Law Commons^™

Criminal Certification: Restoring Comity In The Categorical Approach, Joshua Rothenberg

University of Michigan Journal of Law Reform

Federal sentencing enhancements force federal courts to delve into the world of substantive state criminal law. Does a state assault statute require violent force or just offensive touching? Does a state burglary statute that criminalizes breaking into a car or a house require prosecutors to charge the location entered as an element? Whether a person with prior convictions convicted of violating 18 U.S.C. § 922(g) faces a minimum sentence of fifteen years and a maximum of life imprisonment rather than a maximum sentence of ten years turns upon the answers to these questions. Yet, state law often does not resolve …

Reforming Sec Alj Proceedings, Joanna Howard

University of Michigan Journal of Law Reform

This Note considers the current constitutional challenges to SEC administrative proceedings and suggests process reforms to enhance fairness for respondents. Challenges have developed since the Dodd-Frank Act expanded the SEC’s ability to use administrative proceedings. Arguments that there is a pre-existing flaw in the method of appointing administrative law judges provide the most potential for success. The Tenth Circuit’s December 2016 decision against the SEC in Bandimere has created a split, diverging from the D.C. Circuit’s analysis of that question in Lucia. Resolution by the Supreme Court may be inevitable. Even if the challengers do ultimately succeed, this will …

Police Interrogations, False Confessions, And Alleged Child Abuse Cases, Richard Leo

University of Michigan Journal of Law Reform

A discussion on false confession cases in the United States.

A Legal Obituary For Ramiro, Sheri Lynn Johnson

University of Michigan Journal of Law Reform

Most death penalty lawyers who practice long enough will watch the execution of a client. It is always, always terrible, but not always terrible in the same way. With each client’s execution, a lawyer is confronted with the death of a human being—not an accidental death, not an inevitable death, but an avoidable one—and with his or her own failure to prevent that death. Some executions also involve a very personal loss for the lawyer because of their relationship with the client. Other executions are horrific because things go awry and impose extreme suffering on the executed individual. No matter …

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. …

When Children Object: Amplifying An Older Child’S Objection To Termination Of Parental Rights, Brent Pattison

University of Michigan Journal of Law Reform

Each year, thousands of children become wards of the state when a court terminates the legal rights of their parents. Between 2010 and 2014, more than 307,000 children lost their legal relationships to their parents in Termination of Parental Rights (TPR) proceedings. A growing percentage of child welfare cases involve older children. At the same time, too many young people lose their legal relationships with their parents without a family waiting to adopt them. The stakes are high for children in TPR cases; nonetheless, many children—even older children—cannot meaningfully participate in proceedings. Moreover, TPR cases threaten parents’ and children’s rights …

Think Of The Children: Using Iied To Reformulate Disturbing Speech Restrictions, Richard Lorren Jolly

University of Michigan Journal of Law Reform

The Colorado State Court of Appeals recently upheld an injunction restricting public displays of aborted fetuses. The court held that the restriction passed strict scrutiny because the state had a compelling interest in protecting children from the psychological harm of “disturbing images” and the injunction was narrowly tailored. This marked the first time an injunction had been upheld on this rationale. This Note critiques that holding and others. It contends that while some federal and state courts have recognized the interest in protecting the psychological wellbeing of children from disturbing speech as compelling, the interest is not supported by precedent. …

Milkovich V. Lorain Journal Twenty-Five Years Later: The Slow, Quiet, And Troubled Demise Of Liar Libel, Leonard Niehoff, Ashley Messenger

University of Michigan Journal of Law Reform

In Milkovich v. Lorain Journal Co., the Supreme Court held that there is no separate constitutional protection for statements of opinion. It also held that an accusation that an individual lied is a statement of fact actionable in defamation. Lower courts have, correctly in our view, essentially ignored both holdings. In Part I we discuss Milkovich and the infirmities in its reasoning. In Part II we discuss the complex nature of lies and accusations of lies and argue that Milkovich failed to account for that complexity. In Part III we discuss the strategies the lower courts have used to …

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 …

Minimizing Probate-Error Risk, Mark Glover

University of Michigan Journal of Law Reform

Probate-error risk is the possibility that a court will incorrectly assess the authenticity of a will. By prescribing the method courts use to evaluate the authenticity of wills, the law of will-execution allocates probate-error risk between false-positive outcomes and false-negative outcomes. When a court validates an inauthentic will, it creates a false-positive outcome. When a court invalidates an authentic will, it creates a false-negative outcome. Because false-positive outcomes result in the admission to probate of inauthentic wills and false-negative outcomes result in the denial of probate of genuine wills, both can be characterized as probate errors. This framework has been …

Proportional Response: The Need For More—And More Standardized—Veterans’ Courts, Claudia Arno

University of Michigan Journal of Law Reform

Over the past two decades, judges and legislators in a number of states have recognized significant shortcomings in the ways traditional systems of criminal corrections address cases involving criminal offenders who are veterans of the U.S. armed services. This recognition has come at a time when policy-makers have similarly recognized that, for certain subsets of criminal offenders, “diversionary” programs may achieve better policy results than will traditional criminal punishment. In accordance with these dual recognitions, some states have implemented systems of veterans’ courts, in which certain offenders, who are also U.S. veterans, are diverted into programs that provide monitoring, training, …

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 …

Between The Ceiling And The Floor: Making The Case For Required Disclosure Of High-Low Agreements To Juries, Richard Lorren Jolly

University of Michigan Journal of Law Reform

Parties are increasingly using high-low agreements to limit the risks of litigation. High-low agreements are contracts in which defendants agree to pay plaintiffs a minimum recovery in return for plaintiffs’ agreement not to execute on a jury award above a maximum amount. Currently no jurisdiction requires high-low agreements to be disclosed to the jury. This Note argues that disclosure should be required. It contends that non-disclosed high-low agreements are a type of procedural contract modifying the jury’s core adjudicative function. Drawing on theories of procedural justice, it suggests that by usurping the jury’s role these agreements undermine the legitimacy of …

Post-Sentencing Appellate Waivers, Kevin Bennardo

University of Michigan Journal of Law Reform

A sentencing appellate waiver is a criminal defendant’s promise not to appeal her sentence. These provisions routinely appear in federal defendants’ plea agreements. With a few narrow exceptions, a knowing and voluntary sentencing appellate waiver bars a defendant from appealing all issues within the waiver’s scope. Using models of judicial behavior and empirical studies, this Article argues that the inclusion of sentencing appellate waivers in plea agreements creates bargaining inefficiencies and removes important incentives from the sentencing process. As a solution, the Article proposes that sentencing appellate waivers should take the form of separate post-sentencing agreements.

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 …

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. …

Discretionary (In)Justice: The Exercise Of Discretion In Claims For Asylum, Kate Aschenbrenner

University of Michigan Journal of Law Reform

Section 208(a) of the Immigration and Nationality Act provides that asylum may be granted to an applicant who meets the definition of a refugee-that is, someone who has been persecuted or has a well-founded fear of future persecution in her own country on account of race, religion, nationality, political opinion, or membership in a particular social group. Asylum is a discretionary form of relief which means that the United States government is not required to grant asylum to every refugee within the United States but instead may decide whether or not to do so. This Article sets out in Part …

The Federal Common Law Of Vicarious Fiduciary Liability Under Erisa, Colleen E. Medill

University of Michigan Journal of Law Reform

The Employee Retirement Income Security Act of 1974 ("ERISA"), the federal law that regulates employer-sponsored benefit plans, has a rich history of judiciallycreated federal common law. This Article explores the theoretical, policy, statutory, and stare decisis grounds for the development of another area offederal common law under ERISA-the incorporation of respondeat superior liability principles to impose ERISA fiduciary liability ("vicarious fiduciary liability") upon a corporation for the fiduciary activities of its employees or agents. The Article proposes that the federal courts should adopt a federal common law rule of vicarious fiduciary liability under ERISA based on the traditional scope of …

Presumed Guilty Until Proven Innocent: The Burden Of Proof In Wrongful Conviction Claims Under State Compensation Statutes, Daniel S. Kahn

University of Michigan Journal of Law Reform

Despite significant efforts to uncover and prevent wrongful convictions, little attention has been paid to the compensation of wrongfully convicted individuals once they are released from prison. State compensation statutes offer the best path to redress because they do not require the claimant to prove that the state was at fault for the wrongful conviction and because they are not susceptible to the same political influences as other methods of compensation. However, even under compensation statutes, too many meritorious claims are dismissed, settled for far too little, or never brought in the first place. After examining the current statutory framework, …

Case For Overseas Article Iii Courts: The Blackwater Effect And Criminal Accountability In The Age Of Privatization, The, Alan F. Williams

University of Michigan Journal of Law Reform

A series of high-profile cases involving the alleged murders of Iraqi civilians by U.S. contractors operating overseas has highlighted the longstanding problem of how best to address crimes committed overseas by civilian employees, dependents, or contractors of the U.S. government. Among the most notorious of these incidents is the alleged killing of seventeen Iraqi civilians in Nisour Square in Baghdad on September 16, 2007 by employees of Blackwater Worldwide, a private corporation specializing in military operations that has subsequently renamed itself "Xe."2News reports of this incident prompted embarrassment and outrage as many Americans learned that U.S. civilian contractors like the …

Troubled Children And Children In Trouble: Redefining The Role Of The Juvenile Court In The Lives Of Children, Ann Reyes Robbins

University of Michigan Journal of Law Reform

This Essay considers the emerging research in the area of dual-jurisdiction children, often referred to as "crossover kids "-those currently or previously involved in maltreatment proceedings who have also committed delinquent acts. Part I describes the development of the juvenile courts in the early twentieth century. Part II of this Essay questions the need to "track" children along one legal path or another and points to the pitfalls of providing services to some children through a criminal justice paradigm instead of treating all children through a social work paradigm. Finally, Part III advocates a redesign of the juvenile court- a …

The Arizona Jury Reform Permitting Civil Jury Trial Discussions: The Views Of Trial Participants, Judges, And Jurors, Valerie P. Hans, Paula L. Hannaford, G. Thomas Munslerman

University of Michigan Journal of Law Reform

In 1995, the Arizona Supreme Court reformed the jury trial process by allowing civil jurors to discuss the evidence presented during trial prior to their formal deliberations. This Article examines and evaluates the theoretical, legal, and policy issues raised by this reform and presents the early results of afield experiment that tested the impact of trial discussions. Jurors, judges, attorneys, and litigants in civil jury trials in Arizona were questioned regarding their observations, experiences, and reactions during trial as well as what they perceived to be the benefits and drawback of juror discussions. The data revealed that the majority of …

Creating A Seamless Transition From Jury Box To Jury Room For More Effective Decision Making, Annie King Phillips

University of Michigan Journal of Law Reform

Why am I writing here? I am not a judge or lawyer, and I may never be. I don't even play one on TV. In searching for an answer to this question, it came to mind that at sometime in everyone's life, there is a need to enter the court system-as a victim, offender, witness, court staff or juror. The interactions among these persons impact the effective administration of justice in our court system. Every two years for the past eighteen years (like the tick of a clock), I am summoned to jury duty at either the District of Columbia …

Accountable Managed Care: Should We Be Careful What We Wish For?, David A. Hyman

University of Michigan Journal of Law Reform

Managed care is exceedingly unpopular of late. Many people believe that the problem is managed care organizations (MCOs) are unaccountable. Indeed, for many people, the creation of tort-based accountability for MCOs is the touchstone for assessing legislative "reform." The case for tort-based accountability is actually quite complex, and the merits of tort-based accountability cannot be resolved with sound bites and bad anecdotes. Tort-based accountability has both costs and benefits, and little attention has been paid to the extent to which alternatives to tort-based accountability are found in existing institutional arrangements.

This Article systematically considers the extent to which alternatives to …

Speaking To Tribal Judges On The Matter Of Improving Children's Court Practice In Child Abuse And Neglect Cases In Our Country: A Proposal For A Uniform Children's Code, Julian D. Pinkham

University of Michigan Journal of Law Reform

Since the 1970 the responsibilities of the tribal children's courts have increased dramatically. In child welfare case tribal courts no longer simply determine whether a child has been abused or neglected. They now also oversee the placement of the child in a shelter, foster care, or a permanent home, as well as determine the parent's treatment or visitation rights The complexity of the cases causes unacceptable delays in placing Indian children in need of care and hinders the placement of Indian children within the tribal community.

Judge Pinkham introduces a proposed solution to the problems of current tribal child welfare …

The Three-Judge District Court In Voting Rights Litigation, Michael E. Solimine

University of Michigan Journal of Law Reform

In recent Terms the Supreme Court has heard numerous appeals from the decisions of three-judge district courts in controversial Voting Rights Act cases as well as in challenges to congressional districts designed allegedly to facilitate the election of members of minority groups. Although the cases themselves have been followed closely, the institution of the three-judge district court itself has received relatively little attention, even though Congress passed legislation in 1976 that restricted the three-judge court's jurisdiction to reapportionment and certain Voting Rights Act cases. In this Article, Professor Solimine argues that numerous problems attend the formation and operation of such …

The Future Of The Post-Batson Peremptory Challenge: Voir Dire By Questionnaire And The "Blind" Peremptory, Jean Montoya

University of Michigan Journal of Law Reform

This Article examines the peremptory challenge as modified by Batson and its progeny. The discussion is based in part on a survey of trial lawyers, asking them about their impressions of the peremptory challenge, Batson, and jury selection generally. The Article concludes that neither the peremptory challenge nor Batson achieve their full potential. Primarily because of time and other constraints on voir dire, the peremptory challenge falls short as a tool in shaping fair and impartial juries. While Batson may prevent some unlawful discrimination in jury selection, Batson falls short as a tool in identifying unlawful discrimination once it …

Unemployment Compensation For Employees Of Educational Institutions: How State Courts Have Created Variations On Federally Mandated Statutory Language, Maribeth Wilt-Seibert

University of Michigan Journal of Law Reform

Over the past sixty years, Congress has enacted a system of unemployment insurance for workers who have become unemployed through no fault of their own. While the Social Security Act of 1935 created much of the statutory framework for this system of insurance, Congress did not include employees of educational institutions within its system of unemployment insurance until 1970, when it amended the Federal Unemployment Tax Act of 1954 (FUTA). Since Congress enacted those amendments, each of the fifty states has passed legislation that substantially conforms to the FUTA amendments. Yet, despite the uniformity of state statutory language, state appellate …