Law Commons^™

Smart Cars, Telematics And Repair, Leah Chan Grinvald, Ofer Tur-Sinai

University of Michigan Journal of Law Reform

Recent years have seen a surge in the use of automotive telematics. Telematics is the integration of telecommunications and informatics technologies. Using telematics in cars enables transmission of data communications between the car and other systems or devices. This opens up a wide range of possibilities, including the prospect of conducting remote diagnostics based on real-time access to the vehicle. Yet, as with any new technology, alongside its potential benefits, the use of automotive telematics could also have potential downsides. This Article explores the significant negative impact that the growing reliance on telematics systems could have on competition in the …

Prosecuting Executive Branch Wrongdoing, Julian A. Cook, Iii

University of Michigan Journal of Law Reform

Attorney General William Barr’s handling of Robert Mueller’s Report on the Investigation into Russian Interference in the 2016 Presidential Election was undeniably controversial and raised meaningful questions regarding the impartiality of the Department of Justice. Yet, Barr’s conduct, which occurred at the conclusion of the Mueller investigation, was merely the caboose at the end of a series of controversies that were coupled together from the outset of the investigation. Ensnarled in dissonance from its inception, the Mueller investigation was dogged by controversies that ultimately compromised its legitimacy.

Public trust of criminal investigations of executive branch wrongdoing requires prosecutorial independence. To …

Making A Reasonable Calculation: A Strategic Amendment To The Idea, Hetali M. Lodaya

University of Michigan Journal of Law Reform

The Individuals with Disabilities Education Act (IDEA) lays out a powerful set of protections and procedural safeguards for students with disabilities in public schools. Nevertheless, there is a persistent debate as to how far schools must go to fulfill their mandate under the IDEA. The Supreme Court recently addressed this question with its decision in Endrew F. v. Douglas Cty. School District Re-1, holding that an educational program for a student with a disability must be “reasonably calculated” to enable a child’s progress in light of their circumstances. Currently, the Act’s statutory language mandates Individual Education Program (IEP) teams …

21st Century Cures Act: The Problem With Preemption In Light Of Deregulation, Megan C. Andersen

University of Michigan Journal of Law Reform

The 21st Century Cures Act introduced innovative changes to the Food and Drug Administration’s regulatory processes. In an effort to address the slow, costly, and burdensome approval process for high-risk devices, the Cures Act modernized clinical trial data by allowing reviewers to determine whether devices merit expedited review and to consider post-market surveillance data in the premarket approval process. These changes will get life-saving devices to the people who need them faster than ever before. But the tradeoff is a greater risk of injury to the patient. The 2008 Supreme Court decision Riegel v. Medtronic, Inc., held that any …

This We’Ll Defend: Expanding Ucmj Article 2 Subject Matter Jurisdiction As A Response To Nonconsensual Distribution Of Illicit Photographs, Nicholas Karp

University of Michigan Journal of Law Reform

In March 2017, it was revealed that current and former armed service members shared thousands of nude photos of their female counterparts over social media. Although some of these photos were taken with the women’s consent, almost none of them were distributed with the women’s consent.

Victims have little legal recourse. Military law is silent on the matter of non-consensual distribution. Federal civilian law speaks only to interstate stalking, domestic violence, and harassment, while only thirty-four states have revenge porn laws that sufficiently criminalize nonconsensual distribution of illicit photographs. Further complicating matters, the perpetrator’s military status as active duty, reservist, …

Establishing A More Effective Safmr System: The Cost And Benefits Of Hud's 2016 Small Area Fair Market Rent Rule, John Treat

University of Michigan Journal of Law Reform

This Note analyzes the new HUD rule finalized in November 2016, which dramatically changed the structure of the Housing Choice Voucher program in select metropolitan areas. In August 2017, HUD suspended automatic implementation of the rule until 2020 for twenty-three of the twenty-four selected metropolitan areas, but in December 2017, a preliminary injunction was granted requiring HUD to implement the rule as of January 1, 2018. The rule as written changes the method for calculating the vouchers from using a metropolitan area-wide average to calculating a separate level for each zip code. Such a change could greatly deconcentrate poverty and …

Accessible Reliable Tax Advice, Emily Cauble

University of Michigan Journal of Law Reform

Unsophisticated taxpayers who lack financial resources are disadvantaged by a shortage of adequate tax advice. The IRS does not have the resources to answer all questions asked, and the IRS’s informal advice comes with no guarantee as to its accuracy and offers the taxpayer no protection when it is mistaken. Furthermore, non-IRS sources of advice have not sufficiently filled the void left by a lack of satisfactory IRS guidance. These biases against unsophisticated taxpayers have been noted by existing literature. This Article contributes to existing literature by proposing several novel reform measures to assist unsophisticated taxpayers.

First, with respect to …

Third-Party Institutional Proxy Advisors: Conflicts Of Interest And Roads To Reform, Matthew Fagan

University of Michigan Journal of Law Reform

With the rise of institutional activist investors in recent decades—including a purported 495 activist campaigns against U.S. corporations in 2016 alone—the role that third-party institutional proxy advisors play in corporate governance has greatly increased. The United States Office of Government Accountability estimates that clients of the top five proxy advisory firms account for about $41.5 trillion in equity throughout the world. For several years, discussions have developed regarding conflicts of interest faced by proxy advisors. For example, Institutional Shareholder Services, the top proxy advisory firm in the world, frequently provides advice to institutional investors on how to vote proxies while …

The Civil Redress And Historical Memory Act Of 2029: A Legislative Proposal, William J. Aceves

University of Michigan Journal of Law Reform

During the extant “War on Terror,” U.S. and foreign nationals who did not engage in hostilities were detained and mistreated abroad by the United States or by other countries with the acquiescence of the United States. These individuals were accused of being terrorists or were suspected of associating with terror groups, but they were, in fact, innocent. They were eventually released and were never charged by the United States with any crime. Despite their innocence, the United States has failed to provide them with any form of redress for their mistreatment. The Bush, Obama, and Trump administrations refused to apologize …

Resolving The Divided Patent Infringement Dilemma, Nathanial Grow

University of Michigan Journal of Law Reform

This Article considers cases of divided patent infringement: those in which two or more parties collectively perform all the steps of a patented claim, but where no single party acting alone has completed the entire patented invention. Despite the increasing frequency with which such cases appear to be arising, courts have struggled to equitably resolve these lawsuits under the constraints of the existing statutory framework because of the competing policy concerns they present. On the one hand, any standard that holds two or more parties strictly liable whenever their combined actions infringe a patent risks imposing liability on countless seemingly …

Can Prostitution Law Reform Curb Sex Trafficking? Theory And Evidence On Scale Substitution, And Replacement Effects, Simon Hedlin

University of Michigan Journal of Law Reform

Sex trafficking, a pervasive problem in many parts of the world, has become increasingly salient to policymakers and the general public. Activists, politicians, and scholars continue to engage in debates about how best to curb it. This Article discusses one especially contentious dimension of these debates: does banning prostitution reduce sex trafficking? Or is legalizing prostitution the optimal approach? Or is there a third, better way? Proceeding both theoretically and empirically, this Article seeks to cast light on the relationship between different types of prostitution laws and the prevalence of sex trafficking and human trafficking. It attempts to make three …

Shedding Light On The "Going Dark" Problem And The Encryption Debate, John Mylan Traylor

University of Michigan Journal of Law Reform

In an effort to protect the enormous volume of sensitive and valuable data that travels across the Internet and is stored on personal devices, private companies have created encryption software to secure data from criminals, hackers, and terrorists who wish to steal it. The greatest benefit of encryption also creates the biggest problem: Encryption software has become so secure that often not even the government can bypass it. The “Going Dark” problem—a scenario in which the government has obtained the legal authority to search a suspected criminal’s encrypted device but lacks the technical ability to do so—is becoming increasingly common. …

Protecting Personal Information: Achieving A Balance Between User Privacy And Behavioral Targeting, Patrick Myers

University of Michigan Journal of Law Reform

Websites and mobile applications provide immeasurable benefits to both users and companies. These services often collect vast amounts of personal information from the individuals that use them, including sensitive details such as Social Security numbers, credit card information, and physical location. Personal data collection and dissemination leave users vulnerable to various threats that arise from the invasion of their privacy, particularly because users are often ignorant of the existence or extent of these practices. Current privacy law does not provide users with adequate protection from the risks attendant to the collection and dissemination of their personal information. This Note advocates …

Finality And Judicial Review Under The Immigration And Nationality Act: A Jurisprudential Review And Proposal For Reform, Jesi J. Carlson, Patrick J. Glen, Kohsei Ugumori

University of Michigan Journal of Law Reform

Under the Immigration and Nationality Act (INA), aliens may petition for judicial review of an adverse decision of the Board of Immigration Appeals (Board) as long as that decision constitutes a “final order of removal.” Usually it is not difficult to ascertain when an alien should file her petition: the thirty-day statutory filing deadline begins to run when the Board issues a decision that affirms the immigration judge’s removal order in its entirety. In some cases, however, an alien seeks multiple forms of relief from removal in a single proceeding. When that occurs, some forms of relief might be granted, …

No More Quid Pro Quo: Abandoning The Personal Benefit Requirement In Insider Trading Law, Shannon Seiferth

University of Michigan Journal of Law Reform

A circuit split between the Second Circuit’s 2014 decision, United States v. Newman, and the Ninth Circuit’s 2015 decision, United States v. Salman, illustrates problems in insider trading law dating back over thirty years to the Supreme Court’s decision in Dirks v. SEC. Dirks held that when a corporate insider provides information to an outside party who then trades on the information, it must be shown that the insider received some form of a personal benefit for providing the information in order to impute liability. The courts in Newman and Salman disagreed on the sort of evidence …

Left Behind: The Dying Principle Of Family Reunification Under Immigration Law, Anita Ortiz Maddali

University of Michigan Journal of Law Reform

A key underpinning of modern U.S. immigration law is family reunification, but in practice it can privilege certain families and certain members within families. Drawing on legislative history, this Article examines the origins and objectives of the principle of family reunification in immigration law and relies on legal scholarship and sociological and anthropological research to reveal how contemporary immigration law and policy has diluted the principle for many families—particularly those who do not fit the dominant nuclear family model, those classified as unskilled, and families from oversubscribed countries—and members within families. It explores the ways in which women and children, …

Access To Justice For Asylum Seekers: Developing An Effective Model Of Holistic Asylum Representation, Sabrineh Ardalan

University of Michigan Journal of Law Reform

Abducted, beaten, and tortured by government forces that accused him of supporting an opposition group, Matthew fled to the United States with the help of his church pastor.1 The pastor lent Matthew money and helped him obtain a passport and a visa. The pastor also put Matthew in touch with an acquaintance in Boston, who gave him a place to stay for a short time and encouraged him to apply for asylum. The acquaintance sat down with Matthew and helped him fill out the asylum application form. He told Matthew to be as specific and detailed as possible since that …

Fraud Is Already Illegal: Section 621 Of The Dodd-Frank Act In The Context Of The Securities Laws, Nathan R. Schuur

University of Michigan Journal of Law Reform

In the aftermath of the financial crisis, lawmakers and the public focused on abuses in the securitization industry. Abacus, a Synthetic CDO created by Goldman Sachs & Co., became a symbol of what many felt was a corrupt system when it became known that Goldman and Fabrice Tourre, a Vice President at its Correlation Trading Desk, had assisted a hedge fund in designing the security to fail. Perceived failings of the securities laws to prevent transactions like Abacus spurred Congress to enact Section 621 of the Dodd-Frank Act, which prohibits conflicts of interest in asset-backed securitizations. But the law is …

Opening Schumer’S Box: The Empirical Foundations Of Modern Consumer Finance Disclosure Law, Hosea H. Harvey

University of Michigan Journal of Law Reform

This Article explores the fundamental failure of Congress’ twenty-five-year quest to utilize disclosure as the primary tool to both regulate credit card issuers and educate consumers. From inception until present, reforms to this disclosure regime, even when premised on judgment and decision-making behavioralism, were nomothetic in orientation and ignored clear differences in population behavior and the heterogeniety of consumers. Current law prohibits credit card issuers from acquiring consumer socio-demographic data and prevents issuers and regulators from using market and policy experimentation to enhance disclosure’s efficacy. To explain why this regime was structured this way and why it must change, this …

Employment Arbitration Reform: Preserving The Right To Class Proceedings In Workplace Disputes, Javier J. Castro

University of Michigan Journal of Law Reform

The recent judicial enforcement of class waivers in arbitration agreements has generated ample debate over the exact reach of these decisions and their effects on the future of collective action for consumers and employees. In AT&T Mobility v. Concepcion, a 5-4 majority of the Supreme Court majority held that the Federal Arbitration Act (FAA) preempted state laws prohibiting companies from incorporating class action waivers into arbitration agreements. The Court upheld such waivers on the grounds that they are consistent with the language and underlying purpose of the FAA. Most courts across the country have since reinforced the strong federal policy …

Restructuring Local School Wellness Policies: Amending The Kids Act To Fight Childhood Obesity, Rebecca Edwalds

University of Michigan Journal of Law Reform

Childhood obesity is a major problem plaguing the United States. Over one-third of children are overweight, and there is little indication that this trend will reverse in the near future. The federal government has attempted to combat childhood obesity through the National School Lunch Act, which regulates the quality of foods federally subsidized schools may serve to children, and provides broad goals for physical activity. These basic goals leave extensive room for states to implement different standards, and they are not sufficient to effectively confront the childhood obesity problem. This Note proposes amendments to the National School Lunch Act that …

What Will It Take? Terrorism, Mass Murder, Gang Violence, And Suicides: The American Way, Or Do We Strive For A Better Way?, Katherine L. Record, Lawrence O. Gostin

University of Michigan Journal of Law Reform

The assertion that access to firearms makes us safe, rather than increases the likelihood that oneself or a family member will die, is contradicted by a large body of evidence. Gunshots kill more than 30,000 Americans each year. Homicide accounts for approximately one-third of these deaths, with the remainder involving suicides and accidental gun discharges. In fact, firearms put us at greater risk of death than participating in war; in four months, as many Americans were shot dead in the United States as have died fighting in Iraq for an entire decade. Given these grim statistics, it would be reasonable …

Sentence Creep: Increasing Penalties In Michigan And The Need For Sentencing Reform, Anne Yantus

University of Michigan Journal of Law Reform

The governor and several legislators have requested review of Michigan’s sentencing practices with an eye toward sentence reform. Michigan leads the country in the average length of prison stay, and by internal comparisons the average minimum sentence has nearly doubled in the last decade. This Article explores cumulative increases to criminal penalties over the last several decades as reflected in amendments to the sentencing guidelines, increased maximum sentences, harsh mandatory minimum terms, increased authority for consecutive sentencing, wide sentencing discretion for habitual and repeat drug offenders, and tough parole practices and policies. The reality for legislators is that it is …

Ridding The Law Of Outdated Statutory Exemptions To Antitrust Law: A Proposal For Reform, Anne Mcginnis

University of Michigan Journal of Law Reform

Antitrust law is designed to be an overarching check against anticompetitive conduct that harms the free market system. Almost as soon as the first antitrust laws were enacted in the United States, however, industry groups began lobbying Congress for exemptions from these laws. Most of the statutory exemptions created over the last one hundred years remain in place, despite widespread changes in economic theory, market structures, and overall antitrust law. Today, some exemptions are merely irrelevant, while others actively harm society by transferring wealth to private individuals and hampering beneficial competition. This Note proposes a fourpart legislative solution to rid …

Designing A Flexible World For The Many: "Essential Functions" And Title I Of The Americans With Disabilities Act, Michael J. Powers

University of Michigan Journal of Law Reform

This Note explores how courts interpret the meaning of “essential functions” under Title I of the Americans with Disabilities Act. To be protected under the ADA, a plaintiff must be able to perform the “essential functions” of her job with or without a reasonable accommodation. In general, courts follow one of two approaches when interpreting this phrase. The first approach narrowly focuses on the employer’s judgment regarding which functions are essential. The second approach considers the employer’s judgment, but looks beyond to consider the broader employment relationship. This Note argues that these different approaches have led to varying levels of …

Bio Family 2.0: Can The American Child Welfare System Finally Find Permanency For 'Legal Orphans' With A Statute To Reinstate Parental Rights?, Meredith L. Schalick

University of Michigan Journal of Law Reform

The American child welfare system terminates parental rights for thousands of children each year even though adoptive families have not yet been identified for the children. Every year, there are more than 100,000 of these “legal orphans” waiting for new families. Given the lower rates of adoptions for children of color and older children, and the poor outcomes for most youth who age out of the foster care system, the American child welfare system must start to think differently about permanency options for children. This Article proposes a model statutory provision to reinstate parental rights under certain circumstances to give …

Retroactivity And Crack Sentencing Reform, Harold J. Krent

University of Michigan Journal of Law Reform

This Article argues that the strong presumption against retroactive application of reduced punishments articulated in the Supreme Court’s recent decision, Dorsey v. United States, is neither historically grounded nor constitutionally compelled. Although not dispositive in Dorsey, the presumption may mislead legislatures in future contexts, whether addressing marijuana decriminalization or lessened punishment for file sharing, and in no way should signal to Congress that future changes should apply prospectively only. Although the Court reached the right result in applying the reduction in punishment for crack offenses to offenders whose sentences had not been finalized, the Court relied excessively on the general …

It's Time To Start Showing A Little Restraint: In Search Of A Compromise On Federal Seclusion And Restraint Legislation, Cali Cope-Kasten

University of Michigan Journal of Law Reform

In 2009, the United States House of Representatives heard testimony that hundreds of students had been injured in schools by teachers secluding or physically restraining them. Congress had never legislated on seclusion and restraint, but the alarming allegations of student injuries and deaths prompted many parents to demand a ban on the use of the techniques in schools. In the continuing debate, school officials have protested that seclusion and restraint are important tools for teachers to protect their classrooms from out-of-control students. Torn between these two extreme positions, Congress has twice attempted — but failed — to pass federal legislation …

To Skin A Cat: Qui Tam Actions As A State Legislative Response To Concepcion, Janet Cooper Alexander

University of Michigan Journal of Law Reform

The Supreme Court's decision in Concepcion is widely regarded as heralding the demise of small-claims class actions whenever contracts of adhesion are involved in the transaction-which means for virtually all consumer and employment claims. Amending the Federal Arbitration Act to overturn Concepcion would be a relatively simple exercise in legislative drafting, but in the current political climate such efforts are unlikely to succeed. Thus far, proposed federal corrective legislation has failed to pass, and federal agency regulation of class waivers has been lacking. State legislatures might have the political ability to pass corrective legislation, but virtually all state limitations on …

Concepcion's Pro-Defendant Biasing Of The Arbitration Process: The Class Counsel Solution, David Korn, David Rosenberg

University of Michigan Journal of Law Reform

By mandating that numerous plaintiffs litigate their common question claims separately in individual arbitrations rather than jointly in class action arbitrations, the Supreme Court in AT&T Mobility LLC v. Concepcion entrenched a potent structural and systemic bias in favor of defendants. The bias arises from the parties' divergent stakes in the outcome of the common question litigation in individual arbitrations: each plaintiff will only invest to maximize the value of his or her own claim, but the defendant has an incentive to protect its entire exposure and thus will have a classwide incentive to invest more in contesting common questions. …