Law Commons^™

Dismantling The Master’S House: Toward A Justice-Based Theory Of Community Economic Development, Etienne C. Toussaint

University of Michigan Journal of Law Reform

Since the end of the American Civil War, scholars have debated the efficacy of various models of community economic development, or CED. Historically, this debate has tracked one of two approaches: place-based models of CED, seeking to stimulate community development through market-driven economic growth programs, and people-based models of CED, focused on the removal of structural barriers to social and economic mobility that prevent human flourishing. More recently, scholars and policymakers have turned to a third model from the impact investing community—the social impact bond, or SIB. The SIB model of CED ostensibly finds a middle ground by leveraging funding …

Rethinking Immigration’S Mandatory Detention Regime: Politics, Profit, And The Meaning Of “Custody”, Philip L. Torrey

University of Michigan Journal of Law Reform

Immigration detention in the United States is a crisis that needs immediate attention. U.S. immigration detention facilities hold a staggering number of persons. Widely believed to have the largest immigration detention population in the world, the United States detained approximately 478,000 foreign nationals in Fiscal Year 2012. U.S. Immigration and Customs Enforcement (ICE), the agency responsible for immigration enforcement, boasts that the figure is “an all-time high.” In some ways, these numbers are unsurprising, considering that the United States incarcerates approximately one in every one hundred adults within its borders—a rate five to ten times higher than any other Westernized …

Parallel Justice: Creating Causes Of Action For Mandatory Mediation, Marie A. Failinger

University of Michigan Journal of Law Reform

The American common law system should adopt court-connected mandatory mediation as a parallel system of justice for some cases that are currently not justiciable, such as wrongs caused by constitutionally protected behavior. As evidence that such a system is practical, this Article describes systemic and ethical parallels between court-connected mediation and the rise of the equity courts in medieval England, demonstrating that there are no insurmountable practical objections to the creation of “mediation-only” causes of action. The Article then explores the constitutional concerns surrounding the idea of “mandatory mediation-only” causes of action, using constitutional hate speech and invasion of privacy …

Solitary Confinement, Public Safety, And Recdivism, Shira E. Gordon

University of Michigan Journal of Law Reform

As of 2005, about 80,000 prisoners were housed in solitary confinement in jails and in state and federal prisons in the United States. Prisoners in solitary confinement are generally housed in a cell for twenty-two to twenty-four hours a day with little human contact or interaction. The number of prisoners held in solitary confinement increased 40 percent between 1995 and 2000, in comparison to the growth in the total prison population of 28 percent. Concurrently, the duration of time that prisoners spend in solitary confinement also increased: nationally, most prisoners in solitary confinement spend more than five years there. The …

For Nontraditional Names' Sake: A Call To Reform The Name-Change Process For Marrying Couples, Meegan Brooks

University of Michigan Journal of Law Reform

In a large number of states, women are encouraged to take their husbands’ surnames at marriage by being offered an expedited name-change process that is shorter, less expensive, and less invasive than the statutory process that men must complete. If a couple instead decides to take an altogether-new name at marriage, the vast majority of states require that each spouse complete the longer statutory process. This name-change system emerged from a long history of naming as a way for men to dominate women. This Note emphasizes the need for name-change reform, arguing that the current system perpetuates antiquated patriarchal values …

Walking The Class Action Maze: Toward A More Functional Rule 23, Robert G. Bone

University of Michigan Journal of Law Reform

Over roughly the past fifteen years, the Supreme Court and lower federal courts have limited access to class actions. Many of the more restrictive decisions-such as Amchem Products, Inc. v. Windsor, Ortiz v. Fibreboard Corp., and Wal- Mart Stores, Inc. v. Dukes-are based on interpretations of Rule 23 and thus fall within the power of the Advisory Committee and rulemaking process to modify. This Article proposes revisions to Rule 23 designed to deal with some of these decisions and to make the class action a more pragmatic and functional device. It focuses on two areas: (1) the constraints imposed by …

Power To The People: Why We Need Full Federal Preemption Of Electrical Transmission Regulation, Max Hensley

University of Michigan Journal of Law Reform

State and federal governments have made significant investments in the development and installation of renewable energy technology. However, further increases in renewable power use have been stymied by the continued mismatch between the national interest in connecting consumers with utility-scale wind and solar installations and state and local control over the siting of electrical transmission lines. Because renewable power potential is often located far from consumers, transmission lines must cross multiple jurisdictions whose local interests have tended to prevent or significantly delay development. This Note analyzes that disconnect, reviews academic and legislative proposals to overcome it, and proposes a way …

Toward Genuine Tribal Consultation In The 21st Century, Colette Routel, Jeffrey Holth

University of Michigan Journal of Law Reform

The federal government's duty to consult with Indian tribes has been the subject of numerous executive orders and directives from past and current U.S. Presidents, which have, in turn, resulted in the proliferation of agency-specific consultation policies. However, there is still no agreement regarding the fundamental components of the consultation duty. When does the consultation duty arise? And what does it require of the federal government? The answers to these questions lie in the realization that the tribal consultation duty arises from the common law trust responsibility to Indian tribes, which compels the United States to protect tribal sovereignty and …

Ed Cooper, Rule 56, And Charles E. Clark's Fountain Of Youth, Steven S. Gensler

University of Michigan Journal of Law Reform

Nobody had a greater impact on the formulation of the original Civil Rules than Clark. His role as both the principal architect2 and the principal draftsman3 of the Civil Rules is well known. As Professor Wright once put it, although the Civil Rules were a joint effort, "the end product bears the unmistakable Clark stamp."4 But Clark started shaping the Civil Rules even before drafting began.5 Initially, Chief Justice Hughes thought the civil rules project should be limited to creating rules for actions at law (leaving in place-and separate-the existing equity rules).6 A passionate advocate for merging law and equity …

Professor Ed Cooper: Zen Minimalist, Linda S. Mullenix

University of Michigan Journal of Law Reform

In celebration of his twentieth year as the Reporter for the Advisory Committee on Civil Rules, I write to contribute some modest reflections on Professor Cooper's tenure as Advisory Committee Reporter. My comments are those of an academic who had the opportunity to observe the Advisory Committee for nearly a decade, but they are largely the comments of an outsider. Readers might be disappointed to find that there is no dish or inside baseball here.

The Twelve-Person Federal Civil Jury In Exile, Thomas D. Rowe Jr.

University of Michigan Journal of Law Reform

In the mid-1990s, the Advisory Committee on Civil Rules, with Fifth Circuit Judge Patrick Higginbotham as Chair and our honoree, Professor Ed Cooper, in the early years of his long service as Reporter, unanimously (coincidentally, by a 12-0 vote) proposed an amendment to Federal Rule of Civil Procedure 48 that would have required the seating of twelve-member juries in federal civil trials. The requirement of a unanimous verdict, unless waived by the parties, and the abolition of alternate jurors would have been unaffected; attrition could reduce a jury's size below twelve members, with a floor of six unless the parties …

Is Now The Time For Simplified Rules Of Civil Procedure, Paul V. Niemeyer

University of Michigan Journal of Law Reform

Unfortunately, any objective evaluation of current federal civil process will inevitably lead to the conclusion that the process is functioning inadequately in its purpose of discharging justice speedily and inexpensively. One need only ask any trial lawyer whether he can try a medium-sized commercial dispute to judgment in a federal court in less than three years and at a cost of less than six figures. Is the iconic appellation of "making a federal case out of a dispute" not the ultimate condemnation of current judicial process in federal courts? Can we understand the private bar's flight from federal courts to …

They Were Meant For Each Other: Professor Edward Cooper And The Rules Enabling Act, Mark R. Kravitz, David F. Levi, Lee H. Rosenthal, Anthony J. Scirica

University of Michigan Journal of Law Reform

This introduction to the essays in this Symposium illuminates Professor Ed Cooper's years as Reporter to the Civil Rules Committee by first briefly describing those who preceded him in the position and his own background. We then describe some of Ed Cooper's many contributions to the Civil Rules Committee, the Federal Rules, rulemaking, and civil procedure by examining the present state of the Rules Committees' work under the Rules Enabling Act. We conclude that after almost eighty years of experience under that Act, it is working well in large part because of the sound leadership provided by Ed Cooper over …

Past The Pillars Of Hercules: Francis Bacon And The Science Of Rulemaking, Daniel R. Coquillette

University of Michigan Journal of Law Reform

The parallels between Bacon's career and that of Edward H. Cooper are, of course, obvious. Bacon was one of the great legal minds of his day. Unlike the common-law judges who formed the law by deciding cases, Bacon expressed his greatness in writing brilliant juristic treatises and, as Lord Chancellor, drafting one of the first modern rule systems, the Ordinances in Chancery (1617-1620). Indeed, my thesis is that Bacon invented modern, scientific rulemaking by fusing his new theories of inductive, empirical research with the traditions of equitable pleading and is, in fact, the intellectual forbearer of the likes of Charles …

Transplant Candidates And Substance Use: Adopting Rational Health Policy For Resource Allocation, Erin Minelli, Bryan A. Liang

University of Michigan Journal of Law Reform

Organ transplant candidates are often denied life saving organs on account of their medical marijuana drug use. Individuals who smoke medicinal marijuana are typically classified as substance abusers, and ultimately deemed ineligible for transplantation, despite their receipt of the drug under a physician's supervision and prescription. However, patients who smoke cigarettes or engage in excessive alcohol consumption are routinely considered for placement on the national organ transplant waiting list. Transplant facilities have the freedom to regulate patient selection criteria with minimal oversight. As a result, the current organ allocation system in the United States is rife with inconsistencies and results …

Adverse Possession, Private-Zoning Waiver & Desuetude: Abandonment & Recapture Of Property And Liberty Interests, Scott Andrew Shepard

University of Michigan Journal of Law Reform

Adverse-possession doctrine labors under a pair of disabilities: a hesitancy by theorists to embrace the abandonment-and-recapture principle that informs the doctrine, and a substantial unwillingness of governments to abandon an antiquated and outmoded maxim shielding them from the doctrine's important work. Removing these disabilities will allow a series of positive outcomes. First, it will demonstrate that all would-be adverse possessors, not just those acting "in good faith" or with possessory intent, should enjoy the fruits of the doctrine. Second, it will provide valuable additional means by which the public may monitor the performance of government employees, and additional discipline to …

The Texas Wind Estate: Wind As A Natural Resource And A Severable Property Interest, Alan J. Alexander

University of Michigan Journal of Law Reform

In 2011, Texas is again at the forefront of an energy boom: the wind energy boom. In 2006, Texas surpassed California and became the US. state with the most installed capacity to produce wind energy, and Texas' level of installed capacity has continued to grow. But the law has not kept pace with this growth. Similar to the initial growth of the oil and gas industry in Texas, the wind energy industry was also born, and continues to grow, in the absence of clear legal and regulatory standards. Lack of regulation in the early development of the oil industry contributed …

Connecting The Dots Between The Constitution, The Marshall Trilogy, And United States V. Lara: Notes Toward A Blueprint For The Next Legislative Restoration Of Tribal Sovereignty, Ann E. Tweedy

University of Michigan Journal of Law Reform

This law review Article examines: (1) the underpinnings of tribal sovereignty within the American system; (2) the need for restoration based on the Court's drastic incursions on tribal sovereignty over the past four decades and the grave circumstances, particularly tribal governments' inability to protect tribal interests on the reservation and unchecked violence in Indian Country, that result from the divestment of tribal sovereignty; (3) the concept of restoration as illuminated by United States v. Lara, and finally (4) some possible approaches to partial restoration.

The Article first evaluates the constitutional provisions relating to Indians and the earliest federal Indian law …

Interrogation Of Detainees: Extending A Hand Or A Boot?, Amos N. Guiora

University of Michigan Journal of Law Reform

The current "war on terror" provides the Bush administration with a unique opportunity to both establish clear guidelines for the interrogation of detainees and to make a forceful statement about American values. How the government chooses to act can promote either an ethical commitment to the norms of civil society, or an attitude analogous to Toby Keith's "American Way," where Keith sings that "you'll be sorry that you messed with the USofA, 'Cuz we'll put a boot in your ass, It's the American Way."

Where Equity Meets Expertise: Re-Thinking Appellate Review In Complex Litigation, Michael J. Hays

University of Michigan Journal of Law Reform

The field of complex litigation continues to grow as both an academic study and a popular phenomenon. One cannot escape news accounts of major class action litigation, and lawyers continue to find new ways to push the outer bounds of civil litigation practices to accommodate large-scale disputes involving multiple claims or parties. Many question whether traditional procedures can or should apply to these cases. Drawing on this well-recognized procedural tension, this Article explores the relationship between trial and appellate courts in complex litigation and argues for a revised standard of appellate review for trial court decisions affecting the party structure …

Looking Ahead: The Future Of Child Welfare Law, Donald N. Duquette

University of Michigan Journal of Law Reform

Introduction to a 2007 Symposium held to mark the Thirtieth Anniversary of the Child Advocacy Clinic.

The Public Trust In Surface Waterways And Submerged Lands Of The Great Lakes States, Bertram C. Frey, Andrew Mutz

University of Michigan Journal of Law Reform

The modern public trust doctrine compels each Great Lakes state to protect the sustainable future of the Lakes and to preserve traditional public uses. At the same time, the doctrine constrains the states' powers to allow exploitation of trust resources. This Article provides a brief historical overview of the public trust doctrine in waterways and their submerged lands. It next explores how the eight Great Lakes states have applied the doctrine, discusses the surprising number of differences in the doctrine's development from state to state, and provides comparison charts. After analyzing the variety of approaches used by the eight states …

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 …

Walking The Beach To The Core Of Sovereignty: The Historic Basis For The Public Trust Doctrine Applied In Glass V. Goeckel, Robert Haskell Abrams

University of Michigan Journal of Law Reform

In 2004, a split panel of the Michigan Court of Appeals announced its conclusion that Michigan littoral owners of property owned to the water's very edge and could exclude members of the public from walking on the beach. In that instant almost 3300 miles of the Great Lakes foreshore became, in theory and in law, closed to public use. The case became the leading flash point of controversy between the vast public and ardent private property rights groups. A little more than one year later, the Michigan Supreme Court reversed that ruling as errant on public trust grounds and returned …

Function Over Form: Reviving The Criminal Jury's Historical Role As A Sentencing Body, Chris Kemmitt

University of Michigan Journal of Law Reform

This Article argues that the Supreme Court, as evinced by its recent spate of criminal jury decisions, has abandoned the criminal jury known to the Founders and, in so doing, has severely eroded the protections intended to inhere in the Sixth Amendment jury trial right. It then proposes one potential solution to this problem.

According to the Supreme Court, this recent line of cases has been motivated by the need to preserve the "ancient guarantee" articulated in the Sixth Amendment under a new set of legal circumstances. Unfortunately, the Court misinterprets the ancient guarantee that it is ostensibly attempting to …

Two Spirits, Two Eras, Same Sex: For A Traditionalist Perspective On Native American Tribal Same-Sex Marriage Policy, Jeffrey S. Jacobi

University of Michigan Journal of Law Reform

Recently, several states amended their constitutions to define marriage as only a union between a man and a woman. Many Native American Indian tribal governments thereafter also adopted laws prohibiting homosexual marriages. However, this new policy conflicts with traditional tribal values. This Note shows that historically many tribes accepted and even honored same-sex unions. This Note proposes that tribes consider their traditions as they existed before European contact, and argues that, for some tribes, same-sex civil unions are a historically and culturally appropriate answer to the modern objections to same-sex marriage.

Two Standards Of Competency Are Better Than One: Why Some Defendants Who Are Not Competent To Stand Trial Should Be Permitted To Plead Guilty, Jason R. Marshall

University of Michigan Journal of Law Reform

This Note argues that the present uniform standard of competency, competence to stand trial, be abolished in favor of two standards: competence to stand trial and competence to plea bargain. Part I traces the history of the competency standard by exploring its common law origins, the Supreme Court rulings that frame the debate, an academic reformulation of the competency inquiry, and the interests protected by requiring that defendants be competent to proceed through the criminal process. Part II contrasts the cognitive abilities, capacity to communicate with counsel, and courtroom behavior of defendants standing trial with those qualities required of defendants …

Race, Class, And Suburbia: The Modern Black Suburb As A 'Race-Making Situation', Mary Jo Wiggins

University of Michigan Journal of Law Reform

In her Article, Professor Wiggins discusses the complex social phenomenon of "Black suburbanization, " focusing on the commercial "disinvestment" in and around predominately Black suburbs. She traces the historical relationship between Black Americans and the suburbs, and describes in detail the commercial disinvestment in two contemporary Black suburbs, Prince George's County, Maryland, and south DeKalb, Georgia. In her Article, she offers possible explanations for disinvestment, including the application of protective zoning; inefficient zoning laws and practices; prior investment decisions; demographic explanations; and independent effects .of race. Wiggins analyzes some of the resulting negative social and economic consequences, including a sense …

Civil War Pension Attorneys And Disability Politics, Peter Blanck, Chen Song

University of Michigan Journal of Law Reform

Professor Blanck and Dr. Song provide a detailed examination of the pension disability program established after the Civil War for Union Army Veterans. They use many original sources and perform several statistical analyses as the basis for their summary. They draw parallels between this disability program and the ADA, and they point out that current ADA plaintiffs encounter many of the same social, political and even scientific issues that Union Army veterans dealt with when applying for their disability pensions. The Article demonstrates that history can help predict the trends within, and evolution of the ADA--essentially leading to a better …

Lengthening The Stem: Allowing Federally Funded Researchers To Derive Human Pluripotent Stem Cells From Embryos, Jason H. Casell

University of Michigan Journal of Law Reform

Recent developments in fetal tissue research and stem cell research have led to dramatic breakthroughs in the search for cures for Parkinson's disease, Alzheimer's disease, diabetes, and a host of neurological disorders. Because this research involves fetal tissue and stem cells from human embryos, many complicated ethical and legal implications surround it. This Note explores the history of fetal tissue research and stem cell research, examines the surrounding ethical and legal issues, looks at the current state of federal law, and concludes that Congress should allow federally funded researchers to derive stem cells from discarded human embryos obtained from in …