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Articles 1 - 30 of 66
Full-Text Articles in Law
An Original Model Of The Independent Counsel Statute, Ken Gormley
An Original Model Of The Independent Counsel Statute, Ken Gormley
Michigan Law Review
On Friday, October 19, 1973, President Richard M. Nixon took a risky step to de-fang the Watergate investigation that had become a "viper in the bosom" of his Presidency. The U.S. Court of Appeals had just directed him to tum over tape-recordings subpoenaed by Watergate Special Prosecutor Archibald Cox; these taperecordings might prove or disprove White House involvement in the Watergate cover-up. Rather than challenge this ruling, the President conceived a new plan. The White House would prepare summaries of the nine tape-recordings in question, which would be verified by Senator John Stennis, a seventy-two-year-old Democrat from Mississippi, working alone …
Prohibiting Conduct, Not Consequences: The Limited Reach Of The Migratory Bird Treaty Act, Benjamin Means
Prohibiting Conduct, Not Consequences: The Limited Reach Of The Migratory Bird Treaty Act, Benjamin Means
Michigan Law Review
Dissatisfied with the protection afforded wildlife by more recent environmental laws, some environmentalists seek to reinterpret one of the oldest federal environmental laws, the Migratory Bird Treaty Act (MBTA). Long understood simply to regulate hunting, the MBTA makes it illegal to "take" or "kill" migratory birds without a permit. The MBTA imposes strict liability for a violation. A heady combination of strict liability, criminal penalty provisions, and vague language, the MBTA appeals to those seeking to control land use activity. Some environmentalists advocate an interpretation of the MBTA that, contrary to legislative intent and 80 years of enforcement practice, would …
The Political Economy Of Statutory Reach: U.S. Disclosure Rules In A Globalizing Market For Securities, Merritt B. Fox
The Political Economy Of Statutory Reach: U.S. Disclosure Rules In A Globalizing Market For Securities, Merritt B. Fox
Michigan Law Review
This Article addresses the appropriate reach of the U.S. mandatory securities disclosure regime. While disclosure obligations are imposed on issuers, they are triggered by transactions:- the public offering of, or public trading in, the issuers' shares. Share transactions are taking o n an increasingly transnational character. The barriers to a truly global market for equities continue to lessen: financial information is becoming increasingly globalized and it is becoming increasingly inexpensive and easy to effect share transactions abroad. There are approximately 41,000 issuers of publicly traded shares in the world. For an ever larger portion of these issuers, there will be …
The Treaty Power And American Federalism, Curtis A. Bradley
The Treaty Power And American Federalism, Curtis A. Bradley
Michigan Law Review
For much of this century, American foreign affairs law has assumed that there is a sharp distinction between what is foreign and what is domestic, between what is external and what is internal. This assumption underlies a dual regime of constitutional law, in which federal regulation of foreign affairs is subject to a different, and generally more relaxed, set of constitutional restraints than federal regulation of domestic affairs. In what is perhaps its most famous endorsement of this proposition, the Supreme Court stated in 1936 that "the federal power over external affairs [is] in origin and essential character different from …
Reflecting On The Subject: A Critique Of The Social Influence Conception Of Deterrence, The Broken Windows Theory, And Order-Maintenance Policing New York Style, Bernard E. Harcourt
Reflecting On The Subject: A Critique Of The Social Influence Conception Of Deterrence, The Broken Windows Theory, And Order-Maintenance Policing New York Style, Bernard E. Harcourt
Michigan Law Review
In 1993, New York City began implementing the quality-of-life initiative, an order-maintenance policing strategy targeting minor misdemeanor offenses like turnstile jumping, aggressive panhandling, and public drinking. The policing initiative is premised on the broken windows theory of deterrence, namely the hypothesis that minor physical and social disorder, if left unattended in a neighborhood, causes serious crime. New York City's new policing strategy has met with overwhelming support in the press and among public officials, policymakers, sociologists, criminologists and political scientists. The media describe the "famous" Broken Windows essay as "the bible of policing" and "the blueprint for community policing." Order-maintenance …
Recent Books, Michigan Law Review
Recent Books, Michigan Law Review
Michigan Law Review
A list of books recenlty received by Michigan Law Review.
Equal Rights, Special Rights, And The Nature Of Antidiscrimination Law, Peter J. Rubin
Equal Rights, Special Rights, And The Nature Of Antidiscrimination Law, Peter J. Rubin
Michigan Law Review
Despite the continued belief held by most Americans that certain characteristics should not form the basis for adverse decisions about individuals in employment, housing, public accommodations, and the provision of a wide range of governmental and private services and opportunities, antidiscrimination laws have increasingly come under attack on the ground that they provide members of the group against whom discrimination is forbidden with "special rights." The "special rights" objection has been voiced most strongly, but not exclusively, against laws that seek to prohibit discrimination on the basis of sexual orientation. This line of attack has not always been effective, but …
Lochner In Cyberspace: The New Economic Orthodoxy Of "Rights Management", Julie E. Cohen
Lochner In Cyberspace: The New Economic Orthodoxy Of "Rights Management", Julie E. Cohen
Michigan Law Review
Ninety-three years ago, in Lochner v. New York, the Supreme Court struck down a maximum-working-hours law for bakers as an impermissible invasion of employer-employee liberty of contract and, by implication, of the employer's property rights in his business. Lochner came to symbolize, and was vilified for, a vision of state power as rigidly circumscribed by the operation of judicially-determined laws of social ordering. By the late 1930s, the Court had changed course and accepted that the states' police power - or, in the case of Congress, the commerce power - encompassed even protective regulation of the parameters of the private …
Books Received, Michigan Law Review
Books Received, Michigan Law Review
Michigan Law Review
A list of books recenlty received by Michigan Law Review.
The Commerce Clause Meets The Delhi Sands Flower-Loving Fly, John Copeland Nagle
The Commerce Clause Meets The Delhi Sands Flower-Loving Fly, John Copeland Nagle
Michigan Law Review
The protagonist in our story has six legs, is one inch long, and dies two weeks after it emerges from the ground. To the untrained eye, the Delhi Sands Flower-Loving Fly looks like, well, a big fly. Entomologists know better. This particular fly can hover like a hummingbird as it uses its long tubular nose to extract nectar from flowers. It can only live in particular fine soils - the Delhi sands - that appear in patches over a forty square mile stretch from Colton to Ontario, California. Today only a few hundred Delhi Sands Flower-Loving Flies survive in less …
Competition And Cooperation, Saul Levmore
Competition And Cooperation, Saul Levmore
Michigan Law Review
When do competitors share assets and other opportunities for mutual gain? Conversely, when do they prefer to distinguish themselves by establishing firm boundaries that produce a minimum of sharing or cooperation despite potential gains from trade? Why, for example, do competing law schools in a single city cooperate so little in offering joint programs and economizing on certain costs even as they use the same casebooks in their courses and borrow from one another's libraries? Why do two competing auto makers rarely sell one another components or use the same expert advertising agency or law firm but then quite often …
Rights Against Rules: The Moral Structure Of American Constitutional Law, Matthew D. Adler
Rights Against Rules: The Moral Structure Of American Constitutional Law, Matthew D. Adler
Michigan Law Review
The Bill of Rights, by means of open-ended terms such as "freedom of speech," "equal protection," or "due process," refers to moral criteria, which take on constitutional status by virtue of being thus referenced. We can disagree about whether the proper methodology for judicial application of these criteria is originalist or nonoriginalist. The originalist looks, not to the true content of the moral criteria named by the Constitution, but to the framers' beliefs about that content; the nonoriginalist tries to determine what the criteria truly require, and ignores or gives less weight to the framers' views. Bracketing this disagreement, however, …
Ultra Vires Takings, Matthew D. Zinn
Ultra Vires Takings, Matthew D. Zinn
Michigan Law Review
When does legislative or administrative regulatory action "go[] too far" and effectively amount to an .appropriation of private property for which the Fifth Amendment requires just compensation? This question has turned out to be one of the thorniest in American constitutional law. The Supreme Court has identified several circumstances in which one can expect to find a regulatory taking, but its numerous pronouncements on the subject give no clear rule to distinguish compensable takings from noncompensable interference with property rights. Notwithstanding its volume, the commentary on the Takings Clause by and large addresses only proper governmental action that rises to …
A Tribute To Theodore J. St. Antoine, Jeffrey S. Lehman
A Tribute To Theodore J. St. Antoine, Jeffrey S. Lehman
Michigan Law Review
The University of Michigan Law School was ninety-five years old when Ted St. Antoine first entered Hutchins Hall in 1951. In half as many years, he profoundly influenced the institution, its traditions, and its character. Ted came west to Michigan after studying philosophy and theology at Fordham College in New York City. He came with the proven abilities of a summa cum laude. He came ready to engage what he considered a more practical challenge: he wanted to become a lawyer.
Professor Theodore J. St. Antoine: A Legendary Figure, Harry T. Edwards
Professor Theodore J. St. Antoine: A Legendary Figure, Harry T. Edwards
Michigan Law Review
Ted St. Antoine's career as a law professor started more than three decades ago, in 1965, just after I had graduated from the University of Michigan Law School. I never had the good fortune to experience Ted in the classroom and I have always regretted that, for he has been a legendary teacher at the University of Michigan Law School. Indeed, even among those of us who graduated before his arrival at Michigan, Ted quickly gained a reputation as one of the finest classroom teachers ever to deliver a lecture in Hutchins Hall. He has graced his classes with brilliance, …
Ted St. Antoine: An Appreciation, Benjamin Aaron
Ted St. Antoine: An Appreciation, Benjamin Aaron
Michigan Law Review
In seeking to encompass the many facets of Ted St. Antoine's complex life and career, one thinks of other persons to whom he can be compared. John Maynard Keynes comes immediately to mind. Although Ted may never attain the worldwide renown and influence of the great British economist, the two men share several significant traits. Like Keynes, St. Antoine is an internationally prominent and respected scholar in his own field. Like him, also, Ted is a bon vivant and a lover of the arts. He can generally be relied upon for information about the best places to eat, especially in …
Recent Books, Michigan Law Review
Recent Books, Michigan Law Review
Michigan Law Review
A list of books recently received by the Michigan Law Review.
Reply: Did The Fourteenth Amendment Repeal The First?, Jed Rubenfeld
Reply: Did The Fourteenth Amendment Repeal The First?, Jed Rubenfeld
Michigan Law Review
To get right to the point: Mr. Hacker does not disagree that the Establishment Clause would, in the absence of the Fourteenth Amendment, have prohibited Congress from passing a nationwide religion law like RFRA. He believes, however, that the Fourteenth Amendment has in part repealed the First. Of course, he doesn't want to say repealed. The language of repeal is not pleasant to the ears of those who would like to forget about First Amendment antidisestablishmentarianism. The Fourteenth Amendment did not "repeal any aspect of the text of the [Establishment] Clause," Hacker says, but only "change[d] profoundly the meaning of …
Race, Rights, And Remedies In Criminal Adjudication, Pamela S. Karlan
Race, Rights, And Remedies In Criminal Adjudication, Pamela S. Karlan
Michigan Law Review
Once upon a time, back before the Warren Court, criminal procedure and racial justice were adjacent hinterlands in constitutional law's empire. In 1954, the fifth edition of Dowling's constitutional law casebook contained one chapter on "procedural due process" in which six of the eight cases were about criminal justice, and three of those - Powell v. Alabama, Moore v. Dempsey, and Bailey v. Alabama - were as much about race as they were about crime. A few pages later, two slender chapters on the "national protection of civil rights" and "equal protection of the laws" contained seven and nine decisions, …
Recent Books, Michigan Law Review
Recent Books, Michigan Law Review
Michigan Law Review
A list of books recently received by the Michigan Law Review.
Kahan On Mistakes, Daniel Yeager
Kahan On Mistakes, Daniel Yeager
Michigan Law Review
In Ignorance of Law Is an Excuse - but Only for the Virtuous, Professor Dan Kahan reconciles what I had thought was an irreconcilable body of law. To be sure, imposing order on whether and when mistakes of law should pass as responsibility-evading accounts of untoward actions is far from light work. Yet Kahan somehow pulls it off in just twenty-seven pages. In addition to acknowledging the importance of Professor Kahan's essay, I write here to point out if not correct what might have been two oversights in his view of the meaning and operation of mistakes. First, Kahan never …
Rush To Closure: Lessons Of The Tadić Judgment, Jose E. Alvarez
Rush To Closure: Lessons Of The Tadić Judgment, Jose E. Alvarez
Michigan Law Review
In 1993 and 1994, following allegations of mass atrocities, including systematic killings, rapes, and other horrific forms of violence in Rwanda and the territories of the former Yugoslavia, two ad hoc international war crimes tribunals were established to prosecute individuals for grave violations of international humanitarian law, including genocide. As might be expected, advocates for the creation of these entities - the first international courts to prosecute individuals under international law since the trials at Nuremberg and Tokyo after World War II - aspired to grand goals inspired by, but extending far beyond, the pedestrian aims of ordinary criminal prosecutions. …
Reply: Is Ignorance Of Fact An Excuse Only For The Virtuous?, Dan M. Kahan
Reply: Is Ignorance Of Fact An Excuse Only For The Virtuous?, Dan M. Kahan
Michigan Law Review
Professor Yeager's thoughtful response to my essay has convinced me that there is indeed a connection worth noting between the mistake of law doctrine and the mistake of fact doctrine. Yeager suggests that my position on mistake of law reduces to the view that someone who would be guilty of a "lesser wrong" were things as he perceived them to be may be punished for the "greater wrong" that he actually commits - a conception of mistake of fact that has provoked fierce denunciation from commentators. But I would in fact put things slightly differently: under both doctrines courts excuse …
A Response To Professor Rubenfeld, Jonathan D. Hacker
A Response To Professor Rubenfeld, Jonathan D. Hacker
Michigan Law Review
Professor Jed Rubenfeld has offered in these pages an ingenious explanation for why the Supreme Court was right to strike down the Religious Freedom Restoration Act (RFRA) in City of Boerne v. Flores. Rubenfeld finds in the First Amendment's Establishment Clause a historical and inherent principle he calls "antidisestablishmentarianism": a prohibition on acts of Congress that "disestablish" religion in the several states. Rubenfeld reads the Establishment Clause as proscribing not only congressional acts that "establish" religion but also all congressional acts that "dictate a position on religion for states," including laws designed to ensure that states abide by the requirements …
Criminal Procedure, Justice, Ethics, And Zeal, Darryl K. Brown
Criminal Procedure, Justice, Ethics, And Zeal, Darryl K. Brown
Michigan Law Review
William Stuntz's recent article, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, offers a series of thoughtful observations on the reasons that criminal procedure doctrines designed to protect defendants have done so little to improve the criminal justice system. Stuntz's article describes the unintended effects of attempts by the United States Supreme Court to improve criminal justice by closely regulating criminal procedure. That procedural focus has had perverse effects because, in a dynamic criminal justice system, other institutional players have responded to procedural rules in ways that undermine appellate courts' goals. Specifically, legislatures have reacted by expanding substantive criminal …
Food Stamp Trafficking: Why Small Groceries Need Judicial Protection From The Department Of Agriculture (And From Their Own Employees), Elliot Regenstein
Food Stamp Trafficking: Why Small Groceries Need Judicial Protection From The Department Of Agriculture (And From Their Own Employees), Elliot Regenstein
Michigan Law Review
A neon sign in the window of 7-Van Drugs reads "Food Stamps," but the contradictory truth is posted inside on a handwritten sign taped to a thick pane of bulletproof plastic. 7-Van Drugs sits at the intersection of Seven Mile Road and Van Dyke in northern Detroit, where it has "serv[ ed] the community since 1948 at the same corner." Inside 7-Van is an array of staple foods and basic household cleaning items, and there is a small pharmacy in the back. Customers must use a turnstile to pass their purchases through the bulletproof plastic to the cashier. There are …
Police And Thieves, Rosanna Cavallaro
Police And Thieves, Rosanna Cavallaro
Michigan Law Review
What is it about New York City that has, in the last few years, spawned a series of books attacking the criminal justice system and describing a community in which victims' needs are compelling while the rights of the accused are an impediment to justice? Why does this apocalyptic vision of the system persist, despite statistics demonstrating the sharpest decline in the city's and the nation's crime rates in decades? What explains the acute detachment from the accused that is at the core of this series of books? In Virtual Justice: The Flawed Prosecution of Crime in America, Richard Uviller …
Guerrillas In Our Midst: The Assault On Radicals In American Law, Daria Roithmayr
Guerrillas In Our Midst: The Assault On Radicals In American Law, Daria Roithmayr
Michigan Law Review
On October 9, 1997, radicals everywhere celebrated the thirtieth anniversary of the death of Che Guevara, the revered Cuban and South American rebel known as much for his guerrilla manifestos as for his scraggly facial hair and the black beret positioned slightly askance. At the same time Latin Americans and revolutionaries were marking the death of their beloved Che, Professors Daniel Farber and Suzanna Sherry were publishing their long-awaited book, Beyond All Reason: The Radical Assault on Truth in American Law. The professors' timing was, unintentionally, quite appropriate. Like many of Che's manifestos, the book sounds an ideological call to …
Public Choice Theory And The Fragmented Web Of The Contemporary Administrative State, Jim Rossi
Public Choice Theory And The Fragmented Web Of The Contemporary Administrative State, Jim Rossi
Michigan Law Review
Since World War II, public choice theory - defined broadly as the application of the assumptions and methodology of microeconomics to describe or predict the way public officials exercise power - has grown from a fledgling movement, gaining mainstream acceptance and respect for its insights into voting behavior, judicial decisionmaking, and other public actions. Although a theory first explored by economists and political scientists, public choice's normative insights have earned credibility in recent years in academic legal literature. Public choice's acceptance in the law school curriculum is demonstrated by the recent publication of course material on the topic. However, despite …
Takeover: German Reunification Under A Magnifying Glass, Mathias Reimann
Takeover: German Reunification Under A Magnifying Glass, Mathias Reimann
Michigan Law Review
My first personal experience with the unification of my home country was an unlikely encounter in an unlikely place. In July 1990, I was strolling across the Ponte Vecchio in Florence when I saw something so bizarre that it stopped me in my tracks. At the southern end of the bridge, deep in the pedestrian zone - off limits to automobiles - and right in the middle of the tourist crowd, was a lonely car, occupied by four obviously disoriented people. It was not just any car but a small, drab, and amusingly antiquated vehicle puffing bluish smoke from a …