News and Announcements
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Surge in Detroit COVID-19 patients could lead to rationing, do not resuscitate ordersThe Henry Ford Health System has developed a policy officials say they hope to never have to use in which a scarce supply of ventilators would be reserved for patients who have the best chance of getting better. Other hospital systems nationwide are debating whether to order that COVID-19 patients who are dying should not be resuscitated, because the process exposes health personnel and equipment to so much infection they might not be able to help other patients. They add there is a poor chance that many of these patients will survive for very long even if all measures are taken to prolong their live. Lance Gable, a Wayne State University law professor, is an internationally-recognized expert on bioethics, and helped Michigan’s state government develop guidelines for using scare medical resources during a public health emergency. “We are going to have to make some tough decisions about how to best allocate resources,” Gable said. -
Implications of border closure with Mexico and CanadaLast week President Donald Trump announced the closure of the U.S./Mexico border to stem the spread of the coronavirus. Mexico is also suspending air travel from Europe. For more on this, KCBS news anchors Jeff Bell and Patti Reising spoke with Lance Gable, associate professor of law at Wayne State University Law School.
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Reports of the death of congressional oversight are greatly exaggeratedKirsten Carlson, associate professor of law and adjunct associate professor of political science, wrote an article for The Conversation about the oversight relationship between the branches of government. Carlson wrote: “For over 200 years, Congress and the executive branch have maintained a delicate balance of power. When disputes between the two branches have arisen, they have compromised and turned to the courts only as a last resort. Recently, an appeals court ruled in House Committee on the Judiciary v. McGahn that courts do not have authority to enforce congressional subpoenas. In this case, it was a subpoena for a former White House legal counsel to testify before a congressional committee. Contrary to the recent alarmist response that Congress could no longer hold the president accountable, the decision in McGahn was not an unequivocal victory for either side. It was a reminder, instead, that they have constitutional obligations to work together. Whatever the D.C. Circuit decides when it rehears the case in late April, that point – that the legislative and executive branches have that obligation to work together – will not change.”
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One Change That Could Make American Criminal Justice FairerWilliam Ortman, assistant professor at Wayne Law, co-wrote an article with Daniel Epps, associate professor of law at Washington University in St. Louis, about creating a position of “defender general.” “As we argue in a forthcoming article in the University of Pennsylvania Law Review, the solution to these distortions is to create a public Office of the Defender General that would be responsible for advocating for the collective interests of criminal defendants in every Supreme Court criminal case—in some cases as counsel for individual defendants, and in others as an amicus alongside the lawyers for the parties.”
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Indian Country leaders urge Native people to be counted in 2020 CensusKirsten Carlson, associate professor of law and adjunct associate professor of political science, wrote an article for The Conversation about the 2020 Census and the challenge of counting Native Americans living on reservations and in traditional villages, the most undercounted people in the 2010 U.S. Census. The Census Bureau estimates that it undercounted American Indians living on reservations and Alaska Natives in villages by approximately 4.9% in 2010. “This year, tribal leaders throughout the U.S. are urging American Indians and Alaska Natives to be seen and counted in the 2020 U.S. Census,” Carlson wrote. “Native leaders across the U.S. have been working to educate Native people about the importance of being counted in the 2020 U.S. Census. The National Congress of the American Indian, the oldest, largest and most representative American Indian and Alaska Native organization, has undertaken a public education campaign and designed a toolkit to help tribes and native people participate in the Census. Tribes have devoted considerable energy and resources to preventing another undercount. Beginning in 2015, they have consulted with the Census Bureau on how to build collaborative relationships to overcome the barriers to counting people in Indian Country. Tribal leaders are using their expertise in reaching their own communities by developing outreach plans to encourage tribal participation and hiring tribal citizens to collect Census data. For tribes, an accurate count will enhance their ability to exercise sovereignty over their lands and people.
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Off in crucial Michigan PrimaryMichigan Democrats seek to reclaim the electoral grip they held on the state for decades until President Donald Trump won it by less than 11,000 votes in 2016, the narrowest margin of victory in the state’s presidential election history and first by a Republican since 1988. Primary voters on Tuesday will decide between Vermont Senator Bernie Sanders and former Vice President Joe Biden as they choose the Democratic candidate they think has the best chance to unseat the incumbent president in November. John Mogk, law professor at Wayne State University, thinks Biden will be able to pull off a big win in the Michigan primary. “I think it’s his to lose at this point,” he said. Sanders narrowly won the 2016 Michigan primary over Democratic rival Hillary Clinton by less than 18,000 votes in what was a stunning victory, considering the polling predicted an easy victory for the former Secretary of State. Mogk suggested that magic may not be as strong this time around. “Biden appears to have the momentum and strength to overcome whatever Bernie is able to muster to continue his campaign,” he said.
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Iconic Chicken Shack pecks away at expansion, and goes to courtChicken Shack is making plans to spread its wings, expanding in Michigan and beyond — but first, it has to fend off a company in California that serves smoothies. Michigan's largest home-grown chain of chicken restaurants will open franchises in Bloomfield Hills in March and Ypsilanti later in the year, bringing its flock in Metro Detroit to 23. More stores will soon follow US-23 northward and I-96 to the west, said vice president Neil Sobeck, a grandson of the founders. But the most pressing order of business is establishing who rules the roost when it comes to the Sobeck family name. Sobeck Enterprises Inc., the parent company of Chicken Shack, filed suit in U.S. District Court last week against a smoothie chain called Robeks — a defensive and thoroughly modern move for a 64-year-old company whose 92-year-old matriarch still shows up for work. "Trademark rights come about through the priority of use, not through registration," said Wayne State University law professor John Rothchild. Other considerations include what's typically capsulized as "sight, sound and meaning," he said. The all-capitals SOBECK'S on carry-out menus bears little resemblance to the hummingbird-accented Robeks on 80-plus storefronts, and "to me as a consumer, I would say they don't sound very much alike," Rothchild said. Trademark owners often err on the side of aggression, he noted, because "failure to police the use of your mark by others can result in losing trademark rights."
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Wayne Law launches free pre-law summer institute for DetroitersUndergraduate students interested in law are eligible to apply for Wayne State University Law School’s new Damon J. Keith Pre-Law Summer Institute, thanks to a grant of more than $59,000 from AccessLex Institute. The six-week summer program, which is free to all participants, is open to rising juniors and seniors who are pursuing an undergraduate degree at any institution. Sophomores participating in a 3+3 program at Wayne State or Oakland University are also eligible to apply. Applicants must have graduated from a Detroit Public Schools Community District Public High School. “We are very grateful to the AccessLex Institute for their support of this unique opportunity at Wayne Law,” said Wayne Law Dean Richard A. Bierschbach. “To host this program at the Law School in the Damon J. Keith Center for Civil Rights is particularly meaningful. We look forward to a summer filled with robust programming and opportunities that will give graduates of Detroit Public Schools exclusive insight into law school and the legal profession before they even fill out their applications.”
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'It's a big problem.' Years of X-ray evidence disappeared from the Wayne Co. Medical Examiner's OfficeSeveral years' worth of X-rays vanished after a computer crash at the Wayne County Medical Examiner’s office. The loss of evidence already impacted at least one homicide trial, and lawyers and pathologists say this is a significant problem. Wayne County officials seem to be downplaying the loss of X-rays, even admitting they were not in the habit of keeping x-rays as part of an official autopsy file. “The government has to turn that over. You can’t simply say this is no big deal, we don’t really care about it,” Peter Henning, a former federal prosecutor and Wayne State Law Professor, said. Henning says the county has an obligation to preserve all evidence, including x-rays. “Because if the Medical Examiner is going to testify, there may be a basis to cross examine the medical examiner, saying look at these x-rays, how can you confirm the cause of death,” Henning added. “That’s crucial to the defense. They want all the Brady material that the government has in its possession. So this is what keeps prosecutors up at night: that you don’t know for sure what is Brady material, and therefore essentially you turn over everything. That’s the rule that the supreme court has set down: you have to provide material that might prove the innocence of the defendant or will be helpful in cross examining a witness.”
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Congress fixes – just a bit – the unpopular, ‘unfair’ rule that stopped injured service members from suing for damagesRobert M. Ackerman, professor of law, wrote an article for The Conversation about recent legislation addressing the law barring members of the military from collecting damages from the federal government for injuries off the battlefield. Ackerman wrote: “The legislation represents progress for injured service members – but still limits who among them may press for damages.” The new law does not cover everyone. That’s because the legislation only allows claims by those who allege to have been victims of medical malpractice by military health care providers. And claims cannot be brought in federal court, as is normally the case under the Federal Tort Claims Act. Rather, they must be pursued through a Defense Department administrative procedure under regulations that the Department of Defense is required to draft.
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Proposed SCOTUS ‘Defender General’ Faces Hurdles, Lawyers SayA proposal to put advocacy for criminal defendants on more equal footing at the U.S. Supreme Court could move the law in a favorable direction for them, but some lawyers worry it may lead to discarding individual cases for the greater good. The “Defender General,” professors Daniel Epps of Washington University School of Law, and William Ortman of Wayne State University Law School, explain in an upcoming law review article, would be a “public official charged with representing the collective interests of criminal defendants before the Supreme Court of the United States.” They say the office would counter the weight of the U.S. solicitor general’s office, which represents the government at the court and is staffed by top lawyers. The office could attract experienced criminal defense attorneys and Supreme Court litigators because of the prestige of Supreme Court practice, the article said.
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Spotlight on the News: A scholarly look at the Trump impeachment trialSpotlight on the News took a scholarly look inside the Trump impeachment trial. What does our U.S. Constitution really mean? Among the guests was Professor Kirsten Matoy Carlson, of Wayne State University’s Law School.
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A proposal to offset prosecutors’ power: The ‘Defender General’Criminal defense lawyers, they say, often fail to put aside ambition and vanity when their cases reach the Supreme Court. These lawyers, the justices say, should step aside and let Supreme Court specialists handle the arguments. Trial lawyers should put their clients’ interests first, Justice Sonia Sotomayor told Reuters in 2014. “I think it’s malpractice for any lawyer who thinks, ‘This is my one shot before the Supreme Court, and I have to take it,’” she said. Making sure criminal defendants have consistently able lawyers at the Supreme Court would be a start. But a new article published in the University of Pennsylvania Law Review by Professors Daniel Epps of Washington University in St. Louis and William Ortman of Wayne State University says more is needed. “Quite simply,” they wrote, “criminal litigation in the Supreme Court is not a game played on a level playing field.” The problem, they say, is structural. Prosecutors can choose which cases to appeal, with an eye toward shaping the law rather than preserving every conviction. Criminal lawyers, however skilled, must defend their individual clients. “Government lawyers can act strategically to play for bigger long-term victories, while defense lawyers must zealously advocate for the interests of their clients — even when they conflict with the interests of criminal defendants as a whole,” the authors wrote. “The prosecution’s advantages likely distort the law on the margins.” The article, “The Defender General,” proposes the creation of a new office to counterbalance that of the solicitor general, the Justice Department official who represents the federal government in the Supreme Court. The solicitor general’s office is particularly skilled at making strategic litigation choices, and it plays a role in about three-quarters of criminal cases heard by the court.
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Levin Center launches website on congressional oversight case lawThe Levin Center at Wayne State University Law School Tuesday launched “Emerging Case Law on Congressional Oversight,” a website that provides free public access to detailed information and updates on current court cases examining the right of Congress to obtain information to carry out its constitutional responsibilities. “In light of the unprecedented number of ongoing disputes between Congress and the president over the right of Congress to obtain information, the Levin Center at Wayne Law is now making it easier to follow what’s going on in the courts,” said former U.S. Sen. Carl Levin, chair of the center. “As far as I know, the country has never had so many congressional oversight cases going through the courts at the same time. Three of the cases are headed to the Supreme Court, and more may follow. Our new website offers support to those in the legal community, academia, Washington, the media, and public who want to track congressional oversight cases.”
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Wayne Law professor named among most influential corporate board directorsWayne State University Law School Professor Katherine White has been named among WomenInc. Magazine’s 2019 Most Influential Corporate Board Directors for her service on the Board of Directors for Old National Bancorp. White joins leading corporate board directors from across the country, including Mary Barra, chairman and CEO of General Motors. WomenInc.’s winter edition features a directory of more than 700 directors serving on the boards of S&P 1000/Mid-Cap publicly held companies and is the most comprehensive listing of women executives, influencers and achievers contributing leadership to corporate boards. White joined the Wayne Law faculty in 1996. She was appointed by the secretary of commerce to serve on the U.S. Patent and Trademark Office Patent Public Advisory Committee (2000-02) and is also currently a member of the U.S. Department of Agriculture’s Plant Variety Protection Office Advisory Board. In addition, she has been a member of the University of Michigan Board of Regents since 1999. She joined the Old National Bancorp Board of Directors in 2015. White is a Fulbright senior scholar (Germany), a White House fellow (2001-02), and a registered patent attorney.
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Michigan Democrats take aim at Nestlé. Farmers urge cautionA Swiss company’s water withdrawals in northern Michigan are again stoking long-simmering tensions, with the issue becoming part of a larger debate over who controls water diversion across the Great Lakes region. In a one-two punch, Nestlé Waters North America, Inc. is the target of two state bills designed to increase the state’s control over groundwater supplies shortly after the company lost a court appeal related to its plans to increase pumping rates. It’s the latest turn in a longstanding dispute over whether Nestlé’s groundwater extraction for Ice Mountain bottled water is an acceptable use of the state’s public water supplies. Rep. Yousef Rabhi, D-Ann Arbor, told Bridge that the court ruling strengthens the argument behind a bill he is sponsoring that would make groundwater part of the public trust. Groundwater has historically been excluded from public trust doctrine because Michigan courts have limited public trust waters as those that are “navigable,” said Noah Hall, a law professor at Wayne State University who specializes in water regulations. While Rabhi said the bill would expand opportunities for litigation against water withdrawals, Hall said he is less confident it would play out that smoothly. “It’s hard to see it being a game-changer on any specific water use that’s in play right now,” he said. “No court has really answered head-on the fundamental question of whether bottling and selling water violates public trust” regardless of source. Hall agreed that the bills could have unintended consequences. “If you want to protect groundwater as a natural resource from overuse, then you have to be willing to take on [agriculture] and other water users which are the major users of groundwater,” Hall said. “If what you're trying to do is ban bottled water, then ban bottled water,” Hall suggested. “It seems a little silly to try to craft a protection for water that protects water from one use and not others, especially when [bottled water] is not a particularly large use.”
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The power of a subpoenaKirsten Carlson, associate professor of law, talked about the power and use of subpoenas during the impeachment process. The House moves forward on impeachment, but some subpoenas are still in the air. Energy Secretary Rick Perry declined to provide documents, as did Defense Secretary Mark Esper, Vice President Pence, Chief of Staff Mick Mulvaney and Secretary of State Mike Pompeo. In fact, President Trump has often stiffed the U.S. Congress when it sought documents in testimony. Has this Congress made effective use of its subpoena powers in your judgment? “I think they're doing the best they can. You know, the subpoena power is an important part of Congress's investigative power. It's also sort of a last resort. Congressional committees usually try to get the information willingly from the executive branch. And historically, presidents have been willing to negotiate. And so they haven't had to use the subpoena power as heavily as this Congress has had to. We have a president that's on record saying, he's not going to negotiate with Congress, so Congress doesn't have another option. They've got to subpoena the documents and information that they want, and they've got to work it through the courts to get them enforced.”
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Impeachment: Two quotes that defined the first day of public hearingsKirsten Carlson, Wayne State University associate professor of law and adjunct associate professor of political science, and Chris Edelson, assistant professor of government, American University School of Public Affairs, wrote an article on the impeachment proceedings. Wednesday was the first day of public hearings in the House impeachment inquiry. Two career diplomats – William B. Taylor Jr., acting ambassador to Ukraine, and George Kent, deputy assistant secretary of state for European and Eurasian affairs – gave testimony to the House Intelligence Committee. Two scholars listened, and each picked one quote to analyze. “What we will witness today is a televised theatrical performance staged by the Democrats”. - Rep. Devin Nunes, Republican of California. “In this highly partisan era, Rep. Nunes’ words come as no surprise,” Carlson wrote. “Nunes was attempting to discredit the impeachment inquiry as a partisan attack on President Donald Trump. But his emphasis on partisanship obscures a vital function of Congress in protecting the public and preserving democratic government: oversight. Oversight is part of the U.S. Constitution’s carefully orchestrated balance of power among the three branches of government. The Constitution authorizes, if not obligates, Congress to exercise oversight over the executive branch.”
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Courts have avoided refereeing between Congress and the president, but Trump may force them to wade inKirsten Carlson, associate professor of law and adjunct associate professor of political science, wrote an article for The Conversation about President Trump’s refusal to hand over records to Congress and allow executive branch employees to provide information and testimony to Congress during the impeachment battle. Carlson calls these actions “the strongest test yet of legal principles that over the past 200 years have not yet been fully defined by U.S. courts.”
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Antitrust experts decry DOJ’s ‘outrageous’ stance in Writers Guild caseSeveral experts on antitrust law have expressed concern at the stance taken by the Department of Justice in the ongoing legal feud between Hollywood writers and their agents. Three agencies have sued the Writers Guild of America (WGA) for alleged violations of antitrust law. A key hearing will be held in federal court on Friday, as a judge weighs whether to grant the union’s motion to dismiss the suit. Last week, the DOJ’s Antitrust Division filed a brief siding with the agencies, and arguing that the union may have violated the Sherman Act. “It’s outrageous,” said Sanjukta Paul, a professor at Wayne State University Law School who studies the intersection of labor and antitrust law. “This is not a neutral reading of the law.” Paul said the brief in the WGA case goes farther than the arguments the DOJ has made in other cases. “I don’t think this is about the Writers Guild,” she said. “It’s not that they care fundamentally about how the talent agency ecosystem works in Hollywood. It’s a signal that labor coordination should be disfavored in favor of corporate power.”
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Second chance: Wayne Law grad overcomes early troubles to launch legal careerOn Nov. 22, Wayne Law graduate Bob VanSumeren was sworn in before Hon. Michael Smith, the same judge who sentenced him in 1999 to 70 to 240 months in prison, after VanSumeren robbed a gas station with a BB gun, followed by an unarmed robbery of a bank. The swearing-in, almost 20 years to the day, was in the same courthouse, First Circuit Court in Hillsdale. “The judge didn’t remember me,” VanSumeren says. “I don’t know if he knows how largely he loomed in my mind for many years. I met with him before the ceremony, to make sure he was in fact okay with all of it.’ After his release in 2005, he studied at Jackson College, then headed to Western Michigan University to earn his undergraduate degree in comparative religion, sociology and psychology; a master’s degree in comparative religion; and a graduate certificate in spirituality, culture and health. His next step was Wayne State University Law School, where he earned his juris doctor in 2018. He is deeply appreciative of his law school experience. “Wayne Law was supportive of me—when no other school would admit me because of my past, they took a chance on me,” he says. “I didn’t often tell my story, but some knew it. The professors who knew about my past were caring and helpful. The administration was great, especially Felicia Thomas, then assistant dean of Student Affairs. “If I had it to do over again, I’d spend less time worrying about what others might think about me, because the truth is, the folks at Wayne Law were often a lot more accepting of me than I was of myself,” he adds. “I think sometimes people in my position—formerly incarcerated, people with troubled pasts—hold on to things longer than necessary. I can look back and see instances where I was my own barrier.”
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Wayne Law holds rank as Best Value Law SchoolFor the sixth consecutive year, Wayne State University Law School has been recognized as a Best Value Law School by The National Jurist and its sister publication, preLaw magazine. Of the 58 law schools on the list for 2019, Wayne Law was the only Michigan law school included. The ranking is designed to recognize the law schools where graduates have excellent chances of passing the bar and getting a legal job without taking on a ton of debt, according to the publication. Criteria for selection includes ultimate bar pass rating and two-year pass rate, employment rate, tuition, cost of living and average student debt accumulation. preLaw magazine also recognized Wayne Law among the top law schools in the category of Business Law.
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The 1974 Supreme Court Ruling On Detroit School Busing That Worsened SegregationIt’s the early 1970’s. The City of Detroit is still licking its wounds after that black day in July of 1967. White flight to the suburbs is in full effect and, as those families moved out, Detroit’s racial composition began to change. One of the places that was apparent was in the city’s public school system. The NAACP filed a suit challenging lawmakers on the issue, alleging that school inequality reflected the various housing policies and economic redlining present in the city. The key question: How do you integrate a district that, on its own, is becoming less diverse? The solution, known as interdistrict busing, where Detroit public school students cross city borders to attend schools in the suburbs and vice versa, led to the 1974 US Supreme Court case known as Milliken v. Bradley. Peter Hammer, law professor and director of the Damon J. Keith Center for Civil Rights, says the NAACP argued that school integration could never occur where those discriminatory factors are present. “Nobody historically argues about the fact that there was discrimination,” says Hammer. ”The whole controversy in Milliken deals with the remedy.” WDET’s Alex McLenon spoke with Hammer about Milliken v. Bradley, the evolution of regional busing in southeast Michigan, and the lasting legacy of the decision on Detroit Public Schools.
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Impeachment process explained if President Trump is convictedRobert Sedler, Wayne State University professor and Constitutional law expert, talked about the impeachment process and what would happen if President Trump is removed from office. “Under the Constitution the President is succeeded by the Vice President. That happened in 1974 when (President) Nixon, knowing that there would be a two-thirds vote in the Senate to convict him, chose to resign and Gerald Ford of Michigan became President…If President Trump were impeached and convicted, Vice President Pence would succeed to the presidency.
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Make antitrust democratic again!Sanjukta Paul, assistant professor of law at Wayne State University, and Sandeep Vaheesan, legal director at the Open Markets Institute, co-wrote a piece calling on “remaking antitrust law and restoring its historical purpose.”
