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Vol. 31, No. 9, November 24, 1982, University Of Michigan Law School

Res Gestae

•Stan White: Advocate on the Line •The Final(s) Solution •Twelve Students Bumped From Clinic Program •SFF: Pledging the Public Interest •Regents 'Distinguish' Sax •Clinic Survives Misconduct Investigation •Notices •The "Review'' Needs a Review •MSA- Ask Not What You... •Trying to Keep Our Lines Straight •Legalese: A Question of Juris-Diction? •The Multi-(Altered) State 'Bar' Review •Boston's No Tea Party •Law in the Raw

Prosecutorial Peremptory Challenge Practices In Capital Cases: An Empirical Study And A Constitutional Analysis, Bruce J. Winick

Michigan Law Review

As presently construed, the Constitution does not prohibit the death penalty. The states and the federal government may punish the commission of certain crimes with death, so long as the extreme penalty is not imposed on a mandatory basis and so long as the procedures used in imposing a death sentence meet constitutional scrutiny.

A demonstration that the prosecutor used the peremptory challenge in the manner described in a single case probably would be insufficient to support a constitutional challenge in the federal courts and in the vast majority of state courts. In these courts a prosecutor's use of the …

Prosecutorial Vindictiveness In The Criminal Appellate Process: Due Process Protection After United States V. Goodwin, Michigan Law Review

Michigan Law Review

This Note reformulates the doctrine of prosecutorial vindictiveness in light of the distinction drawn in Goodwin between pretrial and posttrial charging decisions. Part I recounts the development of the vindictiveness concept, and argues that in extending the doctrine beyond the factual settings which moved the Supreme Court to fashion its original prophylactic rule, the circuit courts have seriously eroded an essential due process safeguard. Part II critically examines the distinction between pretrial and posttrial charging decisions relied upon in Goodwin. Developing the logical corollary of the Goodwin holding, this Part argues that just as the pretrial situation does not …

Vol. 31, No. 6, October 20, 1982, University Of Michigan Law School

Res Gestae

•Positively Not Wall Street •WLSA Display to Outline Rape Problem •Public Interest Job Discussion •FLP Fundraiser to Aid Battered Women •Notices •The Legal Lemmings March •Scrimp Cocktail •High Schoolish, Fer Sure •Library Malcontents •Prison Repression: a call to action •Reader Rejects Loots' 'Left Wing Mythology' •Springsteen: Lonely Man of Faith •A Heavenly Idea for Resolving Disputes •Law in the Raw

Majorities, Minorities, And Morals: Penal Policy And Consensual Behavior, Francis A. Allen

Law Quadrangle (formerly Law Quad Notes)

This article is a somewhat abridged version of The Siebenthaler Lecture which Professor Allen delivered at the Salmon P. Chase College of Law of North Kentucky University this year. The Siebenthaler Lectures are supported by the Chase College Foundation. The complete text of Professor Allen's speech appeared in the spring issue of the Northern Kentucky Law Review.

The area of penal policy that I intend to discuss is one demanding a certain amount of fortitude or, more accurately, of foolhardiness to enter. It is a difficult and complex area, and one already much trodden by some of the most distinguished …

Briefs, University Of Michigan Law School

Law Quadrangle (formerly Law Quad Notes)

The Assassination Attempt; Academy membership for Dr. Bolgár; Michigan Scholars in the Academy; The New York Times reports on the Michigan Law School; Annual grants for Michigan Law students; Policing the Police; On Trial: Michigan's Courtrooms

Evaluating Michigan's Guilty But Mentally Ill Verdict: An Empirical Study, Gare A. Smith, James A. Hall

University of Michigan Journal of Law Reform

Because Michigan's GBMI statute has been in effect for several years, enough data exists to assess the statute's use and practical effect. The purpose of this Project is to evaluate the statute and thus provide guidance for those legislatures considering similar proposals. This Project concludes that the new verdict has completely failed in its intended purpose. Part I describes the statute's history, legislative purpose, and procedural mechanics. Part II analyzes the displacing effect of the GBMI verdict on other verdicts, and sets forth empirical data on the disparate characteristics of defendants who raise the insanity defense and are subsequently found …

Constitutional Constraints On The Admissibility Of Grand Jury Testimony: The Unavailable Witness, Confrontation, And Due Process, Barbara L. Strack

University of Michigan Journal of Law Reform

Defendants, however, have raised serious constitutional objections to the introduction of grand jury testimony when the witness is unavailable to testify at trial. These claims have focused on the confrontation clause of the sixth amendment and the due process clauses of the fifth and fourteenth amendments. Defendants have contended that the introduction of testimony from a grand jury proceeding which cannot be subjected to cross-examination fatally compromises the defendant's right to a fair trial. Lower courts are split over admitting grand jury testimony in these circumstances, and the Supreme Court has yet to rule on the issue. As a result, …

The Constitutionality Of The Special Prosecutor Law, Donald J. Simon

University of Michigan Journal of Law Reform

This Article explores the constitutional questions posed by the special prosecutor law and concludes that the law is constitutional. Part I examines the political setting that gave rise to the special prosecutor provisions and discusses the intent of the drafters. Part II explains the precise manner in which the provisions operate and surveys the recent experience under the law. Finally, part III evaluates the constitutional objections raised by critics of the legislation.

Vol. 31, No. 3, September 29, 1982, University Of Michigan Law School

Res Gestae

•Losing Faith in the Legal System •Students Slumping? •Reviewing the Review •A Cure for Whatever 'Ales' Us •Notices •Senate to Act on Faculty Meeting Policy? •Stacking Up the Scholarly Staffers •The Duke Would Be Disappointed •Ballots Can't Stop Bombs •Don't Blame Us •Battling the Corporate Bias •The Latter, Beautiful, Stages of Insanity •Greco in Toledo, Oh. •NFL: Strike One Called •Dealing With the Real Issues •Dear Professor: My Goldfish Died... •Law in the Raw

Federal Agency Access To Grand Jury Transcripts Under Rule 6 (E), Michigan Law Review

Michigan Law Review

Part I examines the courts' current certainty-based perspective, and rejects this approach because it sacrifices important interests in civil law enforcement and judicial consistency for speculative and coincidental reductions in grand jury abuse. Part II defends the proposed standard by arguing that it comports with the language and intent of the rule while more effectively advancing the policy interests in civil law enforcement and grand jury secrecy.

The Sentencing Of White-Collar Criminals In Federal Courts: A Socio-Legal Exploration Of Disparity, Ilene H. Nagel, John L. Hagan

Michigan Law Review

This Article addresses that question by examining judicial sentencing philosophy as applied to white-collar criminality and reporting data that illuminate the operation of that philosophy. Part I of the Article argues that the traditional purposes and limits of criminal sentencing may plausibly justify either disparate or comparable sentences in cases of white-collar and common criminality. Part II describes the obstacles to an accurate empirical inquiry into how judges resolve these uncertainties in the theory of punishment. Part III presents a study designed to overcome as many of these obstacles as possible. What is most dramatic is that the resulting data …

Enforced Self-Regulation: A New Strategy For Corporate Crime Control, John Braithwaite

Michigan Law Review

Part I outlines the concept of enforced self-regulation, sketches its theoretical underpinnings, and illustrates its application in the context of corporate accounting standards. Part II argues the merits of enforced self-regulation. Part III dispels notions that the proposal is a radical departure from existing regulatory practice and points to areas in which necessary empirical research could be conducted by discussing incipient manifestations of partial enforced self-regulation models in the aviation, mining, and pharmaceutical industries. Part IV considers in some detail the weaknesses of the proposed model. The final Part considers the importance of determining an optimal mix of regulatory strategies; …

Periodical Index, Michigan Law Review

Michigan Law Review

Subject Index of Articles, Comments, Notes, and Recent Developments Appearing in Leading Law Reviews

From Pillory To Penitentiary: The Rise Of Criminal Incarceration In Early Massachusetts, Adam J. Hirsch

Michigan Law Review

While the transition from the old forms of criminal sanction to incarceration was perhaps not, as Jeremy Bentham claimed, "one of the most signal improvements that have ever yet been made in our criminal legislation," one does not overstate to call it a signal development in the history of Anglo-American criminal justice - a development, one may add, that still wants adequate examination, much less explanation. This Article attempts to do both for one sample region: Massachusetts. Though the jurisprudential movement from pillory to penitentiary took place throughout the new American republic, as well as much of western Europe, our …

Stone V. Powell And The Effective Assistance Of Counsel, Michigan Law Review

Michigan Law Review

Part I briefly identifies the considerations underlying the Stone Court's decision to limit habeas corpus review of fourth amendment claims. Part II then argues against applying Stone to the sixth amendment claim. After establishing the analytic difference between the two constitutional claims and examining Stone's "opportunity for full and fair litigation" standard, it concludes that Stone is fully consistent with free review of habeas corpus petitions alleging incompetent handling of fourth amendment questions. Finally, responding to a popular interpretation of Stone, Part II demonstrates that the possibility that ineffectiveness claims may not further the determination of a defendant's …

Vol. 30, No. 22, April 14, 1982, University Of Michigan Law School

Res Gestae

•Looking at the 'Fourth Year' •Students Warned: Apply Now for Aid •Senate Sends Faculty Message on Curriculum •Elections •Notices •R.G. Misses the Boat •Affirm. Action Again •Keeping Alive the Dialogue •Assessing EI Presidente's Legacy •There's More to Law Review than Resumes •Of Double Duplicity •Beach '82! •A Chicago Tradition •Pitching Briefs, Catching Offers •Smith, Widowski Take Foosball Crown •Pepe: A Proposal in the Public Interest •Women in Law Conference: Smashing Hit •2002: Best and the Brightest? •Ellmann Retires from the Court •Best of Law in the Raw

Briefs, University Of Michigan Law School

Law Quadrangle (formerly Law Quad Notes)

Professor St. Antoine on the persisting problem of picketing; Professor Allen speaks on penal policy and consensual behavior; Judge Wade McCree receives various honors; Lawyers Club made accessible to handicapped; grant will support Vining's work on legal authority; Law School fund historical update; book award commends Sax's reflections on the national parks; Alfred Conards achievements; down with equality says Westen in Harvard Law Review; Allan Smith reflects on University administration; Economics building destroyed by fire; parental rights of imprisoned at issue in clinic case; presidential order on cost-benefit analysis may be unconstitutional; Marcus Plant retires

Relief For Prison Overcrowding: Evaluating Michigan's Accelerated Parole Statute, Frank T. Judge Iii

University of Michigan Journal of Law Reform

This Note describes and analyzes Michigan's Prison Overcrowding Emergency Powers Act. Part I reviews briefly current efforts to relieve prison overcrowding and concludes that traditional remedies are largely inadequate. Part II examines the early prisoner release statute and its implementation. Finally, Part III evaluates the statute's success in relieving prison overcrowding .

The Roles Of Lawbooks, Alfred F. Conard

Michigan Law Review

The Michigan Law Review's annual review of books provides us with an informative sample of the recently published books that are available to inform the lawyer's mind. No doubt the sample is biased by the idiosyncracies of the editors' tastes and of the reviewers' receptivity. But these biases are more likely to enhance than to diminish the significance of the selection.

How Courts Govern America, Michigan Law Review

Michigan Law Review

A Review of How Courts Govern America by Richard Neely

Confessions Of A Criminal Lawyer, Michigan Law Review

Michigan Law Review

A Review of Confessions of a Criminal Lawyer by Seymour Wishman

Mental Health Law: Major Issues, Michigan Law Review

Michigan Law Review

A Review of Mental Health Law: Major Issues by David B. Wexler

The Policy Dilemma: Federal Crime Policy And The Law Enforcement Assistance Administration, Michigan Law Review

Michigan Law Review

A Review of The Policy Dilemma: Federal Crime Policy and the Law Enforcement Assistance Administration by Malcolm M. Feeley and Austin D. Sarat

Index To Book Reviews In American Law Reviews, Michigan Law Review

Michigan Law Review

This index includes book reviews that have appeared in American law reviews since the compilation of books for the 1981 Survey of Books Relating to the Law

Salvaging Proportionate Prison Sentencing: A Reply To Rummel V. Estelle, Thomas F. Cavalier

University of Michigan Journal of Law Reform

Part I of this Note provides a capsule of the Court's holding in Rummel. Part II argues, contrary to Rummel, that precedential support can be mustered to support eighth amendment review of sentence length. Finally, part 11,1 discusses the continued viability of the proportionality test as a vehicle for assessing challenges to the length of imprisonment, and discounts the concerns voiced in Rummel regarding the difficulty of judicial review of legislative sentencing decisions.

On Recognizing Variations In State Criminal Procedure, Jerold H. Israel

Articles

Everyone recognizes that the laws governing criminal procedure vary somewhat from state to state. There is often a tendency, however, to underestimate the degree of diversity that exists. Even some of the most experienced practitioners believe that aside from variations on some minor matters, such as the number of peremptory challenges granted, and variation on a few major items, such as the use of the grand jury, the basic legal standards governing most procedures are approximately the same in a large majority of states. I have seen varied evidence of this misconception in practitioner discussions of law reform proposals, particularly …

How We Got The Fourth Amendment Exclusionary Rule And Why We Need It, Yale Kamisar

Articles

Why the continuing storm of controversy over the exclusionary rule? Why the deep and widespread hostility to it? I think a recent law office search case, because it arose in a setting so unlike the typical search and seizure case, furnishes a clue. In O'Connor v. Johnson, St. Paul police obtained a warrant to search an attorney's office for business records of a client suspected of making false written statements in applying for a liquor license. The attorney happened to be present when the police arrived. Holding on to his work product file, which contained some of the records sought, …

Criminal Procedure, The Burger Court, And The Legacy Of The Warren Court, Jerold H. Israel

Book Chapters

During the 1960s, the Warren Court's decisions in the field of criminal procedure were strongly denounced by many prosecutors, police officers, and conservative politicians. Some of these critics were careful in their description of the Warren Court's record. Others let their strong opposition to several of the Court's more highly publicized decisions destroy their perception of the Court's work as a whole.

Selective Incorporation Revisited, Jerold H. Israel

Articles

In June 1960 Justice Brennan's separate opinion in Ohio ex re. Eaton v. Price' set forth what came to be the doctrinal foundation of the Warren Court's criminal procedure revolution. Justice Brennan advocated adoption of what is now commonly described as the "selective incorporation" theory of the fourteenth amendment. That theory, simply put, holds that the fourteenth amendment's due process clause fully incorporates all of those guarantees of the Bill of Rights deemed to be fundamental and thereby makes those guarantees applicable to the states. During the decade that followed Ohio ex re. Eaton v. Price, the Court found incorporated …