Law Commons^™

Response: Exaggerated And Misleading Reports Of The Death Of Conditional Relevance, Peter Tillers

Michigan Law Review

In 1980 the late Professor Vaughn C. Ball of the University of Georgia published an article called The Myth of Conditional Relevancy. Ball's article is widely admired. One well-known evidence scholar, Ronald J. Allen, liked Ball's article so much that he borrowed its title word for word. Although the extent of Allen's enthusiasm for Ball's analysis may be unmatched, a good number of students of evidence - including this writer - have said that Ball's analysis of conditional relevance is both original and important. Richard Friedman, by contrast, cannot be counted as one of Ball's more ardent admirers. Although Friedman …

Give Them Back Their Lives: Recognizing Client Narrative In Case Theory, Binny Miller

Michigan Law Review

This article is about case theory and its implications for incorporating client narratives in litigation. In seeking to understand the connections between voice, narrative, and case theory, I look not only to theory but to my experience as a clinical teacher and criminal defense attorney. I explore how the practice of lawyering can be reconstructed to embrace a greater role for clients in constructing case theories, both through the images of the client the lawyer presents in the case theory and through active client participation in developing and choosing the case theory. Although one aim of case theory is to …

Collective Bargaining Or "Collective Begging"?: Reflections On Antistrikebreaker Legislation, Samuel Estreicher

Michigan Law Review

The strike is a necessary part of collective bargaining. Workers should not ordinarily lose their jobs by pressing their disputes in this manner. But neither should strikes be viewed as a risk-free means of empowering unions to lock employers into uncompetitive contracts.

The Case Against Intermediate Owner Liability Under Cercla For Passive Migration Of Hazardous Waste, Robert L. Bronston

Michigan Law Review

This Note argues that Congress intended disposal to have an active meaning and therefore that courts should not hold prior intermediate owners liable for the passive migration of hazardous waste under section 107(a)(2). Part I examines CERCLA's definition of disposal. This Part concludes that the language of the definition, though somewhat ambiguous, supports the active defuiition. Part II considers the history of both CERCLA and the Resource Conservation and Recovery Act (RCRA), which CERCLA amended, in order to determine whether Congress intended to require affirmative conduct on the part of intermediate owners as a prerequisite to liability. Part II …

The Punishment Of Hate: Toward A Normative Theory Of Bias-Motivated Crimes, Frederick M. Lawrence

Michigan Law Review

This article explores how bias crimes differ from parallel crimes and why this distinction makes a crucial difference in our criminal law. Bias crimes differ from parallel crimes as a matter of both the resulting harm and the mental state of the offender. The nature of the injury sustained by the immediate victim of a bias crime exceeds the harm caused by a parallel crime. Moreover, bias crimes inflict a palpable harm on the broader target community of the crime as well as on society at large, while parallel crimes do not generally cause such widespread injury.

The distinction between …

Chix Nix Bundle-O-Stix: A Feminist Critique Of The Disaggregation Of Property, Jeanne L. Schroeder

Michigan Law Review

Property was dead, to begin with. The coroner, Wesley Newcomb Hohfeld, revealed that the unity, tangibility, and objectivity of property perceived by our ancestors was a phantom. Property is, in fact, merely a "bundle of sticks." When conceptualized as a collection of rights, property loses its distinctive qualities and its essence. It therefore does not, or at least should not, exist. Without unity and physicality, property loses its objectivity and can only be a myth. The rabble might still believe in the old gods of property, but the educated "specialists" now know that this was vulgar superstition. Once the populace …

Federal Common Law And Gaps In Federal Statutes: The Case Of Erisa Plan Limitation Periods For Section 502(A)(1)(B) Actions, Jim Greiner

Michigan Law Review

This Note argues that federal courts should adopt a uniform national rule that upholds plan provisions modifying the limitation period for a section 502(a)(l)(B) action. Part I examines the reasoning of those courts that have borrowed state law to determine the validity of modifications of the limitation period applicable to actions arising under BRISA section 502(a)(l)(B) and under other federal statutes. Part I argues that those courts may have incorrectly characterized the validity of plan limitation periods as an issue of limitation law. As a consequence of this characterization, those courts have followed the Supreme Court's rule that, when borrowing …

Psychological Barriers To Litigation Settlement: An Experimental Approach, Russell Korobkin, Chris Guthrie

Michigan Law Review

In this article, we seek to substantiate "psychological barriers," as illustrated by the constructs described above, as a third explanation for the failure of legal disputants to settle out of court. Although we are not the first to hypothesize that psychological processes can, in theory, affect legal dispute negotiations, we attempt to give more definition to the otherwise vague contours of the psychological barriers hypothesis by bringing empirical data to bear on the question. To achieve this end, we conducted a series of nine laboratory experiments - involving nearly 450 subjects - designed to isolate the effects of the three …

Employment Discrimination Claims Under Erisa Section 510: Should Courts Require Exhaustion Of Arbitral And Plan Remedies?, Jared A. Goldstein

Michigan Law Review

This Note examines whether courts should require section 510 claimants to exhaust either plan-based or arbitral remedies before seeking judicial relief. It begins by comparing the basis for an exhaustion requirement with respect to benefits claims with the basis for such a requirement with respect to statutory claims - like those under section 510. Part I examines the rationale courts have offered for requiring exhaustion of plan remedies for benefits claims. Part I concludes that federal courts have correctly determined that Congress intended individuals bringing benefits claims to exhaust the remedies provided by the plan before seeking judicial relief. Part …

Congressional Commentary On Judicial Interpretations Of Statutes: Idle Chatter Or Telling Response?, James J. Brudney

Michigan Law Review

There are two principal aspects of my thesis. First, it is desirable to consider seriously these legislative signals of approval and disapproval, because a blanket rejection, or even systematic hostility, imposes significant opportunity costs on Congress. If the judiciary refuses to consider these signals, Congress will have to expend extra resources to achieve the same ends. That expense will diminish the institution's ability to enact other laws and in some cases will alter the character of the other laws that it is able to enact. The consequent diminution or depletion of Congress's legislative authority is unhealthy from a democratic perspective …

Employment Discrimination Law In Perspective: Three Concepts Of Equality, John J. Donohue Iii

Michigan Law Review

The essay begins with a discussion of which groups deserve the protection of employment discrimination law. With the protected categories of Title VII of the 1964 Civil Rights Act etched into the American consciousness, many might consider the appropriate categories to be fully self-evident. But of course, they are not, and many jurisdictions continue to struggle over whether certain dispreferred groups merit the law's solicitude.

No Time For Trumpets: Title Vii, Equality, And The Fin De Sièchle, D. Marvin Jones

Michigan Law Review

My essay seeks to examine the internal architecture of the discursive barrier - the wall - that the Supreme Court has built within the doctrinal framework of Title VII and concomitantly within the discourse of equality. To understand how the Court has erected this discursive wall, we must begin with history. Equality, while historically a vehicle for national identity and contemporaneously for modernist conceptions of justice, is synchronically and diachronically indeterminate. Equality is a deeply sedimented concept with not one objective meaning but successive levels of meaning built up over time. Each of those historic understandings is itself a unity …

Structuralist And Cultural Domination Theories Meet Title Vii: Some Contemporary Influences, Martha Chamallas

Michigan Law Review

This essay first looks at three important theoretical approaches - motivational, structural, and cultural - that mark the scholarly discourses on workplace equality since 1965. The motivational or individual choice theory is well established and has dominated legal discourse throughout this period. I concentrate in this essay on the other two visions, dating structuralist accounts from the mid1970s and cultural domination theories from the mid-1980s.

Caste And The Civil Rights Laws: From Jim Crow To Same-Sex Marriages, Richard A. Epstein

Michigan Law Review

In this essay I address the notion of caste in two separate contexts: in the traditional disputes over race and sex, and in the more modem disputes over sexual orientation. In both cases the idea of caste and its kindred notions of subordination and hierarchy are used to justify massive forms of government intervention. In all cases I think that these arguments are incorrect. In their place, I argue that the idea of caste should be confined to categories of formal, or legal, distinctions between persons before the law. This more limited notion of caste supplies no justification for the …

Title Vii And The Complex Female Subject, Kathryn Abrams

Michigan Law Review

One strength of Title VII has been its capacity to accommodate the changing conceptions of discrimination and the self-conceptions of subject groups. In the first decades of its enforcement, advocates have raised - and courts have endorsed - a range of contrasting conceptions in order to broaden the employment opportunities of protected groups. This flexibility is particularly evident with respect to women.

After exploring recent doctrinal efforts to respond to complex claimants, I address these questions and assess the prospects of change. Although the unitary or categorical notions of group identity under which Title VII has historically been enforced might …

Only Girls Wear Barrettes: Dress And Appearance Standards, Community Norms, And Workplace Equality, Katharine T. Bartlett

Michigan Law Review

In this essay I study both the judicial rationales and the scholarly criticisms thereof, agreeing with critics that community norms are too discriminatory to provide a satisfactory benchmark for defining workplace equality, but also questioning the usual implications of this critique. Critics assume that it is possible, and desirable, to evaluate dress and appearance rules without regard to the norms and expectations of the community - that is, according to stable or universal versions of equality that are uninfected by community norms. I question this assumption, arguing that equality, no less than other legal concepts, cannot transcend the norms of …

The Michael Jackson Pill: Equality, Race, And Culture, Jerome Mccristal Culp Jr.

Michigan Law Review

This chronicle is in tribute to the work of Derrick Bell, past, present, and future. I have borrowed his character Geneva Crenshaw as part of that tribute, and I hope she helps me raise some of the issues that he has taught us are important.

All characters in this chronicle are fictional, including Professor Culp and Professor Bell. Any relationship they may have to the real Professor Bell and Professor Culp is dictated by the requirements of creativity and the extent to which reality and fiction necessarily merge. I know that the real Derrick Bell is wiser than the one …

The Anticaste Principle, Cass R. Sunstein

Michigan Law Review

In this essay, I seek to defend a particular understanding of equality, one that is an understanding of liberty as well. I call this conception "the anticaste principle." Put too briefly, the anticaste principle forbids social and legal practices from translating highly visible and morally irrelevant differences into systemic social disadvantage, unless there is a very good reason for society to do so. On this view, a special problem of inequality arises when members of a group suffer from a range of disadvantages because of a group-based characteristic that is both visible for all to see and irrelevant from a …

Hail Britannia?: Institutional Investor Behavior Under Limited Regulation, Bernard S. Black, John C. Coffee Jr.

Michigan Law Review

The two authors of this article have been on opposite sides of this debate, but both recognize that no single explanation is complete and that other factors, such as the self-interest of fund managers, the conflicts of interest faced by institutions who want to retain corporate business, cultural forces, collective action problems, and what we can call path dependence- the difficulty of changing the structure and behavior of highly evolved and specialized institutions - have causal roles in explaining shareholder passivity. The central question in research on American corporate governance is how these forces interact to produce the characteristic …

When Is The Senate In Recess For Purposes Of The Recess Appointment Clause?, Michael A. Carrier

Michigan Law Review

This Note argues that courts should interpret the Constitution to allow the President to make recess appointments only during intersession recesses of the Senate. Part I chronicles the history of presidential recess appointments. This Part highlights the increasing frequency of, and questionable need for, intrasession recess appointments in the past twenty-five years. Part II examines the text of the Recess Appointments Clause and the intentions of the Framers regarding the scope of the clause and the appointment power in general. This Part argues that the text and the Framers' intentions indicate that the President's power to make recess appointments should …

Insider Trading Deterrence Versus Managerial Incentives: A Unified Theory Of Section 16(B), Merritt B. Fox

Michigan Law Review

Part I of this article assesses the social costs of a crude rule of thumb. Because section 16(b) applies to a given class of paired transactions, it deters both transactions based on inside information and transactions not so based. Each time section 16(b) is stretched to include a class of paired transactions, it deters some additional innocent transactions. This side effect will take the form of officers' and directors' purchasing fewer shares in their own companies and refusing to accept as large a portion of their compensation in a form based on share price. There are strong theoretical and empirical …

The Equal Access To Justice Act--Are The Bankruptcy Courts Less Equal Than Others?, Matthew J. Fischer

Michigan Law Review

This Note argues that the bankruptcy courts have authority under the BAJA to shift fees against the federal government. Part I discusses the relevant caselaw and examines the basis of the current controversy. Part II examines the statutory language, the legislative history, and the stated purposes of the BAJA and concludes that each of these aspects of the statute demonstrates a congressional intent to grant fee-shifting authority to the bankruptcy courts. Part III considers alternatives to finding bankruptcy court jurisdiction over BAJA disputes, rejecting each as inefficient and unnecessary. This Note concludes that courts should construe the BAJA consistently with …

A More Democratic Liberalism, Joshua Cohen

Michigan Law Review

A Review of Political Liberalism

The Politics Of The Income Tax, Joseph Bankman

Michigan Law Review

A Review of Dimensions of Law in the Service of Order: Origins of the Federal Income Tax by Robert Stanley

Making Elite Lawyers: Visions Of Law At Harvard And Beyond, Daniel A. Cohen

Michigan Law Review

A Review of Making Elite Lawyers: Visions of Law at Harvard and Beyond by Robert Granfield

Divorce, Custody, Gender, And The Limits Of Law: On Dividing The Child, Lee E. Teitelbaum

Michigan Law Review

A Review of Dividing the Child: Social and Legal Dilemmas of Custody by Elanor E. Maccoby and Robert H. Mnookin

Beyond The Reasons Stated In Judgments, Giorgio Gaja

Michigan Law Review

A Review of The Legal Reasoning of the European Court of Justice: Towards a European Jurisprudence by Joxerramon Bengoetxea

Rehabilitating Federalism, Erwin Chemerinsky

Michigan Law Review

A Review of To Make a Nation: The Rediscovery of American Federalism by Samuel H. Beer

Moses And Modernism, Neil H. Cogan

Michigan Law Review

A Review of The Bill of Rights and the States: The Colonial and Revolutionary Origins of American Liberties by Patrick T. Conley and John P. Kaminski and State Constitutional Law: Litigating Individual Rights, Claims and Defenses by Jennifer Friesen and Reference Guides to the State Constitutions of the United States

The Constitution Of Reasons, Robin L. West

Michigan Law Review

A Review of The Partial Constitution by Cass R. Sunstein