Michigan Supreme Court Research Articles

THE RELATIONSHIP BETWEEN SHAREHOLDER RIGHTS IN STOCK CORPORATIONS AND COMPETITION LAW: AN EVALUATION THROUGH DODGE V. FORD DECISION

Amerika Birleşik Devletleri Michigan Eyaleti Yüksek Mahkemesi’nin 1919 tarihli Dodge v. Ford kararı sebep olduğu tartışmalarla yüz yılı aşkın süredir öğreti ve uygulamanın ilgisini çekmeye devam etmektedir. Karar, çoğunluk durumdaki bir pay sahibinin azınlıktaki pay sahiplerinin aleyhine olacak biçimde kâr payı dağıtılmasını engellemesi olayını ve ayrıca ticaret şirketlerinin amacının pay sahipleri için kazanç elde etmek olduğu görüşünü somutlaştıran yönüyle bilinmektedir. Bununla beraber, karara esas olgular incelendiğinde, uyuşmazlığın birbiriyle rakip durumundaki iki pay sahibinden biri tarafından diğerinin iktisadi olarak güçlenmesini engelleme niyeti ve eylemi neticesinde doğduğu görülmektedir. Bu yönüyle Dodge v. Ford kararı, anonim şirketlerde genel kurul kararları yoluyla rekabet hukuku ihlallerinin gerçekleşmesinin mümkün olduğuna işaret etmektedir. Karardan hareketle bu çalışmada, kâr payı dağıtımına ilişkin bir genel kurul kararının 4054 sayılı Rekabetin Korunması Hakkında Kanun uyarınca hâkim durumun kötüye kullanılması hali teşkil edebileceği ortaya konulmaktadır. Bu durumda söz konusu genel kurul kararının 6102 sayılı Türk Ticaret Kanunu m. 447 dairesinde butlanına hükmedilmesi gerektiği incelenmektedir. Zira aksi yaklaşımın korporatif nitelikteki işlemler yoluyla rekabet hukuku ihlallerinin önünü açacağı görüşü benimsenmektedir.

Scouring Dictionaries: Their Overuse and Misuse in the Courts

For the past two or three decades, under the influence of the interpretive method called textualism, courts have increasingly turned to general dictionaries when interpreting the meaning of contested terms. And the rate of increase has been striking. This resort to dictionaries is suspect for two main reasons: as practiced, it's arbitrary and unsystematic; and it's linguistically questionable for determining meaning in a legal context. This article looks primarily at the first point-the courts' arbitrariness when choosing which definition to apply. Using three cases from the Michigan Supreme Court, the article argues that the Court majority cherry-picked a definition that did not seem to fit with an English speaker's common understanding of the term in context and that ran counter to common sense, practical considerations, or the statute's purpose. While dictionaries may have modest value in judicial decision-making, courts too often give them a greater role-to the exclusion of reasonable nontextual arguments.

A Lincoln Legacy: The History of the U.S. District Court for the Western District of Michigan by David Gardner Chardavoyne with Hugh W. Brenneman Jr.

Reviewed by: A Lincoln Legacy: The History of the U.S. District Court for the Western District of Michigan by David Gardner Chardavoyne with Hugh W. Brenneman Jr. Paul Moreno David Gardner Chardavoyne with Hugh W. Brenneman Jr. A Lincoln Legacy: The History of the U.S. District Court for the Western District of Michigan. Detroit: Wayne State University Press, 2020. Pp. 372. Photographs. Hardback: $44.99. With this fine volume of judicial history, David Chardavoyne (whom I've worked with for the Michigan Supreme Court Historical Society) has helped abate the envy that those of us in the Western District of Michigan have for the Eastern District. Chardavoyne wrote a fine history of the Eastern District in 2012 and that district has its own historical journal. A Lincoln Legacy is a comprehensive and encyclopedic account of the origins and development of this Grand Rapids-based federal court. It contains biographical information about all its judges, for example, which contain historical context that provides a fine background for the entire book. It also describes, with excellent photographs, the various buildings that have housed Western District courts over the years. This will be of interest not just to anyone who has worked in the legal world of the Wolverine State but also to anyone interested in its general history. But A Lincoln Legacy is much more than an encyclopedia. Readers will enjoy its stories most of all. Given the rise of American and global "juristocracy"—the ever-greater power of courts in our world—every citizen should know something about how courts and judges operate, and Chardavoyne tells many interesting tales. American courts have grown with the country. The decision to divide the state of Michigan into two districts (this is the "Lincoln legacy") is a story in itself. The fact that the Court's first case was U.S. v. One Piece of Ingrain Carpeting and Thirteen Yards of Gray Cloth tells us something about what federal courts do, and about the relative youth of the state in the 1860s. Baseball fans will enjoy Chardavoyne's account of the 1914 Federal League antitrust suit against catcher William Killefer, who had "jumped" from the Philadelphia Phillies to the new Federal League Chi-Feds and then jumped back when the Phillies made a counteroffer. Judge Clarence William Sessions is said to have upheld the notorious "reserve clause" that bound baseball players to their team owners in near-involuntary servitude. The reverse is closer to the truth. Sessions held against the Chi-Feds only because they did not meet the "clean hands" requirement in equity suits. In fact, he said in an obiter dictum that the clause would be unenforceable as an "executory contract … a contract to make a contract." (93) But it [End Page 143] would be over a half-century before the de facto enforcement of the reserve clause would end. Chardavoyne tells many fascinating stories about the enforcement of national prohibition in Michigan in the 1920s. The Eighteenth Amendment placed a tremendous burden on the federal courts, especially in Michigan, whose proximity to Canada made it a highway for rum-runners. It also met with serious resistance all over the country. Iron City's State Attorney Martin McDonough told the Scalucci brothers—restauranteurs and vintners whom the feds were prosecuting—that if the Feds returned they were free to "open fire on them." The T-Men in turn sought to arrest the Scaluccis for "rebellion." Authorities in Washington were able to arrange a compromise and avoid another civil war. Another valuable vignette concerns Judge Fred Morton Raymond's creative adaptation of the common law to prevent the guilty from escaping justice in a case involving the search of infamous bank-robber John Dillinger's automobile. The home front in World War II is nicely illustrated in the Office of Price Administration's enforcement of price-fixing and rationing. Post-Warren Court judicial activism at the district-court level is seen in liberal stalwart Noel Porter Fox, whose clerk "likened him to a modern-day chancellor in a court of equity, doing what was 'right' instead of what some might characterize as technically legal." (138) Many other features of and stores...

Thomas M. Cooley and Enduring Constitutional Principles

Judge Thomas M. Cooley was one of the last of an old order: a jurist and constitutional treatise-writer cloaked in the traditions of Blackstone, Story, and Kent, a guardian of written constitutions, fundamental legal principles, and the English common law as adopted and modified by the states. His career peaked during Reconstruction and closed at the dawn of the Progressive era, when statesmen and jurists were first interpreting the most consequential amendment affecting the relationship between the states and central government. Many point out he was the most cited authority in federal and state case law for nearly half of a century, so knowing Cooley is knowing how the men of this transformative era understood our most fundamental law. He is in many ways a founder of modern constitutional law, and yet he is almost completely forgotten. Nearly 75 years of tunnel-vision scholarship often revolving around tenuous claims that Cooley was a political or economic ideologue has deprived legal thinkers of insights into how to understand American laws and constitutions. The purpose of this paper is twofold: first, to demonstrate that Cooley was no politician and was indeed a principled jurist. Second, to present his constitutional arguments and judicial philosophy by letting Cooley speak for himself through his most prominent treatises and his own judicial opinions. To map this paper broadly, Section I will review the existing, most prominent literature that has cast Cooley as a political or economic ideologue. Few have written on him exclusively, and none of them have separated his political background from his later judicial career. Section II will examine Cooley’s understandings of American constitutions and legislatures generally, with particular emphasis on his view of implied limitations on American constitutional government. Section III will turn to his judicial philosophy, methods of statutory and constitutional interpretation, and then three case studies from his time on the Michigan Supreme Court.

The Dawn of Detroit: A Chronicle of Slavery and Freedom in the City of the Straits by Tiya Miles

Reviewed by: The Dawn of Detroit: A Chronicle of Slavery and Freedom in the City of the Straits by Tiya Miles Dana Elizabeth Weiner Tiya Miles, The Dawn of Detroit: A Chronicle of Slavery and Freedom in the City of the Straits. New York: The New Press, 2017. 352 pp. $18.99 (paper). With The Dawn of Detroit, Tiya Miles eloquently uncovers slavery's hidden traces in the Old Northwest. Miles depicts the Detroit River region from the late colonial era through the early republic as an important international, imperial, and cultural border, as well as a border between slavery and freedom. This book makes essential contributions to the study of slavery and race in the Midwest in lyrical prose. Through tireless research, Miles has located sources about early enslaved people in Detroit. This available documentation facilitates greater understanding about Black slavery there, even though the enslavement of Indigenous people was more common. The introduction sketches continuities between past and current race and class discrimination in Detroit. Miles expands knowledge about unfree people of color in early America as she closely links Indigenous dispossession and slave labor. As she explains, bound African and indigenous workers built Detroit and its economy, resisted slavery, and moved across the porous international water boundary into and out of Canada. Unfree people pushed back against exploitation there, creating lives for themselves. Settlers' labor needs gave bondspeople some ability to negotiate work terms. Miles puts unfree laborers at her story's core, joining an expanding historiography of North American slavery that recognizes how the institution pervaded the continent, including Canada. She claims that historians have [End Page 210] granted insufficient attention to Detroit's enslaved population; she, in contrast, chronicles the city's history with full attention to bondspeople's roles and impacts there. Miles adeptly addresses their struggles to protect their bodies and their freedom, as well as to enhance their citizenship rights. As she also explains, Detroiters' allegiances shift ed over the course of many years from Anishinaabe, to colonial French, and then to British Canada. They eventually assumed American loyalties. Detroit's population soon diversified to include immigrants from the British Isles, enslaved Africans, and migrants from other British colonies—and later from other parts of the U.S. Chapter 1 focuses on the establishment of local slavery for processing furs, as well as on the transition from French to British colonial rule. Miles places chattel slavery at the center of Detroit's economy beginning with the fur trade, arguing that both institutions exploited animal and human bodies. In this chapter and later ones, Miles demonstrates how gender affected bondspeople's lives. Chapter 2 tells of enslaved people under British and then American rule in the Revolutionary War era. The link between peltry and slavery persisted, and a fluid form of slaveholding was common among elite British merchants in the 1760s and 1770s. Indeed, Detroit slaveholders acquired even more slaves during the war. Miles observes extensive sexual abuse of both Native American and African-descended bondswomen, even as some Indigenous women married into Detroit's elite and led privileged lives. Chapter 3 examines slaveholders' struggles to maintain slavery in the nominally free Northwest Territory as well as enslaved people's use of the law to promote freedom. Only through concerted action did Detroit slaveholders keep the institution alive. after the Revolutionary War, Detroiters continued acquiring Indigenous land and enslaving people. Most enslaved people's lives altered little despite postwar changes in government. The 1790s saw a small uptick in the enslavement of African-descended people in the city, but Native American slaves still outnumbered Black ones. Chapter 4 reveals how Detroit began becoming American in the early nineteenth century. This affected enslaved people's ability to access the legal system; they could use new legal resources under the American regime, and—given the Northwest Ordinance—slavery had only tenuous protections there under American law. Enslavement in Detroit and across the river in Canada continued, despite bondspeople's resistance. Geography, however, facilitated fugitives' escapes. Miles carefully studies both the city's devastating [End Page 211] fire in 1805 and the 1807 Michigan Supreme Court case, Denison v. Tucker. That case aimed to secure the...

Definition of Hearsay, Fed.R.Evid. 801(a)-(c): Effect on Listener-Investigatory Background; Interrogation Accusations and Opinions

Definition of Hearsay, Fed.R.Evid. 801(a)-(c): Effect on Listener-Investigatory Background; Interrogation Accusations and Opinions

The Michigan Supreme Court Diminishes the Right to Trial by Jury in Civil Cases

In this paper, I have analyzed the right to trial by jury in civil cases as reflected in decisions of the Michigan Supreme Court over approximately a 20 year period dealing with three areas affecting the right to trial by jury in civil cases: (1) entitlement to a jury trial; (2) summary disposition; and (3) directed verdicts. The study was constructed to cover cases over a substantial period of time, so that it would be possible to analyze whether the changing composition of the Michigan Supreme Court, beginning in the late 1990's, impacted on the Court's decisions in these three areas.The conclusion that emerges from the is that the Court, as currently constituted, has diminished the right to trial by jury in civil cases in Michigan. The Court is more inclined than it was prior to 1999 to hold in more cases that there is no genuine issue of material fact, justifying summary disposition, and has now heard cases in which it has held that the defendant is entitled to a directed verdict. And the fact that the Court is more inclined to uphold the granting of summary disposition and directed verdicts is likely to have a demonstrable impact on these kinds cases when they are presented to the Court of Appeals and the trial courts. These courts, following the precedents of the Supreme Court and the results of the cases coming before that Court, will be more likely to rule in favor of granting motions for summary disposition and motions for directed verdicts.Given the Court's view of the diminished role of the jury in resolving factual disputes in civil cases, litigating lawyers must make the best of a bad situation and do everything that they can in order to protect the right to trial by jury in civil cases. They must try to ensure in the early stages of the litigation that their cases are strong enough to survive a motion for summary disposition and get to the jury, and at the trial they must make a determined effort to present sufficient evidence to survive a directed verdict. Hopefully the Court's view of the diminished role of the jury will not have dealt a fatal blow to the right to trial by jury in civil cases in Michigan. Time will tell how well the lawyers of Michigan have succeeded in preserving this fundamental constitutional right.

Black Detroit: A People's History of Self-Determination by Herb Boyd

Book Reviews Herb Boyd. Black Detroit: A People’s History of Self-Determination. New York: HarperCollins, 2017. Pp. 428. Illustrations. Index. Notes. Cloth: $27.99. Detroit occupies a central place in the African American experience, from the city’s earliest days as a French colony to the first stirrings of abolitionism to the pioneering of civil rights and up to the present. Black Detroit: A People’s History of Self-Determination chronicles this history through an eminently readable narrative that combines extensive primary and secondary sources, as well as personal memoir. It is a kaleidoscopic view of the often underacknowledged contribution of African Americans to Detroit’s development, as well as the nation as a whole, and the first to relate that history across the city’s 300-plus years. By that measure alone, the book should be required reading for anyone interested in Detroit and the African American experience in general. The first documented presence of African Americans in Detroit dates to 1736, with two slaves reportedly owned by the Campeau family: fur traders, merchants, and land speculators who were among the first French colonists to settle the region, having purchased two land grants from Detroit’s founder, Antoine de la Mothe Cadillac. While the exact number is unclear, black slaves were present in the first Detroit census conducted by the French in 1750. Their number continued to increase after jurisdiction was transferred to the British a decade later. From initial anonymity, the presence of specific African Americans soon began to be noted in the city, both those in bondage and those born free or freed under their own auspices. As the nineteenth century unfolded, Detroit increasingly figured prominently in the African American experience. As early as 1830, Detroit emerged as an important last stop on the Underground Railroad, the launching site for African Americans to attain freedom from bondage by crossing the river into Canada. Among the foremost abolitionists identified in Black Detroit include William Lambert, George DeBaptiste, and Henry Bibb. The end of the century saw the rise of a black middle class in Detroit. In 1883, the Pelham brothers, Robert, Jr. and Benjamin, founded the Detroit Plaindealer, the city’s first black newspaper. One of the most notable community leaders of the period was D. Augustus Straker, who as the first African American attorney to appear before the Michigan Supreme Court, successfully argued in the 1890 case Ferguson v. Gies that “separate but equal” was unconstitutional under state law, more than six decades before Brown v. Board of Education. 122 The Michigan Historical Review Detroit’s role in the civil rights movement is more well known. The celebrated 1925 case argued by Clarence Darrow defended Dr. Ossian Sweet’s right to protect his home against attack by white neighbors at a time when restrictive covenants prevented most African Americans from moving out of Detroit’s ghettos. After the Second World War, Rev. Clarence L. Franklin was among the national leaders of civil rights. His friendship with Martin Luther King, Jr. brought the civil rights leader to Detroit in a precursor to the historic 1963 march on Washington and in which King delivered an early draft of the iconic “I Have a Dream” speech. These are only a few of the stories told in Black Detroit, which documents the role of scores of African American Detroiters in business, culture, and politics from the city’s founding to its emergence from bankruptcy. It is a study that is long overdue. Vince Carducci College for Creative Studies Colin G. Calloway. The Indian World of George Washington: The First President, the First Americans, and the Birth of a Nation. New York: Oxford University Press, 2018. Pp. 621. Bibliography. Illustrations. Index. Maps. Notes. Cloth: $34.95. Colin Calloway holds an endowed chair in history and Native American studies at Dartmouth College and is the author of numerous books concerned with the Indians and their troubled encounters with EuroAmericans in the cis-Mississippi world. The Indian World of George Washington brings new insights into the over half-century of interactions between the man who eventually became the first president of the United States and Native Americans from the Great Lakes to the...

Computer-Assisted Legal Linguistics: Corpus Analysis as a New Tool for Legal Studies

Law exists solely in and through language. Nonetheless, systematical empirical analysis of legal language has been rare. Yet, the tides are turning: After judges at various courts (including the US Supreme Court) have championed a method of analysis calledcorpus linguistics, the Michigan Supreme Court held in June 2016 that this method “is consistent with how courts have understood statutory interpretation.” The court illustrated how corpus analysis can benefit legal casework, thus sanctifying twenty years of previous research into the matter. The present article synthesizes this research and introduces computer-assisted legal linguistics (CAL2) as a novel approach to legal studies. Computer-supported analysis of carefully preprocessed collections of legal texts lets lawyers analyze legal semantics, language, and sociosemiotics in different working contexts (judiciary, legislature, legal academia). The article introduces the interdisciplinary CAL2research group (www.cal2.eu), its Corpus of German Law, and other related projects that make law more transparent.

Corpus Linguistics: Misfire or More Ammo for the Ordinary - Meaning Canon?

Scholars and judges have heralded corpus linguistics—the study of language through collections of spoken or written texts—as a novel tool for statutory interpretation that will help provide an answer in the occasionally ambiguous search for “ordinary meaning” using dictionaries. In the spring of 2016, the Michigan Supreme Court became the first to use corpus linguistics in a majority opinion. The dissent also used it, however, and the two opinions reached different conclusions. In the first true test for corpus linguistics, the answer seemed to be just as ambiguous as before. This result calls into question the utility of corpus linguistics. If the Michigan Supreme Court could reach opposite conclusions about the ordinary meaning of a word when both opinions used the same database, can one really consider corpus linguistics an effective aid to statutory interpretation? This Note first argues that the Michigan Supreme Court’s majority opinion conducted a flawed search of the database and that the dissent’s contrary conclusion was correct. In addition, this Note contends that transparency—the greatest strength of corpus linguistics—outweighs the risk that judges may fail to use a corpus-linguistics database accurately because that transparency permits advocates, other judges, and legal scholars to review the court’s analysis, aiding appellate review. Lastly, this Note includes recommended steps to guide the use of a corpus-linguistics database in the search for ordinary meaning.

Child Abuse Evidence: New Perspectives from Law, Medicine, Psychology & Statistics: Opening Remarks, November 6, 2015

Opening remarks by Justice Bridget McCormack, Michigan Supreme Court on November 6, 2015.

Ojibwe Gichigami (“Ojibwa’s Great Sea”): an intersecting history of treaty rights, tribal fish harvesting, and toxic risk in Keweenaw Bay, United States

Ojibwe Gichigami (“Ojibwa’s Great Sea”) is the spirit name for Lake Superior; it is also the homeland of the Keweenaw Bay Indian Community (KBIC) where Gichigami fishing has sustained the people for nearly a millennia. As signatories to the 1842 Treaty With The Chippewa, the KBIC retain rights for hunting, fishing, and gathering, and worship within ten-million acres of ceded land and water territory. However, due to elevated levels of toxics such as methyl-mercury and polychlorinated-biphenyls (PCBs), Lake Superior is currently under numerous fish consumption advisories that inform the public of harmful contamination levels. Thus, harvesting provides socio-cultural and spiritual wellbeing for the KBIC, and simultaneously, places their physical health at great risk. By using ethnographic methods and oral histories, this article illustrates how an intersecting history of KBIC treaty rights, tribal fish harvesting, and toxic risk is the center of their water story. Over the course of several decades, they have encountered dire consequences due to federal assimilation policies, state regulatory control over their harvesting, and environmental degradation and contamination. KBIC present-day perspectives of toxic risk are rooted in this history. In 1971, the Michigan Supreme Court presented a landmark decision: the People v. Jondreau reaffirmed 1842 treaty rights for the KBIC. This precedential decision was followed by Great Lakes states issuing the nation’s first fish advisories. The KBIC historical context is imperative to understanding present day environmental policy and its relevance (or irrelevance) for those most at-risk, emphasizing how social injustices are manifested through a people’s water history.

The Michigan Supreme Court, Stare Decisis, and Overruling the Overrulings

The principle of stare decisis dictates that in the absence of a special justification for overruling a prior decision, a court must follow its prior decisions, although a majority of the judges on a court as currently constituted believes that the prior decision was wrongly decided. In this paper, I discuss and analyze the abandonment of stare decisis by the Michigan Supreme Court in the period from 1999 to 2008. During that time, a new Michigan Supreme Court majority, consisting of Justices Taylor, Corrigian, Markman, and Young, expressly overruled by my count thirty-eight cases, some no more than a few years old. While four of these overrulings may be considered non-ideological in the sense that all of the Justices concurred in the decision to overrule, the remaining thirty-four were clearly ideological. In every civil case, the result of the overruling of the prior decision was to favor defendants over plaintiffs by limiting liability or making it more difficult for plaintiffs to assert a claim. In every criminal case, the result of the overruling of the prior decision was to favor the prosecution over the defendant and to uphold a conviction against the defendant’s statutory or constitutional claim. What has happened in Michigan, pure and simple, is that a majority of the Justices on the Michigan Supreme Court overruled prior decisions with which they disagreed, in order to advance the majority’s policy objectives. Because this is so, the legitimacy of the Court’s abandonment of stare decisis during this period may properly be called into question.In the 2008 election, Chief Justice Taylor was defeated for reelection by Wayne Circuit Judge Diane Hathaway. This brought an end to the Court majority that had abandoned stare decisis and that had engaged in an unprecedented overruling of the Court’s prior decisions. I maintain that a new Court majority should restore stare decisis to Michigan jurisprudence and in a principled way should confront the consequences of the former Court majority’s abandonment of stare decisis. First, the Court should insist on a special justification for overruling a prior decision, and should not overrule the decision simply because a majority of the Justices now serving on the Court believes that the prior decision was wrongly decided. Second, because the ideologically-based overruling decisions lack legitimacy, these decisions, as far as the Court itself is concerned, should stand on no stronger footing than the decisions that they overruled. This being so, the Court may properly decide to grant leave to appeal from a decision of the Michigan Court of Appeals that applied as controlling precedent a decision of the Michigan Supreme Court that overruled a prior decision of that Court. Upon granting leave, the Court would reconsider the overruling decision and decide whether the overruling decision or the overruled decision should be followed. The Court could also make the policy determination to add expressly as a ground for granting a motion for leave to appeal, that the Court should reconsider an overruled decision and decide whether to follow the overruling decision or the overruled decision. It is important that the Court reconsider at least some of the large number of overruling decisions of the former Court majority, as it tries to return stare decisis to Michigan jurisprudence.

The Constitution, the Courts and the Common Law

The Constitution, the Courts and the Common Law

Antemortem Probate is a Bad Idea: Why Antemortem Probate Will Not Work and Should Not Work

“The broadest definition ever given to the judicial power confines it to controversies between conflicting parties in interest, and such can never be the condition of a living man and his possible heirs.” Although the Michigan Supreme Court was correct in many ways, their use of the word “never” was an overstatement.2 Despite the case and controversy doctrine and the many other constitutional as well as practical issues that arise from antemortem probate, five states presently allow courts to hear probate disputes before the death of the testator. Among the five is North Carolina, which signed its antemortem probate statute into law on August 11, 2015. North Carolina’s recent enactment falls amid a growing movement advocating antemortem probate statutes in order to curb the ills of the modern probate system. These calls arise from a growing criticism of the traditional probate system caused by a shift in American family make-up. Central criticisms of the traditional probate system are that the testator’s intent is not fully realized, technical errors may invalidate an otherwise valid will, and that funds are inefficiently squandered in spurious will contests. Proponents of ante-mortem probate opine that their system would rid estate planning of these problems, but they fail to take into account the constitutional, practical, and policy objections to their cause. The proponents - most importantly - place too much emphasis on the interests of the person who is dying and not enough emphasis on the people surrounding the testator when she passes away. Antemortem probate is a devise by which normal people with rational sensibilities may be prejudiced. Under the contest model used by Ohio, Arkansas, Alaska, North Dakota, and now North Carolina potential beneficiaries under the will and intestate succession must be notified, but the circumstances under which they are notified can leave normal families in the cold. But the contest model is not even the most favorable model for undue influencers. The other models streamline the probate process even more,11 multiplying the potential that the rightful heirs will be left with nothing. This article is an attempt to neutralize the enthusiasm for antemortem probate as a means to solve the problems endemic in traditional probate law. While proponents claim that antemortem probate is a tool to carry out the testator’s true intent, this article posits that the statutes are more fairly characterized as a tools that complicate the system and mask the testator’s true intent. All proposed versions of ante-mortem probate have practical, constitutional, and policy issues that cannot be overcome.

Lessons from Institutional Shareholder Services: Governing Benefit Corporations' Third-Party Standard

Almost one hundred years ago, Henry Ford, as CEO of the Ford Motor Company, announced a plan to cease payment of special dividends to shareholders. Instead, the company would reinvest its profits to employ more workers and build more factories. Investing in new workers and factories would cut the cost of cars and make them affordable to more people. Ford publicly declared that his “ambition [was] to employ still more men, to spread the benefits of this industrial system to the greatest possible number, to help them build up their lives and their homes. To do this we are putting the greatest share of our profits back in the business.” Minority shareholders were outraged. Two minority shareholders in particular, the Dodge brothers, brought suit seeking to stop Ford’s plans. The Dodge brothers argued that the primary purpose of a company is to maximize shareholder profits, not to help the community. The trial court agreed with Dodge and ordered Ford to pay the special dividends to its shareholders. Ford appealed. The Michigan Supreme Court affirmed, holding that a “corporation is organized primarily for the profit of the stockholders,” not for the benefit of the community or its employees.

Did the Michigan Supreme Court Appreciate the Implications of Adopting the “Disparity of the Risk” Measure of Minority Representation in Jury Pools in People v. Bryant?

Due to an error in the computer program used by Kent County, Michigan, for about 15 months, the African-American proportion of jury pools was about one-half their proportion of the eligible population. Subsequently, a number of defendants appealed their convictions because the jury pool did not fairly represent the community. Although a Federal Court of Appeals found that the statistical evidence helped the defendant establish that African-Americans were under-represented; in a different case, People v. Bryant, the Michigan Supreme Court found the statistics insufficient. The different conclusions arose because the Michigan Court adopted a new criterion that the “disparity of the risk” measure should be at least 0.50. The statistical properties of the measure will be described and it will be seen that it is equivalent to requiring that the Kolmogorov–Smirnov distance between the two relevant distributions is at least 0.50. If one is comparing two normal distributions, with different means and the same variance, the requirement implies that the effect size would need to be at least 1.35 before one could conclude that they differed. Since effect sizes of 0.8 are considered “large,” the criteria used by the Michigan Court are far too stringent and if adopted nation-wide would allow individuals to have trials in front of juries where minorities are substantially under-represented.

Disentangling Mich. Ct. R. 6.502(G)(2): The 'New Evidence' Exception to the Ban on Successive Motions for Relief from Judgment Does Not Contain a Discoverability Requirement

Michigan courts are engaging in a costly interpretative mistake. Confused by the relationship between two distinct legal doctrines, Michigan courts are conflating laws in a manner that precludes convicted defendants from raising their constitutional claims in postconviction proceedings. In Michigan, a convicted defendant who wishes to collaterally attack her conviction must file a 6.500 motion. The Michigan Court Rules generally prohibit “second or subsequent” motions. Nonetheless, section 6.502(G)(2) permits a petitioner to avoid this successive motion ban if her claim relies on “new evidence that was not discovered” before her original postconviction motion. Misguided by the similarity between the language of section 6.502(G)(2) and the Michigan Supreme Court's opinion in People v. Cress, Michigan courts have started conflating the four-prong Cress legal standard with section 6.502(G)(2)'s “new evidence” exception to the ban on successive motions. This conflation imposes an additional discoverability element on the “new evidence” exception: a court will dismiss a petitioner's motion as successive if the petitioner could have discovered the evidence underlying the motion through the exercise of reasonable diligence. This Note demonstrates that the conflation of section 6.502(G)(2) and the Cress standard, and the resulting imposition of an additional discoverability requirement on the “new evidence” exception, is plainly wrong. It contradicts the text and structure of the Michigan Court Rules and imposes unintended adverse consequences on criminal defendants seeking to vindicate their constitutional rights.

Blueprint for the Great Lakes Trail

The Great Lakes are vast yet vulnerable. There is a need to focus the public’s attention on the significance of the lakes for the region as a cohesive, bi-national whole. To address this need, build on existing water law, and engage the public, this article provides a blueprint to establish a Great Lakes Trail on the shores of the Great Lakes. The trail will link together 10,000 miles of coastline and provide the longest marked walking trail in the world. It will demarcate an already existing, yet largely unrecognized, public trust easement and engage the public with their common heritage in the lakeshore. The Great Lakes Trail is rooted in longstanding legal rights in the beach commons that have been forgotten and eroded over time. The trail provides a tangible way to restore the public’s coastal history and reinvigorate public trust rights.In the United States, when each of the Great Lakes states entered the Union, the federal government transferred to them the waters and lake beds of the Great Lakes up to the Ordinary High Water Mark on the beach. The states were to hold these lands and waters in trust for the public use and enjoyment. In 2005, the Michigan Supreme Court held in favor of the public’s right to access and walk along this beach. This is the only Great Lakes state court decision to directly address the public’s right to walk along the Great Lakes, and it provides an excellent contemporary model decision for the region. On the Canadian side of the Great Lakes there is an existing movement to build a Waterfront Trail along all of the Great Lakes and St. Lawrence River, as well as legislative efforts to recognize a right of passage on foot along the Great Lakes shoreline. However, the states and provinces lack consistency in how they address public access to this coast, and have not identified it as a broad public asset like the Appalachian Trail. Establishing the Great Lakes Trail will be a monumental effort, requiring a multidisciplinary approach. It will require generating local, and especially lakeshore property owners’ support for the trail; developing a system of local volunteers; working with artists and educators to design art installations and signs that reflect each community’s values and educate the public about Great Lakes ecological and legal issues; building local tourism economies with chambers of commerce to promote trailoriented businesses; and partnering with GIS mappers and App developers to produce real time local business information and mapping. Ultimately, getting people to utilize their public trust rights in walking the coasts of the Great Lakes engages them in actively seeing the importance of the Great Lakes as an ecological, political, economic, and cultural asset, which is a precursor to developing and implementing cooperative Great Lakes governance structures.

Why We Should Stop Teaching Dodge v. Ford

Among non-experts, conventional wisdom holds that corporate law requires boards of directors to maximize shareholder wealth. This common but mistaken belief is almost invariably supported by reference to the Michigan Supreme Court's 1919 opinion in Dodge v. Ford Motor Co. This Essay argues that Dodge v. Ford is bad law, at least when cited for the proposition that maximizing shareholder wealth is the proper corporate purpose. As a positive matter, U.S. corporate law does not and never has imposed a legal obligation on directors to maximize shareholder wealth. From a normative perspective, options theory, team production theory, the problem of external costs, and differences in shareholder interests all suggest why a rule of shareholder wealth maximization would be bad policy and lead to inefficient results. Courts accordingly treat Dodge v. Ford as a dead letter. (In the past three decades the Delaware courts have cited the case only once, and then on controlling shareholders' duties to minority shareholders). Nevertheless, legal scholars continue to teach and cite it. This Essay suggests that Dodge v. Ford has achieved a privileged position in the legal canon not because it accurately captures the law - it does not - or because it provides good normative guidance - it does not - but because it serves professors' need for a simple answer to the question, What do corporations do? Simplicity is not a virtue when it leads to misunderstanding, however. Law professors should mend their collective ways, and stop teaching Dodge v. Ford as anything more than an example of how courts can go astray.