Public Law and Legal Theory Commons^™

Review Of The Legal Needs Of The Public, , Richard Lempert

Reviews

Both the title, The Legal, Needs of the Public, and the subtitle, The Final, Report of a National, Survey, of this volume are, quite fortunately, inapt. The report does not seek to quantify the legal needs of the public or to determine whether "needs" are being "met," and we are told by both Barbara Curran in her preface and Spencer Kimball in his foreword that this "final report" signifies the beginning and not the end of data analysis. This study (which I shall call the ABF study) is a joint undertaking of the American Bar Association Special Committee to Survey …

Import Restraints And Industrial Performance: The Dilemma Of Protectionism, Walter Adams

Michigan Journal of International Law

It is the thesis of this article that the remedies for the import problem-- quotas, orderly marketing agreements, trigger price systems, and the like-do not provide adequate mechanisms for insuring acceptable industry performance or protecting the public interest. Instead of compelling--or even promoting-the kind of structural and behavioral changes which are imperative if an industry is to overcome its competitive infirmities, these protectionist devices, more often than not, are likely to have precisely the opposite effect, i.e., perpetuate the very infirmities that caused the industry's plight to begin with. In short, an ailing organism is not prepared for the …

An Administrator's Look At Antidumping Duty Laws In United States Trade Policy, Peter D. Ehrenhaft

Michigan Journal of International Law

Trade policymakers, like military strategists, are often "fighting the last war." Our present antidumping law was passed in 1921. It was a reaction to trade problems perceived in the years during and after World War I. The related countervailing duty law harks back to an even earlier era. Since their enactment we have tinkered with each. Administration of both statutes has been surrounded by extensive regulations and a body of unwritten practice. But solving the trade problems of today-if that is what we are doing-with this elaborate legal corpus will not necessarily provide us with a sensible guide to the …

Metaphors And Models Of Law: The Judge As Priest, Philip Soper

Michigan Law Review

The reasons that prompt people to try to identify laws or legal systems in advance of encounter are varied. One is that laws, though less concrete than chairs, are equally capable of posing obstacles to conduct: they can be stumbled over. If the desire to avoid such contact were the sole reason for trying to decide "what law is,'' Holmes' aphorism would work fairly well: by predicting judicial decisions and calculating the likelihood of avoiding accompanying sanctions, one could play a good game of "bad man's" bluff around legal obstacles to chosen courses of action.

The claim that law is …

Legal Theory And The Obligation Of A Judge: The Hart/Dworkin Dispute, E. Philip Soper

Michigan Law Review

This article offers a review of the Hart-Dworkin dispute and a qualified defense of the positivist's model against Dworkin's attack. The defense is cast primarily in the form of the second possible response to a descriptive theory: Dworkin's attack fails, I suggest, because it involves descriptive claims that can be accommodated to the positivist's conceptual theory regardless of one's view about the plausibility of those claims.

The Concept Of Privacy And The Fourth Amendment, Steven C. Douse

University of Michigan Journal of Law Reform

This Article attempts at a minimum to offer a common background and frame of reference for defining and comparing myriad facets of the law. If successful, they furnish a model for the integration of these many facets. This inquiry begins with an examination of the proposition that the essence of the fourth amendment is protection of a right of privacy. The concept of privacy is then defined and elaborated, both without and within the constitutional context. These conclusions are further extended in an exploration of mechanisms for defining the invasions and protection of fourth amendment privacy.

The Problem Of Social Cost Revisited, Donald H. Regan

Articles

SOME years ago, in a paper entitled "The Problem of Social Cost," Professor Ronald Coase asserted and argued for a proposition which has since acquired the convenient sobriquet "the Coase Theorem." The proposition is: That in a world of perfect competition, perfect information, and zero transaction costs, the allocation of resources in the economy will be efficient and will be unaffected by legal rules regarding the initial impact of costs resulting from externalities. Note that there are two claims being made, which it is well to separate for purposes of discussion. The first claim is that, under the conditions described, …

How To Use, Abuse—And Fight Back With—Crime Statistics, Yale Kamisar

Articles

Statistics have an almost magical appeal in a "fact"-minded culture such as ours, among a people conditioned and accustomed to watch for-and attach great significance to-even the smallest fluctuations in say, the unemployment rate. Hence, as Darrell Huff graphically demonstrated in his famous little book, How to Lie with Statistics (1954), they can be-and have been-manipulated to terrorize or calm, inflate or depreciate, and above all, to sensationalize and over simplify. As Harvard criminologist Lloyd Ohlin noted recently, statistics are especially potent when "they give a sense of solid reality (usually false) to something people vaguely apprehend and when they …

The Public Trust Doctrine In Natural Resource Law: Effective Judicial Intervention, Joseph L. Sax

Michigan Law Review

Public concern about environmental quality is beginning to be felt in the courtroom. Private citizens, no longer willing to accede to the efforts of administrative agencies to protect the public interest, have begun to take the initiative themselves. One dramatic result is a proliferation of lawsuits in which citizens, demanding judicial recognition of their rights as members of the public, sue the very governmental agencies which are supposed to be protecting the public interest. While this Article was being written, several dozen such suits were initiated-to enforce air and water pollution laws in states where public agencies have been created …

Harvey: Law And Social Change In Ghana, Max Rheinstein

Michigan Law Review

A Review of Law and Social Change in Ghana By William Burnett Harvey

Montgomery & Smithies: Public Policy, Jameson W. Doig

Michigan Law Review

A Review of Public Policy Volume XIV. Edited by John D. Montgomery and Arthur Smithies

Absolute Preferences In Municipal Civil Service Appointments: The Unresolved Conflict With Municipal Discretion, Thomas E. Swaney

Michigan Law Review

State legislatures have enacted civil service laws applicable to municipalities in order to ensure that local governments provide optimum services to their citizens. To achieve this objective, the laws restrict eligibility for public service positions to persons of proven qualifications. Although these statutes provide general guidelines for municipal employment procedures, final decisions as to the actual hiring of employees are generally left to the municipalities. This practice recognizes the advantages of permitting local officials who are intimately acquainted with the demands of government work in their particular localities to select employees at their own discretion. However, it has been deemed …

Schur: Crimes Without Victims: Deviant Behavior And Public Policy, Mauris M. Platkin M.D.

Michigan Law Review

A Review of Crimes Without Victims: Deviant Behavior and Public Policy by Edwin M. Schur

The Griswold Penumbra: Constitutional Charter For An Expanded Law Of Privacy?, Robert G. Dixon Jr.

Michigan Law Review

The comments that follow are divided into a brief review, for purposes of perspective, of the elusive nature of "privacy" as developed in American law to date, and an attempted rigorous analysis of the privacy aspects of Griswold. A final section suggests that effectuation of the new constitutional right of marital privacy necessarily or derivatively implies a corollary right of access to birth control information and devices-a right which should have been more clearly articulated by the Court.

Nine Justices In Search Of A Doctrine, Thomas I. Emerson

Michigan Law Review

To the ordinary layman, Griswold v. Connecticut seemed easy. But to the lawyer it was somewhat more difficult. The lawyer's problem with the case was that the issues did not readily fit into any existing legal pigeonhole. Actually, there were five possibilities. The case could have been dealt with under the equal protection clause, the first amendment, substantive due process, the right of privacy, or, in extremis, the ninth amendment. In order to strike down the statute under any of these doctrines, however, the Court would be forced to enter uncharted waters. Whatever course the Court took, its action …

Penumbras, Peripheries, Emanations, Things Fundamental And Things Forgotten: The Griswold Case, Paul G. Kauper

Michigan Law Review

The varying theories followed in the several opinions in the Griswold case can be fully understood and appreciated only in the context of the tortuous but fascinating history of the judicial interpretation of the fourteenth amendment.

The Right Of Privacy: Emanations And Intimations, Robert B. Mckay

Michigan Law Review

When Louis Brandeis and Samuel Warren wrote in 1890 of "The Right to Privacy," they sought a means of protecting against unwelcome newspaper attention to social activities in the Warren household. Addressing their argument to the private law of torts, they presumably did not anticipate constitutional protection for other rights under the claim of privacy. Nevertheless, seventy· five years later that concept, now called the "right of privacy," was used by the Supreme Court of the United States in Griswold v. Connecticut to describe a constitutional right. Some members of the Court said the new right was within the "penumbra" …

Privacy In Connecticut, Arthur E. Sutherland

Michigan Law Review

Occasionally a judgment of our Supreme Court, delivered in a superficially petty case, suddenly before our startled eyes displays fundamentals of our constitutional theory. Thus, in Griswold v. Connecticut, holding unconstitutional an 1879 Connecticut statute forbidding all persons to use contraceptive devices, the Court found it necessary to discover a "right of privacy" latent in the Bill of Rights and incorporated into the due process clause of the fourteenth amendment. The outcome of the case is satisfying; all nine Justices joined in saying, in one way or another, that Connecticut's statute was nonsense. I am happy to see this …

Graves: American Intergovernmental Relations: Their Origins, Historical Development, And Current Status, Joseph E. Kallenbach

Michigan Law Review

A Review of American Intergovernmental Relations: Their Origins, Historical Development, and Current Status. By W. Brooke Graves.

Investigation Of Unauthorized Practice Of Law By Omnibus Proceeding: The Ohio Method, Jerome M. Smith

Michigan Law Review

The practice of law is impressed with a public interest. Whether by representation in a judicial proceeding or by advice on a legal problem, the lawyer renders professional service to the public. Preserving client confidences, assuring unquestioned loyalty, and rendering expert counsel are typical obligations of the legal profession. Another responsibility of lawyers is that of protecting the public from legal practice by unqualified laymen. Three areas of activity are involved in preventing unauthorized practice of law. Lawyers and public officials must define the practice of law/ investigate and prosecute unlicensed practitioners, and by judicial remedy prohibit further unauthorized practice. …

Eminent Domain-Urban Renewal-Broader Powers To Take Private Property For Public Use, Roger L. Mcmanus

Michigan Law Review

Defendant city instituted a comprehensive urban redevelopment plan under which condemnation and purchase of blighted property would be followed by extensive demolition and clearance. This land was then to be sold subject to certain use restrictions to private developers, chiefly for light industry. Plaintiff, an owner of real estate described as "improved and enhanced with . . . a good, sound, sanitary, modem and well-kept building," brought an action in a lower state court seeking a declaratory judgment against the constitutionality of the Washington Urban Renewal Law, and an injunction to prevent defendant city from condemning his property under the …

The Regulation Of Specialty Policies In Life Insurance, Spencer L. Kimball, Jon S. Hanson

Michigan Law Review

Every entrepreneur is vitally concerned with selling methods. Success depends upon sales. Sales depend upon desire for the product. Desire for most products, including life insurance, is not inherent but is created by the efforts of the entrepreneur. In the case of life insurance, an effective job of creating the desire, i.e., of selling, is usually necessary to convince a prospective insurance buyer that over a long period he should allocate a significant portion of his income to the purchase of an intangible such as life insurance.

Municipal Corporations-Master Plans-Power Of Cities To Zone For Future Conditions, Walter A. Urick

Michigan Law Review

After purchasing land which was subject to a zoning ordinance requiring a minimum lot size of 21,780 square feet, plaintiffs, real estate developers, challenged the ordinance as unreasonable and confiscatory. Defendant city argued that the ordinance was based upon a comprehensive master plan and had the purpose of limiting future density of population in accordance with sewage capacity. On appeal from the circuit court order invalidating the zoning ordinance as applied to plaintiff's property, held, judgment affirmed, three judges dissenting. A city zoning ordinance requiring a minimum lot size for the purpose of limiting future density of population in …