Legislation Commons^™

Goldstein's Curse, James J. White

Articles

ON April 16, 1980, a man using the name Marvin Goldstein opened a bank account at a Baltimore branch of Union Trust Company. He deposited $15,000 in cash. He told the branch manager that he planned to establish a Baltimore office of his father's New York business, "Goldstein's Precious Metals and Stones." Goldstein identified himself with a New Jersey driver's license and gave a bank reference from New York. On May 6, Goldstein deposited a check for $880,000 at another Union Trust branch near the branch where he had opened the account. Words on this check indicated that it was …

Spousal Probate Rights In A Multiple-Marriage Society, Lawrence W. Waggoner

Other Publications

Nearly everyone knows about the transformation of the American family that has taken place over the last couple of decades. The changes comprise one of the great events of our age-from the latter half of the 1970's into the present. 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 marriage behavior. To be sure, the wage-earning husband, the homemaking and child-rearing wife, and their two joint children-this type of family still exists. …

Child Welfare Legislation In India: Will Indian Children Benefit From The United Nations Convention On The Rights Of The Child, Shahana Dasgupta

Michigan Journal of International Law

The subject of children's rights has been dealt with both directly and indirectly in a number of international legal instruments over the years. Initially, there were differences concerning the need for a Convention over and above the already existing legislation. Some countries felt that children should not be treated as a category set apart from other human beings and thereby be the object of a separate legal document. On the other hand, countries in favor of a Convention wanted to create a single legal instrument which would take into account children's requirements on a universal scale. They also saw the …

Regulation Of Imports And Foregn Investment In The United States On National Security Grounds, David Scott Nance, Jessica Wasserman

Michigan Journal of International Law

Traditionally, concerns over the effects of trade and investment on national security have centered upon the transfer of products and technologies with potential military uses. However, national security concerns also arise with respect to the economic and military impact of imports and of foreign acquisition of domestic assets. The United States has a longstanding statute, section 232 of the Trade Expansion Act of 1962, that allows the President to restrict imports of goods on national security grounds. More recently, another statute, popularly referred to as the Exon-Florio Act, provides the President with authority to bar the acquisition of United States …

The Uniform Statutory Rule Against Perpetuities: The Rationale Of The 90-Year Waiting Period, Lawrence W. Waggoner

Articles

The Uniform Law Commissioners promulgated the Uniform Statutory Rule Against Perpetuities in 1986. The perpetuity-reform efforts of the American Law Institute in the Restatement (Second) inspired the Uniform Act. The Restatement and the Uniform Act employ the so-called wait-and-see approach to perpetuity reform. Wait-and-see is a two-step strategy. Step One preserves the validating side of the common-law Rule Against Perpetuities (the common-law Rule): By satisfying the common-law Rule, a nonvested future interest in property is valid at the moment of its creation. Step Two is a salvage strategy for future interests that would have been invalid at common law: Rather …

The Uniform Statutory Rule Against Perpetuities: Oregon Joins Up, Lawrence W. Waggoner

Articles

Uniform perpetuity reform is on the march, and Oregon has joined the parade. On January 1, 1990, the Uniform Statutory Rule Against Perpetuities (Uniform Act) became effective in Oregon. Although promulgated only three years ago, the Uniform Act has been enacted in over twenty percent of the states and appears to be on its way toward enactment in several others. Prior to the adoption of the Uniform Act, Oregon followed the common-law Rule Against Perpetuities (common-law Rule). Noted for its unjust consequences, the common-law Rule disregards actual events and invalidates a contingent (nonvested) future interest merely on the grounds of …

The Public Domain, Jessica D. Litman

Articles

This article examines the public domain by looking at the gulf between what authors really do and the way the law perceives them. Part I outlines the basics of copyright as a species of property and introduces the public domain's place within the copyright scheme. Copyright grants authors" ' rights modeled on real property in order to encourage authorship by providing authors with markets in which they can seek compensation for their creations. Because parcels of authorship are intangible, however, the law faces *problems in determining the ownership and boundaries of its property grants. In particular, the concept of "originality," …

Translation Of Legal Texts: Three English Versions Of The Swiss Federal Statute On Private International Law, Walter König

Michigan Journal of International Law

Working with translated legal materials can be frustrating and treacherous. Lawyers who are regularly forced to do this soon realize their limitations and end up wishing they had taken the trouble to study the original language. They also appreciate the difficulties confronting the translator. Mastery of the languages involved is necessary, but not sufficient, particularly where the user of a translation expects a literal translation, the legal systems of the starting languages and target language differ fundamentally and the subject matter is highly abstract.

A Primer On Power Balancing Under The National Labor Relations Act, James B. Zimarowski

University of Michigan Journal of Law Reform

The focus of this Article is twofold. First, it addresses the substantive power control mechanisms established and regulated by the National Labor Relations Board (Board) and the courts. Second, it examines the power balancing methodology embraced by these dispute resolution forums. This Article takes the position that power balancing analysis designed to achieve the NLRA's multidimensional policies is a more fruitful endeavor than the analysis of economic efficiency or a partisan approach subject to political considerations.

Principles, Politics, And Constitutional Law, Mark Tushnet

Michigan Law Review

The contrast in Senator Thurmond's performance in hearings concerning Judge Bork, whose nomination he supported, and Justice Marshall, whose nomination he opposed, suggests the apparently cynical view that one's position on the proper scope of senatorial inquiry during a nomination depends upon one's position on the merits of the nomination. Much has been written, usually provoked by controversial nominations, about the proper scope of senatorial inquiry. The press of immediate controversy, however, diverts attention from more fundamental issues about the nature of constitutional government, to which I devote this essay.

Misreading The Williams Act, Lyman Johnson, David Millon

Michigan Law Review

This Article examines the emerging controversy over preemption of the most potent of recent antitakeover laws, the so-called business combination statutes recently passed by Delaware, New York, and other states, and Pennsylvania's director-approval statute. After examining the strategy employed by the states to shield these statutes from constitutional attack, we consider the issues raised by the preemption claim and the arguments currently being advanced by the SEC and others in favor of preemption. Resolving the preemption controversy requires inquiry into the original meaning and objectives of the Williams Act. We argue that this should involve attention not only to the …

Finding A "Manifest Imbalance": The Case For A Unified Statistical Test For Voluntary Affirmative Action Under Title Vii, David D. Meyer

Michigan Law Review

This Note analyzes the "manifest imbalance" standard developed in Weber and Johnson and the various approaches the lower courts have taken in trying to apply the test. Part I examines the Weber and Johnson opinions in some detail, and argues that the Court intended to permit affirmative action aimed at remedying the evident effects of past discrimination, regardless of whether the employer or society at large is to blame. Section I.A describes the diverging constitutional and statutory standards for evaluating voluntary affirmative action programs, and the policies behind the divergence. Sections I.B and I.C take a closer look at the …

Judicial Review And American Democracy, Stanley S. Sokul

Michigan Law Review

A Review of Judicial Review and American Democracy by Albert P. Melone and George Mace

Changing The Rules Of The Game: Pension Plan Terminations And Early Retirement Benefits, Dana M. Muir

Michigan Law Review

This Note examines whether early retirement benefits are included among the liabilities that an employer must satisfy before that employer can receive a reversion of excess assets. Part I reviews the background of plan terminations and how they affect early retirement benefits. It also discusses the general structure of ERISA. Part II examines the controversy surrounding whether ERISA's definition of "accrued benefits" includes early retirement benefits. ERISA requires that employees receive all of their accrued benefits before the employers receive any reversions. However, the circuits have disagreed as to whether early retirement benefits are accrued benefits and, therefore, covered by …

On The "Auschwitz Lie", Herbert A. Strauss, Ernst Nolte, Helge Grabitz, Christian Meier

Michigan Law Review

In the November 1986 issue of the Michigan Law Review, Professor Eric Stein addressed the then-recent German legislation prohibiting the "Auschwitz lie." The "Auschwitz lie" refers to contemporary attempts to deny the historical truth of the Holocaust.

In the time since his article was published, Professor Stein has corresponded with several European scholars on the issues raised by the 1985 legislation. That correspondence, though brief, highlights the contentious aspects of Professor Stein's analysis; it suggests that the issues of restricting "historical speech," promoting national consciousness, attributing collective guilt, and identifying the role of courts in punishing historical lies remain troublesome …

Clearing The Mixed-Motive Smokescreen: An Approach To Disparate Treatment Under Title Vii, Robert S. Whitman

Michigan Law Review

Part I of this Note describes the indirect-evidence inquiry of McDonnell Douglas and its basis in the policies underlying Title VII. Part II presents the various judicial treatments of cases where direct evidence is presented. These three major approaches reflect varying views of the burdens of proof regarding Title VII causation, and assume that the plaintiff has already shown some palpable level of discrimination. Part III describes Mt. Healthy City School District Board of Education v. Doyle, in which the Supreme Court first devised an approach to mixed motives. Although the Mt. Healthy analysis was developed for first amendment …

Missing The Point About State Takeover Statutes, Lyman Johnson, David Millon

Michigan Law Review

In a recent article in this journal, Professor Richard Booth offers an extended appraisal of state legislation regulating hostile corporate takeovers. We think Booth's article requires comment for two reasons. The first reason is perhaps more obvious, though less interesting from our point of view. To be blunt, "unfairness" to shareholders due to coercion arising out of two-tier or partial offers simply does not occur with enough frequency to warrant a sixty-seven-page article in a major law review. According to recent congressional testimony by SEC Commissioner Cox, from 1982 to 1986 the number of two-tier offers declined from 18% of …

Legislative Inaction And The Patterson Case, Earl M. Maltz

Michigan Law Review

In its October 1988 issue,1 the Michigan Law Review published a symposium on Patterson v. McLean Credit Union, a case in which the Supreme Court has requested reargument on the question of whether Runyon v. McCrary should be overruled or modified. Each of the three distinguished contributors to the symposium concludes that the Court should not overrule Runyon. In reaching this conclusion, Professor William N. Eskridge and Professor Daniel A. Farber rely heavily on the view that because Congress has recognized the existence of the Runyon doctrine and has refused to overrule the decision, the doctrine of stare decisis …

Libel Reform: An Appraisal, C. Thomas Dienes

University of Michigan Journal of Law Reform

Today, I am going to talk about the law of libel. A major part of my work at U.S. News is prepublication review of U.S. News and World Report and The Atlantic. I make difficult decisions such as assessing the risk that the Ayatollah Khomeini might sue the magazine for libel. I am not sure if you can libel the Ayatollah, but be careful if you do-he has very potent remedies. I will not focus on the law of libel as it is practiced in Michigan or in other states today. Instead, I want to examine proposals for the …

The Anti-Dumping Systems Of Australia, Canada, The Eec And The United States Of America: Have Anti-Dumping Laws Become A Problem In International Trade?, Edwin A. Vermulst

Michigan Journal of International Law

This article, part of an in-depth comparative study of municipal anti-dumping laws in Australia, Canada, the European Economic Community and the United States, does not purport to undertake a comprehensive comparative analysis of the anti-dumping laws of the four jurisdictions. Its aim is, rather, to examine the core concepts and some of the core salient features of the laws as developed in actual practice, and to consider the problems that have arisen in these jurisdictions and their solutions. For this purpose, section I will analyze procedural issues, section II substantive issues of dumping, and section III substantive issues of injury. …

United States V. Palestine Liberation Organization: Continued Confusion In Congressional Intent And The Hierarchy Of Norms, Andrew R. Horne

Michigan Journal of International Law

This Note concludes that while the court's rationale is disingenuous and misleading, the final decision was an appropriate reaffirmation of the importance which American jurisprudence places on international obligations. In Part One, this Note discusses whether the dispute resolution provisions of the Headquarters Agreement precluded the district court's jurisdiction over the parties and subject matter of this case. Part Two examines the constitutional hierarchy of the ATA and the Headquarters Agreement to determine which should govern this dispute. If the court had concluded that it lacked jurisdiction, the case would have been dismissed from the U.S. court system, leaving the …

Comparison: Japanese And American Plant Closing Laws, Allison Zousmer

Michigan Journal of International Law

This Note analyzes the American and Japanese approaches to plant closings and discusses to what extent the American government can apply the successful Japanese approach to its own labor relations system. The first part examines the specific provisions of the two nations' laws. Second, it illustrates how the divergent social rules and historical backgrounds influence the operation of the plant closing laws in both nations. Part three explores the impact and applicability of Japanese labor policies to American industrial practices. The Note concludes that although the Japanese provide a general model for a labor management system which combines cooperation and …

Public Official's Qualified Immunity In Section 1983 Actions Under Harlow V. Fitzgerald And Its Progeny: A Critical Analysis, Stephen J. Shapiro

University of Michigan Journal of Law Reform

Part I of this Article discusses the development of immunities in section 1983 actions. Part II examines the application of Harlow and its progeny to a variety of situations. This discussion shows that broadened qualified immunity produces anomalous results under some circumstances by granting immunity to officials who have acted in a clearly culpable manner. Part III discusses the appropriateness of the Harlow standard and determines that it is neither supported by the legislative history of section 1983 nor by legitimate policy concerns. Finally, Part IV proposes several solutions that would protect deserving public officials from personal damage liability without …

General Principles Of Civil Law Of The People's Republic Of China (Translation), Whitmore Gray, Henry R. Zheng

Articles

(Adopted April 12, 1986, at the Fourth Session of the Sixth National People's Congress, to take effect on January 1, 1987)

At-Will Employment: An Overview, Theodore J. St. Antoine

Articles

The most dramatic development of the last decade has been the rapid judicial expansion of modifications in at-will employment doctrine.

Congress And Genocide: They're Not Going To Get Away With It, Jordan J. Paust

Michigan Journal of International Law

Today at least, it is generally recognized that genocide is a crimen contra omnes, a crime under customary international law over which there is universal enforcement jurisdiction and responsibility. Indeed, it is commonly expected that the prohibition of genocide is a peremptory norm of customary international law, a jus cogens allowing no form of derogation under domestic or treaty-based law. It is also commonly understood that the definition of genocide contained in the Convention on the Prevention and Punishment of the Crime of Genocide defines that which is prohibited by customary jus cogens.

Publish And Perish: Congress's Effort To Snip Snepp (Before And Afsa), Michael J. Glennon

Michigan Journal of International Law

Over three million present and former federal employees, of the Executive as well as the Congress, are parties to so-called "pre-publication review agreements," which require that they submit any writings on topics related to their employment for Executive review prior to publication. In Section 630 of the Omnibus Continuing Resolution for Fiscal Year 1988, Congress attempted to restrict the use of funds to implement or enforce certain of those agreements. On May 27, 1988, however, the United States District Court for the District of Columbia, in American Foreign Service Association v. Garfinkel ("AFSA "), struck that section down, …

Political Questions In International Trade: Judicial Review Of Section 301?, Erwin P. Eichmann, Gary N. Horlick

Michigan Journal of International Law

Section 301 of the Trade Act of 1974 ("Section 301") has become an increasingly potent and widely-used tool in the U.S. arsenal of trade policy measures. The past few years have seen a proliferation of Section 301 cases, affecting the trade of goods and services in Europe, Asia, and Latin America. Even so, in the debate over the Omnibus Trade and Competitiveness Act of 1988 ("Omnibus Trade Act"), Congress expressed impatience with the President's discretion in not undertaking more Section 301 retaliations. But while much attention has focused on the politics and policy aspects of Section 301, little has been …

Copyright Legislation And Technological Change, Jessica D. Litman

Articles

Throughout its history, copyright law has had difficulty accommodating technological change. Although the substance of copyright legislation in this century has evolved from meetings among industry representatives whose avowed purpose was to draft legislation that provided for the future,6 the resulting statutes have done so poorly. The language of copyright statutes has been phrased in fact-specific language that has grown obsolete as new modes and mediums of copyrightable expression have developed. Whatever copyright statute has been on the books has been routinely, and justifiably, criticized as outmoded.7 In this Article, I suggest that the nature of the legislative process we …

International Commercial Arbitration In The United States: Considering Whether To Adopt Uncitral's Model Law, Patrick John Potter

Michigan Journal of International Law

This Note will explore some of the areas overlooked by the Committee, including the benefits and burdens which adopting the Model Law would involve. Part One briefly describes the Model Law's background and provides a summary of its articles. Part Two discusses some factors that should be considered when Congress decides whether or not to adopt the Model Law. Part Three summarizes the present status of international commercial arbitration law in the United States, and recommends en bloc adoption of the Model Law. Enacting a separate international arbitration law that is familiar to foreigners will facilitate arbitration with U.S. parties. …