University of Michigan journal of law reform. University of Michigan. Law School最新文献_第7页

Consumer Autonomy and Pathways to Portability in Banking and Financial Services 银行和金融服务中的消费者自主权和可移植性之路

University of Michigan journal of law reform. University of Michigan. Law School

Pub Date : 2019-11-01 DOI: 10.2139/ssrn.3483757

Michael S. Barr, Abigail E. DeHart, Andrew Kang

One of the critical ways to promote economic security is by making financial services work better for more American families. Efforts to build a financial system that promotes consumer autonomy will involve innovation and reforms to our payment systems and more broadly, our policy and legal infrastructure. Such advances help empower consumers and harness technological innovation, but they also need to be grounded with strong consumer protections—especially in an era where people increasingly turn to technology to manage their financial lives. This white paper is designed to spark conversation among academics, private sector stakeholders, public interest organizations, legislators, policy-makers, and regulators about how to approach consumer financial data.

Consumer financial data is playing an increasingly important role in driving value creation in the financial services sector. Banks can now leverage advanced processing technologies to obtain new insights about client behavior to develop smarter projects. At the same time, data has fueled innovation by financial technology service providers (“FSPs”) that source data from banks. These service providers harness the data to create products and services that perform key consumer financial activities once handled entirely by banks and offer new experiences that banks themselves are often not delivering.

But who owns a customer’s financial data? FSPs assert that consumers should be empowered to own their own data, especially as this would introduce new competition into the financial service sector. Many banks, however, contend that opening up consumer information to third parties raises serious risks of fraud and abuse. Both sides of the debate advocate for the consumer’s interest: banks on the grounds of security and privacy, and the fintech sector on the grounds of access and innovation.

促进经济安全的关键途径之一是让金融服务更好地为更多的美国家庭服务。建立一个促进消费者自主的金融体系的努力将涉及对我们的支付系统以及更广泛的政策和法律基础设施的创新和改革。这些进步有助于赋予消费者权力并利用技术创新，但它们也需要以强有力的消费者保护为基础——尤其是在人们越来越多地转向技术来管理他们的财务生活的时代。本白皮书旨在激发学术界、私营部门利益相关者、公共利益组织、立法者、政策制定者和监管机构就如何处理消费者金融数据进行对话。消费者金融数据在推动金融服务业的价值创造方面发挥着越来越重要的作用。银行现在可以利用先进的处理技术来获得有关客户行为的新见解，从而开发更智能的项目。与此同时，数据也推动了从银行获取数据的金融技术服务提供商(“fsp”)的创新。这些服务提供商利用这些数据创建产品和服务，执行过去完全由银行处理的关键消费者金融活动，并提供银行自己通常无法提供的新体验。但是谁拥有客户的财务数据呢?金融服务提供商断言，消费者应该有权拥有自己的数据，特别是因为这将给金融服务部门带来新的竞争。然而，许多银行认为，向第三方开放消费者信息会增加欺诈和滥用的严重风险。辩论的双方都主张维护消费者的利益:基于安全和隐私的银行，以及基于准入和创新的金融科技行业。

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引用次数: 0

The Dialogic Aspect of Soft Law in International Insolvency: Discord, Digression, and Development 软法在国际破产中的对话:分歧、偏离与发展

University of Michigan journal of law reform. University of Michigan. Law School

Pub Date : 2019-10-01 DOI: 10.36642/mjil.40.3.dialogic

John A. E. Pottow

In this study, I describe three important articles in the IRJ model law and discuss their development, drawing in part upon my experience as a delegate to UNCITRAL Working Group V. In doing so, I want to situate these developments within the broader discussions of international law and international relations theory regarding soft law. Doing so will both vindicate and puzzle some of the conventional understanding of how soft law instruments tend to function, although some of the conclusions must necessarily be conjectural at this stage.

在本研究中，我描述了IRJ示范法中的三条重要条款，并部分借鉴了我作为贸易法委员会第五工作组代表的经验，讨论了它们的发展。在这样做时，我希望将这些发展置于有关软法的国际法和国际关系理论的更广泛讨论中。这样做既可以证明对软法律文书如何发挥作用的一些传统理解是正确的，也可以让人感到困惑，尽管现阶段的一些结论必然是推测性的。

引用次数: 2

The Quantum of Suspicion Needed for an Exigent Circumstances Search 紧急情况搜查所需的怀疑量

University of Michigan journal of law reform. University of Michigan. Law School

Pub Date : 2019-06-13 DOI: 10.36646/mjlr.52.3.quantum

Kit Kinports

For decades, the United States Supreme Court opinions articulating the standard of exigency necessary to trigger the exigent circumstances exception to the Fourth Amendment’s warrant requirement have been maddeningly opaque and confusing. Some cases require probable cause, others call for reasonable suspicion, and still, others use undefined and unhelpful terms such as “reasonable to believe” in describing how exigent the situation must be to permit the police to proceed without a warrant. Not surprisingly, the conflicting signals coming from the Supreme Court have led to disagreement in the lower courts.To resolve this conflict and provide guidance to law enforcement officials and lower court judges, this Article proposes a three-step solution. First, the Court should reaffirm that probable cause to enter is a prerequisite for any exigent circumstances search: probable cause to believe, for example, that a suspect or piece of evidence is presently located on the premises. Second, the Court should clarify that any full search also requires probable cause of exigency: an independent finding of probable cause to believe that taking the time to obtain a warrant would result in some untoward consequence. This Article thus rejects the views expressed by some scholars that the Court already does—or should—allow at least some exigent circumstances searches on a standard lower than probable cause. Third, the Court should retreat from its opinions holding that a police officer’s subjective motivations are irrelevant in the subset of exigent circumstances cases where the entry is purportedly intended to provide emergency aid or further some other nonlaw- enforcement interest. Rather, the Court should recognize that these searches are, in essence, administrative inspections and therefore should demand proof that the primary purpose of the entry was actually to provide assistance, rather than to investigate a crime or conduct a pretextual search for evidence.

几十年来，美国最高法院的意见阐明了触发《第四修正案》的搜查令要求的紧急情况例外所必需的紧急标准，一直是令人恼火的不透明和令人困惑。有些案件需要合理的理由，有些案件要求合理的怀疑，还有一些案件使用“有理由相信”等未定义的和无益的术语来描述情况必须多么紧急，才能允许警察在没有搜查令的情况下进行行动。毫不奇怪，来自最高法院的相互矛盾的信号导致了下级法院的分歧。为了解决这一冲突，并为执法官员和下级法院法官提供指导，本文提出了一个三步走的解决方案。第一，法院应重申，进入的合理理由是任何紧急情况搜查的先决条件:例如，有合理的理由相信，一名嫌疑人或一件证据目前在房舍内。第二，法院应澄清，任何全面搜查也需要有可能的紧急理由:独立地发现可能的理由，认为花时间获得搜查令会导致一些不利的后果。因此，该条拒绝了一些学者所表达的观点，即法院已经或应该允许至少在某些紧急情况下以低于可能原因的标准进行搜查。第三，法院应放弃其意见，即在紧急情况下，警察的主观动机在据称是为了提供紧急援助或促进其他非执法利益的情况下是无关紧要的。相反，法院应该认识到这些搜查实质上是行政检查，因此应该要求证明进入的主要目的实际上是提供协助，而不是调查犯罪或进行借口搜查证据。

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引用次数: 0

Tort Justice Reform 侵权司法改革

University of Michigan journal of law reform. University of Michigan. Law School

Pub Date : 2019-05-15 DOI: 10.36646/mjlr.52.3.tort

P. Stern

This Article calls for a comprehensive reform of public tort law with respect to law enforcement conduct. It articulates an effective and equitable remedial regime that reconciles the aspirational goals of public tort law with the practical realities of devising payment and disciplinary procedures that are responsive to tort settlements and judgments. This proposed statutory scheme seeks to deter law enforcement misconduct without disincentivizing prudent officers from performing their duties or overburdening them with extensive litigation. Rather than lamenting the dissolution of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics or the insurmountability of qualified immunity, reform advocates should acknowledge that the very distinction between constitutional and common-law torts is arbitrary for purposes of individual officer deterrence and accountability. By examining the relationship between Fourth Amendment excessive force jurisprudence and the common-law torts of assault, battery, and negligence, this Article highlights that the analytical distinction between those legal doctrines imposes an improper demarcation for civil liability. If law enforcement agencies concern themselves solely with the constitutionality of their employees’ conduct, training concentrates on the instant moment in which deadly force is used without substantial reflection on the conduct, including antecedent negligence, that led to the confrontation. At the same time, whether an officer can be held personally accountable should not be based on the intentionality of the conduct; rather, the reprehensibleness of the conduct is a more appropriate benchmark for individual liability. By acknowledging that tort law addresses various types of law enforcement activity that do not necessarily rise to the level of constitutional or criminal infractions, legislative bodies can begin conceptualizing public tort law as an important component of criminal justice reform. But to do so, we need tort justice reform.

本文呼吁对公共侵权法的执法行为进行全面改革。它阐明了一种有效和公平的补救制度，使公共侵权法的理想目标与设计对侵权和解和判决作出反应的支付和纪律程序的实际现实相协调。这项拟议的法定计划旨在遏止执法人员的不当行为，但不会妨碍谨慎的人员履行职责，也不会使他们承担过多的诉讼负担。与其为Bivens诉联邦麻醉品局六名不知名特工案的解散或有条件豁免的不可逾越性而哀叹，改革倡导者应该承认，宪法侵权与普通法侵权之间的区别是任意的，目的是为了对个别官员进行威慑和问责。本文通过考察第四修正案过度使用武力的法理与普通法中攻击、殴打和过失侵权的关系，强调了这些法律理论之间的分析区别对民事责任的划分是不恰当的。如果执法机构只关心其雇员的行为是否符合宪法，那么培训就集中在使用致命武力的瞬间，而没有对导致对峙的行为进行实质性反思，包括先前的疏忽。与此同时，是否追究官员个人责任不应以行为的故意性为依据;相反，行为的应受谴责性是衡量个人责任更合适的基准。通过承认侵权法处理的是各种类型的执法活动，这些活动不一定会上升到宪法或刑事违法的水平，立法机构可以开始将公共侵权法概念化为刑事司法改革的一个重要组成部分。但要做到这一点，我们需要进行侵权司法改革。

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引用次数: 1

Searching for Humanitarian Discretion in Immigration Enforcement: Reflections on a Year as an Immigration Attorney in the Trump Era 寻找移民执法中的人道主义自由裁量权:特朗普时代移民律师一年的思考

University of Michigan journal of law reform. University of Michigan. Law School

Pub Date : 2019-04-12 DOI: 10.36646/MJLR.53.1.SEARCHING

Nina Rabin

This Article describes one of the most striking features of the Trump Administration’s immigration policy: the shift in the way discretion operates in the legal immigration system. Unlike other high-profile immigration policies that have been the focus of class action lawsuits and public outcry, the changes to the role of discretion have attracted little attention, in part because they are implemented through low-visibility individualized decisions that are difficult to identify, let alone challenge systemically. After providing historical context regarding the role of discretion in the immigration system before the Trump Administration, I offer four case studies from my immigration practice in Arizona that illustrate discretion’s new role. The cases highlight three key trends that result from the way discretion currently operates in the immigration system: (1) the ever-widening enforcement net; (2) the emboldening of front-line bureaucrats; and (3) the changing bureaucratic culture within United States Citizenship and Immigration Services, an agency that previously had seen its mission as one of integration, but has now shifted to an aggressive enforcement orientation. I close with a final section reflecting on the important role that individual direct representation can play in fighting against the current enforcement regime.

本文描述了特朗普政府移民政策最显著的特征之一:自由裁量权在合法移民体系中的运作方式发生了转变。与其他备受瞩目的移民政策不同，这些政策一直是集体诉讼和公众抗议的焦点，对自由裁量权作用的改变几乎没有引起人们的关注，部分原因是它们是通过低能见度的个人决定实施的，很难识别，更不用说系统性地挑战了。在提供了特朗普政府之前自由裁量权在移民制度中的作用的历史背景之后，我提供了我在亚利桑那州的移民实践中的四个案例研究，说明了自由裁量权的新作用。这些案件突出了目前移民系统中自由裁量权运作方式所导致的三个关键趋势:(1)执法网络不断扩大;(2)给一线官僚壮胆;(3)美国公民及移民服务局(United States Citizenship and Immigration Services)内部不断变化的官僚文化，该机构此前曾将其使命视为整合之一，但现在已转向积极的执法导向。我以最后一节结束，反思个人直接代表在反对现行执法制度方面可以发挥的重要作用。

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引用次数: 5

Constitutional Cohesion and the Right to Public Health 宪法凝聚力与公共健康权

University of Michigan journal of law reform. University of Michigan. Law School

Pub Date : 2019-04-03 DOI: 10.36646/mjlr.53.1.constitutional

J. Hodge, Daniel Aaron, Haley R. Augur, A. Cheff, J. Daval, D. Hensley

Despite years of significant legal improvements stemming from a renaissance in public health law, Americans still face major challenges and barriers in assuring their communal health. Reversals of legal reforms coupled with maligned policies and chronic underfunding contribute to diminished public health outcomes. Underlying preventable morbidity and mortality nationally are realities of our existing constitutional infrastructure. In essence, there is no general obligation of government to protect or promote the public’s health. Under principles of “constitutional cohesion,” structural facets and rights-based principles interwoven within the Constitution protect individuals and groups from governmental vices (i.e., oppression, overreaching, tyranny, and malfeasance). Structural impediments and rights infringements provide viable options to challenge governmental efforts inapposite to protecting the public’s health. Through corollary applications framed as auxiliary, creative, and ghost righting, courts are also empowered to recognize core duties or rights that the Constitution may not explicitly denote but assuredly contains, to remedy identifiable vices. Notably, ghost righting charts a course for recognizing a constitutional right to public health that Americans are owed, and government must respect, to assure basic public health needs.

尽管由于公共卫生法的复兴，多年来法律方面取得了重大进展，但美国人在确保公共健康方面仍然面临重大挑战和障碍。法律改革的逆转，加上政策的恶意和长期资金不足，导致公共卫生成果下降。在全国范围内，潜在的可预防的发病率和死亡率是我们现有宪法基础设施的现实。从本质上讲，政府没有保护或促进公众健康的一般义务。在“宪法凝聚力”原则下，宪法中的结构方面和基于权利的原则相互交织，保护个人和群体免受政府恶行(即压迫、越权、暴政和渎职)的侵害。结构性障碍和权利侵犯为挑战政府不利于保护公众健康的努力提供了可行的选择。通过作为辅助的、创造性的和幽灵权利框架的必然应用，法院也被授权承认宪法可能没有明确指出但肯定包含的核心义务或权利，以纠正可识别的恶习。值得注意的是，“幽灵权利”为承认宪法赋予的公共健康权利指明了方向，这一权利是美国人应享有的，也是政府必须尊重的，以确保基本的公共健康需求。

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引用次数: 5

Jury Selection in the Weeds: Whither the Democratic Shore? 杂草丛生的陪审团选择:民主党的海岸在哪里?

University of Michigan journal of law reform. University of Michigan. Law School

Pub Date : 2019-02-17 DOI: 10.36646/mjlr.52.1.jury

Jeffrey Abramson

This Article reports on four federal jury challenges in which the trial judge or defendants retained the author to provide research on jury selection plans. The research shows a persistent and substantial loss of representation for African Americans and Hispanics on federal juries, even though no intentional discrimination took place. Problems with undeliverable jury summonses, as well as failure to respond to summonses, were the main causes of departures from the ideal of cross-sectional jury selection. However, a cramped understanding of what it takes for a defendant to prove that minority jurors were systematically excluded, as required by Duren v. Missouri, kept three of the four judges in our challenges from responding to the problems. This Article argues for a legal change in the Duren test so as to enable federal courts to construct representative jury wheels.

本文报道了四起由初审法官或被告委托作者对联邦陪审团选择方案进行研究的案件。研究表明，尽管没有故意歧视，但非裔美国人和西班牙裔美国人在联邦陪审团中的代表性持续大幅下降。陪审团传票无法送达的问题，以及未能对传票作出回应，是偏离横截面陪审团选择理想的主要原因。然而，对于被告如何证明少数族裔陪审员被系统地排除在外——正如杜伦诉密苏里案所要求的那样——所需要的理解是狭隘的，这使得我们的四名法官中的三名无法对这些问题做出回应。本文主张对杜伦检验进行法律改革，使联邦法院能够构建具有代表性的陪审团车轮。

引用次数: 2

The Political Party System as a Public Forum: The Incoherence of Parties as Free Speech Associations and a Proposed Correction 政党制度作为公共论坛:政党作为言论自由协会的不连贯性及其修正建议

University of Michigan journal of law reform. University of Michigan. Law School

Pub Date : 2019-01-01 DOI: 10.36646/mjlr.52.2.political

Wayne Batchis

The Supreme Court’s jurisprudence addressing the associational rights of political parties is both highly consequential and deeply inconsistent. It dates back at least as far as the Court’s White Primary decisions more than a half-century ago. In recent decades, the Court has imposed an arguably ad hoc formula, striking down regulations on political parties on First Amendment grounds in some cases, while upholding them in others. From a jurisprudential perspective, critics might point to insufficiently principled distinctions between these cases. From a normative perspective, the very expansion of First Amendment rights to political parties, like the parallel extension to corporations in Citizens United, is ripe for scrutiny. It relies on a questionable underlying premise: political parties, as entities, should be entitled to constitutional rights comparable to those afforded to individuals. As a consequence, this Article argues entities the Framers would have viewed as dangerous factions are empowered, and individuals—the literal targets of the First Amendment’s protection—are disempowered. This Article offers and explores a doctrinal alternative as a corrective: the American political party system should be treated as a limited public forum, subject to the Court’s well-established public forum doctrine.

最高法院关于政党结社权的判例既非常重要，又极不一致。它至少可以追溯到半个多世纪前最高法院的白色初选判决。近几十年来，最高法院实施了一种可以说是特别的模式，在某些情况下，以第一修正案为理由推翻了对政党的规定，而在另一些情况下则维持了这些规定。从法理学的角度来看，批评者可能会指出这些案件之间在原则上的区别不够。从规范的角度来看，第一修正案对政党权利的扩展，就像在公民联合案中对公司权利的平行扩展一样，是时候进行审查了。它依赖于一个有问题的基本前提:政党作为实体，应该享有与个人同等的宪法权利。因此，本文认为，制宪者原本视为危险派别的实体被赋予了权力，而个人——第一修正案保护的字面目标——被剥夺了权力。本文提出并探讨了一种作为纠正的理论选择:美国政党制度应被视为一种有限的公共论坛，受最高法院确立的公共论坛原则的约束。

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引用次数: 0

Policing Corporate Conduct Toward Minority Communities: An Insurance Law Perspective on the Use of Race in Calculating Tort Damages 监管公司对少数族裔社区的行为:在计算侵权损害赔偿中使用种族的保险法视角

University of Michigan journal of law reform. University of Michigan. Law School

Pub Date : 2019-01-01 DOI: 10.36646/mjlr.53.1.policing

Dhruti Patel

Courts commonly use U.S. Department of Labor actuarial tables, which explicitly take into account the race of the tort victim, to determine average national wage, work-life expectancy, and life expectancy. This practice has led to wide discrepancies between average damage awards for minority plaintiffs compared to white plaintiffs even if both plaintiffs are similarly situated. While recent legal scholarship criticizes the use of race-based tables and addresses the Equal Protection and incentive concerns such tables present, few courts have deviated from the explicit use of race in determining tort damages. Though the use of demographic features, such as race, to predict future lost earnings is viewed as a way to calculate more accurate damage awards, a closer look at the effects of race-based tables shows the practice does more harm than good. Specifically, this Note considers the intersection of corporate liability insurance and tort law and how race-based tables affect the deterrence and oversight objectives of the relationship. The first Part of this Note provides an overview of how insurance and tort law work together, as well as the recognized issues with the use of race-based tables. The second Part focuses on how race-based damage awards inhibit deterrence of corporate tortious misconduct by not allowing insurance providers to accurately price premiums. Further, race-based damage awards also prevent insurance providers from adequately policing corporations and mandating certain precautions, which leads to an increased likelihood of tortious harm. The final Part proposes that state legislatures rectify the negative consequences race-based tables create by outlawing the use of race-based tables and establishing a minimum damage award using blended actuarial tables.

法院通常使用美国劳工部精算表，该表明确考虑了侵权受害者的种族，以确定全国平均工资、工作寿命和预期寿命。这种做法导致少数族裔原告与白人原告的平均损害赔偿之间存在巨大差异，即使这两个原告的处境相似。虽然最近的法律学者批评使用基于种族的表格，并解决了这些表格所带来的平等保护和激励问题，但很少有法院在确定侵权损害赔偿时偏离明确使用种族。尽管使用人口统计学特征(如种族)来预测未来的损失收入被视为一种计算更准确的损失赔偿的方法，但仔细研究基于种族的表格的影响会发现，这种做法弊大于利。具体来说，本说明考虑了公司责任保险和侵权法的交集，以及基于种族的表格如何影响这种关系的威慑和监督目标。本说明的第一部分概述了保险和侵权法如何协同工作，以及使用基于种族的表格时公认的问题。第二部分侧重于基于种族的损害赔偿如何通过不允许保险公司准确定价保费来抑制公司侵权行为的威慑。此外，基于种族的损害赔偿也阻碍了保险公司对公司进行适当的监管和强制采取某些预防措施，从而增加了侵权损害的可能性。最后一部分建议各州立法机关通过禁止使用基于种族的表格和使用混合精算表格建立最低损害赔偿来纠正基于种族的表格所造成的负面后果。

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引用次数: 0

Guilt by Alt-Association: A Review of Enhanced Punishment for Suspected Gang Members 同伙犯罪:对涉嫌帮派成员加重处罚的评析

University of Michigan journal of law reform. University of Michigan. Law School

Pub Date : 2019-01-01 DOI: 10.36646/mjlr.52.4.guilt

Rebecca J. Marston

This essay, written in reaction to the University of Michigan Journal of Law Reform’s 2018 Symposium entitled “Alt-Association: The Role of Law in Combating Extremism” (the Symposium), does not dispute the seriousness of gang-related violence. Rather, it examines ways in which current strategies for combating gang-related crimes are ineffective or problematic and suggests possible reforms. Part One of this essay will describe current methods used in labeling, tracking, and prosecuting gang members, which result in a cycle of enhanced punishment. Part Two will evaluate these practices and reflect on whether enhanced punishment is the best way to reduce gang-related violence, especially given that modern “gangs” have evolved away from the sophisticated and well-defined criminal organizations of the past. Finally, this essay will explore novel solutions for reducing the harms associated with gang activity in affected communities. These solutions will incorporate ideas from the Symposium’s “Design Jam,” a brainstorming session following the day’s panel discussions in which law students, professors, and guest speakers worked in groups to brainstorm effective ways to combat extremism.

这篇文章是为回应密歇根大学法律改革杂志2018年题为“另类协会:法律在打击极端主义中的作用”的研讨会而写的，并没有质疑与帮派有关的暴力的严重性。相反，它审查了目前打击团伙犯罪的战略在哪些方面是无效的或有问题的，并提出了可能的改革建议。这篇文章的第一部分将描述当前用于标记，跟踪和起诉帮派成员的方法，这导致了一个加强惩罚的循环。第二部分将评估这些做法，并反思加强惩罚是否是减少与帮派有关的暴力的最佳方式，特别是考虑到现代“帮派”已经从过去复杂和明确的犯罪组织演变而来。最后，本文将探讨在受影响社区减少与帮派活动有关的危害的新解决方案。这些解决方案将纳入研讨会的“设计果酱”(Design Jam)，这是在当天的小组讨论之后举行的头脑风暴会议，法律专业的学生、教授和演讲嘉宾分组讨论打击极端主义的有效方法。

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引用次数: 1