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Articles 841 - 870 of 11192
Full-Text Articles in Law
Linking International Markets And Global Justice, Jeffrey L. Dunoff
Linking International Markets And Global Justice, Jeffrey L. Dunoff
Michigan Law Review
The U.S. government is the planet's largest purchaser of goods and services; worldwide, states spend trillions of dollars on procurement each year. Yet legal scholarship has devoted relatively limited attention to the conceptual and normative issues that arise when states enter the market. Should states as purchasers be permitted to "discriminate" to advance social objectives - say, racial justice - in ways that would be unlawful when they act as regulators? Is each country free to strike its own balance between the pursuit of economic and social objectives through procurement, or do international trade norms limit state discretion in the …
Supreme Neglect Of Text And History, William Michael Treanor
Supreme Neglect Of Text And History, William Michael Treanor
Michigan Law Review
Since his classic book Takings appeared in 1985, Richard Epstein's ideas have profoundly shaped debate about the Fifth Amendment's Takings Clause to a degree that no other scholar can even begin to approach. His broad, original, and stunningly ambitious reading of the clause has powerfully influenced thinking in academia, in the judiciary, and in the political arena. The firestorm of controvery that followed the Supreme Court's recent decision in Kelo - in which the Supreme Court upheld the constitutionality of a municipal urban renewal plan that displaced long-time homeowners and conveyed their land to developers - is in critical part …
The Supreme Court's Controversial Gvrs - And An Alternative, Aaron-Andrew P. Bruhl
The Supreme Court's Controversial Gvrs - And An Alternative, Aaron-Andrew P. Bruhl
Michigan Law Review
This Article addresses a relatively neglected portion of the Supreme Court's docket: the "GVR"-that is, the Court's procedure for summarily granting certiorari, vacating the decision below without finding error, and remanding the case for further consideration by the lower court. The purpose of the GVR device is to give the lower court the initial opportunity to consider the possible impact of a new development (such as a recently issued Supreme Court decision) and, if necessary, to revise its ruling in light of the changed circumstances. The Court may issue scores or even hundreds of these orders every year. This Article …
Property And Relative Status, Nestor M. Davidson
Property And Relative Status, Nestor M. Davidson
Michigan Law Review
Property does many things-it incentivizes productive activity, facilitates exchange, forms an integral part of individual identity, and shapes communities. But property does something equally fundamental: it communicates. And perhaps the most ubiquitous and important messages that property communicates have to do with relative status, with the material world defining and reinforcing a variety of economic, social, and cultural hierarchies. This status-signalingf unction of property-withp roperty serving as an important locus for symbolic meaning through which people compare themselves to others-complicates premises underlying central discourses in contemporary property theory. In particular, status signaling can skew property's incentive and allocative benefits, leading …
Agency, Code, Or Contract: Determining Employees' Authorization Under The Computer Fraud And Abuse Act, Katherine Mesenbring Field
Agency, Code, Or Contract: Determining Employees' Authorization Under The Computer Fraud And Abuse Act, Katherine Mesenbring Field
Michigan Law Review
The federal Computer Fraud and Abuse Act ("CFAA ") provides for civil remedies against individuals who have accessed a protected computer without authorization or in excess of their authorization. With increasing numbers of employees using computers at work, employers have turned to the CFAA in situations where disloyal employees have pilfered company information from the employer's computer system. The vague language of the CFAA, however, has led courts to develop three different interpretations of "authorization" in these CFAA employment cases, with the result that factually similar cases in different courts can generate opposite outcomes in terms of employee liability under …
"Airbrushed Out Of The Constitutional Canon": The Evolving Understanding Of Giles V. Harris, 1903-1925, Samuel Brenner
"Airbrushed Out Of The Constitutional Canon": The Evolving Understanding Of Giles V. Harris, 1903-1925, Samuel Brenner
Michigan Law Review
Richard H. Pildes argued in an influential 2000 article that the U.S. Supreme Court's opinion in Giles v. Harris, which was written by Justice Oliver Wendell Holmes, was the "one decisive turning point" in the history of "American (anti)-democracy." In Giles, Holmes rejected on questionable grounds Jackson W. Giles's challenge to the new Alabama Constitution of 1901-a document which was designed to disfranchise and had the effect of disfranchising African Americans. The decision thus contributed significantly to the development of the all-white electorate in the South, and the concomitant marginalization of southern African Americans. According to Pildes, however, the …
Irrelevant Oversight: "Presidential Administration" From The Standpoint Of Arbitrary And Capricious Review, Daniel P. Rathbun
Irrelevant Oversight: "Presidential Administration" From The Standpoint Of Arbitrary And Capricious Review, Daniel P. Rathbun
Michigan Law Review
The president is now regularly and heavily involved in the decisionmaking processes of administrative agencies. What began in the mid-twentieth century as macro-level oversight has evolved, since the Reagan Administration, into controlling case-level influence. Scholars have hotly debated the legality of this shift and have compellingly demonstrated the need to ensure that agencies remain accountable and that their decisions remain nonarbitrary in the face of presidential involvement. However, as this Note demonstrates, the existing scholarship has not provided an adequate solution to these twin problems. This Note provides a novel and effective solution to the accountability and arbitrariness problems of …
Causation Or Correlation? The Impact Of Lulac V. Clements On Section 2 Lawsuits In The Fifth Circuit, Elizabeth M. Ryan
Causation Or Correlation? The Impact Of Lulac V. Clements On Section 2 Lawsuits In The Fifth Circuit, Elizabeth M. Ryan
Michigan Law Review
Under section 2 of the Voting Rights Act, illegal vote dilution exists when an electoral standard, practice, or procedure results in a denial or abridgement of the right to vote on account of race or color Plaintiffs demonstrate vote dilution by introducing evidence regarding a variety of objective factors, including whether voting in the jurisdiction in question is polarized along racial lines. In 1993, the Fifth Circuit adopted a new standard for section 2 plaintiffs trying to prove racially polarized voting. The Fifth Circuit held that demonstrating a mere correlation between race and vote was insufficient to establish racially polarized …
Evaluating Punishment In Purgatory: The Need To Separate Pretrial Detainees' Conditions-Of-Confinement Claims From Inadequate Eighth Amendment Analysis, David C. Gorlin
Evaluating Punishment In Purgatory: The Need To Separate Pretrial Detainees' Conditions-Of-Confinement Claims From Inadequate Eighth Amendment Analysis, David C. Gorlin
Michigan Law Review
The Due Process Clause prohibits all "punishment" of pretrial detainees- individuals that are held by the Government, but not adjudged guilty of any crime. The Eighth Amendment only prohibits the infliction of "cruel and unusual punishments" upon convicted individuals. Despite the Supreme Court's insistence that the Due Process Clause, and not the Eighth Amendment, protects pretrial detainees from deplorable and harmful conditions of confinement, most federal circuits now assess pretrial detainees' claims under Eighth Amendment standards. Under the Eighth Amendment framework, pretrial detainees must establish that conditions subjected them to a substantial risk of serious harm, and that jailers were …
The Case For The Third-Party Doctrine, Orin S. Kerr
The Case For The Third-Party Doctrine, Orin S. Kerr
Michigan Law Review
This Article offers a defense of the Fourth Amendment's third party doctrine, the controversial rule that information loses Fourth Amendment protection when it is knowingly revealed to a third party. Fourth Amendment scholars have repeatedly attacked the rule on the ground that it is unpersuasive on its face and gives the government too much power This Article responds that critics have overlooked the benefits of the rule and have overstated its weaknesses. The third-party doctrine serves two critical functions. First, the doctrine ensures the technological neutrality of the Fourth Amendment. It corrects for the substitution effect of third parties that …
The Success Of Chapter 11: A Challenge To The Critics, Elizabeth Warren, Jay Lawrence Westbrook
The Success Of Chapter 11: A Challenge To The Critics, Elizabeth Warren, Jay Lawrence Westbrook
Michigan Law Review
Although Chapter 11 has served as a model for bankruptcy reform around the world, the conventional wisdom has been that it is characterized by a relatively low success rate and endless delay. The data from large samples of Chapter 11 cases filed in 1994 and 2002 demonstrate that this characterization is wrong. Nearly all troubled companies choose Chapter 11 over Chapter 7 liquidation, which means that the system serves a critical screening function to eliminate hopeless cases relatively quickly. Almost half the unsuccessful cases were jettisoned within six months and almost eighty percent were gone within a year The cases …
The Family Law Doctrine Of Equivalence, Amy L. Wax
The Family Law Doctrine Of Equivalence, Amy L. Wax
Michigan Law Review
Students of patent law learn the doctrine of equivalents. According to the doctrine, a patent protects an invention that does "the same work in substantially the same way, and accomplish[ es] substantially the same result," as the device described in the patent, even if it differs "'in name, form, or shape." In her new book, Nancy Polikoff has fashioned something like a parallel doctrine for families. Let's call it (with a slight play on words) the family law Doctrine of Equivalence. In today's world, according to Polikoff, a broad set of relationships now plays the same role as marriage and …
Against Practice, Anthony V. Alfieri
Against Practice, Anthony V. Alfieri
Michigan Law Review
This Review examines the theory/practice dichotomy in legal education through the prism of the Carnegie Foundation's Educating Lawyers: Preparation for the Profession of Law. Descriptively, it argues that the Foundation's investigation of law school curricular deficiencies in the areas of clinical-lawyer skills, professionalism, and public service overlooks the relevance of critical pedagogies in teaching students how to deal with difference-based identity and how to build cross-cultural community in diverse, multicultural practice settings differentiated by mutable and immutable characteristics such as class, gender, and race. Prescriptively, it argues that the Foundation's remedial call for the curricular integration of clinical lawyer …
Can Courts Repair The Crumbling Foundation Of Good Citizenship? An Examination Of Potential Legal Challenges To Social Studies Cutbacks In Public Schools, Eli Savit
Michigan Law Review
In the wake of No Child Left Behind, many public schools have cut or eliminated social studies instruction to allot more time for math and literacy. Given courts' repeated celebration of education as the "foundation of good citizenship," this Note examines potential legal claims and litigation strategies that could be used to compel social studies instruction in public schools. This Note contends that the federal judiciary's civic conception of education leaves the door slightly ajar for a Fourteenth Amendment chrallenge on behalf of social studies-deprived students, but the Supreme Court's refusal in San Antonio v. Rodriguez to recognize education as …
The Many Faces Of Fault In Contract Law: Or How To Do Economics Right, Without Really Trying, Richard A. Epstein
The Many Faces Of Fault In Contract Law: Or How To Do Economics Right, Without Really Trying, Richard A. Epstein
Michigan Law Review
Modern law often rests on the assumption that a uniform cost-benefit formula is the proper way to determine fault in ordinary contract disputes. This Article disputes that vision by defending the view that different standards of fault are appropriate in different contexts. The central distinction is one that holds parties in gratuitous transactions only to the standard of care that they bring to their own affairs, while insisting on the higher objective standard of ordinary care in commercial transactions. That bifurcation leads to efficient searches. Persons who hold themselves out in particular lines of business in effect warrant their ability …
When Is A Willful Breach "Willful"? The Link Between Definitions And Damages, Richard Craswell
When Is A Willful Breach "Willful"? The Link Between Definitions And Damages, Richard Craswell
Michigan Law Review
The existing literature on willful breach has not been able to define what should count as "willful." I argue here that any definition we adopt has implications for just how high damages should be raised in those cases where a breach qualifies as willful. As a result, both of these issues-the definition of "willful," and the measure of damages for willful breach-need to be considered simultaneously. Specifically, if a definition of "willful" excludes all breachers who behaved efficiently, then in theory we can raise the penalty on the remaining inefficient breachers to any arbitrarily high level ("throw the book at …
Uncertainty Revisited: Legal Prediction And Legal Postdiction, Ehud Guttel, Alon Harel
Uncertainty Revisited: Legal Prediction And Legal Postdiction, Ehud Guttel, Alon Harel
Michigan Law Review
Legal scholarship, following rational-choice theory, has traditionally treated uncertainty as a single category. A large body of experimental studies, however, has established that individuals treat guesses concerning the future differently than guesses concerning the past. Even where objective probabilities and payoffs are identical, individuals are much more willing to predict a future event (and are more confident in the accuracy of their predictions) than they are willing to postdict a past event (and are also less confident in the accuracy of their postdiction). For example, individuals are more willing to bet on the results of a future die toss than …
The Myth And The Reality Of American Constitutional Exceptionalism, Stephen Gardbaum
The Myth And The Reality Of American Constitutional Exceptionalism, Stephen Gardbaum
Michigan Law Review
This Article critically evaluates the widely held view inside and outside the United States that American constitutional rights jurisprudence is exceptional. There are two dimensions to this perceived American exceptionalism: the content and the structure of constitutional rights. On content, the claim focuses mainly on the age, brevity, and terseness of the text and on the unusually high value attributed to free speech. On structure, the claim is primarily threefold. First, the United States has a more categorical conception of constitutional rights than other countries. Second, the United States has an exceptionally sharp public/private division in the scope of constitutional …
A Narrow Path To Diversity: The Constitutionality Of Rezoning Plans And Strategic Site Selection Of Schools After Parents Involved, Steven T. Collis
A Narrow Path To Diversity: The Constitutionality Of Rezoning Plans And Strategic Site Selection Of Schools After Parents Involved, Steven T. Collis
Michigan Law Review
Justice Kennedy's concurrence in Parents Involved in Community Schools v. Seattle School District Number 1 raised an important and timely constitutional issue: whether the Constitution permits K-12 public school districts not under existing desegregation orders to use site selection of new schools or rezoning plans to achieve racial diversity. Numerous scholars and journalists have interpreted Justice Kennedy's concurrence as explicitly answering the question in the affirmative. This Note argues that the opposite is true. Justice Kennedy's past jurisprudence, as well as his language in Parents Involved, favors the use of strict scrutiny. Indeed, in Parents Involved, Justice Kennedy …
Nothing Improper? Examining Constitutional Limits, Congressional Action, Partisan Motivation, And Pretextual Justification In The U. S. Attorney Removals, David C. Weiss
Michigan Law Review
The forced mid-term resignations of nine U.S. Attorneys was an unprecedented event in American history. Nearly one year after the administration executed the removals, the House Judiciary Committee was still reviewing and publicizing emails, memoranda, and other documents in an effort to understand how the firings were effectuated. This Note examines many of those documents and concludes that the removals were likely carried out for partisan reasons. It then draws on the Constitution, Supreme Court precedent, and separation of powers principles to argue that Congress is constitutionally empowered to enact removal limitations for inferior officers such as U.S. Attorneys so …
Torts And Innovation, Gideon Parchomovsky, Alex Stein
Torts And Innovation, Gideon Parchomovsky, Alex Stein
Michigan Law Review
This Essay exposes and analyzes a hitherto overlooked cost of tort law: its adverse effect on innovation. Tort liability for negligence, defective products, and medical malpractice is determined by reference to custom. We demonstrate that courts' reliance on custom and conventional technologies as the benchmark of liability chills innovation and distorts its path. Specifically, recourse to custom taxes innovators and subsidizes replicators of conventional technologies. We explore the causes and consequences of this phenomenon and propose two possible ways to modify tort law in order to make it more welcoming to innovation.
Are Artificial Tans The New Cigarette? How Plaintiffs Can Use The Lessons Of Tobacco Litigation In Bringing Claims Against The Indoor Tanning Industry, Andrea Y. Loh
Michigan Law Review
Indoor tanning salons have grown significantly in popularity during recent years. Scientific research has revealed a strong link between skin cancer and ultraviolet light exposure from indoor tanning lamps. Despite such dangers, federal regulations place minimal restrictions on the labeling of indoor tanning lamps. Indoor tanning salons work vigorously to dispel notions of a link to skin cancer, often falsely promoting various health benefits of indoor tanning. The first lawsuit for injuries resulting from indoor tanning was recently filed against an indoor tanning salon, and other such litigation is poised to follow. This Note examines three potential tort claims against …