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The Solicitor General And Intragovernmental Conflict, Michigan Law Review

Michigan Law Review

This Note considers the way in which the Solicitor General has resolved-and should resolve-such ambiguities in his role as advocate for the United States. First, the Note examines the accommodation of interests represented by the Solicitor General's responses to discordant obligations. Second, it analyzes the common law and statutory sources of the Solicitor General's responsibilities. Finally, the proper role of the Solicitor General is assessed, giving due consideration to his position .as mediator among interest groups within the government and to the institutional constraints to which he is subject.

The Integrity Of The Arbitral Process, Roger I. Abrams

Michigan Law Review

Over twenty years ago Dean Shulman and Professor Cox debated through the pages of the Harvard Law Review the question of the role law should play in labor arbitration. Shulman urged "that the law stay out," while Cox argued that courts would come to understand the special nature of the arbitration process and would accordingly limit the extent of judicial intervention. The impact of their discussion has, of course, been mooted by the numerous judicial decisions implanting private arbitration within the federal law of the collective agreement. From the Supreme Court has come a formidable legal superstructure for the labor …

The Nonpartisan Freedom Of Expression Of Public Employees, Michigan Law Review

Michigan Law Review

Governmental activities affect each of us in a myriad of ways. The government's role as employer may pale in comparison with the more glamorous activities of the government as national defender, law enforcer, and allocator of scarce resources. Yet the legal ramifications of public employment-where the public interest in efficient governmental operation often conflicts with the public employee's freedom-have a profound influence upon American society.

In 1968, the Supreme Court in Pickering v. Board of Education formulated a test designed to balance these interests in defining the scope of a public employee's freedom of expression. In examining the nonpartisan free …

Republicanism And The Law Of Inheritance In The American Revolutionary Era, Stanley N. Katz

Michigan Law Review

This Article deals with the history of the law of inheritance during the era of the American Revolution, but its focus is actually more general, for it ultimately seeks to determine what sort of revolution we experienced. For the historian the problem is quite familiar, but a few observations seem pertinent. It is at least possible to argue that our colonial forefathers were not waging a revolution at all. Rather, one might say they were fighting what we should now call a colonial war of independence in which the overriding issue was "home rule." On this hypothesis, the main slogan …

The Restoration Of In Re Winship: A Comment On Burdens Of Persuasion In Criminal Cases After Patterson V. New York, Ronald J. Allen

Michigan Law Review

At the conclusion of its last term, the Supreme Court rendered what should have been a most unremarkable decision. In Patterson v. New York, the Court upheld New York's affirmative defense of extreme emotional disturbance, which requires a defendant who seeks to reduce his offense from murder to manslaughter to prove by a preponderance of the evidence that he acted under extreme emotional disturbance. Had the case come before the Court seven years earlier, it could have been swiftly dispatched with a brief opinion upholding the New York statute on the grounds that the issue of extreme emotional disturbance …

Retirement Communities: The Nature And Enforceability Of Residential Segregation By Age, Mary Doyle

Michigan Law Review

Although age segregation in retirement communities can be established in a variety of ways, the Article focuses primarily on age-restrictive zoning ordinances, the method most directly involving governmental action. The Article first considers those persons adversely affected by age-restrictive retirement communities and suggests that potential plaintiffs may be divided into three classes-neighboring property owners whose land values are affected by the establishment of a retirement community, those excluded from such a community solely by virtue of ·their age, and those excluded or potentially excluded because of the age of persons with whom they choose to live. Next, the constitutional arguments …

Juvenile Curfew Ordinances And The Constitution, Michigan Law Review

Michigan Law Review

Recognizing that a legislature must decide whether to enact a juvenile curfew without the benefit of conclusive data on the effectiveness of such laws, the remainder of this Note will focus primarily upon the constitutional issues raised by such ordinances. The freedom of movement that is limited by a curfew is, it will be argued, an unenumerated right protected by the ninth and fourteenth amendments. The constitutional rights of juveniles, however, -are not necessarily coextensive with those of adults. Certain characteristics of juveniles-in particular, their lesser capacity for reason and self-control-imply that the strength of their right to freedom of …

Reconsideration Of The Katz Expectation Of Privacy Test, Michigan Law Review

Michigan Law Review

This Note, by modifying certain aspects of the reasonable expectation of privacy test, offers a theory that attempts to identify the minimum content of the fourth amendment. In the first section, the Note examines the reasonable expectation of privacy test and considers whether it has been or can be applied in a manner that fails to protect the right to have certain minimum expectations of privacy. It analyzes both the "actual" and the "reasonable" expectation requirements, identifies weaknesses inherent in the current application of these requirements, and suggests certain ways in which they might be refined. In the second section, …

The Life And Times Of Boyd V. United States (1886-1976), Michigan Law Review

Michigan Law Review

In Boyd v. United States, the Supreme Court held that the fourth and fifth amendments create a zone of privacy encompassing an individual's person and property. The government, according to Boyd, cannot enter this zone, either by compelling an individual to testify against himself or by subpoenaing or seizing his books and papers for use as evidence against him in a criminal or quasi-criminal proceeding. The Court found an "intimate relation" between the two amendments such that the search and seizure of books and papers may be "unreasonable" even if conducted pursuant to a court order.

Over time, …

Books Received, Michigan Law Review

Michigan Law Review

A List of Books Received by Michigan Law Review

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 76, Issue 1 of Michigan Law Review

Periodical Index, Michigan Law Review

Michigan Law Review

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

Employing Inconsistent Statements For Impeachment And As Substantive Evidence: A Critical Review And Proposed Amendments Of Federal Rules Of Evidence 801 ( D ) ( 1 ) ( A ), 613, And 607, Michael H. Graham

Michigan Law Review

The Federal Rules of Evidence have already been employed as a model for the new Uniform Rules of Evidence and for several state codifications, and yet apparently none of the drafters of these schemes gave serious consideration either to expanding admissibility under 801(d)(1)(A) selectively or to controlling potential abuse regarding the use of prior inconsistent statements not substantively admissible. This Article, after exploring the history, development, and rationale of rules 801(d)(1)(A), 613, and 607, proposes that rules 613 and 607 be amended to bring their provisions into conformity with rule 801 (d) (1) (A). In the same vein, the Article …

Conflicts Of Interest And The Changing Concept Of Marriage: The Congressional Compromise, Michigan Law Review

Michigan Law Review

The number of women, including married women, seeking prominent positions in American business and government has increased rapidly in recent years, and this development raises serious questions regarding potential conflicts of interest between spouses who work either in related areas of the public and private sectors or solely within the public sector. Specifically, when one spouse is a member of Congress, conflicts of interest can occur if the other spouse occupies a high-level position in private industry or in the executive branch of the government. This Note examines the potential dangers in these employment arrangements of members of Congress and …

A Reconsideration Of The Sworn Testimony Requirement: Securing Truth In The Twentieth Century, Michigan Law Review

Michigan Law Review

The purpose of this Note is relatively modest-to explore whether the traditional uncritical confidence placed in the sworn nature of testimony is justified in light of twentieth-century practice. As such, its intention is not to propose legal reforms, but rather to invite its readers to pause and reconsider a ritual too often taken for granted by the legal profession. To this end, this Note will examine the following factors influencing the character of the oath in modern times: the common-law and religious roots of the oath, the rise of nonreligious affirmation within the last century, the relationship between the oath …

The Power Of The Fcc To Regulate Newspaper-Broadcast Cross-Ownership: The Need For Congressional Clarification, Michigan Law Review

Michigan Law Review

The controversy surrounding the FCC's Second Report and . Order, its appeal, and the subsequent decision in NCCB raises basic questions concerning the statutory authority of the FCC to promulgate rules concerning newspaper-broadcast cross-ownership. This Note suggests that the FCC, notwithstanding judicial affirmation in NCCB of the Commission's authority to adopt such rules, might well be exercising more authority than Congress intended it to possess under the Communications Act of 1934. This Note therefore concludes that, irrespective of the merits of the Second Report and Order, Congress should reexamine and clarify the scope of the FCC's power in this regard.

Professional Discipline Of Solicitors In England, Michigan Law Review

Michigan Law Review

This Note begins with an examination of the disciplinary role of the Law Society, the solicitors' most important organization, and of the Society's attempt to prevent professional misconduct through regular financial audits and by providing advice to solicitors on questions of professional conduct and etiquette. It then describes the composition, function, and operation of the Disciplinary Tribunal, the statutorily created organization occupying the second level of the disciplinary system. Particular attention is directed toward recent statutory changes that provide for lay representation on the Tribunal. The Note concludes with a brief discussion of the appeals process and the procedures for …

Index, Michigan Law Review

Michigan Law Review

Contents of Volume 75: Subject Inde4x, Table of Cases, Articles, Authors, Book Reviews

Defamatory Opinions And The Restatement (Second) Of Torts, George C. Christie

Michigan Law Review

This Article will focus on one important aspect of the Institute's work: the question of whether opinion, including ridicule, can be an independent basis of an action for defamation. Before undertaking that inquiry, however, some basic concepts regarding defamatory opinions must be understood. First, a statement of opinion can, of course, often be reasonably construed to imply the existence of facts that would justify the opinion. If a direct statement of those facts would be defamatory, then the statement of an opinion that implies the existence of those false facts would be defamatory and capable of supporting an action for …

Periodical Index, Michigan Law Review

Michigan Law Review

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

State Taxation And The Supreme Court: Toward A More Unified Approach To Constitutional Adjudication?, Walter Hellerstein

Michigan Law Review

The first section of this Article examines three recent cases, each addressed to a different constitutional limitation on the scope of state tax power, that may be read as signifying a new approach: Michelin Tire Corp. v. Wages, which concerned the import-export clause; United States v. County of Fresno, which concerned the supremacy clause; and Complete Auto Transit, Inc. v. Brady, which concerned the commerce clause. Section II considers the implications of these decisions and explores -the possibility that they share an underlying doctrinal unity.

Rule 10b-6: Options Trading By Participants In A Distribution, Michigan Law Review

Michigan Law Review

After briefly discussing the history of options trading, this Note argues that where participants in a distribution trade options, the potential for abuse is sufficient to warrant regulation of this activity. It then evaluates existing statutes and SEC rules that seek to prevent similar abuses and concludes that language in some of these provisions -- particularly rule 10b-6 -- can be construed to prohibit participants in a distribution from engaging in certain put and call transactions that might manipulate the price of the security being distributed.

The Prosecutor's Duty To Present Exculpatory Evidence To An Indicting Grand Jury, Michigan Law Review

Michigan Law Review

This Note explores the implications of the stark procedural disparities between prosecution by information and prosecution by indictment in those states where both methods are used. It first examines the consequences to a defendant of a prosecutor's decision to seek an indictment rather than proceed by information, the reasons underlying the discretion given the prosecutor to choose between the two methods, and the potential for abuse of this discretionary power. It then considers several alternative approaches for minimizing this potential for abuse. After rejecting possible constitutional objections to the disparity between indictment and information procedures and application of the common-law …

Periodical Index, Michigan Law Review

Michigan Law Review

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

Books Received, Michigan Law Review

Michigan Law Review

A List of Books Received by Michigan Law Review

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 75, Issue 7 of Michigan Law Review

Central Problems Of American Criminal Justice, Francis A. Allen

Michigan Law Review

At periodic intervals during the present century the American "crime problem" has aroused agitated public discussion. At these times both publicists and ordinary citizens are likely to assume that the disturbing conditions have suddenly arisen and are wholly unlike anything experienced before. In considering the crime problem, the beginning of wisdom may lie in the discovery that this is a problem with a history. Crime and its control did not suddenly become significant in the late 1960s, at the end of World War II, or even with the launching of the prohibition experiment at the conclusion of the first great …