Law and Society Commons^™

Detroit Area Study On Financial Services: What? Why? How?, Michael S. Barr

Articles

The following article is based on a talk give by Assistant Professor of Law Michael S. Barr to the University of Texas Law School-Harvard Law School Joint Conference on Commercial Law Realities in Austin, Texas, in April. Barr was selected by the University of Michigan’s Institute for Social Research, Survey Research Center to be the faculty investigator for the Detroit Area Study, which the University has conducted for more than 50 years. Barr is using the study to explore the financial services needs of low- and moderate-income households, building on his groundbreaking analysis in Banking the Poor. Barr raised a …

Does The Supreme Court Matter? Civil Rights And The Inherent Politicization Of Constitutional Law, Matthew D. Lassiter

Michigan Law Review

More than a decade ago, in a colloquium sponsored by the Virginia Law Review, scholars of the civil rights movement launched a fierce assault on Michael J. Klarman's interpretation of the significance of the Supreme Court's famous school desegregation ruling in Brown v. Board of Education. Klarman's "backlash thesis," initially set forth in a series of law review and history journal articles and now serving as the centerpiece of his new book, revolves around two central claims. First, he argues that the advancements toward racial equality generally attributed to Brown were instead the inevitable products of long-term political, …

Credit Where It Counts: The Community Reinvestment Act And Its Critics, Michael S. Barr

Articles

Despite the depth and breadth of U.S. credit markets, low- and moderate-income communities and minority borrowers have not historically enjoyed full access to credit. The Community Reinvestment Act (CRA) was enacted in 1977 to help overcome barriers to credit that these groups faced. Scholars have long leveled numerous critiques against CRA as unnecessary, ineffectual, costly, and lawless. Many have argued that CRA should be eliminated. By contrast, I contend that market failures and discrimination justify governmental intervention and that CRA is a reasonable policy response to these problems. Using recent empirical evidence, I demonstrate that over the last decade CRA …

Bilingualism And Equality: Title Vii Claims For Language Discrimination In The Workplace, James Leonard

University of Michigan Journal of Law Reform

Linguistic diversity is a fact of contemporary American life. Nearly one in five Americans speak a language other than English in the home, and influxes of immigrants have been a constant feature of American history. The multiplicity of languages in American society has touched nearly all aspects of American culture, and specifically has added new and important challenges to the American workplace. Chief among these new concerns are the growing number of legal claims centered around language discrimination in the workplace. The common vehicle for these claims has been Title VII, and there is considerable support in the academic literature …

When Nice Guys Finish First: The Evolution Of Cooperation, The Study Of Law, And The Ordering Of Legal Regimes, Neel P. Parekh

University of Michigan Journal of Law Reform

This Note adds to the scholarship in the area of Evolutionary Analysis and the Law (EA). EA is a paradigm that comments on the implications of evolution on the law. EA recognizes that many complex human behaviors that the law seeks to regulate have evolutionary origins that remain relevant today. This Note details how an understanding of the evolutionary basis of cooperation can bring about favorable revisions and reforms in the law.

Following a review of the scientific foundation of EA, this Note sets forth the proposition that humans have an evolutionarily developed tendency to cooperate, an idea that contrasts …

Hearing The Danger Of An Armed Felon- Allowing For A Detention Hearing Under The Bail Reform Act For Those Who Unlawfully Possess Firearms, Matthew S. Miner

University of Michigan Journal of Law Reform

This Article advocates an interpretation of the Bail Reform Act that affords courts the ability to hold detention hearings in gun crime cases to evaluate defendants' potential danger to the community. According to an interpretation advanced by some courts, gun possession offenses do not constitute "crimes of violence" within the meaning of the Act and therefore those charged with such crimes, even ifth ey have a prior felony conviction, are not subject to pre-trial detention. Arguing against this approach, the Article looks to the Bail Reform Act, the relevant federal case law, and the alarming statistics concerning the growing use …

Enough: The Failure Of The Living Will, Angela Fagerlin, Carl E. Schneider

Articles

Enough. The living will has failed, and it is time to say so. We should have known it would fail: A notable but neglected psychological literature always provided arresting reasons to expect the policy of living wills to misfire. Given their alluring potential, perhaps they were worth trying. But a crescendoing empirical literature and persistent clinical disappointments reveal that the rewards of the campaign to promote living wills do not justify its costs. Nor can any degree of tinkering ever make the living will an effective instrument of social policy. As the evidence of failure has mounted, living wills have …

Domestic Violence And The Jewish Community, Stacey A. Guthartz

Michigan Journal of Gender & Law

In Part I of this Article, Guthartz defines the problem of domestic violence as it relates to the Jewish community. Specifically, Jewish texts and history and community understanding and exposure, that contribute to Jewish domestic abuse are examined. In Part II, the author explores Jewish solutions to domestic violence by focusing on religious remedies, community pressure, and the use of civil law. In this Article, it is submitted that it is only through an understanding of the uniqueness of "Jewish" domestic violence by domestic violence and law enforcement organizations, coupled with an understanding about domestic violence within American society by …

Judges As Film Critics: New Approaches To Filmic Evidence, Jessica M. Silbey

University of Michigan Journal of Law Reform

This Article exposes internal contradictions in case law concerning the use and admissibility of film as evidence. Based on a review of more than ninety state and federal cases dating from 1923 to the present, the Article explains how the source of these contradictions is the frequent miscategorization of film as "demonstrative evidence, "evidence that purports to illustrate other evidence, rather than to be directly probative of some fact at issue. The Article further demonstrates how these contradictions are based on two venerable jurisprudential anxieties. One is the concern about the growing trend toward replacing the traditional testimony of live …

A Principled Approach To The Quest For Racial Diversity On The Judiciary, Kevin R. Johnson, Luis Fuentes-Rohwer

Michigan Journal of Race and Law

Part I of this Article considers the different voices and perspectives added to the judiciary by the appointment of minorities. Part II analyzes the many impacts of diversity on the bench, including greater judicial impartiality. Part III sets forth the arguments supporting a diverse jury pool and discusses how they inform the analysis of the quest for racial diversity among judges. Part IV outlines a principled approach to the pursuit of judicial diversity.

Toward An Understanding Of Judicial Diversity In American Courts, Barbara L. Graham

Michigan Journal of Race and Law

Part I of this Article explores the utility of descriptive representation as an important concept in understanding why judicial diversity matters from a political perspective. Part II begins an empirical examination of judicial diversity at the federal level while Part III presents an analysis of state court diversity. The data presented in Parts II and III indicate that judges of color are underrepresented at all levels of the federal and state court systems and that particular racial and ethnic groups are virtually excluded from federal and state benches. The conclusion argues that the data presented in this Article support a …

Through The Lens Of Diversity: The Fight For Judicial Elections After Republic Party Of Minnesota V. White, Sherrilyn A. Ifill

Michigan Journal of Race and Law

This Article is directed at the ongoing discussion taking place in many states and among members of the bench and bar about whether states that elect judges should switch to appointment in light of White. The author argues that states should resist what he regards as the Court's heavy-handed dicta denouncing judicial elections in White. Rather than accede to the pressure to shift from an elective to an appointive system-pressure that is being felt in several states- the author contends that states should regard the White decision as an opportunity to engage in a thorough and far-reaching review …

Racism As "The Nation's Crucial Sin": Theology And Derrick Bell, George H. Taylor

Michigan Journal of Race and Law

Part I develops Bell's thesis that racism is permanent, an ineradicable structure in American life. Bell's stance here is unrelenting and a direct and deep challenge to liberal notions of racial progress. This section draws out the social facts Bell provides about the status of Blacks in American society and examines Bell's argument for the continuing disparity between the races, particularly the claim that Whites hold on to a property in Whiteness. Part II analyzes Bell's call for action despite racism's permanence. Part III develops Niebuhr's theology of the possibility of action despite sin. Niebuhr too criticizes the liberal-and liberal …

Disposable Mothers, Deployable Children, Annette R. Appell

Michigan Journal of Race and Law

Review of Interracial IntimaciesL Sex, Marriage, Identity, and Adoption by Randall Kennedy

Microfinance And Financial Development, Michael S. Barr

Articles

Close to three billion people-half of the world's population-live on less than two dollars a day.' Within these poor communities, one child in five will not live to see his or her fifth birthday. To boost international development, the United Nations (UN) announced the Millennium Development Goals, aimed at eradicating poverty by 2015.? A number of countries responded at the International Conference for Financing International Development in Monterrey, Mexico, by creating action plans to begin to implement the Millennium Development Goals.4 Yet the Millennium Development Goals will prove difficult to achieve.1

Banking The Poor, Michael S. Barr

Articles

Low-income households often lack access to banking accounts and face high costs for transacting basic financial services through check cashers and other alternative financial service providers. These families find it more difficult to save and plan financially for the future. Living paycheck to paycheck leaves them vulnerable to medical or job emergencies that may endanger their financial stability, and lack of longer-term savings undermines their ability to improve skills, purchase a home, or send their children to college. Additionally, high cost financial services and inadequate access to bank accounts may undermine widely shared societal goals of reducing poverty, moving families …

Free Speech And Valuable Speech: Silence, Dante, And The 'Marketplace Of Ideas', James Boyd White

Articles

This Essay is a slightly expanded version of the inaugural Mellinkoff Lecture in Law and Humanities, presented at the UCLA School of Law last April in honor of the memory of Professor David Mellinkoff, the distinguished author of ground-breaking work on the nature of legal language. It addresses four related questions. What is the nature of the kind of speech and expression that realizes most completely the human capacity for finding and expressing meaning? How does our own world of public speech measure up to that standard? How, indeed, does our own talk in the law measure up, especially our …

Vanishing Vaccinations: Why Are So Many Americans Opting Out Of Vaccinating Their Children?, Steve P. Calandrillo

University of Michigan Journal of Law Reform

Vaccinations against life-threatening diseases are one of the greatest public health achievements in history. Literally millions of premature deaths have been prevented, and countless more children have been saved from disfiguring illness. While vaccinations carry unavoidable risks, the medical, social and economic benefits they confer have led all fifty states to enact compulsory childhood vaccination laws to stop the spread of preventable diseases. Today, however, vaccines are becoming a victim of their success-many individuals have never witnessed the debilitating diseases that vaccines protect against, allowing complacency toward immunization requirements to build. Antivaccination sentiment is growing fast in the United States, …

On Kamisar, Killing, And The Future Of Physician-Assisted Death, Norman L. Cantor

Michigan Law Review

Tens - perhaps hundreds - of thousands of trees could have been spared over the last forty-five years had opponents of physician-assisted death only been content to let Yale Kamisar be their exclusive spokesperson. Their movement would have lost no significant substance or persuasive force, for Kamisar's 1958 article - Some Non-Religious Views Against Proposed 'Mercy-Killing' Legislation - presaged the shape and content of the subsequent forty-five year debate over legalizing physician-assisted death ("PAD" ). Kamisar's article preceded by years the development of a whole jurisprudence relating to the withholding/withdrawing of life-sustaining medical treatment ("LSMT") and the administration of pain-relief …

Does A Diverse Judiciary Attain A Rule Of Law That Is Inclusive?: What Grutter V. Bollinger Has To Say About Diversity On The Bench, Sylvia R. Lazos Vargas

Michigan Journal of Race and Law

This Article concludes that political dialogue engendered by controversial minority judicial nominations, like those of Miguel Estrada and Janice Rogers Brown, could be an avenue to educating the polity as to why it is important to achieve greater minority representation on the bench. The pluralistic process-based model of judging advocates that a critical mass of diverse judges be achieved, not that the minority judges be liberal rather than conservative, communitarian rather than individualist, or Democrat rather than Republican. The goal is that there be a critical mass of minority judges on benches that make decisions as a group, like circuit …

Satirical Legal Studies: From The Legists To The Lizard, Peter Goodrich

Michigan Law Review

In Part I, I expand on the distinction between the Horatian and the Menippean forms of satire and then suggest that a similarly bold division can be used to map satirical legal studies. In support of that argument, I use the example of the earliest surviving satirical legal poem within the Western tradition. My analysis of this exemplary satirical legal artifact delineates four principal modes of legal satire that will organize the ensuing discussion of more contemporary examples of the genre. In Part II, I will address the currently popular and yet somewhat novel mode of ad hominem or nominate …

For And Against Marriage: A Revision, Anita Bernstein

Michigan Law Review

When anthropologist Henry Sumner Maine issued his famous proclamation that modern legal development evolved "from Status to Contract," he used juridical categories to make a statement about progress. Voluntary relations now build the law, Maine declared. The alternative to voluntary relations - identity-based legal labels to decree what people may and may not do - must relocate to the dustbin of history. Only a backwater society would keep them. American legal change in the century-plus since Maine's death in 1888 gives credence to the claim that status inexorably yields to contract. At one level, newer developments refute the Maine thesis. …

Economic Inequality And The Role Of Law, Richard L. Kaplan

Michigan Law Review

In this ambitious book, famed commentator and analyst Kevin Phillips attempts nothing less than a political history of American economic life with a specific focus on the wealthy. Succeeding far more often than not, Phillips interweaves the development of American technology with the rise and fall of economic fortunes, crafting a compelling tale with significant implications for the formulation of public policy and the laws that implement such policy. Festooned with more than seventy charts and graphs, the book explains how wealth has been accumulated throughout the entire history of the United States. It is full of intriguing insights and …

Individual Vulnerability And Cultural Transformation, Eric J. Mitnick

Michigan Law Review

Perhaps the most pressing problem in multicultural theory and practice today is the problem of individual vulnerability. Most interested theorists and multicultural states now accept the basic premise that some degree of state accommodation of minority cultural practice is required as a matter of justice. Debate then shifts to the best justifications for, and the appropriate extent of, such groupdifferentiated policy. Too often lost amid these discussions is the plight of vulnerable members of accommodated cultural groups: individuals subject to repression within their cultural groups, but who lose a critical aspect of their identities upon exit; individuals who would retain …

Disease And Cure?, L. A. Powe Jr.

Michigan Law Review

Sunstein uses Franklin's remark to make two related points. First, citizens bear the burden of maintaining the American republic as a healthy, vibrant place; being a citizen is decidedly different from being a consumer. The former has duties, the latter wants (pp. 113-23). Second, and this is the gist of the slender book, the republic is jeopardized by the possibilities of the Internet. Sunstein assumes the correctness of MIT technology specialist Nicholas Negroponte's conclusion that in the not-too-distant future we will be able to create a "Daily Me" on the Internet that will provide the personalized information (including news) that …

Orchestrated Experimentalism In The Regulation Of Work, Orly Lobel

Michigan Law Review

Since the advent of the New Deal vision, work and the workplace have undergone dramatic changes. Policies and institutions that were designed to provide good working conditions and voice for workers are no longer fulfilling their promise. In Working in America: A Blueprint for the New Labor Market ("Blueprint"), four MIT economists take on the challenge of envisioning a new regulatory regime that will fit the realities of the new market. The result of several years of deliberation with various groups in business and labor, academia, and government, Blueprint provides a thoughtful yet unsettling vision of the future of work. …

The New Privacy, Paul M. Schwartz, William M. Treanor

Michigan Law Review

In 1964, as the welfare state emerged in full force in the United States, Charles Reich published The New Property, one of the most influential articles ever to appear in a law review. Reich argued that in order to protect individual autonomy in an "age of governmental largess," a new property right in governmental benefits had to be recognized. He called this form of property the "new property." In retrospect, Reich, rather than anticipating trends, was swimming against the tide of history. In the past forty years, formal claims to government benefits have become more tenuous rather than more secure. …

Waiving Goodbye: Incarcerating Waived Juveniles In Adult Correctional Facilities Will Not Reduce Crime, Ellie D. Shefi

University of Michigan Journal of Law Reform

Incarcerating waived juveniles in adult correctional facilities does not reduce crime or result in increased public safety; incarcerating juveniles with adults is deleterious to both the individual offender and society. This Note argues for a renewed focus on rehabilitative rather than retributive justice, and in so doing, proposes the implementation of a comprehensive continuum of graduated sanctions that includes networks of small, secure, highly structured maximum-security juvenile facilities, wilderness camps, residential and non-residential community-based programs, restitution, and fines. This Note further advocates for the incorporation of extensive education, vocational training and placement, counseling, treatment, supervision, mentoring, transitional, aftercare, and support …

Overcoming A Lawyer's Dogma: Examining Due Process For The "Disruptive Student", Jessica Falk

University of Michigan Journal of Law Reform

This Note explores how traditional due process functions in the context of school expulsion hearings. Traditional due process is inadequate in the case of "chronically disruptive" students because these students have lost their property right in education long before the law requires a due process hearing. Instead, new avenues of due process that are better adapted to the educational setting must be explored. Lawyers should expect schools to identify students' with behavioral problems before expulsion becomes imminent and assist students in overcoming these problems. This "educational due process" not only helps to protect troubled student's education, but it is also …

Strategic Voting And African-Americans: True Vote, True Representation, True Power For The Black Community, Maxine Burkett

Michigan Journal of Race and Law

As long as American politics remain securely bound to the two-party system, Blacks will remain a voting block; a block that may shift, but a block nonetheless. And although this appears to be to our strategic disadvantage, allowing conviction to direct us, as well as a deep respect for the intense struggle for the franchise, will forever be a noble posture.