Legal Writing and Research Commons^™

Interview With James Boyd White, James Boyd White

Michigan Law Review

The occasion of the following interview was the Montesquieu Lecture at the University of Tilburg, which Professor James Boyd White delivered in February 2006. In the lecture, entitled "When Language Meets the Mind," Professor White discussed the manner of interpreting and criticizing texts, both in the law and in other fields, that he has worked out over his career. The heart of this method, as described in the lecture, is to direct attention to three sets of questions: - What is the language in which this text is written, and the culture of which it is a part? How are …

The Angel Is In The Big Picture: A Response To Lemley, Samson Vermont

Michigan Law Review

An invention within close reach of multiple inventors differs from an invention within distant reach of a lone inventor. The differences between these two archetypes of invention -"reinventables" and "singletons"- remain unexploited under current U.S. law. Should we reform the law to exploit the differences? Mark Lemley and I agree that we should. To date, those economists who have closely examined the issue concur. What are the differences between reinventables and singletons? First, reinventables can be brought into existence with incentives of lower magnitude. This suggests that we can obtain reinventables at a lower price than we currently pay-i.e., with …

Inside The Administrative State: A Critical Look At The Practice Of Presidential Control, Lisa Schultz Bressman, Michael P. Vandenbergh

Michigan Law Review

From the inception of the administrative state, scholars have proposed various models of agency decision-making to render such decision-making accountable and effective, only to see those models falter when confronted by actual practice. Until now, the "presidential control" model has been largely impervious to this pattern. That model, which brings agency decision-making under the direction of the president, has strengthened over time, winning broad scholarly endorsement and bipartisan political support. But it, like prior models, relies on abstractions - for example, that the president represents public preferences and resists parochial pressures that do not hold up as a factual matter. …

The Neglected Political Economy Of Eminent Domain, Nicole Stelle Garnett

Michigan Law Review

This Article challenges a foundational assumption about eminent domain- namely, that owners are systematically undercompensated because they receive only fair market value for their property. In fact, scholars may have overstated the undercompensation problem because they have focused on the compensation required by the Constitution, rather than on the actual mechanics of the eminent domain process. The Article examines three ways that "Takers" (i.e., nonjudicial actors in the eminent domain process) minimize undercompensation. First, Takers may avoid taking high subjective value properties. (By way of illustration, Professor Garnett discusses evidence that Chicago's freeways were rerouted in the 1950s to avoid …

Index Of Books Reviewed, Michigan Law Review

Michigan Law Review

A listing of books reviewed in this issue.

Contract As Statute, Stephen J. Choi, G. Mitu Gulati

Michigan Law Review

The traditional model of contract interpretation focuses on the "meeting of the minds." Parties agree on how to structure their respective obligations and rights and then specify their agreement in a written document. Gaps and ambiguities are inevitable. But where contract language exists for the point in contention and a dispute arises as to the meaning of this language, courts attempt to divine what the parties intended. Among the justifications for deferring to the intent of the parties is the assumption that parties know what is best for themselves. Deference also arguably furthers autonomy values. Not all contracts and contract …

Life's Golden Tree: Empirical Scholarship And American Law, Carl E. Schneider, Lee E. Teitelbaum

Articles

What follows is a simplified introduction to legal argument. It is concerned with the scheme of argument and with certain primary definitions and assumptions commonly used in legal opinions and analysis. This discussion is not exhaustive of all the forms of legal argument nor of the techniques of argument you will see and use this year. It is merely an attempt to introduce some commonly used tools in legal argument. It starts, as do most of your first-year courses, with the techniques of the common-law method and then proceeds to build statutory, regulatory, and constitutional sources of law into the …

The Provincial Archive As A Place Of Memory: The Role Of Former Slaves In The Cuban War Of Independence (1895-98), Rebecca Scott

Book Chapters

Prof. Scott focuses on the study of the role of former slaves in the Cuban War of Independence, in light of the avoidance of the theme of race within this war in Cuban historiography. She discusses reasons for the silence on race issues, and for the historic construction of the "myth" of racial equality in this era.

The Economics Of Open Access Law Publishing, Jessica D. Litman

Articles

The conventional model of scholarly publishing uses the copyright system as a lever to induce commercial publishers and printers to disseminate the results of scholarly research. Recently, we have seen a number of high-profile experiments seeking to use one of a variety of forms of open access scholarly publishing to develop an alternative model. Critics have not quarreled with the goals of open access publishing; instead, they've attacked the viability of the open access business model. If we are examining the economics of open access publishing, we shouldn't limit ourselves to the question whether open access journals have fielded a …

Tax Preparation Services For Low- And Moderate-Income Households: Preliminary Evidence From A New Survey, Michael S. Barr, Jane K. Dokko

Articles

Recently, researchers have begun to examine the financial service patterns of low- and moderate-income households. These behaviors are of interest because high cost financial services, barriers to saving, the lack of insurance, and credit constraints contribute to poverty and other socioeconomic conditions . Many low- and moderate-income households use alterna­tive financial service (AFS) providers, such as check cashers, for their financial services needs. Tax preparation firms are among the important financial service providers in the lives of low-income households. Such firms help households navigate the complicated process of filing their taxes, and many low-income households obtain sizeable tax refunds. At …

Michigan Family Law Research Resources: Review And Update, Barbara H. Garavaglia

Articles

"Family law" includes topics relating to "marriage, divorce, adoption, child custody and support, child abuse and neglect, paternity, juvenile delinquency, and other domestic relations issues,"] including cohabitation and domestic violence. Michigan family law research continues to be facilitated by a combination of print and electronic research resources. As in other areas of law, web-based access to legal research resources in the realm of family law continues to improve and expand, following the general trend in legal publishing toward electronic publication. This article is primarily a review of the web-based resources provided by the Institute of Continuing Legal Education (ICLE), although …

Boilerplate Today: The Rise Of Modularity And The Waning Of Consent, Margaret Jane Radin

Michigan Law Review

Thanks to the vision of Omri Ben-Shahar and the excellence of the scholars contributing to this symposium, students of the law of commercial exchange transactions will now understand how important and interesting, and indeed exciting, boilerplate really is. The various presentations are so rich that my assigned task of commentary cannot approach an adequate summation. Instead of attempting such a task, therefore, I will take up a slightly different one. My commentary will relate some of the ideas presented in the symposium to two themes that I think are significant for the groundwork of contract today: the growing modularity of …

Using Court Records For Research, Teaching, And Policymaking: The Civil Rights Litigation Clearinghouse, Margo Schlanger, Denise Lieberman

Articles

The National Archives and Records Administration (NARA) is, wisely, planning the future of its enormous collection of relatively recent court records. The pertinent regulation, a “records disposition schedule” first issued in 1995 by the Judicial Conference of the United States in consultation with NARA, commits the Archives to keeping, permanently, all case files dated 1969 or earlier; all case files dated 1970 or later in which a trial was held, and “any civil case file which NARA has determined in consultation with court officials to have historical value.” Other files may be destroyed 20 years after they enter the federal …

Signatures Of Ideology: The Case Of The Supreme Court's Criminal Docket, Ward Farnsworth

Michigan Law Review

Everyone suspects that Supreme Court justices' own views of policy play a part in their decisions, but the size and nature of the part is a matter of vague impression and frequent dispute. Do their preferences exert some pressure at the margin or are they better viewed as the mainsprings of decision? The latter claim, identified with legal realism, has been lent some support by political scientists who point out that some justices regularly vote for or against certain kinds of claims (for example, under the Fourth Amendment), or that votes in some areas are broadly predictable according to a …

A Theory In Search Of A Court, And Itself: Judicial Minimalism At The Supreme Court Bar, Neil S. Siegel

Michigan Law Review

According to the prevailing wisdom in academic public law, constitutional theory is a field that seeks to articulate and evaluate abstract accounts of the nature of the United States Constitution. Theorists offer those accounts as guides to subsequent judicial construction of constitutional provisions. As typically conceived, therefore, constitutional theory tends to proceed analytically from the general to the particular; its animating idea is that correct decisions in constitutional cases presuppose theoretical commitments to the methodological principles that should guide constitutional interpretation and the substantive values such interpretation should advance. In its enthusiasm for abstraction, constitutional theory has, at times, generated …

Gay Politics And Precedents, Frank B. Cross

Michigan Law Review

One can find many analyses of the development of gay rights law in America but none are so illuminating as Daniel Pinello's in his book Gay Rights and American Law. More significantly, while it offers a superb understanding of the recent record of gay rights litigation, the book provides a fine-grained and sophisticated understanding of judicial decisionmaking in this important and developing area of the law. Indeed, the value of the book for students of judicial decisionmaking even transcends its value for students of gay rights jurisprudence. Quantitative empirical studies of judicial decisionmaking, well established in political science, have …

Caught In The Trap: Pricing Racial Housing Preferences, A. Mechele Dickerson

Michigan Law Review

In The Two-Income Trap, Harvard Law School Professor Elizabeth Warren and business consultant Amelia Warren Tyagi reach a startling conclusion: a two-income middle-class family faces greater financial risks today than a one-income family faced three decades ago. Middle-class families are caught in an "income trap" because they budget based on two incomes and face financial ruin if they lose an income or incur unexpected expenses. The authors suggest that most middle-class families cannot quickly adjust their budgets because their largest monthly expense is the fixed mortgage payment. The parents maintained that they had to allocate a significant portion of …

Books Received, Michigan Journal Of International Law

Michigan Journal of International Law

A list of books received by the Journal.

Events

Law Quadrangle (formerly Law Quad Notes)

No abstract provided.

The Death Of The Living Will, Carl E. Schneider, Angela Fagerlin

Law Quadrangle (formerly Law Quad Notes)

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.

Books Received, Michigan Journal Of International Law

Michigan Journal of International Law

A list of books received by the Journal.

Books Received, Michigan Journal Of International Law

Michigan Journal of International Law

A list of books received by the Journal.

Central American-Dominican Republic Free Trade Agreement: Sources Of Information, Barbara H. Garavaglia

Articles

Globalization and fre trade are usually discussed in a political context in the United States as well as in other areas of the world. As a consequence, it can be difficult to find neutral, basic information about recent new trade agreements, such as the Central American-Dominican Republic Free Trade Agreement (CAFTA-DR), because much of the information found in the news or on the Web is polemical, and it takes time for the legal literature to provide the kind of legal analysis needed by practicing attorneys. This short piece is an attempt to provide links to free, Web-based information on CAFTA-DR …

Apology Within A Moral Dialectic: A Reply To Professor Robbennolt, Lee Taft

Michigan Law Review

Over the last several years, much has been written about the role of apology in facilitating the resolution of legal disputes. Within this body of work a debate has developed among legal scholars, practitioners, and legislators. Under traditional rules of evidence an apology which acknowledged fault would enter evidence as an admission against interest. Now there is a movement to legislatively "protect" apologies from the effects of the traditional rule in order to facilitate apology without evidentiary encumbrance. Scholars who have argued in favor of the relaxation of the traditional rule have largely relied on anecdotal evidence to support their …

Foreword, Theodore J. St. Antoine

Other Publications

Specialists in any field have a vested interest in their mastery of the subject. Expertise, after all, is their stock in trade. Assaults on the conventional wisdom can be unnerving if not discrediting. In the pages that follow, such an experience awaits all conscientious readers with a labor background who dare to expose themselves to Professor Charles Morris's provocative, iconoclastic, and ultimately persuasive arguments. He insists that a half-century of American labor law thinking has gone astray in failing to recognize the duty of an employer to bargain with a labor union representing less than a majority of the firm's …

Microfiche Checking And Refilming At The University Of Michigan Law Library, Kincaid C. Brown

Law Librarian Scholarship

In an effort to combat this loss of important legal information, UMLL instituted a fiche-checking process where, to the best of our ability, we check the fiche not just for bibliographic accuracy, but also for readability, cut-off text, and omissions. When we discover problems, we ask the publisher to refilm the problematic volumes, offering UMLL paper volumes for the job. The following is the process UMLL has instituted wherein we try to discover and remedy problems with purchased microfiche.

Recent Books, Michigan Law Review

Michigan Law Review

A list of books recently received by the Michigan Law Review.

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 …

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 …

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 …