the lawyer has an ethical obligation to practice public interest law - to represent some poor clients; to advance some causes that he or she believes to be just." I also concur in Judge Edwards' opinion that "[a] person who deploys his or her doctrinal skill without concern for the public interest is merely a good legal technician - not a good lawyer."

Rather than further develop Judge Edwards' theme that lawyers have a professional responsibility to do pro bono work, I will offer another rationale for such work, grounded in professional and individual …

The Mind In The Major American Law School, Lee C. Bollinger

Michigan Law Review

Legal scholarship is significantly, even qualitatively, different from what it was some two or three decades ago. As with any major change in intellectual thought, this one is composed of several strands. The inclusion in the legal academic community of women and minorities has produced, not surprisingly, a distinctive and at times quite critical body of thought and writing. The emergence of the school of thought known as critical legal studies has renewed and extended the legal realist critique of law of the first half of the century. But more than anything else it is the interdisciplinary movement in legal …

Continuing Criminal Enterprise, Conspiracy, And The Multiple Punishment Doctrine, Kenneth G. Schuler

Michigan Law Review

This Note argues that the Multiple Punishment Doctrine prohibits the imposition of concurrent convictions and sentences upon criminal defendants found guilty of engaging in a CCE and conspiring to violate narcotics laws. Part I surveys the values underlying the Multiple Punishment Doctrine and traces the evolution of the Supreme Court's application of the doctrine to modern criminal law. Part II examines the various methods employed by the circuit courts of appeals to deal with simultaneous convictions and sentences for CCE and conspiracy. Part III reviews the test, identified in Part I, that the Supreme Court has implicitly utilized to analyze …

Fraudulent Concealment, Self-Concealing Conspiracies, And The Clayton Act, Richard F. Schwed

Michigan Law Review

This Note argues that courts should apply a self-concealment standard to section 4B of the Clayton Act rather than require a showing of additional affirmative acts. Part I examines the history of the fraudulent concealment doctrine and its application to antitrust cases. It identifies three different standards used by courts to satisfy the concealment element and finds that courts apply the doctrine inconsistently. Part II analyzes the relationship between the fraudulent concealment doctrine and the self-concealment standard in antitrust cases by examining the judicial development of the doctrine and Congress' intent in enacting section 4B. Part II concludes that the …

The Fantastic Wisconsylvania Zero-Bureaucratic-Cost School Of Bankruptcy Theory: A Comment, James W. Bowers

Michigan Law Review

In two recently published articles, Wisconsin Law Professor Lynn LoPucki and Pennsylvania Law Professor Elizabeth Warren, nearly simultaneously, fired the latest shots in one of academia's hottest ongoing debates: whether any good reason for having bankruptcy law exists. Justice Holmes once opined that the future belonged to the lawyer skilled in statistics and economics. LoPucki and Warren apparently agree about statistics but argue that, in a world with positive transaction costs, economic theory has little to contribute to our understanding about the justifications for bankruptcy law.

I write to highlight what one might easily overlook in LoPucki's and Warren's pieces. …

Of Citizen Suits And Citizen Sunstein, Harold J. Krent, Ethan G. Shenkman

Michigan Law Review

After briefly summarizing Lujan and addressing Sunstein's critique, we explore the concept of accountability underlying the creation of a single executive in Article II. We then apply our theory of the unitary executive to several examples of broad grants of statutory standing, concluding that Congress can confer standing on private citizens only if it specifically articulates and individuates the interests whose violation gives rise to a cognizable case. Although we agree with Sunstein's view that broad grants of statutory standing do not necessarily trench upon constitutional values, we ultimately side with Justice Scalia in concluding that universal citizen standing, as …

The Ethics Of Criminal Defense, William H. Simon

Michigan Law Review

A large literature has emerged in recent years challenging the standard conception of adversary advocacy that justifies the lawyer in doing anything arguably legal to advance the client's ends. This literature has proposed variations on an ethic that would increase the lawyer's responsibilities to third parties, the public, and substantive ideals of legal merit and justice.

With striking consistency, this literature exempts criminal defense from its critique and concedes that the standard adversary ethic may be viable there. This paper criticizes that concession. I argue that the reasons most commonly given to distinguish the criminal from the civil do not …

Legitimating Death, Louis D. Bilionis

Michigan Law Review

This article arrives at the surprising conclusion that a meaningful Eighth Amendment death penalty jurisprudence lives on, that it is a quite intelligible jurisprudence, and that it is driven by a coherent methodology with firm roots in the traditions of constitutional adjudication.

To reach that conclusion, it is helpful first to have some sense of what the Supreme Court has been doing in the death penalty area lately. Part I thus presents a topical review of the Court's recent work, identifying the themes that now dominate, pointing out the concerns those themes raise, and asking whether any sense can be …

Are Criminal Defenders Different?, David Luban

Michigan Law Review

No one has done more to expose the jurisprudential incoherence of this view of legal practice than William Simon. In his 1978 article, The Ideology of Advocacy, Simon demonstrated a series of internal contradictions in the most promising attempts to justify the ideology of advocacy. Subsequently, in Ethical Discretion in Lawyering, Simon elaborated an alternative view according to which lawyers must exercise independent judgment in both their choice of clients and their choice of means in pursuing client ends.

In Simon's view, those who carve out the criminal defense exception have been taken in by what he calls …

Reply: Further Reflections On Libertarian Criminal Defense, William H. Simon

Michigan Law Review

Since David Luban's is the work on legal ethics that I admire and agree with most, there is an element of perversity in my vehement critique of his arguments on criminal defense. I am therefore especially thankful for his gracious and thoughtful response. Nevertheless, I remain convinced that Luban is mistaken in excepting criminal defense from much of the responsibility to substantive justice that we both think appropriate in every other sphere of lawyering.

Understanding Mixed Motives Claims Under The Civil Rights Act Of 1991: An Analysis Of Intentional Discrimination Claims Based On Sex-Stereotyped Interview Questions, Heather K. Gerken

Michigan Law Review

This Note analyzes the Civil Rights Act of 1991 and relevant case law to determine whether posing sex-stereotyped interview questions is actionable conduct under Title VII. It questions whether proof of discrimination during a phase in the hiring process, specifically during the interview stage, supports a Title VII claim without other independent evidence that the hiring decision was discriminatory. Part I explains that the circuit courts have envisioned the impact of discrimination during the hiring process differently and, as a result, are divided in determining whether sex-stereotyped interview questions are actionable under Title VII. Part II examines the legislative history …

Whose Genes Are These Anyway?: Familial Conflicts Over Access To Genetic Information, Sonia M. Suter

Michigan Law Review

This Note argues first that courts and legislatures should follow a presumption against mandating disclosure of a person's genetic information to third parties. Second, genetic testing for the benefit of a third party should not, and constitutionally cannot, be compelled. Part I presents an overview of genetics and discusses the special legal and ethical issues genetic testing poses. Part II examines the issue of nonconsensual disclosure to family members, who could potentially use the information from tests that have already been performed. This Part concludes that there should be a presumption against disclosure. Part III examines a related, but different, …

A Morality Fit For Humans, Joseph Raz

Michigan Law Review

A Review of Human Morality by Samuel Scheffler

Civil Liberties And Civil War: The Great Emancipator As Civil Libertarian, Paul Finkelman

Michigan Law Review

A Review of The Fate of Liberty: Abraham Lincoln and Civil Liberties by Mark E. Neely, Jr.

Girls Lean Back Everywhere: The Law Of Obscenity And The Assault On Genius, Anne E. Gilson

Michigan Law Review

A Review of Girls Lean Back Everywhere: The Law of Obscenity and the Assault on Genius by Edward de Grazia

The Care And Feeding Of The United States Constitution, Abner J. Mikva

Michigan Law Review

A Review of The Intelligible Constitution by Joseph Goldstein

Guess Who's Not Coming To Dinner!!, Stephen Reinhardt

Michigan Law Review

A Review of Faces at the Bottom of the Well: The Permanence of Racism by Derrick Bell and Two Nations: Black and White, Separate, Hostile, Unequal by Andrew Hacker

Repossession: Of History, Poverty, And Dissent, Martha Minow

Michigan Law Review

A Review of The Dispossessed: America's Underclasses from the Civil War to the Present by Jacqueline Jones

If The Eye Offend Thee, Turn Off The Color, John Harrison

Michigan Law Review

A Review of The Color-Blind Constitution by Andrew Kull

"Take This Job And Shove It": The Rise Of Free Labor, Jonathan A. Bush

Michigan Law Review

A Review of The Invention of Free Labor: The Employment Relation in English and American Law and Culture, 1350-1870 by Robert J. Steinfeld

Getting The Word, David Luban

Michigan Law Review

A Review of The Word and the Law by Milner S. Ball

Taking Fact Analysis Seriously, Bernard Robertson, G. A. Vignaux

Michigan Law Review

A Review of Analysis of Evidence: How To Do Things with Facts Based on Wigmore's Science of Judicial Proof by Terence Anderson and William Twining

A Question Of Choice, Michele A. Estrin

Michigan Law Review

A Review of A Question of Choice by Sarah Weddington

Intellectual History, Probability, And The Law Of Evidence, Peter Tillers

Michigan Law Review

A Review of "Beyond Reasonable Doubt" ad "Probable Cause": Historical Perspectives on the Anglo-American Law of Evidence by Barbara J. Shapiro

Incompletely Reasoned Sex: A Review Of Posner's Somewhat Misleading Guide To The Economic Analysis Of Sex And Family Law, Martin Zelder

Michigan Law Review

A Review of Sex and Reason by Richard A. Posner

A Tale Of Two Rivers, Carol M. Rose

Michigan Law Review

A Review of The Green Cathedral: Sustainable Development of Amazonia by Juan de Onis and Nature Incorporated: Industrialization and the Waters of New England by Theodore Steinberg

Hydraulic Empire, Joseph L. Sax

Michigan Law Review

A Review of The Great Thirst: Californians and Water, 1170s-1990s by Norris Hundley, Jr.

Constitutional Judgment, Gene R. Nichol

Michigan Law Review

A Review of Constitutional Interpretation by Philip Bobbitt