Structure And Precedent, 2010 Willamette University College of Law
Structure And Precedent, Jeffrey C. Dobbins
Michigan Law Review
The standard model of vertical precedent is part of the deep structure of our legal system. Under this model, we rarely struggle with whether a given decision of a court within a particular hierarchy is potentially binding at all. When Congress or the courts alter the standard structure and process offederal appellate review, however, that standard model of precedent breaks down. This Article examines several of these unusual appellate structures and highlights the difficulties associated with evaluating the precedential effect of decisions issued within them. For instance, when Congress consolidates challenges to agency decision making in a single federal circuit ...
The Closed Rule, 2010 University of Virginia
The Closed Rule, Michael Doran
Georgetown Law Faculty Publications and Other Works
The closed rule constitutes a critical component of managerial power in the contemporary House of Representatives and an increasingly important element of the legislative process. Subject to the approval of the full membership, the closed rule allows managers to block all amendments to a measure when bringing that measure to the floor. Despite objections from the minority, both Republicans and Democrats regularly use the closed rule when in the majority, and rank-and-file members ordinarily approve any closed rule put to a floor vote. Once rarely used, the closed rule has become managers’ preferred instrument for controlling the House floor agenda ...
Rawls And Reparations, 2010 San Francisco State University
Rawls And Reparations, Martin D. Carcieri
Michigan Journal of Race and Law
In the past two years, four related events have sharpened debates on race in the U.S.: President Obama's election, the nomination of Judge Sonia Sotomayor to the Supreme Court, that Court's ruling in Ricci v. DeStefano, and the arrest of Obama's friend, Harvard professor Henry Gates. The President has spoken of a "teaching moment" arising from these events. Moreover, his writings, speeches and lawmaking efforts illustrate the contractual nature of Obama's thinking. The President (and all concerned citizens) should thus find useful an analysis of racial policy and justice in light of the work of ...
Employee Free Choice Or Employee Forged Choice? Race In The Mirror Of Exclusionary Hierarchy, 2010 George Mason University School of Law
Employee Free Choice Or Employee Forged Choice? Race In The Mirror Of Exclusionary Hierarchy, Harry G. Hutchinson
Michigan Journal of Race and Law
The Employee Free Choice Act (EFCA) is arguably the most transformative piece of labor legislation to come before Congress since the enactment of the National Labor Relations Act of 1935 (NLRA). One of the newest attempts to transform labor relations is the EFCA. The first to disappear under the EFCA would be a system of union democracy whereby unions could only obtain the rights of exclusive representation for firms if they could prevail in a secret-ballot election. Second, the EFCA would eliminate tile necessity of a freely negotiated collective bargaining agreement between management and labor and instead substitute compulsory arbitration ...
Disability In America: A Minority Group For Everyone, 2010 Claremont McKenna College
Disability In America: A Minority Group For Everyone, Nicholas W. Ostreim
CMC Senior Theses
July 26, 2010 marked the twentieth anniversary of the Americans with Disabilities Act; the greater implications of comprehensive disability policy are yet to be seen. Nearly twenty percent of Americans have a disability. With such a significant portion of Americans affected, is equal access to employment opportunities, transportation, and communication available? The history of disability in America tells a story of isolation and institutionalization. The civil rights movement of the 1950’s and 60’s opened up an opportunity for America’s most versatile minority group. A survey conducted by the International Center for the Disabled in 1986 showed sixty-six ...
Litigation Strategies For Dealing With The Indigent Defense Crisis, 2010 University of Michigan Law School
Litigation Strategies For Dealing With The Indigent Defense Crisis, Eve Brensike Primus
The indigent defense delivery system in the United States is in a state of crisis. Public defenders routinely handle well over 1,000 cases a year, more than three times the number of cases that the American Bar Association says one attorney can handle effectively. As a result, many defendants sit in jail for months before even speaking to their court-appointed lawyers. And when defendants do meet their attorneys, they are often disappointed to learn that these lawyers are too overwhelmed to provide adequate representation. With public defenders or assigned counsel representing more than 80% of criminal defendants nationwide, the ...
Real Copyright Reform, 2010 University of Michigan Law School
Real Copyright Reform, Jessica D. Litman
A copyright system is designed to produce an ecology that nurtures the creation, dissemination, and enjoyment of works of authorship. When it works well, it encourages creators to generate new works, assists intermediaries in disseminating them widely, and supports readers, listeners, and viewers in enjoying them. If the system poses difficult entry barriers to creators, imposes demanding impediments on intermediaries, or inflicts burdensome conditions and hurdles on readers, then the system fails to achieve at least some of its purposes. The current U.S. copyright statute is flawed in all three respects. In this Article, I explore how the current ...
Crow Dog Vs. Spotted Tail: Case Closed, 2010 University of Michigan Law School
Crow Dog Vs. Spotted Tail: Case Closed, Vivek Sankaran, Timothy Connors
In 1868, Chief Spotted Tail signed a United States government treaty with an X. Spotted Tail was a member of the Brule Sioux Tribe, related by marriage to Crazy Horse. The government treaty recognized the Black Hills as part of the Great Sioux reservation. As such, exclusive use of the Black Hills by the Sioux people was guaranteed. Monroe, Michigan, native Gen. George Custer changed all that. In 1874, he led an expedition into that protected land, announced the discovery of gold, and the rush of prospectors followed. Within two years, Custer attacked at Little Big Horn and met his ...
Corporate Law In The Shanghai People's Courts, 1992-2008: Judicial Autonomy In A Contemporary Authoritarian State, 2010 University of Michigan Law School
Corporate Law In The Shanghai People's Courts, 1992-2008: Judicial Autonomy In A Contemporary Authoritarian State, Nicholas C. Howson
In late 2005 China adopted a largely rewritten Company Law that radically increased the role of courts. This study, based on a review of more than 1000 Company Law-related disputes reported between 1992 and 2008 and extensive interactions with PRC officials and sitting judges, evaluates how the Shanghai People's Court system has fared over 15 years in corporate law adjudication. Although the Shanghai People's Courts show generally increasing technical competence and even intimations of political independence, their path toward institutional autonomy is inconsistent. Through 2006, the Shanghai Court system demonstrated significantly increased autonomy. After 2006 and enactment of ...
Implementing The Standby Letter For Credit Convention With The Law Of Wyoming, 2010 University of Michigan Law School
Implementing The Standby Letter For Credit Convention With The Law Of Wyoming, James J. White
For the first time in American practice, we propose to implement a convention by a federal adoption of law previously enacted by the states – from Wyoming to New York – to implement the Convention on Independent Guarantees and Standby Letters of Credit (“Convention”).1
Pleading With Congress To Resist The Urge To Overrule Twombly And Iqbal, 2010 University of Michigan Law School
Pleading With Congress To Resist The Urge To Overrule Twombly And Iqbal, Michael R. Huston
Michigan Law Review
In Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the Supreme Court changed the rhetoric of the federal pleading system. Those decisions have been decried by members of the bar, scholars, and legislators as judicial activism and a rewriting of the Federal Rules of Civil Procedure. Such criticism has led members of both houses of Congress to introduce legislation to overrule the decisions and return to some variation of the "notice pleading" regime that existed before Twombly. This Note argues that both of the current proposals to overrule Twombly and Iqbal should be rejected. Although the bills take different ...
The Insurance Policy As Statute, 2010 University of Nevada, Las Vegas -- William S. Boyd School of Law
The Insurance Policy As Statute, Jeffrey W. Stempel
Insurance policies are classified as a subspecies of contract. Although the taxonomy is correct, rigid adherence to this classification system limits the legal system's ability to deal with some of the most problematic and frequently litigated questions of insurance coverage. Restricting conception of insurance policies to the contract model unduly limits analysis of the meaning and function of the policies. In addition, restricting characterization of insurance as a matter of “contract” does not necessarily produce swift, inexpensive, efficient, or uniform decisions (to say nothing about accuracy, justice, or fairness). Within contract law, scholars, and courts differ over the respective ...
Administering The Second Amendment: Law, Politics, And Taxonomy , 2010 Fordham University School of Law
Administering The Second Amendment: Law, Politics, And Taxonomy , Nicholas J. Johnson
This article anticipates the post-McDonald landscape by assessing the right to arms in the context of several state regulations and the arguments that might be employed as challenges to them unfold. So far, the core test for determining the scope of the individual right to arms is the common use standard articulated in District of Columbia v. Heller. Measured against that, standard firearm regulations fit into three categories. The first category contains laws that are easily administered under the common use standard. The second category – and the primary focus of this article – consists of laws that can be approached but ...
Voting As Veto, 2010 Emory University School of Law
Voting As Veto, Michael S. Kang
Michigan Law Review
This Article introduces an alternate conception of voting as vetobased on "negative preferences" against a voter's least preferred outcomes-that enriches voting theory and practice otherwise dominated by a conception of voting as a means of expressing a voter's ideal preferences. Indeed, the familiar binary choices presented in American political elections obscure the pervasiveness of negative preferences, which are descriptively salient in voting under all types of circumstances. Negative preferences have been overlooked, despite their theoretical and practical importance across many domains, leaving important questions unexplored in the literature. The Article develops a normative and positive account of voting ...
Engineering The Endgame, 2010 University of Michigan Law School
Engineering The Endgame, Ellen D. Katz
Michigan Law Review
This Article explores what happens to longstanding remedies for past racial discrimination as conditions change. It shows that Congress and the Supreme Court have responded quite differently to changed conditions when they evaluate such remedies. Congress has generally opted to stay the course, while the Court has been more inclined to view change as cause to terminate a remedy. The Article argues that these very different responses share a defining flaw, namely, they treat existing remedies as fixed until they are terminated. As a result, remedies are either scrapped prematurely or left stagnant despite dramatically changed conditions. The Article seeks ...
The Continuity Of Statutory And Constitutional Interpretation: An Essay For Phil Frickey, 2010 Duke Law School
The Continuity Of Statutory And Constitutional Interpretation: An Essay For Phil Frickey, Ernest A. Young
This Essay seeks to honor Phil by exploring the contributions of his Legal Process approach to a problem near and dear to his heart: the uses and legitimacy of canons of statutory construction. I focus, as Phil did in his most recent work, on the canon of constitutional avoidance—that is, the rule that courts should construe statutes to avoid significant ―doubt as to their constitutionality.
This Essay largely supports Phil‘s defense of the avoidance canon, but links that defense to another set of canons that Phil has criticized: the various clear statement rules of statutory construction that Phil ...
The Consequences Of Congress’S Choice Of Delegate: Judicial And Agency Interpretations Of Title Vii, Margaret H. Lemos
Although Congress delegates lawmaking authority to both courts and agencies, we know remarkably little about the determinants-and even less about the consequences-of the choice between judicial and administrative process. The few scholars who have sought to understand the choice of delegate have used formal modeling to illuminate various aspects of the decision from the perspective of the enacting Congress. That approach yields useful insight into the likely preferences of rational legislators, but tells us nothing about how (or whether) those preferences play out in the behavior of courts and agencies. Without such knowledge, we have no way of testing the ...
Did We Tame The Beast: Views On The Us Financial Reform Bill, 2010 Duke Law School
Did We Tame The Beast: Views On The Us Financial Reform Bill, Lawrence G. Baxter
Prof. Lawrence Baxter takes a microscope to the ‘Dodd-Frank’ Bill (Dodd-Frank Wall Street Reform and Consumer Protection Act, H.R. 4173) finding a veritable ’Micrographia’ of doubt. The Bill was devised to address problems associated with the global financial crisis of 2007-2009. This paper was written in anticipation of the US Financial Reform Bill’s passage through Congress. The legislation has since been enacted as Public Law No. 111-203, signed by President Obama on July 21, 2010.
Legislative Histories And The Practice Of Statutory Interpretation In Wyoming, 2009 University of Wyoming College of Law
Legislative Histories And The Practice Of Statutory Interpretation In Wyoming, Debora A. Person
Debora A. Person
No abstract provided.
Chevron's Sliding Scale In Wyeth V. Levine, 129 S. Ct. 1187 (2009), 2009 Harvard Law School
Chevron's Sliding Scale In Wyeth V. Levine, 129 S. Ct. 1187 (2009), Gregory M. Dickinson
Gregory M Dickinson
In Wyeth v. Levine the Supreme Court once again failed to reconcile the interpretive presumption against preemption with the sometimes competing Chevron doctrine of deference to agencies' reasonable statutory interpretations. Rather than resolve the issue of which principle should govern where the two principles point toward opposite results, the Court continued its recent practice of applying both principles halfheartedly, carving exceptions, and giving neither its proper weight.
This analysis situates Wyeth within the larger framework of the Court's recent preemption decisions in an effort to explain the Court's hesitancy to resolve the conflict. The analysis concludes that the ...