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Notes Office

Welcome to the Notes Office

A primary responsibility of Associate Editors on the Michigan Law Review is writing a publishable Note. This is a unique opportunity to explore an interesting legal controversy and propose a creative solution to the problem. Authoring and publishing a dynamic, well-reasoned piece of scholarship can be personally fulfilling and professionally rewarding. While publication requires a sizable amount of work, every Associate Editor has the ability to write an excellent Note and may even be able to obtain course credit for the endeavor.

Unlike many of our peer law reviews, editors of the Michigan Law Review do not compete with each other to get their Notes published. Every editor of the Law Review is entitled to publish in our journal if he or she produces scholarship of publishable quality, regardless of how many other Notes are slated for publication. To this end, the editors in the Note Office are committed to working with each Associate Editor individually, assisting with each stage of the publication process.

Wasting the Corporate Waste Doctrine: How the Doctrine Can Provide a Viable Solution in Controlling Excessive Executive Compensation

Steven C. Caywood

In the midst of the global recession of the late 2000s, there was an outcry against corporate executives and what the public deemed to be their excessive compensation. Although this anger is still featured in today's headlines, it is not a new claim. In fact, excessive executive compensation complaints arose when the very concept of a corporation was still new. Most of the complaints that the public has leveled have had little effect on board of directors' decisions. Occasionally, however, the outcry is so great that the public compels a company's leadership to take action. This happened early in 2009 when American International Group (AIG) stated that it was paying its top executives $165 million in bonuses. Within days, AIG, a company most Americans had not heard of, was at the center of the excessive compensation debate. Under enormous political and public pressure, fifteen of the top twenty AIG executives agreed to give back their bonuses.

This compromise is not typical, however, as for every AIG-type controversy, many other payment plans considered to be excessive are never publicly discussed. Both private and public proposals are currently under consideration that will limit excessive executive compensation in one way or another. This Note contends that the under-utilized corporate waste doctrine can serve as a preferable alternative to legislative or executive actions.  The corporate waste doctrine could be effectively enforced by using a legislative tool, the "say on pay" provision, as a gatekeeper for the courts. This judicial solution using a legislative act would allow those who are actually affected by the excessive compensation-the shareholders-to pursue effective legal action against the corporation. A corporate waste doctrine would be enforced more narrowly than a statutory scheme, avoiding the possible unintended consequences of a broadly-applicable legislative or regulatory action.

Don't Answer the Door: Montejo v. Louisiana Relaxes Police Restrictions for Questioning Non-Custodial Defendants

Emily Bretz

In 2009, the Supreme Court held in Montejo v. Louisiana that a defendant may validly waive his Sixth Amendment right to counsel during police interrogation, even if police initiate interrogation after the defendant's invocation at the first formal proceeding. This Note asserts that Montejo significantly altered the Sixth Amendment protections available to represented defendants.  By increasing defendants' exposure to law enforcement, the decision allows police to try to elicit waivers of the right to counsel and incriminating statements after the defendant has expressed a desire for counsel. In order to protect the defendant's constitutional guarantee of a right to counsel at all critical stages in his prosecution, it is essential to impose higher waiver standards for represented defendants. Thus, this Note argues that state and lower courts should adopt a rule that would render invalid any waiver given in response to police-initiated questioning, regardless of whether the questioning occurred in a custodial or non-custodial environment, provided the defendant had been formally charged and invoked his right to an attorney.

The Right Issue, the Wrong Branch: Arguments against adjudicating climate change nuisance claims

Matthew Edwin Miller

Climate change is probably today's greatest global environmental threat, posing dire ecological, economic, and humanitarian consequences. In the absence of a comprehensive regulatory scheme to address the problem, some aggrieved Americans have sought relief from climate-related injuries by suing significant emitters of greenhouse gases under a public nuisance theory. Federal district courts have dismissed four such claims, with each court relying at least in part on the political question doctrine of nonjusticiability. However, two circuit courts of appeals have reversed to date, finding that the common law cognizes such claims and that the judiciary is competent and compelled to adjudicate them.

This Note argues that courts should dismiss climate-related public nuisance suits-at least those that seek injunctive caps on greenhouse gas emissions. Focusing on Connecticut v. American Electric Power Co. as a case in point, this Note concludes that such claims should be deemed nonjusticiable political questions or, alternatively, should be dismissed for lack of redressability. As an afterthought, the Note also briefly acknowledges some problems that could arise on the merits of this category of claims, along with policy concerns about permitting such litigation.


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