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Title Vi, Title Ix, And The Private University: Defining "Recipient" And "Program Or Part Thereof", Michigan Law Review

Michigan Law Review

This Note explores the meaning of "recipient" and "program or part thereof' in title VI and title IX. Section I studies federal court definitions of "recipient" and the legislative history of title VI; it concludes that only organizations that exercise discretion in disbursing federal funds to students are "recipients." Section II explores the "program or part thereof' language as applied to the university by examining legislative history and recent discrimination cases. It argues that, since Congress sought to protect beneficiaries both from discrimination and from overbroad cutoffs, courts and agencies should draw the perimeters of a funds cutoff by balancing …

Review Of The Landrum-Griffin Act: Twenty Years Of Federal Protection Of Union Members' Rights, By J. R. Bellace And A. D. Berkowitz, Theodore J. St. Antoine

Reviews

In the innocent closing years of the 1950s, the American public fastened on union democracy as the most burning issue of the day. No other subject produced as much mail for Congress. The 229-201 count by which the Landrum-Griffin bill was substituted for the House Labor Committee's bill on labor-management reporting and disclosure constituted the largest total vote in the history of the House of Representatives. Significantly, however, that vote had little if any bearing on union members' rights. What distinguished Landrum-Griffin from the Committee's bill was its stiff new curbs on picketing and boycotts. As Senator John Kennedy's advisor, …

Protection For Trade Secrets Under The Toxic Substances Control Act Of 1976, Paula R. Latovick

University of Michigan Journal of Law Reform

This article will examine the protection provided by the Act and the measures the EPA has adopted for implementing the Act's provisions. The approach will be to focus on the different functional areas in which disclosure may take place. Part I examines the scheme for designating information as confidential and the mechanics of the reporting system under TSCA. Part II deals with disclosures of confidential information made while implementing the TSCA. Part III focuses on legal disclosures of information submitted as confidential. Finally, Part IV examines the measures taken within the EPA to guarantee the safety of confidential information, the …

National Labor Policy: Reflections And Distortions Of Social Justice, Theodore J. St. Antoine

Articles

The impulse behind much of American labor law is profoundly moral. The sufferings and indignities inflicted on working men, women, and even children as the industrial revolution enveloped the western world during the nineteenth and early twentieth centuries led many thoughtful observers to focus their attention on what was commonly called the "social question." Certain issues have been treated almost as if they posed questions of good and evil, when all they actually presented were problems of finding a proper balance of power between labor and management. This article shall develop these themes in several specific contexts.

Putting Bite In Nepa's Bark: New Council On Environmental Quality Regulations For The Preparation Of Environmental Impact Statements, David M. Lesser

University of Michigan Journal of Law Reform

This article will examine the new regulations to assess the manner in which they will affect federal decisionmaking. Part I briefly reviews the role the NEPA process has heretofore played in agency decisionmaking and its potential for the future. Parts II, III, and IV discuss specific provisions of the new regulations which may profoundly affect the agencies. Part II examines those sections of the regulations which seek to ensure that the EIS contains the substantive information necessary to fulfill NEPA's policies. Part III discusses significant procedural changes in the environmental assessment process designed to insure that this substantive information is …

Is There Life For Erie After The Death Of Diversity?, Peter Westen, Jeffrey S. Lehman

Michigan Law Review

This Article is essentially an elaboration of these three themes. Section I sets forth the fundamental principles, or "axioms," that determine whether a particular federal rule is pertinent and valid. Once these axioms are understood, it should become apparent that Erie problems, if not easy, are not uniquely difficult either; instead, they are the kinds of "ordinary" problems that are commonplace in other areas of law. Section II applies these axioms to cases in diversity to determine the validity of various kinds of federal rules of decision. Section III examines the validity of federal rules of decision in federal question …

Interest Analysis And The Myth Of Legislative Intent, Lea Brilmayer

Michigan Law Review

My critique begins with a brief analysis of the principles underlying the Currie school's calculations of whether a state has an interest in having its law applied; it seeks to expose the unarticulated biases inherent in that calculus. I then argue that Currie's principles cannot be justified as expressions of actual legislative intent regarding a statute's territorial scope. Indeed, the discrepancy between governmental interests and actual legislative intent has been overlooked only because, in the vast majority of cases, legislatures have no actual intent on territorial reach with which to contrast Currie's results.

But without actual legislative endorsement, interest analysis …

Relaxation Of Implementation Plans Under The 1977 Clean Air Act Amendments, David P. Currie

Michigan Law Review

This Article probes the convoluted ameliorative provisions of the 1977 Amendments in three parts. Section I deals with delayed compliance orders - orders granted to stationary sources unable to meet the statutory deadlines for compliance. Section 113( d) is the fountainhead provision, and besides a general provision for delayed compliance, it also contains specific provisions for sources unable to comply due to retirement of present facilities, due to investment in innovative facilities with the promise of greater pollution reduction in the future or due to government orders to convert from cleaner fuels to coal.

Section II analyzes two specific relief …

State Control Over The Reclamation Waterhole: Reality Or Mirage, Michigan Law Review

Michigan Law Review

This Note assesses how much state law section 8 saves from preemption. Section I reviews the interplay of state and federal water law in the West. It begins with a brief description of appropriation, the system of water rights found in the Western states, outlines the Reclamation Act of 1902, and then traces the Supreme Court's evolving construction of the Act. It culminates in a discussion of California v. United States, the Court's latest gloss on section 8. Section II expands the analysis of the California decision, integrating it with traditional preemption doctrine. It shows that section 8 respects …

Corruption And The Foreign Corrupt Practices Act Of 1977, Fredric Bryan Lesser

University of Michigan Journal of Law Reform

This article first discusses the business activities and competing interests which prompted congressional action. Part II analyzes the FCPA and attempts to solve the ambiguities inherent in the criminalization provisions, thereby clarifying which activities are proscribed by the FCPA and what is meant by the Act's corruption requirement. Finally, Part III examines the possibilities for multinational agreements prohibiting bribery.

Political Broadcasting After The Aspen Ruling: Legislative Reform Of Section 315(A) Of The Communications Act Of 1934, Stuart N. Brotman

University of Michigan Journal of Law Reform

The FCC's new interpretation of section 315(a) in the Aspen ruling greatly reduced its inhibitory effect on broadcasters. The ruling, however, has created further interpretive problems regarding the broadcast debate format, and has not completely resolved the more general problem of giving the electorate greater and more direct exposure to candidates during campaigns through programming that forces candidates to confront each other on the major issues. This article will discuss the. background of section 315(a), then explain each of its exemptions. Finally, it will propose possible reforms in the area of political broadcasting in light of the Aspen ruling.

An Empirical Analysis Of The Equal Credit Opportunity Act, James A. Burns Jr.

University of Michigan Journal of Law Reform

This article will first examine the legislative history of the ECOA to discover (1) the impetus for its enactment; (2) the views of proponents and opponents of the legislation concerning the presence of credit discrimination, its proper cure, and the proposed provisions of the bills introduced to deal with the problem; and (3) the congressional intent as to the use of various credit-granting factors described by the Act. Regulation B will then be similarly examined to find out how the broad mandates of the ECOA have been made concrete for the use of creditors. Finally, the article will focus on …

The Politics Of Abortion In The House Of Representatives In 1976, Maris A. Vinovskis

Michigan Law Review

The battle over federal funds for abortions and the attempts to pass a constitutional amendment to prohibit all abortions have become annual events that most members of Congress privately dread but publicly welcome. As "pro-life" and "pro-choice" constituents descend upon their elected officials each year, representatives are forced to face an issue that has no easy legislative solution. Despite the intensity and disruptiveness of these confrontations, there have been no thorough and independent analyses of this phenomenon. Instead, most information on the abortion controversy in Congress has come from the understandably biased pens of the activists on both sides. Representatives …

The Haitian Vacation: The Applicability Of Sham Doctrine To Year-End Divorces, Michigan Law Review

Michigan Law Review

This Note examines the propriety of applying the sham doctrine to tax-motivated divorces. Section I outlines the evolution of the sham doctrine from its exposition in Gregory v. Helvering through its expression in two different tests for commercial transactions. Section II then studies the relationship between state divorce law and the marital status provisions of the Internal Revenue Code to demonstrate the clear congressional preference for incorporating state law by reference rather than creating an independent federal law of marriage. It also examines the history of the 1969 Tax Reform Act in a vain effort to discern a congressional desire …

Computer Programs As Goods Under The U.C.C., Michigan Law Review

Michigan Law Review

This Note addresses the requirements for governing computer program contracts by article 2 of the U.C.C.: that the several methods of selling programs be "transactions in goods" and that the goods not be merely incidental to accompanying services. This Note concludes that contracts for program copies are, in most contexts, transactions within the scope of article 2.

From Feres To Stencel: Should Military Personnel Have Access To Ftca Recovery, Michigan Law Review

Michigan Law Review

This Note reevaluates the Feres doctrine in light of legal developments of the past three decades. It concludes that the FTCA should be extended to military claims. It discusses the arguments that military claims will burden vital government functions and shows that the exception to liability under the present FTCA, particularly the exception for "discretionary actions" by government employees, would adequately protect all legitimate military interests.

Limitation Borrowing In Federal Courts, Michigan Law Review

Michigan Law Review

This Note studies limitations on federal actions in light of Occidental Life. Part I discusses the reasons for limiting actions and presents a short history ·of the limitation of actions. Part II analyzes the alternatives for the federal courts when no statute of limitations applies directly. Finally, the Note suggests a solution that will achieve a result most nearly consistent with both the reasons for limiting actions and the proper role of the judiciary. It suggests, notwithstanding Occidental Life, that in some situations courts should borrow specific federal statutes of limitations and that in the remainder they should …

Birth Defects Caused By Parental Exposure To Workplace Hazards: The Interface Of Title Vii With Osha And Tort Law, Lynne Darcy

University of Michigan Journal of Law Reform

This article will examine the problem of workers' exposure to toxic substances that affect human reproductive functions in light of the applicable legal framework provided by tort law, the Occupational Safety and Health Act of 1970 (OSHA), and Title VII of the Civil Rights Act of 1964. What employers may do to deal with this problem under existing law, and possible resolutions of some apparent conflicts between the underlying purposes of these laws, will also be delineated. It is the position of this article that the competing interests of employers, workers, and workers' offspring must be harmonized not by excluding …

Protection Of Children From Use In Pornography: Toward Constitutional And Enforceable Legislation, T. Christopher Donnelly

University of Michigan Journal of Law Reform

This article will begin with an overview of the child pornography problem, then move to a more detailed discussion of the harms wrought upon children and society by the production and distribution of such material. A discussion of prior law will follow, detailing the need for legislation aimed specifically at the child pornography industry. The majority of the article will undertake a critical examination of existing child pornography legislation. The various elements of the offenses will be discussed and recommendations will be made to assure the effectiveness and constitutionality of child pornography statutes. In addition, provisions designed to facilitate easier …

The Antidumping Law: Repeal It Or Revise It, John J. Barceló Iii

Michigan Journal of International Law

This Article concentrates only on American antidumping, safeguard, and antitrust laws. The analysis, however, should have general application to any country in the western trading world. All such countries have antidumping and safeguard provisions patterned along the general guidelines in Articles VI and XIX of the General Agreement on Tariffs and Trade (GAIT). Any country which does not provide protection against predatory pricing through a general antitrust law might resort to a revised antidumping law aimed only at predatory dumping.

The "Fast-Track" Procedure: Problems Of Implementation, David N. Wall

Michigan Journal of International Law

The Trade Act of 1974 represented the most significant reformulation of United States international economic policy since the Trade Agreements Act of 1934. Responding to criticism from several quarters, Congress included in the Act major additions to the laws dealing with unfair foreign trade practices. In particular, the Act contained several measures intended to expedite the processing of antidumping complaints. One of these measures, the so-called "fast-track" provision, created a potentially powerful administrative mechanism to permit the summary dismissal of clearly unmeritorious complaints. Unfortunately, implementation of this amendment has suffered from a lack of legislative guidance, and it is not …

The Antidumping Act: Comments For Business, John Cutler

Michigan Journal of International Law

After several decades of disuse, the Antidumping Act has been rediscovered in recent years by domestic producers. However, even as American manufacturers have resorted to the Act with increasing frequency, they have criticized it as being ineffective. Although American producers undoubtedly would be better served if the Antidumping Act were to be amended in response to these criticisms, the Act, as presently written and administered by the Treasury Department, can even now provide benefits for domestic producers that are frequently overlooked. An American manufacturer who initiates a proceeding under the Antidumping Act is usually seeking to force up prices for …

The Antidumping Act: Proposals For Change, Noel Hemmendinger

Michigan Journal of International Law

The Antidumping Act is in great trouble. Most of its troubles flow from a basic misconception about the role of an antidumping proceeding. A dumping case is sometimes looked on as analogous to private party litigation in which domestic producers seek to vindicate "rights" being injured by foreign exporters. In another view, it is sometimes regarded as analogous to a criminal proceeding in which the United States condemns and punishes certain methods of foreign price competition as "unfair." In my view, it is preferable to look at an antidumping proceeding as a method of resolving a conflict in the execution …

Proposals For Change In The Administration Of The Antidumping Act, Stephen L. Gibson

Michigan Journal of International Law

This article suggests changes that might be made in the administration of the existing Act to improve the efficiency of investigations and the fairness of determinations under the Act in its present form. Most of these suggestions are addressed to the Treasury Department's fair value investigation, with only a few comments on the International Trade Commission injury investigation phase. The ITC has developed a framework for injury investigations that appears generally to be both workable and acceptable to interested parties. Treasury's fair value investigation, on the other hand, has tended to be more controversial. This stems in part from the …

The Treatment Of Products From State-Controlled Economies Under The United States Antidumping Law, Stephanie M. Smith

Michigan Journal of International Law

When the Antidumping Act of 1921 was enacted, the mechanics of its application to products of state-controlled economies (hereinafter SCES) understandably was not treated. There was only one state-controlled economy in existence in 1921, and its trade with the United States was relatively insignificant. Recently, however, trade with SCEs has been increasing, and continued growth is likely. United States imports from SCEs in 1977 increased to $1,686 million from a volume of $50 million in 1951. This larger volume of trade necessitates a reassessment of the way in which the problems of interaction with these completely different economies are handled.

The Right To Financial Privacy Act Of 1978-The Congressional Response To United States V. Miller: A Procedural Right To Challenge Government Access To Financial Records, Nancy M. Kirschner

University of Michigan Journal of Law Reform

This article will review the factors leading to the Miller decision and the legislative response to that decision. Part I will examine the bank customer's expectation of privacy and the way Miller affects this expectation. Part II will discuss the congressional response to Miller and the competing interests which led to the Right to Financial Privacy Act. The Act itself will be discussed in detail in Part III. Part IV will evaluate the Act, and offer recommendations for reform. The article concludes that the Act, by adopting a purely procedural approach, fails to provide adequate protection to bank customers.

Accelerated Depreciation—Tax Expenditure Or Proper Allowance For Measuring Net Income?, Douglas A. Kahn

Articles

Since the 1950s, it has become fashionable to attack various provisions of the Internal Revenue Code by calling them "subsidies" rather than "proper" means of measuring taxable income. These "subsidies" through Code provisions have come to be referred to as "tax expenditures," a term coined by Professor Stanley Surrey in a speech he made as Assistant Secretary of the Treasury for Tax Policy on November 15, 1967. In that speech, Professor Surrey stated that our tax system often deliberately departs "from accepted concepts of net income," so that by granting exemptions, deductions, and credits that are not appropriate to an …

Regulating Carcinogens In Food: A Legislator's Guide To The Food Safety Provisions Of The Federal Food, Drug, And Cosmetic Act, Richard A. Merrill

Michigan Law Review

On March 9, 1977, the Food and Drug Administration (FDA) announced that a study in laboratory rats conducted by the Canadian government confirmed that saccharin is an animal carcinogen. For this reason, the agency stated, the sweetener must be banned from human food.

The studies which Congress mandated, to be accompanied by the recommendations of the Secretary of HEW, are likely to generate a fundamental reexamination of the nation's current food safety policies. This Article attempts to aid this inquiry by explaining the requirements of the present law. The Article describes the several statutory provisions that govern the regulation of …

Living Probate: The Conservatorship Model, John H. Langbein

Michigan Law Review

The main purpose of the present Article is to suggest a somewhat different theoretical and practical approach to structuring the living probate procedure. I shall characterize the procedure called for in the North Dakota act and in similar proposals as the Contest Model of living probate, in distinction to a Conservatorship Model that I shall advocate to be the better way. Part I of this Article reviews briefly the problem to which living probate is addressed and the alternatives that can presently be employed to forestall post-mortem capacity litigation in the absence of a living probate system. In Part TI …

The Conservatorship Model: A Modification, Gregory S. Alexander

Michigan Law Review

Reform-minded probate lawyers have discussed the idea of ante-mortem probate for many years. Yet, owing to several seemingly unavoidable defects, it has never attracted widespread support · and only recently has been implemented anywhere in the United States. In his article, Living Probate: The Conservatorship Model, Professor John Langbein has eliminated many of those defects and has made the idea much more feasible. In doing so, he has contributed to the development of simple, convenient, and efficient systems of probate. However, his proposal introduces new flaws that threaten the practical working of his procedural model.