Legislation Commons^™

The European Alternative To Uniformity In Corporation Laws, Alfred F. Conard

Michigan Law Review

Although the European Communities chose many patterns of business law that were parallel to the American, they deliberately rejected the American freedom of each state to frame its corporation law to suit itself. They decided to impose not complete uniformity, but a degree of "coordination" of "equivalent safeguards" that they deemed appropriate to the existence of an economic union. Leading commentators have described the process as "harmonization."

The decision to coordinate stimulates reflection on the relative merits of the American system of giving states a free choice of corporation regimes, restricted only marginally by federal securities regulation, and the European …

Bright Lines, Dark Deeds: Counting Convictions Under The Armed Career Criminal Act, James E. Hooper

Michigan Law Review

The Armed Career Criminal Act of 1984 (ACCA) enables the federal government to help state authorities more effectively prosecute "career criminals.'' The ACCA imposes a mandatory sentence of at least fifteen years, and up to life imprisonment, for illegal possession of a firearm by anyone who has three prior convictions for violent felonies or serious drug offenses "committed on occasions different from one another."

To apply the ACCA, judges must determine first whether the defendant's prior convictions meet the definitions of "violent felony or serious drug offense," and secondly whether the offenses were committed on different occasions so that they …

Employer Recapture Of Erisa Contributions Made By Mistake: A Federal Common Law Remedy To Prevent Unjust Enrichment, J. Daniel Plants

Michigan Law Review

This Note investigates more fully the policies animating ERISA in order to ascribe an appropriate construction to the mistaken contribution section. Part I analyzes the Ninth Circuit's anomalous implied cause of action theory. Searching the legislative history as well as ERISA's language and structure, this Part finds lacking the requisite expression of congressional intent to support a statutorily implied remedy. As an alternative, Part II explores the appropriateness of common law relief. Part II defends the creation of common law relief by the federal courts as consistent with the direct and indirect evidence suggesting that Congress envisioned judicial supplementation of …

The Nlrb's Deferral Policy And Union Reform: A Union Perspective, Leonard Page, Daniel W. Sherrick

University of Michigan Journal of Law Reform

Part I of this Article outlines the government's approach to civil RICO actions involving labor unions, including an overview of the government's prior civil RICO actions and a summary of the types of issues that often arise in such actions. Part II examines the unique issues involved in a civil RICO action brought by a private plaintiff. The principal issue addressed in this Part is whether a private plaintiff can bring an action under the equitable remedies provisions of the RICO statute. This Part also addresses the issues of how a private plaintiff can gain access to information that may …

America's Misunderstood Welfare State: Persistent Myths, Enduring Realities, Rachel D. Godsil

Michigan Law Review

A Review of America's Misunderstood Welfare State: Persistent Myths, Enduring Realities by Theodore R. Marmor, Jerry L. Mashaw, and Philip L. Harvey

Augmenting Erisa With Market Discipline: Transforming Pension Plan Interests Into Securities, Keir N. Dougall

University of Michigan Journal of Law Reform

Part I of this Note provides general background information about pension plans and details the problems that ERISA creates because of its dependence on trust law. Part II canvasses recent problems in pension plan governance that courts and pension plan members have faced in takeover defense and social investment contexts, demonstrating that ERISA's use of trust law cannot respond adequately to these problems. Parts I and II draw on an analysis of ERISA presented by Professors Fischel and Langbein but argue that their proposals for changing ERISA inadequately address the problems they identify. Part III argues that the economic realities …

Deferral And The Dissident, Paul Alan Levy

University of Michigan Journal of Law Reform

I discuss two examples involving a dissident group, Teamsters for a Democratic Union (TDU), that vividly illustrate the problems with NLRB deferral. I then examine the development and evolution of the NLRB's policies concerning deferral to arbitration. Next, I review the statutory- and policy-based arguments advanced for and against deferral. I attempt to assess the best reasons given for the deferral doctrine, while showing why, at least in its current incarnation, NLRB deferral doctrine is contrary to the requirements of the NLRA. More specifically, I show that, to the extent that deferral has some legitimate basis, it is founded on …

Private Plaintiffs' Use Of Equitable Remedies Under The Rico Statute: A Means To Reform Corrupted Labor Unions, Randy M. Mastro, Steven C. Bennett, Mary P. Donlevy

University of Michigan Journal of Law Reform

Part I of this Article outlines the government's approach to civil RICO actions involving labor unions, including an overview of the government's prior civil RICO actions and a summary of the types of issues that often arise in such actions. Part II examines the unique issues involved in a civil RICO action brought by a private plaintiff. The principal issue addressed in this Part is whether a private plaintiff can bring an action under the equitable remedies provisions of the RICO statute. This Part also addresses the issues of how a private plaintiff can gain access to information that may …

Market-Share Liability After Hymowitz And Conley: Exploring The Limits Of Judicial Power, Christopher J. Mcguire

University of Michigan Journal of Law Reform

This Note surveys the development of market-share liability and examines the limits on the power of state and federal courts to impose liability on defendants through market-share liability. Part I examines briefly the development of market-share liability in the early 1980s. It then explores how the New York Court of Appeals extended market-share liability in Hymowitz v. Eli Lilly and explores this case's ramifications. Part I also draws on a recent Florida case, Conley v. Boyle Drug Co., for further insight into the problems surrounding market-share liability litigation. Part II argues that jurisdictional limitations, such as standing to sue …

Beyond The War On Drugs: Overcoming A Failed Public Policy, Kenneth R. Hillier

Michigan Law Review

A Review of Beyond the War on Drugs: Overcoming a Failed Public Policy by Steven Wisotsky

Easment Holder Liability Under Cercla: The Right Way To Deal With Rights-Of-Way, Jill D. Neiman

Michigan Law Review

Responding to growing public concern about the accumulation of toxic wastes, Congress in 1980 passed the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). CERCLA authorizes federal action to clean up, or to require others to clean up, leaking hazardous waste sites. Congress placed the financial burden for this cleanup on those responsible for the problem and on those who benefited from improper methods of hazardous waste disposal. Through this liability scheme, Congress also intended CERCLA to encourage responsible or benefited parties to respond voluntarily to the hazardous waste problem.

Part I asserts that CERCLA's legislative history, when read against …

The Triumph Of Tokenism: The Voting Rights Act And The Theory Of Black Electoral Success, Lani Guinier

Michigan Law Review

In this article, my goal is to organize the divergent themes of black electoral success strategy within one conceptual framework in order to give the themes more cogency and attention. Having exposed the existence of a coherent theory, I then argue that the theory posits many of the correct goals but fails to provide a realistic mechanism for achieving them. The article proceeds in three Parts. In Part I, I develop the ideological and statutory roots of black electoral success theory. In Part II, I analyze the inadequacies of current voting rights litigation and its failure to realize the statute's …

Review Essay: Sunstein, Statutes, And The Common Law--Reconciling Markets, The Communal Impulse, And The Mammoth State, Peter L. Strauss

Michigan Law Review

The following pages principally address Professor Sunstein's basic argument for building on, rather than defending against, legislative judgments, and so virtually ignore the details of his proposals for statutory interpretation. Part I outlines Sunstein's case for some regulation - the necessary failures of market ordering and the consequent need for a mixed economy in which government regulation intervenes in important ways. Part II addresses Sunstein's decision to tie his analysis to the public law innovations of the New Deal, and suggests ways in which the analysis might be strengthened by attention to earlier struggles and changes - changes in common …

Collective Bargaining In The Federal Public Sector: Disclosing Employee Names And Addresses Under Exemption 6 Of The Freedom Of Information Act, Trina Jones

Michigan Law Review

This Note examines the application of FOIA and the Privacy Act to union requests for employee names and addresses under the Fed. LM Statute. Part I briefly explores the importance of employee names and addresses to collective bargaining. This Part also examines the increasingly significant role of public sector unions due to the growth in federal public sector employment and the decline of private sector unionization. Part II analyzes the various circuit court decisions supporting disclosure in the federal public sector. Part III examines Reporters Committee and Department of the Treasury and discusses the potential policy implications resulting from the …

In The Shadow Of The Legislature: The Common Law In The Age Of The New Public Law, Daniel A. Farber, Philip P. Frickey

Michigan Law Review

In this essay, we explore how modem common law judges should view their role vis-a-vis the legislature. We suggest that the perspective of the "New Public Law," as we conceptualize it, is surprisingly helpful in considering this problem.

In Part I, we briefly summarize two important aspects of the New Public Law: republicanism and public choice. We then address an obvious objection to our project - that our topic relates to private law, and is therefore outside the purview of the New Public Law. Part II turns to important questions about the relationship between statutes and the common law: When …

Voting Rights Act Section 2: Racially Polarized Voting And The Minority Community's Representative Of Choice, Evelyn Elayne Shockley

Michigan Law Review

A much needed congressional effort to give substance to African-American suffrage resulted in the enactment of the Voting Rights Act of 1965 (the Act). Although the fifteenth amendment gave African-American men the right to vote in 1870, almost a hundred years later they were still largely unable to exercise the right. This condition did not result from apathy on the part of African-American voters, but rather from their inability to overcome barriers set up by white racists. Practices whites instituted, such as "[l]iteracy and 'understanding' tests, poll taxes, the white primary, intimidation, [and] violence," prevented African-Americans from realizing their constitutional …

Putting The Dormancy Doctrine Out Of Its Misery, Richard D. Friedman

Articles

Justice Antonin Scalia has put on the academic table the question of whether the doctrine of the dormant commerce clause should be abandoned. That is a significant contribution, for this is an issue that should be debated thoroughly. But Justice Scalia's campaign against the doctrine has been notably ambivalent. On the one hand, he argues that the doctrine lacks justification in constitutional text, history, and theory.1 On the other hand, assertedly feeling the pressure of stare decisis,2 he has gone along with, and even led, applications of the doctrine, although within narrow limits.3 In this essay, I argue that Justice …

Can Antidumping Law Apply To Trade In Services?, Hideaki Kubo

Michigan Journal of International Law

In this paper, the author will investigate whether current U.S. antidumping law can apply to trade in services. Because service industries vary significantly in nature, the author takes an industry-specific approach, selecting three service industries - insurance, banking, and construction - and discussing possible problems in applying the U.S. antidumping law to these industries.

The Multiple-Marriage Society And Spousal Rights Under The Revised Uniform Probate Code, Lawrence W. Waggoner

Articles

Nearly everyone knows about the transformation of the American family that has taken place over the last couple of decades. The changes, from the latter half of the 1970s into the present, comprise one of the great events of our age. Articles on one aspect or another of the phenomenon frequent the popular press, and a special edition of Newsweek was recently devoted to the topic.' The traditional "Leave It To Beaver" family no longer prevails in American society. To be sure, families consisting of a wage-earning husband, a homemaking and child-rearing wife, and their two joint children still exist. …

Absolute Priority And New Value, James J. White

Articles

This paper is based on a lecture given on December 6, 1990 ast the Second Annual Robert E. Krinock Lecture. The absolute priority rule is a specific application of the broader doctrine that reorganization plans must be "fair and equitable." Both have their origins in the railroad reorganization cases of the early 20th century. The general doctrine is now codified in section 1129(b)(2) of the Bankruptcy Code and the rule is codified in subsection 1129(b)(2)(B)(ii) which provides that the debtor must pay a nonconsenting class of unsecured creditors in full or "the holder of any claim or interest that is …

Ex Proprio Vigore, James J. White

Articles

The National Conference of the Commissioners on Uniform State Laws (NCCUSL) is a legislature in every way but one. It drafts uniform acts, debates them, passes them, and promulgates them, but that passage and promulgation do not make these uniform acts law over any citizen of any state. These acts become the law of the various states only ex proprio vigore - only if their own vitality influences the legislators of the various states to pass them.

Stemming The Modification Of Child-Support Orders By Responding Courts: A Proposal To Amend Ruresa's Antisupersession Clause, Jane H. Gorham

University of Michigan Journal of Law Reform

This Note examines the practice of using the Act to modify existing child-support orders. Part I explores the question of whether the Act's enforcement mechanisms were designed to permit the responding court to modify existing support orders. It emphasizes the problems involved with concurrent support orders and modification and describes the range of positions courts have taken to support or oppose allowing responding courts to modify support orders. Part II explores the federal child-support enforcement programs, their interstate applications, and their relationship to the Act's enforcement mechanisms. The analysis in these parts leads to Part III, which proposes an amendment …

Copyright, Computer Software, And Work Made For Hire, Matthew R. Harris

Michigan Law Review

Prior to the Supreme Court's 1989 decision in Community for Creative Non-Violence v. Reid, the Circuits had disagreed over the question of whether independent contractors could qualify as "employees" under the doctrine. The Fifth, Ninth, and D.C. Circuits defined "employee" narrowly, thereby excluding the majority of commissioned works from potential work for hire status. Applying a much broader definition of the term, the Second and Seventh Circuits included virtually all commissioned works as work for hire. The disagreement was not surprising, since the copyright statute does not include a definition of the term, and the legislative history fails to …

The First Word: The President's Place In "Legislative History", Kathryn Marie Dessayer

Michigan Law Review

This Note examines the extent to which courts interpreting statutes should consider presidential participation in the legislative process. Part I concludes that courts should afford presidential input greater weight in statutory interpretation given the constitutional foundations and the empirical reality of the President's involvement in the lawmaking process. This conclusion follows from an examination of the President's authority to propose legislation and his power to review legislation via the presentment clause. To demonstrate the advantages of using presidential documents, Part II considers a series of cases in which courts used executive documents in the statutory interpretation process. Although federal courts …

Narrowing The Scope Of Civil Drug Forfeiture: Section 881, Substantial Connection And The Eighth Amendment, James B. Speta

Michigan Law Review

This Note offers two justifications for narrowing the scope of section 881 forfeiture. Part I argues that courts should apply the substantial connection test to section 881 forfeitures. This Part analyzes the statute using the traditional tools of statutory interpretation. While the text of the statute seems to support the broadest possible interpretation, the legislative history and context of adoption suggest that the substantial connection test is consistent with Congressional intent. In amending section 881, subsequent Congresses have favored application of the substantial connection test. Consistent with this narrower reading, present strategy in the "war on drugs" focuses stiff penalties …

Curtailing Inherited Wealth, Mark L. Ascher

Michigan Law Review

One of the most dominant themes in American ideology is equality of opportunity. In our society, ability and willingness to work hard are supposed to make all things possible. But we know there are flaws in our ideology. Differences in native ability unquestionably exist. Similarly, some people seem to have distinctly more than their fair share of good luck. Both types of differences are, however, beyond our control. So we try to convince ourselves that education evens out most differences. Still, we know there are immense differences in the values various parents imbue in their children. And we also know …

Homelessness: A Historical Perspective On Modern Legislation, Mark Peters

Michigan Law Review

This Note will demonstrate how current legislative responses to homelessness are bound and crippled by the social reform theories of the nineteenth and early twentieth centuries. Before legislators can devise more efficient remedies to tackle current problems, they must identify and transcend earlier, ineffective thinking. This requires viewing the homelessness problem· in historical perspective. Specifically, legislatures must (1) examine the origins of the legal system's underlying conceptions about homelessness, (2) understand how these conceptions undermined earlier legislation designed to deal with the crisis, and (3) isolate, and escape, the modem manifestations of these conceptions.

This Note examines the early twentieth …

The Impact Of U.S. Trade Law On Government Policy Making In The Republic Of China, P. K. Chiang

Michigan Journal of International Law

Since President Reagan signed the Omnibus Trade Act on August 23, 1988, the U.S. government has completed a series of investigations according to the provisions of the Act. Consultations aimed at forcing its trading partners to adjust their trade- policies which are regarded as unfair to U.S. trade have also been held in the past ten months or so. Being one of the most important trading partners of the U.S. – both in terms of its overall trade volume and its surplus with the U.S. – the Republic of China on Taiwan (ROC) seems to have become a target of …

Section 301 And The Appearance Of Unilateralism, Warren Maruyama

Michigan Journal of International Law

Despite extensive criticism, section 301 is a modest statute. It directs the United States Trade Representative (USTR), subject to the direction of the President, to take action if (1) the rights of the United States under a trade agreement are being denied, or (2) an act, policy, or practice of a foreign government is "unjustifiable" and burdens or restricts U.S. commerce. It also authorizes the USTR, again subject to the direction of the President, to act if (3) an act, policy, or practice of a foreign government is "unreasonable" and burdens or restricts U.S. commerce.

The Relevance Of Temporary Child Custody Orders To The Formation Of An Established Custodial Environment: A Model Statute For Uniform Application Under Michigan Law, Christine M. Drylie

University of Michigan Journal of Law Reform

This Note presents a Model Statute that clearly indicates when a court may find that an established custodial environment has arisen out of a temporary custody order. The Model Statute thus clarifies when it is appropriate to apply the clear and convincing evidentiary standard to situations involving temporary child custody orders. Part I of this Note describes the court's use of temporary custody orders to determine whether an established custodial environment exists. Part II sets forth the Model Statute, which integrates current case law into statutory language designed specifically for temporary custody situations. Part II also analyzes each section of …