Pub Date : 2023-01-01DOI: 10.36646/mjlr.56.3.answering
Justice Hubbard
This Note analyzes the current state of the civil law surrounding the Telephone Consumer Protection Act (TCPA) and highlights a glaring flaw within the current practice of assigning liability to telephonic solicitors utilizing an automatic telephone dialing system (autodialer): solicitors can be subjected to liability even though their actions are not what Congress intended to prevent. Congress enacted the TCPA in response to unique consumer privacy and public safety concerns. For example, the use of an autodialer created a substantial likelihood that autodialers would call emergency services and could “seize” their telephone lines and prevent those lines from being utilized to receive calls from those needing emergency services. The Federal Communications Commission (FCC) and the judiciary, however, have developed differing interpretations of the TCPA, which created unintentional dangers for businesses properly utilizing telemarketing strategies. These dangers that were left unresolved by the Supreme Court’s ruling in Facebook, Inc. v. Duguid. This fragmented interpretation and application of federal law within various jurisdictions has left callers liable to substantial fines, so long as they use a device that merely has the capacity to act as an autodialer—even if the device did not actually use autodialer functionality. Such a broad interpretation places a heavy burden on companies using technology that does not create the kind of harm against which the TCPA was meant to protect. To effectuate Congressional intent, this Note proposes that the FCC should issue a new interpretation of the TCPA by declaratory ruling that will attach liability to defendants who make use of autodialer functionality, not those who’s devices merely have the capacity to do so. Alternatively, this Note proposes that either Congress amend the TCPA in a manner that better aligns with its goals, or the Supreme Court provide clarification to the lower courts as to how one acquires liability. This change will provide certainty and fairness to businesses, consumers, and the judiciary.
{"title":"Answering the Call for Telephone Consumer Protection Act Reform: Effectuating Congressional Intent Within 47 U.S.C. § 227(B)(1)(A)","authors":"Justice Hubbard","doi":"10.36646/mjlr.56.3.answering","DOIUrl":"https://doi.org/10.36646/mjlr.56.3.answering","url":null,"abstract":"This Note analyzes the current state of the civil law surrounding the Telephone Consumer Protection Act (TCPA) and highlights a glaring flaw within the current practice of assigning liability to telephonic solicitors utilizing an automatic telephone dialing system (autodialer): solicitors can be subjected to liability even though their actions are not what Congress intended to prevent. Congress enacted the TCPA in response to unique consumer privacy and public safety concerns. For example, the use of an autodialer created a substantial likelihood that autodialers would call emergency services and could “seize” their telephone lines and prevent those lines from being utilized to receive calls from those needing emergency services. The Federal Communications Commission (FCC) and the judiciary, however, have developed differing interpretations of the TCPA, which created unintentional dangers for businesses properly utilizing telemarketing strategies. These dangers that were left unresolved by the Supreme Court’s ruling in Facebook, Inc. v. Duguid. This fragmented interpretation and application of federal law within various jurisdictions has left callers liable to substantial fines, so long as they use a device that merely has the capacity to act as an autodialer—even if the device did not actually use autodialer functionality. Such a broad interpretation places a heavy burden on companies using technology that does not create the kind of harm against which the TCPA was meant to protect. To effectuate Congressional intent, this Note proposes that the FCC should issue a new interpretation of the TCPA by declaratory ruling that will attach liability to defendants who make use of autodialer functionality, not those who’s devices merely have the capacity to do so. Alternatively, this Note proposes that either Congress amend the TCPA in a manner that better aligns with its goals, or the Supreme Court provide clarification to the lower courts as to how one acquires liability. This change will provide certainty and fairness to businesses, consumers, and the judiciary.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"15 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90065195","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-01DOI: 10.36646/mjlr.56.3.short
Linda S. Mullenix
On September 11, 2019, Judge Dan Aaron Polster of the United States District Court for the Northern District of Ohio, Eastern Division, approved a novel negotiation class certification in the massive Opiate multidistrict litigation (MDL). Merely one year later on September 24, 2020, the Sixth Circuit reversed Judge Polster’s certification order. While the Opiate MDL has garnered substantial media and academic attention, less consideration has been directed to analyzing the significance of the negotiation class model and the appellate repudiation of this innovative procedural mechanism. This Article focuses on the development and fate of the negotiation class and considers the lessons to be gleaned from its attempted use in the Opiate MDL. The short unhappy life of the negotiation class raises questions whether its failure was a consequence of implementation or design. This is an important question because if the failure was the result of problematic implementation in the context of idiosyncratic circumstances, then the negotiation class model may live to see another day. On the other hand, if the failure was the consequence of deficient design and judicial overreaching, then the negotiation class may be consigned to the museum of good intentions gone awry. The novel proposal for a negotiation class did not come out of nowhere but was another chapter in a five-decade struggle between aggregationist attorneys and judges seeking creative solutions to mass litigation, pitted against jurists repudiating adventurous use of the class action rule. This Article provides the definitive narration of the historical evolution of expanding novel uses of Rule 23, anchored in the mass tort litigation crisis that emerged on federal court dockets in the late 1970s. The article illustrates how Judge Polster’s negotiation class was the logical culmination of decades of judicial and academic experimentation with innovative procedural means to accomplish the fair and expeditious resolution of aggregate litigation. It traces the role of the American Law Institute in advancing pro-aggregation initiatives, laying the groundwork for the Opiate negotiation class proposal. The discussion elucidates how the debate over the settlement class concept in the 1990s presaged the same debate over the negotiation class three decades later, and how criticisms of the ALI aggregate litigation proposals resurfaced in opposition to the Opiate negotiation class. The negotiation class model promised to ameliorate numerous problems inherent in heterogenous group litigation by infusing class litigation with collective action theories and democratic participatory features. The centerpiece of the negotiation class was to bring class claimants to the table and provide them with meaningful voice through group design of a settlement allocation metric, coupled with a franchise vote to approve or disapprove any offered settlement. Its other defining feature was to provide defendants at early jun
{"title":"The Short Unhappy Life of the Negotiation Class","authors":"Linda S. Mullenix","doi":"10.36646/mjlr.56.3.short","DOIUrl":"https://doi.org/10.36646/mjlr.56.3.short","url":null,"abstract":"On September 11, 2019, Judge Dan Aaron Polster of the United States District Court for the Northern District of Ohio, Eastern Division, approved a novel negotiation class certification in the massive Opiate multidistrict litigation (MDL). Merely one year later on September 24, 2020, the Sixth Circuit reversed Judge Polster’s certification order. While the Opiate MDL has garnered substantial media and academic attention, less consideration has been directed to analyzing the significance of the negotiation class model and the appellate repudiation of this innovative procedural mechanism. This Article focuses on the development and fate of the negotiation class and considers the lessons to be gleaned from its attempted use in the Opiate MDL. The short unhappy life of the negotiation class raises questions whether its failure was a consequence of implementation or design. This is an important question because if the failure was the result of problematic implementation in the context of idiosyncratic circumstances, then the negotiation class model may live to see another day. On the other hand, if the failure was the consequence of deficient design and judicial overreaching, then the negotiation class may be consigned to the museum of good intentions gone awry. The novel proposal for a negotiation class did not come out of nowhere but was another chapter in a five-decade struggle between aggregationist attorneys and judges seeking creative solutions to mass litigation, pitted against jurists repudiating adventurous use of the class action rule. This Article provides the definitive narration of the historical evolution of expanding novel uses of Rule 23, anchored in the mass tort litigation crisis that emerged on federal court dockets in the late 1970s. The article illustrates how Judge Polster’s negotiation class was the logical culmination of decades of judicial and academic experimentation with innovative procedural means to accomplish the fair and expeditious resolution of aggregate litigation. It traces the role of the American Law Institute in advancing pro-aggregation initiatives, laying the groundwork for the Opiate negotiation class proposal. The discussion elucidates how the debate over the settlement class concept in the 1990s presaged the same debate over the negotiation class three decades later, and how criticisms of the ALI aggregate litigation proposals resurfaced in opposition to the Opiate negotiation class. The negotiation class model promised to ameliorate numerous problems inherent in heterogenous group litigation by infusing class litigation with collective action theories and democratic participatory features. The centerpiece of the negotiation class was to bring class claimants to the table and provide them with meaningful voice through group design of a settlement allocation metric, coupled with a franchise vote to approve or disapprove any offered settlement. Its other defining feature was to provide defendants at early jun","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"25 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78216342","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-01DOI: 10.36646/mjlr.56.3.giving
For at least the past 40 years, police and prosecutors have had free reign in conducting illegal searches and seizures nominally barred by the Fourth Amendment. The breadth of exceptions to the warrant requirement, the lax interpretation of probable cause, and especially the “good faith” doctrine announced in U.S. v. Leon have led to severe violations of privacy rights, trauma to those wrongly searched or seized, and a court system overburdened by police misconduct cases. Most scholars analyzing the issue agree that the rights guaranteed by the Fourth Amendment—to be free from unreasonable search and seizure—have been severely eroded or even eviscerated by the Supreme Court. Some suggest that in order to revitalize the Fourth Amendment, the United States should make it easier to secure civil damages after Fourth Amendment rights have been violated. Others have argued that the United States must guarantee stronger ex ante protections to uphold fundamental privacy rights before they are violated. This Note argues that, while warrant requirements do need to be more stringent to safeguard Fourth Amendment rights, warrant requirements cannot on their own sufficiently protect such a sacred right. This Note proposes the adoption of adversarial warrant proceedings, designed to ensure police and prosecutors meet their probable cause burden and to ensure that any lies or sloppy investigative work are rooted out from a warrant application before a warrant is granted. False searches and arrests can be deeply traumatizing and have excruciating and long-term impacts. For the Fourth Amendment to have any meaningful affect, the People must have an advocate—a Warrants Counsel— fighting for their right to be free from unreasonable searches before that right is violated. The Roberts Court’s destruction of the Fourth Amendment leaves little reason to expect protection from unreasonable search and seizure through litigation. Instead, Congress must create the Warrants Counsel program legislatively. Congress should look to the major success of the Federal Defenders program as a blueprint for zealous advocacy and protection of rights. A Warrants Counsel, like a public defender, would be a government paid attorney, present to argue against probable cause before a magistrate whenever police or prosecutors seek a warrant. Like the Sixth Amendment before the public defender system, the Fourth Amendment desperately needs some structure to give its language meaning; the Warrants Counsel system would counterbalance over-powered police and prosecutors in favor of the People.
{"title":"Giving the Fourth Amendment Meaning: Creating an Adversarial Warrant Proceeding to Protect From Unreasonable Searches and Seizures","authors":"","doi":"10.36646/mjlr.56.3.giving","DOIUrl":"https://doi.org/10.36646/mjlr.56.3.giving","url":null,"abstract":"For at least the past 40 years, police and prosecutors have had free reign in conducting illegal searches and seizures nominally barred by the Fourth Amendment. The breadth of exceptions to the warrant requirement, the lax interpretation of probable cause, and especially the “good faith” doctrine announced in U.S. v. Leon have led to severe violations of privacy rights, trauma to those wrongly searched or seized, and a court system overburdened by police misconduct cases. Most scholars analyzing the issue agree that the rights guaranteed by the Fourth Amendment—to be free from unreasonable search and seizure—have been severely eroded or even eviscerated by the Supreme Court. Some suggest that in order to revitalize the Fourth Amendment, the United States should make it easier to secure civil damages after Fourth Amendment rights have been violated. Others have argued that the United States must guarantee stronger ex ante protections to uphold fundamental privacy rights before they are violated. This Note argues that, while warrant requirements do need to be more stringent to safeguard Fourth Amendment rights, warrant requirements cannot on their own sufficiently protect such a sacred right. This Note proposes the adoption of adversarial warrant proceedings, designed to ensure police and prosecutors meet their probable cause burden and to ensure that any lies or sloppy investigative work are rooted out from a warrant application before a warrant is granted. False searches and arrests can be deeply traumatizing and have excruciating and long-term impacts. For the Fourth Amendment to have any meaningful affect, the People must have an advocate—a Warrants Counsel— fighting for their right to be free from unreasonable searches before that right is violated. The Roberts Court’s destruction of the Fourth Amendment leaves little reason to expect protection from unreasonable search and seizure through litigation. Instead, Congress must create the Warrants Counsel program legislatively. Congress should look to the major success of the Federal Defenders program as a blueprint for zealous advocacy and protection of rights. A Warrants Counsel, like a public defender, would be a government paid attorney, present to argue against probable cause before a magistrate whenever police or prosecutors seek a warrant. Like the Sixth Amendment before the public defender system, the Fourth Amendment desperately needs some structure to give its language meaning; the Warrants Counsel system would counterbalance over-powered police and prosecutors in favor of the People.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"160 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75781389","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-01DOI: 10.36646/mjlr.56.2.inequitable
X. Benavides
COVID-19 vaccine access has been highly inequitable worldwide, with coverage depending largely on a country’s wealth. By the end of 2021, 64.1% of people living in high-income countries had received at least one dose of the vaccine, compared to only 5.4% of those in low-income countries. Similarly, only high- and upper-middle-income countries had received the most effective vaccines. The uneven distribution of these lifesaving vaccines is made complex due to the convergence of several factors, but it suggests that the extraordinary expanding and ossifying market and political power of a few vaccine manufacturers founded on intellectual property and complementary policies is a decisive factor in shaping our healthcare systems and securing equitable access to vaccines. This Article analyzes the power dynamics of vaccine manufacturing and distribution of U.S. pharmaceutical companies in the context of global COVID-19 vaccination. Drawing on the health-justice and law-and-political-economy scholarship of the last decade, this Article demonstrates how a “patent culture” shaped by intellectual property law fundamentally neglects health-equity principles while politicizing healthcare access. These contemporary frameworks suggest that the global COVID-19 vaccine-access problem is the result of avoidable policy choices made by big manufacturers and affluent governments. Despite a long history of inequities in access to healthcare, policy choices—as predicted by Hart’s inverse equity theory—have favored a purposely inequitable-by-design vaccination program driven by the wealth and power of those allowed to control vaccine production and supply globally. Finally, this Article proposes ways to challenge the normalized and institutionalized patent culture that has commodified access to lifesaving medicines beyond national borders. As it examines national and international legal strategies to address the vaccine-access problem, the Article suggests equity-based principles of public value, transparency, and inclusivity to guide healthcare governance and future reformation of the vaccine-access landscape. An interdisciplinary analysis of the first year of the global vaccine rollout provides an account critical to future policies aiming to address the structural conditions needed to attain equitable health outcomes, even after the pandemic.
{"title":"Inequitable by Design: The Patent Culture, Law, and Politics Behind COVID-19 Vaccine Global Access","authors":"X. Benavides","doi":"10.36646/mjlr.56.2.inequitable","DOIUrl":"https://doi.org/10.36646/mjlr.56.2.inequitable","url":null,"abstract":"COVID-19 vaccine access has been highly inequitable worldwide, with coverage depending largely on a country’s wealth. By the end of 2021, 64.1% of people living in high-income countries had received at least one dose of the vaccine, compared to only 5.4% of those in low-income countries. Similarly, only high- and upper-middle-income countries had received the most effective vaccines. The uneven distribution of these lifesaving vaccines is made complex due to the convergence of several factors, but it suggests that the extraordinary expanding and ossifying market and political power of a few vaccine manufacturers founded on intellectual property and complementary policies is a decisive factor in shaping our healthcare systems and securing equitable access to vaccines. This Article analyzes the power dynamics of vaccine manufacturing and distribution of U.S. pharmaceutical companies in the context of global COVID-19 vaccination. Drawing on the health-justice and law-and-political-economy scholarship of the last decade, this Article demonstrates how a “patent culture” shaped by intellectual property law fundamentally neglects health-equity principles while politicizing healthcare access. These contemporary frameworks suggest that the global COVID-19 vaccine-access problem is the result of avoidable policy choices made by big manufacturers and affluent governments. Despite a long history of inequities in access to healthcare, policy choices—as predicted by Hart’s inverse equity theory—have favored a purposely inequitable-by-design vaccination program driven by the wealth and power of those allowed to control vaccine production and supply globally. Finally, this Article proposes ways to challenge the normalized and institutionalized patent culture that has commodified access to lifesaving medicines beyond national borders. As it examines national and international legal strategies to address the vaccine-access problem, the Article suggests equity-based principles of public value, transparency, and inclusivity to guide healthcare governance and future reformation of the vaccine-access landscape. An interdisciplinary analysis of the first year of the global vaccine rollout provides an account critical to future policies aiming to address the structural conditions needed to attain equitable health outcomes, even after the pandemic.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"91 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86246230","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-01DOI: 10.36646/mjlr.56.2.private
R. O'Brien
The percentage of older Americans increases each year, with a corresponding percentage increase of those considered the older old. Many older persons will develop chronic conditions, decreasing their ability to manage the activities of daily living and requiring many to move into assisted living facilities or group homes. When surveyed, a majority of people expressed that they wish to age in their own homes, and government programs are increasingly supportive of this option. This is a viable option for many if they have the assistance of private caregivers—who provide a vast array of support services—and essential person-to-person human contact during the last years of life. Not all caregivers are family; many are friends, partners, and former colleagues. Whether family or nonfamily, private caregivers often provide a recipient with self-sufficiency for many years, and for some until death. This Article discusses the statistics of aging and the obstacles faced by private caregivers who suffer economic deprivation as a result of the time and expense expended on behalf of an elder recipient. Presumptions, statutes, and the process of estate devolution work against compensation for a private caregiver. There is far too little recognition of what is contributed when a person feeds, bathes, administers medications, provides companionship, and confronts the bureaucracy meant to help the old. The common sentiment of all caregivers would be that they do it because they feel they must. But upon the death of the recipient, one person should not walk away with the benefits of the decedent’s estate and the other with nothing except the recognition of what they must do and did. To better provide for the equal treatment of private caretakers, this Article posits the creation of a private caretaker presumption in favor of elder caregivers. This presumption would apply to any person who dedicates himself or herself another’s care for a period of time sufficient to engender economic benefit to the recipient’s estate and a concomitant loss to the caregiver. Then, based upon the estate assets available, the parameters of the claim, and defined mitigating factors, a presumption is raised that the caregiver may file a creditor claim against the estate in an amount that would make the caregiver equal to the other objects of the decedent’s bounty. Existing remedies are insufficient; more is needed to promote equity.
{"title":"Private Caregiver Presumption For Elder Caregivers","authors":"R. O'Brien","doi":"10.36646/mjlr.56.2.private","DOIUrl":"https://doi.org/10.36646/mjlr.56.2.private","url":null,"abstract":"The percentage of older Americans increases each year, with a corresponding percentage increase of those considered the older old. Many older persons will develop chronic conditions, decreasing their ability to manage the activities of daily living and requiring many to move into assisted living facilities or group homes. When surveyed, a majority of people expressed that they wish to age in their own homes, and government programs are increasingly supportive of this option. This is a viable option for many if they have the assistance of private caregivers—who provide a vast array of support services—and essential person-to-person human contact during the last years of life. Not all caregivers are family; many are friends, partners, and former colleagues. Whether family or nonfamily, private caregivers often provide a recipient with self-sufficiency for many years, and for some until death. This Article discusses the statistics of aging and the obstacles faced by private caregivers who suffer economic deprivation as a result of the time and expense expended on behalf of an elder recipient. Presumptions, statutes, and the process of estate devolution work against compensation for a private caregiver. There is far too little recognition of what is contributed when a person feeds, bathes, administers medications, provides companionship, and confronts the bureaucracy meant to help the old. The common sentiment of all caregivers would be that they do it because they feel they must. But upon the death of the recipient, one person should not walk away with the benefits of the decedent’s estate and the other with nothing except the recognition of what they must do and did. To better provide for the equal treatment of private caretakers, this Article posits the creation of a private caretaker presumption in favor of elder caregivers. This presumption would apply to any person who dedicates himself or herself another’s care for a period of time sufficient to engender economic benefit to the recipient’s estate and a concomitant loss to the caregiver. Then, based upon the estate assets available, the parameters of the claim, and defined mitigating factors, a presumption is raised that the caregiver may file a creditor claim against the estate in an amount that would make the caregiver equal to the other objects of the decedent’s bounty. Existing remedies are insufficient; more is needed to promote equity.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"120 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75793387","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-01DOI: 10.36646/mjlr.56.3.system
Mitchell Longan
Ultimately, this Article has three goals. The first is to offer an analysis of users’ rights under copyright law from four commonly used theoretical perspectives. These are labor, personality, economic and utilitarian theories. In doing so, this Article will demonstrate that the philosophies that underpin modern copyright law support a broad and liberal set of rights for derivative creativity. It will argue that current treatment of derivative works is unnecessarily conservative from a theoretical perspective. Second, this Article will demonstrate how, in spite of theory that supports a healthy community of derivative creativity, those who practice it have been further disenfranchised by the law. It will argue term limit extensions, increased protectionist treatment of secondary works online, and the functional lack of access to proper licensing mechanisms have rendered users’ rights impotent. Finally, in conclusion, this Article will offer a solution to the apparent imbalance of power in the form of replacing property-based derivative rights with liability rules. The conclusion, in many ways, merits its own paper and is meant as merely a suggestion of direction rather than a formulated solution.
{"title":"A System Out of Balance: A Critical Analysis of Philosophical Justifications for Copyright Law Through the Lenz of Users' Rights","authors":"Mitchell Longan","doi":"10.36646/mjlr.56.3.system","DOIUrl":"https://doi.org/10.36646/mjlr.56.3.system","url":null,"abstract":"Ultimately, this Article has three goals. The first is to offer an analysis of users’ rights under copyright law from four commonly used theoretical perspectives. These are labor, personality, economic and utilitarian theories. In doing so, this Article will demonstrate that the philosophies that underpin modern copyright law support a broad and liberal set of rights for derivative creativity. It will argue that current treatment of derivative works is unnecessarily conservative from a theoretical perspective. Second, this Article will demonstrate how, in spite of theory that supports a healthy community of derivative creativity, those who practice it have been further disenfranchised by the law. It will argue term limit extensions, increased protectionist treatment of secondary works online, and the functional lack of access to proper licensing mechanisms have rendered users’ rights impotent. Finally, in conclusion, this Article will offer a solution to the apparent imbalance of power in the form of replacing property-based derivative rights with liability rules. The conclusion, in many ways, merits its own paper and is meant as merely a suggestion of direction rather than a formulated solution.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"204 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73082220","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-01DOI: 10.36646/mjlr.56.2.former
Jim Stehlin
Since the Civil War, the False Claims Act has served as a tool to combat fraud perpetrated against the government. Early fraud by government contractors during the Civil War was quaint: contractors selling the same horse twice or filling a Union Army contract for sugar with sand. Today, the government recovers billions of dollars annually through actions under the FCA. Essential to the FCA’s functioning are “relators,” private citizens who serve as whistleblowers incentivized to report fraud by receipt of a percentage of whatever amount the government recovers in damages. The government relies on relators to blow the whistle on fraud—over two-thirds of FCA recoveries since 1986 come from cases brought by relators as whistleblowers. So important are these relators that in 1986 Congress amended the FCA and included an anti-retaliation provision to provide relief for employees who experience retaliation from their employers for reporting fraud. This Note discusses a recent circuit split over whether the anti-retaliation provision of the FCA protects former employees against post-termination retaliation by their employers, arguing that the anti-retaliation provision extends to retaliation against former employees. In arguing in favor of a more inclusive definition of “employee” in the FCA’s anti-retaliation provision, this Note explores the history and purpose of the FCA, the legislative history of the FCA’s anti-retaliation provision, and the arguments for and against the inclusion of former employees under the provision’s protections. Finally, this Note calls for Supreme Court intervention or congressional action to clarify that the FCA’s anti-retaliation provision protects former employees from post-termination retaliation.
{"title":"Former Whistleblowers: Why the False Claims Act's Anti-Retaliation Provision Should Protect Former Employees","authors":"Jim Stehlin","doi":"10.36646/mjlr.56.2.former","DOIUrl":"https://doi.org/10.36646/mjlr.56.2.former","url":null,"abstract":"Since the Civil War, the False Claims Act has served as a tool to combat fraud perpetrated against the government. Early fraud by government contractors during the Civil War was quaint: contractors selling the same horse twice or filling a Union Army contract for sugar with sand. Today, the government recovers billions of dollars annually through actions under the FCA. Essential to the FCA’s functioning are “relators,” private citizens who serve as whistleblowers incentivized to report fraud by receipt of a percentage of whatever amount the government recovers in damages. The government relies on relators to blow the whistle on fraud—over two-thirds of FCA recoveries since 1986 come from cases brought by relators as whistleblowers. So important are these relators that in 1986 Congress amended the FCA and included an anti-retaliation provision to provide relief for employees who experience retaliation from their employers for reporting fraud. This Note discusses a recent circuit split over whether the anti-retaliation provision of the FCA protects former employees against post-termination retaliation by their employers, arguing that the anti-retaliation provision extends to retaliation against former employees. In arguing in favor of a more inclusive definition of “employee” in the FCA’s anti-retaliation provision, this Note explores the history and purpose of the FCA, the legislative history of the FCA’s anti-retaliation provision, and the arguments for and against the inclusion of former employees under the provision’s protections. Finally, this Note calls for Supreme Court intervention or congressional action to clarify that the FCA’s anti-retaliation provision protects former employees from post-termination retaliation.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"51 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78291631","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-01DOI: 10.36646/mjlr.56.2.pretext
R. Weiner
The assault on truth in recent public discourse makes it especially important that judicial decisions about Executive actions reflect the world as it is. Judges should not assume some idealized reality where good faith prevails, the motives of public officials are above reproach, and administrative processes are presumptively regular. Unfortunately, however, the Supreme Court has acted on naïve or counterfactual assumptions that limit judicial review of administrative or Presidential action. Such intentional judicial blindness or suspension of justified disbelief—such lack of verisimilitude—can sow doubt regarding the Court’s candor and impartiality. In analyzing the Court’s fealty to objective reality in its review of Executive actions, this Article focuses primarily on two Supreme Court decisions: the Travel Ban Case and the Census Case. These decisions illustrate how the mode of judicial review can influence verisimilitude. In the Travel Ban Case, the Court refused to look behind an implausible explanation of the government’s actions, a paradigm judicial departure from verisimilitude inimical to the legitimacy of the Court. The Census Case is a less direct assault on objective reality, as the Court ultimately did examine the truthfulness of the government’s justifications. But it did so in a manner that does not manifest a vital commitment to truth. This Article will also touch upon a third case: U.S. Department of Homeland Security v. Regents of the Univ. of Cal. (the DACA Case). The DACA Case did not challenge objective reality but on the contrary insisted that agencies provide the actual reasoning behind their decisions rather than justifications they thought of later, even if those justifications were otherwise valid. The case thus reinforces the importance of candor and accuracy. A key lesson from these cases is that to preserve its legitimacy, the Court should abandon or modify doctrines that cede judicial review of national security issues, limit consideration of `pretext, decline to assess the intent of government actors, and indulge a presumption of regularity for administrative determinations. These reforms are achievable without a major overhaul of administrative law standards.
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Pub Date : 2022-01-01DOI: 10.36646/mjlr.55.2.times
T. Dworkin, Cindy A. Schipani
Social movements like #MeToo have gained public traction like never before. In this Article, we place those developments within their historical context and chart a path forward. First, we provide a history of the prior unsuccessful attempts to ratify an Equal Rights Amendment, and we discuss that effort’s current legal status and prospects. Then, we briefly review the history of sexual harassment law. Having outlined this historical context, we move to contemporary developments. We describe actions that state legislatures and local municipalities have taken to address the concerns raised by the #MeToo movement. Finally, we discuss how inflection points can lead to change and we make concrete reform suggestions.
{"title":"The Times They Are A-Changin’?: #MeToo and Our Movement Forward","authors":"T. Dworkin, Cindy A. Schipani","doi":"10.36646/mjlr.55.2.times","DOIUrl":"https://doi.org/10.36646/mjlr.55.2.times","url":null,"abstract":"Social movements like #MeToo have gained public traction like never before. In this Article, we place those developments within their historical context and chart a path forward. First, we provide a history of the prior unsuccessful attempts to ratify an Equal Rights Amendment, and we discuss that effort’s current legal status and prospects. Then, we briefly review the history of sexual harassment law. Having outlined this historical context, we move to contemporary developments. We describe actions that state legislatures and local municipalities have taken to address the concerns raised by the #MeToo movement. Finally, we discuss how inflection points can lead to change and we make concrete reform suggestions.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"9 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72765074","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-01DOI: 10.36646/mjlr.56.1.sexual
A. Richert
Housing discrimination on the basis of sexual orientation and gender identity is a critical problem facing LGBTQ+ people in the United States. In addition, LGBTQ+ people, particularly transgender people, disproportionately suffer from homelessness and face discrimination by homeless shelters on the basis of sexual orientation and gender identity. This homelessness and discrimination both disproportionately affect transgender people of color. This Note makes two contributions that would enable courts to grant meaningful relief in these contexts. First, it argues that “sex” in the Fair Housing Act includes sexual orientation and gender identity after the holding in Bostock v. Clayton County. Second, it argues that the Fair Housing Act applies to homeless shelters. These two arguments enable LGBTQ+ people to sue under the Fair Housing Act for the discrimination they experience in homeless shelters.
{"title":"Sexual Orientation, Gender Identity, and Homelessness Post-Bostock","authors":"A. Richert","doi":"10.36646/mjlr.56.1.sexual","DOIUrl":"https://doi.org/10.36646/mjlr.56.1.sexual","url":null,"abstract":"Housing discrimination on the basis of sexual orientation and gender identity is a critical problem facing LGBTQ+ people in the United States. In addition, LGBTQ+ people, particularly transgender people, disproportionately suffer from homelessness and face discrimination by homeless shelters on the basis of sexual orientation and gender identity. This homelessness and discrimination both disproportionately affect transgender people of color. This Note makes two contributions that would enable courts to grant meaningful relief in these contexts. First, it argues that “sex” in the Fair Housing Act includes sexual orientation and gender identity after the holding in Bostock v. Clayton County. Second, it argues that the Fair Housing Act applies to homeless shelters. These two arguments enable LGBTQ+ people to sue under the Fair Housing Act for the discrimination they experience in homeless shelters.","PeriodicalId":83420,"journal":{"name":"University of Michigan journal of law reform. University of Michigan. Law School","volume":"72 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89416218","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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