WMU-Cooley Law Review
The Western Michigan University Thomas M. Cooley Law Review board of editors is pleased to bring you the second issue in Volume 32. This is a momentous occasion, as you are now holding the first issue published under the title Western Michigan University Thomas M. Cooley Law Review, following the law school's affiliation with Western Michigan University. Our journal was first published in 1982 under the title Cooley Law Review, and the title Thomas M. Cooley Law Review was adopted with Volume 8 in 1991.
Distinguished Brief Award
The Distinguished Brief Award recognizes the most scholarly briefs filed before the Michigan Supreme Court, as determined by a panel of eminent jurists. Here are this year’s recipients,
International Union v. Yaw, addresses a worker's right to opt out of paying union dues.
The Michigan Legislature enacted Freedom to Work legislation that provides every Michigan worker, public and private, the opportunity to opt-out of membership in a union. The union filed suit, alleging that the Freedom to Work legislation’s applicability to state-classified public employees was unconstitutional. The union argued that the Michigan Constitution granted the Civil Service Commission exclusive authority to set all conditions of employment. The Michigan Chamber of Commerce argued that the Constitution grants the Legislature express authority to enact laws regarding employment, and that the Civil Service Commission’s authority is merely the complementary power to "regulate" such conditions. Alternatively, the Chamber of Commerce argued that compulsory membership in a union is not a "condition of employment" for purposes of the Civil Service Commission’s authority. The Michigan Supreme Court held that the Civil Service Commission lacked the authority to require collection of agency shop fees.
Ford Motor Co. v. Mich. Dep't of Treasury addresses tax-refund-claim filing dates.
At issue is when did the taxpayer, Ford, first made a tax refund claim? Under current law, certain tax refund claims accrue statutory interest after 45 days if they remain unpaid. Ford argued that by marking an "X" next to the phrase "disagrees with this determination" on its response to a preliminary audit determination letter, it had requested a refund, and, therefore, that interest began to accrue 45 days later. Whereas, the Michigan Department of Treasury contends Ford first made its refund claim when it filed a complaint in the Michigan Court of Claims nearly three months later that affirmatively asked for a refund. In the end, the Michigan Supreme Court held that Ford’s initial letter was a sufficient claim to begin the 45-day waiting period for accrual of interest.
The State's brief addressed the question whether the U.S. Supreme Court's decision in Miller v. Alabama applied retroactively to cases that were final on direct review at the time Miller was decided. In Miller, the Court held that a state cannot impose a mandatory sentence of life without parole on juveniles who committed murder without a process that enabled the sentencing court to consider an offender’s youth and other characteristics before imposing a particular penalty. The Attorney General argued that under federal law this decision does not apply retroactively, contending that the change was procedural and not substantive, and was not a watershed change of procedure. The Attorney General also argued that the change did not apply retroactively under Michigan’s rules of retroactivity. The Michigan Supreme Court held that the United States Supreme Court’s decision in Miller does not apply retroactively.
Speeches & Lectures
Kenneth E. Jull
Kenneth E. Jull, counsel at Gardiner Roberts LLP in Toronto, gave the Annual Krinock Lecture in Toronto, Ontario, in 2014. His speech provides insight into global anti-corruption compliance. Global corruption is present in many multinational business transactions. Corruption can be as innocuous as offering 30-year-old Macallan scotch or an iPod to Vietnamese government officials in celebration of completion of a project’s first phase and to promote the next phase. Or it is as blatant as giving large cash sums to Indian government officials in the belief that bribery is commonplace and just another cost of doing business when seeking trade-deals abroad. During this talk, while referring to R. v. Karigar, Mr. Jull walked his audience through the elements of the Canadian Corruption of Foreign Public Officials Act to show how it is used as a deterrent against corrupting foreign government officials who must sign off on trade deals.
Jim Donegan, former United States Consul General to New Zealand, gave the Annual Krinock Lecture at the University of Waikato Law School in Hamilton, New Zealand, in 2014. His speech provides insight into why the United Nations (U.N.) remains a key institution for protecting and improving how we live together as a global society.
Based on decades of formal diplomatic relations, the United States and New Zealand work together effortlessly in many areas because their core values are largely the same. These areas include trade, science, and peacekeeping. The United States and New Zealand, along with the other U.N. member nations, are equally committed to ensuring that the U.N. retains a position of global leadership. As such, the United States, New Zealand, and the U.N. focus their attention on human rights, peace keeping, nuclear non-proliferation and disarmament, climate change, and ending sexual violence. This makes the U.N. and its actions indispensable when combatting these issues.
Human trafficking is modern-day slavery. Awareness and activism for human-trafficking victims has increased in the past decade, but one group of victims is consistently overlooked: the children born to sex-trafficking victims. No laws or resources are committed to specifically addressing these children’s needs. Traditional resources that many single mothers depend on for child support are often inaccessible to human-trafficking victims: the most prevalent is support payments. Victims service an average of 10 to 15 people who pay for sex (“Johns”) each day. This makes it nearly impossible to establish a child’s paternity, which is required to collect child-support payments. Even in the unlikely event that paternity can be established, the probability that a victim will be able to enforce a court-ordered judgment against a John is slight.
This Comment addresses federal and state legislative acts with an emphasis on Florida’s state laws. Reforming forfeited-asset legislation in Florida can create an accessible, viable, and self-sustaining resource for sex-trafficking victims with children. This Comment advocates developing specific legal remedies that will better address the needs of human-trafficking victims and their children.
Researchers' Privilege: Full Disclosure
Dr. Frank C. Woodside, III, & Michael J. Gray
With an ever-growing number of academic journals, there has been a corresponding increase in the number of reports that these journals are publishing articles based on questionable methodology. Many published studies contain improper statistical conclusions, flawed methodology, and results that cannot be replicated. Due to the spread of "pay-to-publish" and low-quality-academic journals, the epidemic of faulty research has become worse.
This Article analyzes how the so-called "researchers' privilege" allows faulty research to go undetected and delineates the reasons why it is difficult to evaluate published research findings without access to the underlying-research information. Then this Article analyzes the law regarding researchers' ability to withhold research information based on a "researchers' privilege." Finally, this Article addresses why the courts should favor disclosure with confidential information being addressed through confidentiality orders.
The Family and Medical Leave Act (FMLA) allows eligible employees to take unpaid leave to care for a spouse, child, or parent with a serious ailment. Courts have been particularly troubled when employees take leave to provide unconventional care. In these situations, courts frequently interpret FMLA-authorized care narrowly and deprive coverage accordingly. Narrow interpretation disregards the intent of the FMLA: to help working caregivers find balance between employment and family obligations.
This Comment endorses broad interpretation and proposes a newly-crafted, three-part test for courts to apply when analyzing FMLA care. This test requires an employee to prove that the family member in question had a time-sensitive medical need, that the employee's activity was performed with intent to serve that medical need, and that the employee did confer a likely benefit to the family member related to that need. This new approach evaluates FMLA care more thoroughly and generates more comprehensive coverage for employees, which will better effectuate FMLA-policy goals.
n Northrup v. City of Toledo Police Department, the United States Court of Appeals for the Sixth Circuit created a bright line rule for unreasonable seizures of citizens who are openly carrying firearms. Read the analysis by J.D. Baldwin with contributions by Prof. Christopher Hastings.
The Law Review publishes three issues a year - This is the Michaelmas 2014 edition. The articles from this issue cover a variety of topics. The first article discusses an important legal issue as technology use becomes rampant: social-media discovery. The next article highlights the forfeiture-by-wrongdoing doctrine and what burden of proof is required for the doctrine to apply. The third article focuses on firearms-identification evidence, and this issue also contains a student-written piece discussing the First Amendment issues with Bradley Manning’s WikiLeaks trial.
In Conlon v. InterVarsity Christian Fellowship/USA, the United States Court of Appeals for the Sixth Circuit provided additional direction for the use of the ministerial exception, which precludes application of employment-discrimination laws if the employer is a religious institution and the employee qualifies as a minister. Read the analysis by Scott Sawyer with contributions by Prof. Toree Randall.
In DeBoer v. Snyder, a lesbian couple initially challenged Michigan's ban on adoption by same-sex couples. But this case morphed into an argument about a larger issue; the couple claimed that the State's same-sex marriage ban is unconstitutional. Read the analysis by Candis Najor with contributions by Prof. Schindler.
Greg Coleman, partner at Critton, Luttier, and Coleman, a law firm in West Palm Beach, Florida, and current President of the Florida Bar was interviewed by Law Review member Jerrod Simpson. President Coleman talks about technology, the bar exam, diversity, access to justice, and ethics. Listen to the full interview:
The ABA selected the WMU-Cooley Law Review to write the Media Alerts for the 6th Circuit. Several Law Review members volunteer to write them. The Media Alerts provides reporters, lawyers, educators, and the public with accurate, unbiased analysis of newsworthy and legally significant cases pending in or decided by the federal courts of appeals.
The Law Review publishes three issues a year - This is the 2014 Symposium Edition featuring: State of Madness: Mental Health and Gun Regulations; A Liberal’s Case for the Second Amendment; and Gun Owners, Gun Legislation, and Compromise.