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Jack Apol
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Professor Jack Apol’s article, “Witness Detention and Intimidation: The History and Future of Material Witness Law,” written with Stacey Studnicki, ‘91, of the Federal Defender Office in Detroit, was published in the St. John’s Law Review.
The article presents a comprehensive history of material witness laws and traces the origins of the use of witnesses in court proceedings and their treatment under common law and early American federal law. The legislative history of the Federal Bail Reform Act and Federal Rules of Criminal Procedure are also examined to reveal when the authority to detain witnesses was conferred upon the government. The article analyzes the federal material witness statute and examines the requirements mandated in order to detain a witness. It also proposes changes to the current material witness laws to prevent abuses of such laws.
The article contends that the manner in which material witnesses are treated presents a dilemma between the constitutional rights of the individual and the needs of the criminal justice system. Typically, after an individual is deemed to have information material to a criminal proceeding, the government is allowed to detain that individual if the requirements of the applicable material witness law are met. The federal material witness statute simply requires that the government show the witness is material and that it is impracticable to secure the presence of the witness by subpoena. If a deposition is not a suitable alternative, the government may seek to detain the witness indefinitely.
The article argues that the detention of material witnesses should be a seldom used procedure. However, at times, these laws have been used as an investigatory tool to detain individuals while determining whether a crime has even been committed. Such investigatory detentions, the article contends, are not only a misuse of the material witness laws, but are troubling and potentially unconstitutional.
Professor Apol and Ms. Studnicki also have co-written a conflicts-of-law article for the Wayne State University Law Review. The article summarizes and discusses recent case law developments in which disputes transcend state or national borders. The cases discussed in the article have both national and international implications. In addition, Professor Apol and Ms. Studnicki are co-writing a criminal-law article for the Wayne State University Law Review, to be published in the fall of 2003.
Dan Barnhizer
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Professor Dan Barnhizer’s article, “Givings Recapture: Funding Public Acquisition of Private Property Interests on the Coasts,” was published in the June 2003 issue of the Harvard Environmental Law Review. The piece explores the feasibility of using “givings recapture mechanisms” to promote effective land use management on coastal floodplains. Specifically, the article points out, current government responses to floods and flood risks—typified by regulatory restrictions on floodplain land use, structural protections, and flood insurance or disaster relief—transfer substantial “givings” to private property owners. These givings have dramatically increased the value of coastal properties and continue to promote or maintain in place unwise and unsustainable coastal floodplain development.
Ironically, increased coastal property values resulting from such givings have rendered prohibitively costly one land use management technique that has proved effective at reducing flood losses—public acquisition of high-risk or environmentally sensitive private property. While many scholars and commentators have approached this problem from the perspective of eliminating subsidization of floodplain development, Professor Barnhizer’s analysis is unique in that it recommends that government attempt to recapture past givings by offsetting those givings as a credit against the compensation the government must pay when it acquires private floodplain property. Such an approach would protect legitimate investment-backed expectations of landowners while effecting a long-term retreat from coastal floodplains threatened by rising sea levels and increasing hurricane risks.
Debra Bassett
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Professor Debra Bassett’s two casebooks, Problems in Legal Ethics (6th ed., with Schwartz et al.) and California Legal Ethics (4th ed., with Wydick et al.) have been published by West Group, and her article, “Ruralism,” was published by the Iowa Law Review. Her most recent article, “The Hidden Bias in Diversity Jurisdiction,” has been accepted for publication by the Washington University Law Quarterly.
Professor Bassett presented her ruralism article at the Association for the Study of Law, Culture, and the Humanities Conference at Cardozo and NYU Law Schools in March 2003. She presented the article again at the International Conference on Social Sciences in June 2003, and was also a presenter on classroom teaching methods at the AALS Conference on Civil Procedure in June.
Mary Bedikian
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Professor Mary Bedikian presented at the International Law Section of the State Bar of Michigan program, “Emerging Nations and the Effective Uses of Alternative Dispute Resolution.” An article based on her presentation, “Drafting Alternative Dispute Resolution Clauses in International Commercial Contracts,” will appear in the September issue of the Section’s International Lawyer.
Professor Bedikian is also under contract to update two ADR Practice Books for Michigan practitioners. Published by West Group and Thompson/West, the material covers the use of private and public forms of ADR in several sectors such as employment, health care and intellectual property. Also covered are ethical considerations in employing ADR, and whether use of non-lawyers as advocates in ADR constitutes the practice of law. Finally, Professor Bedikian has been invited by the State Court Administrators Office to work with the Michigan State Supreme Court to review statewide training standards for mediators.
Susan Bitensky
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Professor Susan Bitensky presented a paper at the invitation of the Child Welfare League of America on February 13, 2003, in Washington, D.C., at a conference convened to consider ways of increasing the acceptability in the United States of the U.N. Convention on the Rights of the Child. Her paper surveyed some of the more controversial aspects of the Convention, including its treatment of the right to education, corporal punishment of children, and children’s right to free expression.
Professor Bitensky also was one of four panelists at a Federalist Society debate on judicial review during Diversity Week at MSU-DCL. The panelists posed questions on judicial activism and related topics to the event’s keynote speakers, Justice Clifford Taylor of the Michigan Supreme Court and Judge Avern Cohn of the U.S. District Court for the Eastern District of Michigan.
Craig Callen
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Professor Craig Callen is the co-author, with Ronald J. Allen, John Henry Wigmore Professor at Northwestern, of two articles on civil presumptions. One—“Teaching Bloody Instructions: Civil Presumptions and the Lessons of Isomorphism” in the Quinnipiac Law Review (forthcoming, 2003)—discusses problems in teaching civil presumption doctrine, and the other—“The Juridical Management of Uncertainty” in the International Journal of Evidence & Proof (2003)—argues that the doctrine should be reconceptualized, if not scrapped. These two pieces grew out of a workshop the two professors conducted on burdens of proof and presumptions at the AALS Faculty Development Conference on Evidence during June 2002 in Arlington, Virginia.
Professor Callen was also the organizer of the “Visions of Rationality in Evidence Law” conference at MSU-DCL in April 2003 (see related story), during which he presented a paper, “Rationality and Relevancy: Conditional Relevancy and Constrained Resources.”
Catherine Dwyer
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During the Spring 2003 semester, Professor Catherine Dwyer worked as a consultant in Kyrgyzstan and Uzbekistan, where she assisted in developing reforms to the legal education system. In Central Asia at the request of the ABA’s Central European and Eurasian Law Initiative (CEELI), Professor Dwyer helped to assess law schools, restructure curriculum, adjust degree requirements, revise standards, train faculty and obtain instructional materials (see related story on page 12). Reports detailing Professor Dwyer’s experiences are available on the college’s website at www.law.msu.edu/faculty_staff/dwyer.
David Favre
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While Professor David Favre has not been traveling the globe these past months, his article, “U.S. Wildlife Law,” was translated and appeared in a Chinese magazine, World Environment (Vol. 3, 33, 2002). Continuing with his Chinese connection, he has made arrangements for Professor Song Wei of the University of Science and Technology to visit MSU-DCL during the Fall 2003 semester and study issues of animal law. Last fall Professor Favre spoke at a Harvard Law Symposium, where he joined Jane Goodall, Professor Cass Sunstein and Professor Alan Dershowitz in discussing the status of chimpanzees. His topic was “Advancing Chimpanzee Interests within the Legal System: A New Tort.” A more scholarly version of the speech has been written and submitted for publication. During Spring 2002, Professor Favre finished a chapter, “A New Property Status for Animals,” in a book that will present views of a number of national authors on the topic of animals in the legal system. The book is being edited by Professor Sunstein and published by Oxford Press.
In January 2003, Professor Favre was invited to address the annual meeting of the Michigan Veterinarian Association on the topic of “Veterinarian Malpractice—Damages for Harm to Animals.” A brisk question-and-comment session followed the speech. In March, Professor Favre co-hosted with the Animal Law Section of the Michigan Bar, the Second Animal Law Conference at MSU-DCL.
Professor Favre’s web-based project, The Animal Legal and Historical Center (www.animallaw.info), has continued to grow in content and outreach. More than 600 visitors per day come to the site, now recognized by the major search engines of the web. The website contains an extensive listing of Michigan laws, in addition to hundreds of cases and statutes generally, that relate to animals. Professor Favre is working with attorneys in Australia, England and Portugal to add content, and he awarded 10 Summer 2003 scholarships to law students throughout the country to add material to the site. This past winter the web center received a favorable review in Science magazine as a source of information on laws relating to animals.
Kevin Kennedy
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Professor Kevin Kennedy’s article, “A WTO Agreement on Investment: A Solution in Search of a Problem?,” was published in the University of Pennsylvania Journal of International Economic Law. His book review of Globalization and Its Discontents by Joseph Stiglitz was published by George Washington University Journal of International Law.
In March 2003, Professor Kennedy was invited by the Ministry of Justice, People’s Republic of China, to make presentations on national treatment of trade in goods at East China University of Politics and Law, Shanghai; Zhongnan University of Politics and Law, Wuhan; and Southwest China University of Economics and Law, Chongqing.
Christine Klein
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Professor Christine Klein will be moving to the University of Florida College of Law in Gainesville after teaching eight years at MSU-DCL. Klein will serve as a tenured professor, joining the law college’s signature program in environmental and land use law. The first-tier UF recruited Klein as part of its strategic plan to expand and enhance its environmental program. Florida program director Alyson Flournoy reports, “Christine’s scholarship addresses important issues relating to public lands and water law, building our strength in those fields.”
Professor Klein’s articles have appeared in numerous journals, including the Harvard Environmental Law Review, the Cornell Law Review, and the Washington & Lee Law Review, and she has a contract with the Aspen Publishing Company to be lead author on a natural resources law casebook (forthcoming 2004-05).
Mae Kuykendall
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Professor Mae Kuykendall, who has been named acting associate dean, participated in meetings of the American Bar Association Business Law Conference as a member of the Institutes and Seminars Committee of the Business Law Section and as the committee’s liaison to the editorial board of Business Law Today.
She arranged for a campus visit by mergers attorney David Silk of the New York law firm of Wachtell, Lipton, Rosen & Katz. Mr. Silk spoke to the mergers and acquisitions class taught by Professors Kuykendall and Clifton Haley, ’61, about cases that create potential uncertainty in planning M&A transactions. He also spoke to the Business Law Society about recent legal issues concerning the “poison pill” defense against unwanted takeovers.
Professor Kuykendall participated in meetings relating to MSU-DCL’s Grand Valley State initiative and assisted the Law Review in attracting several leading corporate law academics to speak at a Fall 2003 Law Review-sponsored conference on corporate responsibility, specifically the Sarbanes-Oxley law.
Michael Lawrence
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Professor Michael Lawrence has contracted with The Greenwood Press to author a book on the Dormant Commerce Clause as part of the Press’s series on the U.S. Constitution. In June, he taught a one-week course on NAFTA Customs Practice as part of MSU-DCL’s Mexico Program in Guadalajara, and continues this summer as a national lecturer for the Council on Legal Education Opportunity’s (CLEO) semi-annual “Attitude is Essential” workshops.
In addition, Professor Lawrence was named chair-elect of the Association of American Law Schools (AALS) Committee on Post-Graduate Legal Education, and Executive Board member of the AALS Committee on Pre-Legal Education. In April, he completed the Rotterdam Marathon and lived to tell about it.
Robert A. McCormick
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The Labor and Employment Law Section of the State Bar of Michigan awarded Professor Robert A. McCormick a grant to create and produce a video documentary commemorating the contribution of Michigan lawyers to the development of labor and employment law. Titled “Toil, Trouble, and Triumph: The Legacy of Michigan Labor Lawyers,” the video debuted on January 31, 2003, at the Section’s 50th anniversary mid-winter meeting. The video also was shown at meetings of the Michigan Chapter of the National Academy of Arbitrators and at the Detroit Chapter of the Industrial Relations Research Association. Additional screenings are
Amy C. Christian
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scheduled at the Annual Meeting of the State Bar and at MSU-DCL. The documentary was written and produced by Professors McCormick and Amy C. Christian, who currently are in the process of adapting the video for distribution to Michigan Public Television stations.
In addition, Professors McCormick and Christian recently took sabbatical leaves during which they wrote an article using antitrust analysis to challenge NCAA rules that limit college athletes’ compensation to the level of their athletic scholarships. According to the article, universities and colleges, acting in concert with and through the NCAA, are in violation of antitrust laws. Specifically, the schools and the NCAA have engaged in price fixing by suppressing student-athletes’ wages to an arbitrary level—tuition, room, board and books—that often is below that which a free market would allow. This combination in restraint of trade violates the Sherman Act, and hence, the article asserts, certain student-athletes have a cause of action for treble damages against the NCAA and its member institutions.
Professor McCormick currently serves as chairman of the Michigan Region of the National Academy of Arbitrators. In that capacity, he hosted a joint meeting on February 6, 2003, of the Academy and the Industrial Relations Research Association. The speaker for that evening, Richard I. Bloch, is the president of the National Academy of Arbitrators and the current arbitrator for Major League Baseball. In April 2003, Professor McCormick hosted another gathering of Michigan arbitrators to discuss historical aspects of his documentary video.
Patricia Mell
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Professor Patricia Mell has been appointed dean of John Marshall School of Law in Chicago. Professor Mell joined the MSU-DCL faculty in 1992 and served as associate dean from 1998 to 2001.
Nicholas Mercuro
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In January 2003, Professor Nicholas Mercuro presented a paper titled “A Comparative Institutional Approach to Law and Economics: Theory and Environmental, Natural Resource, and Land-Use Applications” at the Allied Social Sciences Association in conjunction with the Association for Social Economics Session in Washington, D.C.
In April and May, Professor Mercuro gave a corresponding lecture, “Toward a Comparative Institutional Approach to Law and Economics,” at the following locations: Faculty of Applied Economics, Université de Droit, d’Economie et des Sciences d’Aix-Marseille, Aix en Provence, France; John F. Kennedy Institute, Free University of Berlin; and Erasmus Program in Law and Economics at the Institute of Economic Theory, University of Vienna, Austria. He also lectured in April on “Ecology, Law and Economics” at the School of Agricultural Economics in Paris, France.
Sharon Pocock
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Professor Sharon Pocock, director of the Research, Writing & Advocacy Program, gave a presentation titled “Between the First Draft and the Rewrite” at the Third Annual Rocky Mountain Regional Legal Writing Conference at the University of New Mexico School of Law in March 2003.
Frank Ravitch
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Professor Frank Ravitch’s article, “A Funny Thing Happened on the Way to Neutrality: Broad Principles, Formalism, and the Establishment Clause” will be published in Vol. 38, No. 2 of the Georgia Law Review. Professor Ravitch spoke about the Supreme Court’s recent decision in Zelman v. Simmons-Harris (the voucher case) at the Virginia Education Law Conference in Williamsburg, and he moderated a panel for the AALS Section on Law and Religion at the AALS Annual Meeting in Washington, D.C. At that meeting, he was elected to the executive committee and co-chair elect of the Section on Law and Religion. In June he participated in a roundtable panel at the Law & Society Association conference in Pittsburgh. Professor Ravitch also joined an amicus brief to the 11th Circuit in Glassroth v. Moore.
Kevin Saunders
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Professor Kevin Saunders filed a brief amicus curiae on behalf of The Lion & Lamb Project in a case before the U.S. Court of Appeals for the Eighth Circuit. The case involves a St. Louis County, Missouri, ordinance limiting the access of children under 17 to violent video games, unless they have their parents’ permission. The video games industry challenged the ordinance and, when the county won at the federal district court, filed the appeal with the Eighth Circuit. The Lion & Lamb project, a public interest group devoted to preventing the marketing of violent materials to children, filed in support of the county.
Elliot Spoon
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Professor Elliot Spoon presented a talk titled “Corporate Governance and Accounting Reform: Progress or Politics?” at the Second Annual Trilateral Symposium at the University of Ottawa in October 2002. His talk included a critical analysis of the Sarbanes-Oxley Act of 2002.
Cynthia Lee Starnes
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Professor Cynthia Lee Starnes’s article, “Swords in the Hands of Babes: Rethinking Custody Interviews after Troxel” will be published in Vol. 2003, No. 1 of the Wisconsin Law Review. In the article she argues that children whose parents are divorcing should not be invited to choose their custodian during an in-camera interview to which parents are not privy. She argues that the widespread practice of according children’s custodial preferences great weight imposes tremendous burdens on children that outweigh the benefits of this practice, especially for children who do not publicly volunteer a strongly held preference.
She further argues that principles of fundamental fairness counsel parental access to children’s in-camera statements, a conclusion reinforced by the U.S. Supreme Court’s recent affirmation of parental rights in Troxel v. Granville. Finally, she suggests that the law’s reliance on children’s preferences is a misguided, if well intentioned, response to the inadequacies of the best-interests custody model, which should be replaced with a modified version of the American Law Institute’s recently proposed approximation custody model.
Professor Starnes also presented a paper in June at the International Society of Family Law conference in Eugene, Oregon.
Glen Staszewski
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Professor Glen Staszewski’s article, “Rejecting the Myth of Popular Sovereignty and Applying an Agency Model to Direct Democracy,” was published in the March 2003 edition of the Vanderbilt Law Review. The article claims that successful ballot measures should be characterized as lawmaking by “initiative proponents” rather than as lawmaking by “the people.” It argues that this basic insight would alleviate many of the
difficulties that commentators have identified with judicial review of ballot measures.
At the same time, however, the article explains that rejecting “the myth of popular sovereignty” in direct democracy intensifies the tension between initiative lawmaking and representative government, the problems associated with the delegation of lawmaking authority to unelected actors, and the absence of structural safeguards to encourage careful deliberation and reasoned decision making in the initiative process.
The article argues, for the first time, that state and local governments that authorize direct democracy should adopt structural safeguards similar to those imposed upon administrative agencies engaged in legislative rulemaking. Such reforms would hold initiative proponents accountable for their decisions, promote deliberation and reasoned decision making in the initiative process, and thereby help to legitimize the use of direct democracy.
Recent Brown Bag Symposia for MSU-DCL Faculty
Employment Discrimination Law and the First Amendment—Professor Kingsley Browne, Wayne State University College of Law
Evolution of the Common Law—Professor Allan Hutchinson, York University, Osgoode Hall School of Law
Should Ex-Felons Be Allowed to Serve on Juries?—Professor Brian Kalt, Michigan State University-DCL College of Law
Global Telecommunication Interconnection—Professor Ken Katlin, Kentucky Northern, Salmon Chase College of Law
Lessons to Be Learned from Enron—Professor Charles Murdock, Loyola University Chicago School of Law
Statistical Feedback from Law School Examinations—Professor Charles Senger, Cooley Law School
Equal Protection as Applied and the Promise of Regulatory Flexibility—Professor Glen Staszewski, Michigan State University-DCL College of Law
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