Law Commons^™

Federal-State Partnership: How The Federal Government Should Better Support Its State Unemployment Insurance Offices In Times Of Crisis, Maddie Mcfee

University of Michigan Journal of Law Reform

In March 2020, the COVID-19 pandemic caused millions of people to lose their jobs and become dependent on unemployment benefits. State unemployment offices were not prepared for this sudden onslaught of claims. Offices could not increase staffing levels because they were not given money by the federal government to do so. As offices were overwhelmed, a scammer group named Scattered Canary took this opportunity to fraudulently claim millions of dollars from several states. Because the federal government supplies administrative funds to states based on average previous need, the system is not designed to support states’ increased needs during sudden economic …

The Rental Crisis Will Not Be Televised: The Case For Protecting Tenants Under Consumer Protection Regimes, Eric Sirota

University of Michigan Journal of Law Reform

The Foreclosure Crisis of the 2000s has likely hurt renters more than homeowners. Incongruously, however, consumer enforcement agencies have been far more zealous in protecting mortgagors than tenants. This Article explores the under-protection of tenants as a class of consumers, particularly in a “commoditized” rental market, and examines how consumer enforcement agencies can more zealously incorporate tenant-protection into their mandates.

Much of the prior literature on the legal protections afforded tenants was published in the wake of the consumer rights revolution of the 1970s. This Article is the first to carefully reexamine, in the context of the modern rental market, …

The Ragged Edge Of Rugged Individualism: Wage Theft And The Personalization Of Social Harm, Matthew Fritz-Mauer

University of Michigan Journal of Law Reform

Every year, millions of low-wage workers suffer wage theft when their employers refuse to pay them what they have earned. Wage theft is both prevalent and highly impactful. It costs individuals thousands each year in unpaid earnings, siphons tens of billions of dollars from low-income communities, depletes the government of necessary resources, distorts the competitive labor market, and causes significant personal harm to its victims. In recent years, states and cities have passed new laws to attack the problem. These legal changes are important. They are also, broadly speaking, failing the people they are supposed to protect.

This Article fills …

Conflict Preemption: A Remedy For The Disparate Impact Of Crime-Free Nuisance Ordinances, Meredith Joseph

University of Michigan Journal of Law Reform

Thousands of municipalities across the country have adopted crime-free nuisance ordinances—laws that sanction landlords for their tenants’ behaviors, coercing them to evict tenants for actions as innocuous as calling 9-1-1 in an emergency. These facially neutral ordinances give wide discretion to municipal officials, leading to discriminatory enforcement of evictions. As a result, these ordinances have a devastating impact on victims of domestic violence and are used as a tool to inhibit integration in majority-white municipalities. Many plaintiffs have brought lawsuits alleging violations of the U.S. Constitution and the Fair Housing Act. However, bringing lawsuits under various anti-discrimination protections presents many …

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 …

Tell Me How It Ends: The Path To Nationalizing The U.S. Pharmaceutical Industry, Fran Quigley

University of Michigan Journal of Law Reform

The U.S. medicines system is broken. Millions of Americans suffer and some even die because they cannot afford medicines discovered by government-funded research. At the same time, corporations holding monopoly patent rights to those medicines collect some of the largest profits in modern capitalist history.

It does not have to be this way. The global legacy of treating essential medicines as a public good and the robust U.S. history of government seizure of private property for the public interest reveals a better path: the United States should nationalize its pharmaceutical industry.

U.S. statutory law already provides broad powers for the …

It Takes A Village: Designating "Tiny House" Villages As Transitional Housing Campgrounds, Ciara Turner

University of Michigan Journal of Law Reform

A relatively new proposal to reduce homelessness in the United States involves extraordinarily small dwellings. While the “tiny house” movement is intuitively appealing and has found sporadic success, strict housing codes, building codes, and zoning laws often destroy the movement before it can get off the ground. One possibility for getting around these zoning and building code challenges, without drastic overhauls to health and safety codes, is to create a new state-level zoning classification of “transitional campgrounds.” A new zoning classification would alleviate the issue because campgrounds are consistently subject to less strict building codes, which could permit tiny houses …

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 …

Tortious Interference With The Expectancy Of Entitlement Benefits, Paul Caritj

University of Michigan Journal of Law Reform

This Note proposes a new tort to address employers' and their agents' increasing abuse of the Unemployment Insurance appeals process, which interferes with employees' expectancy of entitlement benefits. Though existing state Unemployment Compensation statutes sanction both unemployed workers claiming benefits and employers for making fraudulent statements, these provisions approach the issue of fraud too narrowly to combat this growing problem. Meanwhile, no existing remedy properly compensates victims of this sort of abuse, adequately deters abusive behavior by scaling the penalty to the harm, and is accessible to economically disadvantaged plaintiffs. As well as providing an analysis of the specific problem …

Encouraging Savings Under The Earned Income Tax Credit: A Nudge In The Right Direction, Vada Waters Lindsey

University of Michigan Journal of Law Reform

During 2007, 3.6 million or 9.7% of people in the United States age 65 or older were below the poverty level. In light of the number of elderly people living below the poverty level, it is important that everyone, including low-income workers, have the opportunity to save for retirement. Low-income workers face many challenges to saving for retirement. The barriers to saving include the lack of access to retirement plans and lack of investment savvy. For example, only 42 % of workers employed in service occupations in the private industry have access to employer retirement plans. The percentage drops to …

Charity And Information: Correcting The Failure Of A Disjunctive Social Norm, Brian Broughman, Robert Cooter

University of Michigan Journal of Law Reform

Charitable donations fund social goods that the state and markets undersupply. Despite widespread belief in the importance of private charity, most Americans donate little or nothing. Experiments in behavioral economics show that anonymity, not human nature, causes low contributions. Anonymity poses a particular challenge for charity because of the special character of the obligation. Charity is a disjunctive social norm, meaning the obligation is owed to "A or B or C or ...". Disclosure of each individual's aggregate conduct is necessary for the effectiveness of any disjunctive social norm. To revitalize charity we propose a public registry where each taxpayer …

Penalizing Poverty: Making Criminal Defendants Pay For Their Court-Appointed Counsel Through Recoupment And Contribution, Helen A. Anderson

University of Michigan Journal of Law Reform

Over thirty years ago the United States Supreme Court upheld an Oregon statute that allowed sentencing courts, with a number of important procedural safeguards, to impose on indigent criminal defendants the obligation to repay the cost of their court appointed attorneys. The practice of ordering recoupment or contribution (application fees or co-pays) of public defender attorney's fees is widespread, although collection rates are unsurprisingly low. Developments since the Court's decision in Fuller v. Oregon show that not only is recoupment not cost-effective, but it too easily becomes an aspect of punishment, rather than legitimate cost recovery. In a number of …

Significant Developments In Veterans Law (2004-2006) And What They Reveal About The U.S. Court Of Appeals For Veterans Claims And The U.S. Court Of Appeals For The Federal Circuit, Michael P. Allen

University of Michigan Journal of Law Reform

Nearly twenty years ago, Congress for the first time created a system for judicial review of decisions denying veterans benefits. Specifically, Congress created an Article I Court: the United States Court of Appeals for Veterans Claims. Veterans dissatisfied with actions of the Department of Veterans Affairs regarding benefits could appeal to the Veterans Court. The United States Court of Appeals for the Federal Circuit provided appellate oversight of the Veterans Court. There simply is nothing like the Veterans Court elsewhere in American law. Yet, despite its uniqueness, there has been little scholarly attention to this institution.

This Article begins to …

Democratizing The American Dream: The Role Of A Regional Housing Legislature In The Production Of Affordable Housing, Thomas A. Brown

University of Michigan Journal of Law Reform

Economic, ethnic and racial residential segregation are ubiquitous across United States metropolitan regions. As a result, the majority of affordable housing is located in central cities or inner-ring suburbs, generally in areas of highly concentrated poverty. Outer suburbs are often exempt from providing significant housing for the economically disadvantaged regional citizens. This should not be. If housing policy in metropolitan regions were established in a democratic fashion, the give-and-take of the political process would create strong incentives for regional cooperation in the creation of affordable housing. Drawing together scholarship in the fields of local government law, administrative law, and housing …

Three Steps And You're Out: The Misuse Of The Sequential Evaluation Process In Child Ssi Disability Determinations, Frank S. Bloch

University of Michigan Journal of Law Reform

The federal Supplemental Security Income (SSI) program provides cash benefits to financially needy persons who are 65 years of age or older, blind, or disabled. It also provides cash benefits to children with disabilities under the age of 18. This Article examines three sets of regulatory efforts to implement special disability standards for children, based first on the original SSI legislation, then on a seminal Supreme Court decision, and finally on amendments to the Social Security Act overruling the Court's decision, and shows how the "sequential evaluation process," which has been useful for adjudicating adult disability claims, has been a …

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 …

The Constitutional Right Of Poor People To Appeal Without Payment Of Fees: Convergence Of Due Process And Equal Protection In M.L.B. V. S.L.J, Lloyd C. Anderson

University of Michigan Journal of Law Reform

In this Article, Professor Lloyd Anderson examines the recent decision M.L.B. v. S.L.J., in which the United States Supreme Court held that due process and equal protection converge to require that states cannot require indigent parents who seek to appeal decisions terminating their parental rights to pay court costs they cannot afford. Noting that this decision expands the constitutional right of cost-free appeal from criminal to civil cases for the first time, Professor Anderson discusses the characteristics a civil case should have in order to qualify for such a right. Professor Anderson proposes a number of other civil cases, …

Unemployment Compensation: Continuity, Change, And The Prospects For Reform, Jerry L. Mashaw

University of Michigan Journal of Law Reform

The Symposium proceedings for which this Introduction provides an overview had a decidedly reformative impulse and focus. Authors and discussants came together not just to ruminate about the future, but to grapple with concrete problems that are both a legacy of the past and the product of relatively recent changes. Reformers found much to criticize and to suggest, whether their focus was on stable structures or newly emerging issues. The purpose of this Introduction is to synthesize the views expressed and to reflect on them from the perspective of a student of benefits administration, but one not expert in the …

Unemployment Compensation In A Time Of Increasing Work-Family Conflicts, Martin H. Malin

University of Michigan Journal of Law Reform

The demographics of the workplace have changed substantially since the nation's unemployment insurance system was enacted in the 1930s. The number of dual-earner and single-parent families has increased dramatically. Yet, the basic requirements for eligibility for unemployment compensation have not varied much since their initial enactment. In this Article, Professor Malin explores the availability of benefits to individuals who lose their jobs because of conflicts between work and family responsibilities and to unemployed individuals whose family responsibilities restrict the types of jobs that they are able to take. He finds that the states have differed greatly concerning the degree to …

A Case For Pregnancy-Based Unemployment Insurance, Mark R. Brown

University of Michigan Journal of Law Reform

Professor Brown argues that unemployment insurance laws should be amended to provide coverage to otherwise eligible, pregnant claimants. Under current law, women who quit because of pregnancy are either disqualified from receiving unemployment benefits altogether or qualify only after childbirth. Those who are fired, meanwhile, often either cannot prove the motivation for their discharge or discover that they are disqualified because of their unavailability for work. Professor Brown uses a case study to illustrate the problems posed by pregnancy and unemployment insurance. He proposes model legislation that extends coverage to all pregnant claimants who temporarily separate from their employment.

Procedural Reform In The Unemployment Insurance System, Marla D. Clark, Jesse S. Reyes

University of Michigan Journal of Law Reform

In the 1990s, we have witnessed a political movement toward smaller governament and reduced federal funding for social benefits programs. At the same time, evidence suggests that the unemployment insurance (UI) system as it works today still may not benefit all of its intended recipients. The need for improved UI services and the scarcity of resources available to meet this need create a tension between political pressures and constitutional considerations of fairness and due process. While constitutional considerations always override political pressures, the real issue is where to strike the appropriate balance between fundamental fairness and economic reality.

Clarifying Conditions For Nonmonetary Eligibility In The Unemployment Insurance System, Amy B. Chasanov

University of Michigan Journal of Law Reform

This Article explores the nonmonetary eligibility requirements that unemployed individuals must meet in order to receive Unemployment Insurance (UI) benefits. These eligibility criteria, which are decided by the states, vary significantly. Because states often have relatively vague statutes regarding their specific nonmonetary eligibility criteria, state rules, regulations, and case law interpret these statutes and better define the criteria. The author discusses the results of a recent survey of UI nonmonetary eligibility criteria which provides information on the status of criteria across the nation than has been available previously. The author concludes that policy reform in this area should be focused …

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

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.

Are Non-English-Speaking Claimants Served By Unemployment Compensation Programs? The Need For Bilingual Services, Mary K. Gillespie, Cynthia G. Schneider

University of Michigan Journal of Law Reform

This Article examines the need for interpreters and translated written materials in unemployment compensation programs for those claimants who do not read, understand, or speak English well or at all. Thousands of employable persons in the United States do not read, understand, or speak English. These persons may be unable to receive unemployment compensation benefits or may receive delayed benefits solely because they are unable to comprehend English. The authors examine how ten states with substantial populations of limited-English-proficient speakers have provided these persons access to their state's unemployment compensation programs. The authors find varying practices among the states in …

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 …

The Law And Politics Of The Enforcement Of Federal Standards For The Administration Of Unemployment Insurance Hearings, John C. Gray Jr., Jane Greengold Stevens

University of Michigan Journal of Law Reform

Unemployment insurance claimants are entitled to have state unemployment programs administered in accordance with federal standards, which include the provision of prompt and fair hearings for claimants if their applications for benefits are denied. Violations of these rights are widespread, but the United States Department of Labor's Unemployment Insurance Service has never brought a formal proceeding to enforce the federal standards of administration. This Article explains why enforcement of the federal standards is needed and why it has not been provided and suggests methods by which advocates for claimants can seek to enforce federal standards in the face of this …

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 …

Interstate Claims: Their History And Their Challenges, Mark D. Esterle

University of Michigan Journal of Law Reform

This Article provides an overview of the cases and statutes relating to interstate claims for unemployment compensation. The author suggests that the current federal statutes and regulations are inadequate on the grounds that they are ambiguous, lead to inconsistent results in different states, and may fail to ensure due process in claims determinations. The author highlights these problems with regard to interstate fact finders, attorney representation, witness subpoenas, and access to judicial review. Finally, he points to regulations that cover interstate unemployment compensation claims by federal employees and military servicemembers as models for new regulations of uniform application.

Federal Law Requirements For The Federal-State Unemployment Compensation System: Interpretation And Application, Gerard Hildebrand

University of Michigan Journal of Law Reform

The benefits provided to states by federal unemployment compensation law are conditioned on meeting several requirements. This Article examines some of these requirements, how they came about, how the United States Department of Labor and the federal courts have interpreted them, and how conflicts between the states and the federal government have been resolved. The Article concludes that certain types of requirements work best within this federal-state system.