Law Commons^™

Extraditing Mexican Nationals In The Fight Against International Narcotics Crimes, Joshua S. Spector

University of Michigan Journal of Law Reform

In recent years, Mexican narcotics trafficking has become a major threat to the security of the Americas. Mexican narco-traffickers have used their wealth and violence to corrupt political and judicial systems and avoid effective prosecution or penalty in Mexican courts. Historically, Mexico has refused to extradite its nationals in reliance on Mexican law prohibiting the extradition of nationals in all but "exceptional" cases. This Note argues that Mexico should take a step toward controlling the cross-border narcotics trade and recognize international drug trafficking as an "exceptional" crime. Upon recognizing narcotics crimes as "exceptional," Mexico should then begin extraditing Mexican narco-traffickers …

The Electronic Media And The Flight From First Amendment Doctrine: Justice Breyer's New Balancing Approach, Jerome A. Barron

University of Michigan Journal of Law Reform

Contemporary First Amendment issues in cases involving the electronic media transcend traditional conflicts between the government and the speaker. The speaker is not easy to identify. Listeners, programmer and medium operators or distributors all have competing claims to First Amendment protection. To determine whose interests shall prevail, courts increasingly seek a methodology that accounts for these warring interests. Justice Breyer, along with Justice Souter and, in some respects, Justice Stevens, have been instrumental in reviving balancing as a First Amendment approach in these situations.

In two recent First Amendment cable television cases Turner Broadcasting System, Inc. v. FCC (Turner II) …

A Proposal To The Hanodaganyas To Decolonize Federal Indian Control Law, Robert B. Porter

University of Michigan Journal of Law Reform

In this Article, cast in the form of a letter to President William Jefferson Clinton, Professor Porter argues for the decolonization of federal Indian control law. After detailing the religious and colonialist roots of early Supreme Court decisions dealing with the Indian nations and giving an overview of the evolution of federal Indian policy, Professor Porter argues for the decolonization of federal Indian control law on several grounds: 1. the world community has rejected colonialism policies; 2. federal Indian control law denies basic human rights of self-determination; 3. colonization has partially succeeded in destroying the Indian nations; and 4. decolonization …

New German Telecommunications Act, The, Axel Spies, Jan F. Wrede

Michigan Telecommunications & Technology Law Review

In the wake of the debate in Germany on how to weather the storms against the "marketplace Germany" (Unternehmensstandort Deutschland) the new German Telecommunications Act ("TA") has been earmarked as a milestone. Its supporters hail the TA to spur competition in Germany's telecommunications market, which they expect to have a turnover of over DM 100 billion (app. US $66 billion) by the year 2000.... This article seeks to summarize the salient features of the TA and to outline the perspectives for potential foreign investors in the German telecommunications market as to the regulatory environment such investor will face. For this …

Jurisdiction In Cyberspace: A Theory Of International Spaces, Darrel C. Menthe

Michigan Telecommunications & Technology Law Review

Unfortunately, when the law confronts cyberspace the usual mode of analysis is analogy, asking not "What is cyberspace?" but "What is cyberspace like?" The answers are varied: a glorified telephone, a bookstore, a bulletin board. I propose that we look at cyberspace not in these prosaic terms, but rather through the lens of international law in order to give cyberspace meaning in our jurisprudence. The thesis of this paper is that there exists in international law a type of territory which I call "international space." Currently there are three such international spaces: Antarctica, outer space, and the high seas. For …

"Chilling" The Internet? Lessons From Fcc Regulation Of Radio Broadcasting , Thomas W. Hazlett, David W. Sosa

Michigan Telecommunications & Technology Law Review

Congress included the Communications Decency Act (CDA) in the Telecommunications Act signed into law on February 8, 1996. The bill seeks to outlaw the use of computers and phone lines to transmit "indecent" material with provisions of jail terms and heavy fines for violators. Proponents of the bill argue it is necessary to protect minors from undesirable speech on the Internet. The CDA was immediately challenged in court by the American Civil Liberties Union, and the special 3-judge federal panel established to hear the case recently declared the Act unconstitutional. Yet, its ultimate adjudication remains in doubt. Ominously, the federal …

Profits In Cyberspace: Should Newspaper And Magazine Publishers Pay Freelance Writers For Digital Content?, Rod Dixon Esq.

Michigan Telecommunications & Technology Law Review

It is remarkable how fast recent trends have driven an increasing number of publishers of magazines, newspapers, and other similar works to port the print version of their works to digital and electronic format in the form of online computer databases and multimedia CDROM technologies. Online computer databases and CD-ROM media can be exceptionally profitable ventures for publishers who convert a preexisting print work into a digital product. However, publishers' profits from digital media may be impaired if there is a question as to whether the publisher has satisfactorily secured the copyright to the material making up the digital media. …

What State Am I In?: Common Law Trademarks On The Internet , Brian L. Berlandi

Michigan Telecommunications & Technology Law Review

This essay explores the interaction between common law trademarks and the Internet--a relationship that has yet to be scrutinized by the intellectual property and Internet communities. More specifically, it strains to identify a common law mark's territorial zone of protection with respect to the Internet. This is an ambitious endeavor from the start, for there is no case law or published academic material available or directly on-point. As a result, this essay will not be a critique of judicial precedent or academic opinion. Instead, it offers a premonition of future case law and a foreshadowing of legal scenarios that might …

Law Of Nations In Cyberspace: Fashioning A Cause Of Action For The Supression Of Human Rights Reports On The Internet , Thomas Cochrane

Michigan Telecommunications & Technology Law Review

For nearly two decades, two U.S. statutes have provided redress to victims of human rights abuses: the Alien Tort Statute and the Torture Victim Protection Act. A handful of plaintiffs have recovered under these laws against foreign perpetrators of a narrow range of human rights violations. The growth and proliferation of communications technology raises important questions about how these statutes will be used in the future. Human rights activists have discovered that they can instantly communicate over the Internet with supporters and news media anywhere in the world. Repressive regimes have responded by attempting to restrict such communications. Could cutting …

Reply: Did The Fourteenth Amendment Repeal The First?, Jed Rubenfeld

Michigan Law Review

To get right to the point: Mr. Hacker does not disagree that the Establishment Clause would, in the absence of the Fourteenth Amendment, have prohibited Congress from passing a nationwide religion law like RFRA. He believes, however, that the Fourteenth Amendment has in part repealed the First. Of course, he doesn't want to say repealed. The language of repeal is not pleasant to the ears of those who would like to forget about First Amendment antidisestablishmentarianism. The Fourteenth Amendment did not "repeal any aspect of the text of the [Establishment] Clause," Hacker says, but only "change[d] profoundly the meaning of …

Race, Rights, And Remedies In Criminal Adjudication, Pamela S. Karlan

Michigan Law Review

Once upon a time, back before the Warren Court, criminal procedure and racial justice were adjacent hinterlands in constitutional law's empire. In 1954, the fifth edition of Dowling's constitutional law casebook contained one chapter on "procedural due process" in which six of the eight cases were about criminal justice, and three of those - Powell v. Alabama, Moore v. Dempsey, and Bailey v. Alabama - were as much about race as they were about crime. A few pages later, two slender chapters on the "national protection of civil rights" and "equal protection of the laws" contained seven and nine decisions, …

Recent Books, Michigan Law Review

Michigan Law Review

A list of books recently received by the Michigan Law Review.

Kahan On Mistakes, Daniel Yeager

Michigan Law Review

In Ignorance of Law Is an Excuse - but Only for the Virtuous, Professor Dan Kahan reconciles what I had thought was an irreconcilable body of law. To be sure, imposing order on whether and when mistakes of law should pass as responsibility-evading accounts of untoward actions is far from light work. Yet Kahan somehow pulls it off in just twenty-seven pages. In addition to acknowledging the importance of Professor Kahan's essay, I write here to point out if not correct what might have been two oversights in his view of the meaning and operation of mistakes. First, Kahan never …

Rush To Closure: Lessons Of The Tadić Judgment, Jose E. Alvarez

Michigan Law Review

In 1993 and 1994, following allegations of mass atrocities, including systematic killings, rapes, and other horrific forms of violence in Rwanda and the territories of the former Yugoslavia, two ad hoc international war crimes tribunals were established to prosecute individuals for grave violations of international humanitarian law, including genocide. As might be expected, advocates for the creation of these entities - the first international courts to prosecute individuals under international law since the trials at Nuremberg and Tokyo after World War II - aspired to grand goals inspired by, but extending far beyond, the pedestrian aims of ordinary criminal prosecutions. …

Reply: Is Ignorance Of Fact An Excuse Only For The Virtuous?, Dan M. Kahan

Michigan Law Review

Professor Yeager's thoughtful response to my essay has convinced me that there is indeed a connection worth noting between the mistake of law doctrine and the mistake of fact doctrine. Yeager suggests that my position on mistake of law reduces to the view that someone who would be guilty of a "lesser wrong" were things as he perceived them to be may be punished for the "greater wrong" that he actually commits - a conception of mistake of fact that has provoked fierce denunciation from commentators. But I would in fact put things slightly differently: under both doctrines courts excuse …

A Response To Professor Rubenfeld, Jonathan D. Hacker

Michigan Law Review

Professor Jed Rubenfeld has offered in these pages an ingenious explanation for why the Supreme Court was right to strike down the Religious Freedom Restoration Act (RFRA) in City of Boerne v. Flores. Rubenfeld finds in the First Amendment's Establishment Clause a historical and inherent principle he calls "antidisestablishmentarianism": a prohibition on acts of Congress that "disestablish" religion in the several states. Rubenfeld reads the Establishment Clause as proscribing not only congressional acts that "establish" religion but also all congressional acts that "dictate a position on religion for states," including laws designed to ensure that states abide by the requirements …

Criminal Procedure, Justice, Ethics, And Zeal, Darryl K. Brown

Michigan Law Review

William Stuntz's recent article, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, offers a series of thoughtful observations on the reasons that criminal procedure doctrines designed to protect defendants have done so little to improve the criminal justice system. Stuntz's article describes the unintended effects of attempts by the United States Supreme Court to improve criminal justice by closely regulating criminal procedure. That procedural focus has had perverse effects because, in a dynamic criminal justice system, other institutional players have responded to procedural rules in ways that undermine appellate courts' goals. Specifically, legislatures have reacted by expanding substantive criminal …

Food Stamp Trafficking: Why Small Groceries Need Judicial Protection From The Department Of Agriculture (And From Their Own Employees), Elliot Regenstein

Michigan Law Review

A neon sign in the window of 7-Van Drugs reads "Food Stamps," but the contradictory truth is posted inside on a handwritten sign taped to a thick pane of bulletproof plastic. 7-Van Drugs sits at the intersection of Seven Mile Road and Van Dyke in northern Detroit, where it has "serv[ ed] the community since 1948 at the same corner." Inside 7-Van is an array of staple foods and basic household cleaning items, and there is a small pharmacy in the back. Customers must use a turnstile to pass their purchases through the bulletproof plastic to the cashier. There are …

Police And Thieves, Rosanna Cavallaro

Michigan Law Review

What is it about New York City that has, in the last few years, spawned a series of books attacking the criminal justice system and describing a community in which victims' needs are compelling while the rights of the accused are an impediment to justice? Why does this apocalyptic vision of the system persist, despite statistics demonstrating the sharpest decline in the city's and the nation's crime rates in decades? What explains the acute detachment from the accused that is at the core of this series of books? In Virtual Justice: The Flawed Prosecution of Crime in America, Richard Uviller …

Guerrillas In Our Midst: The Assault On Radicals In American Law, Daria Roithmayr

Michigan Law Review

On October 9, 1997, radicals everywhere celebrated the thirtieth anniversary of the death of Che Guevara, the revered Cuban and South American rebel known as much for his guerrilla manifestos as for his scraggly facial hair and the black beret positioned slightly askance. At the same time Latin Americans and revolutionaries were marking the death of their beloved Che, Professors Daniel Farber and Suzanna Sherry were publishing their long-awaited book, Beyond All Reason: The Radical Assault on Truth in American Law. The professors' timing was, unintentionally, quite appropriate. Like many of Che's manifestos, the book sounds an ideological call to …

Public Choice Theory And The Fragmented Web Of The Contemporary Administrative State, Jim Rossi

Michigan Law Review

Since World War II, public choice theory - defined broadly as the application of the assumptions and methodology of microeconomics to describe or predict the way public officials exercise power - has grown from a fledgling movement, gaining mainstream acceptance and respect for its insights into voting behavior, judicial decisionmaking, and other public actions. Although a theory first explored by economists and political scientists, public choice's normative insights have earned credibility in recent years in academic legal literature. Public choice's acceptance in the law school curriculum is demonstrated by the recent publication of course material on the topic. However, despite …

Takeover: German Reunification Under A Magnifying Glass, Mathias Reimann

Michigan Law Review

My first personal experience with the unification of my home country was an unlikely encounter in an unlikely place. In July 1990, I was strolling across the Ponte Vecchio in Florence when I saw something so bizarre that it stopped me in my tracks. At the southern end of the bridge, deep in the pedestrian zone - off limits to automobiles - and right in the middle of the tourist crowd, was a lonely car, occupied by four obviously disoriented people. It was not just any car but a small, drab, and amusingly antiquated vehicle puffing bluish smoke from a …

Retroactive Trials And Justice, Stephan Landsman

Michigan Law Review

Seamus Heaney's moving words remind us that we live in an extraordinary time when, at sites of grave injustice ranging from the halls of government of Argentina and South Africa to the killing fields of Bosnia and Rwanda, "The longed-for tidal wave/Of justice can rise up,/And hope and history rhyme." Writers have attempted, in very different ways, to come to terms with the swelling of the tide of justice. For example, the philosopher Alan Rosenbaum, in a recent book about the prosecution of Nazi war criminals, argues that virtually every person implicated in the Nazis' genocidal assault on Europe's Jews …

An Outsider's View Of Common Law Evidence, Roger C. Park

Michigan Law Review

same line by a Newton. There have been improvements since Bentham's jeremiad. But Anglo-American evidence law is still puzzling. It rejects the common-sense principle of free proof in favor of a grotesque jumble of technicalities. It has the breathtaking aspiration of regulating inference by rule, causing it to exalt the foresight of remote rulemakers over the wisdom of on-the-spot adjudicators. It departs from tried-and-true practices of rational inquiry, as when it prohibits courts from using categories of evidence that are freely used both in everyday life and in the highest affairs of state. Sometimes it seems to fear dim light …

Review Of What Are Freedoms For?, By John H. Garvey, Scott D. Pomfret

Michigan Law Review

In 1988, Jeffrey Kendall and Barbara Zeitler Kendall were married. Though Jeffrey was Catholic at the time and Barbara was Jewish, the couple agreed to raise their children in Barbara's faith. In 1991, Jeffrey joined Boston Church of Christ, a fundamentalist Christian church. The tenets of that faith include a belief that those who do not accept Jesus Christ are damned to Hell, where there will be "weeping and gnashing of teeth." Barbara's faith also underwent a change during the marriage: she became an Orthodox Jew. Citing irreconcilable differences, the Kendalls sought a divorce in November, 1994. Before their marriage …

Toward A Constitutional Kleptocracy: Civil Forfeiture In America, Stephan B. Herpel

Michigan Law Review

Leonard Levy, the legal historian who has written a number of highly regarded historical studies on various provisions of the United States Constitution, has added to his impressive oeuvre a new study of civil and criminal forfeiture. A License to Steal brings together a discussion of English legal history, a review of a number of Nineteenth Century and late Twentieth Century Supreme Court forfeiture decisions, accounts of actual applications of civil and criminal forfeiture, and a summary and critique of legislative proposals that have been made for reform of the civil forfeiture provisions of the federal drug statute. There is …

The Book Review Issue: An Owner's Guide, Carl E. Schneider

Michigan Law Review

Law reviews have short memories. Other institutions count on long-term managers and well-kept files to preserve the experience of the past. But there is no remembrance of things past in an institution whose officers serve - fileless and frantic - for a single year. I want to use the opportunity this volume's editors have kindly given me to contribute to the Michigan Law Review's institutional memory. Editors past, present, and future may be curious about when and why the book review issue was conceived and born. I will briefly tell that story. More significantly, however, I want to relate the …

"We The People" And Our Enduring Values, Susan Bandes

Michigan Law Review

Akhil Amar chides legal scholars for believing that the current system of criminal procedure, both substantive and remedial, is constitutionally compelled. He writes, "Scholars should know better, but too few of those who write in criminal procedure do serious, sustained scholarship in constitutional law generally, or in fields like federal jurisdiction and remedies" (p. 115). Amar believes, as I do, that criminal procedure has been impoverished by its failure to connect to "larger themes of constitutional, remedial and jurisdictional theory" (p. 115). But as one who has done serious, sustained scholarship in all the areas Amar mentions - or so …

Did Military Justice Fail Or Prevail?, Robinson O. Everett

Michigan Law Review

The subject of war crimes is now receiving significant attention. On March 13, 1998, the United States Senate, by a vote of 93-0, adopted a resolution urging the President to call on the- United Nations to create a tribunal to indict and try Saddam Hussein for his "crimes against humanity." In the recent past, United Nations tribunals have tried crimes against humanity perpetrated in the former Yugoslavia and in Rwanda. With Administration backing, Congress has also recently enacted legislation intended to confer jurisdiction on the federal district courts to try certain war crimes of which American nationals are perpetrators or …

The Color Line Of Punishment, Jerome H. Skolnick

Michigan Law Review

If "the color line," (in W.E.B. Du Bois's 1903 phrase and prophecy) was to be the twentieth century's greatest challenge for the domestic life and public policy of the United States, the law has had much to do with drawing its shape. No surprise, this. By now, legal theorists accept that law does not advance in preordained fashion, immune from the sway of political interest, belief systems and social structure. Still, it is hard to exaggerate how powerfully the law has shaped the life chances of Americans of African heritage, for good or ill, and in ways that we scarcely …