News and Announcements
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Washtenaw County judge honored for work with adoption servicesWashtenaw County Peacemaking Court Judge Timothy P. Connors is being awarded the Daniel J. Wright Lifetime Achievement Award for Exemplary Service to Michigan’s Families and Children during the Michigan Supreme Court Adoption Day ceremony. -
President Biden nominates Ison, Totten for Michigan U.S. attorney jobsPresident Joe Biden has nominated Dawn Ison to be the U.S. attorney in Michigan's Eastern District, which would make her the first Black female picked for the job of chief federal law enforcement officer in Metro Detroit.
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Families of students with disabilities want stronger COVID policiesToday on Stateside, we heard about what the first draft maps of new political districts tell us about where Michigan might be headed politically. Also, we’ll talk to a couple parents caring for children with disabilities about balancing education and safety. And, David Moss is an associate professor at Wayne State University where he directs the school’s Disability Law Clinic, joins us to get a glimpse into how disability rights law could shape school's COVID policies moving forward.
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Which Michigan drivers are eligible for controversial MCCA refund checks?Governor Gretchen Whitmer asked the Michigan Catastrophic Claims Association (MCCA) to use a $5 billion surplus in its fund to give drivers a refund check, and the association agreed. The refund will come in the form of checks sent to insured drivers, even if they chose not to buy MCCA coverage last year, with the idea being that all Michigan drivers previously contributed to the base amount in the fund. Gov. Whitmer has emphasized that the surplus exists because of overpayments, but director of the Michigan Department of Insurance and Financial Services Anita Fox says it is also in large part due to investment returns and cuts. Attorney Wayne Miller, a professor at Wayne State University Law School, has represented crash victims as they fight for care and says concerns that the refund could put their futures at risk are legitimate. “I think people don’t understand what is at stake. They look at it as, hey, it’s found money” Miller said. “Of course, nothing is free and there are reasons that surplus existed.”
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Wayne Law alumna Fadwa Hammoud is making historyMichigan Solicitor General Fadwa Hammoud knew as a young girl growing up in Lebanon that she wanted to fight injustice in anyway possible. But when she immigrated to Dearborn at just 11 years old with her parents and brother, she had no idea her drive to fight injustice would lead her to the highest court in the United States. On Oct. 5, Hammoud made history as the first Arab-American Muslim woman to argue before the U.S. Supreme Court.
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Expert Insight: How States Can Lower Uninsured Motorist RatesWayne Miller, adjunct professor at Wayne Law and COO at Miller & Tischler P.C., provided advice to MoneyGeek on how states can lower uninsured motorist rates.
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Steve Bannon Faces Criminal Charges Over Jan. 6 Panel Snub, Setting Up a Showdown Over Executive PrivilegeThe House committee investigating the Jan. 6 attack on the U.S. Capitol is tasked with providing as full an account as possible of the attempted insurrection. But there is a problem: Not everyone is cooperating. As of Oct. 14, 2021, Steve Bannon, a one-time aide to former President Donald Trump, has stated that he will not comply with a committee subpoena compelling him to give testimony. Bannon’s lawyers have said their client is not acting out of defiance; rather, he is following the direction of Trump, who, citing executive privilege, has told Bannon not to produce testimony or documents. Either way, Bannon now faces the prospect of criminal contempt charges.
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Mississippi, Tennessee bring water fight to the Supreme CourtThe Supreme Court is back in session and a dispute over Mississippi groundwater is headlining the first day. With justices hearing arguments in-person for the first time since the pandemic began, they will hear Mississippi v. Tennessee first. The case boils down to a battle over groundwater between the neighboring states. In 2014 Mississippi filed a complaint saying a City of Memphis pumping operation took 252 billion gallons of Mississippi groundwater. The case shot up through the legal system, trickling all the way to the nation’s high court. “Mississippi is complaining that Tennessee’s use of the groundwater is somehow affecting Mississippi and taking something away from Mississippi,” said Noah Hall, a water law expert from Wayne State University who is involved in the case. He says Mississippi believes it is owed hundreds of millions of dollars because of Tennessee’s groundwater use. Hall says this is the first time a dispute like this is coming before the Supreme Court with one state arguing that it owns the groundwater in its boundary, despite the aquifer in question spanning across several states.
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What the U.S. Constitution Says and Doesn’t Say About TruthJim Townsend is the director of the Levin Center at Wayne State University Law School and a former member of the Michigan House of Representatives. He says the public can’t solve important problems when it disagrees on certain truths. At the Levin Center, Townsend says he is trying to encourage people “to return to the facts,” and constrain representatives to do that. “They have to feel that pressure,” he says, referring to lawmakers. Townsend says representatives also have to work across political boundaries to do what former Sen. Carl Levin taught, which was to conduct investigations with those with whom they disagree. Many policy issues go unsolved, says Townsend, because legislators are not favoring the better angels of their nature. “We have to own up to the fact that a significant reason why we’re failing to address these situations is that lawmakers don’t hold themselves accountable and they don’t hold the executive branch accountable,” he says.
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House committee investigating Capitol insurrection has a lot of power, but it’s unclear it can force Trump to testifyAssociate Professor of Law and Adjunct Associate Professor of Political Science, Kirsten Carlson, wrote an article for The Conversation. “In the intensely partisan atmosphere surrounding the House committee investigating the Jan. 6, 2021, attack on the U.S. Capitol, will the committee be able to get the information it needs? The American people, said Republican House member Liz Cheney, “deserve the full and open testimony of every person with knowledge of the planning and preparation for Jan. 6.” In opening statements link takes to a paywall at the first hearing held on July 27 by the House select committee investigating the attack, Cheney and other committee members said that an accurate record of the events on Jan. 6 - and in the time that led up to it - is essential to understanding the factors contributing to the attack so that future attacks may be prevented. The committee has several tools for shedding light on the events of Jan. 6 and ensuring that the American people learn the truth about what happened. Transparent, research-based, written by experts – and always free.”
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Passing of former U.S. Sen. Carl LevinStatement from President M. Roy Wilson The entire Wayne State community is saddened to hear the news of Senator Carl Levin’s passing. He was a tremendous friend of the university, and it’s gratifying to know that his name will live on in perpetuity at the Levin Center. Senator Levin devoted his life to public service and was a staunch advocate of Michigan families, civil rights, protecting Michigan’s environment, Michigan’s men and women in the military, and many, many other issues rooted in justice and equality. His was a life well-lived. We have been honored by Senator Levin’s association with Wayne State and are grateful for his deep commitment to Wayne Law and its students and faculty. Statement from Dean Richard A. Bierschbach Senator Carl Levin was the consummate statesman. He lived and breathed Detroit. First as City Council president, then as Michigan’s longest-serving U.S. senator, and after his retirement when he chose Wayne State University Law School - Detroit’s Law School - to be home to the center that would bear his name. To everyone who knew him, Senator Levin will be remembered as one of the kindest, most humble, genuine and loyal individuals you would ever encounter. When he first came to Wayne Law, I’m told that he was very concerned about the size of his office. He felt it was simply too big and should really have gone to somebody else. That’s the kind of person Senator Levin was. It would be wrong to say that today marks the end of an era. We have lost a giant, yes. But he taught and inspired Wayne Law students to not only do something, but to do the right thing no matter the cost. Because of his lessons, he leaves behind a lasting impact for generations to come. We are all better because of Carl Levin. For more information, please visit law.wayne.edu/levincenter. # # # Contact (Wilson): Ted Montgomery Phone: 248-880-6838 Email: tedmontgomery@wayne.edu Contact (Bierschbach): Kaylee Place Phone: 906-250-6134 Email: kaylee.place@wayne.edu
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Levin Center expert takes part in panel on insurance oversightState legislators from across the country learned about the importance of insurance oversight from a National Conference of Insurance Legislators panel entitled, “The Delicate Balance of Legislative Oversight.” One panelist was the Levin Center’s Ben Eikey, an expert on state legislative oversight. “Oversight can play a critical role in state legislatures seeking to promote a healthy insurance sector and so that families and businesses can obtain effective insurance at a fair price,” said Eikey. “Legislative oversight can help identify and analyze problems, encourage best practices, and help make sure financial help is there if disaster strikes.” The Levin Center at Wayne Law is named in honor of former U.S. Sen. Carl Levin, Michigan’s longest-serving U.S. senator who retired in 2015 after 36 years in the Senate conducting fact-based, bipartisan oversight investigations. Levin serves as the chair of the center which is headquartered at Wayne State University Law School. The center’s mission is to promote high quality oversight in Congress and the 50 state legislatures through oversight workshops, research, events, and other activities.
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Big Tech is trying to disarm the FTC by going after its biggest weapon: Lina KhanAmazon and Facebook have filed petitions seeking Federal Trade Commission Chair Lina Khan’s recusal in antitrust cases involving their companies. Khan’s confirmation to the FTC and appointment to lead the agency presents one of the clearest threats of major regulatory action in the tech sector in years. By seeking to recuse Khan, the companies are going after one of the biggest antitrust weapons the FTC has and, whether Khan is recused or not, the decision could muck up the antitrust charges against either company. Experts told CNBC that it makes sense for Facebook and Amazon to try to get Khan removed from the suits. Experts interviewed by CNBC said petitions for recusal of FTC commissioners happen but aren’t common. That makes the two petitions in a matter of weeks seem like an outlier. But, the experts said, it makes sense the companies would pull out all the stops given their opportunity to do so. “The last thing a party would want to do would be to sleep on its rights, so it’s not surprising that they would go ahead and raise the issue now,” said Stephen Calkins, a law professor at Wayne State University and a former FTC general counsel. “And raising it could serve a purpose even if all it does is to provide an argument the parties could make if any matter ever goes forward and ends up in a court.”
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Amazon seeks recusal of FTC Chairwoman Lina Khan in antitrustAmazon.com Inc. filed a request with the Federal Trade Commission seeking the recusal of new Chairwoman Lina Khan from antitrust investigations of the company, in light of her extensive past criticisms of the online giant. Khan has been a leading critic of dominant technology companies—especially Amazon—and a central figure in a movement that favors sweeping changes to antitrust enforcement to take on the nation’s most powerful firms. The Senate confirmed her earlier this month for the FTC, and President Biden immediately installed her as the head of the agency. Wayne State University law professor Stephen Calkins, a former general counsel of the FTC, said there is “very little history of successful challenges” to commissioner participation in recent times. However, he added, some important government ethics cases have involved court rulings that vacated FTC enforcement actions on the grounds that a commissioner should have been disqualified.
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Independent businesses hang on as their industries declineA Digital Entertainment Group study found that video rentals, excluding digital video on-demand services, fell by more than 27 percent in the first quarter of 2021 from the previous year, bringing in a shade under $236 million for the quarter. Income plays a role, too, according to Anne Choike, an assistant clinical professor at the Wayne State University Mike Ilitch School of Business and director of Wayne State's Business and Community Law Clinic. Some consumers can't afford streaming services like Netflix, Choike said, which charges from $8.99 to $17.99 per month. For music, Spotify has monthly plans at $9.99 and $14.99, with a $4.99 option for students. "When Family Video was open, they offered kids' videos for free," said Choike, who is working with a group on the Detroit Community Technology Project, whose goals include advancing equitable internet access and service. "A rental from a video store, or buying an album from a record store, is still a much cheaper option than watching something streaming on Amazon." Choike talked fondly of past trips to Harmony House, the Hazel Park-based music retailer that saw its last store close in 2002.
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Antitrust crusader Lina Khan faces a big obstacle: The courtsThe fiercest foes of America’s technology giants cheered when Lina Khan, a professor at Columbia Law School, was confirmed by the Senate last week for a seat on the Federal Trade Commission. Khan has since been named by the president as the chairwoman of the antitrust agency. Khan is one of the most prominent antagonists of big business, and in her role she will be responsible for challenging mergers and taking on companies when they use their market muscle to snuff out competition. According to antitrust experts, the biggest hurdle to putting her agenda into action is a judiciary that has made it very difficult for competition watchdogs to win ambitious cases. To make any change of consequence, whether breaking up a monopoly or stopping a takeover, enforcers must prevail in court. “None of that is easy, and it’s particularly not easy when courts are very conservative, as they are today,” says Stephen Calkins, a law professor at Wayne State University and a former general counsel at the FTC. “She’s certainly talked about breaking up companies but, my golly, that’s incredibly hard to do.”
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Supreme Court affirms tribal police authority over non-IndiansKirsten Carlson, associate professor of law and adjunct associate professor of political science, wrote an article for The Conversation on police authority over non-Indians. “The Supreme Court unanimously affirmed the sovereign power of American Indian tribes on June 1, 2021, ruling that tribal police officers have the power to temporarily detain and search non-Indians on public rights-of-way through American Indian lands. In most communities in the United States, the local government has the authority to investigate and prosecute both misdemeanor and felony crimes. And local police can detain and search individuals suspected of state and federal crimes, at least until handing them off to the appropriate authorities. Tribal governments – the local governments in Indian country – have the power to prosecute tribal citizens on tribal lands. When it comes to non-Indians, though, the situation is different. In 1978, the Supreme Court ruled that tribal governments could not prosecute non-Indians for any crimes in Indian country. Tribal governments have to rely on state and federal governments to prosecute non-Indians – which doesn’t happen often. Effectively, non-Indians have been able to commit crimes in Indian country with impunity.
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Michigan Supreme Court suspends decertification of Proposal P, allowing Detroit Charter question on August ballotThe Michigan Supreme Court is ordering the Court of Appeals to rush a hearing on the validity of Detroit’s Proposal P, allowing the charter ballot question to be printed for the August primary by suspending a decision by the Wayne County Circuit Court. The Detroit Charter Revision Commission filed dual emergency appeals last week, seeking to reverse Wayne County Circuit Judge Timothy Kenny’s decision to decertify the charter revision question. The Court of Appeals denied the group’s stay last week, but the state Supreme Court’s order will supersede that decision, requiring the appellate courts to hear the case. The Supreme Court is denying the Charter Revision Commission’s attempt to bypass the lower courts. A group of legal scholars from Wayne State University is writing in support of putting the charter question forward to voters. The group includes John Mogk, chair of the Levin Center at Wayne Law faculty committee, and Peter Hammer, director of the Damon J. Keith Center for Civil Rights. Along with professors Khaled Beydoun and Justin Long, the group argues that the Michigan Constitution positions statutes “in favor of the voters” and the previous judgments on the charter lawsuit “stifles the voices of the Detroit electorate as well as the constitutionally protected political process.” “The people of Detroit have faced many attempts — some successful, like the state takeovers of the city finances and city schools — to inhibit their democratic control of those who govern them,” the group wrote in an amicus brief filed with the Court of Appeals. “In this case, the Governor’s failure to approve the proposed charter should be treated as the political act it clearly was intended to be, not as a democracy-blocking veto. The voters of Detroit are constitutionally and statutorily the only proper authority to decide whether to accept the proposed charter or reject it.”
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Wayne State University launches “holistic defense” pilot for criminal defendantsWayne State University will implement a holistic defense partnership program in fall 2021. The program will pair social work and law students to assist clients in criminal defense offices in Detroit. The students will tackle systemic issues in the criminal justice system under the supervision of licensed attorneys and social workers. Administrators at the university believe that the holistic approach will spur criminal justice reforms and inspire change in their community. Dan Ellman is an externship professor at the Wayne State University Law School. “When people become enmeshed in the criminal justice system, they face a lot of consequences,” Ellman says. For some individuals, he explains, these consequences can include the deprivation of employment, parental rights and housing. Sheryl Kubiak is the dean of the Wayne State University School of Social Work. Kubiak says interdisciplinary partnerships are often fraught with misunderstandings about objectives. “In these offices, we hope to produce lawyers and social workers who are used to working together,” Kubiak says. Though this initiative may prove to be costly, Kubiak says it is a necessary investment to improve the livelihood of citizens. She explains, ”When you look at the unintended consequences of an individual who goes further and further into the criminal legal system, you have to think about what happened to their children, what about their lost revenue, what about the issues of family disruption, and what are those costs to our society?”
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Wayne State to pilot holistic defense partnership for law and social work studentsWayne State University Law School and School of Social Work are launching a holistic defense partnership for J.D. and M.S.W. students beginning in fall 2021, with the goal of addressing clients’ legal and social support needs in tandem. Holistic defense – also referred to as community orientated or comprehensive defense – is a term used to describe an innovative approach that employs an interdisciplinary team to consider both the individual and community needs when working with a person charged with a criminal offense. Unintended or collateral consequences of arrest and conviction can include loss of housing, removal of children, and even deportation. The holistic defense approach brings lawyers and social workers together to achieve positive legal and social outcomes for criminal defendants. “Holistic defense is an underutilized opportunity to effect real change in the lives of people navigating the criminal justice system,” said Wayne Law Dean and Professor Richard A. Bierschbach. “Lawyers and social workers have the same goal – to achieve the best possible outcome for their client. By training lawyers and social workers together, we open the door for future professional collaboration that can make all the difference.” In fall 2020, Social Work students embarked on the initial holistic defense pilot year, completing an immersive field placement experience and Social Work courses focused on the intersection of the criminal legal system and the behavioral health needs of their clients. Five students who recently completed the initial requirements in May 2021 worked with lawyers and fellow allied health professional teams to assess client needs, provide resources and information, and serve as an advocate for their client as they navigate complicated social systems. “The holistic defense model encompasses much of what we do each day as social workers – working in tandem with our clients, colleagues and community partners to provide comprehensive care and empower change in our community. What is unique about this approach is the integration into the criminal legal system, which has resulted in shorter client sentences, a reduction in pre-trial detention and ultimately saved taxpayer dollars,” said Social Work Dean and Professor Sheryl Kubiak.
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Michigan businesses must decide to keep or drop their mask mandateAs more businesses announce new policies on vaccinations and masks, business owners have to decide whether to keep a mandate in place and how to enforce it. For some, a relaxation on mask recommendations is, as Bay City commissioner Kerice Basmadjiam says, “a light at the end of the tunnel.” But Lance Gable, a law professor at Wayne State University, says it could be problematic. “If everyone just stops wearing masks and just stops taking precautions, including people who are unvaccinated, that’s going to result in a lot more spread of the disease,” Gable said. The problem is the unknown. “A lot of people now are going to be going around without masks and you’re not going to be able to tell who’s been vaccinated and who hasn’t been,” Gable said. But are separate businesses and entities allowed to require proof of vaccination? “They certainly could request that information, but if a person refuses, there’s nothing the business can necessarily do to force them. You can’t force someone to divulge their private medical information,” Gable said. “It’s not only going to be confusing, but I think it’s going to be unsettling for a lot of people,” Gable said.
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Is the ‘DEFCON 3 culture war’ over religious freedom bills coming to an end?Six years ago, Indiana lawmakers’ efforts to pass a new religious freedom law spawned protests, travel bans and boycott threats from national athletic organizations, including the NCAA, NFL and NBA. This year, when Montana and South Dakota passed similar legislation, the backlash was so muted by comparison that even some religious freedom experts didn’t hear about the bills until the Deseret News sent an interview request. The laws are called religious freedom restoration acts, or RFRAs. Although they come in different forms, all varieties seek to prevent the government from interfering with religious activity except in cases where there’s no other way to achieve important public policy goals. Research done in 2016 by Christopher Lund, law professor at Wayne State University, showed that RFRAs were rarely cited in legal cases and even more rarely used to sidestep LGBTQ anti-discrimination rules. Then, as in the past, religious freedom laws primarily benefitted people of faith who lacked the clout to force legislators to respond to their needs, he wrote, noting cases in which a Muslim prisoner won the right to avoid cross-gender pat-downs and Orthodox Jews successfully challenged no-beard policies enforced by police and fire departments. “Whatever else can be said of them, (the federal) RFRA and state RFRAs have been valuable for religious minorities, who often have no other recourse when the law conflicts with their most basic religious obligations,” Lund said.
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Michigan's new mask rules for fully vaccinated people: What you need to knowFully vaccinated Americans can now safely shed their masks and skip social distancing, the U.S. Centers for Disease Control and Prevention said this week, sparking a flurry of questions about how the new guidelines will be implemented at businesses, schools, and other places where fully vaccinated and unvaccinated people mingle. How will people know who's been vaccinated and who hasn't? For the most part, you won't. That could make the weeks ahead pretty messy, said Lance Gable, an associate professor at the Wayne State University Law School. "It's going to create a real challenge for a lot of people because you don't know that the person who comes into your business or the person you see on the street ... whether they've been vaccinated or not," Gable said. For families with kids who are not yet eligible for vaccines, for people who have compromised immune systems, it's a tricky time to be out in the world. "They're not going to know if the person walking next to them or the person who is in the grocery line with them is not wearing a mask because they're vaccinated and are safe or because they're refusing to wear a mask and are not vaccinated and therefore pose a risk," he said. "It creates a lot of complexity, and ... I think it's going to raise some significant problems." Can businesses still enforce mask wearing? "Private businesses can still decide that they want to keep the mask requirements in place; they're still permitted to do that" even for fully vaccinated people, Gable said. "It's going to be really difficult for them to tell who is not wearing their masks because their fully vaccinated and who is not wearing their masks because they are just opposed to wearing a mask and, maybe, still posing a risk of spreading the disease to other people."
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Unchartered territory: Legal strife over Detroit's charter revisions seems certain to end up in courtMichigan's top lawyer says the Detroit Charter Revision Commission can bring the amended city-governing document to the voters even though the governor didn't approve it. But Detroit's top lawyer? He says no. This disagreement could have long and expensive legal ramifications, as the commission elected to edit the document that's essentially Detroit's constitution must put its changes on the Aug. 3 ballot, or dissolve and leave the charter as is. The revisions would have wide-spanning impacts on businesses and residents. If the city did sue ahead of the vote, it could also delay the process to the point that the charter revisions are no longer eligible for the ballot, Wayne State University Law School professor John Mogk said. The commission dissolves Aug. 6.
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When It comes to big tech, antitrust is a distraction. Our focus should be workers: OpinionThe age of impunity for huge tech companies like Amazon, Google, and Facebook may be coming to a close. There have been few checks on the limitless power they wield over our lives and over the market thus far, but in recent weeks, Senator Josh Hawley introduced two bills geared at addressing antitrust concerns when it comes to Big Tech. And President Biden's pick for commissioner of the Federal Trade Commission, Lina Khan, is a noted advocate of using antitrust against Big Tech companies. Tech companies in particular have gained exponential power and capital. But the criticism around them has been frustratingly narrow, focused on breaking up companies like Facebook and Google, instead of on enforcing just labor laws. What this means is that instead of insisting on the wellbeing of workers, those pushing for reform in the Big Tech industry seem to care only about the wellbeing of the market. Antitrust laws were not meant to work this way. When they were first developed in the late nineteenth century, they were intended to challenge the consolidation of control over production, which had coalesced into the coffers of those at the very top. As assistant professor of law at Wayne State University Sanjukta Paul has shown, what ultimately became the Sherman Act in 1890 was routinely perverted throughout the twentieth century, when it was regularly used to punish collective action by workers. This gross reinterpretation, which treated organized workers as a force to be reined in while allowing firms to carry on undisturbed, developed alongside a rising neoliberal consensus among lawyers, policymakers, politicians, and economists around the almighty ideal of a competitive market.
