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Articles 1 - 30 of 68
Full-Text Articles in Law
Government Corruption And The Right Of Access To Courts, Una A. Kim
Government Corruption And The Right Of Access To Courts, Una A. Kim
Michigan Law Review
This Note addresses the question left unanswered in Harbury: whether these denial of access-to-courts cases, which Justice Souter termed "backward-looking" access claims, are valid exercises of a constitutional right. Backward-looking access claims such as Harbury's differ from traditional denial of access-to-courts claims in that their aim is not to remove impediments to bringing causes of action in the future. Rather, backward-looking access claims allege that a suit that could have been filed in the past was not brought or was not litigated effectively, because access to the courts was at that time denied or obstructed by government officials. …
Mitigation And The Americans With Disabilities Act, Jill Elaine Hasday
Mitigation And The Americans With Disabilities Act, Jill Elaine Hasday
Michigan Law Review
It is an open question whether the prohibition on employment discrimination in the Americans with Disabilities Act (ADA) protects plaintiffs who have not attempted to mitigate the effect of their disability on their ability to work. Suppose, for example, that a job applicant has severely impaired vision because of a corneal disease. He can have corneal transplant surgery that his doctors recommend and expect will allow him to see much more clearly, but he does not want to have the surgery because of the complications sometimes associated with the operation and the possibility that the surgery will not work. He …
The Forgotten Constitutional Right To Present A Defense And Its Impact On The Acceptance Of Responsibility-Entrapment Debate, Katrice L. Bridges
The Forgotten Constitutional Right To Present A Defense And Its Impact On The Acceptance Of Responsibility-Entrapment Debate, Katrice L. Bridges
Michigan Law Review
This Note argues that Section 3El.1 of the Federal Sentencing Guidelines must be interpreted to allow defendants who claim entrapment at trial to remain eligible for the acceptance-of-responsibility adjustment. To interpret Section 3El.1 in any other way would run afoul of defendants' constitutional right to present a defense. Part I argues that the entrapment defense does not put factual guilt at issue; instead the entrapment defense challenges whether the statute should apply to the defendant's conduct. Part II contends that the legislative intent in creating the sentencing guidelines in general and the acceptance-of-responsibility adjustment in particular are furthered by requiring …
Copyright's Communications Policy, Timothy Wu
Copyright's Communications Policy, Timothy Wu
Michigan Law Review
There is something for everyone to dislike about early twenty-first century copyright. Owners of content say that newer and better technologies have made it too easy to be a pirate. Easy copying, they say, threatens the basic incentive to create new works; new rights and remedies are needed to restore the balance. Academic critics instead complain that a growing copyright gives content owners dangerous levels of control over expressive works. In one version of this argument, this growth threatens the creativity and progress that copyright is supposed to foster; in another, it represents an "enclosure movement" that threatens basic freedoms …
The Inclusive Command: Voluntary Integration Of Sexual Minorities Into The U.S. Military, Jennifer Gerarda Brown, Ian Ayres
The Inclusive Command: Voluntary Integration Of Sexual Minorities Into The U.S. Military, Jennifer Gerarda Brown, Ian Ayres
Michigan Law Review
Many opponents of gays in the military will accept the proposition that gay and lesbian soldiers, most of them closeted, have served their country bravely and well. General Colin Powell has referred to gay service members as "proud, brave, loyal, good Americans" who have "served well in the past and are continuing to serve well." General H. Norman Schwartzkopf agrees: "homosexuals have served in the past and have done a great job serving their country." What these opponents find harder to accept is the proposition that heterosexual people can effectively serve their country if openly gay people are in the …
Turning The Page On Section 5: The Implication Of Multiracial Coalition Districts On Section 5 Of The Voting Rights Act, Daniel A. Zibel
Turning The Page On Section 5: The Implication Of Multiracial Coalition Districts On Section 5 Of The Voting Rights Act, Daniel A. Zibel
Michigan Law Review
This Note analyzes the use of coalition districts in light of current section 5 and equal protection jurisprudence and argues that, in some circumstances, the Equal Protection Clause compels the use of coalition districts to achieve non retrogression under section 5. Part I examines the use of coalition districts, using the litigation in Page v. Bartels as an example. It then argues that the Supreme Court's opinion in Georgia v. Ashcroft permits jurisdictions to create viable racial coalition districts to comply with section 5. Part II argues that while Georgia v. Ashcroft permits the use of coalition districts to achieve …
Lawrence V. Texas And Judicial Hubris, Nelson Lund, John O. Mcginnis
Lawrence V. Texas And Judicial Hubris, Nelson Lund, John O. Mcginnis
Michigan Law Review
The republic will no doubt survive the Supreme Court's decision, in Lawrence v. Texas, to invalidate laws against private, consensual sodomy, including those limited to homosexual behavior. Such laws are almost never enforced, and the rare prosecutions for such acts are necessarily capricious. So the principal direct effect of the Court's decision is likely to be extremely limited, and largely salutary: a few individuals will be spared the bad luck of getting a criminal conviction for violating laws that are manifestly out of step with prevailing sexual mores. Nor are we likely to see anything like the intense political …
Sexual Orientation And The Paradox Of Heightened Scrutiny, Nan D. Hunter
Sexual Orientation And The Paradox Of Heightened Scrutiny, Nan D. Hunter
Michigan Law Review
In Lawrence v. Texas, the Supreme Court performed a double move, creating a dramatic discursive moment: it both decriminalized consensual homosexual relations between adults, and, simultaneously, authorized a new regime of heightened regulation of homosexuality. How that happened and what we can expect next are the subjects of this essay. The obvious point of departure for an analysis of Lawrence is its decriminalization of much sexual conduct. Justice Scalia began this project with his dire warning that "[s]tate laws against bigamy, samesex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are . . . sustainable only in …
Foreword: Loving Lawrence, Pamela S. Karlan
Foreword: Loving Lawrence, Pamela S. Karlan
Michigan Law Review
Two interracial couples. Two cases. Two clauses. In Loving v. Virginia, the Supreme Court struck down a Virginia statute outlawing interracial marriage. In Lawrence v. Texas, the Court struck down a Texas statute outlawing sexual activity between same-sex individuals. Each case raised challenges under both the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment.
The Unknown Past Of Lawrence V. Texas, Dale Carpenter
The Unknown Past Of Lawrence V. Texas, Dale Carpenter
Michigan Law Review
On the night of September 17, 1998, someone called the police to report that a man was going crazy with a gun inside a Houston apartment. When Harris County sheriff's deputies entered the apartment they found no person with a gun but did witness John Lawrence and Tyron Gamer having anal sex. This violated the Texas Homosexual Conduct law, and the deputies hauled them off to jail for the night. Lawyers took the men's case to the Supreme Court and won a huge victory for gay rights. So goes the legend of Lawrence v. Texas. Do not believe it. …
Recent Books, Michigan Law Review
Recent Books, Michigan Law Review
Michigan Law Review
A list of books recently received by the Michigan Law Review.
Surviving Lawrence V. Texas, Marc Spindelman
Surviving Lawrence V. Texas, Marc Spindelman
Michigan Law Review
The lesbian and gay communities have reacted to the Supreme Court's decision in Lawrence v. Texas - striking down state sodomy laws on Due Process grounds - with unbridled enthusiasm. Lawrence has variously been praised as an unmitigated victory for lesbian and gay rights, a turning point in our community's history, and the moment when we have gone from second-class political outcasts to constitutional persons with first-class rights. Obviously, something remarkable happened in Lawrence. In an opinion written by Justice Anthony Kennedy, the Court declared that John Geddes Lawrence and Tyrone Gamer, who had been convicted under Texas's sodomy …
American Conversations With(In) Catholicism, Richard W. Garnett
American Conversations With(In) Catholicism, Richard W. Garnett
Michigan Law Review
The jacket photo for John T. McGreevy's Catholicism and American Freedom is striking. In the foreground, a young and vigorous Pope John Paul II, censer in hand, strides across an altar platform on the Mall in Washington, D.C. His attention is fixed off-camera, presumably at the altar he is about to reverence with incense. At the bottom of the picture, gathered around and below the platform, sits a grainy group of mitre-wearing bishops. Looming directly over the scene, in the background yet dominating the photograph, is the towering dome of the U.S. Capitol Building. This picture is worth many thousand …
Market Efficiency And Rationality: The Peculiar Case Of Baseball, Richard H. Thaler, Cass R. Sunstein
Market Efficiency And Rationality: The Peculiar Case Of Baseball, Richard H. Thaler, Cass R. Sunstein
Michigan Law Review
In this lively book, Michael Lewis explores a topic that would seem of interest only to sports fans: how Billy Beane, the charismatic general manager of the Oakland Athletics, turned his baseball team around using, of all things, statistics. What next - an inspirational tale about superior database management? But there are some general lessons in Lewis's book that make it worth the attention of people who do not know the difference between a slider and a screwball (a group that, unfortunately, includes many lawyers and law professors). Those lessons have to do, above all, with the limits of human …
1984, William H. Rehnquist
1984, William H. Rehnquist
Michigan Law Review
1984 by George Orwell was published in 1949. Set in London thirty-five years in the future, the world has greatly changed. It is now dominated by only three powers - Eastasia, composed of China, Japan, and Southeast Asia; Eurasia, composed of continental Europe and Northern Africa; and Oceania, composed of North and South America and the British Isles. The latter no longer exists as a political entity - they are known as Airstrip Seven. But London is still London, the capital of Airstrip Seven. The novel recounts the life of Winston Smith, a midlevel bureaucrat in a society totally controlled …
Multinational Antitrust: Lessons From The U.S. Experience, Douglas H. Ginsburg
Multinational Antitrust: Lessons From The U.S. Experience, Douglas H. Ginsburg
Michigan Law Review
The globalization of business has resulted in a host of new issues facing antitrust regulators. As they rush to meet the challenges presented by the vastly greater volume of international business transactions, the increasing consolidation of global business operations, and the rapid evolution of computing and communications networks, the regulators leave in their wake an increasingly onerous burden on businesses engaged in international commerce. There is little guidance available, however, to the antitrust neophyte who wants to become familiar with these developments. They, as well as legal and economic scholars, lawyers, and others already steeped in antitrust law - or …
The "No Property" Problem: Understanding Poverty By Understanding Wealth, Jane B. Baron
The "No Property" Problem: Understanding Poverty By Understanding Wealth, Jane B. Baron
Michigan Law Review
Could it be that understanding homelessness and poverty is less a function of understanding the homeless and the poor than of understanding how the wealthy come to ignore and tolerate them? This is one of the more intriguing suggestions of anthropologist Kim Hopper's Reckoning with Homelessness, and it echoes claims made by lawyers who, like Hopper, have spent much of their careers advocating on behalf of the homeless. While Hopper's new book is first and foremost a work of anthropology, its structure strongly parallels recent work by legal scholars who have sought to assess the effects of litigation and lobbying …
Pleas' Progress, Stephanos Bibas
Pleas' Progress, Stephanos Bibas
Michigan Law Review
George Fisher's new book, Plea Bargaining's Triumph, is really three books in one. The first part is a careful, detailed explanation of how and why plea bargaining exploded in Middlesex County, Massachusetts in the nineteenth century. This part is the fruit of an impressive amount of original research in Massachusetts court records and newspaper archives. The second part of the book looks more broadly at other academic histories of plea bargaining in England, California, and New York. It explains how the forces that produced plea bargaining in Middlesex County likewise contributed to plea bargaining's rise elsewhere. The final part …
The Ethnic Question In Law And Development, Lan Cao
The Ethnic Question In Law And Development, Lan Cao
Michigan Law Review
World on Fire: How Exporting Free Market Democracy Breeds Ethnic Hatred and Global Instability, by Professor Amy Chua, is an analytically complex narrative of contemporary ethnic violence in the current era of globalization. Although such violence has historical roots, according to Chua it has also been fueled by free-market forces and democratization. The book is a forceful and provocative indictment of the current U.S. policy of promoting and exporting markets and democracy to developing and formerly communist, market-transitional countries. In her book, Professor Chua applies her thesis - that ethnicity, global capitalism, and democracy are a volatile mix - …
If Women Don't Ask: Implications For Bargaining Encounters, The Equal Pay Act, And Title Vii, Charles B. Craver
If Women Don't Ask: Implications For Bargaining Encounters, The Equal Pay Act, And Title Vii, Charles B. Craver
Michigan Law Review
Last spring, Jennifer and Richard graduated from the same law school with similar backgrounds. Both were offered associate positions with the same law firm and a $75,000 starting salary. Jennifer enthusiastically accepted the firm's offer, but Richard was hesitant. He informed the hiring partner that comparable firms in this area were paying new associates $80,000 per year. The partner offered Richard a starting salary of $80,000, which he accepted. Felicia and Harold manage similar departments for an e-commerce business. They have similar backgrounds, and have been with this firm for the same number of years. When Harold meets with the …
Justice In The Time Of Terror, Sharon L. Davies
Justice In The Time Of Terror, Sharon L. Davies
Michigan Law Review
On my drive into work recently I found myself behind a Ford pickup truck and noticed its bumper sticker: "When the going gets tough, I get a machine gun." Not a doctor. Not a counselor or mediator. Not a shelter for cover. Not the wisdom of a favored advisor or a proven friend. But a machine gun. How odd, I thought, to prefer a weapon incapable of identifying with any precision, any careful thought, where the enemy of the wielder of it might actually be hidden. A weapon as apt to injure non-targets as targets. A weapon mindless of its …
Justice For The Collective: The Limits Of The Human Rights Class Action, Paul R. Dubinsky
Justice For The Collective: The Limits Of The Human Rights Class Action, Paul R. Dubinsky
Michigan Law Review
The class action lawsuit is our grand procedural experiment in collective justice. As against the U.S. legal system's strong orientation toward individual rights rather than group rights, the class action is a countercurrent. Through Rule 23 of the Federal Rules of Civil Procedure, large numbers of previously unaffiliated individuals can proceed in federal court as a group, litigating through representatives. A recent form of this litigation, the human rights class action, takes this experiment to its far reaches. In the human rights class action, the tension between individual claimants and the group as a whole can be heightened. The class …
Are Single-Sex Schools Inherently Unequal?, Michael Heise
Are Single-Sex Schools Inherently Unequal?, Michael Heise
Michigan Law Review
In chess, a "fork" occurs when a player, in a single move, attacks two or more of an opponent's pieces simultaneously, forcing a necessary choice between unappealing outcomes. Similar to the potentially devastating chess move, single-sex public schooling forks many constitutionalists and feminists. Constitutionalists are forced to reexamine the "separate but equal" doctrine's efficacy, this time through the prism of gender. Although the doctrine - forged in the crucible of race and overcome in the monumental triumph we know as Brown v. Board of Education - rested dormant for generations, persistent (and increasing) single-sex education options are forcing scholars to …
Euthanasia In America - Past, Present, And Future: A Review Of A Merciful End And Forced Exit, Edward J. Larson
Euthanasia In America - Past, Present, And Future: A Review Of A Merciful End And Forced Exit, Edward J. Larson
Michigan Law Review
Nearly 170 years ago, in the classic first volume of his Democracy in America, Alexis de Tocqueville observed, "Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question." De Tocqueville viewed this as a peculiarly U.S. development. He attributed it to the authority of the judiciary in the United States to review governmental enactments and establish individual rights based on judicial interpretation of the federal and state constitution. "Whenever a law that the judge holds to be unconstitutional is invoked in a tribunal of the United States, he may …
Saving The Constitution: Lincoln, Secession, And The Price Of Union, Craig S. Lerner
Saving The Constitution: Lincoln, Secession, And The Price Of Union, Craig S. Lerner
Michigan Law Review
The year is 1860. After failing to obtain, as he had expected, the Democratic Party nomination for President at its Charleston convention, Stephen Douglas abandons his candidacy. In the ensuing election, Democrat John C. Breckinridge of Kentucky edges Republican Abraham Lincoln. The official platform of the Democratic Party includes endorsement of the Dred Scott decision, slavery's expansion in the federal territories, rigorous enforcement of the Fugitive Slave Act, and elimination of the tariff. Abolitionists in New England are inconsolable. For several years, Henry Lloyd Garrison had advocated Northern secession, denouncing the Constitution as a "union with slaveholders," and "a covenant …
Why Don't Doctors & Lawyers (Strangers In The Night) Get Their Act Together?, Frances H. Miller
Why Don't Doctors & Lawyers (Strangers In The Night) Get Their Act Together?, Frances H. Miller
Michigan Law Review
Health care in America is an expensive, complicated, inefficient, tangled mess - everybody says so. Patients decry its complexity, health care executives bemoan its lack of coherence, physicians plead for universal coverage to simplify their lives so they can just get on with taking care of patients, and everyone complains about health care costs. The best health care in the world is theoretically available here, but we deliver and pay for it in some of the world's worst ways. Occam's razor ("Among competing hypotheses, favor the simplest one") is of little help here. There are no simple hypotheses - everything …
What's A Judge To Do? Remedying The Remedy In Institutional Reform Litigation, Susan Poser
What's A Judge To Do? Remedying The Remedy In Institutional Reform Litigation, Susan Poser
Michigan Law Review
Democracy by Decree is the latest contribution to a scholarly literature, now nearly thirty-years old, which questions whether judges have the legitimacy and the capacity to oversee the remedial phase of institutional reform litigation. Previous contributors to this literature have come out on one side or the other of the legitimacy and capacity debate. Abram Chayes, Owen Fiss, and more recently, Malcolm Feeley and Edward Rubin, have all argued that the proper role of judges is to remedy rights violations and that judges possess the legitimate institutional authority to order structural injunctions. Lon Fuller, Donald Horowitz, William Fletcher, and Gerald …
The Media At The Tip Of The Spear, Kevin A. Smith
The Media At The Tip Of The Spear, Kevin A. Smith
Michigan Law Review
Due largely to the first widespread availability of the telegraph, through which breaking stories could be transmitted to the presses in moments, the debut of the American war correspondent occurred during the Civil War. From their beginning, American war correspondents have frequently "embedded" with the troops on whom they reported. General Grant, for example, allowed his favorite New York Herald reporter to travel with his entourage, and even used him as a personal messenger. Reporters proved an important component of the war effort for both the North and the South. Papers on both sides proved willing providers of propaganda to …
Generalizing Disability, Michael Ashley Stein
Generalizing Disability, Michael Ashley Stein
Michigan Law Review
Published in 1949, Joseph Tussman and Jacobus tenBroek's article The Equal Protection of the Laws has exerted longstanding influence on subsequent Fourteenth Amendment scholarship. Insightfully, Tussman and tenBroek identified a paradox: although the very notion of equality jurisprudence is a "pledge of the protection of equal laws," laws themselves frequently classify individuals, and "the very idea of classification is that of inequality." Notably, classification raises two sometimes concurrent varieties of inequality: over-inclusiveness and under-inclusiveness. Of these, over-inclusiveness is a more egregious equal protection violation due to its ability to "reach out to the innocent bystander, the hapless victim of circumstance …
The Banality Of Evil And The First Amendment, W. Bradley Wendel
The Banality Of Evil And The First Amendment, W. Bradley Wendel
Michigan Law Review
In the late spring and early summer of 1994, hundreds of thousands of people in Rwanda - an estimated ten percent of the population - were brutally murdered by their fellow citizens, generally for the "crime" of belonging to the socially and economically dominant, but numerically minority Tutsi ethnic group. The slaughter followed a systematic propaganda campaign coordinated by the Rwandan government, dominated by members of the Hutu ethnic group, who had long harbored grievances against Tutsis. The campaign demonized Tutsis as "devils," stirred up fear among the largely rural and poor Hutu population by propagating false information about a …