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Full-Text Articles in Law

Restoring The Power Of The Convening Authority To Adjust Sentences, Jacob R. Weaver Dec 2020

Restoring The Power Of The Convening Authority To Adjust Sentences, Jacob R. Weaver

Michigan Law Review

In 2013, Congress abrogated the power of certain military officers to reduce court-martial sentences, thereby eliminating a military defendant’s best hope for efficient and effective relief from common legal errors in the military justice system. While the overhaul of the Uniform Code of Military Justice (UCMJ) in 2016 promised significant reform, it ultimately failed to substantially reduce common legal errors. This Note analyzes how the 2013 and 2016 reforms have combined to prevent military defendants from receiving timely and adequate relief. In light of this analysis, this Note suggests an amendment to the UCMJ that would restore to certain ...


Innovation In A Legal Vacuum: The Uncertain Legal Landscape For Shared Micro-Mobility, David Pimentel, Michael B. Lowry, Timothy W. Koglin, Ronald W. Pimentel Sep 2020

Innovation In A Legal Vacuum: The Uncertain Legal Landscape For Shared Micro-Mobility, David Pimentel, Michael B. Lowry, Timothy W. Koglin, Ronald W. Pimentel

Journal of Law and Mobility

The last few years have seen an explosion in the number and size shared micro-mobility systems (“SMMS”) across the United States. Some of these systems have seen extraordinary success and the potential benefit of these systems to communities is considerable. However, SMMS have repeatedly ran into legal barriers that either prevent their implementation entirely, confuse and dissuade potential users, or otherwise limit SMMS’s potential positive impact.

This paper reflects a detailed study of state laws relating to SMMS and the platforms commonly used in these systems. The study uncovered many inconsistencies with micro-mobility laws across the country. Currently, many ...


A Better Madden Fix: Holistic Reform, Not Band-Aids, To Modernize Banking Law, Matthew J. Razzano Jul 2020

A Better Madden Fix: Holistic Reform, Not Band-Aids, To Modernize Banking Law, Matthew J. Razzano

University of Michigan Journal of Law Reform Caveat

Historically, state usury laws prohibited lending above certain interest rates, but in 1978 the Supreme Court interpreted the National Bank Act (NBA) to allow chartered banks to issue loans at rates based on where they were headquartered rather than where the loan originated. States like South Dakota virtually eliminated interest rate ceilings to attract business, incentivizing national banks to base credit operations there and avoid local usury laws. In 2015, however, the Second Circuit decided Madden v. Midland Funding, LLC and reversed long-standing banking practices, ruling that non-chartered financial institutions were not covered by the NBA and were therefore subject ...


Fee-Shifting Statutes And Compensation For Risk, Maureen S. Carroll Jun 2020

Fee-Shifting Statutes And Compensation For Risk, Maureen S. Carroll

Articles

A law firm that enters into a contingency arrangement provides the client with more than just its attorneys' labor. It also provides a form of financing, because the firm will be paid (if at all) only after the litigation ends; and insurance, because if the litigation results in a low recovery (or no recovery at all), the firm will absorb the direct and indirect costs of the litigation. Courts and markets routinely pay for these types of risk-bearing services through a range of mechanisms, including state fee shifting statutes, contingent percentage fees, common-fund awards, alternative fee arrangements, and third-party litigation ...


Golden Parachutes And The Limits Of Shareholder Value, Albert H. Choi, Andrew C.W. Lund, Robert Schonlau Jan 2020

Golden Parachutes And The Limits Of Shareholder Value, Albert H. Choi, Andrew C.W. Lund, Robert Schonlau

Articles

With the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act in 2010, Congress attempted to constrain change-in-control payments (also known as “golden parachutes”) by giving shareholders the right to approve or disapprove such payments on an advisory basis. This Essay is the first to empirically examine the experience with the Say-on-Golden-Parachute (“SOGP”) vote. We find that unlike shareholder votes on proposed mergers, there is a significant amount of variation with respect to votes on golden parachutes. Notwithstanding the variation, however, the SOGP voting regime is likely ineffective in controlling golden parachute (“GP”) compensation. First, proxy advisors seem ...


Making A Reasonable Calculation: A Strategic Amendment To The Idea, Hetali M. Lodaya Jan 2020

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 ...


What The Awards Tell Us About Labor Arbitration Of Employment Discrimination Claims, Ariana R. Levinson Jun 2019

What The Awards Tell Us About Labor Arbitration Of Employment Discrimination Claims, Ariana R. Levinson

Ariana R. Levinson

This Article contributes to the debate over mandatory arbitration of employment-discrimination claims in the unionized sector. In light of the proposed prohibition on union waivers in the Arbitration Fairness Act, this debate has significant practical implications. Fundamentally, the Article is about access to justice. It examines 160 labor arbitration opinions and awards in employment-discrimination cases. The author concludes that labor arbitration is a forum in which employment-discrimination claims can be-and, in some cases, are-successfully resolved. Based upon close examination of the opinions and awards, the Article recommends legislative improvements in certain cases targeting statutes of limitations, compulsory process, remedies, class ...


21st Century Cures Act: The Problem With Preemption In Light Of Deregulation, Megan C. Andersen Apr 2019

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 ...


Legislatively Directed Judicial Activism: Some Reflections On The Meaning Of The Civil Justice Reform Act, Matthew R. Kipp, Paul B. Lewis Mar 2019

Legislatively Directed Judicial Activism: Some Reflections On The Meaning Of The Civil Justice Reform Act, Matthew R. Kipp, Paul B. Lewis

Paul Lewis

With the Civil Justice Reform Act (CJRA), Congress attempted to further a trend that the federal judiciary had undertaken largely on its own initiative. Sensing a critical need to address the mounting expense and delay of federal civil litigation, Congress, like the judiciary, sought to increase the degree of early and active involvement of judges in the adjudicatory process. The result of this mandate has been a further emphasis on the role of the judge as a case manager. As a necessary corollary, the liberty and self-determination of individual litigants-ideals that have historically been seen as philosophical cornerstones of the ...


This We’Ll Defend: Expanding Ucmj Article 2 Subject Matter Jurisdiction As A Response To Nonconsensual Distribution Of Illicit Photographs, Nicholas Karp Jan 2019

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 ...


An American Approach To Social Democracy: The Forgotten Promise Of The Fair Labor Standards Act, Kate Andrias Jan 2019

An American Approach To Social Democracy: The Forgotten Promise Of The Fair Labor Standards Act, Kate Andrias

Articles

There is a growing consensus among scholars and public policy experts that fundamental labor law reform is necessary in order to reduce the nation’s growing wealth gap. According to conventional wisdom, however, a social democratic approach to labor relations is uniquely un-American—in deep conflict with our traditions and our governing legal regime. This Article calls into question that conventional account. It details a largely forgotten moment in American history: when the early Fair Labor Standards Act (FLSA) established industry committees of unions, business associations, and the public to set wages on an industry-by-industry basis. Alongside the National Labor ...


Improving Employer Accountability In A World Of Private Dispute Resolution, Hope Brinn Jan 2019

Improving Employer Accountability In A World Of Private Dispute Resolution, Hope Brinn

Michigan Law Review

Private litigation is the primary enforcement mechanism for employment discrimination laws like Title VII, the Americans with Disabilities Act, and many related state statutes. But the expansion of extrajudicial dispute resolution—including both arbitration and prelitigation settlement agreements—has compromised this means of enforcement. This Note argues that state-enacted qui tam laws can revitalize the enforcement capacity of private litigation and provides a roadmap for enacting such legislation.


Securities Law In The Sixties: The Supreme Court, The Second Circuit, And The Triumph Of Purpose Over Text, Adam C. Pritchard, Robert B. Thompson Nov 2018

Securities Law In The Sixties: The Supreme Court, The Second Circuit, And The Triumph Of Purpose Over Text, Adam C. Pritchard, Robert B. Thompson

Articles

This Article analyzes the Supreme Court’s leading securities cases from 1962 to 1972—SEC v. Capital Gains Research Bureau, Inc.; J.I. Case Co. v. Borak; Mills v. Electric Auto-Lite Co.; Superintendent of Insurance v. Bankers Life & Casualty Co.; and Affiliated Ute of Utah v. United States—relying not just on the published opinions, but also the Justices’ internal letters, memos, and conference notes. The Sixties Court did not simply apply the text as enacted by Congress, but instead invoked the securities laws’ purposes as a guide to interpretation. The Court became a partner of Congress in shaping the securities laws ...


Informed Trading And Its Regulation, Merritt B. Fox, Lawrence R. Glosten, Gabriel V. Rauterberg Jun 2018

Informed Trading And Its Regulation, Merritt B. Fox, Lawrence R. Glosten, Gabriel V. Rauterberg

Articles

Informed trading--trading on information not yet reflected in a stock's price-- drives the stock market. Such informational advantages can arise from astute analysis of varied pieces of public news, from just released public information, or from confidential information from inside a firm. We argue that these disparate types of trading are all better regulated as part of the broader phenomenon of informed trading. Informed trading makes share prices more accurate, enhancing the allocation of capital, but also makes markets less liquid, which is costly to the efficiency of trade. Informed trading thus poses a fundamental trade-off in how it ...


Symbols, Systems, And Software As Intellectual Property: Time For Contu, Part Ii?, Timothy K. Armstrong May 2018

Symbols, Systems, And Software As Intellectual Property: Time For Contu, Part Ii?, Timothy K. Armstrong

Michigan Telecommunications & Technology Law Review

The functional nature of computer software underlies two propositions that were, until recently, fairly well settled in intellectual property law: first, that software, like other utilitarian articles, may qualify for patent protection; and second, that the scope of copyright protection for software is comparatively limited. Both propositions have become considerably shakier as a result of recent court decisions. Following Alice Corp. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014), the lower courts have invalidated many software patents as unprotectable subject matter. Meanwhile, Oracle America v. Google Inc., 750 F.3d 1339 (Fed. Cir. 2014) extended far more expansive ...


Removing Camouflaged Barriers To Equality: Overcoming Systemic Sexual Assault And Harassment At The Military Academies, Rebecca Weiant May 2018

Removing Camouflaged Barriers To Equality: Overcoming Systemic Sexual Assault And Harassment At The Military Academies, Rebecca Weiant

Michigan Journal of Gender & Law

The Education Amendments of 1972 introduced requirements to protect female students from discriminatory policies at post-secondary institutions. A portion of those amendments, commonly known as Title IX, require that no students be subjected to discrimination based on their sex by any educational institution or activity receiving federal financial assistance. An exemption under § 1681(a)(4), however, explicitly prohibits application of Title IX to any educational institution whose primary purpose is to train individuals for military service or the merchant marine. Although those students are still subject to stringent conduct standards, the service academies themselves are tethered to sex discrimination policies ...


Establishing A More Effective Safmr System: The Cost And Benefits Of Hud's 2016 Small Area Fair Market Rent Rule, John Treat Apr 2018

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 ...


Third-Party Institutional Proxy Advisors: Conflicts Of Interest And Roads To Reform, Matthew Fagan Apr 2018

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 ...


Accessible Reliable Tax Advice, Emily Cauble Apr 2018

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 ...


Protecting Whistleblowing (And Not Just Whistleblowers), Evan J. Ballan Dec 2017

Protecting Whistleblowing (And Not Just Whistleblowers), Evan J. Ballan

Michigan Law Review

When the government contracts with private parties, the risk of fraud runs high. Fraud against the government hurts everyone: taxpayer money is wasted on inferior or nonexistent products and services, and the public bears the burdens attendant to those inadequate goods. To combat fraud, Congress has developed several statutory frameworks to encourage whistleblowers to come forward and report wrongdoing in exchange for a monetary reward. The federal False Claims Act allows whistleblowers to file an action in federal court on behalf of the United States, and to share in any recovery. Under the Dodd- Frank Act, the SEC Office of ...


Making Bureaucracies Think Distributively: Reforming The Administrative State With Action-Forcing Distributional Review, Kenta Tsuda Nov 2017

Making Bureaucracies Think Distributively: Reforming The Administrative State With Action-Forcing Distributional Review, Kenta Tsuda

Michigan Journal of Environmental & Administrative Law

This Article proposes that agencies analyze the distributional impacts of major regulatory actions, subject to notice-and-comment procedures and judicial review. The proposal responds to the legitimacy crisis that the administrative state currently faces in a period of widening economic inequality. Other progressive reform proposals emphasize the need for democratization of agencies. But these reforms fail to address the two fundamental pitfalls of bureaucratic governance: the “knowledge problem”—epistemic limitations on centrally coordinated decision making—and the “incentives problem”—the challenge of aligning the incentives of administrative agents and their political principals.

A successful administrative reform must address both problems. Looking ...


The Civil Redress And Historical Memory Act Of 2029: A Legislative Proposal, William J. Aceves Nov 2017

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 ...


Prisoners With Disabilities, Margo Schlanger Nov 2017

Prisoners With Disabilities, Margo Schlanger

Book Chapters

A majority of American prisoners have at least one disability. So how jails and prisons deal with those prisoners’ needs is central to institutional safety and humaneness, and to reentry success or failure. In this chapter, I explain what current law requires of prison and jail officials, focusing on statutory and constitutional law mandating non-discrimination, accommodation, integration, and treatment. Jails and prisons have been very slow to learn the most general lesson of these strictures, which is that officials must individualize their assessment of and response to prisoners with disabilities. In addition, I look past current law to additional policies ...


Humanizing The Corporation While Dehumanizing The Individual: The Misuse Of Deferred-Prosecution Agreements In The United States, Andrea Amulic Oct 2017

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 ...


La Responsabilisation De L'Economie: What The United States Can Learn From The New French Law On Consumer Overindebtedness, Jason J. Kilborn Jan 2017

La Responsabilisation De L'Economie: What The United States Can Learn From The New French Law On Consumer Overindebtedness, Jason J. Kilborn

Jason Kilborn

This Article on the French law continues a study of European consumer debt-relief systems, which the author began previously in an article on the German system. With rapid legal and practical developments in consumer debt-relief law, Europe provides an excellent comparative legal laboratory for observing the potential benefits and pitfalls of consumer bankruptcy reforms. In particular, French and German experiences with long-term payment plans shed useful light on the great debate raging in the United States over similar plans.


Counting Zeros: The Every Student Succeeds Act And The Testing Opt-Out Movement, Paul A. Hoversten Jan 2017

Counting Zeros: The Every Student Succeeds Act And The Testing Opt-Out Movement, Paul A. Hoversten

Michigan Law Review Online

The story begins with threatening letters. In October 2014, the U.S. Department of Education reminded Colorado’s chief state school officer that the department “ha[d], in fact, withheld Title I, Part A administrative funds . . . from a number of States for failure to comply with the assessment requirements” under the Elementary and Secondary Education Act. Given the occasion, the department implied, it wouldn’t hesitate to be ruthless.

Colorado could be forgiven for assuming it was authorized to craft its own policies in this arena; according to the Wall Street Journal, the Every Student Succeeds Act (ESSA) represented “the ...


Statutory Progress And Obstacles To Achieving An Effective Criminal Legislation Against The Modern Day Forms Of Slavery: The Case Of France, Bénédicte Bourgeois Jan 2017

Statutory Progress And Obstacles To Achieving An Effective Criminal Legislation Against The Modern Day Forms Of Slavery: The Case Of France, Bénédicte Bourgeois

Michigan Journal of International Law

In August 2013, the French Parliament passed a statute meant to bring domestic law into conformity with several European legal instruments recently adopted. The statute explicitly addressed for the first time contemporary forms of slavery, servitude, and forced labor by establishing a set of four offenses that criminalize these three types of severe labor exploitation. For lawmakers as well as for many stakeholders in the fight against modern-day slavery, that achievement marked the culmination of a series of piecemeal amendments to criminal law and narrow advances in case law, which gradually enhanced the penal repression of modern-day slavery over the ...


Financial Reform: Making The System Safer And Fairer, Michael S. Barr Jan 2017

Financial Reform: Making The System Safer And Fairer, Michael S. Barr

Articles

In the fall of 2008, the financial crisis crushed the U.S. economy and plunged the country into the Great Recession. The crisis shuttered American businesses, cost millions of Americans their jobs, and wiped out home values and household savings. The macro effects hit hardest and were the longest lasting for those least able to bear the brunt of the crisis. It was devastating to middle-income families and perhaps even more so to low- and moderate-income households, who had little financial buffer (Barr 2012a). Financial stability, never robust for these families, dropped precipitously (Barr and Schaffa 2016). Both in the ...


Fetishizing Copies, Jessica Litman Jan 2017

Fetishizing Copies, Jessica Litman

Book Chapters

Our copyright laws encourage authors to create new works and communicate them to the public, because we hope that people will read the books, listen to the music, see the art, watch the films, run the software, and build and inhabit the buildings. That is the way that copyright promotes the Progress of Science. Recently, that not-very-controversial principle has collided with copyright owners’ conviction that they should be able to control, or at least collect royalties from, all uses of their works. A particularly ill-considered manifestation of this conviction is what I have decided to call copy-fetish. This is the ...


Resolving The Divided Patent Infringement Dilemma, Nathanial Grow Nov 2016

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 ...