News and Announcements
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Stopping another Edenville requires more than a panel of experts | OpinionJim Townsend, director of the Levin Center at Wayne State’s Law School, and Kristin Taylor, associate professor of political science wrote an op-ed about the failure of the Edenville and Sanford dams in Michigan. “In response to public pressure, the Whitmer Administration last week appointed a panel of technical experts tasked with getting to the bottom of how the Edenville and Sanford dams in mid-Michigan failed and how this kind of catastrophe can be prevented in the future. Relying solely on technical experts, as the governor’s panel appears to do, should generate valuable technical findings and warnings about the dangers we face. But confronting and solving the problems that led to this disaster requires a clear-eyed look at the various government entities that failed to act and the inadequacy of the public engagement process led by the lawmakers elected to do that job. A panel of independent experts is surely preferable to the internal investigation first called for by the Governor in her May 27 executive order. Although the appointees have decades of experience designing dams and analyzing why they fail, a panel comprised only of scientific experts is unlikely to shed light on the intergovernmental failures that allowed private dam owners to skate by for 25 years after federal regulators first identified significant flaws in the dams’ designs.” -
Jewish legal experts weigh in on DACA decisionA June 20 Supreme Court decision invalidates the Trump administration’s attempt to rescind DACA (Deferred Action for Childhood Arrivals). For now, these immigrants — the “dreamers” — have retained the protections of DACA. Five years later, on Sept. 5, 2017, Elaine Duke, acting secretary of Homeland Security in the Trump administration, issued a memorandum that “terminated the program.” The U.S. District Court for the District of Columbia found that Duke provided insufficient explanation for terminating the program. Duke’s successor as secretary of Homeland Security, Kirstjen M. Nielsen, then provided additional reasoning for rescinding DACA. On June 20, 2020, Chief Justice John Roberts, writing for the Court, ruled that the efforts to end DACA were still “arbitrary and capricious,” and so DACA remains in force. Tim Moran, senior lecturer at the Irvin D. Reid Honors College of Wayne State University, cautions that “when the Supreme Court issues an opinion, it’s not because they ‘side with’ any particular issue. They examine the law and decide whether the law has been followed correctly.” The majority of the court decided the case as a narrow question of the Administrative Procedures Act. The executive cannot simply overturn an administrative rule without providing a sufficient rationale. Justice Roberts, joined by the liberal justices, found that Duke’s memorandum offered an “arbitrary and capricious” rationale, and that Nielsen’s later additions could not remedy that original lack. The decision, however, rests on a procedural question. Robert Sedler, professor of constitutional law at Wayne State University Law School, notes that Chief Justice Roberts here follows “the operative principle: Decide cases on the narrowest possible ground.”
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Credit cards for students with bad creditStephen Calkins, professor of law, participates in a Q&A about credit cards for students who have bad credit. What should students with bad credit look for in a credit card, and how should they use it? “The last thing someone with a bad credit score needs is a new credit card. The first goal is to pay every bill on time, and an additional card just makes doing that harder. Opening new credit also risks further harming a credit score. As for existing cards, always make at least the minimum payment on time, no matter what. If the student has extra money, talk to someone smart about credit. It is good to pay down the card charging the highest interest; it is good to keep balances well below your credit limit; it is good really to pay off a card so eventually using it will not cost the student any interest at all. But balancing those three goals is sometimes tricky!”
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Opinion | Dual pandemics: police brutality and coronavirus racial disparitiesProfessor Peter Hammer, director of the Damon J. Keith Center at Wayne Law, along with fellow DJK Center staff members Peter Blackmer, Rhiannon Chester and Martina Guzmán, wrote an opinion piece on the interconnections of coronavirus and police brutality in the Black community. “Now, the coronavirus is ravaging African-American communities at the same time protests against police brutality fill the streets. The enemy is the same, racism — express and structural. We need to acknowledge these interconnections as we fight for a better future. We are in a fight for our lives. And we all have roles to play. The murder of George Floyd triggered righteous anger that has flowed into mass protests in streets across the nation. The tragic racial disparities in deaths from the coronavirus crisis has triggered overwhelming grief and mourning, but not protests in the streets.”
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Federal judge asks Michigan Supreme Court to clarify Whitmer's emergency powersA federal judge asked the Michigan Supreme Court Thursday to clarify whether Gov. Gretchen Whitmer has the authority to continue issuing or renewing executive orders under either of the two state laws that govern her emergency powers. The request came on the same day that Whitmer extended Michigan's state of emergency through July 16. A federal judge may certify a question to the high court when there is a legal issue or term that arises in federal litigation but depends on state law for its meaning, said Justin R. Long, an associate professor at Wayne State University Law School. If Michigan's high court gives an answer, the federal judge can use it to decide his or her case, but it also becomes solidified as state law, Long said. The process of certification is more likely to occur "when the federal judges feels it’s a question especially important to the state, whether that’s a question of the powers of different branches in the state or a particularly controversial question," he said. Certification is uncommon, but not extraordinary, Long said, adding that it likely happens nationwide about "a dozen times a year." Typically, Long said, "state high courts are much more likely to grant a federal judge’s request to decide something like this than they are to accept an appeal from a lower court."
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Detroit activists plan Juneteenth march over disparities in sentencing, lack of jury diversityDetroit activists are planning a Juneteenth march focusing on justice system reform raising awareness about the lack of representation on the supreme court, racial disparities in sentencing and the lack of diversity in juries in Wayne County. "If you think about injustice in the criminal justice system it goes from root to branch," said Wayne State University Law Professor Peter Hammer. "It is not just police brutality. It is how we define what is criminal, what is not criminal, it is who is sitting in the jury and who is not." Hammer is director of the Damon J. Keith Center for Civil Rights. He says judges Keith and George Crockett, Jr. helped bend the proverbial moral arc towards justice, benefitting not just African-Americans but everyone. "And they would tell you, they would not be the same judges they were if they were not Black men," Hammer said. "And they would not have had the impact that they did, because they took their life experience. They survived discrimination and knew the machinery and the physics of discrimination in this country. And they applied that knowledge on the bench. "If you have a bench full of European-Americans that have all these blinders on, even if they have the best intention and the sincerest beliefs, they are going to get it wrong.”
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Despite legal battle, Michigan tribe remains hopeful for recognitionOf the 574 federally-recognized and 63 state-recognized tribal nations in the United States, 12 Michigan tribes are federally-recognized and four state-recognized. State-recognized tribes are acknowledged to have cultural and ancestral history in the state, but they must receive federal recognition to secure funding and other benefits. When a tribe is federally recognized, it is allowed to establish a formal reservation. The tribe and its members are eligible for “certain powers, privileges, and immunities,” including federal assistance such as coronavirus relief funding, authority to exercise jurisdiction in their territory, sovereign immunity and the ability to pursue casino gaming development and provide tribal government services to citizens. Those opposing federal recognition usually raise concerns over the authenticity of tribal claims and impact on surrounding, non-tribal communities. “When the tribe takes land into trust, the land is removed from local tax rolls and is no longer regulated by the locality,” said Kirsten Carlson, associate professor of law at Wayne State University and a leading scholar on federal Indian law and legislation. “The main arguments against recognition either question the identity of the tribe or express concerns over the tribe taking revenue and power away from the local government,” Carlson said.
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The deadliest corporate crime in U.S. historyPeter Henning, a professor at Wayne State University Law School, discusses PG&E Corp. pleading guilty to involuntary manslaughter, admitting in a California courtroom that the bankrupt utility killed 84 people after its equipment ignited the deadliest wildfire in state history. June Grasso hosts the discussion.
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Michigan Supreme Court upholds throwing out Wixom murder suspect's statementsThe Michigan Supreme Court declined Friday in a close vote to hear an appeal from prosecutors whose key testimony was thrown out because police neglected to specifically inform the suspect of her right to the presence of an attorney during questioning. The seven justices disagreed about whether the high court should consider arguments that police had properly respected a suspect's Miranda rights by giving her a general advisory about having the "right to a lawyer" during questioning. The decision "really has no significance" since the Supreme Court can decline to hear a case for a variety of reasons without really opining on the arguments, said Justin Long, associate professor at Wayne State University Law School. "The police will have to follow the Court of Appeals decision if they want evidence to stick," Long said. "That is precedential and binding on all courts until another case comes up and the Supreme Court says the Court of Appeals was wrong.”
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As Detroiters take to the streets, economic inequality comes into focusDetroit boiled over this week as protesters took to the streets for mostly nonviolent demonstrations against police brutality. But the cries of racism extend long past policing policies in a city where recent health crises and economic recovery then fallout have been uneven. Experts worry the now amplified racial inequities in the economy will only worsen in the coronavirus recession as black Detroiters continue to toil for economic equity. "Most Detroiters have been disjointed from the regional economy for decades," said Peter Hammer, professor of law and director at the Damon J. Keith Center for Civil Rights at Wayne State University. "The notion that you've been abandoned, the notion that the American dream doesn't apply to you, that's not new news. Structural racism is our generation's civil rights challenge. The data is here that things are not getting better." But despite dozens of labor training programs, new business investments and fixes to the city's broken education system, the jobs weren't coming fast enough. "This is the biggest problem Detroit faces and (is) why it hasn't been revitalized beyond downtown and Midtown," Marick Masters, former director of Wayne State University's labor studies program, Labor@Wayne, told Crain's in 2015. "All the other problems devolve from this: the inability to have good schools, to have adequate lighting, the lack of infrastructure, housing, etc." "We hear a lot about institutional racism, but haven't heard from the people on the news on how to define it," said Khari Brown, an associate professor of sociology at WSU focused on race, religion and politics. "The black poor in Detroit and around the country are unique. They are poor because they don't have the economic resources, such as jobs, like other communities. They tend to live in less diverse neighborhoods with people like themselves. Not only do they live without the basic necessities, they don't know anyone that has those either."
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Rep. Amash proposes bill to end legal immunity for policeIn a letter to congressional colleagues, Libertarian Rep. Justin Amash (MI-3) said he'll be introducing a bill to do away with the law that protects police officers from being sued while doing their jobs. Sparked by the killing of George Floyd by a Minneapolis police officer, Amash said it was time for congress to open-up individual officers to legal punishments who use brutal tactics on suspects. “He's going to try to push it through the Judiciary Committee but I have my doubts as to whether that will ever happen,” Professor Peter Henning said. Henning teaches criminal law and professional responsibility at Wayne State University. “Immunity has been part of the system since the mid-1960s,” he said. “Getting rid of absolute immunity for police officers is going to be very, very, very difficult.” And that difficulty Henning says could shield the former officers in Minneapolis, including former officer Derek Chauvin who was charged with second-degree murder after kneeling on Floyd’s neck for more than 8 minutes. “We're going to see that police officer, being charged with a crime,” Henning said. “But can he interpose absolute immunity? The answer to that question may well be yes.”
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Former UAW president pleads guilty to embezzlement, racketeering chargesA former United Auto Workers president pleaded guilty Wednesday to embezzlement of union funds and racketeering, marking the highest-profile conviction yet in the government’s yearslong investigation into labor corruption within the auto industry. Gary Jones, who left the top post in November during contract talks with the Detroit auto makers, was accused earlier this year of conspiring with other UAW officials to embezzle more than $1 million to pay for private villas, expensive cigars, golf outings and other luxuries. His conviction, now the 14th in the criminal probe led by the U.S. attorney’s office in Detroit, is likely to further strengthen the Justice Department’s hand in proving—as the government contends—that corruption at the UAW was widespread and systemic, said Peter Henning, a law professor at Wayne State University. The inclusion of racketeering in the charges against Mr. Jones and other UAW officials signals prosecutors are looking to build a case under the Racketeer Influenced and Corrupt Organizations Act, known as RICO, said Henning. “Gary Jones pleading guilty is very significant” because he was the president, the highest-ranking official at the UAW,. Prosecutors can use this guilty plea against the union in a civil RICO case.”
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Opinion | George Floyd's killing, unrest a result of structural racismJohn Mogk, professor of law specializing in urban law and policy, wrote an opinion piece about structural racism. “The wanton killing of George Floyd in Minneapolis and the civil disturbances following were a predictable repetition of Detroit's rebellion in 1967 when the largest civil disturbance in American history was triggered by the abuse of African Americans by a police force that mostly was all-white. The Michigan National Guard and 82nd and 101st Airborne Divisions of the U.S. Army were required to regain control of the city. Forty-three people died and hundreds of millions in today's dollars in property damages was caused Notwithstanding the magnitude of the rebellion, the abject discrimination revealed a need for federal intervention as the country failed to learn a lesson. The root of the problem then, as it is now, is structural racism, and white police officer abuse of African Americans is merely one stark manifestation of it. Structural racism has its origin in slavery and fosters public policies, institutional practices and cultural representations that work to reinforce racial inequality for African Americans. Too many white police officers view African Americans with suspicion, interpret their actions as threatening and are quick to disregard their human rights.”
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Wayne Law students selected for Public Interest Law FellowshipsSix Wayne State University Law School students will gain experience and serve a variety of agencies this summer, thanks to the support of the 2020 Public Interest Law Fellowships. Given the current safety measures under COVID-19, all of the agencies have provided the opportunity for students to gain experience remotely. As circumstances keep evolving, they will also allow students to work onsite if it can be done safely. Each student will volunteer 40 hours a week for ten weeks, collectively providing more than 2,000 hours of service to organizations serving the public and under-represented individuals.
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Republican-led lawsuit against Gov. Whitmer heads to court todayA lawsuit against the governor heads to court Friday. GOP lawmakers claim Gov. Whitmer violated her use of emergency powers during the coronavirus pandemic. The governor calls the lawsuit "partisan games." Republicans say she should have let the legislature decide any shutdown extensions. Wayne State University Associate Law Professor Lance Gable says Whitmer may have been within her rights under the 1945 act. "Which is more general. It doesn't have a time limit. It is very broad," according to Gable.
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Wayne Law student aims for a career in health lawLaw student Elizabeth West is coming to the end of her 2L year at Wayne Law, where she will be managing editor of Law Review in her upcoming final year. West served as an assistant editor on the Wayne Law Review in her 2L year. “My experience on Wayne Law Review has enhanced my writing and editing skills, and my confidence in my research and writing abilities has grown so much,” she says. “I now feel comfortable navigating the Bluebook to find what I need when citing sources, and I’m more sure of my ability to produce quality work based on sound research.” She also enjoyed getting to know the other members of the Law Review and getting feedback from mentors. “It’s a huge honor to be working alongside so many wonderful people on the editorial board,” she says. “I’m so excited for next year, and I look forward to stepping into my new role as managing editor.”
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Judge asks whether Michael Flynn should be held in contempt for perjuryThe judge overseeing Michael Flynn’s prosecution asked whether President Donald Trump’s former national security advisor should be held in criminal contempt for perjury and named a former federal judge to argue in opposition to the government’s motion to dismiss Flynn’s case. U.S. District Judge Emmet Sullivan in Washington issued a one-page order on Wednesday appointing John Gleeson to present arguments in opposition to the government’s motion to dismiss and address whether Flynn should be held in contempt. Peter Henning, a former federal prosecutor and a law professor at Wayne State University in Detroit, said it would still be unusual for Sullivan to deny the motion to dismiss the case. “I think that is a long shot,” Henning said.
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Mergers during COVID-19 create new 'failing firm' paradigmDespite COVID-19's economic fallout, antitrust agencies continue to insist they're sticking to their normal playbooks when reviewing mergers, but as more companies struggle to survive, merging parties are likely to rely more frequently on the "failing firm" defense to convince regulators that deals that enforcers might otherwise challenge should be permitted. Given that the fallout from the pandemic will be long-lasting, enforcers around the globe are likely to face requests to permit failing firm mergers for months and perhaps years to come. In the U.S., antitrust officials have yet to indicate that the outbreak has directly impacted their decision-making on a particular merger and insist they will continue to hold failing firm defenses to a high standard. Even with traditional standards firmly in place, however, experts say the novel coronavirus and it's economic harm could prove an important part of agency considerations, including as the U.S. Department of Justice and the Federal Trade Commission weigh market forces that are now far harder to predict. The pandemic also makes it less likely that firms would be able to successfully reorganize on their own, according to Stephen Calkins, a former FTC general counsel and now professor at Wayne State University Law School. And he says the uncertainty of predicting outcomes is certain to weigh on agency decision-making. "The standards are unchanged and the standards are extremely demanding. But this is such an extremely different world that agencies and courts are going to be more reluctant to block a merger," Calkins said.
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Why Gov. Whitmer is likely to win the GOP lawsuit over her emergency powersThe lawsuit Republican lawmakers filed Wednesday over Democratic Gov. Gretchen Whitmer's use of emergency powers during the coronavirus pandemic appears to be a loser, according to three Michigan law professors. The lawsuit argues that Whitmer's emergency orders, including the stay-at-home order that runs through May 28, should be declared invalid because of lack of statutory authority. The suit argues one law Whitmer relies on applies only to local emergencies, rather than a statewide emergency, and the other one requires legislative approval — which Whitmer does not have — when it extends beyond 28 days. "Courts have routinely upheld very broad and vague delegations of power from the Legislature to the executive. I don't think that the Emergency Powers of Governor Act or the governor's interpretation of it violate any constitutional limits on delegation," said Lance Gable, associate professor at Wayne State University Law School who specializes in public health law. Gable said although the two emergency statutes give the governor broad powers to work autonomously, it will become increasingly important as the public health crisis continues for the executive and legislative branches to work cooperatively. Doing so will allow Michigan to ramp up testing and contact tracing and eventually impose much more targeted and intermittent orders that will allow many Michiganders to return to work, Gable said.
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More states likely to adopt mail-in voting, says legal expertDespite the controversy that surrounded the push by the Republican National Committee to deny the extension for mail-in voting in Wisconsin’s primary election and the subsequent 5-4 decision by the U.S. Supreme Court in favor of the RNC, the election’s outcome defied all predictions, said Robert Sedler, constitutional law scholar and distinguished professor of law at Wayne State Law School. “The interesting thing is that the Republicans outsmarted themselves,” Sedler said in a recent phone interview with The Legal News. “They thought this would keep the vote from Milwaukee and Madison down. And apparently it didn’t,” Sedler reasoned, noting that despite the ruling, the Republican incumbent who was expected to keep his seat on Wisconsin’s supreme court lost by more than 10 percentage points. Regardless of the status of COVID-19 by the November election, Sedler said he expects more states will have added mail-in voting as an alternative to in-person voting. “I think one of the consequences of this is that there is going to be an increased movement in the states to increase mail-in voting and online voting,” Sedler said. “And of course, in Michigan, as a result of ‘Prop 3’ anybody can get a mail-in ballot. That’s going to make it a lot easier for working class people who will not have to stand in long lines anymore.”
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Levin Center at Wayne Law receives $1 million grant from Hewlett FoundationThe Levin Center at Wayne State University Law School is the recipient of a three-year, $1 million grant from the William and Flora Hewlett Foundation to continue its work advancing accountability and bipartisanship in U.S. governance. The grant is the Levin Center’s largest to date from a private foundation. “The Levin Center is reinvigorating the legislative oversight process at all levels of government through bipartisan training, academic research and action,” said Wayne State University Law School Dean Richard A. Bierschbach. “We are deeply grateful to the Hewlett Foundation for recognizing the critical nature of the Levin Center’s work and for Hewlett’s continued investment in the center’s mission.” Since its founding in 2015, the center has, in collaboration with the Project on Government Oversight and The Lugar Center, trained more than 250 congressional staff in the techniques of bipartisan, fact-based oversight. “The Levin Center is honored and inspired by this tremendous support from the Hewlett Foundation which will help it become an even stronger force in reestablishing and expanding bipartisan, fact-based oversight in Congress and across the United States,” said former U.S. Sen. Carl Levin, founder and chair of the Levin Center.
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The Digital Gilded Age’s Natural AlliesSanjukta Paul, assistant professor at Wayne State University Law School, wrote an article for Project Syndicate on antitrust law and the digital economy. "With major tech companies having disrupted labor markets and amassed overwhelming market power, a growing chorus is calling for both stronger antitrust enforcement and new protections for workers. And while such demands may have been in tension with each other in the past, they now represent two sides of the same reformist coin."
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Law student is interested in insurance coverage and defenseJenna Hajhassan attended middle school in her native country of Lebanon, a developing country that lacks infrastructure, especially availability of education. “Those who are not top earners often lack the funds to send their children to quality schools. I was lucky enough to attend a private school—a privilege my parents and grandparents did not have,” she says. “It was my experiences there that led me to develop a genuine appreciation for learning.” “My time overseas made me realize being an American is a privilege, and the educational resources available to us are a gift,” she says. “I chose law because the field is so expansive—the law is all around us. It’s in the contracts we enter into daily, our interactions with each other, and so much more. Hajhassan earned her undergrad degree in psychology, magna cum laude, from Wayne State University. She continued as a “Wayne Warrior” for law school where she is approaching the end of her 2L year. “I’m proud to be a part of the Wayne Law family. Wayne Law offers an incredible network of alumni, which I’ve found look out for each other. I’ve learned from several brilliant professors who made me feel valued and respected. Wayne Law has given me the opportunity to go beyond my comfort zone and experience new things. The advocacy, critical thinking, and practical skills I’ve developed as a student are invaluable.”
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Growing opposition ruptures unity behind Whitmer's COVID-19 responseOnce a source of unity, Michigan Gov. Gretchen Whitmer's response to the COVID-19 pandemic is facing growing opposition from critics who say she's gone too far. The pushback mounted Tuesday as thousands signed an online recall petition against the Democratic governor, four residents sued in federal court in a bid to unravel parts of the stay-at-home executive order as unconstitutional overreaches and six Michigan U.S. House Republicans urged changes as they called her new order "far too restrictive." The lawsuit runs up against firmly established powers available to the governor in the interest of public health in an emergency, said Robert Sedler, a Wayne State University constitutional law professor. "As far as the Constitution is concerned, the state of Michigan has enormous discretion in deciding what is necessary during a pandemic to protect the public health, safety and welfare," Sedler said. "The suit’s not going to go anywhere.”
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Uber wants to redefine unemployment. More than 50 labor groups are fighting back.A coalition of about 50 labor groups is asking congressional leaders to reject Uber Chief Executive Dara Khosrowshahi’s proposal for a new legal category that would allow the company to keep treating its workers as independent contractors while affording them partial employee benefits. Labor advocates have argued Uber does not provide as flexible a source of income as the company maintains. In a letter to Congress, Sanjukta Paul, an assistant law professor at Wayne State University, and Marshall Steinbaum, an assistant economics professor at the University of Utah, wrote that if the federal government pays for Uber and Lyft drivers’ unemployment insurance it should incentivize “states to side with the platforms on employment status, since doing so unlocks funds they would otherwise have to collect from the platforms.” The letter said that if the companies are not mandated to pay into a state’s unemployment funds as part of the stimulus act, they should be required to commit to reclassifying the workers as employees in exchange for the federal support.
