Category: Volume 55 No. 2

Free Speech and Establishment Clause Rights at Public School Graduation Ceremonies: A Disclaimer: The Preceding Speech Was Government Censored and Does Not Represent the Views of the Valedictorian

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It’s a quintessential American scene, repeated each spring in hundreds of cities and towns across the land. Brittany McComb appears behind a large microphone to give her valedictory address at the 2006 graduation exercises of Foothill High School in Henderson, Nevada. She is wearing a golden-colored graduation gown and mortar board, the bright tassel playfully dancing back and forth as she trips rapidly over her words and phrases. As it happens, Ms. McComb has more on her mind than the task of addressing her teachers, classmates, parents and friends in the cavernous hall. She had, as required, submitted her speech to the principal of the school, who was advised by legal counsel that the speech contained sectarian and proselytizing elements likely to provoke litigation based on the Establishment Clause. The principal advised Ms. McComb to remove these elements. At first she agreed, but she changed her mind and finally resolved to give her original speech. School administrators told her to cut her speech, or they would cut her microphone. Read More …

The Minimally Conscious Person: A Case Study in Dignity and Personhood and the Standard of Review for Withdrawal of Treatment

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The story of George Melendez, broadcast on the CBS news magazine 60 Minutes, caused a national stir for its poignancy and human interest. Melendez was an otherwise normal young man when one night he drove his car into a pond and almost drowned. Though rescued, George laid in his bed for years, cared for by his mother, Pat Flores. George was practically incommunicado for most of his post-accident life, occasionally moaning at night. Read More …

Identifying Fungible Goods Under The UCC Through a Contextual Lens

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Economic downturn causes warehouses to fill up with goods. Many of these goods are fungible products. Some have been purchased, some not. But how these fungible goods are identified in these warehouses—separated and segregated out—for particular customers is of vital importance in certain circumstances. Similarly, periods of financial distress often motivate parties to find cheap and efficient ways to discharge their obligations, be it through bankruptcy, contract breach, or some other state sanctioned debt relief. Business bankruptcies have increased dramatically as a result of the financial market turmoil caused by the sub-prime mortgage crisis. Thus, in periods of financial distress, it is imperative that buyers, sellers, creditors, and debtors know whose goods are whose. This Article seeks to clarify one of those elusive legal concepts under the Uniform Commercial Code (UCC) as it pertains to sales contracts: the identification of fungible goods. Read More …

Solving “the Burklow Problem”: Federal Question Jurisdiction of Tucker Act and Labor-Management Relations Act Cases After Textron Lycoming V. UAW

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Much jurisprudential ink has been spilt on the distinction between a federal district court’s subject matter jurisdiction and whether a plaintiff has stated a claim. The Supreme Court has said: “It is firmly established in our cases that the absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction, i.e., the court’s statutory or constitutional power to adjudicate the case.” The analysis bogs down, however, where “the asserted basis for subject matter jurisdiction is also an element of the plaintiff’s allegedly federal cause of action.” Read More …

After Regime Change: United States Law and Policy Regarding Iraqi Refugees, 2003-2008

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This is a critical history of the legal and public policy response by the United States to the Iraqi refugee crisis. Its thesis is that a sharp contrast has developed between U.S. immigration courts on one hand, and the U.S. State Department, the United Nations High Commissioner for Refugees (UNHCR), and international non-governmental organizations (INGOs) such as Human Rights Watch on the other, on the question of whether Iraqis driven from the country since the 2003 war are fleeing “random” violence or targeted persecution. U.S. courts have tended toward findings of “random” violence in order to deny Iraqi asylum-seekers the right to remain in the United States under the U.N. Convention Relating to the Status of Refugees of 1951 and its 1967 Protocol, and the U.N. Convention on Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment of 1984 (Torture Convention). Thus, U.S. immigration judges, and some federal appellate judges, have concluded that because multi-national forces (MNF) led by the United States and United Kingdom deposed the Ba’athist regime of Saddam Hussein and are now guaranteeing security, even Iraqis who can prove past persecution and torture by the Iraqi government are not refugees and are not entitled to relief under the Convention Against Torture, which protects persons from being deported to face a risk of torture. As a result of these findings and other laws, by 2008 the United States offered protection to only 14,000 out of the 2.5 million refugees that have fled Iraq. Read More …

Section 529 Prepaid College Tuition Scholarships: Help in Uncertain Economic Times

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The economy is wretched. The United States’ economic recovery is dependent, in part, on the country’s position in a global economy. If we as a nation wish to remain competitive in a knowledge-based economy that requires a higher level of education, we must facilitate greater access to postsecondary education. Unfortunately, in the last two decades, the United States has fallen from first to tenth place in the world in the proportion of its population that has obtained that all important postsecondary education. President Obama has set a goal of restoring the United States to first place by 2020. Read More …

Distinguished Lecture: Surveillance and the Constitution

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Today I want to talk about the extent of this surveillance and why it is so easy for the government to carry it out. I will also talk about why government surveillance should be more heavily regulated. Finally, I will briefly discuss what a new regulatory regime might look like. My focus will be on the extent to which the Constitution limits government surveillance activities. The details of regulation should be statutory, but the basis for that statutory regulation must be founded on constitutional principles to ensure that it cannot be legislatively nullified during the next moral panic, the next terrorist attack, or not to put too fine a point on it, the next time a Dick Cheney comes into power. Read More …

Trading Diplomas for Dollars: How Michigan Lawmakers Could Use Education as an Economic Development Model

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As our nation struggles to endure one of the worst economic crises of its history, and cities across the nation suffer the dire consequences of depressed economies, one major city stands out. That city is Detroit. In 2008, the United States Census Bureau reported that Detroit was the poorest large city in the nation. This statistic is not surprising, considering the many economic problems beleaguering the city. High concentrations of urban poor, as well as the rapid collapse of the major mainstay of the state’s economy—the automobile industry—and the concomitant rise in unemployment and loss of population, all problems by themselves, have collectively resulted in, among other things, an ever-shrinking tax base for the city. To see evidence of the severe economic problems facing the city, one need only drive down a neighborhood street, where, in many instances, “decaying neighborhoods, weedy, trash-strewn lots and vacant, burned-out houses” are the physical tokens of an all-too-common scene: neighborhoods consumed by extreme poverty and urban blight, exacerbated in recent times by the housing catastrophe, and plagued by violent crime, the highest rate experienced by any large city in the nation. Read More …

The Role of Discovery in Workers’ Compensation Proceedings in Michigan: An Analysis of Stokes V. Chrysler, LLC

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Workers’ Compensation remedies grew out of the hazards and problems associated with the rise of modern industry and the realization that injured workers forced to utilize common law remedies often could not recover for their injuries. In response, workers’ compensation laws provided injured workers with a streamlined no-fault procedure by which they could avoid the expense and delay inherent in civil litigation. In short, legislatures enacted workers’ compensation laws to “provide financial and medical benefits to victims of work connected injuries in an efficient, dignified, and certain form.” For these reasons, it should be axiomatic that courts and legislatures would be leery of allowing liberal discovery in a proceeding like workers’ compensation, which was designed to alleviate concerns of undue delay and expense. With the Michigan Supreme Court’s recent decision in Stokes v. Chrysler, LLC, however, parties will now be able to utilize more liberal discovery in workers’ compensation proceedings, to the detriment of workers. Workers with no interim means of support will now endure higher costs and longer delays before receiving compensation for their job-related injuries. Read More …

The Bank Failure Crisis: Challenges in Enforcing Antitrust Regulation

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On March 16, 2008, JP Morgan Chase agreed to purchase the quickly collapsing Bear Stearns Companies, then the fifth largest securities firm on Wall Street and an eighty-five-year-old pillar of investment banking, for ten percent of the firm’s value one week earlier. This triggered a wave of consolidation in the banking market unlike any before. One by one, commercial and investment banks began to merge as banks could no longer mitigate their losses from mortgage-backed securities., The banking landscape changed dramatically by the end of 2008, with only a few conglomerate banks dominating the canvas. Bank of America purchased Merrill Lynch and Countrywide Financial, JP Morgan Chase added Washington Mutual to its list of takeovers, and Wells Fargo took ownership of Wachovia. Read More …