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Front Matter, Journal Of Law Reform

University of Michigan Journal of Law Reform

Front Matter for Volume 57, Issue 3 of Journal of Law Reform

The Complicit Canon Of Criminal Law: A Critical Survey Of Syllabi, Casebooks, And Supplemental Materials, Robin Peterson

University of Michigan Journal of Law Reform

This Note analyzes the learning objectives, casebook readings, and supplemental sources that thirteen criminal law professors assigned over fifteen years and argues that the current approach to teaching criminal law is complicit in perpetuating the injustices of the American criminal legal system because it fails to adequately interrogate the carceral state and does not prepare students to become ethical practitioners or policymakers of criminal law. This paper calls for a fundamental rethinking of the purpose of teaching criminal law and recommends a reform orientation, which could be implemented through a variety of course structures.

Crystalizing Community: “Communities Of Interest” And The 2020 Michigan Independent Citizens Redistricting Commission, Edward Webre Plaut, Elizabeth Powers

University of Michigan Journal of Law Reform

The Michigan Independent Citizens Redistricting Commission (MICRC) met for the first time in 2020 after it was created via ballot initiative in 2018. The MICRC included thirteen Michiganders tasked with drawing state house, senate, and congressional districts. The newly amended Michigan Constitution charged the MICRC with incorporating a new criterion previously unknown to Michigan redistricting: communities of interest. Communities of interest (COIs) have played a role in redistricting law across several states, gaining prominence after the Supreme Court’s landmark decision in Shaw v. Reno as an ostensibly race-neutral “traditional districting principle.” However, the concept is difficult to define. This Note …

Subsidizing The Microchip Race: The Expanding Use Of National Security Arguments In International Trade, Victoria Walker

University of Michigan Journal of Law Reform

In 2018, China, India, the European Union, Canada, Mexico, Norway, Russia, Switzerland, and Turkey lodged complaints with the World Trade Organization’s (WTO) Dispute Settlement Body (DSB) in the case of Certain Measures on Steel and Aluminium Products. Each State alleged that the United States had violated international trade law by imposing a series of aggressive tariffs on steel and aluminum imports. President Donald Trump’s administration responded to these allegations by claiming that its actions were permissible under Article XXI of the General Agreement on Tariffs and Trade (GATT); a long-standing exception built into the international trade law framework that …

Front Matter, Journal Of Law Reform

University of Michigan Journal of Law Reform

Front Matter for Volume 57, Issue 2 of Journal of Law Reform

Don’T Forget To Like, Follow, And Regulate: An Argument For The Expansion Of Protections For Child Social Media Influencers, Caroline Waldo

University of Michigan Journal of Law Reform

Child social media influencers, colloquially known as “kidfluencers,” have skyrocketed to fame alongside the growth of social media. However, traditional child labor laws do not consider online influencing “work” or these kids to be “child performers.” Thus, these children do not receive any form of legal protection for their presence online, leaving them open to exploitation and severe harms. This Note explores the lack of protection provided to kidfluencers, ultimately proposing a new federal labor law to expand child actor protections to kidfluencers. Part I of this Note provides a brief history of the landscape by reviewing landmark Supreme Court …

Achieving True Strict Product Liability (But Not For Plaintiffs With Fault), Luke Meier

University of Michigan Journal of Law Reform

Under modern tort law, the “strict” product liability cause of action does not impose true strict liability (liability without fault). This Article suggests that this counterintuitive development is not the byproduct of a policy choice. Instead, an unresolved doctrinal difficulty is responsible for the modern requirement that a plaintiff prove fault before winning on a “strict” product liability claim. The doctrinal difficulty is this: How can tort law impose liability on faultless product manufacturers while simultaneously preventing plaintiffs with fault from being able to recover under a true strict liability standard? This Article posits that both results are desirable—true strict …

Intentional Parenthood, Contingent Fetal Personhood, And The Right To Reproductive Self-Determination, Laura Hermer

University of Michigan Journal of Law Reform

This Article argues that intent should govern legal parenthood, regardless of the method of conception, the person’s biological or genetic relationship to the resulting embryo/fetus, or the person’s gender. This proposition is not new. This Article adds to scholarly discourse by extending the concept: Intent should not just determine parenthood, but also fetal rights. When a pregnant person establishes their procreational intent (or lack thereof) prior to birth, then both the existence (or lack thereof) of legal protections for the embryo/fetus and the gestator’s rights and duties (or lack thereof) should flow from this intent. Non-gestating gamete contributors would do …

Why Medical Error Is Killing You (And Everyone Else), Phoebe Jean-Pierre

University of Michigan Journal of Law Reform

In 2000, the infamous report To Err is Human rocked society with its focus on the pervasive danger of medical error. More than two decades later, medical error rates remain high and pose a consistent danger to patients. Today, medical error ranks as the fourth leading cause of death behind heart disease, cancer, and COVID-19. Medical error reflects the vulnerabilities of the healthcare process and may be diagnostic in nature. A large concern in responding to medical error is an overemphasis on blame and the idea that good physicians do not make mistakes. Our perspective on how to address medical …

Reimagining The Deduction For Employee Compensation, Daniel Schaffa

University of Michigan Journal of Law Reform

U.S. businesses pay trillions of dollars in employee compensation, a substantial fraction of which is deductible for tax purposes. This deduction reduces the taxable income of businesses, ultimately lowering business tax burdens by hundreds of billions of dollars. With a few exceptions, the tax code confers the same deduction to a business for every dollar of employee compensation, regardless of whether that compensation goes to an employee earning millions or an employee earning minimum wage. This is consistent with a pure Haig-Simons income tax, under which any business expense incurred ought to be deductible dollar-for-dollar. But many, if not most, …

It Takes A Thief…. And A Bank: Protecting Consumers From Fraud And Scams On P2p Payment Platforms, Cathy Lesser Mansfield

University of Michigan Journal of Law Reform

This Article proposes statutory and regulatory changes to the Electronic Fund Transfer Act; Regulation E; and the Bank Secrecy Act/Anti-Money Laundering regulations to protect consumers who use instant payment platforms in the United States (such as Zelle and Venmo) from scam artists and fraudsters. After discussing current fraud scams on these payment platforms, the Article discusses the history and context of the 1978 Electronic Fund Transfer Act and Regulation E, and the definition of unauthorized payments and payments made in error therein. The second part of this Article explores changes to the Bank Secrecy Act/Anti-Money Laundering regulations that might make …

Giving The Fourth Amendment Meaning: Creating An Adversarial Warrant Proceeding To Protect From Unreasonable Searches And Seizures, Ben Mordechai-Strongin

University of Michigan Journal of Law Reform

For at least the past 40 years, police and prosecutors have had free reign in conducting illegal searches and seizures nominally barred by the Fourth Amendment. The breadth of exceptions to the warrant requirement, the lax interpretation of probable cause, and especially the “good faith” doctrine announced in U.S. v. Leon have led to severe violations of privacy rights, trauma to those wrongly searched or seized, and a court system overburdened by police misconduct cases. Most scholars analyzing the issue agree that the rights guaranteed by the Fourth Amendment—to be free from unreasonable search and seizure—have been severely eroded or …

Front Matter, Journal Of Law Reform

University of Michigan Journal of Law Reform

Front Matter for Volume 56, Issue 3 of Journal of Law Reform

A System Out Of Balance: A Critical Analysis Of Philosophical Justifications For Copyright Law Through The Lenz Of Users' Rights, Mitchell Longan

University of Michigan Journal of Law Reform

Ultimately, this Article has three goals. The first is to offer an analysis of users’ rights under copyright law from four commonly used theoretical perspectives. These are labor, personality, economic and utilitarian theories. In doing so, this Article will demonstrate that the philosophies that underpin modern copyright law support a broad and liberal set of rights for derivative creativity. It will argue that current treatment of derivative works is unnecessarily conservative from a theoretical perspective. Second, this Article will demonstrate how, in spite of theory that supports a healthy community of derivative creativity, those who practice it have been further …

Answering The Call For Telephone Consumer Protection Act Reform: Effectuating Congressional Intent Within 47 U.S.C. § 227(B)(1)(A), Justice M. Hubbard

University of Michigan Journal of Law Reform

This Note analyzes the current state of the civil law surrounding the Telephone Consumer Protection Act (TCPA) and highlights a glaring flaw within the current practice of assigning liability to telephonic solicitors utilizing an automatic telephone dialing system (autodialer): solicitors can be subjected to liability even though their actions are not what Congress intended to prevent. Congress enacted the TCPA in response to unique consumer privacy and public safety concerns. For example, the use of an autodialer created a substantial likelihood that autodialers would call emergency services and could “seize” their telephone lines and prevent those lines from being utilized …

Nft For Eternity, Hadar Y. Jabotinsky, Michal Lavi

University of Michigan Journal of Law Reform

Non-fungible tokens (NFTs) are unique tokens stored on a digital ledger – the blockchain. They are meant to represent unique, non-interchangeable digital assets, as there is only one token with that exact data. Moreover, the information attached to the token cannot be altered as on a regular database. While copies of these digital items are available to all, NFTs are tracked on blockchains to provide the owner with proof of ownership. This possibility of buying and owning digital assets can be attractive to many individuals.

NFTs are presently at the stage of early adoption and their uses are expanding. In …

The Short Unhappy Life Of The Negotiation Class, Linda S. Mullenix

University of Michigan Journal of Law Reform

On September 11, 2019, Judge Dan Aaron Polster of the United States District Court for the Northern District of Ohio, Eastern Division, approved a novel negotiation class certification in the massive Opiate multidistrict litigation (MDL). Merely one year later on September 24, 2020, the Sixth Circuit reversed Judge Polster’s certification order. While the Opiate MDL has garnered substantial media and academic attention, less consideration has been directed to analyzing the significance of the negotiation class model and the appellate repudiation of this innovative procedural mechanism.

This Article focuses on the development and fate of the negotiation class and considers the …

The Securities Law Disclosure Conundrum For Publicly Traded Litigation Finance Companies, Robert F. Weber

University of Michigan Journal of Law Reform

The Article examines a peculiar legal dilemma—implicating securities law, legal ethics, and evidence law—that arises when litigation finance companies (LFCs) become public companies. LFCs provide funding to litigants and law firms for prosecuting lawsuits in exchange for a share of the lawsuit recoveries. In recent years, LFCs have significantly altered the landscape of the civil justice system in common law jurisdictions. But their assets, which are just rights to proceeds from lawsuits, are notoriously opaque— who really can predict what a jury will do when it comes to liability and damages? When LFCs go public, this opacity frustrates public investors’ …

Front Matter, Journal Of Law Reform

University of Michigan Journal of Law Reform

Front Matter for Volume 56, Issue 2 of Journal of Law Reform

Private Caregiver Presumption For Elder Caregivers, Raymond C. O’Brien

University of Michigan Journal of Law Reform

The percentage of older Americans increases each year, with a corresponding percentage increase of those considered the older old. Many older persons will develop chronic conditions, decreasing their ability to manage the activities of daily living and requiring many to move into assisted living facilities or group homes. When surveyed, a majority of people expressed that they wish to age in their own homes, and government programs are increasingly supportive of this option. This is a viable option for many if they have the assistance of private caregivers—who provide a vast array of support services—and essential person-to-person human contact during …

Why Do Corporations Merge And Why Should Law Care?, Chris Sagers

University of Michigan Journal of Law Reform

Mergers and acquisitions are extraordinarily prevalent in the United States, generating massive expenditures every year. However, a serious empirical puzzle lies at the heart of all that activity. That empirical phenomenon’s most remarkable feature by far is that even though it is well established in an extensive literature and implies far-reaching policy consequences, American law ignores it entirely.

Generations of researchers have failed to find evidence that merger and acquisition activity generates any lasting benefits for the combining firms’ owners or anyone else. No one seriously doubts that efficiencies of scale or technological integration are real or that acquisitions sometimes …

Former Whistleblowers: Why The False Claims Act's Anti-Retaliation Provision Should Protect Former Employees, Jim Stehlin

University of Michigan Journal of Law Reform

Since the Civil War, the False Claims Act has served as a tool to combat fraud perpetrated against the government. Early fraud by government contractors during the Civil War was quaint: contractors selling the same horse twice or filling a Union Army contract for sugar with sand. Today, the government recovers billions of dollars annually through actions under the FCA.

Essential to the FCA’s functioning are “relators,” private citizens who serve as whistleblowers incentivized to report fraud by receipt of a percentage of whatever amount the government recovers in damages. The government relies on relators to blow the whistle on …

Alone In The Lone Star State: How A Lack Of Centralized Public Defender Offices Fails Rural Indigent Defendants, Aiden Park

University of Michigan Journal of Law Reform

The criminal justice system is stacked against indigent defendants. The disadvantages indigent defendants face are exacerbated when mixed with the unique qualities of rural America.

For instance, rural court-assigned attorneys are often picked through ad hoc systems by the very judges these attorneys must appear in front of, creating a judicial conflict of interest. The financial realities of rural public defense work often force counsel to manage a private practice while also balancing court-appointed cases. To the extent integral resources like investigators or experts are present in rural spaces, they are seldom used. This Note highlights the way Texas organizes …

Pretext, Reality, And Verisimilitude: Truth-Seeking In The Supreme Court, Robert N. Weiner

University of Michigan Journal of Law Reform

The assault on truth in recent public discourse makes it especially important that judicial decisions about Executive actions reflect the world as it is. Judges should not assume some idealized reality where good faith prevails, the motives of public officials are above reproach, and administrative processes are presumptively regular. Unfortunately, however, the Supreme Court has acted on naïve or counterfactual assumptions that limit judicial review of administrative or Presidential action. Such intentional judicial blindness or suspension of justified disbelief—such lack of verisimilitude—can sow doubt regarding the Court’s candor and impartiality.

In analyzing the Court’s fealty to objective reality in its …

Inequitable By Design: The Patent Culture, Law, And Politics Behind Covid-19 Vaccine Global Access, Ximena Benavides

University of Michigan Journal of Law Reform

COVID-19 vaccine access has been highly inequitable worldwide, with coverage depending largely on a country’s wealth. By the end of 2021, 64.1% of people living in high-income countries had received at least one dose of the vaccine, compared to only 5.4% of those in low-income countries. Similarly, only high- and upper-middle-income countries had received the most effective vaccines.

The uneven distribution of these lifesaving vaccines is made complex due to the convergence of several factors, but it suggests that the extraordinary expanding and ossifying market and political power of a few vaccine manufacturers founded on intellectual property and complementary policies …

Front Matter, Journal Of Law Reform

University of Michigan Journal of Law Reform

Front Matter for Volume 57, Issue 1 of Journal of Law Reform

Policies For Expanding Hepatitis C Testing And Treatment In United States Prisons And Jails, Tessa Bialek, Dr. Matthew J. Akiyama M.D.

University of Michigan Journal of Law Reform

Hepatitis C virus (HCV) is highly prevalent in United States prisons and jails. In prisons and jails, rates of infection are ten to twenty times greater than national levels. And, more than thirty percent of all people living with HCV in the United States will spend time in prisons and jails in any given year. Rates are especially high among people who inject drugs (PWID), a population whose members are also likely to move between carceral settings and the community. Thus, addressing HCV among incarcerated populations would have a significant effect on the virus’s transmission both in and out of …

Modernizing Notice Of Breach Rules To Preserve Contract Remedies, Stephen Plass

University of Michigan Journal of Law Reform

Recently, the legal community has scrutinized the capacity of mandatory arbitration rules to deter or foreclose claims for breach of contract. But little attention has been paid to express and constructive notice of breach rules that are just as effective at foreclosing contractual remedies. While four-year statutes of limitations are typically viewed as the default cutoff time for breach of contract claims, contracting parties, particularly buyers of goods, must act much sooner to preserve their legal remedies. It is now common practice for sellers to require notice of breach within days or weeks of their performance as an express condition …

Did The Superbowl Ad Curse Heighten Defined Contribution Plan Fiduciary Duties?: Deciphering The Legal And Ethical Landscape Of Cryptocurrency Options In 401(K)S, Lauren K. Valastro

University of Michigan Journal of Law Reform

Regulating cryptocurrency’s place in America’s most popular retirement savings vehicle generates thorny legal, ethical, and social justice dilemmas. Too little regulation could hurt those at highest risk of underfunded retirement. Too much could exacerbate existing racial, ethnic, and gender inequities.

Though recent regulatory efforts suggest 401(k) administrators violate their fiduciary duty of care by offering cryptocurrency investment options to plan participants, the established fiduciary regime protects 401(k) plan participants from cryptocurrency risk while respecting their savings preferences. Yet, the current framework falls short of ethically and equitably serving all plan participants, particularly members of underserved communities— a problem largely unaddressed …

Hard Truths: Libel By Implication Doctrine And The Need For A Uniform Standard, Carly Ryan

University of Michigan Journal of Law Reform

Since the inception of the tort of libel, claims against the media have created a tension between the First Amendment’s commitment to a free press and the desire to prevent reputational harm to individuals. Further complicating the issue are cases in which plaintiffs allege that literally true statements are defamatory based on implications created through juxtapositions or omissions of facts. This is known as libel by implication, a tort currently governed by states through a patchwork of varying standards and interpretations. Not only does the lack of uniformity leave journalists without due notice of the law in the jurisdictions they …