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Summary Judgment Before The Completion Of Discovery: A Proposed Revision Of Federal Rule Of Civil Procedure 56(F), John F. Lapham

University of Michigan Journal of Law Reform

Part I of this Note discusses the purpose of summary judgment in a regime of notice pleading. Part II examines how the federal courts have interpreted and applied rule 56(f). Part III suggests that rule 56(f) be modified to require a more significant factual showing before a court may grant a continuance for further discovery. In addition, Part III examines the policy considerations that support a more stringent rule. Finally, Part IV provides a hypothetical example illustrating the benefits of this proposal.

Electronic Media Access To Federal Courtrooms: A Judicial Response, Laralyn M. Sasaki

University of Michigan Journal of Law Reform

This Note examines the ongoing electronic media access dispute and suggests methods to establish access. Because reform of current law would be implemented largely at the judicial "front lines"-the 700-plus U.S. district judges' courtrooms ---the concerns and desires of district judges are of primary importance to any proposed change. The survey documented an institutional resistance to an expanded media presence in federal courtrooms; this institutional inertia may be the strongest single reason that change has not occurred. Part I of this Note presents the federal rules, canons, and resolutions comprising the current prohibition against video and audio-equipment access, as well …

Form And Function In The Administration Of Justice: The Bill Of Rights And Federal Habeas Corpus, Larry W. Yackle

University of Michigan Journal of Law Reform

Part I critiques the Report's insistence that accurate fact finding exhausts, or nearly exhausts, the objectives of criminal justice, identifies the fundamental role of the Bill of Rights in the American political order, and situates federal habeas corpus within that framework. Part II traces the Report's historical review of the federal habeas jurisdiction and critiques the Report's too-convenient reliance on selected materials that, on examination, fail to undermine conventional understandings of the writ's development as a postconviction remedy. Part III responds to the Report's complaints regarding current habeas corpus practice and refutes contentions that the habeas jurisdiction overburdens federal dockets …

Do Jurors Understand Criminal Jury Instructions? Analyzing The Results Of The Michigan Juror Comprehension Project, Geoffrey P. Kramer, Dorean M. Koenig

University of Michigan Journal of Law Reform

The Juror Comprehension Project ("the Project") sought to determine whether jurors understand judicial instructions. This Article reports the results of an empirical study growing out of that Project. The Project investigated how well 600 actual jurors in Michigan understood criminal jury instructions in actual trials. Part I describes the history of the study and explains the procedures and materials used in the study. Part II presents the results of the study, first analyzing juror comprehension of selected concepts, then discussing general factors that influence juror comprehension. Part III concludes that the results show a mixed juror understanding of complex judicial …

Accelerating Integration : Effective Remedies In Public Housing Discrimination Suits, Adam M. Shayne

University of Michigan Journal of Law Reform

This Note examines the different remedies employed by judges to integrate public housing and recommends a standard approach for courts to employ in the future. Part I describes the status of local and federal public housing policy in the United States. Part II examines litigation aimed at achieving the integration of public housing. This Part details short-term remedies employed by judges in several cities and long-term integration efforts by the courts in two cities: Chicago, Illinois, and Yonkers, New York. The Chicago and Yonkers suits exemplify the major obstacles that plaintiffs and judges face in developing appropriate measures to integrate …

The Judiciary's Use Of Supervisory Power To Control Federal Law Enforcement Activity, Department Of Justice Office Of Legal Policy

University of Michigan Journal of Law Reform

In McNabb v. United States, the Supreme Court claimed- for the first time in its history-the prerogative of "establishing and maintaining civilized standards of procedure and evidence" in the exercise of "supervisory authority over the administration of criminal justice in the federal courts." Since then, the Court has used this self-declared oversight power on numerous occasions and for a wide variety of purposes, but it has never adequately explained either the provenance or the scope of this type of judicial authority. Lower federal courts have followed suit, on the largely unexamined assumption that they too are endowed with supervisory …

Adverse Inferences From Silence, Department Of Justice Office Of Legal Policy

University of Michigan Journal of Law Reform

This Report, the eighth in the Truth in Criminal Justice series, assesses the rules relating to the evidentiary consideration of the defendant's silence. Its general conclusion is that the existing restrictive rules in this area are unjustified impediments to the search for truth. The notion that the fifth amendment's prohibition of compelling a person in a criminal case to be a witness against himself bars drawing adverse inferences from the defendant's silence is not well-founded. In practical effect, these rules impede the conviction of the guilty by barring consideration of an aspect of the defendant's conduct-his failure to respond to …

Federal Habeas Corpus Review Of State Judgments, Department Of Justice Office Of Legal Policy

University of Michigan Journal of Law Reform

This Report carries out a review of the historical development of the federal habeas corpus jurisdiction; examines its contemporary character and operation; and discusses relevant policy considerations. The Report concludes that federal habeas corpus as a post-conviction remedy for state prisoners should be abolished or limited as far as possible. The limited reform proposals that were passed by the Senate in 1984 and that are currently before Congress as Title II of the proposed Criminal Justice Reform Act provide the best immediate prospect for improvement.

Appellate Justice Bureaucracy And Scholarship, William M. Richman, William L. Reynolds

University of Michigan Journal of Law Reform

Many of the other Articles in this Symposium demonstrate that a single great piece of legal scholarship can have an enormous impact on the development of legal doctrine. This Article differs in two respects. First, it focuses not on a single seminal work, but rather on a developing literature authored by a large group of scholars. Second, it attempts to assess the impact of that literature not on the growth of legal theory, but on the development of a single legal institution-the United States Courts of Appeals.

The Effectiveness Of Measures To Increase Appellate Court Efficiency And Decision Output, Thomas B. Marvell, Carlisle E. Moody

University of Michigan Journal of Law Reform

This Article will examine the effectiveness of measures commonly employed to increase appellate court productivity. Part I of the Article sets forth some common design problems and explains how the research technique employed in the present study avoids these problems by using a multiple time-series research design. Part II applies this design to state court data. Part II also describes the dependent variable, the number of appeals decided per judge, used in the regression analysis. Part III discusses the results of that analysis-the impact of each change listed above on judicial productivity. The Article, although not advocating the adoption of …

The New World Of Patents Created By The Court Of Appeals For The Federal Circuit, Martin J. Adelman

University of Michigan Journal of Law Reform

The purpose of this Article is to outline the creation of this new circuit and to analyze its position on several substantive issues. Part I discusses the origin and power of the Federal Circuit. Part II analyzes the court's recent decisions on the issues of nonobviousness, infringement, inequitable conduct, patent misuse, and jury trials. This Article concludes that the Federal Circuit has in general performed well, but there are areas of patent law that must be refined for the court to further its intended goals.

Psychiatric Assistance For Indigent Defendants Pleading Insanity: The Michigan Experience, Paul Zisla

University of Michigan Journal of Law Reform

The federal government and many states already provide psychiatric assistance to indigent defendants pleading insanity. Michigan's statutory scheme for delivering this service presents an opportunity to evaluate an approach that generally favors defendant interests in areas left unresolved by Ake. This Note undertakes that evaluation. Part I summarizes the Ake decision, key problem areas, and the research methodology. Part II describes the Michigan statutory system. Part III evaluates that system using data from interviews with legal and psychiatric practitioners and considers the consequences of Michigan's approach to the issues posed by Ake. The evaluation shows that Michigan's system …

The Civil Jury--An Endangered Species, John Feikens

University of Michigan Journal of Law Reform

George Bernard Shaw, the Irish dramatist and arch gadfly, once said, "The reasonable man adapts himself to the world: the unreasonable one persists in trying to adapt the world to himself. Therefore all progress depends on the unreasonable man. "

With this tantalizing opener, let me say that I will attempt to point out to you my deep concern about the gradual elimination of jury trials in civil cases in our country.

Reckless Endangerment Of An Employee: A Proposal In The Wake Of Film Recovery Systems To Make The Boss Responsible For His Crimes, Anne D. Samuels

University of Michigan Journal of Law Reform

This Note argues that the traditional regulatory, civil, and criminal mechanisms are both ineffective and inappropriate to deter or punish corporate decisionmakers for decisions that pose risks to the safety or health of employees in the workplace. The Note proposes a new criminal offense to prevent and punish culpable corporate decisionmaking that results in employee deaths or injuries. Part I explains the novel application of the traditional murder offense in Film Recovery Systems and demonstrates that the case fails to lay the foundation for a standardized response to employee endangerment. Part II analyzes the traditional responses of the regulatory and …

Child Sexual Abuse Cases: Reestablishing The Balance Within The Adversary System, Mary Christine Hutton

University of Michigan Journal of Law Reform

This Article begins with an overview of the adversary process and how it has changed in recent years to respond to the needs of children. The Article highlights two of the goals of the adversary process-(!) testing and probing of two sides to a story, and (2) refraining from a decision until the complete story is told-to examine how they can be retained in spite of these changes. Part II pinpoints the assignment of multiple or poorly-defined roles to the child sexual abuse professionals as one of the potential impediments to preserving the goals of the adversarial system. The performance …

Remedies For Wage Discrimination, Ruth Gerber Blumrosen

University of Michigan Journal of Law Reform

The thesis of this Article is that wage discrimination can be remedied by the federal courts through a process that is both practical and efficient. This can be done, without turning the federal courts into wage control agencies or bankrupting the nation's employers, by treating the problem of wage discrimination in precisely the same manner as other forms of discrimination are treated. Our experience with different types of wage discrimination now permits us to generalize about the types of remedies that are appropriate to correct those typical forms of wage discrimination that have now been fully identified.

Tribal Court Jurisdiction Over Civil Disputes Involving Non-Indians: An Assessment Of National Farmers Union Insurance Cos. V. Crow Tribe Of Indians And A Proposal For Reform, Allison M. Dussias

University of Michigan Journal of Law Reform

This Note examines the issue of tribal court jurisdiction over cases in which both Indians and non-Indians are parties and discusses the Supreme Court's most recent statement on the issue. In National Farmers Union Insurance Cos. v. Crow Tribe of Indians, an Indian minor brought a personal injury action in Crow Tribal Court against a Montana school district operating a school on state-owned land within the Crow Reservation. The Supreme Court concluded that the tribal court itself should first determine whether it has the power to exercise civil subject-matter jurisdiction over non-Indian property owners in a tort case. Defendants …

Improving Parent-Child Relationships Within The Divorced Family: A Call For Legal Reform, John S. Murray

University of Michigan Journal of Law Reform

In this Article, I address these three questions within the framework provided by the goal to be achieved. Part I outlines the present system and its problems, discussing both its effects on divorced family members and the problems inherent in the exclusive custody rule. Part II builds a proposal for legal reform by first considering the effect of conflict within the family, then identifying five value guidelines that should control the relationships, and finally describing the proposal in detail. Part III analyzes the pros and cons of the reform proposal to determine whether its adoption could establish a healthier environment …

A Mandatory Right To Counsel For The Material Witness, Susan Kling

University of Michigan Journal of Law Reform

This Note argues that a uniform statute establishing a mandatory right to counsel should be adopted, at both the state and federal levels, to afford to the material witness protection that the Constitution fails to provide. Part I describes the general scope of the problem and concludes that neither the federal government, the individual states, nor the United States Constitution provides the material witness with a mandatory right to counsel. Part II argues that the material witness should have a statutorily mandated right to counsel. A mandatory right to counsel should be extended to the material witness both for the …

Erisa Preemption: Judicial Flexibility And Statutory Rigidity, Leon E. Irish, Harrison J. Cohen

University of Michigan Journal of Law Reform

This Article attempts to describe the ways in which, and the reasons why section 514(a) has caused the courts and Congress so much difficulty. Part I reviews the legislative history of section 514(a), with emphasis on the ambivalence Congress has shown toward its 1974 draftsmanship. Part II attempts to provide a coherent description of the case law that has developed under section 514(a). Part III completes the legislative history by examining the two instances in which experience compelled Congress to revise section 514. Finally, Part IV discusses examples of problems courts have faced when crafting a federal common law of …

Forcing Attorneys To Represent Indigent Civil Litigants: The Problems And Some Proposals, Greg Stevens

University of Michigan Journal of Law Reform

This Note argues that uncompensated court appointments represent an unsatisfactory means to provide counsel for indigents. Part I discusses the policy arguments for and against forced, uncompensated court appointments. Part I concludes that the arguments against these appointments outweigh the arguments in favor of them. Part II argues that they violate the Constitution's prohibitions against uncompensated takings and involuntary servitude. Part III offers a proposal that would provide effective representation for indigent civil litigants, while avoiding infringement of attorneys' constitutional rights.

A Proposal For Extension Of The Occupational Safety And Health Act To Indian-Owned Businesses On Reservations, Maureen M. Crough

University of Michigan Journal of Law Reform

This Note argues that the Act does not apply to Indian businesses because it does not specifically mention them. While sensitive to the desirability of providing certain kinds of federal protections to all Americans, this Note takes the position that the sovereignty of Indian tribes should not be abrogable except by considered and express congressional action. Concluding nonetheless that the workplace protection the Occupational Safety and Health Act provides should be extended to Indians on reservations, the Note proposes amendment of the Act: to extend its protection; to permit tribal enforcement; and to authorize the federal government to help financially …

Abusive Pro Se Plaintiffs In The Federal Courts: Proposals For Judicial Control, Michael J. Mueller

University of Michigan Journal of Law Reform

This Note argues that a few courts have adopted lawful restraints and administrative procedures that, if uniformly adopted, would significantly improve protection of judicial resources while preserving access to the civil courts for legitimate claims. Part I identifies career plaintiffs and the burdens imposed on courts by excessive and abusive litigation. Part I also examines the source and scope of the right of access to the judicial process. Part II analyzes judicial responses to abuse in terms of their constitutionality and effectiveness at curbing such tactics. Part III advocates administrative procedures that would promote earlier identification of pro se career …

European Integration Through Fundamental Rights, Jochen Abr. Frowein

University of Michigan Journal of Law Reform

The conception of fundamental rights as natural rights of human beings developed in European legal thinking mainly in the seventeenth and eighteenth centuries. John Locke, Jean-Jacques Rousseau, and also Immanuel Kant should be mentioned. But it was in the new world that the principles of fundamental human rights were first put into practice. A little more than ten years after the first American declarations, the "Declaration des droits de l'homme et du citoyen" was adopted in Paris; it remains part of French constitutional law today. But, unlike the development in the United States, the French guarantees could not be enforced …

Is The Section 1983 Civil Rights Statute Overworked? Expanded Use Of Magistrates--An Alternative To Exhaustion, Brian P. Owensby

University of Michigan Journal of Law Reform

Part I of this Note discusses the history and purpose of section 1983 and identifies the danger unmanaged growth of 1983 suits poses to civil rights. Part II examines several judicial responses to the 1983 caseload problem and concludes that congressional action is more appropriate. Parts III and IV explore two areas of possible legislative action. Part III questions the efficacy of a legislatively imposed requirement that the claimant exhaust state administrative remedies as a prerequisite to a 1983 suit in federal court. Part IV proposes an alternative congressional response to the 1983 caseload problem: a carefully tailored use of …

Notice To Class Members Under The Fair Labor Standards Act Representative Action Provision, Thomas Ashby

University of Michigan Journal of Law Reform

Federal courts currently apply different standards concerning the permissibility of notice. Although the Ninth Circuit forbids notice and the Seventh Circuit grants plaintiffs a right to send notice, the Second Circuit permits notice only in appropriate cases. This Note advocates that plaintiffs in FLSA and ADEA actions should be allowed to notify potential class members in appropriate cases. Part I analyzes inherent court powers, statutes, legislative history, and federal policies relating to notice. It concludes that enactment of FLSA and ADEA remedies did not alter the inherent power of federal courts to permit or prohibit notice. On the contrary, only …

Improving Jury Deliberations: A Reconsideration Of Lesser Included Offense Instructions, Michael D. Craig

University of Michigan Journal of Law Reform

This Note approves of efforts to avoid hung juries by giving lesser included offense instructions but opposes those instructions that restrict juror decisions and coerce minority jurors. Rather, this Note offers a lesser included offense instruction that promotes flexibility and jury compromise without undermining the deliberative process. Part I describes the problem of hung juries and how courts have tried to prevent them with restrictive lesser included offense instructions. Part II analyzes the coercive impact of restrictive lesser included offense instructions and concludes that an instruction conditioning deliberations upon individual juror disagreement better promotes compromises on the merits while reducing …

Habeas Corpus Review Of State Trial Court Failure To Give Lesser Included Offense Instructions, Michael H. Hoffheimer

University of Michigan Journal of Law Reform

This Note advocates that federal courts review state criminal convictions in habeas corpus proceedings when lesser included offense instructions are available under state law but were not given. Part I demonstrates that granting such review conforms to the modern jurisdictional scope of federal collateral review because failure to give the instructions undermines the fact-finding function of juries and is therefore unconstitutional. Part II analyzes the proper standard of review and determines that the federal interest in protecting the reliability of the fact-finding process should prevail over any conflicting state interest in refusing to give lesser included offense instructions. Part II …

Colorado's Answer To The Local Rules Problem, William H. Erickson

University of Michigan Journal of Law Reform

This Article examines the checkered history of local rules in the state and federal courts. Part I sketches the development of local rule-making power. Part II focuses on the abuses that have resulted from a nonuniform procedural system. It concludes that the most serious consequence of that abuse - an increase in court costs and delay - has not been addressed adequately by the courts. Part III explores ways in which the local rules problem can be brought under control. Although a number of proposals are discussed, the purpose of this section is to present the approach recently undertaken by …

Appellate Caseload: Meeting The Challenge In Rhode Island, Joseph R. Weisberger

University of Michigan Journal of Law Reform

Two of the most challenging and frustrating problems facing appellate courts in America are increasingly congested dockets and the sluggish pace of litigation. In an effort to combat these problems, the Supreme Court of Rhode Island has recently initiated several procedural techniques for screening and settling criminal and civil cases on appeal. These techniques have proven highly effective and should provide other appellate courts at least a partial answer to the burgeoning appellate caseload.