Digital Commons Network^™

Children Of A Lesser God: Gdr Lawyers In Post-Socialist Germany, Inga Markovits

Michigan Law Review

In this essay, I want to investigate German vetting policies by looking at one particular subgroup of examinees: GDR lawyers. In Germany, no other former socialist elite has been submitted to so thorough an ideological cleansing process as the legal profession. After reunification, all GDR judges and prosecutors hoping to remain in office had to undergo investigations that by March 1994 had left only 9.2% of their former numbers in permanent positions. Virtually all East German law professors were removed from their university posts. More than 5000 attorneys in Germany's eastern half are currently being examined for former contacts with …

When Discretion Leads To Distortion: Recognizing Pre-Arrest Sentence-Manipulation Claims Under The Federal Sentencing Guidelines, Jeffrey L. Fisher

Michigan Law Review

This Note argues that sentence manipulation should be a legally viable partial defense - a defense that does not warrant complete exoneration, but does warrant a reduced sentence when the government's investigative techniques place a quantity of drugs before the court that overrepresents the defendant's culpability, or individual blameworthiness. Part I describes the policies and objectives that underlie the Guidelines, but then demonstrates how the rigid application of quantity-based sentencing provisions can lead to sentence manipulation that thwarts these goals, particularly the goal of sentencing according to culpability. Part II describes how courts have responded to sentence manipulation claims. It …

The Chaotic Pseudotext, Paul F. Campos

Michigan Law Review

This article tries to get away from the traditionally epistemological (and instrumental, and normative) focus of the case method. In what follows, I will introduce two interrelated ideas designed to elucidate the problematic nature of contemporary legal interpretation: the concept of law as a chaotic discourse, and the problem of the legal pseudotext. These ideas will be presented and explored while we undertake a close reading of an appellate court opinion; however, the purpose of this reading is not the traditional one of attempting to determine if the case · is "correctly decided." Rather we will consider various questions that …

Recent Books, Michigan Law Review

Michigan Law Review

A List of Books Received by Michigan Law Review.

Gossip And Metaphysics: The Personal Turn In Jurisprudential Writing, Michael Ansaldi

Michigan Law Review

A Review of Neil Duxbury, Patterns of American Jurisprudence and John Henry Schlegel American Legal Realism and Empirical Social Science

Whose Justice? Which Victims?, Lynne Henderson

Michigan Law Review

A Review of George Fletcher, With Justice for Some: Victim's Rights in Criminal Trials

David Shapiro's Adversary Statement On Federalism, Patrick E. Higginbotham

Michigan Law Review

A Review of David L. Shapiro, Federalism: A Dialogue

Benign Neglect* Of Racism In The Criminal Justice System, Angela J. Davis

Michigan Law Review

A Review of Michael Tonry, Malign Neglect: Race, Crime, and Punishment in America

Words That Bind: Judicial Review And The Grounds Of Modern Constitutional Theory, John A. Drennan

Michigan Law Review

A Review of John Arthur, Words That Bind: Judicial Review and the Grounds of Modern Constitutional Theory

The Concept Of Law Revisited, Leslie Green

Michigan Law Review

A Review of H.L.A. Hart, The Concept of Law Second Edition

Dream Makers: Black Judges On Justice, Julian Abele Cook Jr.

Michigan Law Review

A Review of Linn Washington, Black Judges on Justice

Why Is This Man A Moderate?, Richard A. Epstein

Michigan Law Review

A Review of William A. Fischel, Regulatory Takings: Law, Economics, and Politics

Searching For Positivism, Philip Soper

Michigan Law Review

A Review of W.J. Waluchow, Inclusive Legal Positivism

Context And Legitimacy In Federal Indian Law, Philip P. Frickey

Michigan Law Review

A Review of Frank Pommersheim, Braid of Feathers: American Indian Law and Contemporary Tribal Life

Measuring Poverty: A New Approach, Benjamin Hoorn Barton

Michigan Law Review

A Review of Measuring Poverty: A New Approach by The National Research Council.

All The Company Of Heaven, Milner S. Ball

Michigan Law Review

A Review of Joseph Vining, From Newton's Sleep

Overcoming Posner, Gerard V. Bradley

Michigan Law Review

A Review of Richard A. Posner, Overcoming Law

Stories About Property, William W. Fisher Iii

Michigan Law Review

A Review of Carol M. Rose, Property and Persuasion: Essays on the History, Theory, and Rhetoric of Ownership

An "Age Of [Im]Possibility": Rhetoric, Welfare Reform, And Poverty, Lisa A. Crooms

Michigan Law Review

A Review of Joel F. Handler, The Poverty of Welfare Reform and Mark Robert Rank, Living on the Edge: The Realities of Welfare in America

The Rooster's Egg: On The Persistence Of Prejudice, Elise M. Bruhl

Michigan Law Review

A Review of Patricia J. Williams, The Roosters' Egg: On the Persistence of Prejudice

Statutory Interpretation And The Idea Of Progress, Daniel A. Farber

Michigan Law Review

A Review of William N. Eskridge, Dynamic Statutory Interpretation

The Quest For Enabling Metaphors For Law And Lawyering In The Information Agae, Pamela Samuelson

Michigan Law Review

A Review of James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Society and M. Ethan Katsh, Law in a Digital World

Rhetoric And Reality In Copyright Law, Stewart E. Sterk

Michigan Law Review

My first objective in this article is to explore the gulf between copyright rhetoric and copyright reality. After examining copyright rhetoric, the article demonstrates how neither the need to generate creative activity nor the desire to reward deserving authors provides a plausible justification for current copyright doctrine.

Why, then, does copyright doctrine continue to expand? The concluding section suggests some answers. Interest-group politics provides an obvious answer and one well-substantiated by the history of copyright legislation. But the story does not end with interest-group politics. Instead, I suggest that the nation's elite, including its lawmakers, has a stake in believing …

The Copyright Act Of 1976 And Prejudgment Interest, Jon M. Powers

Michigan Law Review

This Note argues that prejudgment interest should be presumptively available on damages-plus-profits awards under section 504(b) but should not be available for statutory damages under section 504(c). Part I argues that Supreme Court precedent suggests that the explicit reference to interest found in the Patent Act does not prevent courts from awarding prejudgment interest under the 1976 Copyright Act. Part II asserts that the 1976 Copyright Act's silence regarding prejudgment interest does not represent a congressional choice to exclude this remedy and that, in the face of this silence, the underlying purposes of section 504 should determine the propriety of …

One Bite At The Apple: Reversals Of Convictions Tainted By Prosecutorial Misconduct And The Ban On Double Jeopardy, Rick A. Bierschbach

Michigan Law Review

This Note argues that the Double Jeopardy Clause bars retrial after reversals of convictions tainted by prosecutorial misconduct in the submission of evidence when two conditions are met: (1) the prosecutor intentionally introduced tainted evidence, and (2) excluding the tainted evidence would have left insufficient evidence at trial to support the defendant's conviction. This Note contends that this limited extension of double jeopardy protection is both mandated by the policies underlying the Double Jeopardy Clause and consistent with existing double jeopardy jurisprudence.

Are Threats Always "Violent" Crimes?, Jeremy D. Feinstein

Michigan Law Review

This Note argues that because the generally accepted legal meaning of violence is the use - or the risk of the use - of physical force so as to injure, damage, or abuse, threats only should be considered violent if they involve a risk of the use of physical force. Part I examines the substantive law of threats to determine if they inherently involve a risk of the use of physical force, and concludes that they do not. Part II studies the meaning of the term violence, and argues that both courts and dictionaries understand the term to mean the …

When It’S Ok To Sell The Monet: A Trustee-Fiduciary-Duty Framework For Analyzing The Deaccessioning Of Art To Meet Museum Operating Expenses, Jennifer L. White

Michigan Law Review

Contrary to the view adopted by current codes of ethics, this Note argues that courts should approve a museum director's use of proceeds from the sale of deaccessioned art to meet operating expenses if the director's conduct comports with the duties of trustees under the law of trusts. Part I explores possible organizational structures for museums, including the charitable trust and the nonprofit corporation. Part I also compares the fiduciary duties of museum managers under trust and corporate law. Part II argues that courts should apply trust-law principles both to trustees of charitable trusts and directors of charitable corporations26 because …

Vote Dilution And The Census Undercount: A State-By-State Remedy, Christopher M. Taylor

Michigan Law Review

This Note argues that groups seeking to correct underrepresentation caused by the differential undercount do not have standing to sue the Secretary of Commerce but that they can sue their state governments in an effort to force them to use the best population data available in the construction of congressional districts. Part I details the deeply rooted character of the differential undercount, describes statistical means that could have been employed to adjust the 1990 census, and demonstrates that the adjusted count surpasses the official census as an accurate representation of the true population. Part II examines recent litigation that has …

Petty Offenses, Serious Consequences: Multiple Petty Offenses And The Sixth Amendment Right To Jury Trial, Jeff E. Butler

Michigan Law Review

In Blanton v. City of North Las Vegas, the Supreme Court set forth the definitive standard for distinguishing petty offenses from serious crimes.7 The benchmark used by the Court is the maximum prison term assigned to each offense by the legislature. Where the penalty exceeds six months' imprisonment, the offense is serious enough to trigger the right to jury trial. Where the penalty is six months' imprisonment or less, there is a strong presumption that the offense is petty; therefore, a defendant accused of that offense has no Sixth Amendment right to jury trial.

This Note argues that a criminal …

"A Government Of Limited And Enumerated Powers": In Defense Of United States V. Lopez, Steven G. Calabresi

Michigan Law Review

The Supreme Court's recent decision in United States v. Lopez marks a revolutionary and long overdue revival of the doctrine that the federal government is one of limited and enumerated powers. After being "asleep at the constitutional switch" for more than fifty years, the Court's decision to invalidate an Act of Congress on the ground that it exceeded the commerce power must be recognized as an extraordinary event. Even if Lopez produces no progeny and is soon overruled, the opinion has shattered forever the notion that, after fifty years of Commerce Clause precedent, we can never go back to the …