Legislation Commons^™

Automatic Stays Under The New Bankruptcy Law, Frank R. Kennedy

University of Michigan Journal of Law Reform

In Mueller v. Nugent, decided shortly after the enactment of the Bankruptcy Act of 1898, the United States Supreme Court declared that a petition in bankruptcy is "a caveat to all the world, and in effect an attachment and injunction." This judicial gloss, much quoted and applied since, was an early recognition that a stay of creditors from collecting their claims against the debtor and his property from and after the filing of a petition under the Bankruptcy Act is indispensable to bankruptcy administration. Unless the creditors are stayed, the debtor's estate will be dismembered and the objective of equality …

The Constitutionality Of Michigan's Guilty But Mentally Ill Verdict, John M. Grostic

University of Michigan Journal of Law Reform

This article will assess the constitutionality of the statute providing for a GBMI verdict by examining the likely, impact of this statute on the constitutional rights of legally insane defendants. Part I will briefly outline the relevant provisions of the GBMI statute. Part II will consider whether legally insane defendants have a constitutional right to an insanity defense. Part III will then argue that some defendants, though legally insane at the time they committed allegedly criminal acts, will nevertheless be found GBMI rather than NGRI.

Reforming The Laws And Practice Of Diplomatic Immunity, Paul F. Roye

University of Michigan Journal of Law Reform

As a result of public criticism and increasingly strained relations between diplomatic communities and local communities, Congress recently enacted legislation that dramatically changes United States diplomatic immunity law. This legislation eliminates the complete immunity from criminal and civil law proceedings that was afforded most foreign diplomats and their staffs, and establishes the rules of the Vienna Convention on Diplomatic Relations as the measure of diplomatic immunity in the United States. This article will examine the theoretical justification for diplomatic immunity and its application in the United States. The manner in which the recently enacted legislation alters United States diplomatic immunity …

Postsecondary And Vocational Education Programs And The "Otherwise Qualified" Provision Of Section 504 Of The Rehabilitation Act Of 1973, Marc P. Charmatz, Andrew S. Penn

University of Michigan Journal of Law Reform

While the Rehabilitation Act defines a "handicapped individual,'' neither the language of section 504 nor its legislative history sheds much light on the exact meaning of the term ''otherwise qualified handicapped individual.'' This article will argue that the definition of this term must be broad enough to include severely handicapped persons, the primary group that Congress intended to benefit and protect in enacting section 504. Focussing on the area of postsecondary education, this article will argue that the interpretation developed in the Department of Health, Education and Welfare (HEW) Regulation most effectively fulfills the purposes which Congress intended in enacting …

Bribery And Brokerage: An Analysis Of Bribery In Domestic And Foreign Commerce Under Section 2 ( C ) Of The Robinson-Patman Act, Michigan Law Review

Michigan Law Review

This Note first analyzes the substantive and jurisdictional criteria of section 2(c) to evaluate the possible and the desirable scope of its applicability to commercial bribery. The Note next asks whether this statute reaches bribery of domestic and foreign government officials and concludes that where the requirements of section 2(c) are otherwise met and where the person accepting the bribe is acting administratively rather than politically, the statute could be applied to bribery of agents of domestic governments. However, a wholesale application of section 2( c) to bribery of foreign government agents would leave American competitors in foreign commerce defenseless …

Sexual Harassment And Title Vii: The Foundation For The Elimination Of Sexual Cooperation As An Employment Condition, Michigan Law Review

Michigan Law Review

Ten years after the enactment of Title VII, the federal judiciary confronted its first Title VII case in which sexual harassment was the primary allegation. In the next three-and-one-half years, six more claims of sexual harassment reached federal district courts, 4 and three federal circuit courts of appeal reviewed lower court holdings.

Neither these cases nor the considerable journalistic and academic attention they received reveals a consensus regarding the appropriate application of Title VII to cases of sexual harassment. This Note, therefore, examines the application of Title VII to the problem of sexual harassment and suggests a coherent framework for …

Tort Claims Under The Present And Proposed Bankruptcy Acts, Stephen Allen Edwards

University of Michigan Journal of Law Reform

Congress may soon enact the first complete revision of the United States bankruptcy laws in almost four decades. Among the numerous changes proposed by the legislature is a major alteration of the provability and dischargeability of tort claims asserted against the bankrupt's estate. This article will discuss the treatment of tort claims in the present Act and the changes to be made by the proposed Act, and will evaluate alternative approaches to compensating victims of bankrupt tortfeasors.

Proposed Labor Reform: "Brave New World" Or "Looking Backward"?, Theodore J. St. Antoine

Other Publications

By now it is a commonplace in the labor relations community that there are two significant deficiencies in the administration of the National Labor Relations Act. Neither is a matter of substantive law in the usual sense. The first is the inordinate delay in securing a remedy in contested cases, and the second is the inadequacy of the remedy in certain critical situations. I should like to examine a few key recommendations of the NLRB Task Force, and a few key provisions of the proposed Labor Reform Act, in light of those two central concerns.

In my assessment I shall …

The Automatic Stay In Bankruptcy, Frank R. Kennedy

University of Michigan Journal of Law Reform

The filing of a petition under the Bankruptcy Act constitutes an automatic stay of all litigation against the debtor and most acts and actions against the debtor's property. The stay is one of the most notable features of the Rules of Bankruptcy Procedure promulgated by the Supreme Court. The constitutional and statutory basis for the automatic stay has been challenged, and the propriety and the scope of the stay have been contested and ruled on, in many reported opinions. The need and justification for an automatic stay in bankruptcy and debtor relief cases have been widely acknowledged, and an automatic …

The Clean Air Act Amendments Of 1977 And The National Parklands, Robert Maynard

University of Michigan Journal of Law Reform

This article explores the new legislative scheme as it pertains to national parklands. After outlining the history of the PSD concept, the article considers the PSD provisions and their application to national parklands. Examination of the visibility section, which rounds out the framework for preservation of parkland air resources set up in the PSD section, completes the discussion. The analysis focuses on several potential defects in the regulatory structure of the amendments, including the failure to extend immediate protection under the PSD and visibility sections to a large number of national parkland units, the somewhat unrealistic criteria chosen to define …

Sunset Legislation: Spotlighting Bureaucracy, John M. Quitmeyer

University of Michigan Journal of Law Reform

This note suggests that sunset legislation is an appropriate response to these concerns. Section I describes the deficiencies of current methods by which the legislature reviews activities of the executive branch. Section II examines the provisions of sunset legislation, emphasizing the role of evaluation criteria, and suggests that elaborate quantitative techniques are not crucial for adequate evaluation. Evaluation criteria currently incorporated in various sunset statutes can best be classified according to those which apply to entity functioning and those which evaluate an entity's purpose. These criteria are treated in sections III and IV respectively.

Applicability Of Federal Antidiscrimination Legislation To The Selection Of A Law Partner, Michigan Law Review

Michigan Law Review

The decision by the members of a law partnership to invite an associate of the firm to become a partner involves careful consideration of the associate's qualifications. Recently some associates who have been denied advancement to partnership have alleged improper consideration of religion, national origin, or sex in the partner selection process. There are, of course, practical difficulties in proving discrimination in the subjective context of partnership selection. Assuming clear evidence of such discrimination, this Note addresses the question whether an associate may invoke the protection of federal antidiscrimination legislation.

Decriminalizing The Marijuana User: A Drafter's Guide, Richard J. Bonnie

University of Michigan Journal of Law Reform

The article does not discuss the arguments in favor of decriminalization, a matter which the author' and others have covered elsewhere. Nor does the article consider the even more difficult questions involved in a legislative decision to legalize the drug and authorize its distribution for nonmedical uses. International obligations, federal law, and current political realities preclude enactment of a regulatory approach toward the availability of marijuana, including any variant of the so-called alcohol model. Although a state conceivably could repeal its laws against cultivation and distribution of marijuana, including only the federal prohibitions in effect, such an overt departure from …

The Bankruptcy Reform Process: Maximizing Judicial Control In Wage Earners' Plans, Marjorie Girth

University of Michigan Journal of Law Reform

This article examines the effort to maximize judicial control over the bankruptcy process and its impact on H.R. 8200's procedural requirements for the nonbusiness bankruptcy option known currently as the wage earners' plan. As background, it describes the present nonbusiness bankruptcy options and the statutory procedures for monitoring confirmed wage earners' plans. Then, using illustrative samples from three years of cases in the Buffalo region of the Western District of New York, it assesses whether present plans are being administered in accordance with the statutory formalities. The economic incentives which affect creditors' behavior in taking advantage of their opportunities to …

Penalizing Bribery Of Foreign Officials Through The Tax Laws: A Case For Repealing Section 162 (C)(1), Christopher Alan Lewis

University of Michigan Journal of Law Reform

Most commentary on these congressional attempts to use tax laws to control the ethics of overseas enterprises has centered either on the effectiveness of these provisions or on the burdens and difficulties involved with their implementation. This article, while discussing these issues, is concerned primarily with the conceptual justifications and the direct economic effects of these tax provisions. The article contends that section 162(c)(1) and the pertinent provisions of the Tax Reform Act of 1976 are disguised penalties which often operate arbitrarily and unfairly and concludes that they should be repealed in favor of more equitable and effective deterrents.

Employee Stock Ownership Plans, Voting Rights, And Plant Closings, Jonathan Barry Forman

University of Michigan Journal of Law Reform

After examining the structure and tax consequences of ESOPs, this note will argue that ESOPs should guarantee employees full voting rights over securities transferred to them under such plans. This note will also propose that ESOPs can be used in employee takeovers of corporations as part of a plan to help prevent plant closings.

Evaluating Article 2 Of The Uniform Commercial Code: A Preliminary Empirical Expedition, James J. White

Articles

A proponent of commercial law codification, Mr. Eaton was one of the first American lawyers to perceive that mere codification of the law did not necessarily produce certainty and lack of discord in the law of commercial transactions. Indeed, in the same article Eaton reveals that of the 1,091 cases that had arisen under the Negotiable Instruments Law, only 704 cited the Act and in the other 387 "the Negotiable Instruments Law [was] ignored by the courts in the decisions, and (so far as the reports show) by the counsel in these cases...." Unlike Bentham, Carter, and Field, each of …

Carter's Projected "Zero-Based" Review Of The Internal Revenue Code: Is Our Tax Code To Be "Born Again"?, L. Hart Wright

Michigan Law Review

The evolution of today's Internal Revenue Code, which began with the mere embryo that Congress created in 1913, has absorbed over the ensuing sixty-four years more creative energy on the part of more co-authors than any other law in history. Despite this unstinted expenditure of "blood, sweat, and tears," the resulting document--were it possessed of human senses--would recognize that, for a foreseeable period, its life will be anything but serene. The plight in which it would find itself could even be compared to that early morning scene observed one hundred years ago by General Custer, when hostile forces were massed …

The Impact Of The Foia On Nlrb Discovery Procedures, Del Dillingham

University of Michigan Journal of Law Reform

A prerequisite to filing a suit under the FOIA is the exhaustion of administrative remedies; in an unfair labor practice hearing, this means petitioning the Board for discovery. The increase in the number of suits against the Board under the FOIA demonstrates a growing dissatisfaction with the Board's discovery procedures. This article will discuss the impact of the FOIA on the Board's policies and practices and will examine various factors which must be considered in applying the Act to the NLRB.

State Legislative Responses To The Arab Boycott Of Israel, Maurice Portley

University of Michigan Journal of Law Reform

The Arab boycott of Israel confronts the American business community with difficult ethical and political decisions. Six states, led by New York, have quietly enacted anti boycott laws designed to prevent economic trade opportunities with the Middle East from encouraging discrimination within their borders. The laws seek to prohibit the discriminatory effects of the boycott, which indicates that the Arab-Israeli conflict is not limited to military weapons or confined to the nations of the Middle East. More importantly, the states' responses signal a growing awareness that the federal government is unwilling to handle the complex moral, political, economic, and legal …

Tort Liability Of Labor Unions For Picket Line Assaults, David R. Case

University of Michigan Journal of Law Reform

This article will discuss whether tort actions against unions for picket line assaults are preempted by the National Labor Relations Act, and if not preempted, what forums are available to hear such actions. This article will also examine the theories that have been used to hold unions liable for the assaults committed by their picketers. Included in this discussion will be an analysis of the policy considerations offered in support of the various theories of liability.

Marital Agreements In Contemplation Of Divorce, Barbara Klarman

University of Michigan Journal of Law Reform

Romantic notions that marriage is forever are beginning to give way to the more realistic assessments that marriages indeed may not last. The pressure has been mounting for ways to provide economic planning to parties in the relatively likely event that their marriages terminate in divorce. The purpose of this article is to focus on one method of obtaining such planning: the marital agreement setting forth the support and property distribution which the parties would follow in the event of divorce. This article will review the law regarding marital agreements in contemplation of divorce as it exists in the United …

Efts: Consumer Protection Under The Ucc, Susan E. Jinnett

University of Michigan Journal of Law Reform

In view of the economic significance of the payments system, the laws governing it must be equitable and comprehensive. The development of the commercial law applicable to EFTS's, however, currently lags behind the growth of these systems. Threats to the integrity of EFTS's stem from lost, stolen, or forged access cards, illegal taps into communication lines, physical impairment of the equipment, or improper programming. The legal rights and liabilities of consumers where the integrity of an EFTS has been breached remains unclear, in part because the status of EFTS's under current law is uncertain. The rights of the parties involved …

Punitive Damages Under Section 102 Of The Labor-Management Reporting And Disclosure Act, S. Thomas Wienner

University of Michigan Journal of Law Reform

It is firmly established that in a suit brought under section 102, a union member may ordinarily recover compensatory damages for any injury proximately caused by a violation of Title I or section 609. The courts are divided, however, on the question of whether a plaintiff may be awarded punitive damages under section 102. This article will address that question by discussing the language and the legislative history of section 102, the conflicting decisions of the federal courts, and the relevant policy considerations.

Legislative Notes: The Economic Impact Disclosure Act, William F. Flynn

University of Michigan Journal of Law Reform

While the traditional concern with agency discretion is that agency decision-making will be biased in favor of the regulated industries, agencies are also criticized for failing to investigate the impact of their policies on the regulated client and the resulting cost to consumers. This failure prevents the agency from responding adequately to the legitimate interests of either the business community or consumers. This note examines a recently developed procedure designed to improve the agency decisionmaking process by requiring economic prediction of the effect which agency activities will have prior to agency action.

In particular, this note examines three issues. Part …

Laws That Are Made To Be Broken: Adjusting For Anticipated Noncompliance, Michigan Law Review

Michigan Law Review

This Note explores and defends a legislative strategy that has neither been clearly articulated by legal theorists nor methodically pursued by practical lawmakers. Most laws are introduced with the expectation that they will sometimes be broken, but it is generally -thought that noncompliance diminishes the utility of laws. It is possible, however, to design laws the utility of which is actually enhanced by a certain amount of noncompliance. As a corollary, it can ·be shown that it is rational, under some circumstances, for a legislature to enact laws that are not just expected but are intended to be broken with …

Intra-Enterprise Conspiracy Under Section 1 Of The Sherman Act: A Suggested Standard, Michigan Law Review

Michigan Law Review

Section I of this Note analyzes the cases in which the Supreme Court has implied a doctrine of intra-enterprise conspiracy. Section II then sets forth the theoretical and practical difficulties that such a doctrine entails. Section III, in turn, considers previous proposals for limiting the scope of the intra-enterprise conspiracy doctrine and examines their deficiencies. Finally, section IV presents an alternative analysis of the intra-enterprise conspiracy issue and proposes a standard for determining when application of section 1 of the Sherman Act to parent-subsidiary relations is inappropriate.

The Ftc's Injunctive Authority Against False Advertising Of Food And Drugs, Michigan Law Review

Michigan Law Review

Two judicial decisions in the early 1950s construing the FTC's section 13 (a) power produced a conflict that has not been resolved either by later courts or by the amendments to section 13 enacted in 1973. The dispute basically concerns the depth of the courts' inquiry into whether an advertisement violates- section 12 and the applicability of traditional equitable concepts in the context of the statutory injunction procedure. This Note contends that the legislative history of pertinent provisions of the Act suggests an appropriate resolution of the conflict through a two-step approach that would relax the scrutiny ordinarily accorded petitions …

Reprisal Discharges Of Union Officials, Alan V. Reuther

University of Michigan Journal of Law Reform

Usually union officers and employees are also members of their union. The dual status of officer-members and employee-members places them in a unique situation under the LMRDA. As union members, they are entitled to the rights enumerated in Title I. As union officers and employees, however, they serve at the pleasure of their superiors. This situation raises the question whether officer- and employee-members have a cause of action under the LMRDA when they are discharged in retaliation for exercising rights protected under Title 1. Resolution of this question depends upon whether or not such reprisal discharges violate the provisions of …

Legislative Notes: Metallic Mining And Reclamation In Michigan: Environmental Management As A Gentler Approach, John C. Dernbach

University of Michigan Journal of Law Reform

A great deal has been said and written about the need for meaningful reclamation requirements for the surface mining of coal. Nonetheless, little attention has been given to the large quantity of land disturbed by mining for other minerals. Thirty-eight states have laws dealing directly with reclamation from a wide variety of mining operations . For purposes of this note, reclamation refers to those measures taken concurrently with or after the mining operation to reduce or repair the adverse effects of the operation on disrupted land . Environmental management is a much broader term which encompasses the full range of …