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Full-Text Articles in Law
Resolving Alj Removal Protections Problem Following Lucia, Spencer Davenport
Resolving Alj Removal Protections Problem Following Lucia, Spencer Davenport
University of Michigan Journal of Law Reform
When the Supreme Court decided Lucia v. SEC and held that administrative law judges (ALJs) are Officers under the Constitution, the Court opened a flood of constitutional issues around the status of ALJs and related government positions. One central issue relates to ALJs’ removal protections. ALJs currently have two layers of protection between them and the President. In an earlier Supreme Court decision, the Court held that two layers of tenure protection between an “Officer of the United States” and the President was unconstitutional as it deprived the President the power to hold his officers accountable. As impartial adjudicators, ALJs …
How To Decrease The Immigration Backlog: Expand Representation And End Unnecessary Detention, Kara A. Naseef
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.
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
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 to vote proxies while …
Why Guidance From The Supreme Court Is Required In Redefining The Particular Social Group Definition In Refugee Law, Liliya Paraketsova
Why Guidance From The Supreme Court Is Required In Redefining The Particular Social Group Definition In Refugee Law, Liliya Paraketsova
University of Michigan Journal of Law Reform
One of the most debated topics in refugee law has been the meaning of particular social group (PSG)—one of the five categories used to claim refugee status. In 2006, the Board of Immigration Appeals (BIA) adopted a narrower PSG definition. Since that adoption, a circuit split has persisted over the meaning of PSG. Two circuits in particular have continually refused to adopt this definition—even when the BIA attempted to revise the definition in response to their criticism. This Note proposes a reform that would include a compromise between the two current definitions of PSG by rejecting the BIA’s particularity requirement …
The Limits Of Performance-Based Regulation, Cary Coglianese
The Limits Of Performance-Based Regulation, Cary Coglianese
University of Michigan Journal of Law Reform
Performance-based regulation is widely heralded as a superior approach to regulation. Rather than specifying the actions regulated entities must take, performance-based regulation instead requires the attainment of outcomes and gives flexibility in how to meet them. Despite nearly universal acclaim for performance-based regulation, the reasons supporting its use remain largely theoretical and conjectural. Owing in part to a lack of a clear conceptual taxonomy, researchers have yet to produce much empirical research documenting the strengths and weaknesses of performance-based regulation. In this Article, I provide a much-needed conceptual framework for understanding and assessing performance-based regulation. After defining performance-based regulation and …
Reforming Sec Alj Proceedings, Joanna Howard
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 …
Shedding Light On The "Going Dark" Problem And The Encryption Debate, John Mylan Traylor
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. …
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
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, …
Astroturf Campaigns: Transparency In Telecom Merger Review, Victoria Peng
Astroturf Campaigns: Transparency In Telecom Merger Review, Victoria Peng
University of Michigan Journal of Law Reform
Large telecommunications companies looking to merge spend millions of dollars in their lobbying efforts to clear regulatory hurdles and obtain approval for their proposed mergers. Corporations such as AT&T, Comcast, and Time Warner use public participation processes as vehicles to influence regulatory decision-making. In the Federal Communications Commission (FCC) merger review context, the notice- and-comment process and public hearings have become fertile breeding grounds for hidden corporate influence. Corporations spend millions on corporate social responsibility programs and call upon nonprofit organizations that receive their largesse to represent their corporate interests as grassroots interests when the FCC seeks public comment. This …
Admit Or Deny: A Call For Reform Of The Sec's "Neither-Admit-Nor-Deny" Policy, Priyah Kaul
Admit Or Deny: A Call For Reform Of The Sec's "Neither-Admit-Nor-Deny" Policy, Priyah Kaul
University of Michigan Journal of Law Reform
For four decades, the SEC’s often-invoked policy of settling cases without requiring admissions of wrongdoing, referred to as the “neither-admit-nor-deny” policy, went unchallenged by the courts, the legislature, and the public. Then in 2011, a harshly critical opinion from Judge Jed Rakoff in SEC v. Citigroup incited demands for reform of this policy. In response to Judge Rakoff’s opinion, the SEC announced a modified approach to settlements. Under the modified approach, the Commission may require an admission of wrongdoing if a defendant’s misconduct was egregious or if the public markets would benefit from an admission. Many supporters of the neither-admit-nor-deny …
Easing The Guidance Document Dilemma Agency By Agency: Immigration Law And Not Really Binding Rules, Jill E. Family
Easing The Guidance Document Dilemma Agency By Agency: Immigration Law And Not Really Binding Rules, Jill E. Family
University of Michigan Journal of Law Reform
Immigration law relies on rules that bind effectively, but not legally, to adjudicate millions of applications for immigration benefits every year. This Article provides a blueprint for immigration law to improve its use of these practically binding rules, often called guidance documents. The agency that adjudicates immigration benefit applications, United States Citizenship and Immigration Services (USCIS), should develop and adopt its own Good Guidance Practices to govern how it uses guidance documents. This Article recommends a mechanism for reform, the Good Guidance Practices, and tackles many complex issues that USCIS will need to address in creating its practices. The recommended …
The Federal Reserve As Last Resort, Colleen Baker
The Federal Reserve As Last Resort, Colleen Baker
University of Michigan Journal of Law Reform
The Federal Reserve, the central bank of the United States, is one of the most important and powerful institutions in the world. Surprisingly, legal scholarship hardly pays any attention to the Federal Reserve or to the law structuring and governing its legal authority. This is especially curious given the amount of legal scholarship focused on administrative agencies that do not have anywhere near as critical a domestic and international role as that of the Federal Reserve. At the core of what the Federal Reserve does and should do is to conduct monetary policy so as to safeguard pricing, including that …
Off-Label Promotion Reform: A Legislative Proposal Addressing Vulnerable Patient Drug Access And Limiting Inappropriate Pharmaceutical Marketing, Tim Mackey, Bryan A. Liang
Off-Label Promotion Reform: A Legislative Proposal Addressing Vulnerable Patient Drug Access And Limiting Inappropriate Pharmaceutical Marketing, Tim Mackey, Bryan A. Liang
University of Michigan Journal of Law Reform
Off-label promotion occurs when pharmaceutical manufacturers engage in promotion of unapproved or "off-label" uses of their drugs. These off label uses may lack adequate clinical data to substantiate marketing claims, have led to corporate investigations and penalties, and can endanger public health. However there is adequate evidence to suggest that off-label uses are entirely appropriate for some vulnerable patient populations, and that physicians have accepted such uses as standard. Historically, U.S. law has prohibited direct off-label promotion to physicians and patients. However, failed government guidance, industry-based litigation, and the diminished capacity of regulators to police illegal practices have had dire …
Undoing Undue Favors: Providing Competitors With Standing To Challenge Favorable Irs Actions, Sunil Shenoi
Undoing Undue Favors: Providing Competitors With Standing To Challenge Favorable Irs Actions, Sunil Shenoi
University of Michigan Journal of Law Reform
The Internal Revenue Service occasionally creates rules, notices, or regulations that allow taxpayers to pay less than they would under a strict reading of the law. Sometimes, however, these IRS actions are directly contrary to federal law and have significant economic impact. Challenging favorable IRS actions through litigation will likely be unsuccessful because no plaintiff can satisfy the requirements for standing. To address this situation, this Note proposes a statutory reform to provide competitors with standing to challenge favorable IRS actions in court.
Moving Toward A Clearer Definition Of Insider Trading: Why Adoption Of The Possession Standard Protects Investors, Lacey S. Calhoun
Moving Toward A Clearer Definition Of Insider Trading: Why Adoption Of The Possession Standard Protects Investors, Lacey S. Calhoun
University of Michigan Journal of Law Reform
In recent years, insider trading has become a publicized focus of securities law enforcement. The definition of insider trading has emerged slowly through case law, and the term has been clarified by new theories of liability. The use and possession tests are two standards of liability used to judge the treatment of inside information. The use standard offers a defense to insider trading liability while the possession standard premises liability on mere possession of inside information. This Note argues that courts should adopt the possession standard because this standard better protects investors, a primary goal of the Securities Exchange Act …
Statutory Compliance And Tort Liability: Examining The Strongest Case, Michael D. Green
Statutory Compliance And Tort Liability: Examining The Strongest Case, Michael D. Green
University of Michigan Journal of Law Reform
Professor Green addresses the matter of the proper balance between the tort system and regulation in the context of prescription drugs and the FDA's vigorous oversight of the industry. He articulates several reasons why a regulatory compliance defense, in which tort law would defer to FDA regulation, is quite attractive. Despite the superior expertise of the FDA in assessing the benefits and risks of a drug, a regulatory compliance defense is considerably more problematical than might appear at first glance. Ascertaining compliance with FDA requirements could be a lengthy and complicated inquiry that would either replace or supplement the issues …
Fda Approved? A Critique Of The Artificial Insemination Industry In The United States, Karen M. Ginsberg
Fda Approved? A Critique Of The Artificial Insemination Industry In The United States, Karen M. Ginsberg
University of Michigan Journal of Law Reform
Artificial insemination by donor is becoming an increasingly popular means to achieving parenthood. While the majority of couples use artificial insemination to overcome fertility problems, many recipients use artificial insemination to avoid passing a genetic disease to their children. However, case studies reveal the inherent dangers of artificial insemination, namely the lack of proper screening methods to avoid passing genetic diseases to children born by artificial insemination. State-by-state regulation, federal guidelines, and private adjudication have all proven to be inadequate methods of regulating the artificial insemination industry. Ginsberg proposes federal regulation as the only means of achieving a safe artificial …
Representation Of Claimants At Unemployment Compensation Proceedings: Identifying Models And Proposed Solutions, Maurice Emsellem, Monica Halas
Representation Of Claimants At Unemployment Compensation Proceedings: Identifying Models And Proposed Solutions, Maurice Emsellem, Monica Halas
University of Michigan Journal of Law Reform
Emsellem and Halas posit that claimants need representation at unemployment compensation proceedings. Evaluating statistical and survey data, the authors find that representation significantly improves a claimant's chance of receiving unemployment compensation. Improved recovery rates, they argue, benefit not only claimants but also society. The authors analyze the factors inducing employer appeals of compensation awards. They also review the systemic issues that accompany the provision of representation to those unable to afford it or to those unfamiliar with the unemployment compensation process. Finally, the authors present models of expanding claimant representation.
Essay: Torquemada And Unemployment Compensation Appeals, William W. Milligan
Essay: Torquemada And Unemployment Compensation Appeals, William W. Milligan
University of Michigan Journal of Law Reform
The premise of this Essay is that unemployment compensation appeals hearings take the form of inquests rather than follow the traditional adversarial model. Given this, the hearing officer carries a special burden of ensuring that due process is afforded. State review systems should structure the process so that the difference, along with the unique burden, is made explicit.
Due Process Implications Of Telephone Hearings: The Case For An Individualized Approach To Scheduling Telephone Hearings, Allan A. Toubman, Tim Mcardle, Linda Rogers-Tomer
Due Process Implications Of Telephone Hearings: The Case For An Individualized Approach To Scheduling Telephone Hearings, Allan A. Toubman, Tim Mcardle, Linda Rogers-Tomer
University of Michigan Journal of Law Reform
As the executive branch shrinks and reduces expenditures, its adjudicative functions adjust to the new fiscal reality. Telephone hearings are, therefore, increasingly being used in order to control costs. This Article examines the impact of telephone hearings on the due process elements of unemployment compensation 'fair" hearings. The Authors review the applicable federal and state law and find that there is no absolute bar to using the telephone to conduct administrative hearings. They test the empirical effect of the telephone on hearings in California and Maine. Their analysis of hundreds of hearings indicates that parties to telephone hearings are less …
A Proposal To Abolish The Office Of United States Trustee, Peter C. Alexander
A Proposal To Abolish The Office Of United States Trustee, Peter C. Alexander
University of Michigan Journal of Law Reform
In this Article, Professor Alexander reviews the creation and development of the Office of U.S. Trustee, an agency within the executive branch of the federal government, authorized to oversee the administration of all bankruptcy estates. Alexander asserts that the agency has expanded its scope beyond its original mission, becoming a huge bureaucracy that is widely criticized. By contrast, Alexander also discusses the Bankruptcy Administrator Program, a bankruptcy oversight system that exists within the federal districts in Alabama and North Carolina. He presents the positive and negative comments about that program and concludes that it is a more efficient system than …
Decreasing The Costs Of Jurisdictional Gridlock: Merger Of The Securities And Exchange Commission And The Commodity Futures Trading Commission, Mark Frederick Hoffman
Decreasing The Costs Of Jurisdictional Gridlock: Merger Of The Securities And Exchange Commission And The Commodity Futures Trading Commission, Mark Frederick Hoffman
University of Michigan Journal of Law Reform
Jurisdictional conflict exists between the Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CFTC), primarily due to the language of the 1974 CFTC Act. This Act grants the CFTC exclusive jurisdiction to regulate certain financial instruments which, given the increasing complexity and "hybrid" nature of such instruments, might simultaneously be subject to SEC regulation. This Note first explores the history of the two agencies and the statutory language giving rise to the jurisdictional conflict. This Note then examines several instances of jurisdictional conflict that resulted in extensive costs for the respective agencies and the United States' financial …
Disentitling The Poor: Waivers And Welfare "Reform", Susan Bennett, Kathleen A. Sullivan
Disentitling The Poor: Waivers And Welfare "Reform", Susan Bennett, Kathleen A. Sullivan
University of Michigan Journal of Law Reform
This Article examines the purposes underlying the statutory grant of authority to Health and Human Services (HHS) to exempt states from the requirements of the statute, the important role that the Social Security Act has played as a source of rights for welfare recipients, the current wave of exemptions granted by HHS, and the lack of standards for review of state waiver proposals. Finally, this Article recommends the development of procedures and standards for review by HHS and urges that adherence to the core values of the Aid to Families with Dependent Children (AFDC) program is essential in evaluating the …
Federal Chartering Revisited, Donald E. Schwartz
Federal Chartering Revisited, Donald E. Schwartz
University of Michigan Journal of Law Reform
The protections that corporation law provided to shareholders and to our economic community against the excesses and complacency of corporate directors and managers have undergone a general weakening. Although it is uncertain whether the ALI can accomplish effective and meaningful reforms, this effort may be the most important attempt by the corporate community to reform itself.
Nonmajority Bargaining Orders: The Only Effective Remedy For Pervasive Employer Unfair Labor Practices During Union Organizing Campaigns, David S. Shillman
Nonmajority Bargaining Orders: The Only Effective Remedy For Pervasive Employer Unfair Labor Practices During Union Organizing Campaigns, David S. Shillman
University of Michigan Journal of Law Reform
Current Board policy forbids issuing a bargaining order in this situation, where there is no objective evidence of majority support for a union, even though the bargaining ·order may be the only effective remedy for extreme employer unfair labor practices. The Board's refusal to issue nonmajority bargaining orders (NMBOs), grounded in its fear of imposing a union on unwilling employees, has left it impotent to remedy the most severe employer unfair labor practices. This Note examines arguments for and against the Board's use of NMBOs and concludes that NMBOs are within the scope of the Board's remedial powers and should …
Protecting The Independence Of Administrative Law Judges: A Model Administrative Law Judge Corps Statute, Karen Y. Kauper
Protecting The Independence Of Administrative Law Judges: A Model Administrative Law Judge Corps Statute, Karen Y. Kauper
University of Michigan Journal of Law Reform
This Note concludes that the federal government should adopt some form of central panel system to protect both the independence of the ALJs and the public interest. Part I of this Note presents several alternatives to the central panel systems that have been proposed in past years and discusses their inadequacies. Part II summarizes the arguments concerning the central panel system of administrative adjudication. Part III discusses several of the integral elements of a central panel system and analyzes the state statutes and the proposed federal legislation in light of these elements. Finally, Part IV proposes a model statute for …
Regulatory Reform In The Intercity Bus Industry, Cornish F. Hitchcock
Regulatory Reform In The Intercity Bus Industry, Cornish F. Hitchcock
University of Michigan Journal of Law Reform
This Article will analyze the economic structure of the intercity bus industry and the type of service received by the public under the present regulatory scheme. It will then discuss what regulatory reforms could improve service, how these issues are addressed in the recent House-passed bill, and what further legislative reforms should be made.
Political Broadcasting After The Aspen Ruling: Legislative Reform Of Section 315(A) Of The Communications Act Of 1934, Stuart N. Brotman
Political Broadcasting After The Aspen Ruling: Legislative Reform Of Section 315(A) Of The Communications Act Of 1934, Stuart N. Brotman
University of Michigan Journal of Law Reform
The FCC's new interpretation of section 315(a) in the Aspen ruling greatly reduced its inhibitory effect on broadcasters. The ruling, however, has created further interpretive problems regarding the broadcast debate format, and has not completely resolved the more general problem of giving the electorate greater and more direct exposure to candidates during campaigns through programming that forces candidates to confront each other on the major issues. This article will discuss the. background of section 315(a), then explain each of its exemptions. Finally, it will propose possible reforms in the area of political broadcasting in light of the Aspen ruling.
Abuse Of Trademarks: A Proposal For Ompulsory Licensing, Mara L. Babin
Abuse Of Trademarks: A Proposal For Ompulsory Licensing, Mara L. Babin
University of Michigan Journal of Law Reform
This article neither deals with the propriety of the Federal Trade Commission's (FTC) proposed order nor evaluates the effectiveness of compulsory trademark licensing as a remedy for unfair trade practices.8 Rather, the pending cereal industry case is used as a point of departure for an examination of the problem of trademark abuse and the responses of the courts, the Congress, and the FTC to it. Acknowledging the legality of compulsory licensing of trademarks, the article suggests legislation which will incorporate licensing and standards for its application. Such legislation would make licensing an accessible remedy for trademark abuse while accommodating both …