Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

PDF

University of Michigan Law School

University of Michigan Journal of Law Reform

Discipline
Keyword
Publication Year

Articles 1 - 30 of 1254

Full-Text Articles in Law

Policing Hate Speech And Extremism: A Taxonomy Of Arguments In Opposition, Leonard M. Niehoff Jun 2019

Policing Hate Speech And Extremism: A Taxonomy Of Arguments In Opposition, Leonard M. Niehoff

University of Michigan Journal of Law Reform

Hate speech and extremist association do real and substantial harm to individuals, groups, and our society as a whole. Our common sense, experience, and empathy for the targets of extremism tell us that our laws should do more to address this issue. Current reform efforts have therefore sought to revise our laws to do a better job at policing, prohibiting, and punishing hate speech and extremist association.

Efforts to do so, however, encounter numerous and substantial challenges. We can divide them into three general categories: definitional problems, operational problems, and conscientious problems. An informed understanding of these three categories of ...


Does A Non-Extreme Answer To Extremism Exist?, Jeffrey Levicki Jun 2019

Does A Non-Extreme Answer To Extremism Exist?, Jeffrey Levicki

University of Michigan Journal of Law Reform

Foreword for the Journal of Law Reform symposium entitled Alt-Association: The Role of Law in Combatting Extremism.


Keynote Address, Sammy Rangel Jun 2019

Keynote Address, Sammy Rangel

University of Michigan Journal of Law Reform

The following is a transcription of Mr. Rangel’s keynote address presented at the University of Michigan Journal of Law Reform Symposium, Alt Association: The Role of Law in Combating Extremism on November 17, 2018, at the University of Michigan School of Law. The transcript has been lightly edited for clarity.


Protecting Local Authority In State Constitutions And Challenging Intrastate Preemption, Emily S.P. Baxter Jun 2019

Protecting Local Authority In State Constitutions And Challenging Intrastate Preemption, Emily S.P. Baxter

University of Michigan Journal of Law Reform

In recent years, state legislatures have increasingly passed laws that prohibit or preempt local action on a variety of issues, including fracking, LGBTQIA nondiscrimination, and workplace protections, among others. Often, these preemption laws are a direct response to action at the local level. States pass preemption laws either directly before or directly after a locality passes an ordinance on the same subject. Scholars have seen these preemptive moves as the outcome of the urban disadvantage in state and national government due to partisan gerrymandering.

Preemption may be a feature of our governing system, but it has also become a problematic ...


Different Problems Require Different Solutions: How Air Warfare Norms Should Inform Ihl Targeting Law Reform & Cyber Warfare, Christian H. Robertson Ii Jun 2019

Different Problems Require Different Solutions: How Air Warfare Norms Should Inform Ihl Targeting Law Reform & Cyber Warfare, Christian H. Robertson Ii

University of Michigan Journal of Law Reform

On February 19, 2018, United Nations Secretary-General Antonio Guterres claimed that he was “absolutely convinced” that “the next war will begin with a massive cyber-attack to destroy military capacity . . . and paralyze basic infrastructure.” The Secretary-General’s greatest concern, however, is that he believes “there is no regulatory scheme for that type of warfare, it is not clear how the Geneva Convention or international humanitarian law applies to it.” Although Additional Protocol I to the Geneva Conventions (AP I) targeting laws generally identify who and what States may target in war, it expressly limits itself to attacks affecting people and objects ...


Interview With Khaled Beydoun, Khaled Beydoun, Nina Mozeihem, Samuel Bagenstos Jun 2019

Interview With Khaled Beydoun, Khaled Beydoun, Nina Mozeihem, Samuel Bagenstos

University of Michigan Journal of Law Reform

The following is a transcription of an interview with Professor Khaled Beydoun, conducted at the University of Michigan Law School on March 15, 2019. The transcript has been lightly edited for clarity.


Guilt By Alt-Association: A Review Of Enhanced Punishment For Suspected Gang Members, Rebecca J. Marston Jun 2019

Guilt By Alt-Association: A Review Of Enhanced Punishment For Suspected Gang Members, Rebecca J. Marston

University of Michigan Journal of Law Reform

This essay, written in reaction to the University of Michigan Journal of Law Reform’s 2018 Symposium entitled “Alt-Association: The Role of Law in Combating Extremism” (the Symposium), does not dispute the seriousness of gang-related violence. Rather, it examines ways in which current strategies for combating gang-related crimes are ineffective or problematic and suggests possible reforms. Part One of this essay will describe current methods used in labeling, tracking, and prosecuting gang members, which result in a cycle of enhanced punishment. Part Two will evaluate these practices and reflect on whether enhanced punishment is the best way to reduce gang-related ...


Blurred Lines: What Is Extremism?, Anna C. Williford Jun 2019

Blurred Lines: What Is Extremism?, Anna C. Williford

University of Michigan Journal of Law Reform

The Michigan Journal of Law Reform Symposium, Alt-Association: The Role of Law in Combating Extremism (“the Symposium”), attempted to address the question of defining extremism. The Symposium aimed to provide a platform for filtering through the participants’ pre-conceived notions around extremism in order to challenge misconceptions about those labeled “extremist.” This word has been used time and time again in conversation, research, and even this paper without a concreate definition behind it. At the start of the Symposium, participants were asked to define extremism in their own words. The definitions produced were eye opening. For example, extremism was thought to ...


How To Decrease The Immigration Backlog: Expand Representation And End Unnecessary Detention, Kara A. Naseef Apr 2019

How To Decrease The Immigration Backlog: Expand Representation And End Unnecessary Detention, Kara A. Naseef

University of Michigan Journal of Law Reform

This Note recommends federal policy reform and local implementation in order to decrease the immigration backlog and protect the rights of non-citizens in immigration proceedings. Although non-citizens hold many of the fundamental rights and freedoms enumerated in the Constitution, several core rights— including due process and the right to counsel—are not rigorously upheld in the context of immigration proceeding. By carefully regulating expanded access to representation and ending unnecessary immigration detention, the Executive Office of Immigration Review and Congress will ensure the swift administration of justice and protect non-citizens under the federal government’s jurisdiction.


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 ...


The Innocent Villain: Involuntary Manslaughter By Text, Charles Adside Iii Apr 2019

The Innocent Villain: Involuntary Manslaughter By Text, Charles Adside Iii

University of Michigan Journal of Law Reform

Michelle Carter’s texts instructing her mentally ill online boyfriend to commit suicide offended the social moral code. But the law does not categorize all morally reprehensible behavior as criminal. Commonwealth v. Carter is unprecedented in manslaughter law because Carter was convicted on the theory that she was virtually present as opposed to physically present—at the crime scene. The court’s reasoning is expansive, as the framework it employs is excessively vague and does not provide fair notice to the public of which actions constitute involuntary manslaughter. Disturbingly, the Massachusetts Supreme Judicial Court affirmed the trial court’s logic ...


States Empowering Plaintiff Cities, Eli Savit Apr 2019

States Empowering Plaintiff Cities, Eli Savit

University of Michigan Journal of Law Reform

Across the country, cities are becoming major players in plaintiff’s-side litigation. With increasing frequency, cities, counties, and other municipalities are filing lawsuits to vindicate the public interest. Cities’ aggressive use of lawsuits, however, has been met with some skepticism from both scholars and states. At times, states have taken action—both legislative and via litigation—to preempt city-initiated suits.

This Article contends that states should welcome city-initiated public-interest lawsuits. Such litigation, this Article demonstrates, vindicates the principles of local control that cities exist to facilitate. What is more, a motivated plaintiff city can accomplish public-policy goals that are important ...


The Quantum Of Suspicion Needed For An Exigent Circumstances Search, Kit Kinports Apr 2019

The Quantum Of Suspicion Needed For An Exigent Circumstances Search, Kit Kinports

University of Michigan Journal of Law Reform

For decades, the United States Supreme Court opinions articulating the standard of exigency necessary to trigger the exigent circumstances exception to the Fourth Amendment’s warrant requirement have been maddeningly opaque and confusing. Some cases require probable cause, others call for reasonable suspicion, and still, others use undefined and unhelpful terms such as “reasonable to believe” in describing how exigent the situation must be to permit the police to proceed without a warrant. Not surprisingly, the conflicting signals coming from the Supreme Court have led to disagreement in the lower courts.

To resolve this conflict and provide guidance to law ...


Tort Justice Reform, Paul David Stern Apr 2019

Tort Justice Reform, Paul David Stern

University of Michigan Journal of Law Reform

This Article calls for a comprehensive reform of public tort law with respect to law enforcement conduct. It articulates an effective and equitable remedial regime that reconciles the aspirational goals of public tort law with the practical realities of devising payment and disciplinary procedures that are responsive to tort settlements and judgments. This proposed statutory scheme seeks to deter law enforcement misconduct without disincentivizing prudent officers from performing their duties or overburdening them with extensive litigation. Rather than lamenting the dissolution of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics or the insurmountability of qualified immunity, reform ...


Books And Olive Oil: Why Antitrust Must Deal With Consolidated Corporate Power, Carl T. Bogus Jan 2019

Books And Olive Oil: Why Antitrust Must Deal With Consolidated Corporate Power, Carl T. Bogus

University of Michigan Journal of Law Reform

Following an epic battle in the marketplace between Apple and major book publishers, on one side, and Amazon, on the other side, the United States Department of Justice and thirty-three states filed an antitrust lawsuit against Apple and the publishers, alleging that they had conspired to fix the prices of ebooks. Both the district court and a divided panel of the United States Court of Appeals for the Second Circuit decided the case in the government’s favor. This Article argues that government regulators and the courts took the wrong side in the dispute and did so because of fundamental ...


The Political Party System As A Public Forum: The Incoherence Of Parties As Free Speech Associations And A Proposed Correction, Wayne Batchis Jan 2019

The Political Party System As A Public Forum: The Incoherence Of Parties As Free Speech Associations And A Proposed Correction, Wayne Batchis

University of Michigan Journal of Law Reform

The Supreme Court’s jurisprudence addressing the associational rights of political parties is both highly consequential and deeply inconsistent. It dates back at least as far as the Court’s White Primary decisions more than a half-century ago. In recent decades, the Court has imposed an arguably ad hoc formula, striking down regulations on political parties on First Amendment grounds in some cases, while upholding them in others. From a jurisprudential perspective, critics might point to insufficiently principled distinctions between these cases. From a normative perspective, the very expansion of First Amendment rights to political parties, like the parallel extension ...


Robot Criminals, Ying Hu Jan 2019

Robot Criminals, Ying Hu

University of Michigan Journal of Law Reform

When a robot harms humans, are there any grounds for holding it criminally liable for its misconduct? Yes, provided that the robot is capable of making, acting on, and communicating the reasons behind its moral decisions. If such a robot fails to observe the minimum moral standards that society requires of it, labeling it as a criminal can effectively fulfill criminal law’s function of censuring wrongful conduct and alleviating the emotional harm that may be inflicted on human victims.

Imposing criminal liability on robots does not absolve robot manufacturers, trainers, or owners of their individual criminal liability. The former ...


Switching Employers In A Working World: American Immigrants And The Revocation Notice Problem, Julie Aust Jan 2019

Switching Employers In A Working World: American Immigrants And The Revocation Notice Problem, Julie Aust

University of Michigan Journal of Law Reform

A current tension in U.S. employment immigration law involves the notice requirements for prospective permanent residency—”green card”—applicants. Foreign workers oftentimes do not receive their green cards for more than ten years after beginning the permanent residency process. For almost four decades after the first major employment immigration legislation was passed in 1965, green card applicants were unable to change employers during this extremely long process without abandoning their applications. In 2000, Congress sought to remedy the problem by passing legislation allowing foreign workers to change employers without sacrificing progress on their green cards. This legislation, however, created ...


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 ...


Critiquing Matter Of A-B-: An Uncertain Future In Asylum Proceedings For Women Fleeing Intimate Partner Violence, Theresa A. Vogel Jan 2019

Critiquing Matter Of A-B-: An Uncertain Future In Asylum Proceedings For Women Fleeing Intimate Partner Violence, Theresa A. Vogel

University of Michigan Journal of Law Reform

The #MeToo movement has brought renewed attention to the impact of gender inequality on our society’s ability to provide protection to women from physical and sexual violence, including intimate partner violence. Despite advances in legal protections and increased resources to prevent, prosecute, and bring an end to intimate partner violence, in the absence of true efforts to combat gender inequality as a whole, intimate partner violence will continue to pervade our society. The discussion of gender inequality’s impact on the treatment of intimate partner violence must expand beyond the violence that occurs in the United States to gender ...


Accusers As Adjudicators In Agency Enforcement Proceedings, Andrew N. Vollmer Oct 2018

Accusers As Adjudicators In Agency Enforcement Proceedings, Andrew N. Vollmer

University of Michigan Journal of Law Reform

Largely because of the Supreme Court’s 1975 decision in Withrow v. Larkin, the accepted view for decades has been that a federal administrative agency does not violate the Due Process Clause by combining the functions of investigating, charging, and then resolving allegations that a person violated the law. Many federal agencies have this structure, such as the Securities and Exchange Commission (SEC) and the Federal Trade Commission.

In 2016, the Supreme Court decided Williams v. Pennsylvania, a judicial disqualification case that, without addressing administrative agencies, nonetheless raises a substantial question about one aspect of the combination of functions at ...


You Can’T Say That!: Public Forum Doctrine And Viewpoint Discrimination In The Social Media Era, Micah Telegen Oct 2018

You Can’T Say That!: Public Forum Doctrine And Viewpoint Discrimination In The Social Media Era, Micah Telegen

University of Michigan Journal of Law Reform

The growing prevalence of privately-owned social media platforms is changing the way Americans and their governments communicate. This shift offers new opportunities, but also requires a reinterpretation of the First Amendment’s proscription of government limitations of speech. The public forum doctrine and its proscription of viewpoint discrimination seem particularly stretched by the digital revolution and the development of social media. In ongoing cases, litigants and courts have invoked the doctrine to limit the government’s ability to ‘block’ those who comment critically on government pages—much to the chagrin of those who note the private status of the companies ...


Jury Selection In The Weeds: Whither The Democratic Shore?, Jeffrey Abramson Oct 2018

Jury Selection In The Weeds: Whither The Democratic Shore?, Jeffrey Abramson

University of Michigan Journal of Law Reform

This Article reports on four federal jury challenges in which the trial judge or defendants retained the author to provide research on jury selection plans. The research shows a persistent and substantial loss of representation for African Americans and Hispanics on federal juries, even though no intentional discrimination took place. Problems with undeliverable jury summonses, as well as failure to respond to summonses, were the main causes of departures from the ideal of cross-sectional jury selection. However, a cramped understanding of what it takes for a defendant to prove that minority jurors were systematically excluded, as required by Duren v ...


Agency Pragmatism In Addressing Law’S Failure: The Curious Case Of Federal “Deemed Approvals” Of Tribal-State Gaming Compacts, Kevin K. Washburn Oct 2018

Agency Pragmatism In Addressing Law’S Failure: The Curious Case Of Federal “Deemed Approvals” Of Tribal-State Gaming Compacts, Kevin K. Washburn

University of Michigan Journal of Law Reform

In the Indian Gaming Regulatory Act of 1988 (IGRA), Congress imposed a decision-forcing mechanism on the Secretary of the Interior related to tribal-state compacts for Indian gaming. Congress authorized the Secretary to review such compacts and approve or disapprove each compact within forty-five days of submission. Under an unusual provision of law, however, if the Secretary fails to act within forty-five days, the compact is “deemed approved” by operation of law but only to the extent that it is lawful. In a curious development, this regime has been used in a different manner than Congress intended. Since the United States ...


Post-Accountability Accountability, Nicole Stelle Garnett Oct 2018

Post-Accountability Accountability, Nicole Stelle Garnett

University of Michigan Journal of Law Reform

Over the past few decades, parental choice has exploded in the United States. Yet, despite early proponents’ hopes that parental choice would eliminate the need to regulate school quality—since parents’ choices would serve an accountability function—demands to use the law to hold chosen schools accountable for their academic performance are central features of education-reform debates today. This is an opportune time to consider the issue of academic accountability and parental choice. Parental choice has gained a firm foothold in the American educational landscape. As it continues to expand, debates about accountability for chosen schools will only intensify. The ...


Ensuring That Punishment Does, In Fact, Fit The Crime, Meredith D. Mcphail Oct 2018

Ensuring That Punishment Does, In Fact, Fit The Crime, Meredith D. Mcphail

University of Michigan Journal of Law Reform

The United States imprisons a greater proportion of its own population than any other country in the world.2 A legal framework provides protections for those individuals who are incarcerated, but that framework is flawed. The jurisprudence distinguishes pretrial detainees (who have not been convicted) from convicted persons (who are serving a sentence).3 Based on that distinction, different standards apply to conditions of confinement and use of force cases brought by pretrial detainees and those brought by convicted persons.4 That distinction–and the resulting disparate application of legal standards–does not comport with the reality of incarceration, the ...


Environmental Health Regulation In The Trump Era: How President Trump’S Two-For-One Regulatory Plan Impacts Environmental Regulation, Elizabeth Ann Glass Geltman Jun 2018

Environmental Health Regulation In The Trump Era: How President Trump’S Two-For-One Regulatory Plan Impacts Environmental Regulation, Elizabeth Ann Glass Geltman

University of Michigan Journal of Law Reform

This Article explores the Trump regulatory reform agenda and its potential impact on environmental determinants of health. The Article begins with a discussion of the Department of Commerce’s (DOC or Commerce) initial fact-finding investigation to evaluate the impact of federal regulations on domestic manufacturing. The Article next presents an overview of the Trump administration’s regulatory reform formula as announced in E.O. 13771 and the interim guidance explaining E.O. 13771 and E.O. 13777 (the executive order announcing the Trump administration’s plans to enforce the regulatory reform plan announced in E.O. 13771). The Article then ...


Evolution Of Water Institutions In The Indus River Basin: Reflections From The Law Of The Colorado River, Erum Sattar, Jason Robison, Daniel Mccool Jun 2018

Evolution Of Water Institutions In The Indus River Basin: Reflections From The Law Of The Colorado River, Erum Sattar, Jason Robison, Daniel Mccool

University of Michigan Journal of Law Reform

Transboundary water institutions in the Indus River Basin can be fairly characterized as broken in key respects. International relations between India and Pakistan over the Indus Waters Treaty, as well as interprovincial relations within Pakistan over the 1991 Water Accord, speak to this sentiment. Stemming from research undertaken by the authors for the Harvard Water Federalism Project and the United States Agency for International Development (USAID), this Article seeks to spur the evolution of the Indus River Basin’s water institutions by offering a comparative perspective from North America’s most “institutionally encompassed” basin, the Colorado River Basin. Mindful of ...


The Case For Effective Environmental Politics: Federalist Or Unitary State? Comparing The Cases Of Canada, The United States Of America, And The People’S Republic Of China, Justin Fisch Jun 2018

The Case For Effective Environmental Politics: Federalist Or Unitary State? Comparing The Cases Of Canada, The United States Of America, And The People’S Republic Of China, Justin Fisch

University of Michigan Journal of Law Reform

Federalism, by its nature, is a segmented system of governance. The Canadian and American constitutional orders are divided along very clear lines of jurisdictional authority between levels of government. Environmental issues, by their nature, are holistic in scope—they transcend borders, governments, jurisdictions, and authorities. For this reason, one might assume that a unitary state would be better positioned to tackle them. Is this justified? This Article examines the Chinese unitary state, in comparison to the federalist systems in Canada and the United States of America, to discern whether a unitary government can better manage issues plaguing the environment.


Misbehavioral Law And Economics, Jacob Hale Russell Apr 2018

Misbehavioral Law And Economics, Jacob Hale Russell

University of Michigan Journal of Law Reform

Many legal rules—ranging from common-law contract doctrines to modern consumer protection regulations—are designed to protect individuals from their own mistakes. But scholars have neglected a core difficulty facing such policies: we humans are a motley bunch, and we are defined in part by our idiosyncrasies. As a result, one person’s mistake is another’s ideal choice. Making matters worse, it is hard to observe when a policy response misfires. If cognitive errors and psychological biases are as prevalent as current research suggests, then we have no reliable way of knowing consumers’ true preferences. So are we always ...