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Full-Text Articles in Law

The Fragmented Regulation Of Investment Advice: A Call For Harmonization, Christine Lazaro, Benjamin P. Edwards Dec 2014

The Fragmented Regulation Of Investment Advice: A Call For Harmonization, Christine Lazaro, Benjamin P. Edwards

Michigan Business & Entrepreneurial Law Review

Decades of short-term thinking and regulatory fixes created the bewilderingly complex statutory and regulatory structures governing the giving of personalized investment advice to retail customers. Although deeply flawed, the current systems remain entrenched because of the difficulties inherent in making radical alterations. Importantly, the current patchwork systems do not seem to serve retail customers particularly well. Retail customers tend to make predictable and costly mistakes in allocating their assets. Some of this occurs because many investors lack basic financial literacy. A recent study released by the staff of the Securities and Exchange Commission (the “Commission”) on financial literacy among investors …


Applying Administrative Law Principles To Hydraulic Fracturing, Joel M. Pratt Nov 2014

Applying Administrative Law Principles To Hydraulic Fracturing, Joel M. Pratt

Michigan Law Review First Impressions

The practice of hydraulic fracturing-or fracking-has become a major focus of policymakers in recent years. Federal, state, and local regulations on fracking create a confusing web for industry to navigate, and governmental entities often battle with each other for authority to regulate the practice. The fast and widespread growth of fracking in the United States has therefore exacerbated confusion over who will regulate this booming industry, and courts have so far failed to use sensible principles to resolve inconsistencies among federal, state, and local regulations. When fracking laws conflict, courts traditionally use preemption doctrine-general rules that help judges choose whether …


Miller V. Alabama: Something Unconsitutional Now Was Equally Unconstitutional Then, W. Patrick Conlon Oct 2014

Miller V. Alabama: Something Unconsitutional Now Was Equally Unconstitutional Then, W. Patrick Conlon

University of Michigan Journal of Law Reform Caveat

In June 2012, the United States Supreme Court found mandatory life-without-parole sentences against juvenile offenders unconstitutional in Miller v. Alabama. The Court determined that because children possess “immaturity, impetuosity, and [fail] to appreciate risks and consequences,” they are fundamentally different than adults. Although Miller invalidated every juvenile mandatory life-without-parole (JMLWOP) statute across the United States, there is no clear indication regarding whether Miller retroactively applies to juveniles sentenced to mandatory life-without-parole before the Court’s ruling. As a result, states are split on whether to apply Miller retroactively. Fifteen states have yet to decide whether Miller applies retroactively, while several other …


A Joyful Heart Is Good Medicine: Sexuality Conversion Bans In The Courts, Wyatt Fore Oct 2014

A Joyful Heart Is Good Medicine: Sexuality Conversion Bans In The Courts, Wyatt Fore

Michigan Journal of Gender & Law

Led by California and New Jersey, states have begun to ban Sexual Orientation Change Efforts (SOCE) for minors. States have targeted SOCE, also called ‘gay conversion therapy,’ by regulating state licensure requirements for mental health professionals. Conservative legal groups have challenged these bans in federal court, alleging a variety of constitutional violations sounding in the First and Fourteenth Amendments. More specifically, these legal groups propose theories claiming that the bans infringe upon individuals’ freedom of speech, free exercise, and parental rights. In this Note, I survey the history of these bans, as well as court decisions that have rejected constitutional …


For The Love Of The Game: The Case For State Bans On Youth Tackle Football, Adam Bulkley Oct 2014

For The Love Of The Game: The Case For State Bans On Youth Tackle Football, Adam Bulkley

University of Michigan Journal of Law Reform Caveat

This football season, millions of Americans enjoying their favorite pastime might feel pangs of a guilty conscience. Years of scientific research into the long-term neurological effects of tackle football and a recent settlement between the National Football League (NFL) and thousands of retired NFL players have made football-related traumatic brain injuries (TBI) a topic of national conversation. Current and former NFL players and even President Obama have participated in the conversation, saying that they would hesitate to let their sons play the game for fear of possible brain injury. Because research has uncovered signs of permanent brain damage in players …


Sexting Prosecutions: Minors As A Protected Class From Child Pornography Charges, Sarah Thompson Oct 2014

Sexting Prosecutions: Minors As A Protected Class From Child Pornography Charges, Sarah Thompson

University of Michigan Journal of Law Reform Caveat

"Firt love is only a little foolishness and a lot of curiosity." -- George Bernard Shaw Teenagers will explore their sexuality; this is no new phenomenon. However, the ways that teens are exploring their curiosity is changing with technology. This trend has serious repercussions for teens, society, and the law. ‘Sexting’—defined as the act of sending sexually explicit photographs or messages via cell phone—is one recently-developed means of sexual exploration. The practice overlaps with the production, distribution, and possession of child pornography that is banned by both state and federal law. Due to the overlap, minors have been prosecuted under …


Blueprint For The Great Lakes Trail, Melissa K. Scanlan Oct 2014

Blueprint For The Great Lakes Trail, Melissa K. Scanlan

Michigan Journal of Environmental & Administrative Law

The Great Lakes are vast yet vulnerable. There is a need to focus the public’s attention on the significance of the lakes for the region as a cohesive, binational whole. To address this need, build on existing water law, and engage the public, this Article provides a blueprint to establish a Great Lakes Trail on the shores of the Great Lakes. The Trail will link together 10,000 miles of coastline and provide the longest marked walking trail in the world. It will demarcate an already existing, yet largely unrecognized, public trust easement and engage the public with their common heritage …


Legal Protection For Groundwater-Dependent Ecosystems, Collin Gannon Oct 2014

Legal Protection For Groundwater-Dependent Ecosystems, Collin Gannon

Michigan Journal of Environmental & Administrative Law

This Note concerns the legal protection of groundwater-dependent ecosystems in the United States and abroad. By first describing the science and ecology of ecosystems that are dependent on groundwater and then surveying the current American legal system that fails to adequately protect groundwater-dependent ecosystems (GDEs), this Note proposes legal reforms that could vastly improve groundwater management systems. State protection of GDEs is sparse and often only operates indirectly as a result of states’ water policies focused on water quantity upkeep for consumptive purposes. Part I provides an overview of GDEs. Part II discusses state legal protection, including indirect state protection …


Rethinking The Timing Of Capital Clemency , Adam M. Gershowitz Oct 2014

Rethinking The Timing Of Capital Clemency , Adam M. Gershowitz

Michigan Law Review

This Article reviews every capital clemency over the last four decades. It demonstrates that in the majority of cases, the reason for commutation was known at the conclusion of direct appeals—years or even decades before the habeas process ended. Yet when governors or pardon boards actually commuted the death sentences, they typically waited until the eve of execution, with only days or hours to spare. Leaving clemency until the last minute sometimes leads to many years of unnecessary state and federal habeas corpus litigation, and this Article documents nearly 300 years of wasted habeas corpus review. Additionally, last-minute commutations harm …


The Political Safeguards Of Horizontal Federalism, Heather K. Gerken, Ari Holtzblatt Oct 2014

The Political Safeguards Of Horizontal Federalism, Heather K. Gerken, Ari Holtzblatt

Michigan Law Review

For decades, we have debated whether “political safeguards” preserve healthy relations between the states and the federal government and thus reduce or eliminate the need for judges to referee state–federal tussles. No one has made such an argument about relations among the states, however, and the few scholars to have considered the question insist that such safeguards don’t exist. This Article takes the opposite view and lays down the intellectual foundations for the political safeguards of horizontal federalism. If you want to know what unites the burgeoning work on horizontal federalism and illuminates the hidden logic of its doctrine, you …


A Comprehensive Administrative Solution To The Armed Career Criminal Act Debacle , Avi M. Kupfer Oct 2014

A Comprehensive Administrative Solution To The Armed Career Criminal Act Debacle , Avi M. Kupfer

Michigan Law Review

For thirty years, the Armed Career Criminal Act (“ACCA”) has imposed a fifteen-year mandatory minimum sentence on those people convicted as felons in possession of a firearm or ammunition who have three prior convictions for a violent felony or serious drug offense. Debate about the law has existed mainly within a larger discussion on the normative value of mandatory minimums. Assuming that the ACCA endures, however, administering it will continue to be a challenge. The approach that courts use to determine whether past convictions qualify as ACCA predicate offenses creates ex ante uncertainty and the potential for intercourt disparities. Furthermore, …


A Public Pensions Bailout: Economics And Law, Terrance O'Reilly Sep 2014

A Public Pensions Bailout: Economics And Law, Terrance O'Reilly

University of Michigan Journal of Law Reform

In several states, public pension plans are at risk of insolvency within a decade. These risks are significant, and the solutions currently contemplated are likely to fall short of what is necessary to contain the problem. If public pension plans do become insolvent, it seems likely the federal government will bail them out. This Article proposes that the federal government prepare for the prospect of federal financial support of public pension plans by instituting an optional regulatory regime for public pensions. If a state elects not to participate, its public pension plans would be ineligible for federal financial support. In …


Sentence Creep: Increasing Penalties In Michigan And The Need For Sentencing Reform, Anne Yantus Apr 2014

Sentence Creep: Increasing Penalties In Michigan And The Need For Sentencing Reform, Anne Yantus

University of Michigan Journal of Law Reform

The governor and several legislators have requested review of Michigan’s sentencing practices with an eye toward sentence reform. Michigan leads the country in the average length of prison stay, and by internal comparisons the average minimum sentence has nearly doubled in the last decade. This Article explores cumulative increases to criminal penalties over the last several decades as reflected in amendments to the sentencing guidelines, increased maximum sentences, harsh mandatory minimum terms, increased authority for consecutive sentencing, wide sentencing discretion for habitual and repeat drug offenders, and tough parole practices and policies. The reality for legislators is that it is …


Invading The Realm Of The Dead: Exploring The (Im)Propriety Of Punitive Damage Awards Against Estates, Emily Himes Iversen Apr 2014

Invading The Realm Of The Dead: Exploring The (Im)Propriety Of Punitive Damage Awards Against Estates, Emily Himes Iversen

University of Michigan Journal of Law Reform

Punitive damages are traditionally understood, at least in part, as damages designed to punish. It should therefore come as no surprise that, in the majority of states that have decided the issue, courts have chosen not to allow punitive damage awards against the estates of deceased tortfeasors. After all, the tortfeasor can no longer be punished (at least by tort awards). Nonetheless, punitive damages can also serve other purposes, such as deterrence. This Note argues that Michigan, a state which has not yet taken a stance, should adopt the minority position that allows punitive damages to be awarded against estates. …


Utilizing Michigan Brownfield Policies To Incentivize Community-Based Urban Agriculture In Detroit, Nicholas Leonard Apr 2014

Utilizing Michigan Brownfield Policies To Incentivize Community-Based Urban Agriculture In Detroit, Nicholas Leonard

Michigan Journal of Environmental & Administrative Law

As residents have increasingly moved from urban centers to suburbs, several cities have not been able to create effective solutions to the problems that such population loss has presented. Abandoned properties have proven to be the primary problem, and nowhere is that problem more pronounced than in Detroit. Urban agriculture has been widely embraced on a grassroots level as a potential solution to the pervasive problems that abandoned properties present and that cities have been unable to solve. While urban agriculture networks have largely arisen outside of municipal control, several cities are beginning to recognize urban agriculture as a potential …


Taking States (And Metaphysics) Seriously, Sanford Levinson Apr 2014

Taking States (And Metaphysics) Seriously, Sanford Levinson

Michigan Law Review

Sotirios A. Barber has written many incisive and important books, in addition to coediting an especially interesting casebook on constitutional law and interpretation. He is also a political theorist. An important part of his overall approach to constitutional theory is his philosophical commitment to “moral realism.” He believes in the metaphysical reality of moral and political truths, the most important of which, for any constitutional theorist, involve the meanings of justice and the common good. He not only believes in the ontological reality of such truths — that is, that these truths are more than mere human conventions or social …


Inhibiting Intrastate Inequalities: A Congressional Approach To Ensuring Equal Opportunity To Finance Public Education, Joshua Arocho Jan 2014

Inhibiting Intrastate Inequalities: A Congressional Approach To Ensuring Equal Opportunity To Finance Public Education, Joshua Arocho

Michigan Law Review

What is the purpose of the international law on armed conflict, and why would opponents bent on destroying each other’s capabilities commit to and obey rules designed to limit their choice of targets, weapons, and tactics? Traditionally, answers to this question have been offered on the one hand by moralists who regard the law as being inspired by morality and on the other by realists who explain this branch of law on the basis of reciprocity. Neither side’s answers withstand close scrutiny. In this Article, we develop an alternative explanation that is based on the principal–agent model of domestic governance. …