Volume 108 FIRST IMPRESSIONS

Welcome to First Impressions. Currently featured are Rick Su, discussing the overlooked significance of Arizona's new immigration law, S.B. 1070; and Jillian Blake, winner of the Michigan Law Review First Impressions Essay Competition 2010, describing recent changes in U.S. asylum law that offer new hope for women around the world seeking to escape domestic abuse. Michael Halley also responds to the recent Michigan Law Review article by Professors Tebbe and Tsai.

The Editors of First Impressions welcome your comments and responses.

Commentaries

The Case for Semi-Strong-Form Corporate Scienter in Securities Fraud Actions

Paul B. Maslo

The mental state of scienter - intent to defraud - is a required element of a securities fraud claim.  The scienter inquiry is fairly straightforward when the defendant is an individual.  It is more complex when a corporate entity is involved because a corporation can only act through its agents; it has no mind of its own.  This article compares the three approaches courts have used to impute scienter to corporate defendants in the securities fraud context and concludes by recommending the approach which strikes an appropriate balance between several dueling public policy concerns.

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Redemption Song: Graham v. Florida and the Evolving Eighth Amendment Jurisprudence

Robert Smith & G. Ben Cohen
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The Overlooked Significance of Arizona's New Immigration Law

Rick Su
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Welcoming Women: Recent Changes in U.S. Asylum Law

Jillian Blake
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Gina's Genotypes

David H. Kaye
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When "Good" Corporate Governance Makes "Bad" (Financial) Firms: The Global Crisis and the Limits of Private Law

Nicholas Calcina Howson
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In Search of Justice: Increasing the Risk of Business with State Sponsors of Terror

Gabriel C. Lajeunesse
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"False But Highly Persuasive": How Wrong Were the Probability Estimates in McDaniel v. Brown?

David H. Kaye
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Same-Sex Marriage in the Heartland: The Case for Legislative Minimalism in Crafting Religious Exemptions

Ian C. Bartrum
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RESPONSES

Freedom and Equality on the Installment Plan

Michael Halley

A response to Nelson Tebbe & Robert L. Tsai, Constitutional Borrowing, 108 Mich. L. Rev. 462 (2010).

Crediting the perception that the Constitution is a poorly cut puzzle whose variously configured pieces don't match, Nelson Tebbe and Robert Tsai propose that the stand-alone parts of freedom and equality can be merged and mutually enlarged through the act of borrowing. They are mistaken. While Thomas Jefferson wrote that ideas may be appropriated without being diminished and so "freely spread from one to another over the globe," the equality and freedom the Constitution addresses as actualities are constrained by a basic, familiar, and inescapable rule of financial accounting. Just as assets and liabilities must be in balance, freedoms are only acquired at the exacting expense of equality; no amount of borrowing can alter the equation. While as a matter of principle we are all equally entitled to be "let alone," this "most comprehensive right . . . the right most valued by civilized men," is not a one-size-fits-all proposition. While "the poorest man in his cottage" and the richest man in his mansion may both "bid defiance to all the forces of the Crown," the amount of privacy they enjoy as a matter of fact is incomparable. The privacy enjoyed by those unable to afford lodgings of any kind and forced to take refuge in their cars is further diminished as a matter of law, while the "homeless" sleeping out of doors and exposed to the elements enjoy no expectation of privacy apart from what they manage to secure in duffle bags. The Court's express rejection of the claim that the "‘need for decent shelter' and the ‘right to retain peaceful possession of one's home' are fundamental interests which are particularly important to the poor"-like its assertion that education is not a "fundamental right"-follows from the proposition that laws "having different effects on the wealthy and the poor" are not unconstitutional, and from the consequence of that proposition: that the freedoms most valued by Americans are for purchase. The wealthier the man, the more unequal the share he can afford.

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Insufficient Activity and Tort Liability: A Rejoinder

David Gilo & Ehud Guttel
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Constitutional Interpretation and Judicial Review: A Case of the Tail Wagging the Dog

Michael Halley
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Insufficient Analysis of Insufficient Activity

Kenneth S. Abraham
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Another Theory of Insufficient Activity Levels

Mark Grady
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Activity Levels Under the Hand Formula: A Comment on Gilo and Guttel

Richard A. Epstein
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Dilution of Liability and Multiple Tortfeasors in the Context of Liability for Unrequested Precautions

Assaf Jacob
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ABOUT FIRST IMPRESSIONS
An Online Companion

First Impressions, an online companion to the Michigan Law Review, publishes op-ed length articles by academics, judges, and practitioners in an online symposium format. This extension of our printed pages facilitates quick dissemination of the legal community’s initial impressions of important judicial decisions, legislative developments, and timely legal policy issues.

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Volume 108, No. 7

Issue 7 of MLR volume 108 is now online.

Volume 108, No. 6

Issue 6 of MLR volume 108 is now online.

Volume 108, No. 5

Issue 5 of MLR volume 108 is now online.

Insufficient Activity and Tort Liability: A Rejoinder

In our article, Negligence and Insufficient Activity, we proposed that tort scholarship has overlooked the...

Volume 108, No. 4

Issue 4 of MLR volume 108 is now online. New First Impressions essays will be published soon.