Law Commons^™

The Misplaced Trust In The Doj's Expertise On Criminal Justice Policy, Shon Hopwood

Michigan Law Review

Review of Rachel Elise Barkow's Prisoners of Politics: Breaking the Cycle of Mass Incarceration.

Too Vast To Succeed, Miriam H. Baer

Michigan Law Review

If sunlight is, in Justice Brandeis’s words, “the best of disinfectants,” then Brandon Garrett’s latest book, Too Big to Jail: How Prosecutors Compromise with Corporations might best be conceptualized as a heroic attempt to apply judicious amounts of Lysol to the murky world of federal corporate prosecutions. “How Prosecutors Compromise with Corporations” is the book’s neutral- sounding secondary title, but even casual readers will quickly realize that Garrett means that prosecutors compromise too much with corporations, in part because they fear the collateral consequences of a corporation’s criminal indictment. Through an innovation known as the Deferred Prosecution Agreement, or DPA, …

More Than Just A Potted Plant: A Court's Authority To Review Deferred Prosecution Agreements Under The Speedy Trial Act And Under Its Inherent Supervisory Power, Mary Miller

Michigan Law Review

In the last decade, the Department of Justice has increasingly relied on pretrial diversion agreements as a means of resolving corporate criminal cases short of prosecution. These pretrial diversion agreements—non-prosecution and deferred prosecution agreements—include substantive terms that a company must abide by for the duration of the agreement in order to avoid prosecution. When entering a deferred prosecution agreement, the Department of Justice files charges against the defendant corporation as well as an agreement outlining the variety of terms with which the company must comply. This delay in prosecution is permitted under the Speedy Trial Act, which provides an exception …

A Functional Theory Of Congressional Standing, Jonathan Remy Nash

Michigan Law Review

The Supreme Court has offered scarce and inconsistent guidance on congressional standing—that is, when houses of Congress or members of Congress have Article III standing. The Court’s most recent foray into congressional standing has prompted lower courts to infuse analysis with separation-ofpowers concerns in order to erect a high standard for congressional standing. It has also invited the Department of Justice to argue that Congress lacks standing to enforce subpoenas against executive branch actors. Injury to congressional litigants should be defined by reference to Congress’s constitutional functions. Those functions include gathering relevant information, casting votes, and (even when no vote …

Toward Greater Guidance: Reforming The Definitions Of The Foreign Corrupt Practices Act, Matthew W. Muma

Michigan Law Review

The Foreign Corrupt Practices Act of 1977 is the cornerstone of the United States’ efforts to combat the involvement of U.S. companies and individuals in corruption abroad. Enforced by both the Securities and Exchange Commission (“SEC”) and the Department of Justice (“DOJ”), the Act targets companies and individuals that pay bribes to “foreign officials,” a nebulous category of persons that includes everyone from foreign cabinet members to janitors at companies only partially owned by a foreign state. After only sporadic enforcement in the early years of the Act’s existence, the SEC and DOJ now bring many cases annually. This increased …

The Institutions Of Antitrust Law: How Structure Shapes Substance, William E. Kovacic

Michigan Law Review

Daniel Crane's The Institutional Structure of Antitrust Enforcement ("Institutional Structure") may do for antitrust law what Essence of Decision did for public administration. Unlike most literature on antitrust law, this superb volume does not address pressing issues of substantive analysis (e.g., when can dominant firms offer loyalty discounts?). Instead, Institutional Structure studies the design and operation of the institutions of U.S. antitrust enforcement. Professor Crane skillfully advances a basic and powerful proposition: to master analytical principles without deep knowledge of the policy implementation mechanism is dangerously incomplete preparation for understanding the U.S. antitrust system, or any body of competition law. …

Nothing Improper? Examining Constitutional Limits, Congressional Action, Partisan Motivation, And Pretextual Justification In The U. S. Attorney Removals, David C. Weiss

Michigan Law Review

The forced mid-term resignations of nine U.S. Attorneys was an unprecedented event in American history. Nearly one year after the administration executed the removals, the House Judiciary Committee was still reviewing and publicizing emails, memoranda, and other documents in an effort to understand how the firings were effectuated. This Note examines many of those documents and concludes that the removals were likely carried out for partisan reasons. It then draws on the Constitution, Supreme Court precedent, and separation of powers principles to argue that Congress is constitutionally empowered to enact removal limitations for inferior officers such as U.S. Attorneys so …

The Corporate Monitor: The New Corporate Czar?, Vikramaditya Khanna, Timothy L. Dickinson

Michigan Law Review

Following the recent spate of corporate scandals, government enforcement authorities have increasingly relied upon corporate monitors to help ensure law compliance and reduce the number of future violations. These monitors also permit enforcement authorities, such as the Securities & Exchange Commission and others, to leverage their enforcement resources in overseeing corporate behavior. However there are few descriptive or normative analyses of the role and scope of corporate monitors. This paper provides such an analysis. After sketching out the historical development of corporate monitors, the paper examines the most common features of the current set of monitor appointments supplemented by interviews …

Beyond The "War" On Terrorism: Towards The New Intelligence Network, Ronald D. Lee, Paul M. Schwartz

Michigan Law Review

In Terrorism, Freedom, and Security, Philip B. Heymann undertakes a wide-ranging study of how the United States can - and in his view should - respond to the threat of international terrorism. A former Deputy Attorney General of the United States Department of Justice ("DOJ") and current James Barr Ames Professor of Law at Harvard Law School, Heymann draws on his governmental experience and jurisprudential background in developing a series of nuanced approaches to preventing terrorism. Heymann makes clear his own policy and legal preferences. First, as his choice of subtitle suggests, he firmly rejects the widely used metaphor …

The Quality Of Mercy Is Not Strained: Interpreting The Notice Requirement Of The Federal Tort Claims Act, Ann Mcguire

Michigan Law Review

Under the Federal Tort Claims Act of 1946 {FfCA), the United States is liable for tort claims "in the same manner and to the same extent as a private individual under like circumstances." This limited waiver of sovereign immunity, subject to certain exceptions, grants federal district courts exclusive jurisdiction over civil tort actions against the United States for money damages. The Act requires a claimant suing the United States to file her claim first with the appropriate administrative agency. If the agency denies the claim, it mails a notice of final denial, and the claimant then has six months to …

Antitrust Civil Process Act-Requirements For A Civil Investigative Demand, Mary Mandana Long

Michigan Law Review

Petitioner sought an order from the United States District Court for the District of Minnesota modifying or setting aside a Civil Investigative Demand served upon it by the Antitrust Division of the Department of Justice. The demand was issued pursuant to the Antitrust Civil Process Act, which provides a compulsory pre-complaint procedure through which the Department of Justice may obtain documentary information upon which it can make a determination of whether there has occurred a violation of the antitrust laws. Section 1312(b) of the act requires that the demand state the nature of the conduct constituting the alleged violation, recite …

The Civil Investigative Demand: New Fact-Finding Powers For The Antitrust Division, Richard L. Perry, William Simon

Michigan Law Review

The complexity, scope and length of modem antitrust litigation bring to prominence the procedures by which evidence - particularly documentary evidence - is discovered and placed before the courts and administrative agencies. Fact-finding mechanisms now available for ferreting out and prosecuting violations make up an imposing array. These include the grand jury subpoena, the discovery provisions of the Federal Rules of Civil and Criminal Procedure and the subpoena and visitorial powers of certain administrative agencies. The "civil investigative demand," a precomplaint compulsory process, is a new weapon proposed to be added to this arsenal. Few dispute the desirability of new …

Antitrust Administration And Enforcement, John T. Chadwell

Michigan Law Review

The importance of the nation's antitrust policy requires that administration and enforcement powers and techniques be equal to the huge task of effectively safeguarding competition. The recommendations of the Attorney General's Committee represent a statesmanlike effort to balance the need for effective enforcement with the need for the preservation of fairness and the conservation of time and resources in antitrust litigation. Some of the recommendations will undoubtedly engender heated controversy; others seem relatively uncontroversial.

Many individual topics are dealt with in the Report of the committee and space does not permit comment upon all of them. The following discussion is …

Carr: Federal Protection Of Civil Rights: Quest For A Sword, Michigan Law Review

Michigan Law Review

A Review of FEDERAL PROTECTION OF CIVIL RIGHTS: QUEST FOR A SWORD. By Robert K. Carr.

Preliminary Report On Observance And Enforcement Of Prohibition And The Report Supplemental Thereto, Edson R. Sunderland

Michigan Law Review

The Commission on Law Observance and Enforcement was organized on May 28, 1929. Within six months it issued a Preliminary Report on Observance and Enforcement of Prohibition, under date of November 21, 1929, and shortly thereafter issued a Report supplemental thereto.