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Vol. 35, No. 12, December 3, 1986, University Of Michigan Law School

Res Gestae

•Seligman Accepts Offer at Law School •Administration Evicts Res Gestae From Office •RG Prints Its Last ...For the Semester •Gender Concerns Shouldn't Contort our Language •U-M Hoopsters Haven't Got it This Year •New Professor Hired •Fifty Ways to Leave your Textbook •Law In The Raw

Dangerousness And Criminal Justice, Franklin E. Zimring, Gordon Hawkins

Michigan Law Review

The first section of this paper surveys some recent writings on the topic of dangerousness for major inconsistencies, which we regard as illuminating the special problem of dangerousness in the jurisprudence of criminal sentencing.

The second section describes the "special problem of dangerousness," for, we believe, the first time. The special problem is the fear that any admission of calculations of dangerousness into sentencing decisions will lead to an overuse of dangerousness, which may be worse than the inefficiencies and hypocrisies we confront when denying that future dangerousness is relevant to decisions about prisons.

The third section attempts to reorganize …

Francis A. Allen, Terrance Sandalow

Articles

Writing a brief tribute to Frank Allen, a man I admire as much as any I have known, should have been easy and pleasurable. It has proved to be very difficult. The initial difficulty is the occasion for the tribute. Frank's decision to take early retirement from the University and to resettle in a warmer climate deprives the Sandalows of frequent contact with two of our favorite people. The act of writing requires an acceptance of that loss that I have not yet achieved. A second difficulty is that Frank has been an important influence in my life for thirty …

The Rise And Fall Of The "Doctrine" Of Separation Of Powers, Philip B. Kurland

Michigan Law Review

As the Constitution of the United States nears its two hundredth anniversary, there is a frenzy of celebration. However awesome the accomplishment, I submit that it is no slander to recognize that the 1787 document was born of prudent compromise rather than principle, that it derived more from experience than from doctrine, and that it was received with an ambivalence in no small part attributable to its ambiguities. Indeed, its most stalwart supporters doubted its capacity for a long life. It should not be surprising, then, that even today there is disagreement over whether the Constitution of 1787 is now …

Francis A. Allen: Resolution Of The Board Of Regents Of The University Of Michigan, The Board Of Regents Of The University Of Michigan

Michigan Law Review

Francis Allen has had a long and distinguished career, rich with service to his students, to the academic community, and to the nation. In grateful recognition of his many contributions while a member of the University faculty, the Regents salute this distinguished scholar and educator by naming him Edson R. Sunderland Professor of Law Emeritus.

What Frank Allen Teaches, Robert A. Burt

Michigan Law Review

A tribute to Francis A. Allen

E.F. Hutton Goes South, Franklin E. Zimring

Michigan Law Review

A tribute to Francis A. Allen

Francis A. Allen --An Appreciation, Sanford H. Kadish

Michigan Law Review

A tribute to Francis A. Allen

Francis A. Allen, Norval Morris

Michigan Law Review

A tribute to Francis A. Allen

Being Frank About The Fourth: On Allen's "Process Of 'Factualization' In The Search And Seizure Cases", Wayne R. Lafave

Michigan Law Review

An invitation to participate in a special issue for such an inestimable personage as Francis Allen is itself a distinct honor - so much so, in fact, that refusal seems out of the question no matter what risks may attend this undertaking. The principal risk, as I see it, is that if one's contribution were to be assessed by a reader who, by virtue of this collection of essays, was also reflecting upon the writings of Allen, one is bound to come out the loser in any comparison. But I assume this risk, as substantial as it doubtless is in …

Francis A. Allen: 'Confront[Ing] The Most Explosive Problems' And 'Plumbing All Issues To Their Full Depth Without Fear Or Prejudice', Yale Kamisar

Articles

Frank Allen began his distinguished teaching career more than thirty-five years ago - at a time when, at more law schools than we like to remember, "the basic criminal law course was routinely assigned to the youngest and most vulnerable member of the faculty or to that colleague suspected of mild brain damage and hence incompetent to deal with courses that really matter."' That those of us who taught criminal law years later were warmly received by our colleagues is in no small measure a tribute to the quality of mind and character and intellectual energy of people like Allen, …

Francis A. Allen -- Selected Bibliography, Michigan Law Review

Michigan Law Review

A Selected Bibliography of Francis A. Allen's works.

Change In The Availability Of Federal Habeas Corpus: Its Significance For State Prisoners And State Correctional Programs, Franklin J. Remington

Michigan Law Review

Expressions of dissatisfaction with state prisoner use of federal writs of habeas corpus continue. Recently Attorney General Meese was reported as telling the Judicial Conference of the Seventh Circuit: "[M]ost of the writs filed today were frivolous 'recreational activities' [by inmates whom he referred to as 'lawyers in penitentiaries'] designed to harass federal authorities." Referring to the Reagan administration's proposal pending in the United States Senate to restrict habeas corpus, Mr. Meese said the bill "would preserve the great writ for appropriate cases."

Repeated, but as yet unsuccessful, efforts have been made in the Congress to narrow the scope of …

Preventative Pretrial Detention And The Failure Of Interest-Balancing Approaches To Due Process, Albert W. Alschuler

Michigan Law Review

This article, echoing Highmore's treatise of 1783, maintains that neither a legitimate nor a very important governmental interest can justify preventive detention in the absence of significant proof of past wrongdoing or an inability to control one's behavior. Both the Supreme Court's neglect of this issue and Congress' similar neglect in the preventive detention provisions of the Federal Bail Reform Act of 1984 reveal the extent to which cost-benefit analysis has captured American law and threatened core concepts of individual dignity.

The article does not oppose all forms of preventive pretrial detention. To the contrary, it recognizes that the detention …

Vol. 35, No. 11, November 19, 1986, University Of Michigan Law School

Res Gestae

•Fried Defends Role of Solicitor General's Office •Schauer Explains Porn Commission Report •Loan Forgiveness Plan Adopted •Senate Limits Undergrad Access to Bar •Dropping Like Flies •Dean Search Info Released •Eklund: Ethics Required •Electoral College Defended •Rozen Attacks ''Review'' Article •Constitution Wished Away •DeRoy Fellow Fried Criticizes Roe •Public Interest Work Earns Loan Forgiveness • Porn Commission Discussed •Report's Treatment Discouraging •Diversions •Interviewing Play: A Farce or Tragedy? •Law In The Raw

Vol. 35, No. 10, November 12, 1986, University Of Michigan Law School

Res Gestae

•U-M Law Student Wins Big On Jeopardy •Michigan SFF Helps Found, Fund National •Senate Amends Budget Guidelines •More Help •1L Disagrees with RG's Revelations •Liberal Bench: Easy Target •National SFF is Created •Straight From the Pumpkin's Mouth •Law In The Raw

Vol. 35, No. 9, November 5, 1986, University Of Michigan Law School

Res Gestae

•Secret Society Thrives at Law School •Line Budget Proposal Draws Fire •Derelict in Duty to Students •To Have & Have Not •ACLU Defends Admissions Revelation •Needed: an Rx for Ethical Deficiency among Michigan Law Students •Typical Classes Don't Teach Ethics •Diversions

History Against Free Speech: The New German Law Against The "Auschwitz" -- And Other -- "Lies", Eric Stein

Michigan Law Review

An American observer would expect the central issue in the public debate to be the conflict between the constitutionally protected values of individual freedom of expression on the one hand and public security and personal honor on the other. This, however, has not been the case. To the contrary, the constitutional issue has played a marginal role in the legislative process, and it has been resolved by the courts with obvious ease in favor of the constitutionality of the previous legislation on the same general subject. There is every reason to believe that the new law will also be upheld, …

The Bfoq Defense In Adea Suits: The Scope Of "Duties Of The Job", Robert L. Fischman

Michigan Law Review

This Note examines these three possible interpretations of which job characteristics a court must examine when determining the validity of a BFOQ defense to an ADEA suit and concludes that the Eighth Circuit's standard is correct. Because disputes over which interpretation is proper arise almost exclusively in cases involving public safety occupations, this Note discusses the standards for measuring that scope within the framework of the policy considerations associated with public safety. Part I of this Note discusses the three current standards used to determine the scope of the BFOQ defense. Part II illuminates the problems inherent in having three …

Federal Venue Under Section1392(A): The Problem Of The Multidistrict Defendant, Brent E. Johnson

Michigan Law Review

This Note argues that a broad construction of section 1392(a) which would allow Aunt Bea to bring suit in the Southern District of California where Mayberry alone resides is preferable to a narrow construction which would restrict Bea to the Northern District where both defendants reside. Part I of this Note maintains that the language of section 1392(a) is ambiguous and does not indicate the clear intent of Congress, despite assertions to the contrary by proponents of both the broad and narrow constructions of the statute. Part II demonstrates that a superficially relevant Supreme Court decision tending to support the …

Government Responsibility For Constitutional Torts, Christina B. Whitman

Articles

This essay is about the language used to decide when governments should be held responsible for constitutional torts.' Debate about what is required of government officials, and what is required of government itself, is scarcely new. What is new, at least to American jurisprudence, is litigation against government units (rather than government officials) for constitutional injuries. 2 The extension of liability to institutional defendants introduces special problems for the language of responsibility. In a suit against an individual official it is easy to describe the wrong as the consequence of individual behavior that is inconsistent with community norms; the language …

Posner On Literature, L. H. Larue

Michigan Law Review

Judge Richard A. Posner has expanded the scope of his writing. We have previously known him as one of the leaders in law and economics. He is now moving into the field of law and literature. His offering is an article, Law and Literature: A Relation Reargued, which has been published in the Virginia Law Review.

As one might expect, he performs intelligently. Posner is well read in literature; he displays a genuine love for that which he has read; and he writes with wit and grace. In short, in law and literature, as in law and economics, Posner …

Vol. 35, No. 8, October 29, 1986, University Of Michigan Law School

Res Gestae

•Berger Accuses U-M Faculty of Brainwashing •Justice Archer Calls for Courtroom Cameras •Child Advocacy Clinic Celebrates Tenth Year •Senators Blast RG Article •Second-Guessing Senators •RG Irresponsible at Best •12 Journal Dropouts an Aberration •The Death of a Treaty •Notices •Kinoy calls Meese a Threat to Liberty •Crossword •The Ghost of Christmas Passed •Happy Haunting in Hutchins Hall •Law in the Raw

Vol. 35, No. 7, October 22, 1986, University Of Michigan Law School

Res Gestae

•Confidential Admissions Data Revealed •No Progress on Dean Search Committee •Court Candidate Kaufman Criticizes Competitor •Publication Dropouts •Feds' Answer Unsatisfactory •ELS Concerned About Sax Replacement •Courtade Blasts Senate Critics •Senators Clash over Phones, Procedure •The Admissions Year in Means and Medians •Archer To Visit •Diversions •Interviewing Season: A View to a Kill •Law in the Raw

Vol. 35, No. 6, October 15, 1986, University Of Michigan Law School

Res Gestae

•ACLU & Feds Look to the Left, Right •Former Football Player Tackles Law School •Recycling Comes to Quad •Dancing in the Dark •Radicals and Liberals are Different Animals •Basement Groups Phone Horne? •Leiter Offers Cites to Critics •Koochie Koochie: Dream Dean Picked •Crossword •Notices •Diversions •Law In The Raw

Vol. 35, No. 5, October 8, 1986, University Of Michigan Law School

Res Gestae

•Alaska Law Lures Michigan Summer Associates •Moot Court Kicks Off •Senate Cuts Off Basement Groups' Phone Cash •No BYO •Leiter's Arguments Condemned •Rozen Condemns Heckler's Veto •Senate Tightens Control Over Budget •Notices •Warning! Blue Velvet is Strong Stuff •Diversions •Movies & Law; a 'Dirty' Business •Bright Fluorescent Lights, Big Classroom •Law In The Raw

Introduction, Winn Newman

University of Michigan Journal of Law Reform

This Symposium helps to explain that "comparable worth" is merely a euphemism for garden variety discrimination that violates express prohibitions of federal antidiscrimination law and severely limits job-related opportunities and benefits for women and minorities. Hopefully, the message of this Symposium will not be lost on reasonable people: that wage discrimination is unlawful and that our energies must now be turned to developing effective means for eliminating it.

Tribal Court Jurisdiction Over Civil Disputes Involving Non-Indians: An Assessment Of National Farmers Union Insurance Cos. V. Crow Tribe Of Indians And A Proposal For Reform, Allison M. Dussias

University of Michigan Journal of Law Reform

This Note examines the issue of tribal court jurisdiction over cases in which both Indians and non-Indians are parties and discusses the Supreme Court's most recent statement on the issue. In National Farmers Union Insurance Cos. v. Crow Tribe of Indians, an Indian minor brought a personal injury action in Crow Tribal Court against a Montana school district operating a school on state-owned land within the Crow Reservation. The Supreme Court concluded that the tribal court itself should first determine whether it has the power to exercise civil subject-matter jurisdiction over non-Indian property owners in a tort case. Defendants …

Abusing The Patient: Medicare Fraud And Abuse And Hospital-Physician Incentive Plans, Kathryn A. Krecke

University of Michigan Journal of Law Reform

Part I provides a background discussion of the PPS, DRGs, and incentive plans. Part II focuses on the fraud and abuse provisions of the Medicare statute and argues that incentive plans violate the plain language · of the statute, which prohibits any knowing and willful remuneration for the inducement of referrals. Part III concentrates on the fraudulent and abusive practices that incentive plans encourage. The plans frustrate legislative intent because they encourage practices that subvert the cost-containment purposes of the PPS and have an adverse effect on patient care.

Expanding The Scarcity Rationale: The Constitutionality Of Public Access Requirements In Cable Franchise Agreements, Debora L. Osgood

University of Michigan Journal of Law Reform

This Note argues that public access requirements should be upheld because they are constitutional and because they further the goals of the first amendment. As background for the debate over public access, Part I provides a brief description of cable television's history and regulation and discusses the case law concerning public access requirements. Part II examines the nature of the first amendment interests at stake in public access requirements. Before resolving the question of which interests should be protected, Part III argues that an expanded scarcity rationale should be used to justify cable regulation under the first amendment. Part IV …