Online Exclusives


Who’s in Charge Here? The interplay of the FCC’s victory in U.S. Telecom and the FTC’s defeat in AT&T Mobility
Kyle Curtis

In U.S. Telecom v. F.C.C. the United States Court of Appeals for the Sixth Circuit upheld a federal order reclassifying broadband service providers as common carriers. Shortly after, the Ninth Circuit Court of Appeals held in F.T.C. v. AT&T Mobility that the common-carrier exemption in the FTC Act was to be determined by a party's status as a common carrier, and not by the nature of the activities being carried out. Taken together, the cases leave it unclear which federal agency has authority to prosecute broadband providers for data-throttling and other unlawful practices.

Freedom of Information Hack: How Michigan’s Recent FOIA Amendments may be used as a Partial Shield Against Serial Requesters
Nicholas Gobbo

Recent judicial decisions and amendments to Michigan’s FOIA make it easier for public bodies to defend against serial FOIA requesters.  While the FOIA is a valuable tool in our democratic society, some abuse it by submitting excessive requests that cause waste and harm to public bodies and officials.  But with recent amendments, under certain circumstances, a public body may require the requester to submit a “deposit of up to 100% of the estimated fee before it begins a full public record search” for records responsive to a request.   Cramer v. Village of Oakley and Arabo v. Michigan Gaming Control Board helped clarify how a public body can take advantage of this new provision.  With these decisions, if a public body did not receive payment for a request that the public body previously “granted and fulfilled,” it could put forth less effort on subsequent requests and still satisfy its FOIA obligations.  This may save substantial time, costs, and resources for public bodies.

Strife Over Strieff: Where Is The Fourth Amendment Headed After Utah V. Strieff?
Daniel W. Boocher

In Utah v. Strieff, the United States Supreme Court extended the attenuation doctrine under the Fourth Amendment.  Police officers may now negligently stop individuals on the street, and as long as there is an arrest warrant for that person's arrest, any evidence found will not be excluded from trial.  The Court determined the arrest warrant attenuates the taint of the illegal stop. 


Greg Coleman, President of the Florida Bar

Greg Coleman Interview

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. Download condensed text of the interview.


ABA 6th Circuit Media Alerts »

The American Bar Association's (ABA's) 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 ABA selected the Thomas M. Cooley Law Review to write the Media Alerts for the 6th Circuit. Several Law Review members volunteer to write the Media Alerts throughout each term. It is another exciting reason to be a part of the Thomas M. Cooley Law Review!


Case Analyses

A Bright Line through Unreasonable Seizure in the Land of Terry v. Ohio: Northrup v. City of Toledo Police Department
J.D. Baldwin
Contributions Made by Professor Christopher Hastings

In 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. The Court determined that it is not reasonable to detain an individual simply because they are carrying a firearm when the surrounding circumstances give no indication of threat.
[ Full Article PDF ]

 

Who Is a Minister? Sixth Circuit Further Refines the Test Used to Decide When the “Ministerial Exception” Applies in Employment-Law Cases
Scott Sawyer
Contributions Made By Professor Toree Randall

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. Alyce Conlon served as a spiritual director for InterVarsity Christian Fellowship (IVCF), “an evangelical campus mission,” for 25 years, but was fired after failing to make progress in reconciling with her husband and repairing her marriage.  Conlon alleged gender discrimination in violation of both Title VII of the Civil Rights Act of 1964 and Michigan’s Elliot-Larsen Act. The District Court dismissed the case after IVCF asserted the ministerial exception.  The Sixth Circuit analyzed factors and determined IVCF was qualified to assert the ministerial exception, affirming the District Court decision and providing insight into the application of this defense.
[ Full Article PDF ]

 

Sixth Circuit Denies Constitutional Rights for Same-Sex Couples and Says Voters Should Define Marriage
Candis Najor
Contributions Made By Professor Devin Schindler

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. The United States District Court for the Eastern District of Michigan agreed, ruling that the marriage law did not satisfy rational-basis review. The 6th Circuit reversed and upheld Michigan’s ban on same-sex marriage, recognizing that states have the right to define marriage as they see fit. Other federal circuit courts have reached contrary conclusions on this issue, and the United States Supreme Court has granted certiorari and is expected to render a final decision later in 2015.
[ Full Article PDF ]

 

Tracey V. State: Reevaluating Fourth Amendment Protections In Light Of Technology
Sumayya Saleh
Contributions Made By Professor Jeff Swartz

In Tracey v. State of Florida, the Supreme Court of Florida reviewed whether government use of real time cell site location information to track a defendant, without first obtaining a warrant, violates the Fourth Amendment. The trial court held that no warrant was required to use the defendant’s real time cell site location to track him on public streets where he had no reasonable expectation of privacy. But the Supreme Court of Florida held that the evidence must be suppressed because the defendant had a reasonable expectation of privacy in the location signals transmitted by his cell phone, even on public roads.
[ Full Article PDF ]

 

Mandatory Life Without Parole Too Tough for Juveniles (Unless They’re Already in Prison) Michigan Denies Retroactivity of Miller
Jacqueline Langwith

In Miller v. Alabama, the Supreme Court of the United States held that mandating life without parole for juveniles violated the Eighth Amendment’s ban on cruel and unusual punishment. Subsequently, the Michigan Legislature modified the state’s sentencing scheme, requiring courts to consider the factors enumerated in Miller before a juvenile can be sentenced to life without parole. But the legislature left it up to the Michigan Supreme Court to determine if that new sentencing scheme should be applied retroactively.  In People v. Carp, the Supreme Court held that the Miller factors should not be retroactively applied to the 362 juveniles currently serving life sentences.
[ Full Article PDF ]

 

Hoven V. Walgreen Co.: Private-Employer Restrictions on Self-Defense in the Workplace
Candis Najor

In Hoven v. Walgreen, the Sixth Circuit held that it was not against public policy for a private employer to dismiss an employee for defending himself by firing his gun during an armed robbery at his workplace. Hoven argued that Walgreen violated Michigan public policy by dismissing him for acting in self-defense, defending others, and lawfully carrying a concealed weapon. But the court reasoned that the termination did not fall within any of the Michigan Supreme Court’s previous public-policy-violation definitions because Walgreen is a private employer and Hoven was an at-will employee. This decision suggests that the Michigan Supreme Court must carve out a new public-policy exception if it wants to protect at-will employees’ constitutional and statutory rights.
[ Full Article PDF ]

 

“Intellectual Disability Is A Condition, Not A Number”: Florida’s Threshold Requirement For Intellectual Disability In Death Penalty Cases Ruled Unconstitutional
Sumayya Saleh

In Atkins v. Virginia, decided in 2002, the Supreme Court of the United States ruled that executing a person with an intellectual disability is cruel and unusual punishment that is prohibited by the Eighth Amendment. But the Court left it up to the states to define intellectual disability. In Hall v. Florida, the Court clarifies its ruling in Atkins, finding that Florida’s method for establishing intellectual disability is unconstitutional because it defines intellectual disability based strictly by an IQ score. The Court held this method "creates an unacceptable risk that persons with intellectual disability will be executed."
[ Full Article PDF ]

 

Race-Based Preferences: Should The Majority Vote Decide?
Jacqulene Brandt

In the last several years, the Supreme Court of the United States has weighed in on the use of racial preferences in University admissions processes many times. The Court has found some race-based admissions processes constitutional, but others not. In Schuette v. Coalition to Defend Affirmative Action (CDAA) the Court held in a plurality opinion that Michigan’s voter-approved ban on race-based preferences is constitutional.
[ Full Article PDF ]

 

Use at Your Own Risk: Michigan Medical Marihuana Act Preempts Municipal Law But Federal Law Still Criminalizes Use Under Ter Beek v. City of Wyoming 
Zackery T. Hugg
On February 6, 2014, the Michigan Supreme Court ruled on two preemption issues regarding the Michigan Medical Marihuana Act (MMMA). The Court ruled that the federal Controlled Substances Act does not preempt the MMMA. But, the MMMA does preempt a municipal-zoning ordinance.
[ Full Article PDF ]

 

Miller v. Mylan Inc.: No Immunity for Manufacturers of Combination Products?
Chelsey Morgenstern

Michigan's drug-immunity statute has significantly reduced pharmaceutical litigation in Michigan. But, the United States Court of Appeals for the Sixth Circuit's recent decision in Miller v. Mylan Inc. may indicate a change in this trend. In a two-to-one decision, the court held that Michigan's drug-immunity statute does not apply to pharmaceutical combination products.
[ Full Article PDF ]

 

Medtronic, Inc. v. Boston Scientific Corp.: Declaratory Judgment's Burden on Licensee or Patentee?
Zackery T. Hugg

The Supreme Court has ruled that a licensee seeking a declaratory judgment that its products are noninfringing is not required to terminate or breach its license with the patentee. In Medtronic, Inc. v. Boston Scientific Corp., the Court will determine who has the burden of proof in such cases, the plaintiff licensee or the defendant patentee.
[ Full Article PDF ]

 

Maryland v. King: No Privacy Expectation in DNA?
H. Gavin LaCambra and Ashley Wilson

The Fourth Amendment protects against unreasonable searches and seizures. Reasonableness is measured by weighing a person’s privacy interest against the government’s purported interest in conducting the search. Recently, the Court used this balancing test to determine the constitutionality of Maryland’s DNA Collection Act. The Court held that when police officers make an arrest for certain violent crimes, taking a DNA buccal swab, more commonly known as a cheek swab, is reasonable under the Fourth Amendment.
[ Full Article PDF ]

Race-Conscious Admissions Policies in Higher Education: Fisher V. University of Texas at Austin
Chris Jennings
In Fisher v. University of Texas at Austin, the Supreme Court of the United States decided if the "University's use of race in the admissions process violated the Equal Protection Clause of the Fourteenth Amendment." The Court essentially reaffirmed the principles established in the landmark decision of Grutter v. Bollinger.
[ Full Article PDF ]

 

Online Article

Repeal of Michigan's Universal Helmet Law: The Cost of Freedom
Audrey Marshall
Michigan's new statute gives riders and passengers, who meet certain requirements, the choice to wear a helmet. The full impact of the law is not yet known. But data from other jurisdictions with similar laws and insurance codes indicates that the partial helmet law will be detrimental, likely causing an increase in the number of motorcycle fatalities and injuries. This will drive up the cost of automobile-insurance premiums and the cost of healthcare, for which taxpayers will be responsible. The partial helmet law will ultimately have a detrimental effect on the safety of motorcyclists, the economy, and all Michigan citizens.
[ Full Article PDF ]

 

Response Piece

Probate Estate Settlement Procedures an Attractive Alternative for Asset Transfer on Death
Dustin S. Foster
In Improving Michigan Estate Settlement, John H. Martin offered, what I think is, a logical set of recommendations to make probate an attractive alternative to the transfer of assets on death. Martin's careful evaluation of the common objections to the probate process is instructive, and he does a good job of outlining the implications of his premise that, if modified, the probate estate settlement process can be a viable alternative to transfer assets. His analysis of other states' affidavit collection devices and summary administration proceedings yield a series of recommendations that, if adopted, will improve the Michigan probate process by eliminating delay, reducing cost, and permitting privacy.

But Martin underscores the inefficiencies of using a trust. He points to the fact that the preparation of a funded revocable trust is neither simple nor inexpensive. Additionally, he emphasizes that the probate process is not always avoided with a trust because only a funded trust avoids probate, and many individuals die with an unfunded or partially funded trust. Can this perception regarding probate procedures be changed, absent a public campaign either attacking the use of trusts or highlighting the benefits of the probate process? If you support Martin's recommendations, the answer is yes.

Martin's article is structured around his indictment of the probate process. This Article will focus on the expense, valuation/monetary ceiling, privacy, and efficiency of the probate process. If adopted, his proposed recommendations are applicable to small estates and estates subject to traditional probate procedures. This is where I depart from Martin's recommendations. Using lessons learned from his review of other states' small estate procedures, it is my belief that modest changes should be made to only small estate probate procedures and not to traditional probate procedures.
[ Full Article PDF ]

A Response to Improving Michigan Estate Settlement
John H. Martin
[ Full Article PDF ]

 

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