Law Commons^™

Treating Sexual Harassment With Respect, Anita Bernstein

Faculty Scholarship

No abstract provided.

Regulatory Standards And Products Liability: Striking The Right Balance Between The Two, Teresa Moran Schwartz

University of Michigan Journal of Law Reform

Common law courts have a long tradition of borrowing legislative and regulatory standards to define standards of care under the tort system. Treating such standards as setting minimum levels of care and safety under tort law, the courts uniformly have ruled that violations of standards constitute negligence per se, while compliance is merely evidence of negligence. Although critics of the tort system have urged legislatures and courts to adopt rules giving greater weight to regulatory compliance in products liability cases, the drafters of the Restatement (Third) of Torts: Products Liability have declined to do so. They have adopted instead an …

Arriving At Reasonable Alternative Design: The Reporters' Travelogue, James A. Henderson Jr., Aaron D. Twerski

University of Michigan Journal of Law Reform

Substantial commentary and controversy have been generated by the requirement in the new Restatement (Third) of Torts: Products Liability that plaintiffs in most (but not all) cases involving claims of defective product design show that a reasonable alternative design was available and that failure to adopt the alternative rendered the defendant's design not reasonably safe. Henderson and Twerski explain the origins of that requirement in American products liability case law and show that it is not only the majority position but also comports with widely shared views regarding the proper objectives of our liability system. Although consumer expectations cannot serve …

The Constitution, The White House, And The Military Hiv Ban: A New Threshold For Presidential Non-Defense Of Statutes, Chrysanthe Gussis

University of Michigan Journal of Law Reform

The President's constitutional duty to 'take Care that the Laws be faithfully executed" implies that the President is entrusted with the responsibility to defend those laws against court challenges. On occasion, however, Presidents faced with legislation that they deem unconstitutional have declined to defend that legislation against legal challenges. On February 10, 1996, President Clinton declined to defend a provision included in the National Defense Authorization Act for Fiscal Year 1996 that required discharge from the military of all HIV-positive servicemembers because he believed that the provision violated the Equal Protection Clause of the Fourteenth Amendment. This Note explores whether …

Property Rights, Reliance, And Retroactivity Under The Communications Act Of 1934, William L. Fishman

Federal Communications Law Journal

Although the FCC and courts have concluded that licensees have certain property interests in their licenses, they do not acquire any ownership interests even when, via a spectrum auction, they pay for their licenses. What narrow property interests licensees maintain are limited, and the FCC has broad power to modify existing licenses if doing so is in the public interest. License owners have sought to limit or defeat otherwise lawful FCC actions to alter their licenses by asserting a reliance interest on prior agency action or policy. Licensees may find comfort in the fact that some courts have acknowledged these …

Using Market-Based Spectrum Policy To Promote The Public Interest, Gregory L. Rosston, Jeffrey S. Steinberg

Federal Communications Law Journal

With the increasing demand for spectrum to accommodate emerging technologies, and the discovery that higher frequencies are usable, the FCC has replaced its reliance on administrative mechanisms for allocating spectrum with a more flexible, market-based approach. The FCC can best accomplish its mission of promoting the public interest by continuing to rely on competitive market forces and by establishing a clear and consistent paradigm for approaching allocation, assignment, usage, and other policies. Such a paradigm envisions an FCC that would actively monitor spectrum to remedy situations in which it is not used to its full value; establish mechanisms to reduce …

The Telecommunications Act Of 1996: Codifying The Digital Divide, Allen S. Hammond Iv

Federal Communications Law Journal

The Telecommunications Act of 1996 purports to ensure every American eventual access to advanced telecommunications networks and services, and more immediate access to basic telephone networks and services. This access is essential because it determines the ease with which Americans can acquire an education, obtain employment, control financial affairs, access emergency assistance, and participate in the political process. The interpretation and implementation of the 1996 Act is critical because there is an imminent danger that a large portion of society— in inner cities, near suburbs, and small towns— not be connected to the "national electronic nervous system." To ensure that …

Whither Unregulated Access Competition?, Clayton C. Miller

Federal Communications Law Journal

Book Review: Universal Service: Competition, Interconnection, and Monopoly in the Making of the American Telephone System, by Milton L. Mueller, Jr., MIT Press and AEI Press, 1997, 191 pages.

Universal Service In The Schools: One Step Too Far?, Christine M. Mason

Federal Communications Law Journal

Universal service is extended to include new recipients, such as schools, as a result of the Telecommunications Act of 1996. The FCC should proceed cautiously, and maintain its commitment to the traditional goal of universal service— Americans with basic telephone services— carrying out this new mandate.

Section 254 Of The Telecommunications Act Of 1996: A Hidden Tax?, Nichole L. Millard

Federal Communications Law Journal

Congress has the sole power to levy and collect taxes. The Supreme Court has ruled that Congress may delegate this authority to administrative agencies so long as the will of Congress is clearly defined in the legislation. However, section 254 of the Telecommunications Act of 1996 operates as an unconstitutional delegation of Congress' authority to tax. This legislation provides the FCC with unfettered discretion in defining the boundaries of universal service and the authority to mandate that all consumers of telecommunications services subsidize the cost for low-income and rural consumers, as well as schools, libraries, and health care providers.

All Wired Up: An Analysis Of The Fcc's Order To Internally Connect Schools, Roxana E. Cook

Federal Communications Law Journal

The Telecommunications Act of 1996 extends universal service support to schools and libraries. Pursuant to this legislation, the FCC has provided all eligible schools with discounts of between twenty and ninety percent on telecommunications services, Internet access, and internal connections— to a 2.25 billion dollar annual cap. Critics have denounced the subsidy for internal connections as unsupported by the Act's language and outside the FCC's authority. However, based on a plain reading of the statute, on case law, and on legislative history, it is clear that the FCC properly exercised discretion in allocating the potential fund.

Evaluating Purely Reproductive Disorders Under The Americans With Disabilities Act, Todd Lebowitz

Michigan Law Review

Approximately 2.8 million American couples suffer from infertility, a condition generally defined by the medical community as the failure to conceive after one year of unprotected intercourse. During the past thirty years, diagnostic and therapeutic techniques for treating infertility have improved drastically, enabling many previously infertile couples to bear children. These techniques, however, involve considerable expense and inconvenience, frequently requiring patients to take time off from work. Disputes with employers may follow, sometimes resulting in the infertile employee's termination. Some terminated employees, claiming that infertility constitutes a disability, then sue their former employers under the Americans with Disabilities Act of …

A Question Of Intent: Aiding And Abetting Law And The Rule Of Accomplice Liability Under § 924©, Tyler B. Robinson

Michigan Law Review

Firearms are common tools of the violent-crime and drugtrafficking trades. Their prevalence is reflected in the frequency with which federal prosecutors charge, juries apply, and courts review 18 U.S.C. §924(c). That provision imposes heavy penalties for either the use or carrying of a firearm "during and in relation to any crime of violence or drug trafficking crime," in addition to the punishment provided for the underlying violent or drug-related offense. A conviction under section 924(c) carries at the very least a mandatory, consecutive five-year sentence, even when the underlying crime already provides enhanced punishment for use of a dangerous weapon …

A Tempered "Yes" To The "Exculpatory No", Scott D. Pomfret

Michigan Law Review

What circumstances trigger a person's duty to tell the truth? Immanuel Kant claimed without qualification that all circumstances require truthtelling, even when speaking the truth injures the speaker. John Henry Cardinal Newman made exceptions for lies that achieved some positive end. Hugo Grotius permitted lies to adversaries. The philosophy of twentieth-century common sense largely permits white lies. Perhaps surprisingly, some courts have found that Kant's absolute prohibition of falsehood more accurately characterizes a speaker's duty to tell the truth to the federal government under 18 U.S.C. § 1001 than these other, more relaxed standards. According to this view, the prohibition …

Equal Protection, Class Legislation, And Colorblindness, Melissa L. Saunders

Michigan Law Review

Scholars and judges have long assumed that the Equal Protection Clause is concerned only with state action that has the effect of singling out certain persons or groups of persons for special benefits or burdens. Under the traditional doctrinal framework, state action that has this purpose and effect bears a certain burden of justification under the clause, a burden whose stringency varies, depending on the criteria used to define the class being singled out for special treatment and the importance of the interest affected. But state action that lacks such a "discriminatory effect" is not, on the traditional understanding, subject …

The Path To Habeas Corpus Narrows: Interpreting 28 U.S.C. § 2254(D)(1), Sharad Sushil Khandelwal

Michigan Law Review

The enforcement of the U.S. Constitution within the criminal justice system is an odd subspecies of constitutional law. In areas other than criminal law, federal courts act as the ultimate guarantors of constitutional rights by providing remedies whenever violations occur. Criminal law, however, is different by necessity; the bulk of criminal justice occurs in state courthouses, leaving constitutional compliance largely to state judges. The U.S. Supreme Court, of course, may review these decisions if it chooses, but a writ of certiorari can be elusive, especially given the Court's shrinking docket. After World War II, however, this feature of criminal constitutional …

Crafting An Advocate For A Child: In Support Of Legislation Redefining The Role Of The Guardian Ad Litem In Michigan Child Abuse And Neglect Cases, Albert E. Hartmann

University of Michigan Journal of Law Reform

Michigan's current statutory system leaves the role of the child's attorney unclear. In this Note, Hartmann advocates the adoption of a legislative proposal that will redefine the role of the child's attorney. The proposal specifies that the child's primary legal representative should be a guardian ad litem who will represent the best interests of the child. Hartmann begins by describing the current system and then analyzes how the proposal will modify the role of the child's attorney. Hartmann argues that the proposed changes would be highly beneficial and identifies specific points of improvement. Hartmann concludes by suggesting several reforms to …

F97rs Sgb No. 18 (Isep Computer), Van Wijk

Student Senate Enrolled Legislation

A BILL

To appropriate fourteen hundred and ninety-nine dollars ($1499.00) to purchase one computer for the ISEP library of the International Services Office.

F97rs Sgb No. 17 (Teach For America), Edwards

Student Senate Enrolled Legislation

A BILL

To appropriate Five Hundred Dollars ($500.00) to the LSU Grass Roots Recruitment Campaign for Teach For America.

F97rs Sgb No. 16 (Mini-Baja), Edel

Student Senate Enrolled Legislation

A BILL

To appropriate One Thousand Dollars ($1000.00) to the LSU Mini-Baja Team.

F97rs Sgr No. 7 (Sg Election), Edwards, Gill

Student Senate Enrolled Legislation

A RESOLUTION

To officially express discontent concerning the actions of both former Trial Court Justice Patrick Patin and former Chief Justice Mike Bayham regarding the recent Student Government Election.

F97rs Sgr No. 8 (Sg Elections), Gill

Student Senate Enrolled Legislation

A RESOLUTION

To formally express the Senate’s disapproval of the unethical, biased, and incompetent performance of Danielle Brown, the Commissioner of Elections, during the recent Student Government elections.

The Political Economy Of The Bankruptcy Reform Act Of 1978, Eric A. Posner

Michigan Law Review

These are the goals of this article. In particular, this article analyzes the legislative history of the Bankruptcy Reform Act of 19783 and related materials, in the hope of describing the influence of interest groups on the final statute. It has, of course, long been assumed that certain narrow provisions of the 1978 Act reflect the influence of interest groups - for example, the section that gives special protection to security and lease interests in aircraft. This article goes farther and argues that fundamental elements of the 1978 Act reflect political compromises among competing interest groups. In particular, I claim …

Are Housekeepers Like Judges?, Stephen P. Garvey

Cornell Law Faculty Publications

Professor Greenawalt proposes that we look at interpretation "from the bottom up." By taking a close look at informal relationships between an authority and his or her agent, and how the agent "faithfully performs" instructions within such relationships, he hopes to gain insight into the problems surrounding the interpretation of legal directives. The analysis of "faithful performance" in informal contexts which Professor Greenawalt presents in From the Bottom Up is the first step in a larger project. His next step is to see what lessons the interpretation of instructions in informal contexts has for law. This Comment tries to contribute …

Testing Testing, Carl E. Schneider

Articles

Last year, Congress passed the Ryan White Care Act Amendments of 1996. The amendments authorize ten million dollars for each fiscal year from 1996 through 2000 for counseling pregnant women on HIV disease, for "outreach efforts to pregnant women at high risk of HN who are not currently receiving prenatal care," and for voluntary testing for pregnant women. The amendments compromise a central question: whether prenatal and neonatal AIDS testing should be compelled. The compromise is complex. The director of the Centers for Disease Control and Prevention is instructed to establish a system for states to use to discover and …

Overcoming Collective Action Problems: Enforcement Of Worker Rights, Louise Sadowsky Brock

University of Michigan Journal of Law Reform

In a period of new employment laws, it is important to determine how those laws are enforced, why enforcement of those laws is sometimes limited and how enforcement can be improved. This Note discusses the ways in which the theory of collective action limits enforcement of three employee rights statutes: the Fair Labor Standards Act, the Occupational Safety and Health Act, and the Worker Adjustment and Retraining Notification Act. Enforcement mechanisms such as class action lawsuits, administrative agencies, employee participation groups, and labor unions represent potential methods of overcoming collective action problems. Each method has its benefits, and the three …

The New "Pick-Your-Own" Statutes: Delineating Limited Immunity From Tort Liability, Terence J. Centner

University of Michigan Journal of Law Reform

Over the past several years, state legislatures have been asked to provide immunity from liability for members of certain interest groups including providers of horses, risky sport activities, and "pick-your-own" produce. This Article reports on statutory provisions providing tort immunity for producers who allow the public to come onto their property to harvest crops. Provisions allowing profit-making businesses to qualify for tort immunity are not new, but the expansion to cover pick-your-own operators signifies a significant policy change regarding personal liability. The pick-your-own provisions may indicate a policy shift imposing greater responsibility for persons engaging in activities to use care …

Telecommunications Act Of 1996: 704 Of The Act And Protections Afforded The Telecommunications Provider In The Facilities Sitting Context, The, Peter M. Degnan, Scott A. Mclaren, Michael T. Tennant

Michigan Telecommunications & Technology Law Review

The Telecommunications Act of 1996, signed into law by President Clinton in February, addresses, among many other important subjects, some of the technical problems that have arisen from the increasing popularity of mobile communications. This article will provide an overview of the Act and will focus specifically on the protections afforded a telecommunications provider in § 704 of the Act.

Digital Television And The Allure Of Auctions: The Birth And Stillbirth Of Dtv Legislation, Ellen P. Goodman

Federal Communications Law Journal

Although relatively few provisions of the 1996 Telecommunication Act relate to digital broadcast television, these provisions have contributed to the ongoing debate over assignment of spectrum for DTV uses. Attention to the disputed issues of DTV has accentuated the differences between methods of spectrum management: how spectrum should be assigned among various services and users, and what roles the FCC and Congress should play. Two camps have emerged from the controversy: one viewing spectrum as a commodity that should be assigned by auction, the other viewing spectrum as a resource that must be allocated according to strict technical criteria and …

Media Mergers: First Step In A New Shift Of Antitrust Analysis?, Keith Conrad

Federal Communications Law Journal

An alarming trend toward concentration of media ownership has been highlighted by Walt Disney's acquisition of Capital Cities/ABC, and Time Warner's acquisition of Turner Broadcasting System. While current antitrust approaches are not expected to stem this trend, antitrust is a constantly evolving area of law. As Chairman of the FTC, Robert Pitofsky is in a position to move antitrust analysis away from the economically focused Chicago School approach, and toward an approach which also considers social and political issues. Consideration of these issues is supported by Pitofsky's own writings and could reduce the trend of media concentration.