Law Commons^™

Vol. 37, No. 13, December 7, 1988, University Of Michigan Law School

Res Gestae

•Dean Secularizes Concert •Students Deal With Finals In Their Individual Ways •Henderson Named Managing Editor •Needless Speculation •Please Be Reasonable, Santa •The Envelope, Please… •Whaling Waste, Abortion Aftermath •Attacking Character and Stepping on Toes •Music Censorship Not in Holiday Spirit •Dworkin's Views Deserve Fairer Hearing •Pierce Honored at Reception •The Law School's IM Football Heroes •Eliminate Home Field Advantage in Bowl Games •Bears & Bengals Still Bowl Bound •Bowling: Sluggers Stroke, Ettore Chokes •Law in the Raw

A Matter Of Voice And Plot: Belief And Suspicion In Legal Storytelling, Richard K. Sherwin

Michigan Law Review

In Part I of this article, I describe in greater detail the tensions touched upon above that divide the current legal culture between rhetorical affirmers on the one side and critical deconners on the other. In Part II, I examine more closely the persuasive discourse that White calls "constitutive rhetoric." White's understanding of rhetoric offers a paradigm for the rhetorical affirmer's viewpoint. In Part III, I begin to explore the limitations and dangers inherent in White's and, by extension, in the rhetorical affirmer's approach. In Part IV, I attempt to provide a way of bringing together important critical and rhetorical …

The Unimportance Of Being Efficient: An Economic Analysis Of Stock Market Pricing And Securities Regulation, Lynn A. Stout

Michigan Law Review

Part I of this article describes how perceptions that market efficiency is an important regulatory objective have influenced the development of securities law. For illustration, Part I examines the role of market efficiency goals in recent debates on the scope of insider trading liability, on trading in stock index futures, and on mandatory disclosure of merger negotiations. Part II then evaluates the notion that more efficient stock markets necessarily produce more optimal resource allocation. A closer look at the economic consequences of stock prices suggests that the principal function of stock prices is not resource allocation but rather the redistribution …

Practical Legal Studies And Critical Legal Studies, Jay M. Feinman

Michigan Law Review

The basic questions that Practical Legal Studies confronts are how judges decide cases and how judges should decide cases. The traditional analytic response to these questions has been that judges apply formal methods of legal reasoning, and the formal methods sufficiently comport with the courts' role in the political structure to provide legitimacy. That response has been untenable for a generation or more; thus PLS has moved to informal legal reasoning as a description of adjudication and as a source of legitimacy.

Posner presents a two-part response to the questions. First, judges can relatively easily arrive at the correct decision …

Divided We Fall: Associational Standing And Collective Interest, Heidi Li Feldman

Michigan Law Review

This Note asserts that associations merit standing when they seek to litigate collective interests they reasonably claim as theirs. Part I of this Note examines the state of judicial doctrine on associational standing, and illustrates how current doctrine hampers associations by refusing to recognize, and thus protect, interests that fit naturally with those the Supreme Court has regarded as associational. Part II reworks the concept of associational standing by formalizing collective interest and arguing for the association as the appropriate legal representative of such interest. Finally, Part III addresses the separation of powers concerns raised by a reworked concept of …

Judge Posner's Jurisprudence Of Skepticism, Steven J. Burton

Michigan Law Review

This essay suggests that there is an instructive incompleteness in Judge Posner's transition from scientific observer to legal actor. His legal skepticism should be understood as a legacy of his days as an inquiring economist, observing and forming beliefs about law and the judicial process from the academy. His affirmation of judicial practices stems from his new respect for practical reason, which seems to result from the experience of performing judicial duties. This essay will argue that a more complete assimilation of the practical perspective of the legal actor would undercut Judge Posner's arguments for legal skepticism.

Irregular' Asylum Seekers: What's All The Fuss?, James C. Hathaway

Articles

In 1985, the Executive Committee of UNHCR noted its concern about "the growing phenomenon of refugees and asylum-seekers who, having found protection in one country, move in an irregular manner to another country..." (Conclusion No. 36, para. j). At first glance, one might not view this conclusion as objectionable. With all of the millions of refugees in the world, most of who have no protection, why should we be concerned about the lot of a bunch of ingrates who, having already found protection, now want to move on in search of greener pastures? Don't we really have better things to …

Vol. 37, No. 12, November 30, 1988, University Of Michigan Law School

Res Gestae

•Law Library Ranked Highest in Survey •Dworkin Indicts Porn •Commissioner Quigg Says Animal Patents are Progress •Mailbox Rule •Flybacking on the Cheap •Where Left Meets Right •Gideon's Lawyer •Leave Mertz Alone •Patent Commissioner Discusses Bio Issues •Crossword •Sexist Grammar Should Be Eliminated •Lullo, Zemanick Lead RG Football Contest •Law in the Raw

Vol. 37, No. 11, November 16, 1988, University Of Michigan Law School

Res Gestae

•ACLU's Holton Police Complaint Clinic To Assist With Civil Rights •Henkin Discusses Constitution's Future •Student Decries Duderstadt Selection •Hanging Out the Shingle •If Only Things Slowed Down •And the Charade Continues •Lost in a Sea of Anonymity •Of Mountains, Molehills and Hypersensitivity •Professor Kahn Should Be Ashamed of Himself •Dworkin to Speak on Male "Oppressors" •Renowned Henkin to Present Cooley Lectures •Temple Law To Offer Summer Sessions Abroad •UM to Win in Ohio, Pasadena •Smith, Kooistra Win 5K Run •Law in the Raw

Vol. 37, No. 10, November 9, 1988, University Of Michigan Law School

Res Gestae

•Moot Court Oral Argument Well Underway •WLSA Members Protest Phone Call; Kahn, Dean Replies •Law Students Get Scaaaary •Ground Rules •Notices •A Real Election Up North •Don't Blame the Barristers •Mixed Message •Prof. Kahn Draws Fire from Student Groups •Implementing the New Discrimination Policy •Crossword •New Health Law Society Looks at AIDS, Health Issues •Women Face Difficult Choices Over Child Care •Sluggermania Hits Sports Reports •Wolverines to Top Illini in Big Ten Showdown •5K Fun Run, Whirlyball Take Law School by Storm •Law in the Raw

Vol. 37, No. 9, November 2, 1988, University Of Michigan Law School

Res Gestae

•Faculty Approves Placement Policy •Obscene Flyer Draws Response •Trickers Treat Law Quad •More of the Same •Counting One's Blessings •Phony Courage, Shallow Conviction •A Michigander's Look at the Ballot Proposals •Justice Archer Visits Quad •Gophers Won't Block Wolves' Road West •Law School Sports Round Up •Law in the Raw

Consent Decrees And The Rights Of Third Parties, Larry Kramer

Michigan Law Review

I begin in Part I by describing the dynamics of the consent decree process: why parties want consent decrees and why courts agree to enforce them. On the basis of this description, I construct a model of the consent decree as a device that encourages settlement by facilitating enforcement of the parties' agreement.

The remainder of the article then applies this model to third-party claims. Part II considers whether there is any reason to prevent third parties from bringing an independent action attacking a consent decree. Part II concludes that the collateral attack bar is a form of abstention, serving …

Free Speech And The "Acid Bath": An Evaluation And Critique Of Judge Richard Posner's Economic Interpretation Of The First Amendment, Peter J. Hammer

Michigan Law Review

Part I of this Note introduces the mechanics of the model Judge Posner has developed to determine whether restrictions upon speech should be upheld. Part II evaluates and critiques Posner's method from an internal perspective. This is first done by examining the theoretical foundations and assumptions of his economic perspective. This part then turns to testing the output and conclusions of the model to determine how successfully the theory can be turned into practice. Part III constitutes an external critique of Posner's model. This part addresses the question of whether the first amendment should be thought of in economic terms. …

Tax Avoidance And Income Measurement, Joshua D. Rosenberg

Michigan Law Review

This article first will explain our system of "transaction taxation" and will further explore the problems caused by the transactional focus of our tax system. It then will consider the current judicial responses to these problems and examine their inadequacies. Finally, it will set forth and explore the alternative responses suggested above in more detail.

Vol. 37, No. 8, October 26, 1988, University Of Michigan Law School

Res Gestae

•Law Students Attend DC Public Interest Conference •Boyle Inherently Critical of Law School •Women's Forum Discusses Issues •Fox Emphasis is Economic •Limitless Grade Option •Student Section Rowdyism Okay at Football Games •The Inhumanity of It All •Softball Coverage Inaccurate and Unfair •LSSS Responds to Budgetary Criticism •Michigan Attn 'y General Kelley Visits Campus •Crossword •Schnell is IU's Difference •First Years Sweep Golf, Women's Tennis •Law in the Raw

Vol. 37, No. 7, October 19, 1988, University Of Michigan Law School

Res Gestae

•Federalist Convention Coming To U-M Law •Profs To Receive New Post, Honors •Simma: International Expert •Moot Court Participants Handed a Surprise •Road Less Traveled •Monday's Maudlin Mess •Softball Reminiscing •The Second Inaugural •Tawana Brawley Revisited •Law Librarian Maslow Off to Supreme Court •Notices •Crossword •Hunter Picks Michigan Over IU •Smell The Glove Wins Softball •Law in the Raw

Vol. 37, No. 6, October 12, 1988, University Of Michigan Law School

Res Gestae

•Crim'l Forfeiture / Attn'y Fees Are Moot Ct. Topic •Junior Clerk Matches Chosen •P. White: From Georgetown to Michigan •Space Bulletin •A Softie at Heart •'Zip It, Pal' •The Nightmare of President Quayle •At Long Last, Viable Loan Forgiveness •Notices •Budgeting by Whim and Caprice •Tawana Brawley and CLS •Pat White -Returns to M for 2d Visit •LSSS Hears Reports From Sports, Social, Placement •1985-1989 LSSS Budget Allocations •Bulletin Boards Show New Sights for Sore Eyes •Two Firms Finance Pro Bono Work •Crossword •Television Adversely Affects Heisman Trophy Competition •Virginia Qualifying Tournament Set •Cunningham Recovering From Cancer Surgery •Judge Edwards …

Vol. 37, No. 5, October 5, 1988, University Of Michigan Law School

Res Gestae

•Indi Gestae •Budget OK'd: Wish List to Dean •Computer Research at 'M' •Interview Policy to be Reviewed •Seoul-ed Out •A Profession's Decline •Random Thoughts While Filling Space •The Case for Funding Abortions •Back to Basics •Big Michigan Score Proves Little •Three Teams Slosh to Golf Victory •Law in the Raw

Affirmative Action On Law Reviews: An Empirical Study Of Its Status And Effect, Frederick Ramos

University of Michigan Journal of Law Reform

This Note discusses the issues involved in affirmative action on law reviews. Part I examines law review affirmative action admissions schemes and alternative types of affirmative action programs. Part II considers the arguments supporting and opposing the implementation of affirmative action programs by law reviews. Part III presents the results of a survey of law reviews concerning affirmative action. This Note concludes that affirmative action programs are the most effective means of increasing minority membership on law reviews, but that law reviews may increase minority membership through other methods.

Beyond Managerialism: Investor Capitalism?, Alfred F. Conard

University of Michigan Journal of Law Reform

Capitalism, in most large public corporations, has been subtly transformed from a system of dominance by the suppliers of capital to a system of dominance by the managers, dubbed "managerialism." In many respects, managerialism is beneficial to investors and other enterprise constituencies, since managers' rewards typically grow with the profitability of the enterprise. But managerialism permits drastic wastes of resources when managers hang on to their jobs after they have become inefficient or spend lavishly to defend themselves against takeover bids. Derivative suits, shareholder proposals, independent directors, and other prescriptions have failed to stifle managerial abuses. This is the message …

The Future Of Liberal Legal Scholarship, Ronald K.L. Collins, David M. Skover

Michigan Law Review

Earl Warren is dead.

A generation of liberal legal scholars continues, nevertheless, to act as if the man and his Court preside over the present. While this romanticism is understandable, it exacts a high price in a world transformed.

The following commentary is a reconstructive criticism written from the perspective of two liberals concerned about the future of "legal liberalism." We present our views as a commentary to emphasize their preliminary character; they represent our current assessment of where liberals stand and where they might redirect their energies.

A Board Does Not A Bench Make: Denying Quasi-Judicial Immunity To Parole Board Members In Section 1983 Damages Actions, Julio A. Thompson

Michigan Law Review

This Note argues that neither the majority nor the minority approach is realistic. A thorough examination of the parole process and section 1983 litigation will show that a third approach is more appropriate - that parole board members are entitled only to qualified immunity for all actions taken within the scope of their official duties. Part I argues that parole board members should not enjoy absolute, quasi-judicial immunity because the parole board decisionmaking process is not "functionally comparable" to judicial decisionmaking. The differences in procedure, political accountability, training, and background lead to two very different systems. Part II shows that …

Is "Internal Consistency" Foolish?: Reflections On An Emerging Commerce Clause Restraint On State Taxation, Walter Hellerstein

Michigan Law Review

Whatever role "internal consistency" may come to play in the Court's commerce clause jurisprudence, it has already emerged as a doctrine that warrants our attention. This article traces the development of the doctrine, explores its implications, and considers its defensibility as a limitation on state taxing power. The article suggests that the results the Court reaches under the "internal consistency" doctrine could be reached by rigorous application of a more familiar commerce clause principle - one to which the Court has been less than faithful.

Statutory Interpretation, Legislative Inaction, And Civil Rights, Daniel A. Farber

Michigan Law Review

This month the Supreme Court will hear reargument in Patterson v. McLean Credit Union on the question of whether section 1981 prohibits discrimination by private parties. Professor Farber identifies three issues which lie at the heart of Patterson: Must statutes be construed to conform to the intent of the drafters? Does legislative inaction provide reliable guidance to interpreters of statutes? And should the nature of the claim at issue - here a claim of civil rights - influence the interpreters? On this last point, Professor Farber argues that public values must be relevant to statutory interpretation and that judges …

Introduction, Joel Seligman

University of Michigan Journal of Law Reform

Introduction for the 1988 Journal of Law Reform Symposium: Issues in Corporate Governance.

Federal Chartering Revisited, Donald E. Schwartz

University of Michigan Journal of Law Reform

The protections that corporation law provided to shareholders and to our economic community against the excesses and complacency of corporate directors and managers have undergone a general weakening. Although it is uncertain whether the ALI can accomplish effective and meaningful reforms, this effort may be the most important attempt by the corporate community to reform itself.

Two Models Of Corporate Governance: Beyond Berle And Means, Lynne L. Dallas

University of Michigan Journal of Law Reform

This Article introduces a new model of corporate governance, which challenges, as did Berle and Means, the conclusions drawn from the traditional ownership model. Rather than focusing upon the inefficiencies of the large complex firm resulting from the separation of share ownership and control, however, this new model, which I call the power model, focuses upon the political nature of decision making in the large corporation, which exists regardless of the identity of the entrepreneur.

Auditor Changes And Opinion Shopping- A Proposed Solution, Dale R. Rietberg

University of Michigan Journal of Law Reform

This Note argues that the existing regulatory mechanism has failed to address adequately the problem of opinion shopping, and that better means of ensuring the reliability of financial statements are needed. Part I describes the nature and extent of the opinion-shopping problem, including a discussion of its larger, macroeconomic impact. Part II argues that the underlying causes of the problem are systemic and that present safeguards against opinion shopping are inadequate. Finally, Part III examines some alternative solutions and proposes a system of Accounting Issue Inquiry Centers under the direction and auspices of the SEC. These Centers would be designed …

Interpreting Legislative Inaction, William N. Eskridge Jr.

Michigan Law Review

This month the Supreme Court will hear reargument in Patterson v. McLean Credit Union on the question of whether section 1981 prohibits discrimination by private parties. In this article, Professor Eskridge addresses the issue of how legislative inaction should affect statutory interpretation. He begins by constructing a detailed analysis of the Court's legislative inaction cases, arguing that the case law is much more coherent than previous analysts have suggested. Professor Eskridge then considers Justice Scalia's critique of that case law and provides support for Justice Scalia's views by distinguishing actual and presumed legislative intent, arguing that, based on a conception …

Corporate Auctions And Directors' Fiduciary Duties: A Third-Generation Business Judgment Rule, Steven G. Bradbury

Michigan Law Review

This Note proposes a rationale and a methodology for applying the business judgment rule when directors resist a hostile bid during the auction phase of a control contest. Part I examines the changes that occur in the responsibilities of target directors when a corporate auction is initiated. This Part describes the Unocal business judgment rule test and discusses its usefulness in the auction phase of a takeover. While the test requires modification if it is to complement effectively the auction-phase duties announced in Revlon, this Part suggests that the business judgment rule continues to be relevant and important during …