Law Commons^™

Claims Of Dual Nationals In The Modern Era: The Iran-United States Claims Tribunal, Michigan Law Review

Michigan Law Review

This Note will discuss the considerations, implicit in the Tribunal's opinion, that support substituting the doctrine of dominant and effective nationality for the rule of state nonresponsibility in cases involving claims of dual nationals. Part I of this Note briefly examines the traditional framework of diplomatic protection and demonstrates that the policies supporting the doctrine of state nonresponsibility are anachronistic and that strict adherence to them leads to inequitable results. Part II argues that the doctrine of dominant and effective nationality is the preferred standard for determining the status of dual national claims. At the core of this doctrine is …

Administrative Regulation Of The High School Press, Michigan Law Review

Michigan Law Review

This Note examines the constitutional limits on administrative regulation of publications by and for public high school students. Part I discusses the widely divergent standards adopted by different circuits. Part II describes the hard line the Supreme Court has taken against restraints on free expression in the adult context and the different circumstances that justify limiting freedom of expression in high schools. Part III discusses the timing of administrative regulation of student speech. This Part argues that prior restraint is constitutionally acceptable and, in fact, preferable to subsequent punishment so long as its use is governed by proper criteria. Part …

The Rico Nexus Requirement: A "Flexible" Linkage, Michigan Law Review

Michigan Law Review

This Note argues that the RICO "nexus" requirement can be interpreted to limit effectively this overbroad use of RICO without emasculating the statute. The "nexus requirement" is generally described as defining the word "through" in section 1962(c), the provision of RICO that makes it illegal to "conduct or participate, directly or indirectly, in the conduct of [an] enterprise's affairs through a pattern of racketeering activity." This language establishes the necessity of proving a relationship between the enterprise and the racketeering. Once evidence of the alleged enterprise and the predicate racketeering acts has been submitted, the final element of proof must …

The Self-Critical Analysis Privilege And Discovery Of Affirmative Action Plans In Title Vii Suits, Michigan Law Review

Michigan Law Review

This Note argues that plaintiffs should have access to affirmative action plans in discovery. Part I describes the "self-critical analysis" or "self-evaluative" privilege that employers have advanced to block discovery of such plans. Part II examines the conflicting interests of society, employers and employees in allowing or denying discovery. Part III evaluates the application of a self-critical analysis privilege in light of these conflicting interests and concludes that the privilege should not be applied to affirmative action plans.

Backing Off Bivens And The Ramifications Of This Retreat For The Vindication Of First Amendment Rights, Joan Steinman

Michigan Law Review

In Part I of this Article, Chappell and Bush are analyzed against the backdrop of the preceding Bivens cases. The analysis explains how these cases presented situations that were similar to one another but unlike any the Supreme Court previously had faced in Bivens cases. It demonstrates how the Court departed from the line of analysis that its previous Bivens cases had established, in a way that makes it more difficult for at least some plaintiffs seeking vindication of their constitutional rights to succeed in having a money damage remedy implied directly under the Constitution. The Article then argues that …

The Efficiency Of Specific Performance: Toward A Unified Theory Of Contract Remedies, Thomas S. Ulen

Michigan Law Review

The purpose of this essay is to begin the development of an integrated theory of contract remedies by delineating the circumstances under which courts should simply enforce a stipulated remedy clause or grant relief to the innocent party in the form of damages or specific performance. The conclusion, in brief, is that in the absence of stipulated remedies in the contract that survive scrutiny on the usual formation defenses, specific performance is more likely than any form of money damages to achieve efficiency in the exchange and breach of reciprocal promises. If specific performance is the routine remedy for breach, …

Second Generation State Takeover Legislation: Maryland Takes A New Tack, Michigan Law Review

Michigan Law Review

This Note examines the approach recently adopted by the Maryland legislature in special session one year after the Supreme Court's decision in MITE. Maryland has departed radically from the regulatory approach of first generation statutes; however, this Note argues that the statute has failed to escape the constitutional infirmities of its predecessors. Part I outlines the various mechanisms that regulate acquisition of corporate control: the federal tender offer regulatory mechanism known as the Williams Act, state takeover legislation such as the Illinois statute invalidated in MITE, and the new Maryland statute. Part II analyzes the debate concerning the …

Yankees Out Of North America: Foreign Employer Job Discrimination Against American Citizens, Michigan Law Review

Michigan Law Review

This Note explores Title VII's relationship to the hiring practices of foreign employers. It focuses on Japanese employers, who might face the toughest Title VII challenge to a business and cultural familiarity or citizenship requirement. Part I sets out arguments for and against finding intentional discrimination - disparate treatment - in either of these hiring requirements. It suggests that a court should refuse to find national origin discrimination when the employer imposes a business and cultural familiarity requirement. However, when an applicant is denied employment solely on the basis of citizenship, a strong argument may be made that the …

Exemption Of Erisa Benefits Under Section 522(B)(2)(A) Of The Bankruptcy Code, Michigan Law Review

Michigan Law Review

This Note argues that the two federal statutes are exempting statutes under section 522(b)(2)(A), and thus BRISA funds should be exempt in a bankruptcy action when the debtor uses the state exemption scheme. Part I argues that standard principles of statutory interpretation, as applied to the language of the bankruptcy statute, refute the possibility that Congress intended the list of statutes in the legislative history to be exclusive. Having established that statutes other than those listed may be included under section 522(b )(2)(A), Part II first refutes the argument that the absence of BRISA from the list of exempting statutes …

Consequences Of Supreme Court Decisions Upholding Individual Constitutional Rights, Jesse H. Choper

Michigan Law Review

The thrust of this Article is to attempt to ascertain just what differences the Court's judgments upholding individual constitutional rights have made for those who fall within the ambit of their protection. It seeks to address such questions as: What were the conditions that existed before the Court's ruling? How many people were subject to the regime that was invalidated by the Justices? Was the Court's mandate successfully implemented? What were the consequences for those affected? At a subjective level, were the repercussions perceived as salutary by those (or at least most of those) who were the beneficiaries of the …

Freedom Of Association After Roberts V. United States Jaycees, Douglas O. Linder

Michigan Law Review

The decision of the U.S. Supreme Court in Roberts v. United States Jaycees, upholding a Minnesota ruling which requires the Minnesota Jaycees to admit women as full members, ended one controversy but marked only the beginning of a far larger one. It was predicted by many that U.S. Jaycees would answer the question of whether private associations with restrictive membership policies were vulnerable to state anti-discrimination laws or were constitutionally protected. It did not. Instead, while rejecting the Jaycees' constitutional claims, the Court established a comprehensive framework for analyzing future claims of associational freedom that contains a number of …

Denial Of Unemployment Benefits To Otherwise Eligible Women On The Basis Of Pregnancy: Section 3304(A)(12) Of Federal Unemployment Tax Act, Michigan Law Review

Michigan Law Review

This Note examines the conflicting interpretations of section 3304(a)(12) of the Federal Act. The Porcher decision serves as a point of reference throughout this Note, since opposing constructions of the section were presented in the case. Part I describes the basic framework of FUTA and presents the disparate interpretations of section 3304(a)(12) that have been advanced.

Part II analyzes section 3304(a)(12) with reference to the statutory language and legislative history. As a preliminary matter, this part considers the degree of deference that should be afforded the Secretary of Labor's certification of state programs that treat pregnancy like all other medical …

Where The Money Is: Remedies To Finance Compliance With Strict Structural Injunctions, James M. Hirschhorn

Michigan Law Review

This Article examines the formal powers that are available to the federal courts to meet this situation. Part I places the problem in perspective, describing the party structure of the institutional reform decree, the :financial burdens it places on the government defendants, and the relationship of these defendants to the fiscal authorities. Part II surveys the coercive powers historically available to the federal courts sitting in equity. Part III discusses the use of these devices against government defendants who claim financial impossibility. It emphasizes the limited recognition of impossibility, the power to compel the defendants to use available resources efficiently …

Redefining The "Cost Of Suit" Under Section Four Of The Clayton Act, Michigan Law Review

Michigan Law Review

This Note explores the possible interpretations of the "cost of suit" provision and the policies which it implicates. It concludes that the Copper Liquor interpretation best advances the goals of the antitrust laws set forth by Congress and the courts. Part I examines the development of the present controversy among the circuits. Part II analyzes and refutes the arguments which have been set forth in support of the traditional rule. Part III explores the policy considerations which underlie private treble damage actions and concludes that the Copper Liquor interpretation of the "cost of suit" provision serves them better than does …

The Establishment Clause And Religion In Child Custody Disputes: Factoring Religion Into The Best Interest Equation, Michigan Law Review

Michigan Law Review

This Note examines when judges deciding custody disputes may consider potential custodians' religious practices without violating the establishment clause of the first amendment to the Constitution. Although courts agree that they may not prefer one parent to another for religious reasons when both parents are religious and neither parent's religious practices threaten the child's health or safety, some courts believe that they may constitutionally prefer a religious parent to a nonreligious parent. Part I argues that courts violate the establishment clause by preferring religion to nonreligion when there is no showing that the child has personal religious convictions. Part II …

The Treatment Of Mandatory Tax Withholdings In Calculating Afdc Benefits: Fairness As A Relevant Inference In Ascertaining Congressional Intent, Michigan Law Review

Michigan Law Review

This Note contends that the more appropriate construction of the statute is to view mandatory tax withholdings as nonincome and nonwork expense items. Part I traces the pre-OBRA legislative and administrative history and examines the judicial interpretations of 42 U.S.C. section 602(a)(7) "income" and section 602(a)(8) "earned income." It concludes that under the "availability" principle, tax withholdings have always been regarded as nonincome items distinct from work expenses. It contends that, notwithstanding contradictory language in the regulations implementing section 602(a)(8), the status of tax withholdings as nonincome items under section 602(a)(7) is controlling. Part II considers the legislative history and …

The Unnecessary Doctrine Of Necessaries, Michigan Law Review

Michigan Law Review

This Note argues that neither the traditional nor the modem necessaries doctrines are justifiable in contemporary society. Part I investigates the practical effects of both the traditional and contemporary necessaries doctrines and demonstrates that neither is an effective mechanism for providing support to a needy spouse. While a more successful support remedy might be devised to replace modem and traditional versions of the necessaries rule, Part II shows that yet another reformulation would not be worthwhile because the theoretical underpinnings of the doctrine are faulty. There is no persuasive evidence to establish the existence of the narrow support problem the …

Direct And Indirect Judicial Control Of Community Acts In Practice: The Relation Between Articles 173 And 177 Of The Eec Treaty, Gerhard Bebr

Michigan Law Review

The European Economic Community (EEC) Treaty contains two different judicial controls over the exercise of the powers granted to the Community by the Treaty: (1) a direct control through an action in the European Court of Justice under article 173 to annul a Community act; and (2) an indirect control through reference by a national court to the Court of Justice under article 177 to review the validity of a Community act. Each of . these controls is designed to ensure the legal exercise of power by Community institutions. In form, however, they are quite different procedures.

The present study …

The Press And The Public Interest: An Essay On The Relationship Between Social Behavior And The Language Of First Amendment Theory, Lee C. Bollinger

Michigan Law Review

I would like to explore in this essay one aspect of the contemporary American debate over the theory of freedom of speech and press. The subject I want to address is this: whether the principle of freedom of speech and press should be viewed as protecting some personal or individual interest in speaking and writing or whether it should be seen as fostering a collective or public interest. Sometimes this issue is stated as being whether the first amendment protects a "right to speak" or a "right to hear," though in general the problem seems to be whether we should …

Two Ideas Of International Organization, John H. Barton

Michigan Law Review

Political theory has long sought a philosophical basis for such ideas as law, authority, and freedom - but usually within the context of the nationstate. Only rarely has political theory placed the nation-state in an international framework; and, when it has tried, it has often done poorly. Sometimes the political theory becomes purely altruistic and utopian; at other times it works to support the irresponsibility of individual governments and the breakup of international order.

The Right Of States To Use Armed Force, Oscar Schachter

Michigan Law Review

When the United Nations (UN) Charter was adopted, it was generally considered to have outlawed war. States accepted the obligation to settle all disputes by peaceful means and to refrain from the use or threat of use of force in their international relations. Only two exceptions were expressly allowed: force used in self-defense when an armed attack occurs, and armed action authorized by the UN Security Council as an enforcement measure. These provisions were seen by most observers as the heart of the Charter. and the most important principles of contemporary international law. They have been reaffirmed over and over …

Eric Stein Vita & Bibliography, Michigan Law Review

Michigan Law Review

Eric Stein Vita & Bibliography

Eric Stein, William W. Bishop Jr.

Michigan Law Review

A tribute to Eric Stein

Federalism And Company Law, Richard M. Buxbaum

Michigan Law Review

It would be a simplifying and historically dubious reduction to equate state interest in corporation law with interventionist or regulatory policies and federal interest with liberal or facilitative ones. So long as a federal legal system presupposes the continuing involvement of two governments with the same subject, however, it is only the subordinate polity's interest in intervention or regulation that makes for interesting reading. State facilitative policies in an era of national facilitative policies raise no questions, and a state's continuing adherence to laissez faire policies when the national government turns interventionist typically creates no conflict. It is only the …

Socialist Federation--A Legal Means To The Solution Of The Nationality Problem: A Comparative Study, Viktor Knapp

Michigan Law Review

The history of federations is both long and short. It is long in that the federation originated with the Swiss Confederation, which dates back to the 1291 defense confederacy of the cantons of Uri, Schwyz and Unterwalden; it is short because the second federation in world history, one that has become a model for many others, did not come into being until almost five centuries later in America.

Effects Of International Agreements In European Community Law: Are The Dice Cast?, Jacques H.J. Bourgeois

Michigan Law Review

The purpose of this contribution is to explore the extent to which the "direct effect" doctrine, developed within the Community legal system for the purpose of the relations between Community law and the Member States' law, has spilled over into the field of the relations between international law and Community law, or, to use a somewhat daring comparison, to what extent the doctrine of McCulloch v. Maryland has been applied in a Foster and Elam situation.

How Flexible Is Community Law? An Unusual Approach To The Concept Of "Two Speeds", Claus-Dieter Ehlermann

Michigan Law Review

The concept of "two speeds" de lege ferenda and the connected question of possible flexibility in Community law de lege lata raise a number of highly complex institutional questions that go to the very roots of the Community system. We offer the following analysis of such questions to Eric Stein, whose writing and teaching have contributed so greatly to the understanding of the Community's foundations.

The European Community And The Requirement Of A Republican Form Of Government, Jochen Abr. Frowein

Michigan Law Review

The European Community - that is, the factual entity composed of three legally separate communities which has been and still is one of the basic concerns of Eric Stein - cannot be understood without taking into account European history after 1933. As an irony of history, the stage for a new beginning was set by the man who destroyed the old Europe and who was the reason that so many academics left the "old country" for the new world. This new start was not only influenced by the determination of those Europeans who had lived through the darkness to overcome …

The Case For Federalizing Rules Of Civil Jurisdiction In The European Community, Peter Hay

Michigan Law Review

The European Community is an "incipient federal structure," even if its scope of operation is limited in subject matter and its creation derives from "a network of treaties rather than [from] a formal constitution." A federal structure at once protects, even nurtures, pluralism and coordinates the constituent units in the interest of a union. Federal legislation promotes the interests of the larger unit; a limitation of powers in the constitutive document preserves the integrity of the members. In the American federation, the United States Supreme Court defines the balance between the reach of state and federal law. The balance, moreover, …

New Ways In Corporate Governance: European Experiments With Labor Representation On Corporate Boards, Klaus J. Hopt

Michigan Law Review

Corporate governance has been discussed in Europe for over 150 years. Indeed, in the 1840's, when the first Corporation Act was enacted in Prussia, three troubling features of the corporate organization form had already been discerned: (I) the vulnerability of small investors who lacked the influence and sophistication to. control the corporation; (2) the risk to creditors and the public created by the limited liability of the corporation, especially when combined with inadequate funds and poorly controlled management; and (3) the power that big corporations could amass economically, by monopolizing markets, and politically, by exerting influence on public opinion and …