Is Honor Tangible Property?

James Santiago*

2 U. Mich. J.L. Reform 109A

United States Marine Corps Sergeant Dakota Meyer said, “When they told me that I would be receiving the Medal of Honor I told them that I didn’t want it, because I don’t feel like a hero.”1 This statement reflects the feelings of many real war heroes who deserve and are given recognition yet feel that they are unworthy of such accolades. Unfortunately, there are also individuals who want the recognition of being a war hero but lie about having served. Nevertheless, the First Amendment will continue to guarantee the freedom of speech of those who lie about unearned military honors unless the government can establish a compelling interest and pass narrowly tailored legislation to effectuate that interest. In this context, the compelling government interest is to protect tangible benefits for veterans from people who lie about military service in an attempt to falsely obtain those benefits. Although there are a limited number of permissible content-based restrictions under the First Amendment—inciting imminent lawless action, defamation, speech integral to criminal conduct, child pornography, and actual threats2—false statements about military awards are not included on that list.3 With that in mind, the Supreme Court held in United States v. Alvarez that the Stolen Valor Act of 2005,4 which made it a crime for anyone to make false claims about receipt of military decorations or medals, was an unconstitutional infringement on protected First Amendment speech.5 Both the Senate and the House, in response to the ruling, proposed amending legislation to the Stolen Valor Act.6 Each amending bill has its own advantages and disadvantages, but a more refined combination of the two bills will be necessary in order for a new Act to be effective and constitutional.

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Why American Express v. Italian Colors Does Not Matter and Coordinated Pursuit of Aggregate Claims May Be a Viable Option After Concepcion

Gregory C. Cook*

2 U. Mich. J.L. Reform 104A

This Comment suggests that the upcoming decision by the Supreme Court in American Express Co. v. Italian Colors Restaurant1 will not change the class action landscape. While the plaintiff bar contends that certain public policy goals will be lost as a result of American Express and AT&T Mobility LLC v. Concepcion,2 this Comment argues that, in the correct circumstances, coordinated individual arbitrations can address at least some of these public policy goals and plaintiff counsel should focus on such coordination efforts (including, for instance, ethically recruiting actually-injured plaintiffs, the use of common plaintiff counsel, the use of common experts, and shared discovery).

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Providing Capital for Law Firms in a Credit Crisis: Non-Lawyer Equity Ownership

Brett Novick*

2 U. Mich. J.L. Reform A100

Last year, a New York federal district court dismissed a lawsuit by Jacoby & Meyers LLP attacking a New York law that prevents non-lawyers from owning an equity interest in law firms.1 On November 21, 2012, the U.S. Court of Appeals for the Second Circuit resuscitated the lawsuit, remanding the case to the district court and granting Jacoby & Meyers LLP leave to amend its complaint.2 Non-lawyers owning an equity interest in law firms is not a new idea, as countries such as Australia and the United Kingdom already allow it,3 and the United States should follow their example to a limited extent. Despite the ethical issues present with non-lawyer equity ownership in law firms,4 this Comment proposes that the ABA, as well as subsequent state law, create a system that allows law firms to get funding from investors without breaching legal ethics rules.

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Cruises, Class Actions, and the Court

David Korn and David Rosenberg*

2 U. Mich. J.L. Reform A96

As the Carnival Triumph debacle splashed across the national consciousness,1 lawyers shook their heads. Sensationalist news coverage exposed common knowledge in the legal community: cruise passengers have little recourse against carriers, and, as a result, they often bear the brunt of serious physical and financial injuries. Cruise lines, escaping legal accountability for their negligence, sail off undeterred from neglecting passenger safety on future voyages.2 While its previous decisions helped entrench this problem, a recently argued case presents the Supreme Court with another opportunity to address it.3

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Fill the Bench and Empty the Docket: Filibuster Reform for District Court Nominations

Jeremy Garson*

2 U. Mich. J.L. Reform A91

Judges are, without question, vital to our justice system. They interpret, adapt, and apply the law. They resolve disputes for the parties to the case at issue and provide guidance to others in analogous situations. They are the gears that keep the wheels of justice moving. Unfortunately, in the case of our federal courts, many of these gears are missing. Eighty-three of our 874 federal judgeships are vacant,1 including thirty-four that have been declared “judicial emergencies.”2

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Judges! Stop Deferring to Class-Action Lawyers

Brian Wolfman*

2 U. Mich. J.L. Reform A80

I. The Problem

I represent a national non-profit consumer rights organization, as an amicus, in a federal appeal challenging a district court’s approval of a class-action settlement of claims under the federal Credit Repair Organization Act (CROA).1 My client maintains that the district court erred in finding that the settlement was “fair, reasonable, and adequate,” which is the standard for class-action settlement approval under the Federal Rules of Civil Procedure.2 In particular, we argue that the district court committed a reversible legal error when it deferred to the class-action lawyers’ recommendation to approve the settlement because, in those lawyers’ view, it was fair, reasonable, and adequate. We also argue that the district court erred when, in approving the settlement, it relied in part on its belief that the plaintiffs’ counsel, whose work the judge had observed for years, are really good lawyers.

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Compounding Reform: Reconsidering the Draft Safe Drug Compounding Act of 2007 in Light of the Ongoing Fungal Meningitis Outbreak

Colleen Nicholson*

2 U. Mich. J.L. Reform A76

Compounding is the act of combining, mixing or altering ingredients to create a drug tailored to the needs of an individual patient, such as a child who needs a less potent dose, an elderly patient who has trouble swallowing, or an individual with a severe allergy to a drug component. Compounding pharmacies, which engage in large-scale drug compounding, have come under the microscope recently because of the ongoing deadly outbreak of fungal meningitis that began in 2012. Fungal meningitis “occurs when the protective membranes covering the brain and spinal cord are infected with a fungus.”1 The recent outbreak was caused by steroid shots contaminated with so much fungus that in some cases the fungus particles were visible to the naked eye.2 A single compounding pharmacy in Framingham, Massachusetts, the New England Compounding Center, “shipped 17,676 vials of … potentially contaminated [steroid] solution to 75 clinics in 23 states.”3 As of March 4, 2013, the Centers for Disease Control and Prevention (CDC) had linked 720 cases of meningitis or other complications, including forty-eight deaths, in twenty states to the epidural steroid injections that all originated from the New England Compounding Center.4

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Old Habits Die Hard: Disengaging from the Bluebook

Mark Garibyan*

2 U. Mich. J.L. Reform A71

Incoming first-year law students dread many aspects of what lies ahead: the cold calls, the challenging course load, and the general stress that is associated with starting a new phase in one’s life. Most students, however, do not expect that the Bluebook1—the citation system used ubiquitously throughout the legal landscape—will inflict “more pain” on them “than any other publication in legal history.”2 This pain might be a shock to many who are accustomed to the simpler systems utilized in other academic fields.3 A citation itself is, after all, merely a reference; it is “neither scholarship nor analysis.”4 Preferably, a system of citations needs to be simple and functional so as to not distract the reader from paying attention to the author’s reasoning. TheBluebook’s “complexity and insularity” made it anathema to many lawyers and stirred up significant criticism.5This Comment will explore the current rationales for the Bluebook’s eminence, followed by a discussion of theBluebook’s many shortcomings. Finally, it will propose a pragmatic alternative to the Bluebook that will satisfy the need for a useful system of citation without any of the tangential headaches.

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Past Its Prime: Why the Clean Air Act is in Need of Modification

Levi Smith*

2 U. Mich. J.L. Reform A67

The Clean Air Act (CAA)1 is the primary federal statute regulating the emission of air pollutants. First enacted in 1970, the CAA requires, inter alia, the federal government to establish air quality goals2 and states to develop implementation plans to achieve those goals.3 The most stringent requirements of the CAA are imposed on “new” or “modified” sources of pollution, such as sulfur dioxide, nitrous oxides, and particulate matter.4 Sources that were operating when the CAA was enacted are mostly exempt from regulation under the Act.5 Because of the substantial costs associated with the CAA standards, there is an incentive for existing sources to stay in operation instead of modifying existing or opening new facilities. This subverts the goals of the CAA because the most inefficient and polluting sources stay in operation rather than being replaced with newer, cleaner plants and new pollution control technologies. This Comment argues for federal regulation of existing sources of pollution under the CAA and suggests ways by which the federal government could encourage investment in newer and cleaner industrial sources.

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Re-Thinking Health Insurance

Hans Biebl*

2 U. Mich. J.L. Reform A62

In May 2009, while promoting the legislation that would become the Patient Protection and Affordable Care Act (PPACA),1 President Obama said that rising health care costs threatened the balance sheets of both the federal government and private enterprise.2 He noted that any increase in health care spending consumes funds that “companies could be using to innovate and to grow, making it harder for them to compete around the world.”3 Despite the rancorous debate that surrounded this health care legislation and which culminated with the Supreme Court’s decision in National Federation of Independent Businesses,4 the PPACA was not a radical piece of legislation. It did not address the fundamental function that health insurance plays in American society. Reform in health insurance must begin with treating health insurance more like fire insurance. In other words, health insurance should function more as a means to indemnify against catastrophic financial loss and less as a means to pay for routine medical care. By treating health insurance like other types of insurance that are carried for risk protection, the runaway medical bills that imperil American government and business can be constrained. This Comment first offers a survey of spending on health care in the United States. Next, it discusses the inefficiencies of Americans using health insurance to pay for routine medical expenses. Finally, this Comment proposes the elimination of government subsidies for employer-sponsored health insurance, which would create incentives for individuals to become healthier while also lowering their health care expenditures.

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