Law Commons^™

Dispossessing Resident Voice: Municipal Receiverships And The Public Trust, Juliet M. Moringiello

University of Michigan Journal of Law Reform

The residents of struggling cities suffer property dispossessions both as individual owners and as municipal residents. Their individual dispossessions are part of a cycle that often begins with industrial decline. In Detroit, for example, more than 100,000 residents have lost their homes to tax foreclosure over a four-year period that bracketed the city’s bankruptcy filing. Falling property values, job losses, and foreclosures affect municipal budgets by reducing tax revenues. As individual dispossessions exacerbate municipal financial crises, residents can also face the loss of municipal property. Struggling cities and towns often sell publicly owned property—from parks to parking systems—to balance municipal …

Dispossessing Detroit: How The Law Takes Property, Mary Kathlin Sickel

University of Michigan Journal of Law Reform

Introduction for the University of Michigan Journal of Law Reform's Symposium “Dispossessing Detroit: How the Law Takes Property,” hosted on November 9 and 10, 2019.

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 …

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 …

Child Well-Being: A Beneficial Advocacy Framework For Improving The Child Welfare System?, Sarah H. Ramsey

University of Michigan Journal of Law Reform

This Article explores the advantages and disadvantages of child well-being as a child welfare system advocacy framework. It examines the use of the concept of child well-being as a social indicator and the importance of poverty rates to the child welfare system. It also examines the use of child well-being as an outcome measure for the child welfare system, in particular in Child and Family Service Reviews ("CFSRs") and court evaluations. The possible impact of the child wellbeing concept is considered in the context of several programs, including income supports and problem-solving courts. The Article concludes that, overall, well-being provides …

The Eighteenth Birthday Of The Convention Of Rights Of The Child: Achievements And Challenges, Jaap E. Doek

University of Michigan Journal of Law Reform

Although the U.N. Convention on the Rights of the Child has produced positive results in many countries, the United States remains one of the few nations that has not signed on to this treaty. This Essay will begin by describing the content of the treaty. This Essay will discuss the achievements, challenges, and solutions resulting from the treaty in the areas of child poverty, violence against children, and child labour. Given the positive results produced in other countries, this Essay will conclude with an invitation to the United States to join the Convention on the Rights of the Child.

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

University of Michigan Journal of Law Reform

The participants in the Thirtieth Anniversary Celebration of the Child Advocacy Law Clinic were all challenged to envision the future of child welfare and to address these questions: What should the law and legal institutions governing children's rights and child and family welfare look like in thirty more years? What steps are necessary to achieve those goals? After setting out the historical and optimistic circumstance in which the Child Advocacy Law Clinic was founded, this Article responds to the organizing questions by presenting the author's vision of the future of child welfare law and practice. When families fail children, what …

Unconscionable Contracting For Indigent Defense: Using Contract Theory To Invalidate Conflict Of Interest Clauses In Fixed-Fee Contracts, Jacqueline Mcmurtie

University of Michigan Journal of Law Reform

Indigent defense remains in crisis and yet constitutional challenges to promote systemic change have met with mixed success. This Article explores the new strategy of applying contract theory and principles to challenge indigent defense contracts that violate the canons of professional responsibility. This Article begins by discussing the author's experience working on cases of indigent defendants whose convictions were overturned through the efforts of the Innocence Project Northwest. The erroneous convictions were facilitated by the indigent defense contract in place at the time of the convictions. Pursuant to this contract, the indigent defense contractor agreed to provide representation in all …

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, …

Accelerated Education As A Remedy For High-Poverty Schools, William H. Clune

University of Michigan Journal of Law Reform

High-poverty schools, and the students who attend them, have historically faced substantial challenges in providing and receiving, adequate education. Despite some relief from the courts, school finance remedies that require the redistribution of monetary aid to low-wealth districts have encountered strong political opposition. In this Article, Professor Clune makes a renewed claim for accelerated education as the primary focus of adequacy litigation in school reform cases. He describes the nation's educational condition, in which there exists a disturbing correlation between poverty and low educational outcomes. He then drafts a vision of a comprehensive, school reform remedy, one that emphasizes institutional …

Building Community Among Diversity: Legal Services For Impoverished Immigrants, Robert L. Bach

University of Michigan Journal of Law Reform

Part I of this Essay introduces the Immigrants' Legal Needs Study (ILNS), which provides most of the data for this Essay. Part II focuses on immigrants' access to legal assistance. It analyzes the problems and needs of recently arrived poor immigrants-both immigrants share with longer established poor residents as well as special needs related to immigrants' residency status. Part III addresses the present day demography of our urban communities, including the levels of new immigration. Parts IV and V detail the legal difficulties faced by poor immigrants, the ways they deal with these problems, and community responses to these needs. …

Foreword: The Many Contexts Of Welfare Reform, Jeffrey S. Lehman

University of Michigan Journal of Law Reform

To nourish the ongoing debate, the editors of the University of Michigan Journal of Law Reform have drawn together contributions from four law professors who have substantial expertise concerning the American welfare state. All of the Articles that compose this Symposium are animated by a desire to broaden our frame of reference for evaluating welfare reform. I believe that their shared project is important. Efforts to change AFDC will send ripples through the multiple legal structures that buoy our public systems of income support and wealth redistribution.

The Income Tax Treatment Of Social Welfare Benefits, Jonathan Barry Forman

University of Michigan Journal of Law Reform

Part I of this Article describes the major social welfare programs in the United States. Part II outlines the basic structure of the federal income tax and describes how social welfare benefits are treated by the income tax system. Finally, Part III surveys some recent proposals to tax particular social welfare benefits and considers the arguments for and against taxing such benefits. The Article concludes that the need for new revenue sources will push the federal government to reconsider the tax treatment of social welfare benefits.

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 …

Reforming Welfare Through Social Security, Stephen D. Sugarman

University of Michigan Journal of Law Reform

In this Article, I first want to illustrate the connection between Social Security and AFDC-to explain the Social Security program and to demonstrate how it contributes to the welfare problem. More importantly, I then want to offer a reform proposal that builds on Social Security as a way to begin to eliminate AFDC and the current welfare problem. Simply put, I propose that Social Security should provide benefits to children with absent parents on the same basic terms on which it now provides benefits to children with deceased, disabled, or retired parents.

The Impact Of Public Abortion Funding Decisions On Lndigent Women: A Proposal To Reform State Statutory And Constitutional Abortion Funding Provisions, Carole A. Corns

University of Michigan Journal of Law Reform

This Note argues that state legislatures should relax funding restrictions on abortions for indigent women and proposes specific mechanisms to ensure the equal protection of indigent women in the abortion context. Part I briefly recounts the history of federal funding for abortions, from the liberal post-Roe funding scheme to the restrictive funding arrangements that have prevailed since the early 1980s. Part II surveys the existing literature and discusses patterns of state funding and the impact of funding restrictions on indigent women seeking abortions. This literature shows that the tightening of state funding policies subsequent to the federal Medicaid restrictions has …

Accelerating Integration : Effective Remedies In Public Housing Discrimination Suits, Adam M. Shayne

University of Michigan Journal of Law Reform

This Note examines the different remedies employed by judges to integrate public housing and recommends a standard approach for courts to employ in the future. Part I describes the status of local and federal public housing policy in the United States. Part II examines litigation aimed at achieving the integration of public housing. This Part details short-term remedies employed by judges in several cities and long-term integration efforts by the courts in two cities: Chicago, Illinois, and Yonkers, New York. The Chicago and Yonkers suits exemplify the major obstacles that plaintiffs and judges face in developing appropriate measures to integrate …

Tenants' Rights In Police Power Condemnations Under State Statutes And Procedural Due Process, Eric Wills Orts

University of Michigan Journal of Law Reform

This Note explores the legal arguments available to tenants who want to resist arbitrary or unjustified condemnations of their buildings. Part I provides an overview of the legal and constitutional structure of the police power to condemn buildings. Part II analyzes state statutes governing the condemnation of buildings. Focusing on the statutory rights to notice and opportunity for a hearing provided to tenants, Part II concludes that a majority of states provide inadequate protection for tenants facing eviction by condemnation. Part II then proposes statutory reform, based on an approach taken by a minority of states. Part III demonstrates that …

The Sixth Amendment Right To Counsel Under The Massiah Line Of Cases, Department Of Justice Office Of Legal Policy

University of Michigan Journal of Law Reform

The sixth amendment guarantees to the accused in a criminal prosecution the right "to have the Assistance of Counsel for his defence." In Massiah v. United States, the Supreme Court held this right was violated when there was used against the defendant at trial evidence of incriminating statements deliberately elicited from him by an informant after he had been indicted and in the absence of counsel. In effect, this decision and others that 'followed have created a new constitutional right not to be questioned about pending charges prior to trial except in the presence of an attorney.

One consequence …

Psychiatric Assistance For Indigent Defendants Pleading Insanity: The Michigan Experience, Paul Zisla

University of Michigan Journal of Law Reform

The federal government and many states already provide psychiatric assistance to indigent defendants pleading insanity. Michigan's statutory scheme for delivering this service presents an opportunity to evaluate an approach that generally favors defendant interests in areas left unresolved by Ake. This Note undertakes that evaluation. Part I summarizes the Ake decision, key problem areas, and the research methodology. Part II describes the Michigan statutory system. Part III evaluates that system using data from interviews with legal and psychiatric practitioners and considers the consequences of Michigan's approach to the issues posed by Ake. The evaluation shows that Michigan's system …

Forcing Attorneys To Represent Indigent Civil Litigants: The Problems And Some Proposals, Greg Stevens

University of Michigan Journal of Law Reform

This Note argues that uncompensated court appointments represent an unsatisfactory means to provide counsel for indigents. Part I discusses the policy arguments for and against forced, uncompensated court appointments. Part I concludes that the arguments against these appointments outweigh the arguments in favor of them. Part II argues that they violate the Constitution's prohibitions against uncompensated takings and involuntary servitude. Part III offers a proposal that would provide effective representation for indigent civil litigants, while avoiding infringement of attorneys' constitutional rights.

The Emerging Right Of Legal Assistance For The Indigent In Civil Proceedings, Jeffrey M. Mandell

University of Michigan Journal of Law Reform

After the Supreme Court declared in Gideon v. Wainwright that indigents have a constitutional right to appointed counsel in criminal cases, attention turned to the possibility that a similar right could be found for civil litigants. Although there is no explicit constitutional guarantee of counsel for the civil litigant, the due process clause, which protects property rights as well as personal freedoms, arguably mandates that there be a right to professional representation of all citizens in all courts. The inability of most laymen to effectively present even a rudimentary case on their own behalf indicates that without counsel a meaningful …

The Myth Of Sisyphus: Legal Services Efforts On Behalf Of The Poor, Lawrence E. Rothstein

University of Michigan Journal of Law Reform

In Greek mythology there is a story about the tyrant, Sisyphus, who is condemned to suffer everlasting anguish. Eternally, he rolls a huge rock up the steep side of a mountain only to have it roll down again just as he reaches the top. Such is the plight in which the poor person finds himself when confronting the legal system. If the poor individual is able to overcome the massive obstacles placed between him and full, fair litigation of his case, he finds that the rules to be applied to the case are stacked against him. This situation is not …

Indigents, Hospital Admissions And Equal Protection, Charles S. Derousie

University of Michigan Journal of Law Reform

The author surveyed ten hospitals in each of ten states, including hospitals of varying sizes and classifications. Five of the forty-five replies indicated the hospital did not admit all indigents in need of medical care. The primary reason given was that prospective patients not covered by hospital insurance or government programs such as Medicaid or Medicare were usually unable to produce a required preadmission deposit. This practice of requiring a preadmission deposit seems to be common.

Overcoming Barriers To Scattered-Site Low-Cost Housing, Darrel J. Grinstead

University of Michigan Journal of Law Reform

The effect of most zoning devices which have been used in suburban and non-ghetto city planning in the past few decades has been to erect substantial economic barriers around entire cities. These devices include minimum lot size requirements, density zoning, frontage requirements, single family restrictions, and minimum living space requirements. While such zoning practices may not be exclusionary in purpose, exclusion of minority groups has been the result. Moreover, since most minorities are heavily concentrated in low income groups, economic segregation will bring about a high degree of racial and ethnic segregation. Indeed, it has been suggested that these economic …