Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 24 of 24
Full-Text Articles in Law
Clashing Canons And The Contract Clause, T. Leigh Anenson, Jennifer K. Gershberg
Clashing Canons And The Contract Clause, T. Leigh Anenson, Jennifer K. Gershberg
University of Michigan Journal of Law Reform
This Article is the first in-depth examination of substantive canons that judges use to interpret public pension legislation under the Contract Clause of the U.S. Constitution and state constitutions. The resolution of constitutional controversies concerning pension reform will have a profound influence on government employment. The assessment begins with a general discussion of these interpretive techniques before turning to their operation in public pension litigation. It concentrates on three clashing canons: the remedial (purpose) canon, the “no contract” canon (otherwise known as the unmistakability doctrine), and the constitutional avoidance canon. For these three canons routinely employed in pension law, there …
Seamen, Railroad Employees, And Uber Drivers: Applying The Section 1 Exemption In The Federal Arbitration Ace To Rideshare Drivers, Conor Bradley
Seamen, Railroad Employees, And Uber Drivers: Applying The Section 1 Exemption In The Federal Arbitration Ace To Rideshare Drivers, Conor Bradley
University of Michigan Journal of Law Reform
Section 1 of the Federal Arbitration Act (FAA or the Act) exempts “seamen, railroad employees, [and] any other class of workers engaged in foreign or interstate commerce” from arbitration. In 2019, the Supreme Court held in New Prime Inc. v. Oliveira that this provision exempted independent contractors as well as employees. This decision expanded the reach of the section 1 exemption and may affect the relationship between ridesharing companies, such as Uber, and their drivers. Previously, ridesharing companies argued that courts must enforce the arbitration clauses in their employment contracts because their workers were independent contractors and, therefore, section 1 …
Revisiting Immutability: Competing Frameworks For Adjudicating Asylum Claims Based On Membership In A Particular Social Group, Talia Shiff
University of Michigan Journal of Law Reform
The Immigration and Nationality Act (INA) defines a refugee as any person who has a “well-founded fear of persecution on account of race, religion, nationality, membership of a particular social group or political opinion.” An emerging issue in U.S. asylum law is how to define the category “membership of a particular social group.” This question has become ever-more pressing in light of the fact that the majority of migrants seeking asylum at the U.S.-Mexico border are claiming persecution on account of their “membership in a particular social group.” The INA does not define the meaning of “particular social group” and …
Designing A Flexible World For The Many: "Essential Functions" And Title I Of The Americans With Disabilities Act, Michael J. Powers
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 …
From "Navigable Waters" To "Constitutional Waters": The Future Of Federal Wetlands Regulation, Mark Squillace
From "Navigable Waters" To "Constitutional Waters": The Future Of Federal Wetlands Regulation, Mark Squillace
University of Michigan Journal of Law Reform
Wetlands regulation in the United States has a tumultuous history. The early European settlers viewed wetlands as obstacles to development, and they drained and filled wetlands and swamps at an astounding rate, often with government support, straight through the middle of the twentieth century. As evidence of the ecological significance of wetlands emerged over the last several decades, programs to protect and restore wetlands became prominent. Most notable among these is the permitting program under section 404 of the Clean Water Act. That provision prohibits dredging or filling of "navigable waters, " defined by law to mean "waters of the …
Applying 42 U.S.C. § 1981 To Claims Of Consumer Discrimination, Abby Morrow Richardson
Applying 42 U.S.C. § 1981 To Claims Of Consumer Discrimination, Abby Morrow Richardson
University of Michigan Journal of Law Reform
This Note explores several interesting legal questions regarding the proper interpretation of 42 U.S.C. § 1981, which prohibits racial discrimination in contracting, when discrimination arises in the context of a consumer retail contract. The Note further explores how the Fifth Circuit's and other federal courts' narrow interpretation of § 1981's application in a retail setting (which allows plaintiffs to invoke the statute only when they have been prevented from completing their purchases) is contrary to the statute's express language, congressional intent, and to evolving concepts of contract theory, all of which reflect a commitment to the strict enforcement of civil …
Against Dictionaries: Using Analogical Reasoning To Achieve A More Restrained Textualism, Jason Weinstein
Against Dictionaries: Using Analogical Reasoning To Achieve A More Restrained Textualism, Jason Weinstein
University of Michigan Journal of Law Reform
This Note argues that new textualists should abandon dictionaries as a source for legal interpretation. Textualists believe in restricting judges to the intent discernible from the words of a statute and contend that legislative history is unacceptable as a source of this intention. Both of these sentiments lead textualists to dictionaries as the intuitively correct solution for ambiguities in a text. The author argues, however, that dictionaries by their very nature cannot help discern between reasonable definitions at the margins of meaning. The use of dictionaries in these situations allows for a sham formalism, unrestrictive in result and unrevealing of …
The Effect Of Expungement On Removability Of Non-Citizens, James A.R. Nafziger, Michael Yimesgen
The Effect Of Expungement On Removability Of Non-Citizens, James A.R. Nafziger, Michael Yimesgen
University of Michigan Journal of Law Reform
For most of the twentieth century, a non-citizen was generally not subject to removal on the basis of a criminal conviction which had been expunged by the state that rendered the conviction. During that time, the definition of a "conviction" for purposes of immigration law was borrowed from the law of the state which rendered the criminal conviction. In the Illegal Immigration Reform and Immigrant Responsibility Act (IRIRA) of 1996 Congress sought to provide a more uniform definition of the term "conviction" sufficient to justify an order of removal under the immigration law. The IIRIRA does not mention expungement, however. …
The Imperial Sovereign: Sovereign Immunity & The Ada, Judith Olans Brown, Wendy E. Parmet
The Imperial Sovereign: Sovereign Immunity & The Ada, Judith Olans Brown, Wendy E. Parmet
University of Michigan Journal of Law Reform
Professors Brown and Parmet examine the impact of the Supreme Court's resurrection of state sovereign immunity on the rights of individuals protected by the Americans with Disabilities Act in light of the recent decision, Board of Trustees of the University of Alabama v. Garrett. Placing Garrett within the context of the Rehnquist Court's evolving reallocation of state and federal authority, they argue that the Court has relied upon a mythic and dangerous notion of sovereignty that is foreign to the Framers' understanding. Brown and Parmet go on to show that, by determining that federalism compels constraining congressional power to …
Envisioning A Future For Age And Disability Discrimination Claims, Alison Barnes
Envisioning A Future For Age And Disability Discrimination Claims, Alison Barnes
University of Michigan Journal of Law Reform
This Article considers the reasons for reinterpretations of age and disability and examines the fundamental reasons for changes in the implementation of both the ADA and ADEA. Part I presents the basic structure and relevant requirements of the two statutes and comments on the reasons their legislative purposes are not often seen as overlapping. Part II discusses the recent Supreme Court decisions that have undermined the purposes and implementation of both the ADA and ADEA and chilled causes of action based on the ADA and ADEA. Part III projects the current problems with anti-discrimination causes into the future, when older …
The New Gold Rush: Mine Tailings In Southeast Alaska And Perversion Of The Clean Water Act, Beth Leibowitz
The New Gold Rush: Mine Tailings In Southeast Alaska And Perversion Of The Clean Water Act, Beth Leibowitz
University of Michigan Journal of Law Reform
Part I of this Note provides a basic explanation of the mine tailings problem. Part II of this Note discusses the evolution of the agencies' tailings decision and the statutory and regulatory context in which it occurred. Part III outlines briefly the actual decision, which involved the theory that neither the EPA nor the Corps should apply the usual CWA permit requirements to the initial discharge of mine waste. Part IV evaluates the legal basis for that decision and concludes, based on the language of the CWA, the EPA's own prior policy, and judicial precedent, that the decision was without …
Erisa Preemption: Judicial Flexibility And Statutory Rigidity, Leon E. Irish, Harrison J. Cohen
Erisa Preemption: Judicial Flexibility And Statutory Rigidity, Leon E. Irish, Harrison J. Cohen
University of Michigan Journal of Law Reform
This Article attempts to describe the ways in which, and the reasons why section 514(a) has caused the courts and Congress so much difficulty. Part I reviews the legislative history of section 514(a), with emphasis on the ambivalence Congress has shown toward its 1974 draftsmanship. Part II attempts to provide a coherent description of the case law that has developed under section 514(a). Part III completes the legislative history by examining the two instances in which experience compelled Congress to revise section 514. Finally, Part IV discusses examples of problems courts have faced when crafting a federal common law of …
Erisa: To Sue Or Not To Sue-A Question Of Statutory Standing, Constance L. Bauer
Erisa: To Sue Or Not To Sue-A Question Of Statutory Standing, Constance L. Bauer
University of Michigan Journal of Law Reform
This Note examines the conflicting authority regarding the scope of section 502(a) of ERISA. There is a fundamental split among the United States Courts of Appeals concerning whether parties not specifically enumerated in section 502(a) have standing to bring civil actions to enforce ERISA's provisions. The Ninth Circuit has held consistently that non-enumerated parties are entitled to sue under ERISA. The Second Circuit, however, repeatedly has held that parties not explicitly specified in section 502(a). do not have standing to bring an action under the Act. This Note addresses the question of whether employers and pension funds, as non-enumerated parties, …
A Proposal For Extension Of The Occupational Safety And Health Act To Indian-Owned Businesses On Reservations, Maureen M. Crough
A Proposal For Extension Of The Occupational Safety And Health Act To Indian-Owned Businesses On Reservations, Maureen M. Crough
University of Michigan Journal of Law Reform
This Note argues that the Act does not apply to Indian businesses because it does not specifically mention them. While sensitive to the desirability of providing certain kinds of federal protections to all Americans, this Note takes the position that the sovereignty of Indian tribes should not be abrogable except by considered and express congressional action. Concluding nonetheless that the workplace protection the Occupational Safety and Health Act provides should be extended to Indians on reservations, the Note proposes amendment of the Act: to extend its protection; to permit tribal enforcement; and to authorize the federal government to help financially …
The Canons Of Indian Treaty And Statutory Construction: A Proposal For Codification, Jill De La Hunt
The Canons Of Indian Treaty And Statutory Construction: A Proposal For Codification, Jill De La Hunt
University of Michigan Journal of Law Reform
This Note argues that the canons of construction should play a central role in the interpretation of Indian treaties and statutes. The Note proposes revitalization of the canons through congressional action codifying the rules of construction into federal law. Part I traces the historical development of the canons to further the federal-Indian trust relationship. Part II analyzes recent Supreme Court decisions that demonstrate decreased use of the canons. Part III argues that strong canons of construction are necessary to the development of self-determining Indian tribes and proposes federal legislation to ensure the continued vitality and importance of the canons of …
Section 558( C ) Of The Administrative Procedure Act: Provision For Informal Agency Hearings Prior To License Revocation Or Suspension, Joan P. Snyder
Section 558( C ) Of The Administrative Procedure Act: Provision For Informal Agency Hearings Prior To License Revocation Or Suspension, Joan P. Snyder
University of Michigan Journal of Law Reform
This Note argues that section 558(c) should be interpreted to require an agency to provide a hearing prior to license suspension or revocation. Part I argues that all courts that have adjudicated whether section 558(c) requires a hearing have misconstrued the statute by failing to consider the general policies served by the APA. Part II examines section 558(c) in light of the major policies of the APA, uniformity and fairness in administrative procedure. It argues that these policies are best served by an interpretation that requires a hearing prior to suspension or revocation of any federal license. It does, however, …
Avoiding Liens Under The New Bankruptcy Code: Construction And Application Of Section 522(F), Judy Toyer
Avoiding Liens Under The New Bankruptcy Code: Construction And Application Of Section 522(F), Judy Toyer
University of Michigan Journal of Law Reform
This Note argues that strict construction of section 522(f)(2) is most consistent with congressional intent. Part I discusses the congressional rationale behind lien avoidance. Part II examines present efforts to apply section 522(f)(2), and concludes that judicial interpretation to date has proved largely inadequate. Finally, Part III proposes new judicial guidelines and statutory amendments designed to standardize application of the lien avoidance provision in a manner consistent with the congressional intent behind the Reform Act.
Filing For Personal Bankruptcy: Adoption Of A "Bona Fide Effort" Test Under Chapter 13, Stephan M. Vidmar
Filing For Personal Bankruptcy: Adoption Of A "Bona Fide Effort" Test Under Chapter 13, Stephan M. Vidmar
University of Michigan Journal of Law Reform
Part I discusses the history and current application of the Chapter 13 wage earner relief provisions, focusing on the present "good faith" controversy. Part II analyzes the "bona fide effort" test and examines its current congressional status. Part III suggests that more specific statutory guidance is necessary in order to effectively apply the "bona fide effort" test and recommends specific guidelines for its use. The article concludes that by following such a set of standard guidelines when applying the "bona fide effort" test, bankruptcy courts would promote uniform treatment of debtors, enhance judicial economy, and facilitate appellate review of Chapter …
Wage Discrimination And Job Segregation: The Survival Of A Theory, Ruth G. Blumrosen
Wage Discrimination And Job Segregation: The Survival Of A Theory, Ruth G. Blumrosen
University of Michigan Journal of Law Reform
My earlier article in this journal, Wage Discrimination, Job Segregation, and Title VII of the Civil Rights Act of 1964, advanced the theory that the same discriminatory factors which lead to job segregation are also likely to be responsible for wage differentials between segregated jobs. The discriminatorily depressed wage rate of the segregated job is therefore one of the "adverse effects" under Griggs v. Duke Power Co. of job segregation. In order to establish a prima facie case of wage discrimination in a Title VII action, plaintiffs must show the fact of job segregation - that the jobs were …
Political Broadcasting After The Aspen Ruling: Legislative Reform Of Section 315(A) Of The Communications Act Of 1934, Stuart N. Brotman
Political Broadcasting After The Aspen Ruling: Legislative Reform Of Section 315(A) Of The Communications Act Of 1934, Stuart N. Brotman
University of Michigan Journal of Law Reform
The FCC's new interpretation of section 315(a) in the Aspen ruling greatly reduced its inhibitory effect on broadcasters. The ruling, however, has created further interpretive problems regarding the broadcast debate format, and has not completely resolved the more general problem of giving the electorate greater and more direct exposure to candidates during campaigns through programming that forces candidates to confront each other on the major issues. This article will discuss the. background of section 315(a), then explain each of its exemptions. Finally, it will propose possible reforms in the area of political broadcasting in light of the Aspen ruling.
Emerging Standards For Implied Actions Under Federal Statutes, Gary W. Klotz
Emerging Standards For Implied Actions Under Federal Statutes, Gary W. Klotz
University of Michigan Journal of Law Reform
This article will examine the theoretical basis for finding implied causes of action in legislation and the development of the implication doctrine in the federal courts. In particular, the Cort v. Ash case will be discussed, both in terms of the standards articulated by the Supreme Court in dicta and the potential impact of Cort on the law of implied remedies.
Standing To Sue Under The Model Land Development Code, Richard L. Epling
Standing To Sue Under The Model Land Development Code, Richard L. Epling
University of Michigan Journal of Law Reform
The Model Land Development Code was promulgated by the American Law Institute as the paradigm for state legislatures to follow when enacting land use laws for the future. The Code is not intended to create uniformity among state laws. Instead, states may use the articles of the Code as models in drafting legislation that is more specifically suited to their needs. Article Nine, which states rules of standing to participate in land use disputes, poses a potential obstacle to would-be public interest litigants. This note will explore the effect of Article Nine on citizen plaintiffs and demonstrate how its ambiguous …
Logic And Laws: Relief From Statutory Obfuscation, Rudy Engholm
Logic And Laws: Relief From Statutory Obfuscation, Rudy Engholm
University of Michigan Journal of Law Reform
Ever-expanding use of the legislative process in recent years has resulted in a vast proliferation of statutes and regulations. The Public Acts of the First United States Congress (1789-91) filled only 203 pages. The Public Acts of the Thirty-first Congress (1850-51) filled 227 pages, those of the Sixty-first Congress (1909-11) filled 1459 pages, and those of the Ninety-first Congress (1969-71) filled 2938 pages. In addition, publication of new and recently amended federal regulations contributed to a Federal Register exceeding 45,000 pages in length in 1974. The growth of state statutory materials parallels this trend. Unfortunately, the technology of statutory expression …
Facially Neutral Criteria And Discrimination Under Title Vii: "Built-In Headwinds" Or Permissible Practices?, Dianne Brou Fraser
Facially Neutral Criteria And Discrimination Under Title Vii: "Built-In Headwinds" Or Permissible Practices?, Dianne Brou Fraser
University of Michigan Journal of Law Reform
This article discusses how Title VII affects the operation of these facially neutral practices and attempts to determine when such practices are unlawful under Title VII. It also discusses the possible effects of the Equal Employment Opportunity Act of 1972 on this problem.