Law Commons^™

Antitrust Antitextualism, Daniel A. Crane

Articles

Judges and scholars frequently describe antitrust as a common-law system predicated on open-textured statutes, but that description fails to capture a historically persistent phenomenon:judicial disregard of the plain meaning of the statutory texts and manifest purposes of Congress. This pattern of judicial nullification is not evenly distributed: when the courts have deviated from the plain meaning or congressional purpose, they have uniformly done so to limit the reach of antitrust liability or curtail the labor exemption to the benefit of industrial interests. This phenomenon cannot be explained solely or even primarily as a tug-of-war between a progressive Congress and conservative …

Shots Fired: Digging The Uniformed Services Employment And Reemployment Rights Act Out Of The Trenches Of Arbitration, Lisa Limb

Michigan Law Review

The Uniformed Services Employment and Reemployment Rights Act (USERRA) was enacted to protect servicemembers from discrimination by civilian employers and to provide servicemembers with reemployment rights. Recent circuit court decisions, however, have maimed these protections by ruling that mandatory arbitration is permissible under USERRA. This Note argues that such rulings conflict with USERRA’s plain language, statutory structure, and purpose. Ultimately, in light of strong public policy considerations, this Note contends that mandatory arbitration should not be permissible under USERRA and proposes that Congress amend the Act to explicitly prohibit arbitration.

More Than Birds: Developing A New Environmental Jurisprudence Through The Migratory Bird Treaty Act, Patrick G. Maroun

Michigan Law Review

This year marks the centennial of the Migratory Bird Treaty Act, one of the oldest environmental regulatory statutes in the United States. It is illegal to “take” or “kill” any migratory bird covered by the Act. But many of the economic and industrial assumptions that undergirded the Act in 1918 have changed dramatically. Although it is undisputed that hunting protected birds is prohibited, circuit courts split on whether so-called “incidental takings” fall within the scope of the Act. The uncertainty inherent in this disagreement harms public and private interests alike—not to mention migratory birds. Many of the most important environmental …

How Safe Is Too Safe? Exemption 7(F) And The Withholding Of Critical Documents, Grant Snyder

Michigan Journal of Environmental & Administrative Law

The Freedom of Information Act (FOIA) is one of the main tools used by the American public to investigate the actions of its government. Congress created FOIA in an attempt to make most government documents available to the public. Today, the FOIA process favors government withholding. This bias comes from institutional issues in courts’ review of FOIA challenges.

In the environmental and administrative law context, federal agencies use many exemptions to withhold government records from citizen and non-profit groups. Agencies that are tasked with permitting and regulating energy pipelines and other environmentally-sensitive infrastructure now regularly cite Exemption 7(F). These agencies …

High-Stakes Interpretation, Ryan D. Doerfler

Michigan Law Review

Courts look at text differently in high-stakes cases. Statutory language that would otherwise be “unambiguous” suddenly becomes “less than clear.” This, in turn, frees up courts to sidestep constitutional conflicts, avoid dramatic policy changes, and, more generally, get around undesirable outcomes. The standard account of this behavior is that courts’ failure to recognize “clear” or “unambiguous” meanings in such cases is motivated or disingenuous, and, at best, justified on instrumentalist grounds.

This Article challenges that account. It argues instead that, as a purely epistemic matter, it is more difficult to “know” what a text means—and, hence, more difficult to regard …

The Oversimplification Of Deregulation: A Case Study On Clinical Decision Support Software, Deeva V. Shah

Michigan Telecommunications & Technology Law Review

Until the December 2016 passage of the Cures Act, the FDA had regulatory power over clinical decision support (CDS) software; however, the Act removed a large group of CDS software from the FDA’s statutory authority. Congressional intent was to increase innovation by removing regulatory blockades—such as device testing and certification—from the FDA’s purview. This note argues that the enactment of this specific provision of the Act will instead stymie innovation and overlook the unfortunate safety consequences inherent in its deregulation. CDS software is a burgeoning field ripe for innovation; however, rapid innovation can often lead to a slew of mistakes—mistakes …

Humanizing The Corporation While Dehumanizing The Individual: The Misuse Of Deferred-Prosecution Agreements In The United States, Andrea Amulic

Michigan Law Review

American prosecutors routinely offer deferred-prosecution and nonprosecution agreements to corporate defendants, but not to noncorporate defendants. The drafters of the Speedy Trial Act expressly contemplated such agreements, as originally developed for use in cases involving low-level, nonviolent, noncorporate defendants. This Note posits that the almost exclusive use of deferrals in corporate cases is inconsistent with the goal that these agreements initially sought to serve. The Note further argues that this exclusivity can be attributed to prosecutors’ tendency to only consider collateral consequences in corporate cases and not in noncorporate cases. Ultimately, this Note recommends that prosecutors evaluate collateral fallout when …

Three Words And The Future Of The Affordable Care Act, Nicholas Bagley

Articles

As an essential part of its effort to achieve near universal coverage, the Affordable Care Act (ACA) extends sizable tax credits to most people who buy insurance on the newly established health care exchanges. Yet several lawsuits have been filed challenging the availability of those tax credits in the thirty-four states that refused to set up their own exchanges. The lawsuits are premised on a strained interpretation of the ACA that, if accepted, would make a hash of other provisions of the statute and undermine its effort to extend coverage to the uninsured. The courts should reject this latest effort …

An Administrative Meter Maid: Using Inter Partes Review And Post-Grant Review To Curb Exclusivity Parking Via The "Failure To Market" Provision Of The Hatch-Waxman Act, Brian T. Apel

Michigan Law Review

Congress created the unique Hatch-Waxman framework in 1984 to increase the availability of low-cost generic drugs while preserving patent incentives for new drug development. The Hatch-Waxman Act rewards generic drug companies that successfully challenge a pharmaceutical patent: 180 days of market exclusivity before any other generic firm can enter the market. When a generic firm obtains this reward, sometimes drug developers agree to pay generic firms to delay entering the market. These pay-for-delay agreements give rise to exclusivity parking and run counter to congressional intent by delaying full generic drug competition. The Medicare Prescription Drug, Improvement, and Modernization Act created …

Conflicting Requirements Of Notice: The Incorporation Of Rule 9(B) Into The False Claims Act's First-To-File Bar, Brian D. Howe

Michigan Law Review

Intended to prevent fraud against the government, the False Claims Act (“FCA”) contains a qui tam provision allowing private individuals, known as relators, to bring suits on behalf of the government and receive a portion of the damages. At the heart of the qui tam provision lies the first-to-file bar, which provides that, once a first relator has filed a complaint, subsequent relators are prohibited from coming forward with complaints based on the facts underlying the first relator’s pending action. A circuit split has recently emerged regarding the incorporation of Federal Rule of Civil Procedure 9(b)’s heightened pleading standard into …

Predicting The Fallout From King V. Burwell - Exchanges And The Aca, Nicholas Bagley, David K. Jones, Timothy Stoltzfus Jost

Articles

The U.S. Supreme Court's surprise announcement on November 7 that it would hear King v. Burwell struck fear in the hearts of supporters of the Affordable Cara Act (ACA). At stake is the legality of an Internal Revenue Service (IRS) rule extending tax credits to the 4.5 million people who bought their health plans in the 34 states that declined to establish their own health insurance exchanges under the ACA. The case hinges on enigmatic statutory language that seems to link the amount of tax credits to a health plan purchased "through an Exchange established by the State." According to …

The Ada And The Supreme Court: A Mixed Record, Samuel R. Bagenstos

Articles

According to conventional wisdom, the Supreme Court has resisted the Americans with Disabilities Act (ADA) at every turn. The Court, the story goes, has read the statute extremely narrowly and, as a result, stripped away key protections that Congress intended to provide. Its departure from congressional intent, indeed, was so extreme that Congress passed a statute that overturned several key decisions and codified broad statutory protections. That statute, the ADA Amendments Act of 2008 (ADAAA). passed with widespread bipartisan support, and President George W. Bush signed it into law. The conventional wisdom leaves out a major part of the story. …

A Material World: Using Trademark Law To Override Copyright's First Sale Rule For Imported Copies, Mary Lafrance

Michigan Telecommunications & Technology Law Review

When the Supreme Court held that the first sale rule of copyright law permits the unauthorized importation and domestic sale of lawfully made copies of copyrighted works, regardless of where those copies were made, copyright owners lost much of their ability to engage in territorial price discrimination. Publishers, film and record producers, and software and videogame makers could no longer use copyright law to prevent the importation and domestic resale of gray market copies, and therefore could no longer protect their domestic distributors against competition from cheaper imported copies. However, many of these copyright owners can take advantage of a …

Statutory Interdependence In Severability Analysis, Rachel J. Ezzell

Michigan Law Review

According to conventional wisdom, when a court rules a statutory provision unconstitutional, it must sever that provision or strike down the entire statute. This understanding is incomplete. In practice, courts may engage in compound severance: invalidating additional, otherwise constitutional provisions of the statute without striking down the entire statute. They reason that the degree of interrelation between those provisions is so significant that severance of one compels severance of the other. As a result, a subset of the statute remains law. The power to craft such subsets raises constitutional concerns, and yet the jurisprudence concerning statutory interdependence is inconsistent and …

Preemption And Choice-Of-Law Coordination, Erin O'Hara O'Connor, Larry E. Ribstein

Michigan Law Review

The doctrine treating federal preemption of state law has been plagued by uncertainty and confusion. Part of the problem is that courts purport to interpret congressional intent when often Congress has never considered the particular preemption question at issue. This Article suggests that courts deciding preemption cases should take seriously a commonly articulated rationale for the federalization of law: the need to coordinate applicable legal standards in order to facilitate a national market or to otherwise provide clear guidance to parties regarding the laws that apply to their conduct. In situations where federal law can serve a coordinating function but …

Assessing Divisibility In The Armed Career Criminal Act, Ted Koehler

Michigan Law Review

When courts analyze whether a defendant's prior conviction qualifies as a "violent felony" under the Armed Career Criminal Act's "residual clause," they use a "categorical approach," looking only to the statutory language of the prior offense, rather than the facts disclosed by the record of conviction. But when a defendant is convicted under a "divisible" statute, which encompasses a broader range of conduct, only some of which would qualify as a predicate offense, courts may employ the "modified categorical approach." This approach allows courts to view additional documents to determine whether the jury convicted the defendant of the Armed Career …

Deconstructing 'Just And Proper': Arguments In Favor Of Adopting The 'Remedial Purpose' Approach To Section 10(J) Labor Injunctions, William K. Briggs

Michigan Law Review

Congress, through the 1947 addition of section 10(j) to the National Labor Relations Act, authorized district courts to grant preliminary injunctive relief for unfair labor practices if they deem such relief "just and proper." To this day a circuit split persists over the correct interpretation of this "just and proper" standard. Some circuits interpret "just and proper" to require application of the traditional equitable principles approach that normally governs preliminary injunctions. Other circuits interpret "just and proper" to require an analysis of whether injunctive relief is necessary to preserve the National Labor Relations Board's remedial power This Note examines the …

Using Public Disclosure As The Vesting Point For Moral Rights Under The Visual Artists Rights Act, Elizabeth M. Bock

Michigan Law Review

In 2010, the Court of Appeals for the First Circuit confronted the novel question of when moral rights protections vest under the Visual Artists Rights Act. In Massachusetts Museum of Contemporary Art Foundation, Inc. v. Bichel, the First Circuit determined that the protections of the Visual Artists Rights Act begin when a work is "created" under the Copyright Act. This Note argues that this decision harms moral rights conceptually and is likely to result in unpredictable and inconsistent decisions. This Note proposes instead that these statutory protections should vest when an artist determines that his work is complete and presents …

Removing Categorical Constraints On Equal Employment Opportunities And Anti-Discrimination Protections, Anastasia Niedrich

Michigan Journal of Gender & Law

It has been the "historical tendency of anti-discrimination law to use categories to define protected classes of people." This Article challenges the categorical approach and seeks to change that limited framework. This Article focuses on the flaws with Title VII's categorical approach and discusses why there is a desperate need for change to combat the different types and targets of workplace discrimination today, focusing on the transgender community as one example. After discussing the current framework and operation of Title VII, this Article analyzes the insurmountable flaws inherent in the categorical approach to anti-discrimination law, and specifically considers Title VII's …

Legislative Intent And Legislative History In Michigan, Kincaid C. Brown

Law Librarian Scholarship

Determining legislative intent is one of the key roles that the judicial system plays in Michigan, and legislative history can be a useful tool for evaluating the intent of the legislature when enacting a law. However, legislative history resources can be difficult to gather and some resources may not be persuasive in Michigan courts. This article provides a brief description of the Michigan legislative process, the court’s view of using legislative history to determine legislative intent, and a list of Michigan legislative history resources.

Falling Through The Crack: How Courts Have Struggled To Apply The Crack Amendment To Nominal Career And Plea Bargain Defendants, Maxwell Arlie Halpern Kosman

Michigan Law Review

Under the Federal Rules of Criminal Procedure, a defendant is normally obligated to attend all of the proceedings against her. However Rule 43(b)(2) carves out an exception for organizational defendants, stating that they "need not be present" if represented by an attorney. But on its face, the language of 43(b)(2) is ambiguous: is it the defendant or the judge who has the discretion to decide whether the defendant appears? That is, may a judge compel the presence of an organizational defendant? This Note addresses the ambiguity in the context of the plea colloquy, considering the text of several of the …

Gina's Genotypes, David H. Kaye

Michigan Law Review First Impressions

In August 2009, the Board of Trustees of the University of Akron added to the university's employment policy the following proviso: "any applicant may be asked to submit fingerprints or DNA sample for purpose of a federal criminal background check." Although the federal government does not do background checks with DNA, the policy is significant because it highlights a largely unexplored feature of the Genetic Information Nondiscrimination Act of 2008 ("GINA"). Hailed by the late Senator Edward Kennedy as "the first civil rights bill of the new century of life sciences," GINA generally prohibits employers from asking for "genetic information." …

The Upc Addresses The Class-Gift And Intestacy Rights Of Children Of Assisted Reproduction Technologies, Lawrence W. Waggoner, Sheldon F. Kurtz

Articles

Editor's Synopsis: Recent years' advances in assisted reproduction technology have enabled the conception of children in ways in addition to the traditional way. The Uniform Probate Code was amended last year to address the status of children born from assisted reproductive technologies for intestacy and class-gift purposes. This article discusses the relevant UPC provisions and offers several hypothetical cases to show how they operate. The article concludes expressing the hope that states will consider the new UPC approach.

A Presumption Against Agency Preemption, Nina A. Mendelson

Articles

Federal agencies are increasingly taking aim at state law, even though state law is not expressly targeted by the statutes the agencies administer. Starting in 2001, the Office of the Comptroller of the Currency (OCC) issued several notices saying that state laws would apply to national bank operating subsidiaries (incorporated under state law) to the same extent as those laws applied to the parent national bank. In 2003, the OCC specifically mentioned state consumer protection laws and took the position that the state laws were preempted and did not apply to mortgage lenders owned by national banks. In December 2006, …

The California Greenhouse Gas Waiver Decision And Agency Interpretation: A Response To Galle And Seidenfeld, Nina A. Mendelson

Articles

Professors Brian Galle and Mark Seidenfeld add some important strands to the debate on agency preemption, particularly in their detailed documentation of the potential advantages agencies may possess in deliberating on preemption compared with Congress and the courts. As they note, the quality of agency deliberation matters to two different debates. First, should an agency interpretation of statutory language to preempt state law receive Chevron deference in the courts, as other agency interpretations may, or should some lesser form of deference be given? Second, should a general statutory authorization to an agency to administer a program and to issue rules …

Statutes With Multiple Personality Disorders: The Value Of Ambiguity In Statutory Design And Interpretation, Joseph A. Grundfest, Adam C. Pritchard

Articles

Ambiguity serves a legislative purpose. When legislators perceive a need to compromise they can, among other strategies, "obscur[e] the particular meaning of a statute, allowing different legislators to read the obscured provisions the way they wish." Legislative ambiguity reaches its peak when a statute is so elegantly crafted that it credibly supports multiple inconsistent interpretations by legislators and judges. Legislators with opposing views can then claim that they have prevailed in the legislative arena, and, as long as courts continue to issue conflicting interpretations, these competing claims of legislative victory remain credible. Formal legal doctrine, in contrast, frames legislative ambiguity …

The Tension Between The Need And Exploitation Of Migrant Workers: Using Msawpa's Legislative Intent To Find A Balanced Remedy, Mark J. Russo

Michigan Journal of Race and Law

This Comment concludes that the recent Maine federal district cases represent an irreconcilable spike in a national and international trend to afford more protection to a vulnerable class whose resources are the object of urgent demand. However, the search for a proper remedial weight in the balance between migrant worker protection and the provision of competitive farm labor is not a new problem.

Equally Bad Is Not Good: Allowing Title Ix "Compliance" By The Elimination Of Men's Collegiate Sports, Donald E. Shelton

University of Michigan Journal of Law Reform

Athletic participation is an important part of the educational process, instilling important lessons about discipline and teamwork. Title IX was intended to address the historic lack of opportunities for women and girls to participate in school athletics. Unfortunately, the current administrative interpretation of Title IX permits the elimination of male athletic opportunities as a means of complying with the statute's equality standard. This result undermines the purpose of Title IX and the role of athletics in the educational process for all students.

The Exclusion Of Hiv-Positive Immigrants Under The Nicaraguan Adjustment And Central American Relief Act And The Haitian Refugee Immigration Fairness Act, Statutory Interpretation, Communicable Disease, Public Health, Legislative Intent, Shayna S. Cook

Michigan Law Review

The United States has turned away immigrants infected with the human immunodeficiency virus ("HIV") under the public health exclusion of the Immigration and Nationality Act ("INA") since the mid-1980's. Since Congress codified the HIV exclusion in 1993, any alien applying for an immigrant or nonimmigrant visa, adjustment of status to lawful permanent resident, or refugee status must first have a blood test for HIV. The HIV exclusion is not absolute, however. Each HIV-positive alien can apply for one of two waivers of the HIV exclusion that are available in the INA. When an alien applies for immigrant or permanent resident …

Doma: An Unconstitutional Establishment Of Fundamentalist Christianity, James M. Donovan

Michigan Journal of Gender & Law

According to the text of the Act, DOMA's purposes are "to define and protect the institution of marriage," where marriage is defined to exclude same-sex partners. To be constitutionally valid under the Establishment Clause, this notion that heterosexual marriages require "protection" from gay and lesbian persons must spring from a secular and not religious source. This Article posits that DOMA has crossed this forbidden line between the secular and the religious. DOMA, motivated and supported by fundamentalist Christian ideology, and lacking any genuine secular goals or justifications, betrays the Establishment Clause of the U.S. Constitution.