Showing papers in "Michigan Law Review in 1989"

Storytelling for Oppositionists and Others: A Plea for Narrative

Abstract: Everyone has been writing stories these days. And I don't just mean writing about stories or narrative theory, important as those are.1 I mean actual stories, as in "once-upon-a-time" type stories. Derrick Bell has been writing "Chronicles," and in the Harvard Law Review at that.2 Others have been writing dialogues,3 stories,4 and metastories.5 Many others have been daring to become more personal in their writing, to inject narrative, perspective, and feeling how it

Public Response to Racist Speech: Considering the Victim’s Story

Abstract: This chapter explores the victim's story of the effects of racist hate messages. It focuses on the phenomenology of racism, it includes a discussion of the closely related phenomenon of anti-Semitism. Racist hate messages are rapidly increasing and are widely distributed in this country through a variety of low and high technologies, including anonymous phone calls and letters, posters, books, magazines and pamphlets, cable television, recorded phone messages, computer networks, bulk mail, graffiti, and leafleting. Victims are restricted in their personal freedom. Critical race theory uses the experience of subordination to offer a phenomenology of race and law. The victims' experience reminds us that the harm of racist hate messages is a real harm to real people. The chapter also focuses on a conversation about the first amendment that acknowledges both the civil libertarian's fear of tyranny and the victims' experience of loss of liberty in a society that tolerates racist speech.

Empathy, Legal Storytelling, and the Rule of Law: New Words, Old Wounds?

Abstract: The legal storytelling theme that is the focus of this symposium on legal narrative is part of a larger, ongoing intellectual movement. American legal scholarship of the past several decades has revealed deep dissatisfaction with the abstract and collective focus of law and legal discourse. The rebellion against abstraction has, of late, been characterized by a "call to context." One strand of this complex body of thought argues that law should concern itself more with the concrete lives of persons affected by it. One key word in the dialogue is the term "empathy," which appears frequently in the work of critical legal studies, feminist, and "law and literature" writers.This article was written not to reject or discredit this claim, but to suggest that the new terminology may not be helpful; to express several concerns about the limitations of the "call to context"; and to encourage a shift in focus to what I believe is the deeper malady that triggers the criticism that the law is "unempathetic" to individual needs. It focuses primarily on the application of the empathy, or "context," discourse to the work of judges, rather than to lawyers, legislators, or legal scholars.

Precedent in law

Abstract: Roots of our notion of precedent, Gerald J.Postema change in the doctrine of precedent during the 19th century, Jim Evans theories of adjudication and the status of "stare decisis", Peter Wesley-Smith the rule of precedent, Theodore M.Benditt "practical reason" and "conventional wisdom" - the House of Lords and precedent, Anthony Blackshield why cases have "rationes" and what these are, Neil MacCormick precedent, induction and ethical generalization, Michael S.Moore persuasive precedent, Richard Bronaugh.

Information Economics and Chemical Toxicity: Designing Laws to Produce and Use Data

Abstract: Just as laws may create entitlements to the use of information, they may also be written to distribute information and to encourage information production. This Article discusses the ways in which law affects the generation and distribution of information related to chemical exposure and toxicity.1 It describes the economic impact of recently enacted right-to-know laws2 and proposes that better and

Untangling the Market-Participant Exemption to the Dormant Commerce Clause

Abstract: There is no theme more familiar to constitutional law than the clash between federal power and state autonomy. The history of that struggle reveals, by and large, a long losing battle by the states. Over the years, the Supreme Court has recognized far-reaching congressional powers, rebuffed efforts to rein them in through use of the tenth amendment, and saddled the states with every significant restraint imposed by the Bill of Rights. From time to time, however, the currents of constitutional doctrine run in favor of local control. In recent years, for example, the Court has stemmed the tide toward constitutionalizing the law of criminal procedure, and cut down federal judicial authority through development of the abstention doctrine and state-favoring constructions of the eleventh amendment. This article focuses on another important vehicle through which the modern Court has moved to protect local prerogatives: the market-participant exemption to the dormant commerce clause.The core of the Court's dormant commerce clause jurisprudence is well-settled: "The commerce clause, by its own force, prohibits discrimination against interstate commerce, whatever its form or method..." Over the past two decades, however, the Court has lifted this prohibition when states act as "market participants" rather than as "market regulators." Invoking this distinction, the Court has shielded from commerce clause attack blatant favoritism of local interests when a state or municipality buys printing services, sells cement, purchases goods, or hires workers.This article explores the market-participant rule. Part I traces the rule's evolution and shows how it has proven less rigid than some initially feared. Part II probes the roots of the rule by challenging justifications for it suggested by other observers. Part III offers an alternative theory of the market-participant doctrine, arguing in particular that it rests on a cluster of rationales that properly have led the Court to uphold marketplace preferences as the "general rule." Part IV builds on Part III to advance a new, four-part framework for evaluating market-participant issues. Part V then uses that framework to apply the market-participant rule to nine key categories of cases. This article rejects an all-or-nothing approach to these cases, advocating instead a sensitive application of the market-participant rule in light of its underlying justifications.Many observers have attacked the market-participant rule. this article seeks to show that these challenges are misplaced. The Court's market-participation decisions reflect a sound, if complex, accommodation of competing constitutional values. This article lays bare those values and details the course they suggest courts should follow in deciding future market-participation cases.

Webs of Things in the Mind: A New Science of Evidence

Abstract: This review essay describes a new science, a science that explains how human actors can use an orderly procedure to explore and develop their judgments about the multiple and interrelated inferences that may emerge out of collections of evidence.

The Myth of the Disposable Opinion: Unpublished Opinions and Government Litigants in the United States Courts of Appeals

Abstract: Since 1976, every federal appellate court has adopted rules that limit the publication of opinions.1 As a result, only a minority of the federal courts of appeals publish even half of their decisions on the merits.2 Although withholding opinions from publication is meant to reduce or eliminate their applicability to litigation, the large body of unpublished decisions creates a variety of incentives for those litigants who have unusual access to these opinions to use them. The policies reflected by the publication plans do not anticipate these sorts of incentives. Although the rules adopted by the courts of appeals attempt to curtail litigant use of unpublished opinions, the controls do not work because these mechanisms restrict only certain uses usually of the most overt kind such as citation. Not only do the appellate rules fail to destroy the usefulness of unpublished opinions, they also exacerbate the advantages that the selective publication plans give frequent litigants. This article discusses the courts' adoption of the limited publication plans and analyzes the methods used by the courts to discourage the use of unpublished opinions. It also discusses the results of a survey conducted to determine if, and how, government litigants some

Missing the Point About State Takeover Statutes

Abstract: In a recent article in this journal, Professor Richard Booth offers an extended appraisal of state legislation regulating hostile corporate takeovers.1 Since 1982, at least twenty-nine states have enacted one or more of the several standard statutory responses to this important and troubling phenomenon.2 Booth evaluates these laws according to their efficacy in addressing a particular problem confronted by target company shareholders in takeover contests the coercive effects of twotier or partial bids. Coercion to tender in these kinds of bids is said to occur when shareholders are faced with a choice between accepting a premium, which may be less than optimally attractive, or, on the other hand, holding out but facing the prospect of a later cash-out at a much lower price or, worse yet, continuing to own a minority position in a "captive company" (p. 1641). Booth concludes that only one of the several current forms of takeover statutes adequately addresses this problem, the so-called control share acquisition statute. This type of statute, an example of which was vindicated against constitutional attack in the recent CTS case,3 Booth describes as "a remarkably intelligent approach to the problem of fairness in tender offers" (p. 1681). 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 Com-

Environmental Faust Succumbs to Temptations of Economic Mephistopheles, or, Value By Any Other Name is Preference

Abstract: In several of the chapters to his new book, Mark Sagoff begins by telling some story to frame the remainder. One of these is particularly significant for the book: Sagoff retells a New Yorker joke in which the Devil tells the new entrants to Hell that they are leaving right and wrong behind, and entering a world of mere preferences (p. 99). The Devil signifies for Sagoff the economics-oriented policy analyst, and the story is prophetic because by the end of the book, that old preference-counting Devil has caught up with Sagoff. The word "environment" appeared in the titles of several of the earlier essays on which the book is based,1 but the book has wisely subordinated that E-word to a subtitle; despite the frequent invocation of natural wonders and scenic areas, the book doesn't really focus on the environment until the last chapter. Nope, this book is about that other E-word, Economics, which is so favored by the Devil. More specifically, at least until that last chapter, the book is about how devilishly daffy economists are when they talk about the environment. Sagoff thinks their clever confusions are at best distracting and at worst antidemocratic (pp. 10, 95-97), and if we don't watch out, they are going to lead us off the ethical path and straight down the road to perdition. Up to the book's end, only an occasional grudging concession2 relieves the hellfire-and-brimstone economics-bashing. Consequently, dear Reader, you will be ill-prepared for that last chapter where, lo and behold!, it turns out that the true path to environmental paradise is through tradeable emission rights (pp. 209-10). What? What? Tradeable emission rights have been pushed for years by those diaboli-