Welcome to the Notes Office
A primary responsibility of Associate Editors on the Michigan Law Review is writing a publishable Note. This is a unique opportunity to explore an interesting legal controversy and propose a creative solution to the problem. Authoring and publishing a dynamic, well-reasoned piece of scholarship can be personally fulfilling and professionally rewarding. While publication requires a sizable amount of work, every Associate Editor has the ability to write an excellent Note and may even be able to obtain course credit for the endeavor.
Unlike many of our peer law reviews, editors of the Michigan Law Review do not compete with each other to get their Notes published. Every editor of the Law Review is entitled to publish in our journal if he or she produces scholarship of publishable quality, regardless of how many other Notes are slated for publication. To this end, the editors in the Note Office are committed to working with each Associate Editor individually, assisting with each stage of the publication process.
Current Student Scholarship
Nathan Somogie, Issue 1 - Failure of a “Basic Assumption”: The Emerging Standard for Excuse Under MAE Provisions
Eric A. White, Issue 1 - Examining Presidential Power Through the Rubric of Equity
Amie L. Medley, Issue 2 - A Sea of Confusion: The Shipowner’s Limitation of Liability Act as an Independent Basis for Admiralty Jurisdiction
Steven Serajeddini, Issue 2 - Loss Causation and Class Certification
David C. Gorlin, Issue 3 (forthcoming) - Evaluating Punishment in Purgatory: The Need to Separate Pretrial Detainees’ Conditions of Confinement Claims from Inadequate Eighth Amendment Analysis
Jacqueline Harrington, Issue 3 (forthcoming) – Comment: “Once Victim, Always Victim”: Compensated Individuals Under the Amended Sentencing Guidelines on Fraud
Kathryn Ladewski, Issue 4 (forthcoming) - Preserving a Racial Hierarchy: A Legal Analysis of the Disparate Racial Impact of Legacy Preferences in University Admissions
Lance J. Philips, Issue 4 (forthcoming) - The Implications of IFRS on the Functioning of the Securities Anti-Fraud Regime in the United States
Dean Baxtresser, Issue 5 (forthcoming) - Antiques Roadshow: The Common Law and the Coming Age of Groundwater Marketing
David Fautsch, Issue 5 (forthcoming) - The Tax Injunction Act and Federal Jurisdiction: Reasoning from the Underlying Goals of Federalism and Comity
Forthcoming Scholarship
David C. Gorlin, Issue 3 (forthcoming) - Evaluating Punishment in Purgatory: The Need to Separate Pretrial Detainees’ Conditions of Confinement Claims from Inadequate Eighth Amendment Analysis
The Due Process Clause prohibits all “punishment” of pretrial detainees—individuals that are held by the Government, but not adjudged guilty of any crime. The Eighth Amendment only prohibits the infliction of “cruel and unusual punishments” upon convicted individuals. Despite the Supreme Court’s insistence that the Due Process Clause, and not the Eighth Amendment, protects pretrial detainees from deplorable and harmful conditions of confinement, most federal circuits now assess pretrial detainees’ claims under Eighth Amendment standards. Under the Eighth Amendment framework, pretrial detainees must establish that conditions subjected them to a substantial risk of serious harm, and that jailers were aware of the harm and deliberately indifferent to their needs. The Eighth Amendment approach puts pretrial detainees on equivalent footing with convicted prisoners: detainees are only entitled to the same objective treatment as convicted prisoners, and they must overcome the same burdensome hurdle to state a claim—establishing the subjective deliberate indifference of jail officials.
This Note argues that Eighth Amendment standards do not adequately address pretrial detainees’ substantive due process rights. First, the substantive component of the Due Process Clause provides pretrial detainees with greater protection than the Eighth Amendment provides to convicted prisoners. The Eighth Amendment’s only relevance to pretrial detainees’ conditions of confinement claims is to set a floor; conditions falling below the Eighth Amendment floor automatically trigger a substantive due process violation. The ceiling of substantive due process protection is higher than the Eighth Amendment ceiling, however: pretrial detainees retain the fundamental liberty interest to be free from deplorable conditions of confinement, whereas convictions substantially impair or extinguish that liberty interest. Second, requiring pretrial detainees to establish the subjective deliberate indifference of jail officials contradicts the traditional approach of substantive due process jurisprudence, which relies upon objective criteria in assessing conditions of confinement claims.
Jacqueline Harrington, Issue 3 (forthcoming) – Comment: “Once Victim, Always Victim”: Compensated Individuals Under the Amended Sentencing Guidelines on Fraud
Until recently, courts disagreed over whether individuals who were compensated by a third party such as a bank or insurance company ought to count as victims for purposes of the multiple-victim sentencing enhancement in the Federal Sentencing Guidelines on fraud. The most recent Amendments to the Guidelines resolve this split, permitting compensated individuals to be counted as victims where their identity was used in the commission of the fraud. However, the new Guidelines do not resolve a separate split, likely to become more divisive under the new Guidelines, over whether both compensated individuals and their compensators can simultaneously be treated as victims for enhancement purposes. This Comment argues that the retributive purpose of sentencing suggests that the new Guidelines properly treat compensated individuals as victims, but that they should be further amended to clarify that treating both compensated individuals and their compensators as victims causes impermissible double counting. Resolving this issue is crucial to achieving the dominant purpose of the Sentencing Guidelines: consistent and fair punishments throughout the federal courts.
Kathryn Ladewski, Issue 4 (forthcoming) - Preserving a Racial Hierarchy: A Legal Analysis of the Disparate Racial Impact of Legacy Preferences in University Admissions
Many public and private universities around the country employ legacy admissions preferences in order to give children of alumni special consideration in the admissions process. Such preferences disproportionately benefit white applicants at the cost of their non-white counterparts, because past generations of college students were less diverse than today’s applicant pool. However, universities argue that their legacy preferences are justified because they assist in alumni fundraising efforts. This Note presents a statistical analysis to argue that legacy preferences are prohibited by the Civil Rights Act of 1964 because they have a discriminatory effect on minority college applicants and have not been shown to promote (and do not promote) any legitimate university purpose.
Lance J. Philips, Issue 4 (forthcoming) - The Implications of IFRS on the Functioning of the Securities Anti-Fraud Regime in the United States
The United States is home to one of the most investor-friendly securities anti-fraud regimes in the world. Corporate misstatements that form the basis for a cause of action under one of the many anti-fraud provisions arise in a variety of contexts, an important one being as violations of U.S. generally accepted accounting principles (GAAP). For several years, the SEC has been considering changing the standardized accounting practice in the U.S. from GAAP to International Financial Reporting Standards (IFRS) in order to promote comparability among global investment opportunities. IFRS is a principles-based system of accounting, while GAAP is rules-based. Because of the flexibility of financial reporting inherent in the principles-based approach of IFRS, investors and the SEC will face greater difficulty in relying on accounting violations to establish the elements of the securities anti-fraud causes of action if IFRS is adopted.
Dean Baxtresser, Issue 5 (forthcoming) - Antiques Roadshow: The Common Law and the Coming Age of Groundwater Marketing
Groundwater law in the United States is ill suited to deal with the issue of groundwater marketing. As freshwater shortages become more common with increasing population and a warming climate, scholars and business people are touting water markets as the solution to conservation and distribution, as well as a source of hefty profits. T. Boone Pickens—the famous oil tycoon of Texas—has turned this concept into reality with his attempt to exploit the groundwater of the Ogallala Aquifer in the Texas Panhandle for thirsty Texas cities. Despite the looming water shortages, however, states have not adapted their laws to deal with the marketing issue. As a result, the legality of groundwater marketing like the Pickens Plan is currently decided by outdated laws that were never meant to deal with groundwater marketing. In general, groundwater marketing is only legal where the law permits off-tract use—an old distinction that bears no relationship to the policy issues that must be raised by state legislatures to seriously address upcoming severe water shortages. This Note examines the various legal doctrines in the United States governing groundwater and determines that, whether for or against water marketing, states should affirmatively address the policy issues presented by the potential of marketing by updating their laws so that they can deal with the new paradigm of high-value groundwater in a thirsty age.