Law Commons^™

The Good-Faith Doubt Test And The Revival Of Joy Silk Bargaining Orders, Brandon R. Magner

University of Michigan Journal of Law Reform

The last fifty-two years have borne witness to the swift degradation and virtual irrelevance of the bargaining order. By the end of the twentieth century even pro-enforcement officials in the NLRB were acknowledging the difficulty of obtaining an enforceable bargaining order, and the remedy rarely appears these days in the agency’s published decisions.

This is not the product of the usual economic or political factors cited as reasons for the labor movement’s and its attendant regulating schema’s diminishment. Rather, the decline of the bargaining order can be explained almost entirely by the disappearance of the so-called Joy Silk doctrine from …

Sexual Orientation, Gender Identity, And Homelessness Post-Bostock, Alaina Richert

University of Michigan Journal of Law Reform

Housing discrimination on the basis of sexual orientation and gender identity is a critical problem facing LGBTQ+ people in the United States. In addition, LGBTQ+ people, particularly transgender people, disproportionately suffer from homelessness and face discrimination by homeless shelters on the basis of sexual orientation and gender identity. This homelessness and discrimination both disproportionately affect transgender people of color. This Note makes two contributions that would enable courts to grant meaningful relief in these contexts. First, it argues that “sex” in the Fair Housing Act includes sexual orientation and gender identity after the holding in Bostock v. Clayton County. Second, …

Remarks, Andrea Dennis

University of Michigan Journal of Law Reform

Over the course of one week, the Michigan Journal of Law Reform presented its annual Symposium, this year titled Reimagining Police Surveillance: Protecting Activism and Ending Technologies of Oppression. During this week, the Journal explored complicated questions surrounding the expansion of police surveillance technologies, including how police and federal agencies utilize their extensive resources to identify and surveil public protest, the ways in which technology employed by police is often flawed and disparately impacts people of color, and potential reforms of police surveillance technology. Before delving into these complicated questions, I presented remarks on the history of police surveillance …

Suspect Development Systems: Databasing Marginality And Enforcing Discipline, Rashida Richardson, Amba Kak

University of Michigan Journal of Law Reform

Algorithmic accountability law—focused on the regulation of data-driven systems like artificial intelligence (AI) or automated decision-making (ADM) tools—is the subject of lively policy debates, heated advocacy, and mainstream media attention. Concerns have moved beyond data protection and individual due process to encompass a broader range of group-level harms such as discrimination and modes of democratic participation. While a welcome and long overdue shift, the current discourse ignores systems like databases, which are viewed as technically “rudimentary” and often siloed from regulatory scrutiny and public attention. Additionally, burgeoning regulatory proposals like algorithmic impact assessments are not structured to surface important –yet …

Deprogramming Bias: Expanding The Exclusionary Rule To Pretextual Traffic Stop Using Data From Autonomous Vehicle And Drive-Assistance Technology, Joe Hillman

University of Michigan Journal of Law Reform

As autonomous vehicles become more commonplace and roads become safer, this new technology provides an opportunity for courts to reconsider the constitutional rationale of modern search and seizure law. The Supreme Court should allow drivers to use evidence of police officer conduct relative to their vehicle’s technological capabilities to argue that a traffic stop was pretextual, meaning they were stopped for reasons other than their supposed violation. Additionally, the Court should expand the exclusionary rule to forbid the use of evidence extracted after a pretextual stop. The Court should retain some exceptions to the expanded exclusionary rule, such as when …

Officer-Created Jeopardy And Reasonableness Reform: Rebuttable Presumption Of Unreasonableness Within 42 U.S.C. § 1983 Police Use Of Force Claims, Bryan Borodkin

University of Michigan Journal of Law Reform

This Note analyzes the current state of civil law surrounding police use of excessive force, highlighting the evolution of the “objective reasonableness” test employed in civil police use of force lawsuits brought under 42 U.S.C. § 1983. This Note also discusses the role that social movements and surveillance technologies have played in furthering police accountability and shifting public opinion surrounding police use of force. After detailing this social and technological context, this Note addresses the numerous problems presented by the “objective reasonableness” test employed within civil police use of force cases, analyzing this problematic test from the perspective of both …

“Bang!”: Shotspotter Gunshot Detection Technology, Predictive Policing, And Measuring Terry’S Reach, Harvey Gee

University of Michigan Journal of Law Reform

ShotSpotter technology is a rapid identification and response system used in ninety American cities that is designed to detect gunshots and dispatch police. ShotSpotter is one of many powerful surveillance tools used by local police departments to purportedly help fight crime, but they often do so at the expense of infringing upon privacy rights and civil liberties. This Article expands the conversation about ShotSpotter technology considerably by examining the adjacent Fourth Amendment issues emanating from its use. For example, law enforcement increasingly relies on ShotSpotter to create reasonable suspicion where it does not exist. In practice, the use of ShotSpotter …

Fighting Global Surveillance: Lessons From The American Muslim Community, Danna Z. Elmasry

University of Michigan Journal of Law Reform

The United States government has been spying on its citizens through a massive surveillance infrastructure that is unrestricted to a particular target or suspicion of wrongdoing. The statutory and regulatory authorities responsible for this infrastructure are sprawling and often secret. Built-in limitations and oversight mechanisms are riddled with loopholes or inaccessible due to exceedingly high thresholds. Litigation challenges to surveillance overreach often fail at standing. Under the current doctrine, plaintiffs must show that their own communications have been surveilled by a specific surveillance program. This Note contributes to surveillance reform by proposing a private right of action that sets the …

Examining The Bar Exam: An Empirical Analysis Of Racial Bias In The Uniform Bar Examination, Scott Devito, Kelsey Hample, Erin Lain

University of Michigan Journal of Law Reform

The legal profession is among the least diverse in the United States. Given continuing issues of systemic racism, the central position that the justice system occupies in society, and the vital role that lawyers play in that system, it is incumbent upon legal professionals to identify and remedy the causes of this lack of diversity. This Article seeks to understand how the bar examination—the final hurdle to entering the profession— contributes to this dearth of diversity. Using publicly available data, we analyze whether the ethnic makeup of a law school’s entering class correlates to the school’s first-time bar passage rates …

Another Katz Moment?: Privacy, Property, And A Dna Database, Claire Mena

University of Michigan Journal of Law Reform

The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The understanding of these words seems to shift as new technologies emerge. As law enforcement’s arsenal of surveillance techniques has grown to include GPS tracking, cell phones, and cell site location information (CSLI), the Supreme Court has applied Fourth Amendment protections to these modern tools. Law enforcement continues to use one pervasive surveillance technique without limitations: the routine collection of DNA. In 2013, the Supreme Court in Maryland v. King held that law enforcement may routinely …

Corporations As Private Regulators, Wentong Zheng

University of Michigan Journal of Law Reform

The growing trend of corporations imposing restrictions on suppliers, contractors, and customers beyond the requirements of existing laws requires rethinking the nature and impact of corporations’ private regulatory power. This trend, which this Article refers to as “Corporations as Private Regulators” (CPR), represents a paradigmatic shift in how corporations participate in the making of public policies. This Article conceptualizes the corporate CPR power as the exercise of a right of refusal to deal with counterparties. This right of refusal could be theorized as a new form of property right, whose allocation has important implications for both rights and wealth. The …

Making Tax Law Work: Improvisation And Forgotten Taxpayers In Partnership Tax, Andrea Monroe

University of Michigan Journal of Law Reform

There is a growing awareness that federal tax law caters to a small number of wealthy and well-advised taxpayers without regard for the rest of the taxpaying public, and partnership tax is a prime example. This Article explains how complexity and indeterminacy have transformed partnership tax, harming millions of forgotten taxpayers who struggle to comply with their annual filing obligations. A root cause of this phenomenon is the professional culture among elite practitioners, policymakers, and scholars at the heart of the partnership tax system.

The most troublesome provisions of partnership tax are also its most fundamental—namely the allocation rules that …

Second Chances: Why Michigan Should Categorically Prohibit The Sentence Of Juvenile Life Without Parole, Richard Zhao

University of Michigan Journal of Law Reform

The United States is the only country in the world that sentences children to die in prison. This practice, known as juvenile life without parole (JLWOP), is condemned by the United Nations Convention on the Rights of the Child. Yet twenty-five states still permit the sentence, and Michigan houses one of the nation’s largest JLWOP populations. Despite the U.S. Supreme Court’s ban on some forms of JLWOP, more must be done to further limit the use of this sentence. The current JLWOP sentencing scheme is untenable, imposes a significant financial burden on taxpayers, and perpetuates racial inequality. This Note explores …

Take It With A Grain (Or More) Of Salt: Why Industry-Backed Dietary Guidelines Fail Americans And How To Fix Them, Caroline Farrington

University of Michigan Journal of Law Reform

The U.S. Dietary Guidelines lack oversight and accountability. The result: Guidelines that reflect food industry interests instead of modern science. This deleterious guidance goes on to govern federally-subsidized food assistance programs and to influence dietary choices throughout the private sector and private life. Ultimately, the Guidelines significantly contribute to the endemic chronic disease they seek to address.

The Guidelines Advisory Committee is notoriously rife with conflicts of interest, and thus most Guidelines scholarship has focused on reforming the Committee. But the 2015 and 2020 Guidelines show that these reforms are insufficient and agency-level change is necessary. In 2015, the Committee …

Driving Diverse Representation Of Diverse Classes, Alissa Del Riego

University of Michigan Journal of Law Reform

Why have federal courts overwhelmingly appointed white men to represent diverse consumer classes? Rule 23(g) of the Federal Rules of Civil Procedure requires courts to appoint the attorneys “best able to represent the interests of class members” to serve as class counsel. But courts’ recurrent conclusion that white men best fit the federally mandated job description not only gives the appearance of discrimination, but harms class members that suffer from outcomes plagued by groupthink and cognitive biases. This Article sets out to uncover why white male repeat players continue to dominate class counsel appointments and proposes a practical and immediately …

Black Lawyers Matter: Enduring Racism In American Law Firms, Vitor M. Dias

University of Michigan Journal of Law Reform

Scholars and practitioners have extensively examined patterns of racial inequality in U.S. corporate law firms. In the corporate bar, pull factors that have long shaped legal professionals’ careers include promotions, outside job offers, and family priorities that may lead to leaving the labor force altogether. Push factors, such as discrimination, problems with management, and work-life conflict, also precipitate work transitions. Beyond corporate firms, however, an urgent question remains open to empirical scrutiny: How does race affect career moves in the contemporary American legal profession?

In this Article, I address this question drawing upon data from the first nationally representative, longitudinal …

“That Name Is Dead To Me”: Reforming Name Change Laws To Protect Transgender And Nonbinary Youth, Sarah Steadman

University of Michigan Journal of Law Reform

Content warning: this Article discusses suicidality.

For transgender and some nonbinary youth, living under a chosen name is a first step toward becoming their authentic selves. For these youth, a name change is powerful; it allows them to choose a name that matches their gender identity. They consider their birth name to be a distressing “dead” name—one that they cannot relate to and need to bury.

Using one’s chosen name decreases suicidality among transgender youth who face many challenges, including family rejection and other severe mental health stressors. Transgender and nonbinary youth can only require others to use their chosen …

Blue Racing: The Racialization Of Police In Hate Crime Statutes, Christopher Williams

University of Michigan Journal of Law Reform

Content warning: this Article discusses police brutality.

The relationship between race, law, and policing is one that has been analyzed by many scholars throughout U.S. history. The vast majority of research about police has highlighted policing in relation to groups they police, focusing on areas such as policing practices, policies, or involvement in the racialization of minority groups. This scholarship has far outpaced research on actions taken by law enforcement on behalf of law enforcement— specifically, how law enforcement engages in racialization out of self-interest. A better understanding of the ways in which law enforcement engages in racialization that is …

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 …

Emergency Money: Lessons From The Paycheck Protection Program, Susan C. Morse

University of Michigan Journal of Law Reform

The Paycheck Protection Program, or PPP, was huge. Between April 2020 and May 2021, it provided almost $800 billion to more than 11 million businesses—about a third of all U.S. businesses with 500 employees or fewer. The PPP was also flawed. Treasury and the Small Business Administration faced incomplete statutory instructions and a challenging tradeoff between speed and accuracy in distributing PPP funds.

These flaws make the PPP a realistic and valuable case study; the PPP reveals tools that can be applied to similar distributions of emergency funds. One tool is back-end adjustments, meaning that funds are first distributed and …

Lessons From The Pandemic: Congress Must Act To Mandate Digital Accessibility For The Disabled Community, Shawn Grant

University of Michigan Journal of Law Reform

The upheaval and disruption created by the COVID-19 pandemic has left some of our most vulnerable, the disabled community, facing increased discrimination and hardship due in part to lack of access to websites and other digital technologies. The pandemic has laid bare the extent of our dependence on technology and the perils faced by those who are unable to access that technology. This Article identifies the regulatory, judicial, and legislative failures to resolve the issue of whether digital technologies are “places of public accommodation” under Title III of the Americans with Disabilities Act. It then calls on Congress to enact …

What The Great Recession Revealed About Taxation By Citation And What Can Be Done About It, Dick M. Carpenter Ii, Chelsea Lawson, Courtney Deuser

University of Michigan Journal of Law Reform

In recent years, the issue of “taxation by citation” has grown in national prominence. It is generally defined as municipal revenue generation through fines and fees that transcends a clear relationship to public health and safety and serves more as a revenue generating device. According to critics, taxation by citation creates conflicts of interest, violates the rights of those with low income, and distorts law enforcement priorities. Municipal leaders reject such criticisms by denying taxation by citation even exists. To date, research findings have been mixed on whether cities practice taxation by citation. This Article examines whether there is a …

Remarks, Lisa Foster

University of Michigan Journal of Law Reform

In both Greek and Roman mythology, a Hydra guards the entrance to the underworld. For those who don’t remember their mythology, a Hydra is a multi-headed serpent who exhales poisonous fumes. If you get close enough to the Hydra and are able to cut off one of its heads, two grow back in its place. Slaying the Hydra was number two on Hercules’ famous list of Labors. He was successful, but not without a fierce struggle.

As you’ve heard over the last four days, fines and fees are Hydralike. Fines are imposed for almost every minor offense — misdemeanors, infractions, …

Debt To Society: The Role Of Fines & Fees Reform In Dismantling The Carceral State, Wesley Dozier, Daniel Kiel

University of Michigan Journal of Law Reform

Fines and fees that result from contact with the criminal legal system serve as a suffocating debt for those against whom they are assessed. Many states have countless laws that require taxes, fines, and fees to be assessed against individuals involved in the criminal legal system at various stages of the criminal legal process, and they have the effect of permanently trapping individuals within the system. In Tennessee, for example, these debts, which can accumulate to over $10,000 in a single criminal case, stand in the way of individuals getting their criminal records expunged, keeping valid driver’s licenses, and restoring …

How The Rational Basis Test Protects Policing For Profit, William R. Maurer

University of Michigan Journal of Law Reform

Since the police shooting of Michael Brown in 2014 and the civil unrest that followed, numerous lawsuits have challenged laws that use the government’s ability to impose fines and fees for reasons other than the protection of the public. These challenges have usually raised equal protection challenges to these laws—that is, that the laws punish the poor more harshly than others. The challenges have been unsuccessful, largely because courts examine these laws using “rational basis review,” a standard that is highly deferential to the government and one in which the courts themselves are often required to actively advocate for the …

White Tape And Indian Wards: Removing The Federal Bureaucracy To Empower Tribal Economies And Self-Government, Adam Crepelle

University of Michigan Journal of Law Reform

American Indians have the highest poverty rate in the United States, and dire poverty ensnares many reservations. With no private sector and abysmal infrastructure, reservations are frequently likened to third-world countries. Present-day Indian poverty is a direct consequence of present-day federal Indian law and policy. Two-hundred-year-old laws premised on Indian incompetency remain a part of the U.S. legal system; accordingly, Indian country is bound by heaps of federal regulations that apply nowhere else in the United States. The federal regulatory structure impedes tribal economic development and prevents tribes from controlling their own resources.

This Article asserts the federal regulatory “white …

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, …

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 …

Impostor Scams, David Adam Friedman

University of Michigan Journal of Law Reform

Impostor scams have recently become the most common type of consumer scam in America, surpassing identity theft. It has never been easier and more profitable to be an impostor scammer. Though the core of these scams dates back centuries, these fraudsters consistently find novel ways to manipulate human motives and emotions. Nonetheless, the public should not give up hope. Policymakers and private actors can slow down this scourge if they focus on the key chokepoints that impostor scammers rely upon to achieve their ends. This Article provides a roadmap for a solution to impostor scams, offering specific suggestions for mitigating …

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 …