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Volume 42, Issue 1, Fall 2009

Lessons from Hurricane Katrina: Prison Emergency Preparedness as a Constitutional Imperative

Ira P. Robbins

Hurricane Katrina was one of the worst natural disasters ever to strike the United States, in terms of casualties, suffering, and financial cost. Often overlooked among Katrina's victims are the 8,000 inmates who were incarcerated at Orleans Parish Prison (OPP) when Katrina struck. Despite a mandatory evacuation of New Orleans, these men and women, some of whom had been held on charges as insignificant as public intoxication, remained in the jail as the hurricane hit, and endured days of rising, toxic waters, a lack of food and drinking water, and a complete breakdown of order within OPP. When the inmates were finally evacuated from OPP, they suffered further harm, waiting for days on a highway overpass before being placed in other correctional institutions, where prisoners withstood exposure to the late-summer Louisiana heat and beatings at the hands of guards and other inmates. Finally, even as the prison situation settled down, inmates from the New Orleans criminal justice system were marooned in correctional institutions throughout the state, as the judicial system in New Orleans ceased to function.

The resulting effects were both tragic and unconstitutional, as the suffering at OPP could have been prevented. This Article asserts that prison administrators have a constitutional duty to plan for emergencies, and argues that the failures of New Orleans officials to do so violated prisoners' Sixth and Eighth Amendment rights, as well as internationally recognized human rights standards. With the wealth of training and planning materials available to prison officials and the knowledge of possible emergencies, it is unconscionable for prisons to have nonexistent or inadequate plans. Assessing change through litigation and legislation, this Article advocates a mixed approach, using judicial and legislative remedies for the abhorrent violations of well-established prisoners' rights. The Article recommends that states develop mechanisms, such as emergency courts, to enable the administration of justice to resume promptly following serious natural or man-made disasters. Prisons and courts should internalize the lessons of Hurricane Katrina, which demonstrated the consequences of inadequate preparation and planning for prisoners' safety during and after a major emergency.

Eyes Wide Shut: How Ignorance of the Common Interest Doctrine Can Compromise Informed Consent

Katharine Traylor Shaffzin







Shattering and Moving Beyond the Gutenberg Paradigm: The Dawn of the Electronic Will

Joseph Karl Grant







Lawyer as Emotional Laborer

Sofia Yakren

Prevailing norms of legal practice teach lawyers to detach their independent moral judgments from their professional performance—to advocate zealously for their clients while remaining morally unaccountable agents of those clients' causes. Although these norms have been subjected to prominent critiques by legal ethicists, this Article analyzes them instead through the lens of "emotional labor," a sociological theory positing that workers required to induce or suppress feeling in order to sustain the outward countenance mandated by organizational rules face substantial psychological risks. By subordinating their personal feelings and values to displays of zealous advocacy on behalf of others, lawyers, too, may face acute psychological distress and professional dissatisfaction; ironically, legal practice norms may place the heftiest psychological burden on those lawyers most oriented toward justice. This Article explores several potential antidotes to the deleterious effects of emotional labor on legal practitioners, including: (1) deep acting, or the process by which a person attempts to experience the emotions that she is expected to display (effectively, the antithesis of detachment); (2) self-selection into (or out of) the legal profession based on certain personality traits, or self-selection into certain work environments based on one's personal values; and (3) a shift in the standard conception of the lawyer's role toward greater moral autonomy for lawyers. Empirical researchers are called upon to generate data suggesting how best to alleviate lawyers' emotional labor without entirely eliminating the potential usefulness of emotional labor as a check on unethical conduct in legal practice.

La Follette's Folly: A Critique of Party Associational Rights in Presidential Nomination Politics

Alan Martinson

Every four years, observers of the presidential nomination season decry the undue influence of those states that hold their primaries first, particularly Iowa and New Hampshire. Currently, Democratic Party rules protect the position of these states. In 2008, two states disregarded party rules in order to move their primaries to a more influential position in the primary season. As punishment for disobeying the rules, the national party diluted the influence of the delegates from these states at the national convention. Legislative solutions to the problems of the current nomination process appear unlikely. Moreover, Supreme Court jurisprudence places no limits on a party's choice to refuse to seat delegates. This Note proposes that the Court evaluate state regulation of parties more seriously with respect to presidential nomination conventions by balancing the burden on the party's associational rights against the state's interest in regulation.

Shu'ubiyya or Security? Preserving Civil Liberties by Limiting FISA Evidence to National Security Prosecutions

William Pollak

Ever since 9/11, this administration has put forward a false choice between the liberties we cherish and the security we demand.
—Barack Obama, commenting on the FISA Amendments of 2008



Volume 42, Issue 2, Fall 2009

Penalizing Poverty: Making Criminal Defandants Pay For Their Court-Appointed Counsel Through Recoupment and Contribution

Helen A. Anderson

Over thirty years ago the United States Supreme Court upheld an Oregon statute that allowed sentencing courts, with a number of important procedural safeguards, to impose on indigent criminal defendants the obligation to repay the cost of their court appointed attorneys. The practice of ordering recoupment or contribution (application fees or co-pays) of public defender attorney's fees is widespread, although collection rates are unsurprisingly low. Developments since the Court's decision in Fuller v. Oregon show that not only is recoupment not cost-effective, but it too easily becomes an aspect of punishment, rather than legitimate cost-recovery. In a number of jurisdictions, defendants are ordered to repay the cost of their attorney regardless of their ability to pay and without any notice or opportunity to be heard. Many are ordered to pay as a condition of probation or parole, which means they pay under threat of incarceration. In these jurisdictions, recoupment violates the Sixth Amendment, as well as the Due Process and Equal Protection Clauses. Constitutional problems are exacerbated by the potential for ethical violations: public defenders may have conflicts of interest when they are required to both submit bills to the court and object to those bills on behalf of their clients. And too often defendants are not warned at the outset that they may be responsible for attorney's fees or how those fees will be calculated. In any other context, a client is entitled under the ethical rules to a clear statement of the basis for the fee at the time the lawyer is engaged. In addition, the thirty years since Fuller have verified that recoupment is bad policy because it imposes punishing debt without real fiscal benefit. It is time to abandon practices that penalize defendants for being poor and exercising their right to counsel.

A New Era of Tax Enforcement: From 'Big Stick' to Responsive Regulation

Sagit Leviner

This Article explores the economics of crime and compliance as the dominant approach to U.S. tax enforcement of the past three and a half decades. It evaluates the key advantages and disadvantages of the economic model as well as its application to tax. The Article then addresses the multiplicity of taxpayer behavior and the need and prospect of balancing the economically conceived methods of detection and punishment against other, more cooperative, means and developing a broader approach to tax enforcement more generally. The Article explores responsive regulation as a case study for an alternative method to tax enforcement that heavily draws on the economic paradigm but also supplements this approach with other theories, particularly those involving taxpayer identity, conflict escalation, and procedural justice. The Article suggests that this broader, more balanced, and closely tailored method of regulating responsively may enable regulators to draw on the advantages of the economic model while alleviating some of its drawbacks. Responsive regulation may therefore constitute a superior method for regulating tax compliance.

Public Use, Public Choice, and the Urban Growth Machine: Competing Political Economies of Takings Law

Daniel A. Lyons

The Kelo decision has unleashed a tidal wave of legislative reforms ostensibly seeking to control eminent domain abuse. But as a policy matter, it is impossible to determine what limits should be placed upon local government without understanding how cities grow and develop, and how local governments make decisions to shape the communities over which they preside. This Article examines takings through two very different models of urban political economy: public choice theory and the quasi-Marxist Urban Growth Machine model. These models approach takings from diametrically opposite perspectives, and offer differing perspectives at the margin regarding proper and improper condemnations. But surprisingly, both models stand united in opposition to economic development takings and both view skeptically the current wave of eminent domain reform. By discussing why each model comes to this conclusion, this Article sheds additional light upon the substantive limits that legislatures should place upon eminent domain authority and procedural reforms that would help assure proper exercises of that power within this circumscribed scope. The Article also recommends greater cooperation between legislatures and judiciaries to develop these broad standards and to assure that condemnation authorities adhere to them in individual cases.

Risky Ventures: The Impact of IRS Health Care Joint Venture Policy

Roger P. Meyers

IRS oversight of joint ventures between exempt and for-profit organizations has undergone substantial change over the past thirty years. This change has important consequences for the health care industry, where joint ventures have grown increasingly common. In the face of unclear guidance and aggressive enforcement of exemption-policing tools such as the private benefit doctrine and the control test, a hospital risks revocation of its tax-exempt status, or liability for unrelated business income tax, when it engages in a joint venture directly. It may be able to eliminate this risk by operating the same joint venture through a for-profit subsidiary; however, such a structure may be less constrained to serve a charitable mission. Thus, the Service's approach to policing tax-exempt status creates incentives to structure joint ventures in a way that may ultimately reduce charitable care. This Note argues that such incentives are undesirable and avoidable, and proposes several reforms that would help to eliminate them.

Comfortably Numb: Medicalizing (and Mitigating) Pain-and-Suffering Damages

Lars Noah

It has been said, "time heals all wounds." I do not agree. The wounds remain. In time, the mind, protecting its sanity, covers them with scar tissue and the pain lessens. But it is never gone.
—Rose F. Kennedy (1974)


Volume 42, Issue 3, Fall 2009

"An Opportunity For Effective Cross-Examiniation": Limits on the Confrontation Right of the Pro Se Defendant

Alanna Clair

The rights of a defendant to confront his accusers and conduct his defense without the assistance of counsel are sacrosanct in the American judicial system. The rights of the defendant are even sometimes exalted at the expense of the rights of the public or of victims of crime. This Note examines the problem of a pro se defendant using his confrontation right to intimidate or harass his alleged victims testifying against him. It is well-established that the confrontation right is not unconditional. The problem comes in determining whether the courts can place limits on the confrontation right of a pro se defendant in order to preserve the integrity of the trial process. This Note advocates the appointment of standby counsel to supplant the pro se defendant's cross-examination of a witness or victim who may be unlawfully intimidated into testifying falsely if cross-examined personally by the defendant.

The Tort of Betrayal of Trust

Caroline Forell

Anna Sortun

Fiduciary betrayal is a serious harm. When the fiduciary is a doctor or a lawyer, and the entrustor is a patient or client, this harm frequently goes unremedied. Betrayals arise out of disloyalty and conflicts of interest where the lawyer or doctor puts his or her interest above that of his or her client or patient. They cause dignitary harm that is different from the harm flowing from negligent malpractice. Nevertheless, courts, concerned with overdeterrence, have for the most part refused to allow a separate claim for betrayal. In this Article, we suggest that betrayal deserves a remedy and propose a new statutory tort with limits on the available money damages. We begin by explaining the importance of trust and the inadequacy of common law remedies such as malpractice, lack of informed consent, and breach of fiduciary duty. We then set out a statutorily limited monetary proposal and illustrate how this remedy would work. We do this by examining a series of cases in which the courts have struggled to address betrayals and then applying our statutory tort to the facts of those cases. Our proposed statutory tort offers a solution to the current failure to hold professionals accountable for disloyalty that will provide justice to those who are injured by exploitive self-dealing while setting clear parameters that address judicial concerns of runaway juries and overlap with other tort claims.

"One of the Dirty Secrets of American Corrections": Retaliation, Surplus Power, and Whistleblowing Inmates

James E. Robertson

Retaliation is deeply engrained in the correctional office subculture; it may well be in the normative response when an inmate files a grievance, a statutory precondition for filing a civil rights action. This Article, the first to address comprehensively the sociological and constitutional aspects of retaliation, argues for protecting grievants through safeguards much like those accorded whistleblowers. Part I of the Article provides a socio-legal primer on correctional officer retaliation by addressing the frequency of retaliation, its causes, and its constitutional taxonomy. Part II describes the elements of a prima facie case of unconstitutional retaliation under Section 1983. Part III examines the controversy over determining damages, with a single dollar bill symbolizing what prevailing inmates can expect from a civil rights suit alleging unconstitutional retaliation. Part IV contends that inmate grievants possess many of the characteristics of whistleblowers and thus recommends that adverse changes in a grievant's conditions of confinement within sixty days of filing a grievance ought to create a presumption of retaliation for administrative purposes, which, unless proven otherwise by clear and convincing evidence, would trigger administrative remedies intended to make the inmate whole as well as deter future retaliation.

Duty of Fair Representation Jurisprudential Reform: The Need to Adjudicate Disputes in International Union Review Tribunals and the Forgotten Remedy of Re-Arbitration

Mitchell H. Rubenstein

One of the best kept secrets in American labor law is that duty of fair representation jurisprudence simply does not work. It does not work for plaintiff union members because they must satisfy a close-to-impossible burden of proof and have a short statute of limitations window in which to assert their claim. It does not work for defendant unions because they are often forced to file pointless grievances in order to avoid the cost of litigation. It does not work for defendant employers because they are often brought into these lawsuits because they have the "deep pockets." This Article makes two proposals to reform duty of fair representation jurisprudence. First, this Article posits that putative plaintiffs should be required to have their claims adjudicated before internal union review tribunals as opposed to courts. This internal tribunal system, if procedurally and substantively fair, would provide unions with a complete defense to duty of fair representation claims. This would move most duty of fair representation disputes from the ex-post stage (after a court dispute has arisen) to the ex-ante stage (before a court dispute has arisen) and reduce unnecessary litigation. Second, this Article argues that the current system needs to be "tweaked" to return to the original Vaca v. Sipes, 386 U.S. 171 (1967), intent of utilizing re-arbitration as a remedy, as distinguished from money damages, when a breach of the duty of fair representation is found.

Connecting the Dots Between the Constitution, The Marshall Trilogy, and United States v. Lara: Notes Toward a Blueprint for the Next Legislative Restoration of Tribal Sovereignty

Ann E. Tweedy

This law review Article examines: (1) the underpinnings of tribal sovereignty within the American system; (2) the need for restoration based on the Court's drastic incursions on tribal sovereignty over the past four decades and the grave circumstances, particularly tribal governments' inability to protect tribal interests on the reservation and unchecked violence in Indian Country, that result from the divestment of tribal sovereignty; (3) the concept of restoration as illuminated by United States v. Lara, and finally (4) some possible approaches to partial restoration. The Article first evaluates the constitutional provisions relating to Indians and the earliest federal Indian law decisions written by Chief Justice Marshall on the premise that these two sources shed light on the upper limits of a potential legislative restoration of tribal sovereignty. Next, the Article examines the judicial trend of divestment of tribal sovereignty, focusing particularly on the latest decisions that evidence this trend. The Article further examines the negative effects of this divestment in Indian Country, from impeding tribes' ability to provide governmental services and to protect their unique institutions, to problems of widespread on-reservation violence, particularly against Indian women. The Article concludes that the judicial trend of divesting tribal sovereignty combined with these dire effects clearly demonstrate a need for restoration. Finally, the Article examines the Lara holding and its implications for the types of restoration that will be upheld by Court, concluding with an examination of options for potential legislative restorations.

Volume 42, Issue 4, Fall 2009

Give Smaller Companies a Choice: Solving Sarbanes-Oxley Section 404 Inefficiency

Paul P. Arnold

This Note argues that smaller public companies should have the option to opt out of Section 404 of the Sarbanes-Oxley Act of 2002. Optional compliance is economically preferable to the current approach of mandatory compliance. Companies that choose to comply with Section 404 will send a signal to the financial markets that their internal controls meet the high standards Section 404 demands, and investors will reward such companies if they actually value the benefit of that company's additional controls. Similarly, companies that benefit less from additional internal accounting will be able to avoid Section 404's high costs. To clarify the economics of this argument, this Note develops a framework that models the choice companies make when Section 404 compliance is optional. Under the proposed system, independent auditors would continue to certify Section 404 compliance, providing clarity and simplicity for investors. This Note also examines the issues of imperfect market information and agency costs, concluding that they are not as problematic as they initially appear, and that they are still preferable to the excessive costs and burdens Section 404 places on smaller public companies. Finally, this Note argues that the Securities and Exchange Commission has the legal authority to adopt optional Section 404 compliance given Sarbanes-Oxley's text and legislative intent.

A "Fair Contracts" Approval Mechanism: Reconciling Consumer Contracts And Conventional Contract Law

Shumel I. Becher

Consumer contracts diverge from the traditional paradigm of contract law in various conspicuous ways. They are pre-drafted by one party; they cannot be altered or negotiated; they are executed between unfamiliar contracting parties unequal in their market power and sophistication; they are offered frequently by agents who act on behalf of the seller; and promisees (i.e., consumers) do not read or understand them. Consumer contracts are thus useful in modern markets of mass production, but they cast doubt on some fundamental notions of contract law.

To reframe the long-lasting debate over consumer contracts, this Article develops a superior legal regime whereby sellers can obtain certification of a form contract by an independent third-party. Such approval may be viewed as a quality certification, akin to a "Good Housekeeping Seal of Approval," for standard form contracts.

The many impediments to the design of such a project notwithstanding, its overall advantages are promising. The tension between the duty to read contracts and the common practice of signing consumer contracts without reading them will be better reconciled. The adverse consequences of asymmetric information possessed by typical sellers and consumers will be obviated. This regime will also minimize sellers' ability to manipulate consumers' bounded rationality, increase social welfare by reducing transaction costs, diminish socially undesirable litigation over standardized contracts, make a notable step towards minimizing the alleged anomaly that punitive damage awards create in consumer contract cases, and promote market participants' autonomy by advancing trust between the contracting parties.

Families For Tax Purposes: What About the Steps?

Wendy C. Gerzog

At least 4.4 million families in the United States are blended ones that include stepchildren and stepparents. For tax purposes, these "steps" receive preferential treatment as a result of their status because, on the one hand, they are treated as family members for many income tax benefit sections, but on the other hand, are excluded from the definition of family member for business entity attribution purposes and for gift and estate tax anti-abuse provisions. In the interests of fairness and uniformity, steps should be treated as family members for all tax purposes where they act like their biological or adoptive counterparts, regardless of whether such treatment would decrease or increase their tax burden.

How Many Plaintiffs Are Enough? Venue in Title VII Class Actions

Piper Hoffman

This Article critiques the recent rash of federal district court opinions holding that all named plaintiffs in a class action lawsuit alleging employment discrimination under Title VII of the Civil Rights Act of 1964 must satisfy the venue requirements in the court where they filed the action. Neither the text nor the history of Title VII requires this prevailing interpretation; to the contrary, requiring every named plaintiff to satisfy venue requirements in the same court undermines the legislative purpose behind both Title VII and Federal Rule of Civil Procedure 23 by creating a new obstacle to employees seeking to enforce federal anti-discrimination laws and vindicate their rights. Though the district court opinions have all reached the wrong conclusion, no appellate court has ruled on this issue either way, and no academic article has addressed the issue.

Title VII, which was intended to expand plaintiffs' options for venue, gives plaintiffs three choices of venue plus an additional "last resort" venue if the defendant is not available in any of the first three places. Rule 23, which governs the certification of federal class actions, was intended to encourage employees to bring class actions against employers that discriminated against them as a class. But the prevailing interpretation of Title VII's venue provision narrows plaintiffs' venue choices and erects a new barrier to Rule 23 class certification that forces plaintiffs to either litigate in their last resort venue or to abandon the nationwide class action vehicle and proceed in individual or statewide actions instead.

The prevailing interpretation also makes little sense as a matter of judicial economy. It will inevitably lead to more procedural complexity and duplicative litigation, and it is inconsistent with interpretations of other Title VII procedural requirements, such as the filing and exhaustion requirements.

This Article calls for examination and reversal of the trend of rulings requiring all named plaintiffs to satisfy venue in Title VII class actions, and adoption of a rule granting venue to all class members as long as one named plaintiff satisfies the venue requirements.

Privacy 3.0 - The Principle of Proportionality

Andrew B. Serwin

Individual concern over privacy has existed as long as humans have said or done things they do not wish others to know about. In their groundbreaking law review article The Right to Privacy, Warren and Brandeis posited that the common law should protect an individual's right to privacy under a right formulated as the right to be let alone-Privacy 1.0. As technology advanced and societal values also changed, a belief surfaced that the Warren and Brandeis formulation did not provide sufficient structure for the development of privacy laws. As such, a second theoretical construct of privacy, Privacy 2.0 as expressed in Dean Prosser's work Privacy was created. Dean Prosser continued (or expanded) upon the concepts formulated by Warren and Brandeis, particularly in emphasizing the role of common law in protecting privacy.

These works, while influential in their time, do not account for paradigm shifts in technology, or, perhaps more importantly, changes in how people live their lives. The unending advance of technology and changes in societal norms fundamentally dictate that privacy theory must change over time, or it will lose its relevance. Indeed, in today's Web 2.0 world where many people instantly share very private aspects of their lives, one can hardly imagine a privacy concept more foreign than the right to be let alone.

The question confronting modern-day privacy scholars is this: Can a common law based theory adequately address the shifting societal norms and rapid technological changes of today's Web 2.0 world where legislatures and government agencies, not courts, are more proactive on privacy protections?

This Article argues that the answer is no and instead argues that the overarching principle of privacy of today should not be the right to be let alone, but rather the principle of proportionality. This is Privacy 3.0.

The Unintended Consequence of Tort Reform in Michigan: An Argument for Reinstating Retailer Product Liability

Ashley L. Thompson

Tort reform became an important issue during the 1994 Congressional Campaign as part of the Republican Party's "Contract with America." Since then, many federal and state laws have attempted to reduce both liability and recovery in tort actions. In 1996, Michigan passed the Tort Reform Act, encompassing many drastic changes to state tort law. One provision of the Act, Section 2947, scaled back liability against non-manufacturing retailers in product liability actions. The Michigan Supreme Court interpreted the exceptions of the law narrowly and the prohibition broadly, essentially barring recovery from retailers. Since 1996, this provision has prevented victims injured by defective products from receiving compensation for their injuries from retailers. Unfortunately, many of the defective products found in the United States originate from manufacturers abroad. If jurisdiction over the manufacturer cannot be established in the United States, then the Michigan victim has no opportunity for recovery. As an example, this Note will discuss the problems associated with establishing jurisdiction to sue a Chinese manufacturer. Many of the recently publicized defective products were manufactured in China, but victims injured by a defective product from China have found it futile to sue the Chinese manufacturer. The Chinese manufacturers therefore remain protected from liability. As a result, a person injured in Michigan by a product manufactured in China is unlikely to recover damages for his or her injury from either the manufacturer or the retailer. This Note will argue that Michigan must reinstate retailer liability in order to discourage the importation of defective products and also to compensate those who are injured when a defective product does make it to market.

The University of Michigan Journal of Law Reform