Law Commons^™

Calculating Compensation Sums For Private Law Wrongs: Underlying Imprecisions, Necessary Questions, And Toward A Plausible Account Of Damages For Lost Years Of Life, Michael Pressman

University of Michigan Journal of Law Reform

The ubiquitous corrective-justice goals of “making a party whole” or “returning a party to the position she was in” are typically understood in monetary terms, and in this context, it is fairly clear what these terms mean. If, as this Article argues, these corrective-justice goals should instead be understood in terms of something that has intrinsic value, such as happiness, various imprecisions come to the fore. This Article identifies and explores these imprecisions and, in so doing, articulates a novel framework that can be used for understanding and systematizing our approach to private law remedies. This is the Article’s first …

Policing Corporate Conduct Toward Minority Communities: An Insurance Law Perspective On The Use Of Race In Calculating Tort Damages, Dhruti J. Patel

University of Michigan Journal of Law Reform

Courts commonly use U.S. Department of Labor actuarial tables, which explicitly take into account the race of the tort victim, to determine average national wage, work-life expectancy, and life expectancy. This practice has led to wide discrepancies between average damage awards for minority plaintiffs compared to white plaintiffs even if both plaintiffs are similarly situated. While recent legal scholarship criticizes the use of race-based tables and addresses the Equal Protection and incentive concerns such tables present, few courts have deviated from the explicit use of race in determining tort damages.

Though the use of demographic features, such as race, to …

Critiquing Matter Of A-B-: An Uncertain Future In Asylum Proceedings For Women Fleeing Intimate Partner Violence, Theresa A. Vogel

University of Michigan Journal of Law Reform

The #MeToo movement has brought renewed attention to the impact of gender inequality on our society’s ability to provide protection to women from physical and sexual violence, including intimate partner violence. Despite advances in legal protections and increased resources to prevent, prosecute, and bring an end to intimate partner violence, in the absence of true efforts to combat gender inequality as a whole, intimate partner violence will continue to pervade our society. The discussion of gender inequality’s impact on the treatment of intimate partner violence must expand beyond the violence that occurs in the United States to gender inequality’s impact …

This We’Ll Defend: Expanding Ucmj Article 2 Subject Matter Jurisdiction As A Response To Nonconsensual Distribution Of Illicit Photographs, Nicholas Karp

University of Michigan Journal of Law Reform

In March 2017, it was revealed that current and former armed service members shared thousands of nude photos of their female counterparts over social media. Although some of these photos were taken with the women’s consent, almost none of them were distributed with the women’s consent.

Victims have little legal recourse. Military law is silent on the matter of non-consensual distribution. Federal civilian law speaks only to interstate stalking, domestic violence, and harassment, while only thirty-four states have revenge porn laws that sufficiently criminalize nonconsensual distribution of illicit photographs. Further complicating matters, the perpetrator’s military status as active duty, reservist, …

The Civil Redress And Historical Memory Act Of 2029: A Legislative Proposal, William J. Aceves

University of Michigan Journal of Law Reform

During the extant “War on Terror,” U.S. and foreign nationals who did not engage in hostilities were detained and mistreated abroad by the United States or by other countries with the acquiescence of the United States. These individuals were accused of being terrorists or were suspected of associating with terror groups, but they were, in fact, innocent. They were eventually released and were never charged by the United States with any crime. Despite their innocence, the United States has failed to provide them with any form of redress for their mistreatment. The Bush, Obama, and Trump administrations refused to apologize …

Immigrant Victims, Immigrant Accusers, Michael Kagan

University of Michigan Journal of Law Reform

The U visa program provides immigration status to noncitizen victims of crime, ensuring unauthorized immigrants do not become easy prey because they are too afraid to seek help from the police. But under the federal government’s structuring of the U visa program, a victim must also become an accuser to receive immigration benefits. Thus, the U visa implicates the rights of third parties: accused defendants. These defendants are often immigrants themselves who may be deported when U visa recipients level their accusations. Recent state court decisions have created complications in the program by permitting defendants to cross-examine accusers about their …

A Victimless Sex Crime: The Case For Decriminalizing Consensual Teen Sexting, Joanna R. Lampe

University of Michigan Journal of Law Reform

As teenagers' access to cellular phones and the internet has increased over the past two decades, so has their ability to harm themselves and others through misuse of new technology. One risky behavior that has become common among teenagers is "sexting"--the digital sharing of sexually suggestive images. To combat the dangers of teen sexting, many states have criminalized the act. Criminalization does not resolve the issue of teen sexting, however, and in many cases it may cause additional harm. This Note reviews existing state laws related to teen sexting, and critiques these laws on constitutional and policy grounds. It then …

Exploring The First Amendment Rights Of Teens In Relationship To Sexting And Censorship, Julia Halloran Mclaughlin

University of Michigan Journal of Law Reform

This Article explores child pornography law in relation to teen sexting conduct. Recently, some teens who engaged in teen sexting have been convicted under child pornography laws and have been required to register as sexual predators. The criminalization of teens for developmentally typical behavior, mimicking the conduct of adults, can result in grave harm to most teens. Furthermore, the application of child pornography laws to teen sexting conduct demonstrates the constitutional overbreadth of the current definition of child pornography. Photographs have an emblematic role in society-capturing and celebrating youth. Moreover, the creation of teen sexting images accompanies a teen's developmental …

Adequate (Non)Provocation And Heat Of Passion As Excuse Not Justification, Reid Griffith Fontaine

University of Michigan Journal of Law Reform

For a number of reasons, including the complicated psychological makeup of reactive homicide, the heat of passion defense has remained subject to various points of confusion. One persistent issue of disagreement has been the justificatory versus excusatory nature of the defense. In this Article, I highlight and categorize a series of varied American homicide cases in which the applicability of heat of passion was supported although adequate provocation (or significant provocation by the victim) was absent. The cases are organized to illustrate how common law heat of passion may apply in instances in which there is no actual provocation or …

The Values Of Interdisciplinarity In Homicide Law Reform, Robert Weisberg

University of Michigan Journal of Law Reform

Professor Reid Fontaine's article, Adequate (Non)Provocation and Heat of Passion as Excuse Not Justification, makes a convincing case for treating heat of passion wholly as an excuse not a justification, as the only sensible way to comprehend its various forms. In doing so, Professor Fontaine stimulates further thinking about heat of passion doctrine, along two dimensions.

Unjustified: The Practical Irrelevance Of The Justification/Excuse Distinction, Gabriel J. Chin

University of Michigan Journal of Law Reform

In recent decades, the distinction between justification and excuse defenses has been a favorite topic of theorists of philosophy and criminal law. Notwithstanding the impressive intellectual efforts devoted to the task, no single scholar or viewpoint appears to be on the verge of generating practical consensus about the concepts of justification and excuse, categorization of the defenses, or categorization of difficult individual cases. This Essay suggests that none of these goals can be usefully advanced through the justification/excuse distinction.

Misunderstanding Provocation, Samuel H. Pillsbury

University of Michigan Journal of Law Reform

Provocation is and always has been a compromise rule whose success depends on its ability to appeal to all ideological constituencies, and therefore will always-as long as it lasts-resist the final categorization that this question seeks. As long as provocation involves an inquiry into reasonableness, it will include considerations of justification. As long as it provides for mitigation of punishment based on the difficulty of resisting temptations to violence inspired by strong emotion, it will speak to considerations of excuse.

How Not To Argue That Reasonable Provocation Is Not An Excuse, Peter K. Westen

University of Michigan Journal of Law Reform

Reid Fontaine draws two conclusions regarding the partial defense to murder of reasonable provocation-one regarding its substantive content, the other regarding its formal classification…. I agree with both of Fontaine's two conclusions, and, indeed, I have previously written to that effect. Unfortunately, while I agree with Fontaine's conclusions, I do not think he adequately supports them.

On Passion's Potential To Undermine Rationality: A Reply, Reid Griffith Fontaine

University of Michigan Journal of Law Reform

This Reply is organized into several sections. Following the Introduction, I respond to my six distinguished commentators. In Section II, I consider Professor Chin's concern that the distinction between justification and excuse bears no practical relevance for the criminal law. In Section III, I respond to Professor Baron's argument that reasonable mistake of fact is consistent with justification-a view, she observes, that is generally reflected in the criminal law. Building on the discussion of whether mistake and justification are compatible, Section IV addresses Professor Pillsbury's treatment of heat of passion as a hybrid defense that uniquely incorporates components of both …

The Provocation Defense And The Nature Of Justification, Marcia Baron

University of Michigan Journal of Law Reform

In this Essay, I evaluate the evidence of "adequate nonprovocation” that Fontaine puts forward to show that the heat of passion defense is decidedly an excuse (more precisely, a partial excuse). I will be focusing my remarks on the traditional heat of passion defense.

The Irreducibly Normative Nature Of Provocation/Passion, Stephen J. Morse

University of Michigan Journal of Law Reform

I agree with Professor Fontaine that provocation/passion is best interpreted as a partial excuse, but the ground for my conclusion is normative and not analytic. Indeed, I fear that he has not made the analytic case in large part because he begs a question about failed justifications that has only a normative and not an analytic answer. This Essay first briefly provides my own understanding of provocation/ passion. In the course of doing so, I address Professor Fontaine's argument that provocation/passion should also be applied to people with provocation interpretational bias. I then turn to why Fontaine's case for …

The Unintended Consequence Of Tort Reform In Michigan: An Argument For Reinstating Retailer Product Liability, Ashley L. Thompson

University of Michigan Journal of Law Reform

Tort reform became an important issue during the 1994 Congressional Campaign as part of the Republican Party's "Contract with America. "Since then, many federal and state laws have attempted to reduce both liability and recovery in tort actions. In 1996, Michigan passed the Tort Reform Act, encompassing many drastic changes to state tort law. One provision of the Act, § 294 7, scaled back liability against non-manufacturing retailers in product liability actions. The Michigan Supreme Court interpreted the exceptions of the law narrowly and the prohibition broadly, essentially barring recovery from retailers. Since 1996, this provision has prevented victims injured …

"An Opportunity For Effective Cross-Examination": Limits On The Confrontation Right Of The Pro Se Defendant, Alanna Clair

University of Michigan Journal of Law Reform

The rights of a defendant to confront his accusers and conduct his defense without the assistance of counsel are sacrosanct in the American judicial system. The rights of the defendant are even sometimes exalted at the expense of the rights of the public or of victims of crime. This Note examines the problem of a pro se defendant using his confrontation right to intimidate or harass his alleged victims testifying against him. It is well-established that the confrontation right is not unconditional. The problem comes in determining whether the courts can place limits on the confrontation right of a pro …

State Legislation And Human Trafficking: Helpful Or Harmful?, Stephanie Richard

University of Michigan Journal of Law Reform

Human trafficking is the modern day form of slavery. Despite the fact that thousands of people are trafficked into the United Sates each year, the majority of U.S. citizens are not aware of the nature and extent of this problem. In 2000, the U.S. government passed the Victims of Trafficking and Violence Protection Act (VTVPA) to combat this grave human rights abuse. This federal legislation takes a comprehensive approach to addressing the problem of human trafficking in the United States by acknowledging that effective prosecution cannot occur without safeguards and benefits for trafficking victims. To this end, the VTVPA enumerates …

Asylum, Social Group Membership And The Non-State Actor: The Challenge Of Domestic Violence, Michael G. Heyman

University of Michigan Journal of Law Reform

This Article argues that the current approaches to asylum claims based on "social group" membership under the U.N. convention Relation to the Status of Refugees are deeply flawed. The Refugee Convention confers asylum on persons persecuted for their membership in a particular social group. Courts have struggled with the boundaries of the social group definition, and there appears to be no coherent way to reconcile all of the court decisions on what groups qualify as social groups under the Refugee Convention.

This Article suggests that courts adopt a consistent definition of what constitutes a social group. The definition proposed in …

Aiding And Altruism: A Mythopsycholegal Analysis, Thomas C. Galligan Jr.

University of Michigan Journal of Law Reform

This Article asserts that traditional tort law should be modified to provide for a duty to act in situations in which a reasonable person would act altruistically. Part I examines traditional and more recent tort doctrine governing the duty to aid. Part II discusses compassion from philosophical, literary, and mythological points of view and explores how these viewpoints inform compassion's possible relationship to a legal duty to help. Part III considers the connections between psychological theories and studies of action, altruism, and empathy. In addition to Batson's work, I reexamine the classic studies of Latan6 and Darley and the application …

Rape Shield Laws--Is It Time For Reinforcement?, Catherine L. Kello

University of Michigan Journal of Law Reform

This Note takes a critical look at civil suits arising from allegations of rape, particularly from the perspective of how these actions run counter to the spirit of rape reform and rape shield legislation. The analysis begins with a brief history of the Rape Shield Law and its intended purposes. Part II then utilizes two cases to outline the current dilemma posed by civil suits that are filed during a pending criminal sexual conduct prosecution. After presenting these cases, Part III considers whether a legislative remedy is required and determines that it is. Part IV then proposes a Model Statute. …

Developing A Victims' Suit For Injuries Caused By A Compulsorily Released Prisoner, Leonard M. Niehoff

University of Michigan Journal of Law Reform

This Note advocates the development of a tort remedy for victims injured by a compulsorily released prisoner. This remedy would be based on existing tort theory permitting suits against third parties whose negligence causes or facilitates a criminal act. The victim would bring suit against both the state and third parties who aided in the criminal release determination . To support his claim, the victim would allege: (1) that state officials negligently selected the offending inmate for early release; and (2) that the state negligently maintained the unconstitutional prison conditions which precipitated the release.

Part I of this Note discusses …

Parent-Child Incest: Proof At Trial Without Testimony In Court By The Victim, Dustin P. Ordway

University of Michigan Journal of Law Reform

This Note argues that the incest victim should not testify personally at trial. Rather, the child's testimony should be replaced with tape-recorded pretrial examinations of the victim by an expert, supplemented by the in-court testimony of the examining expert. Part I discusses how the present system of requiring in-court testimony by the victim harms the child, fails to correct the incest problem, and produces unreliable evidence. Part II outlines and discusses the merits of the proposed reform. Part ill examines the proposed reform in light of the defendant's constitutional rights to due process and to confront witnesses against him. The …

Protection Of Children From Use In Pornography: Toward Constitutional And Enforceable Legislation, T. Christopher Donnelly

University of Michigan Journal of Law Reform

This article will begin with an overview of the child pornography problem, then move to a more detailed discussion of the harms wrought upon children and society by the production and distribution of such material. A discussion of prior law will follow, detailing the need for legislation aimed specifically at the child pornography industry. The majority of the article will undertake a critical examination of existing child pornography legislation. The various elements of the offenses will be discussed and recommendations will be made to assure the effectiveness and constitutionality of child pornography statutes. In addition, provisions designed to facilitate easier …

Tort Claims Under The Present And Proposed Bankruptcy Acts, Stephen Allen Edwards

University of Michigan Journal of Law Reform

Congress may soon enact the first complete revision of the United States bankruptcy laws in almost four decades. Among the numerous changes proposed by the legislature is a major alteration of the provability and dischargeability of tort claims asserted against the bankrupt's estate. This article will discuss the treatment of tort claims in the present Act and the changes to be made by the proposed Act, and will evaluate alternative approaches to compensating victims of bankrupt tortfeasors.

Tort Liability Of Labor Unions For Picket Line Assaults, David R. Case

University of Michigan Journal of Law Reform

This article will discuss whether tort actions against unions for picket line assaults are preempted by the National Labor Relations Act, and if not preempted, what forums are available to hear such actions. This article will also examine the theories that have been used to hold unions liable for the assaults committed by their picketers. Included in this discussion will be an analysis of the policy considerations offered in support of the various theories of liability.