Drawing (Gad)flies: Thoughts on the Uses (or Uselessness) of Legal Scholarship

Sherman J. Clark*

49 U. Mich. J. L. Reform Caveat 63 (pdf)

In this essay, I argue that law schools should continue to encourage and support wide-ranging legal scholarship, even if much of it does not seem to be of immediate use to the legal profession. I do not emphasize the relatively obvious point that scholarship is a process through which we study the law so that we can ultimately make useful contributions. Here, rather, I make two more-subtle points. First, legal academics ought to question the priorities of the legal profession, rather than merely take those priorities as given. We ought to serve as Socratic gadflies—challenging rather than merely mirroring regnant assumptions about what ought to matter in and to the law. Second, the freedom to serve this role is a large part of what attracts people capable of doing so to academic life. If we were to insist that legal scholars think about only those things that already matter to the legal profession, we would not attract the people we most need—people willing and able to help us rethink our assumptions about what ought to matter.

Continue reading

The Seventh Letter and the Socratic Method

Sherman J. Clark*

49 U. Mich. J. L. Reform Caveat 52 (pdf)

Law teachers use the phrase “Socratic method” loosely to refer to various methods of questioning students in class rather than merely lecturing to them. T­­he merits of such teaching have been the subject of spirited and even bitter debate. It can be perceived as not only inefficient but also unnecessarily combative—even potentially abusive. Although it is clear that some critics are excoriating the least defensible versions of what has been called the Socratic method, I do not attempt to canvas or adjudicate that debate in this brief essay. Rather, I hope to add to the conversation by looking to a document that describes the origin and original aim of this method. If our teaching practices have indeed been abased or abused such that they too-often resemble the most pejorative caricatures, perhaps we can recover a better and more appealing vision of our tradition by looking to its purported roots.

Continue reading

Eliminating Arbitrary Age Discrimination in 401(K) and Pension Plan Eligibility Requirements: A Simple Fix to Encourage Younger Workers to Save for Retirement

Andrew J. Clopton*

49 U. Mich. J. L. Reform Caveat 16 (pdf)

Current federal law allows companies to exclude their youngest workers from participating in 401(k) and other pension plans. Public policy should encourage young workers to contribute to retirement as early as practicable, rather than impose obstacles to saving. Workers who begin saving even a few years earlier improve their retirement security and reduce the likelihood they will be dependent on the government later in life. While “age discrimination” is conventionally thought of as the mistreatment of older workers, this concept applies equally to employees who are differentiated based solely on their young age. Thus, Congress should amend the Internal Revenue Code to prohibit retirement savings discrimination on the basis of (young) age.

Continue reading

Surviving Preemption in a World of Comprehensive Regulations

Kyle Anne Piasecki*

49 U. Mich. J. L. Reform Caveat 32 (pdf) 

The Clean Air Act imposes a federal regulatory regime on a number of sources of air pollution. It does not, however, provide a ready means of relief to individuals harmed by air polluters. Nevertheless, many courts have held that the Clean Air Act preempts state common law tort claims that do provide a means to such relief. The disparate benefits of the Clean Air Act and common law tort claims may indicate different purposes and make court-imposed preemption of common law tort claims improper. This Comment argues that the Savings Clause in the Clean Air Act and in parallel state statutes should be clarified so as to explicitly preserve an injured party’s ability to seek relief through state common law.

Continue reading

Out of Sight, Out of Mind: Hidden Disclaimers and UCC § 2-316’s Conspicuousness Requirement

Gavin Thole*

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

Introduction

“Money now, terms later” agreements, or rolling contracts, are commonplace in consumer transactions. Courts frequently allow these agreements to stand. But problems arise when product manufacturers disclaim a warranty that protects consumers, such as the implied warranty of merchantability, without disclosing the disclaimer upfront—effectively rendering the warranty useless. Suppose, for example, a consumer purchases a refrigerator or computer where the implied warranty of merchantability disclaimer is printed on the last page of a thick instruction booklet. The booklet is hidden deep inside the box, buried in a morass of cords and paperwork. The consumer has no way of knowing about the disclaimer until after she purchases and opens the product. Even then, the disclaimer is quite difficult to find. These “hidden disclaimers” appear to conflict with § 2-316 of the Uniform Commercial Code (UCC), which requires that disclaimers be conspicuous. Nevertheless, some courts have upheld hidden disclaimers under a narrow reading of § 2-316.

Continue reading

Certiorari and the Marriage Equality Cases

Carl Tobias*

4 U. Mich. J.L. Reform 28A (pdf)

Marriage equality has come to much of the nation. Over 2014, many district court rulings invalidated state proscriptions on same- sex marriage, while four appeals courts upheld these decisions. However, the Sixth Circuit reversed district judgments which struck down bans in Kentucky, Michigan, Ohio, and Tennessee. Because that appellate opinion created a patchwork of differing legal regimes across the country, this Paper urges the Supreme Court to clarify marriage equality by reviewing that determination this Term.

Continue reading

Miller v. Alabama: Something Unconstitutional Now Was Equally Unconstitutional Then

W. Patrick Conlon*

4 U. Mich. J.L. Reform 20A (pdf)

In June 2012, the United States Supreme Court found mandatory life-without-parole sentences against juvenile offenders unconstitutional in Miller v. Alabama.1 The Court determined that because children possess “immaturity, impetuosity, and [fail] to appreciate risks and consequences,” they are fundamentally different than adults.2 Although Miller invalidated every juvenile mandatory life-without-parole (JMLWOP) statute across the United States, there is no clear indication regarding whether Miller retroactively applies to juveniles sentenced to mandatory life-without-parole before the Court’s ruling.3 As a result, states are split on whether to apply Miller retroactively.4

Fifteen states have yet to decide whether Miller applies retroactively, while several other states have either (1) declined to give Miller a retroactive effect or (2) passed legislation that does not apply Miller retroactively or provide for resentencing for JMLWOP.5 This Comment evaluates why the States should apply Miller retroactively.

Continue reading

Sexting Prosecutions: Minors as a Protected Class From Child Pornography Charges

Sarah Thompson*

4 U. Mich. J.L. Reform 11A (pdf)

First love is only a little foolishness and a lot of curiosity.

-George Bernard Shaw

Teenagers will explore their sexuality; this is no new phenomenon. However, the ways that teens are exploring their curiosity is changing with technology. This trend has serious repercussions for teens, society, and the law. ‘Sexting’—defined as the act of sending sexually explicit photographs or messages via cell phone1—is one recently-developed means of sexual exploration. The practice overlaps with the production, distribution, and possession of child pornography that is banned by both state and federal law.2 Due to the overlap, minors have been prosecuted under child pornography statutes for producing or sending images of themselves or other minors.3 This is not the proper use of child pornography prosecution, nor is it a solution to the problem of minors sexting. This Comment argues that minors should be a protected class against which child pornography charges cannot be brought. The solution to the sexting problem does not lie in prosecution. Instead, states should incorporate sexting education into state sexual education and health curricula. Education will help ensure that minors are aware of the risks associated with sexting, without being harmed under a statute that is meant to protect them.

Continue reading

For the Love of the Game: The Case for State Bans on Youth Tackle Football

Adam Bulkley*

4 U. Mich. J.L. Reform 1A (pdf)

This football season, millions of Americans enjoying their favorite pastime might feel pangs of a guilty conscience. Years of scientific research into the long-term neurological effects of tackle football and a recent settlement between the National Football League (NFL) and thousands of retired NFL players1 have made football-related traumatic brain injuries (TBI) a topic of national conversation. Current and former NFL players2 and even President Obama3 have participated in the conversation, saying that they would hesitate to let their sons play the game for fear of possible brain injury. Because research has uncovered signs of permanent brain damage in players as young as eighteen-years-old, and has suggested that everyday subconcussive blows4 during football practice could be the cause of such brain damage,5 one scientist has called for a ban on tackle football at the youth level.6 In light of these findings, current state laws are inadequate to address the very real risks associated with youth tackle football. In general, these laws do not attempt to prevent concussions, but rather address treatment for concussions following the injury. Furthermore, state laws entirely fail to address the daily, subconcussive blows suffered by youth players. To fully protect their youngest football players from the devastating effects of football-related TBIs, state legislators should ban tackle football for children under fourteen-years-old.

Continue reading

Eminent Domain for the Seizure of Underwater Mortgages

Sarah Thompson*

3 U. Mich. J.L. Reform 22A (pdf)

Like many cities in the United States, Richmond, California suffered greatly from the recent mortgage crisis. The foreclosure crisis hit Richmond hard in 2009, when more than 2,000 homes in Richmond went into foreclosure.1 This figure is especially shocking given that there were 18,659 owner-occupied housing units in the city at that time.2 In 2012, the city saw an additional 914 foreclosures and a foreclosure rate of thirty out of 1,000 homes (well above the national average of thirteen of every 1,000 homes).3 Today, it is reported that nearly forty-six percent of homes in Richmond are “underwater,” meaning that what is owed on the mortgage is more than the current value of the property.4 Seeking to put an end to the foreclosures, the City of Richmond announced a plan on July 30, 2013 to use the power of eminent domain to buy underwater mortgages from lenders.5 The city plans to buy the mortgages for eighty percent of a home’s current value, a price they believe is high enough to amount to the just compensation that is required by the Fifth Amendment’s protection against the taking of private property.6 Richmond would then convert the acquired mortgages into FHA loans with smaller principals that correspond with the current value of the home.7 FHA loans are insured against default by the Federal Housing Authority (a section of the United States Department of Housing Development) and are issued by private, FHA-approved lenders. On August 7, 2013, several banks representing the bond investors that owned these underwater mortgages filed suit against the city, challenging the plan’s constitutionality. Given the current state of eminent domain law, which allows for eminent domain to be exercised for the public purpose of economic development, some argue that Richmond’s plan passes constitutional scrutiny.8  However, this use pushes the boundaries of legitimate exercise of eminent domain, even under the majority opinion in Kelo v. City of New London, Conn, which confirmed that economic development is proper grounds for states to exercise eminent domain.9

Continue reading