Volume 51, Issue 4 Summer 2018

ARTICLES

Elizabeth Geltman
Environmental Health Regulation in the Trump Era: How President Trump’s Two-for-One Regulatory Plan Impacts Environmental Regulation (pdf)

Erum Sattar, Jason Robison, and Daniel McCool
Evolution of Water Institutions in the Indus River Basin: Reflections from the Law of the Colorado River (pdf)

Justin Fisch
The Case for Effective Environmental Politics: Federalist or Unitary State? Comparing the Cases of Canada, the United States of America, and the People’s Republic of China (pdf)

Announcing JLR’s Fall 2018 Symposium: “Alt-Association: The Role of Law in Combatting Extremism”

The Michigan Journal of Law Reform is pleased to announce that its Fall 2018 Symposium, “Alt-Association: The Role of Law in Combatting Extremism” will take place on November 17, 2018, with a spring-board conversation on Monday November 12, and a introductory talk on Countering Extremist Violence on Friday, November 16 with panel participant Prof. Khaled Beydoun.

All events will be held at the University of Michigan Law School
Hutchins Hall — 625 S State St, Ann Arbor, MI 48109
South Hall — 701 S State St, Ann Arbor, MI 48109
(The two buildings are across the street from each other, separated by Monroe Street.) 

Pre-Symposium Conversation & Presentation

Monday, November 12, 2018
Springboard Conversation
11:55 AM – 12:55 PM | Hutchins B60A (Robert B. Aikens Lower Commons Skadden Study)

  • Stephanie Sanders, Lecturer & Diversity, Equity, and Inclusion Officer, Ford School of Public Policy
  • Nora Krinitsky, Michigan Mellon Fellow, LSA History of Art

Please join us for a conversation focusing on the intersections of race, creed, orientation, politics, identity, and labeling in the study and impact of “extremism.” We will also examine the assumptions, premises, problems, feelings, and conclusions generated by the Symposium panel prompts: (1) what is “extremism” and (2) how can the law combat it? Concepts and comments from this session will be provided to JLR‘s Symposium panelists and moderators for incorporation into the events on Nov. 17th.

Friday, November 16, 2018
Countering Violent Extremism (CVE) Grant Discussion
10:00 – 11:30 AM | Hutchins 116

Symposium speaker Professor Khaled Beydoun will give a 20 minute presentation on Countering Violent Extremism grants and their impact on immigrant and Muslim communities, followed by Q&A.

Symposium Schedule

Saturday, November 17, 2018
Registration & Breakfast
8:30 – 9:00 AM | South Hall

Introduction & Alt-Association 101
9:00 – 10:00 AM | South Hall 1025

Defining Extremism
10:15 – 11:30 AM | South Hall 1225

  • David Dinielli, Deputy Legal Director, LGBTQ Rights and Special Litigation, Southern Poverty Law Center
  • Yazier Henry, Lecturer in Public Policy, Ford School of Public Policy
  • Rana Elmir, Deputy Director, ACLU of Michigan
  • Javed Ali, Towsley Policymaker in Residence, Ford School of Public Policy
  • Moderator: Don Herzog, Edson R. Sunderland Professor of Law, University of Michigan Law School

Lunch & Keynote Address
11:45 AM – 12:45 PM | South Hall 1225

  • Speaker: Sammy Rangel, Executive Director and Co-Founder, Life After Hate

The Role of Law in Responding to Extremism
1:00 PM – 2:15 PM | South Hall 1225

  • George Selim, Senior Vice President, Programs, Anti-Defamation League
  • Kimberly Buddin-Crawford, Policy Counsel, American Civil Liberties Union of Michigan
  • Khaled Beydoun, Associate Professor, University of Detroit Mercy Law School
  • Alex Kirshner, Associate Professor of Political Science, Duke University
  • Phyllis Gerstenfeld, Professor of Criminal Justice, California State University, Stanislaus
  • Moderator: Len Niehoff, Professor from Practice, University of Michigan Law School

Design Jam: Combating Extremism in Our Communities
2:30 – 5:30 PM | Robert B. Aikens Lower Commons

Reception
5:30 – 6:30 PM | Robert B. Aikens Lower Commons

Post-Symposium Debrief Conversation 

Monday, November 19, 2018
Debrief Conversation
11:50 AM – 12:50 PM | Hutchins B60A (Robert B. Aikens Lower Commons Skadden Study)

 

More information on the speakers, and the location of the events, may be found on the Symposium’s website 

For more information, comments, or questions, please contact the Symposium office at JLRSymposium52@umich.edu

Running it Twice (or Thrice): Double-Header, Triple-Header, and Reverse Baseball Arbitration

(PDF) 52 U. Mich. J. L. Reform Caveat 1

Michael J. Hasday*

This Essay illustrates how the “Running It Twice” concept that makes poker games less of a gamble can also be used in another forum where large amounts of money can be at stake: arbitrations. I introduce three new forms of arbitration based on this concept: Double-Header Baseball Arbitration, Triple-Header Baseball Arbitration, and Reverse Baseball Arbitration. In this Essay, I show that that these new forms of arbitration are superior to current methods because they result in what the average or median qualified arbitrator would award—thereby making arbitration more accurate, predictable, and fair.

Continue reading

U.S. v. Warren, OH: The Case for Applying Aristotelian Modeling in Police Reform

51 U. Mich. J. L. Reform Caveat

Alicia McCaffrey

Abstract:

Police reform scholarship tends to emphasize the bureaucratic nature of problems in policing, and, in turn, proposes administrative solutions, such as providing more training or critiquing specific language in a manual. This comment argues that instead of viewing policing problems as at their core administrative, we should be willing to view them, at least in part, as moral failings warranting ethical solutions. This perspective allows research on police reform to draw from a much larger corpus of existing ethical writings. This paper applies ethical theory to police reform in the specific context of U.S. v. Warren, arguing that the success of the reforms implemented in the Warren Police Department is due in large part to the department’s use of Aristotle’s theory of “ethical modeling”: ethics is best taught by providing people with moral models whose behavior they can emulate. Other police departments can apply Aristotelian ethical theory by providing positive models from which officers can learn proper policing practices. This can be accomplished in several ways, such as expanding the use of mentoring programs, using more hypothetical role-playing in training, and publicizing stories of officers who properly de-escalated tense situations.

Introduction

Under the authority provided by 42 U.S.C. § 14141, the Department of Justice (DOJ) can file a lawsuit against a local police department for a “pattern or practice of conduct . . . that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.”[1] The DOJ filed a claim against the Warren Police Department (WPD) in 2012 using this statute.[2] While the Technical Assistance Letter that the DOJ issued as a result of its investigation was largely ineffective in facilitating reform, the Settlement Agreement which the lawsuit produced led to several reforms in the following years, most of which are largely regarded as successful.[3] This paper examines U.S. v. Warren to identify why the Settlement Agreement reforms in Warren were so successful and how those factors can be used in the future to create meaningful reform in other police departments.

I argue that the predominant factor that led to success in Warren was the implementation of the Aristotelian idea that people learn ethical behavior by watching role models; the WPD implemented this idea by providing positive models of constitutional policing for officers to emulate. This modeling took several forms, such as the examples set by the leaders in the police department and the use of a mentorship program to train officers. This paper examines the Aristotelian principles in context. Part I focuses on the specific situation in Warren, Ohio, including the incidents that led to the investigation, the provisions of the Technical Assistance Letter and the Settlement Agreement, and the current state of compliance. Part II situates the practical discussion of the use of positive models within a wider ethical framework, arguing that one should view police reform at least in part as an ethical issue and thus should draw from ethical concepts when considering how to successfully implement police reform. Part III concludes by examining how the use of positive models can be used in other police reforms going forward.

Continue reading

Volume 51, Issue 3 Spring 2018

ARTICLES

Jessica Eisen
Beyond Rights and Welfare: Democracy, Dialogue, and the Animal Rights Act (pdf)

Jacob Hale Russell
Misbehavioral Law and Economics (pdf)

Emily Cauble
Accessible Reliable Tax Advice (pdf)

NOTES

Matthew Fagan
Third-Party Institutional Proxy Advisors: Conflicts of Interest and Roads to Reform (pdf)

John Treat
Establishing a More Effective SAFMR System: The Cost and Benefits of HUD’s 2016 Small Area Fair Market Rent Rule (pdf)

Volume 51, Issue 2 Winter 2017

ARTICLES

Karen Woody
“Declinations with Disgorgement” in FCPA Enforcement (pdf)

Eithan Y. Kidron
Understanding Administrative Sanctioning as Corrective Justice (pdf)

Rita Trivedi
Restoring a Willingness to Act: Identifying and Remedying the Harm to Authorized Employees under Hoffman Plastics (pdf)

NOTES

Jeffrey Giancana
The “Scourge” of Armed Check Fraud: A Constitutional Framework for Prohibited Possessor Flaws (pdf)

Liliya Paraketsova
Why Guidance from the Supreme Court is Required in Redefining the Particular Social Group Definition in Refugee Law (pdf)

Volume 51, Issue 1 Fall 2017

ARTICLES

Kristi L. Bowman
The Failure of Education Federalism (pdf)

Michal Shur-Ofry
Connect the Dots: Patents and Interdisciplinarity (pdf)

David Adam Friedman
Do We Need Help Using Yelp? Regulating Advertising on Mediated Reputation Systems (pdf)

William J. Aceves
The Civil Redress and Historical Memory Act of 2029: A Legislative Proposal (pdf)

NOTES

Joshua Rothenberg
Criminal Certification: Restoring Comity in the Categorical Approach (pdf)

A Research Exemption for the 21st Century

Nicholas Short

50 U. Mich. J. L. Reform Caveat 1 (pdf)

On March 20, 2015, Robert Kastenmeier, who represented Wisconsin’s Second Congressional District from 1959 to 1991, passed away at his home in Arlington, Virginia. Though Kastenmeier may not have been well known outside of legislative circles and his home state of Wisconsin, he was in fact one of the most prolific policy makers—if not the most prolific policy maker—in the field of intellectual property law in the 20th century. He is impressively credited with authoring more than forty-eight laws dealing with intellectual property matters during his legislative tenure, including the Copyright Act of 1976, which remains the primary legal framework for copyright law in the United States.

One of the last bills that Kastenmeier introduced in the House of Representatives was a major piece of patent reform legislation dubbed the Patent Competitiveness and Technological Innovation Act of 1990 (PCTIA). Kastenmeier introduced the bill on September 20, 1990, but left office less than four months later on January 3, 1991, after losing an election to Scott Klug. The PCTIA contained five separate titles, and dealt with subjects as varied as the patentability of inventions made in outer space to the repeal of state sovereign immunity from infringement liability. One of those titles, Title IV, garnered little attention at the time, but addressed a subject of tremendous importance today: the need to codify and strengthen the long-standing common law research exemption in American patent law.

I have written elsewhere about the political economy of the research exemption in American patent law from 1970 to the present day, with an emphasis on analyzing the political coalitions that have historically argued in favor of or against such exemptions, and the economic arguments they often invoke. The purpose of this article, in contrast, is to carry forward the torch that Kastenmeier lit, and argue in favor of codifying a robust research exemption. To that end, section two briefly explains how the law pertaining to research exemptions has developed since 1970, with an eye towards understanding what these developments mean for policy makers. Section three summarizes the findings of relevant survey evidence and statistical studies. Section four critiques several scholarly proposals for a research exemption or proposals that attempt to accomplish similar ends through different means, like the proposal for creating a “fair use” exception in patent law, or for modifying the Bayh-Dole Act to give federal funding agencies more discretion when determining whether the results of publicly-funded research should be patented. Section five concludes by summarizing the basic argument in favor of the Robert Kastenmeier Memorial Act, a new bill to codify a robust research exemption in American patent law.

 

Volume 50, Issue 4 Fall 2016

ARTICLES

Scott Shakelford
Human Rights and Cybersecurity Due Diligence: A Comparative Study (pdf)

Ari Schwartz, Sejal C. Shah, Matthew H. MacKenzie, Sheena Thomas, Tara Sugiyama Potashnik, and Bri Law
Automating Threat Sharing: How Companies Can Best Ensure Liability Protection When Sharing Cyber Threat Information With Other Companies or Organizations (pdf)

Alan Butler
Products Liability and the Internet of (Insecure) Things: Should Manufacturers Be Liable for Damage Caused by Hacked Devices? (pdf)

NOTES

Ciara Turner
It Takes a Village: Designating “Tiny House” Villages as Transitional Housing Campgrounds (pdf)

Christine M. Quinn
Reforming State Laws on How Businesses Can Ban Guns: “No Guns” Signs, Property Rights, and the First Amendment (pdf)