54 U. Mich. J. L. Reform Caveat
Matthew J. Razzano*
Historically, state usury laws prohibited lending above certain interest rates, but in 1978 the Supreme Court interpreted the National Bank Act (NBA) to allow chartered banks to issue loans at rates based on where they were headquartered rather than where the loan originated.1 States like South Dakota virtually eliminated interest rate ceilings to attract business, incentivizing national banks to base credit operations there and avoid local usury laws.2 In 2015, however, the Second Circuit decided Madden v. Midland Funding, LLC and reversed long-standing banking practices, ruling that non-chartered financial institutions were not covered by the NBA and were therefore subject to state usury laws where the loan originated.3 The underlying reasoning for the court’s decision was well-intentioned and based on (a) an unwillingness to allow non-chartered institutions to function as pseudo-banks4 and (b) a desire to protect consumers.5 The court’s radical decision received widespread criticism,6 and empirical studies have demonstrated a noteworthy decrease in credit availability in the Second Circuit7—negating the court’s own policy rationales. Since Madden, Congress and federal agencies have attempted an outright reversal, but none of their solutions address the Madden court’s fundamental concerns. This Essay argues that a Madden fix is needed, but the most effective solution must incorporate and address the Second Circuit’s underlying concerns.
(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.
51 U. Mich. J. L. Reform Caveat
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.
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.” The DOJ filed a claim against the Warren Police Department (WPD) in 2012 using this statute. 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. 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.
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.
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.
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.
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.
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.
49 U. Mich. J. L. Reform Caveat 1 (pdf)
“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.