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Recent Books, Michigan Law Review

Michigan Law Review

A List of Books Received by Michigan Law Review

Affirmative Action On Law Reviews: An Empirical Study Of Its Status And Effect, Frederick Ramos

University of Michigan Journal of Law Reform

This Note discusses the issues involved in affirmative action on law reviews. Part I examines law review affirmative action admissions schemes and alternative types of affirmative action programs. Part II considers the arguments supporting and opposing the implementation of affirmative action programs by law reviews. Part III presents the results of a survey of law reviews concerning affirmative action. This Note concludes that affirmative action programs are the most effective means of increasing minority membership on law reviews, but that law reviews may increase minority membership through other methods.

The Future Of Liberal Legal Scholarship, Ronald K.L. Collins, David M. Skover

Michigan Law Review

Earl Warren is dead.

A generation of liberal legal scholars continues, nevertheless, to act as if the man and his Court preside over the present. While this romanticism is understandable, it exacts a high price in a world transformed.

The following commentary is a reconstructive criticism written from the perspective of two liberals concerned about the future of "legal liberalism." We present our views as a commentary to emphasize their preliminary character; they represent our current assessment of where liberals stand and where they might redirect their energies.

Approaching The Constitution, Don Herzog

Reviews

These are sumptuously produced, oversized volumes: one pictures them, as I suspect some shrewd accountant at the press did, decorating the shelves of lawyers' offices. Their pages are crammed full of primary texts, two columns on each page, in an alarmingly small but somehow readable typeface. Some texts are bare snippets; others wind on luxuriantly for many pages. The editors have set a cutoff point: no text from after 1835 appears. Like much else about these volumes, that decision reflects a set of theoretical commitments about the Constitution that I want to question. Not that these volumes are explicitly cast …

The Practice And Discourse Of Legal Scholarship, Edward L. Rubin

Michigan Law Review

This article begins with a discussion of the critique of methodology, a characterization of standard legal scholarship in terms of the critique, and an exploration of the critique's relevance for this form of scholarship. The next section discusses the modes of legal analysis represented by the critical legal studies, law and literature, and law as practical reason movements, which draw from many of the same philosophic sources as the critique. Despite their common origin, these movements do not rely on the critique of methodology itself, and do not focus on standard legal scholarship. The Article then proceeds to offer a …

Introduction: "Plus Ça Change …?", Stephen B. Burbank

University of Michigan Journal of Law Reform

This is a time of self-conscious attention to legal scholarship that, although hardly unprecedented, must seem remarkable to many in the profession. We hear of "malaise" in the academy, of the decline of doctrinal scholarship, and more generally, of the decline of law as an autonomous discipline. For some who believe it, the news may be profoundly disturbing, tolling the thirteenth hour on entire careers. For others, bearing the news-and having it believed-may be essential to launching or sustaining careers.

Most of us, I suspect, are inclined to suspend judgment, inured more than most mortals to the harsh reality that …

Reflections On Fuller And Perdue's The Reliance Interest In Contract Damages: A Positive Economic Framework, Avery Katz

University of Michigan Journal of Law Reform

Fuller and Perdue's classic article, The Reliance Interest in Contract Damages, is regarded by many contemporary contracts scholars as the single most influential law review article in the field. For those of us who teach and think about contracts from the perspective of law and economics, the consensus would probably be close to unanimous. The article displays an approach highly congenial to an economic perspective. The connection goes beyond Fuller and Perdue's explicitly functional approach to law (which law and economics shares with other schools of thought descended from the legal realists) and beyond Fuller and Perdue's focus on …

Neutral Principles In The 1950'S, Gary Peller

University of Michigan Journal of Law Reform

In this Essay, I explore the intellectual setting within which Wechsler believed that defending freedom also required defending the legality of racial domination. I argue that the key to understanding this apparent paradox is to grasp the ideological/ cultural complex of the 1950's within which mainstream American intellectuals in law and in other disciplines came to terms with the disintegration of the traditional, "old order" paradigms of the late nineteenth and early twentieth centuries by means of an intense and overriding distinction between controversial issues of values and noncontroversial questions of framework and structure within which substantive conflict would take …

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.

Public Law Litigation And Legal Scholarship, Richard L. Marcus

University of Michigan Journal of Law Reform

It is hard to turn around nowadays without hearing about the malaise in legal scholarship. For example, Richard Posner, a former president of the Harvard Law Review, announced in that periodical's centenary issue that the Review "may have reached the peak of its influence-may, indeed, have started its journey down the mountain." If even the august Harvard Law Review is sliding, one does sense an ancien regime aroma of decay. But Posner's main message was that scholarship has become more diverse, and that the hegemony of traditional doctrinal analysis has been broken. More generally, the malaise is attributed to …

A Bibliography Of The Works Of William W. Bishop, Jr., Michigan Law Review

Michigan Law Review

A Bibliography of the Works of William W. Bishop, Jr.

Derek Bok And The Merger Of Law And Economics, Herbert Hovenkamp

University of Michigan Journal of Law Reform

Both the novelty and the uniqueness of the "law and economics" movement of the last fifteen years have been greatly exaggerated. Law and economics has been with us for at least a half century, in nearly every area of private and public law. The most outspoken protagonists of law and economics admit that economics had a presence in antitrust and regulatory policy long before the work of Ronald Coase, Lester Telser, and others inspired its expanded use in areas of private law, such as tort and contract. But even then, some of those who would make such an admission would …

Law Review Articles That Backfire, Gerald L. Neuman

University of Michigan Journal of Law Reform

Other articles in this Symposium have chronicled the real-world triumphs of legal scholarship. I have sadder tales to tell. I would like to discuss law review articles that have had an apparent influence on the course of legal development, but not in the manner that the author intended.

Many of the readers of this Symposium may have their favorite examples of this phenomenon. Such misfortunes can befall anyone; both of the instances I will describe involve a highly respected constitutional scholar, Professor Henry Paul Monaghan of Columbia Law School. They illustrate two mechanisms by which good scholarship can lead …

The Anatomy Of A Leading Case: Lawrence V. Fox In The Courts, The Casebooks, And The Commentaries, M. H. Hoeflich, E. Perelmuter

University of Michigan Journal of Law Reform

In spite of the wide diversity of training, practice, and location of lawyers throughout the United States, virtually all share one experience: the standard core curriculum of the first year of law school taught by the case method. The extent to which that experience in parsing cases in contracts, torts, and property shapes the American legal mentality is open to debate, but it undeniably has an impact. The first-year experience socializes law students in the culture of the law. During this period, students learn the language of the law and the ways that lawyers think. During this period, too, students …

Redesigning The Spouse's Forced Share: A Proposal, John H. Langbein, Lawrence W. Waggoner

Law Quadrangle (formerly Law Quad Notes)

The following article is adapted from Langbein and Waggoner, Redesigning the Spouse's Forced Share, 22 Real Property, Probate & Trust Journal 303 (1987). The Joint Editorial Board for the Uniform Probate Code recently accepted in principle the idea for redesigning the elective share presented in that article. Legislative language incorporating the authors' proposals has been approved by the Joint Editorial Board and will soon be submitted to the National Conference of Commissioners on Uniform State Laws for official inclusion in the Uniform Probate Code.

Exploring Computer Aided Generation Of Questions For Normalizing Legal Rules, Layman E. Allen, Charles S. Saxon

Book Chapters

The process of normalizing a legal rule requires a drafter to indicate where the intent is to be precise and where it is to be imprecise in expressing both the between-sentence and within-sentence logical structure of that rule. Three different versions of a legal rule are constructed in the process of normalizing it: (1) the logical structure of the present version, (2) the detailed marker version, and (3) the logical structure of the normalized version. In order to construct the third version the analyst must formulate and answer specific questions about the terms that are used to express the logical …

The State Of Legal Writing: Res Ipsa Loquitur, George D. Gopen

Michigan Law Review

There is a glory, it seems, in the mystery of a language that can be deciphered only by initiates of the secret society; there is a great sense of power and an even greater actuality of power in controlling a language that in turn controls the most pressing affairs of individuals and communities; and there is a monopolistic safety in being able to manipulate a language which because it was part of the creation of legal problems must be part of their solutions as well. It was true in 1921, and it is still true sixty-six years later. This essay …

"There'll Always Be An England": The Instrumental Ideology Of Evidence, Kenneth W. Graham Jr.

Michigan Law Review

A Review of Theories of Evidence: Bentham and Wigmore by William Twining

A Guide To Legal Research In The University Of Michigan Law Library (4th Ed.), Peter C. Schanck, Linda S. Maslow

Law Library Publications

The Guide is an outline of legal research method and a finding aid for the Michigan collection. The changes in the Guide over the last 10 years reflect fundamental change in the nature of legal research that are worthy of note.

Dworkin's Domain, Philip E. Soper

Reviews

No one has done more in the last twenty years to revitalize debates about how judges should and do decide cases than Ronald Dworkin. At the same time, no one has been more equivocal than Dworkin in explaining how a theory of adjudication bears on the dispute within legal theory about the connection between law and morality. This fine book continues both traditions.

Francis A. Allen: 'Confront[Ing] The Most Explosive Problems' And 'Plumbing All Issues To Their Full Depth Without Fear Or Prejudice', Yale Kamisar

Articles

Frank Allen began his distinguished teaching career more than thirty-five years ago - at a time when, at more law schools than we like to remember, "the basic criminal law course was routinely assigned to the youngest and most vulnerable member of the faculty or to that colleague suspected of mild brain damage and hence incompetent to deal with courses that really matter."' That those of us who taught criminal law years later were warmly received by our colleagues is in no small measure a tribute to the quality of mind and character and intellectual energy of people like Allen, …

Francis A. Allen -- Selected Bibliography, Michigan Law Review

Michigan Law Review

A Selected Bibliography of Francis A. Allen's works.

Judicial Criticism, James Boyd White

Articles

Today I shall talk about the criticism of judicial opinions, especially of constitutional opinions. This may at first seem to have rather little to do with our larger topic, "The Constitution and Human Values," but I hope that by the end I will be seen to be talking about that subject too. In fact I hope to show that in what I call our "criticism" our "values" are defined and made actual in most important ways.

The Formulaic Constitution, Robert F. Nagel

Michigan Law Review

This essay explores the ways in which the formulaic style is different from other, older forms of constitutional doctrine. It argues that the modern style affects the content that the Court finds in the Constitution and that it illuminates the current interpretive functions of the judiciary. Perhaps most importantly, the formulaic style establishes an identifiable relationship between the Court and the public and thus constrains how the Court's version of the Constitution bears upon the larger political culture.

The Next Step: Definition, Generalization, And Theory In American Family Law, Carl E. Schneider

University of Michigan Journal of Law Reform

The Journal of Law Reform's Symposium on Family Law comes opportunely, in legal scholarship's spring of hope, its winter of despair, at a time when we have everything before us, when we have nothing before us. As is natural in such an epoch, reflection about legal scholarship, about its history, purposes, and methods, has flourished. This Symposium invites us to extend that reflection to family law, and this essay attempts, tentatively and speculatively, to accept the invitation.

A New List Of Recommended Reading For Prospective Law Students, Michigan Law Review

Michigan Law Review

A List Compiled from the Recommendations of the Faculty of the Michigan Law School

Review Of The Justice Of The Western Consular Courts In Nineteenth Century Japan, Whitmore Gray

Reviews

Richard Chang attacks the generalization accepted by many historians that the Western consular tribunals in nineteenth-century Japan were so partial- toward West- erners and against Japanese-that they seldom rendered evenhanded justice. His study required two steps. First he tried to determine how many "mixed" cases came to trial-cases in which aJapanese brought a claim against a foreign resident in a consular court or was the complaining party in criminal proceedings against a foreigner. Between 1875 and 1895 there were five such cases that were widely reported and commented on at the time, and that have often been cited as examples. …

Point/Counterpoint: A Debate On Irony And Interpretation, Richard Lempert, Peter Westen

Law Quadrangle (formerly Law Quad Notes)

Can irony play a role in the construction of statutes? In the following articles, legal scholars Richard Lempert and Peter Westen debate the point, taking, as their context, the Supreme Court decision in United Steelworkers v. Weber, a 1979 affirmative action case that brings to the fore the moral dilemmas posed by such programs.

Professor Lempert's initial article originally appeared in Ethics 95 (October 1984), published by the University of Chicago Press. Professor Westen's response, and Lempert's rejoinder to it, were written especially for Law Quadrangle Notes.

Richard Lempert is a graduate of Oberlin College and the University of …

Point/Counterpoint: A Debate On Irony And Interpretation, Richard Lempert, Peter Westen

Law Quadrangle (formerly Law Quad Notes)

Can irony play a role in the construction of statutes? In the following articles, legal scholars Richard Lempert and Peter Westen debate the point, taking, as their context, the Supreme Court decision in United Steelworkers v. Weber, a 1979 affirmative action case that brings to the fore the moral dilemmas posed by such programs.

Professor Lempert's initial article originally appeared in Ethics 95 (October 1984), published by the University of Chicago Press. Professor Westen's response, and Lempert's rejoinder to it, were written especially for Law Quadrangle Notes.

Richard Lempert is a graduate of Oberlin College and the University of …

How Should We Talk About Corporations? The Languages Of Economics And Of Citizenship, James Boyd White

Articles

My immediate subject in this Comment is section 2.01 of the American Law Institute's proposed Principles of Corporate Governance (Tentative Draft No. 2), which defines in general terms the proper objectives and conduct of a business corporation. My larger subject has to do with the adequacy and inadequacy of various languages in which corporate pur­poses and limits might be expressed, and especially with the limits of the economic language used in the ALI Draft.