Law Commons^™

Virginia Should Abolish The Archaic Tort Defense Of Contributory Negligence And Adopt A Comparative Negligence Defense In Its Place, Peter Nash Swisher

University of Richmond Law Review

No abstract provided.

The Framers' Intent: John Adams, His Era, And The Fourth Amendment, Thomas K. Clancy

Indiana Law Journal

No abstract provided.

Transplant Candidates And Substance Use: Adopting Rational Health Policy For Resource Allocation, Erin Minelli, Bryan A. Liang

University of Michigan Journal of Law Reform

Organ transplant candidates are often denied life saving organs on account of their medical marijuana drug use. Individuals who smoke medicinal marijuana are typically classified as substance abusers, and ultimately deemed ineligible for transplantation, despite their receipt of the drug under a physician's supervision and prescription. However, patients who smoke cigarettes or engage in excessive alcohol consumption are routinely considered for placement on the national organ transplant waiting list. Transplant facilities have the freedom to regulate patient selection criteria with minimal oversight. As a result, the current organ allocation system in the United States is rife with inconsistencies and results …

Adverse Possession, Private-Zoning Waiver & Desuetude: Abandonment & Recapture Of Property And Liberty Interests, Scott Andrew Shepard

University of Michigan Journal of Law Reform

Adverse-possession doctrine labors under a pair of disabilities: a hesitancy by theorists to embrace the abandonment-and-recapture principle that informs the doctrine, and a substantial unwillingness of governments to abandon an antiquated and outmoded maxim shielding them from the doctrine's important work. Removing these disabilities will allow a series of positive outcomes. First, it will demonstrate that all would-be adverse possessors, not just those acting "in good faith" or with possessory intent, should enjoy the fruits of the doctrine. Second, it will provide valuable additional means by which the public may monitor the performance of government employees, and additional discipline to …

Assessing The State Of The State Constitutionalism, Jim Rossi

Michigan Law Review

Robert Williams's The Law of American State Constitutions is an impressive career accomplishment for one of the leading academic lawyers writing on state constitutions. Given the need for a comprehensive, treatise-like treatment of state constitutions that transcends individual jurisdictions, Williams's book will almost certainly become the go-to treatise for the next generation of state constitutional law practitioners and scholars. The U.S. Constitution has a grip on how the American legal mind approaches issues in American constitutionalism, but an important recurring theme in Williams's work (as well as that of others) is how state constitutions present unique interpretive challenges. More than …

Framing The Fourth, Tracey Maclin, Julia Mirabella

Michigan Law Review

Our knowledge of the Fourth Amendment's history was fundamentally transformed when William Cuddihy completed his Ph.D. dissertation in 1990. Cuddihy's study was the most comprehensive and detailed examination of the history of search and seizure law and essential reading for anyone interested in the amendment's history. At first, Cuddihy's work was little known: only a few people noticed when the highly regarded constitutional historian Leonard W. Levy stated that "Cuddihy is the best authority on the origins of the Fourth Amendment." Cuddihy finished his dissertation in 1990 and it remained unedited, unpublished, and largely unknown for several years-until Justice O'Connor …

The Real Formalists, The Real Realists, And What They Tell Us About Judicial Decision And Legal Education, Edward Rubin

Michigan Law Review

The periodization of history, like chocolate cake, can have some bad effects on us, but it is hard to resist. We realize, of course, that Julius Caesar didn’t think of himself as “Classical” and Richard the Lionhearted didn’t regard the time in which he lived as the Middle Ages. Placing historical figures in subsequently defined periods separates us from them and impairs our ability to understand them on their own terms. But it is difficult to understand anything about them at all if we try to envision history as continuous and undifferentiated. We need periodization to organize events that are …

But How Will The People Know? Public Opinion As A Meager Influence In Shaping Contemporary Supreme Court Decision Making, Tom Goldstein, Amy Howe

Michigan Law Review

Chief Justice John Roberts famously described the ideal Supreme Court Justice as analogous to a baseball umpire, who simply "applies" the rules, rather than making them. Roberts promised to "remember that it's my job to call balls and strikes and not to pitch or bat." At her own recent confirmation hearings, Elena Kagan demurred, opining that Roberts's metaphor might erroneously suggest that "everything is clear-cut, and that there's no judgment in the process." Based on his 2009 book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, Barry Friedman …

Administrative Law In The 1930s: The Supreme Court’S Accommodation Of Progressive Legal Theory, Mark Tushnet

Duke Law Journal

In the first decades of the twentieth century, Progressive politicians and legal theorists advocated the creation and then the expansion of administrative agencies. These agencies, they argued, could address rapidly changing social circumstances more expeditiously than could courts and legislatures, and could deploy scientific expertise, rather than mere political preference, in solving the problems social change produced. The proliferation of administrative agencies in the New Deal-the SEC, the NLRB, and others-meant that defending administrative agencies from close judicial oversight became intertwined with defending the New Deal itself In a series of contentious cases decided by the Hughes Court, Progressives believed …

The Texas Wind Estate: Wind As A Natural Resource And A Severable Property Interest, Alan J. Alexander

University of Michigan Journal of Law Reform

In 2011, Texas is again at the forefront of an energy boom: the wind energy boom. In 2006, Texas surpassed California and became the US. state with the most installed capacity to produce wind energy, and Texas' level of installed capacity has continued to grow. But the law has not kept pace with this growth. Similar to the initial growth of the oil and gas industry in Texas, the wind energy industry was also born, and continues to grow, in the absence of clear legal and regulatory standards. Lack of regulation in the early development of the oil industry contributed …

Information Anxieties, G. S. Hans

Michigan Telecommunications & Technology Law Review

The constant access and instant publication that the Internet allows have given every pundit an online soapbox. This content explosion has created two related problems for consumers and industry: how to find valuable content online (whatever "valuable" means) and how to moderate the flow of the content itself. Tim Wu argues in The Master Switch that the second issue of content control and mediation has been fiercely debated in the United States as far back as the invention of the telephone in the late nineteenth century. Consumers, creators, companies, and government officials have disputed the appropriate regulations for the devices …

General Corporation Laws: History And Economics , David Mcbride

Law and Contemporary Problems

No abstract provided.

Removing Categorical Constraints On Equal Employment Opportunities And Anti-Discrimination Protections, Anastasia Niedrich

Michigan Journal of Gender & Law

It has been the "historical tendency of anti-discrimination law to use categories to define protected classes of people." This Article challenges the categorical approach and seeks to change that limited framework. This Article focuses on the flaws with Title VII's categorical approach and discusses why there is a desperate need for change to combat the different types and targets of workplace discrimination today, focusing on the transgender community as one example. After discussing the current framework and operation of Title VII, this Article analyzes the insurmountable flaws inherent in the categorical approach to anti-discrimination law, and specifically considers Title VII's …

Murder And Martial Justice: Spying And Retribution In Wwii America. By Meredith Lentz Adams (Kent, Ohio: The Kent State University Press, 2011), Millard E. Moon Ed.D.

Journal of Strategic Security

No abstract provided.

The Rise And Demise Of The Collective Right Interpretation Of The Second Amendment, David T. Hardy

Cleveland State Law Review

This article explores the origins of the two competing theories of the Second Amendment -- the "individual rights" approach which carried the majority in Heller and McDonald, and the variants of a "collective right" theory which was previously dominant in the lower courts, and one variant of which was endorsed by the Heller dissents. Careful analysis of states' bills of rights of the Framing period suggests that two guarantees were desired, by different political factions. Framers closely adhering to the Classical Republican point of view favored protection for the militia as a system; those favoring the emerging Jeffersonian point of …

Donald W. Jackson On Prisoners Of America’S Wars: From The Early Republic To Guantanamo. By Stephanie Carvin. New York: Columbia University Press, 2010. 336pp., Donald W. Jackson

Human Rights & Human Welfare

A review of:

Prisoners of America’s Wars: From the Early Republic to Guantanamo. By Stephanie Carvin. New York: Columbia University Press, 2010. 336pp.

On Corporate Codification: A Historical Peek At The Model Business Corporation Act And The American Law Institute Principles Through The Delaware Lens, E. Norman Veasey

Law and Contemporary Problems

No abstract provided.

Falling Through The Crack: How Courts Have Struggled To Apply The Crack Amendment To Nominal Career And Plea Bargain Defendants, Maxwell Arlie Halpern Kosman

Michigan Law Review

Under the Federal Rules of Criminal Procedure, a defendant is normally obligated to attend all of the proceedings against her. However Rule 43(b)(2) carves out an exception for organizational defendants, stating that they "need not be present" if represented by an attorney. But on its face, the language of 43(b)(2) is ambiguous: is it the defendant or the judge who has the discretion to decide whether the defendant appears? That is, may a judge compel the presence of an organizational defendant? This Note addresses the ambiguity in the context of the plea colloquy, considering the text of several of the …