Law Commons^™

Behavioral Genetics And The Best Interests Of The Child Decision Rule, David J. Herring

University of Michigan Journal of Law Reform

This Article proposes that modern child custody law should be reassessed in light of recent scientific findings. Judicial determinations of custody use the "best interests of the child" rule. The rule is justified to a large extent by the goal of maximizing child developmental outcomes. The assumption is that a child whose "best interests" are protected stands a better chance of becoming a socially well-adjusted, productive and prosperous citizen.

Recent child development studies have shown that so-called "shared environment, "or home environment factors have little effect on child development so long as the shared environment is minimally adequate. Genetics and …

Who's Talking? Disentangling Government And Private Speech, Leslie Gielow Jacobs

University of Michigan Journal of Law Reform

Several different constitutional rules apply to government actions that influence the content of speech. The government has far more discretion to determine speech content when the government itself is the speaker than when it regulates private speakers. Specifically, in the former circumstance, the government can discriminate according to viewpoint, whereas in the latter circumstance it cannot. While the application of the rules may be obvious when either the government or private entities speak alone, increasingly, through various different types of interactions, government and private groups or individuals are speaking together. This circumstance complicates the crucial constitutional determination, which is: who's …

Theorizing Behavioral Law And Economics: A Defense Of Evolutionary Analysis And The Law, Neel P. Parekh

University of Michigan Journal of Law Reform

Behavioral law and economics (BLE) provides a steady stream of empirical evidence that counters the predictions of law and economics. Despite this research and data, however, many theorists argue that BLE ultimately fails because it posits no underlying theory. This Note argues that perspectives from evolutionary biology, evolutionary psychology, and the brain sciences can provide the missing motivational theory for BLE's empirical findings. The Note also examines the implications a more consistent and reasoned consideration of evolutionary analysis and the law (EA) has for our legal regime. In theorizing BLE and defending EA, this Note aims to show how evolutionary …

Regret Theory - Explanation, Evaluation And Implications For The Law, Grant B. Gelberg

University of Michigan Journal of Law Reform

This Note discusses regret theory, which offers an alternative explanation of rational behavior in risky or uncertain situations. Unlike traditional law and economics, which is based on expected utility theory, regret theory posits that individuals either rejoice or experience regret after making a decision, and that the anticipation of these feelings influences choices ex ante. In recent years, studies have shown the robustness of regret theory, particularly when individuals compare action to inaction, in disparate feedback environments, and when decisional agency is altered. These, and other factors, influence regret theory's impact on litigant behavior, as well as on the …

One For A, Two For B, And Four Hundred For C: The Widening Gap In Pay Between Executives And Rank And File Employees, Susan J. Stabile

University of Michigan Journal of Law Reform

This Article, focuses on executive pay in relation to that of rank and file workers. It examines the standard justifications for the vast and increasing pay gap between executives (particularly CEOs) and rank and file workers and finds that such arguments do little more than attempt to justify in economic terms a situation that exists for a very different reason. Instead, the author argues, the real reason such a huge and widening gap in pay between executive and rank and file workers exists is market failure in the mechanisms of setting executive pay, aggravated by the shareholder primacy norm, which …

Proposed Amendments To Fed. R. Crim. P. 26: An Exchange: Remote Testimony - A Prosecutor's Perspective, Lynn Helland

University of Michigan Journal of Law Reform

Although the Supreme Court has declined, for now, to endorse the Judicial Conference proposal to add a Rule 26(b) of the Federal Rules of Criminal Procedure to permit live video testimony under limited circumstances, I agree with Professor Friedman that the matter is far from over. This is both because the potential benefits to be realized from the use of remote video testimony are too large to ignore and because, on closer inspection, any Confrontation Clause concerns that might underlie the Court's hesitation to adopt the proposal are not warranted. My purpose in writing is to summarize some of the …

Carte Blanche For Cruelty: The Non-Enforcement Of The Animal Welfare Act, Katharine M. Swanson

University of Michigan Journal of Law Reform

This Note explores both the judicial and administrative underenforcement of the Animal Welfare Act in protecting the welfare of laboratory animals used for purposes of experimentation. Specifically, the Note suggests that judicial underenforcement is borne as a result of the difficulties of lodging a private cause of action under the Act or gaining standing under the alternative statutory scheme of the Administrative Procedure Act. It further suggests administrative underenforcement in describing the promulgated regulations of the Act as inadequate and the lack of self-policing mechanisms. Finally, the Note suggests some ways that enforcement can be made more effective in these …

After Ellerth: The Tangible Employment Action In Sexual Harassment Analysis, Susan Grover

University of Michigan Journal of Law Reform

In this Article, Professor Grover argues that courts too readily allow employers to avoid vicarious liability for supervisors' unlawful sexual harassment of subordinates. The Article explores the breadth of the affirmative defense first introduced in the Supreme Court's 1998 cases of Faragher v. Boca Raton and Burlington Indus., Inc. v. Ellerth. That defense clears an employer of liability for a supervisor's unlawful sexual harassment if (a) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the …

Race, Class, And Suburbia: The Modern Black Suburb As A 'Race-Making Situation', Mary Jo Wiggins

University of Michigan Journal of Law Reform

In her Article, Professor Wiggins discusses the complex social phenomenon of "Black suburbanization, " focusing on the commercial "disinvestment" in and around predominately Black suburbs. She traces the historical relationship between Black Americans and the suburbs, and describes in detail the commercial disinvestment in two contemporary Black suburbs, Prince George's County, Maryland, and south DeKalb, Georgia. In her Article, she offers possible explanations for disinvestment, including the application of protective zoning; inefficient zoning laws and practices; prior investment decisions; demographic explanations; and independent effects .of race. Wiggins analyzes some of the resulting negative social and economic consequences, including a sense …

Reevaluating Amateurism Standards In Men's College Basketball, Marc Edelman

University of Michigan Journal of Law Reform

This Note argues that courts should interpret NCAA conduct under the Principle of Amateurism as a violation of§ 1 of the Sherman Antitrust Act and that courts should order NCAA deregulation of student-athletes' indirect financial activities. Part I of this Note discusses the history of NCAA regulation, specifically its Principle of Amateurism. Part II discusses the current impact of antitrust laws on the NCAA. Part III argues that the NCAA violates antitrust laws because the Principle of Amateurism's overall effect is anticompetitive. Part IV argues the NCAA could institute an amateurism standard with a net pro-competitive effect by allowing student-athletes …

Paradigm Shifts And Access Controls: An Economic Analysis Of The Anticircumvention Provisions Of The Digital Millennium Copyright Act, Melissa A. Kern

University of Michigan Journal of Law Reform

This Note addresses the broadened scope of protection granted to copyright holders under the anticircumvention provisions of the Digital Millennium Copyright Act of 1998 (DMCA). This broadened scope extends to copyright holders the right to control access to their works, diminishing the consumer's 'fair use" of those works that previously served as a defense to alleged copyright infringements. While access controls are supported by economists who believe they are useful in correcting market inefficiencies and excluding free riders, this Note suggests that access controls cannot correct all market inefficiencies. Furthermore, such access controls deny access and use of copyrighted material …

Difficulties In Achieving Coherent State And Local Fiscal Policy At The Intersection Of Direct Democracy And Republicanism: The Property Tax As A Case In Point, Mildred Wigfall Robinson

University of Michigan Journal of Law Reform

Professor Robinson explores the uneasiness present when acts of "direct democracy" through means of voter referenda and ballot initiatives conflict with the ideals of representative government, using fiscal matters, such as the property tax, as an example.

Part I explores the changes that have taken place in the last two decades in voter strategy and in patterns of judicial interpretation, briefly reviewing the history of the property tax focusing on taxpayer reaction to long overdue attempts at administrative reform, and showing how that effort indirectly contributed to the "taxpayer revolt. "It further examines how and why broad-scale attempts to utilize …

Parental-Status Employment Discrimination: A Wrong In Need Of A Right?, Peggie R. Smith

University of Michigan Journal of Law Reform

This Article evaluates strategies to challenge employment discrimination based on parental status. Specifically, it examines proposals put forth by some commentators to establish parental status as a protected class. While such a suggestion is attractive, the Article argues that it ultimately offers few practical advantages and remains wedded to a limited conception of equality, requiring only that employment decisions not reflect differences based on parenthood. Consequently, such a strategy would satisfy anti-discrimination legislation so long as both men and women with parental obligations are equally ill-treated. The Article concludes that a shift in perspective from gender to parental status will …

In Light Of Reason And Experience: Against A Crime Fraud Exception To The Psychotherapist-Patient Privilege, Catherine Thompson Dobrowitsky

University of Michigan Journal of Law Reform

This Note argues against the adoption of a crime fraud exception to the federal psychotherapist-patient privilege. Part I argues that the restrictive legal elements of the privilege adequately exclude fraudulent or criminal statements from protection. Part II addresses the needed distinction between the dangerous patient exception and the crime fraud exception to the psychotherapist-patient privilege and concludes that the adoption of a crime fraud exception would threaten a limited dangerous patient exception. Part III contends that the policies underlying the attorney-client and psychotherapist-patient privileges must be distinguished and do not merit a shared crime fraud exception. This Note concludes that …

Seeds Of Distrust: Federal Regulation Of Genetically Modified Foods, Thomas O. Mcgarity

University of Michigan Journal of Law Reform

This Article describes and evaluates the existing federal regulatory regime for protecting public health from risks posed by foods derived from GM plants. Part I briefly describes the technology involved in genetically modifying plants and relates the ongoing debates over the risks and benefits of GM food plants. Part II examines in detail the regulatory regime that has evolved in the United States to regulate the safety of GM foods, focusing in particular upon the pervasive role that the substantial equivalence doctrine has played in that regime. Finally, Part III suggests a more precautionary approach toward regulating GM foods that …

Russian Compliance With Articles Five And Six Of The European Convention Of Human Rights As A Barometer Of Legal Reform And Human Rights In Russia, Jeffrey Kahn

University of Michigan Journal of Law Reform

This Note examines two of Russia's obligations under the European Convention on Human Rights (ECHR): the Article 5 right to liberty and security, and the Article 6 right to a fair trial to gauge Russian compliance with European human rights norms. These articles lie at the heart of systematic legal reform in the Russian Federation. This Note defends the thesis that the agonizingly slow progress of judicial reform and the advancement of human rights in Russia is a function of the inevitable lag of conceptual norms behind institutional reform. Part I explores the weak place of the rule of law …