WMU-Cooley Law Review - Volume 30, Number 3

THOMAS M. COOLEY LAW SCHOOL BOARD OF DIRECTORS Don LeDuc, President and Dean Hon. Louise Alderson, Vice Chairman Thomas W. Cranmer Diane Dietz W. Anthony Jenkins Lawrence P. Nolan, Chairman Hon. Bart Stupak

James W. Butler III Scott A. Dienes Sharon M. Hanlon Hon. Jane E. Markey Edward H. Pappas Dennis A. Swan

Cherie L. Beck – Corporate Secretary

Kathleen A. Conklin – Chief Financial Officer, Treasurer

PROFESSOR, FOUNDER, AND PAST PRESIDENT Honorable Thomas E. Brennan DEANS AND PROFESSORS EMERITI Michael P. Cox Keith J. Hey Robert E. Krinock (Deceased) William P. Weiner

Robert A. Fisher (Deceased) Marion Hilligan (Deceased Helen Pratt Mickens M. Ann Wood

PROFESSORS EMERITI David G. Cotter Judith A. Frank Keith J. Hey Peter M. Kempel Dorean M. Koenig Lawrence W. Morgan Ernest A. Phillips John Rooney Brent Simmons Ronald J. Trosty

Norman Fell Elliot B. Glicksman Peter D. Jason Joseph Kimble Dan L. McNeal Charles Palmer Philip J. Prygoski Chris Shafer Otto Stockmeyer F. Georgann Wing DEANS

Don LeDuc President, Dean, and Professor of Law Frank Aiello Acting Assistant Dean and Professor of Law

Tracey Brame Assistant Dean and Associate Professor of Law

Charles P. Cercone Associate Dean and Professor of Law

Christine Church Associate Dean and Professor of Law

Lisa Halushka Acting Associate Dean and Professor of Law

Laura LeDuc Associate Dean of Planning, Assessment & Accreditation

Jeffrey L. Martlew Associate Dean and Professor of Law

Charles C. Mickens Associate Dean of Innovation and Technology

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Nelson P. Miller Associate Dean and Professor of Law John R. Nussbaumer Associate Dean and Professor of Law

Martha Moore Assistant Dean and Professor of Law James D. Robb Associate Dean of External Affairs

Duane A. Strojny Associate Dean and Professor of Law

Ronald Sutton Assistant Dean Associate Professor

James Thelen Associate Dean for Legal Affairs & General Counsel

Amy Timmer Associate Dean and Professor of Law

Charles R. Toy Associate Dean of Career and Professional Development

Joan Vestrand Associate Dean and Professor of Law

Paul J. Zelenski Associate Dean of Enrollment & Student Services PROFESSORS Gary Bauer John Brennan Jeanette Buttrey Terrence Cavanaugh Mark Cooney Mark Dotson Gerald Fisher Christopher Hastings John Kane Joni Larson Dena Marks Dan Matthews Maurice E.R. Munroe Nora J. Pasman-Green Daniel Ray Devin Schindler Charles J. Senger John Taylor

Curt Benson Ronald Bretz Evelyn Calogero Karen Chadwick Patrick Corbett Cindy Faulkner Anthony Flores Richard C. Henke Eileen Kavanagh Gerald MacDonald John M. Marks Marla Mitchell-Cichon Florise Neville-Ewell James Peden Lauren Rousseau John N. Scott Dan Sheaffer Gina Torielli Nancy Wonch

David Berry Kathleen Butler Paul Carrier Dennis E. Cichon Mary Phelan D’Isa David Finnegan Alan Gershel James Hicks Jr. Mara Kent Paul Marineau Mable Martin-Scott Mike Molitor Kim O’Leary Norman Plate Marjorie Russell Kevin Scott Paul Sorensen William Wagner

ASSOCIATE PROFESSORS Frank Aiello Brendan Beery Lisa DeMoss Dustin Foster Emily Horvath Tonya Krause-Phelan Michael McDaniel Monica Nuckolls Christopher Trudeau

Tammy Asher James Carey Michael Dunn Heather Garretson E. Christopher Johnson Lewis Langham, Jr. Patricia Mock Jane Siegel

Sherry Batzer Julie Clement James Eyster Marjorie Gell Linda Kisabeth Ashley Lowe Monica Navarro Steven Swanson Victoria Vuletich

ASSISTANT PROFESSORS Erika Breitfeld Donna McKneelen Karen Truszkowski

Bradley Charles Torree Randall Kara Zech Thelen

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Heather Dunbar David Tarrien John Zevalking

VISITING PROFESSORS Victoria Cruz-Garcia Holly Glazier Robert Savage

Renalia DuBose Kathy Gustafson Jeffrey Swartz

Karen Fultz Barbara Kalinowski Patrick Tolan

ADJUNCT PROFESSORS Natalie Alane Kelly Barber-Dodge John Brower Charles Bullock Mark Burzych Gerald Cavellier

Hon. Rosemarie Aquilina Michael Behan Hon. Archie Brown Joseph Burgess Jeffrey Butler Steven Cernak

Michael S. Cheltenham Michael Costello Marshall Deason Stacey Dinser-Hohl Michelle Donovan Steven Dulan Derrick Etheridge Bradley Glazier Judith Gracey Christi Henke Julie M. Hill-Janeway Larissa Hollingsworth McKissack Daniel Houlf Kahla Kelchak Bryan Levy Eric Matwiejcyk Keri Middleditch Paul F. Monicatti Hon. Nick Nazaretian John O’Brien Julie A. O’Neill Pamela Parrish

Paul M. Collins Hon. Janice Cunningham Thomas DeCarlo Nicholas P. D’Isa Lynn D’Orio Peter Durand Donald Frank Brian Goodenough Gerald Haddad William Henson Don Hinkle Catherine Hoort Ronald Jacobs James Kinney Robert Logeman Sarah Matwiejcyk Gary Mitchell James Morton Matthew Newburg Hon. Peter O’Connell Steven Owen Mark Persaud

J.D. Pierce Joseph W. Poprawa Antoinette Raheem Hon. William Richards Robert L. Rothman Traci Schenkel Frank Seyferth Beth Simonton-Kramer Robert Skilton III Patricia Sullivan Steven Transeth L. Graham Ward

Jennifer Pilette Kerry Przybylo Archana R. Rajendra Dale Rietberg Hon. Christopher Sabella Allen Schlossberg Thomas Shaevsky Hon. J. Cedric Simpson Daniel Simon Stauffer Brenda Taylor Gerald Tschura

Andrew Arena Christopher Berry Stacia Buchanan William Burt Burleson David Carter Mary ChartierMittendorf Hon. Martha Cook Laura Dannebohm John Dewane Robert Donaldson Thomas A. Doyle Chad Engelhardt Hon. Richard J. Garcia Howard Gordon Gary Hayden Thomas Hetchler Debra Hirsch Tamsen Horton John Juroszek Garry J. Kregelka Peggy MacDougall Mark McWilliams Zachary Moen Mikhail Murshak Michael Nichols Laura Oberle Joseph Parrish Margaret PhilpotBaditoi Steven Pollok Andrew Quinn Thomas Rasmusson Brent Rose Ronald Sangster Julie Secontine Valerie Simmons James Siver Robert Stocker II Christopher M. Thomas Michael Walton Marie L. Wolfe

INTRODUCTION TO LAW INSTRUCTORS Mustafa Ameen Monika Carter Henry Derrick Etheridge Gerard Haddad John Juroszek Brianne Myers

Kelly Barber-Dodge Bruce Crews Nicole Frey Jarod Harmon-Higgins James Kinney Christopher Nalley Carly Self

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Bradley Butcher Jacob Cunningham Matthew Gauthier Aaron Hubbard Garry Kregelka Laurie Oberle

ADJUNCT TRIAL SKILLS INSTRUCTORS Hon. Rosemarie Aquilina Archie Brown Martha Cook Cindy Faulkner Heather Garretson Gerard Haddad Lewis Langham Eric Matwiejczyk Nelson Miller Hon. Peter O’Connell

Tracey Brame Evelyn Calogero John Dewane Dave Finnegan Howard Gordon Larissa Hollingsworth McKissack Bryan Levy Sarah Matwiejczyk Paul Monicatti Julie A. O’Neill

Joseph Poprawa Antoinette Raheem Marjorie Russell Valerie Simmons Paul Sorensen Mike Walton

Kerry Przybylo Archana Rajendra Christopher Sabella Steve Silverman Dan Stauffer L. Graham Ward Zena Zumeta

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Erika Brietfeld Michael S. Cheltenham Lynn D’Orio Victoria Cruz-Garcia Judith Gracey Catherine Hoort Peggy MacDougall Mark McWilliams Michael J. Nolen Margaret PhilpotBaditoi Andrew Quinn Brent Rose Allen Schlossberg Hon. J. Cedric Simpson Brenda Taylor

THOMAS M. COOLEY LAW REVIEW MICHAELMAS 2013 BOARD OF EDITORS Erin Van De Putte Editor-In-Chief Kathryn Frontier Interim Editor-In-Chief

Sandra Reizen Articles Editor

Stephen Madej Symposium Editor

Stephanie Strycharz Interim Articles Editor

Cathy Carson Administrator Dawn Beachnau Administrator (In Memoriam)

Ashley Wilson Solicitation Editor Jacqueline Langwith Interim Solicitation Editor

ASSISTANT EDITORS Hope Campbell Amanda Curler Casey Curtis Rachel Dornbush Genna Fasullo Kevin Finson

Zack Hugg Mark Hynes Andrew Laurila Arden Mitchell Irene Patrick Kyle Quigley Julie Rothfuss

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Carol Savage Chris Schaedig Ashley Stephens Heather Strouse Jonathon Tomaso Shannon Wambaugh

SENIOR ASSOCIATE EDITORS Allen Ayoub Yvonne Carver Anthony Cavalieri Kevin Donovan Minda Greene

Adrianna Jordan Shaun Kelley Dan Kelly Ryan LePeak Jesse Nash

Adrian Nasr Neil Patel Erin Pearson Trevor Sexton Peter Tomasek

ASSOCIATE EDITORS Jenna Adamson Matthew Berry Josephine Duah Theodora Eisenhut

Corey Fahnestock Yousef Farraj Clark Gates Meri Kligman Jessi Michels

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Victor Soares James Varchetti Amy Yaeger Karen Yeckley

 Honorary Members The Honorable Gerald E. Rosen Former Chief Judge U.S. District Court, Eastern District of Michigan The Honorable Marilyn Kelly Justice, Michigan Supreme Court The Honorable Jennifer M. Granholm Former Governor, State of Michigan Professor Joseph Kimble Thomas M. Cooley Law School Professor Chris Shafer Thomas M. Cooley Law School The Honorable Richard F. Surheinrich United States Court of Appeals, Sixth Circuit The Honorable Clifford W. Taylor Former Chief Justice, Michigan Supreme Court The Honorable Joseph J. Farah Seventh Judicial Circuit Court The Honorable Thomas E. Brennan Thomas M. Cooley Law School The Honorable Dennis C. Drury Fifty-Second District Court The Honorable Robert P. Young, Jr. Chief Justice, Michigan Supreme Court Kara Zech Thelen Faculty Advisor Cathy Carson Law Review Administrator SCHOLARLY WRITING PROFESSORS Kahla Arvizu Stacey Dinser John Pierce Toree Randall Beth Simonton-Kramer Marie Wolfe

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JOHN D. VOELKER AWARD This award is presented to the Senior Associate Editors of the Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review.

Michaelmas 2013 Recipients: Yvonne Carver Shaun Kelley EUGENE KRASICKY AWARD This award is presented to the Assistant Editors of the Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review.

Michaelmas 2013 Recipients: Amanda Curler Genna Fasullo Kevin Finson DAWN C. BEACHNAU AWARD This award is presented to the member of the Thomas M. Cooley Law Review Voting Board of Editors who made the most significant contribution to the Law Review through leadership and dedication.

Michaelmas 2013 Recipient: Erin Van De Putte

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THOMAS M. COOLEY LAW REVIEW HILARY 2014 BOARD OF EDITORS Kathryn Frontier Editor-In-Chief

Michael Taylor Managing Editor

Stephen Madej Symposium Editor

Stephanie Strycharz Articles Editor

Rabih Hamawi Interim Symposium Editor

Jacqueline Langwith Solicitation Editor

Cathy Carson Administrator Dawn Beachnau Administrator (In Memoriam)

ASSISTANT EDITORS Monica Bansal Channa Beard Casey Curtis Kaitlyn Dobesh Ross Holec Zack Hugg

Ogenna Iweajunwa Danica Malloy Arden Mitchell Chelsey Morgenstern Anthony Nicholson Irene Patrick Scott Sawyer

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Chris Schaedig Heather Strouse Brandon Thomson Iris Timm Shannon Wambaugh RaShaunda Weaver

SENIOR ASSOCIATE EDITORS Jenna Adamson Matthew Berry Josephine Duah Theodora Eisenhut

Corey Fahnestock Yousef Farraj Clark Gates Meri Kligman Jessi Michels

Victor Soares James Varchetti Amy Yaeger Karen Yeckley

ASSOCIATE EDITORS Minyon Bolton Jacqulene Brandt Nathan Chan Kevin Coe Aaron Cook

Craig Dickinson Elena Djordjeski Courtney Driscoll Ryan Kaiser Stephanie Kingsley

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Sharmila Rajani Melaine Schmiz Michael Schmiz Elizabeth Spiridon Brendette Walker

 Honorary Members The Honorable Gerald E. Rosen Former Chief Judge U.S. District Court, Eastern District of Michigan The Honorable Marilyn Kelly Justice, Michigan Supreme Court The Honorable Jennifer M. Granholm Former Governor, State of Michigan Professor Joseph Kimble Thomas M. Cooley Law School Professor Chris Shafer Thomas M. Cooley Law School The Honorable Richard F. Surheinrich United States Court of Appeals, Sixth Circuit The Honorable Clifford W. Taylor Former Chief Justice, Michigan Supreme Court The Honorable Joseph J. Farah Seventh Judicial Circuit Court The Honorable Thomas E. Brennan Thomas M. Cooley Law School The Honorable Dennis C. Drury Fifty-Second District Court The Honorable Robert P. Young, Jr. Chief Justice, Michigan Supreme Court Kara Zech Thelen Faculty Advisor Cathy Carson Law Review Administrator SCHOLARLY WRITING PROFESSORS Toree Randall Khala Kelchak Marie Wolfe Stacy Dinser John Pierce Anna Rapa

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JOHN D. VOELKER AWARD This award is presented to the Senior Associate Editors of the Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review.

Hillary 2014 Recipients Theodora Eisenhut Jessi Michels EUGENE KRASICKY AWARD This award is presented to the Assistant Editor of the Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review.

Hillary 2014 Recipients Chris Schaedig Arden Mitchell DAWN C. BEACHNAU AWARD This award is presented to the member of the Thomas M. Cooley Law Review Voting Board of Editors who made the most significant contribution to the Law Review through leadership and dedication.

Hillary 2014 Recipient Stephen Madej

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Contents Volume 30

2013

Issue 3

From the Editor...................................................................................... xv Krinock Lecture Series Speakers Unconventional Responses to Unique Catastrophes: Tailoring the Law to Meet the Challenges Kenneth Feinberg……………........................................................... 267 Legislation New Zealand Style and U.S. Style: The Case of Inheritance Law Hon. Sir Grant Hammond……………............................................... 273 Class Action Devils and Angels Justice Paul M. Perell……………..................................................... 287 Distinguished Brief Awards Remarks Justice Stephen J. Markman……………............................................ 301 Distinguished Briefs PEOPLE OF THE STATE OF MICHIGAN v.

DAVID MARK COLE J.J. Prescott, Miriam J. Aukerman, Michael J. Steinberg, Kary L. Moss, and John R. Minock……………................................. 313 PEOPLE OF THE STATE OF MICHIGAN v.

KADEEM DENNIS WHITE Bradley Hall, John R. Minock, Steven A. Drizin, and Laura Nirider……………........................................................... 369

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MICHIGAN PROPERTIES, LLC v.

MERIDIAN TOWNSHIP Bill Schuette, John J. Bursch, Richard A. Bandstra, and Matt Hodges………………….………….................................... 393 Comments Modification of Child Support for Business Owners and Self-Employed Individuals: Balancing the Interests of the Child with the Means of the Parents Stephen Madej……………................................................................. 425 Protecting the Worst Among Us: A Narrow Quarles Public-Safety Exception in the Boston Bombing and Other Terror Investigations Christopher R. Schaedig…………….................................................. 449

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FROM THE EDITOR The Thomas M. Cooley Law Review board of editors is pleased to bring you the final issue in Volume 30. In this issue, we bring you a wide assortment of articles in various formats.

First, we include three uncut speeches from the Thomas M. Cooley Law School’s Krinock Lecture Series by Kenneth Feinberg, who was the Special Master of the Federal September 11 Victim Compensation Fund of 2001; Justice Grant Hammond of the New Zealand Court of Appeal; and Justice Paul M. Perell of the Ontario Superior Court of Justice.

Next, we are excited to include the uncut speech presented by our guest speaker, Justice Stephen J. Markman, and the three awardwinning briefs of the 2013 Distinguished Brief Awards hosted by the Thomas M. Cooley Law School.

Finally, we are proud to present two student comments authored

by Thomas M. Cooley Law Review members. The first comment discusses the Michigan Child Support Formula, and the second comment considers the public-safety exception to Miranda requirements.

This is the first issue I’ve had the privilege to develop as Editorin-Chief. It has been one of the most challenging and rewarding experiences of my law-school career. Although most of our members work independently, this issue is the final product of dedicated collaboration. I am deeply grateful to all of our editors; our faculty advisor, Professor Kara Zech Thelen; our library liaison, Jamie Baker; and our administrator, Cathy Carson, for their contributions to this book.

— Kathryn Frontier

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IN LOVING MEMORY DAWN C. BEACHNAU 2/5/38–7/12/13 Dawn Beachnau: Mother of the Cooley Law Review; Conserver of the St. Thomas More Society; Nurturer of staff, faculty, and students; and Heart of the law school. For years, Dawn toiled deep in the depths of the Temple Building. Getting to her office meant traversing the gallery passage leading to the back of the third floor. Unlike the Dean’s suite or the library or the classrooms, visitors to the school or people on special tours would never see her space, never know what she did. Even when her office was on other floors, she was always out of the limelight. But students, faculty, and staff knew where she was and came to her often. She was literally the staff that we leaned on for support. Her smile lifted one’s day. Her serene acceptance of physical limitations inspired. Her perseverance and faith were a model for us all. In so many ways, she pumped life and a human touch into the institution. As we go forward, we will miss Dawn more than we know.

— Charlie Senger While I only dealt with Dawn on one matter, she still had a memorable impact on me. The matter was the Human Trafficking Symposium in 2012. Dawn was responsible for handling the speakers’ travel arrangements. Due to the uncertainty of the schedule because of Ambassador CdeBaca’s attendance, we had to scramble to make these arrangements. In addition, the speakers were coming to Auburn Hills rather than the normal Lansing site. Despite all of this, Dawn was not only calm, professional, and showed a great measure of grace in dealing with me and others, but also was very helpful in facilitating the arrangements. I can see why she is so loved, and will be missed, by the Cooley community in general and the Law Review in particular.

— E. Christopher Johnson, Professor

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To attempt to describe in words the extraordinary gift Dawn Beachnau was to each person who crossed her path is to attempt to do the impossible. Dawn didn’t just live on the surface of life. She forged deep connections with people. She was, in truth, the personification of love—sacrificial love. To give but one example of the care and compassion that were her hallmarks, when I commuted from Illinois to Lansing almost 15 years ago to teach a class on Sundays at the law school, Dawn was always there. Knowing that her work week ended on Fridays, I asked her when arriving at my office that first Sunday: “Dawn, why are you here?” Her response? “I have to be there for my Lynn.” Dawn was always there for each of us—the faculty, staff, and over a thousand Law Review students whom she considered and treated as her family.

In a world obsessed with titles, some might be inclined to describe Dawn as the “Law Review’s secretary.” But as the students and all of us can attest, she was our teacher. One lesson she taught us is how to suffer with dignity and grace. It cannot be easy to live most of one’s day-to-day life, for years, in a wheelchair. Quite frankly, many people placed in her shoes would have let those challenges bring them down. But Dawn modeled for us another way. She showed us the key to a life of joy even in the midst of suffering and pain. That key is . . . gratitude.

Thank you, Dawn, for being my teacher. Our teacher.

— Lynn Branham, Professor Saint Louis University School of Law Although I only saw Dawn Beachnau when we passed each other in the halls over the years here at Cooley, she always had a kind word for me. I realized one day when I came across an old certificate I received in 1979 for a legal secretary course that Dawn was one of the organizers. I thought back to the kind ladies who made sure participants signed in each week, answered questions, and assisted the presenters. I was pleased, but not surprised, to realize one of those ladies was Dawn Beachnau. Since realizing that my certificate was signed by Dawn, it means so much more to me now. Dawn has inspired many and will be missed by all.

— Sue Rankin xviii

UNCONVENTIONAL RESPONSES TO UNIQUE CATASTROPHES: TAILORING THE LAW TO MEET THE CHALLENGES THOMAS M. COOLEY LAW SCHOOL: KRINOCK LECTURE 2012 LANSING, MICHIGAN KENNETH FEINBERG* Every once and a while in America, there is a tragedy that galvanizes the public and triggers policymaker attention. The policymakers decide for this tragedy, and only this tragedy, let’s think differently. Let’s come up with a creative alternative to the regular system of compensation.

The regular system—you pick your lawyer, I’ll pick my lawyer, and the judge and jury will decide. This is certainly the tort system.

And the tort system, I think, works pretty well in this country. Of course we have problems with certain aspects of the tort system. But the tort system is so engrained in the history of our country, that the idea of replacing it with a different way of compensating victims seems off balance. There is neither the political will nor the historic basis for changing the basic system. And even if you want to change it, forget it. You’ll lack the type of political consensus to do it.

Now there may be a tragedy: 9/11, the BP oil spill, Agent Orange involving Vietnam veterans coming home with the diseases allegedly caused by the herbicide in Vietnam. And these may be tragedies where our policymakers say, “For this tragedy only, let’s think outside of the box.”

Thirteen days after 9/11, Congress passed a law that allowed those who would rather waive their right to litigate to come into a very generous, unique compensation program. They don’t have to; if they wanted to sue, they could go ahead and sue. But if they wanted to come into this program, they’d be paid quickly as if they went to court. And the money would be paid entirely by the taxpayers. Public compensation.

Ninety-seven percent of all the families that lost a loved one on 9/11 entered the program voluntarily and were paid. The average

* B.A. University of Massachusetts, J.D., New York University School of Law. The author was the Special Master of the Federal September 11 Victim Compensation Fund of 2001.

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award for a death claim was $2 million, tax free. The average award for a physical-injury claim was $400,000, tax free. These awards were funded entirely by the taxpayer. Only 94 families out of almost 3,000 opted to sue. Rather than come into program, they all settled their claims five years later. There never was, and never will be, a trial as to who’s liable for 9/11. It’s over. The program worked exactly as Congress intended. It was, if statistics are any indication, a success.

But is this “pioneering the resolution of disputes?” I don’t think so. The 9/11 fund is a precedent for nothing. It will never be replicated or copied—nor should it. The 9/11 fund was the right thing to do, exhibiting the best in our character and our heritage as a people. It was a correct, successful response to an unprecedented catastrophe. It was rivaled in American history only by the Civil War, Pearl Harbor, and the assassination of President Kennedy.

That’s it, and it worked.

A week after the most pervasive, tragic environmental disaster in American history, the BP oil spill in the gulf, BP walked into the White House to visit with the President, walked out, and announced: “We will front $20 billion. We will pay all eligible claims arising out of loss due to the oil spill in the gulf. We will make all eligible claimants whole. And we will do it without litigation. Anybody who voluntarily wants to participate will get their share of the $20 billion.

The program will be designed and administered by a neutral third party. We’ll pay the claims.”

Eighteen months before the first trial in New Orleans was even scheduled to commence, the Gulf Coast Claims Facility paid out $6.5 billion and received 220,000 releases not to sue from individuals and businesses. In 18 months, we received well over 1 million claims from 50 states and 35 foreign countries.

The program worked. As the first trial was about to begin, the Golf Coast Claims Facility had settled virtually all the major claims that could be brought, seeking to find claimants. It paved the way for a massive settlement of the remaining claims in the courtroom.

Now make sure you understand the distinction. On the one hand, BP and 9/11 are examples of alternatives to the tort system. And on the other hand, there are other examples that aren’t even first cousins: Virginia Tech; the Aurora Dark Knight movie shootings in the Colorado movie theater; and the Indiana State Fair, where hurricane force winds destroyed the state pavilion, killing 10 and injuring 30.

Virginia Tech involved $7 million of unsolicited private charitable

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donations that flowed into Blacksburg, Virginia. The Indiana State Fair, by law, created a $5 million fund to be distributed to the victims of the state-fair disaster. In Aurora, $5 million flowed in from various sources as charitable contributions.

In all three of those cases, you are not “pioneering the resolution of catastrophic loss claims” at all. Rather, this is money that’s going to be distributed as a gift from private donors. The claimants aren’t signing any release. They’re not waiving their right to sue. This is not like BP or 9/11. Programs like Virginia Tech and Aurora are programs in which private donations need to be distributed. You’re asked to distribute them. You distribute them as a gift. And nobody signs a release or a promise not to sue.

But all of these programs can be traced to human nature. Believe me, it’s not law that raises problems—it’s human nature. It’s how individuals respond to tragedy. People are extremely emotional, angry, and frustrated by life’s misfortune. They will flail away at anybody in their sights. And it’s perfectly understandable after what they’ve suffered.

I conducted over 900 individual hearings for the 9/11 fund. And I heard everything from the victims’ families.

“Mr. Feinberg, I’m 24 years old, I lost my husband. He was a fireman at the World Trade Center, and he left me with our two kids, six- and four-years old. You have $2 million? I want it in 40 days.”

“Mrs. Jones, we have to go through the process. We have to go to Treasury and get authorization. Why do you need this money in 30 days?” “I have terminal cancer. I have 10 weeks to live. My husband was going to survive me and take care of our two children. Now they’re going to be orphans. You better get me that money fast while I still have my faculties.” Eight weeks later, she died.

The BP oil spill fund brought different problems. A problem of volume: 1.2 million claims, coming from Norway, Sweden, Mexico, from every state in the union. The sheer magnitude of the claims posed tremendous problems. I hired about 4,000 people to help with that: claims adjusters, accountants, lawyers, claims processors, and so on. Compounding the problem was the problem of proof. Claimants had to prove their damage.

“Well Mr. Feinberg, we do things with a handshake down here in Louisiana.” “Well I’m not paying you on a handshake. Document your claim.”

“Mr. Feinberg, I’m a fisherman, I couldn’t fish, so I lost $100,000.” “Prove it.” “Here’s my corporate profit-and-loss ledger,

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checkbooks, and tickets to go fishing.” “I’m going to cut a check for $100,000, and you’ll get it next week. Now with that check, I’m sending you a 1099 from the IRS.” “Well I waive it.” “You can’t waive it.” “If you’re going to deliver me a 1099, I withdraw the claim.”

In the Virginia Tech tragedy, 27 students and 5 faculty members were killed by a deranged student gunman. He went into a classroom, killed them all, and then killed himself. I had $7 million to distribute.

We decided that the families of those who died would receive the same amount: around $200,000. All lives are equal. It’s not tied to the tort system like 9/11, so everybody receives the same. It’s a gift.

“But wait a minute, Mr. Feinberg. My wife died in that classroom, and she was a wage earner making $180,000 a year.

Surely you’re going to give me more than a student on scholarship.”

“No, I’m not.” “Well that’s not fair.” Don’t use that word fair.

What’s “fair” about any of this? If you think you’re worth more than the scholarship student, hire a lawyer, and litigate. This is a gift.

It’s certainly rough justice. How long someone was in the hospital is a pretty good surrogate for seriousness of an injury.

Somebody in the hospital for 10 days is presumptively more injured than somebody in the hospital for one day. So we tied the compensation for physical injury to a simple record. How long were you in the hospital? That’s it. For this many days, you get this; for that many days, you get that. Don’t send medical records.

“Mr. Feinberg, I was in the Aurora movie theater when this gunman came in and in front of my eyes, killed my girlfriend and boyfriend next to me. I only survived because I hid and played dead.

But the gunman killed my boyfriend and girlfriend, and all around me, it was blood and horror. I crawled out of that movie theater and escaped. But, you know, I can’t get out of bed. It’ll take months of psychiatric care before I can sleep. I wake up in cold sweats, shaking.

I can’t get it out of my mind. How much are you going to pay me?”

“Mrs. Jones, there is only $5 million. We’re going to give 70% of it to the families of the 12 dead along with the four people who are now quadriplegics or have brain injuries requiring constant care. Those 16 people will divide up 70%. The other 30% will go to people who were physically injured by the bullets based on hospitalization.”

“Well wait a minute. How much are you going to set aside for mental trauma?” “Nothing. There’s not enough money. There were 400 people in that movie theater. If I give everyone in that movie theater $1000, there’s only $5 million to begin with. It can’t be done.”

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“Mr. Feinberg, I’m Charles’s mom. Charles was injured terribly at Virginia Tech. A bullet broke his leg in three places. He’ll be limping probably the rest of his life. He went to the emergency room, and they were getting ready to admit him for hospitalization when he said, ‘Nope, I want to go back to my buddies in the dorm.’ And so the doctor said, ‘This is one courageous kid. You can go back to the dorm.’ You should pay him for his courage. You should pay him as if he had been hospitalized for three days. The only reason he wasn’t is fortitude, courage, and a desire to return to his dorm.” “Well Mrs. Jones, I can’t evaluate courage. I have to know how long you were in the hospital.” This program has to be objective. No discretion. No exceptions.

There’s nothing pioneering about what I do. Because if it’s the BP or 9/11 fund, these are so unique that they’re unlikely to be replicated. The taxpayers don’t step up and pay, on average, $2 million and expend $7 billion in taxpayer money. BP, a private company, could set up whatever it wants to settle claims, but not many companies will advance $20 billion. As for Virginia Tech and these other claims programs, they’re rather common, I suppose. It’s not often that you’re asked to establish a formal claims program, but the American Red Cross, United Way, and other organizations distribute money after all sorts of disasters. There’s nothing very unique about that.

But with these programs, I have learned some valuable lessons.

These programs worked. But especially as to 9/11 and BP, don’t do them again. I would be very skeptical about replicating these programs. You should have read some of the emails I received when I was administering the 9/11 program and BP. “Dear Mr. Feinberg, my son died in Oklahoma City. Where’s my check?” “Dear Mr. Feinberg, my son died on the USS Cole fighting terror in Yemen. He was the victim of a suicide bomber, like 9/11.

Where’s my check?”

“Dear Mr. Feinberg, you have to explain this to me. I don’t understand. My daughter died in the basement of the World Trade Center in the initial attacks in 1993, committed by the very same people. How come I’m not eligible?”

And it’s not just terror. “Mr. Feinberg, last year my wife saved three little girls from drowning in the Mississippi River, and then she drowned a heroine. Where’s my check?”

“Dear Mr. Feinberg, I see in the newspaper that you’re paying out all this money to the victims of the BP oil spill. Well I’m the victim

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of the Exxon oil spill in Alaska that we’ve been litigating for 20 years. How come I’m not eligible for a check?”

As a matter of public policy, you have to be careful about giving special treatment to a certain segment of people who are innocent victims. Bad things happen to good people every day in this country.

And for all these tragedies, you don’t have a 9/11 fund. There was no fund for Katrina; Joplin, Missouri tornadoes; Tuscaloosa, Alabama tornadoes; or Sandy in the northeast.

Now I think that 9/11 and BP were absolutely sound public policy. I’ll defend those programs. But I’ll defend them from the perspective of the country and the American people, not from the perspective of the victims. I can’t make distinctions among victims as to why they’re not eligible and others are.

This country frowns on elitism. It frowns on special treatment. It believes in equal protection. Giving people a special, generous approach while everybody else has to fend for themselves? We don’t like it. We don’t think it’s right. So you have to be careful about how often the American people think this program is “different.”

Because 9/11 and BP were “different.” How do I know that?

Policymakers said so. But there’s another problem that’s a bit more personal. These programs prided themselves on efficiency. And the way they assured efficiency and speed was to delegate all of the authority to design, implement, and administer to one person. Now that may be very good for promoting efficiency and speed, but I don’t think it’s very good political science. I think you’re delegating awesome power to one person. The idea of delegating all this authority to one person without any appeal to the courts and without any checks and balances is generally not a good idea.

People ask why I always get asked to do this. I think the main reason I get asked is because it worked before. What I do is certainly not rocket science. You need a stiff spine, and you have to be empathetic. But who wouldn’t be empathetic with these victims? I think I’m selected because I did it before and it worked. So they choose me to do it again.

So I conclude the way I started. Did the programs work? Yes. Are they a pioneering way for the future? I hope not, and I doubt it. The best place to study these programs is in a history class rather than a law-school class because, I think, these programs largely are at one with history.

LEGISLATION NEW ZEALAND STYLE AND U.S. STYLE: THE CASE OF INHERITANCE LAW THOMAS M. COOLEY LAW SCHOOL: KRINOCK LECTURE 2013 UNIVERSITY OF WAIKATO LAW SCHOOL, HAMILTON, NEW ZEALAND HON SIR GRANT HAMMOND, KNZM* INTRODUCING THE PROBLEM Jeremy Waldron is one of New Zealand’s most distinguished legal academics. His more or less permanent home is at Columbia University Law School in New York, though he has held chairs at Oxford and Cambridge too. Several years ago he delivered a series of lectures at Cambridge that were subsequently published in book form under the title The Dignity of Legislation. Jeremy is a rights theorist and also takes a great interest in the whole question of legislation.

In this book, he ran a thesis that, wrongly, we have an idealized picture of judging and the importance of its role in law-making and frame it together with an entirely disreputable picture of legislating.

He suggested we don’t have aspirational models of legislation. When we think about it at all, legislation is pervaded by imagery that presents ordinary legislative activity as dealmaking, horse trading, logrolling, interest pandering, and porkbarreling. He went on to argue that we simply have to recover or develop ways of thinking about legislation that present it as a dignified mode of governance and a respectable source of law.

I cannot deal with all of this in a single lecture. I think academics do sometimes have an obligation to generalize. But on the other hand, too often discussions of that kind lack context. One can learn as much from microinvestigations, if not more, than blue-sky discussions. After all, it was probably the best ever legal historian in the common-law tradition—Frederick William Maitland—who taught us that you can understand more about the common law by closely studying the doings of an English village than talking at large.

* A Judge of the New Zealand Court of Appeal; President of the Law Commission; former Dean of Law, Auckland University.

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Anyway, for present purposes, I need a context. I will set what I propose to say about lawmaking by judges and through statutes in the area of inheritance law, with special reference to New Zealand and Michigan.

AN INHERITANCE PROBLEM In the late 1960s, I was in practice as a partner in a Queen Street, Auckland law firm. A cargo ship sailed into the Auckland Harbour.

In those days, some cargo vessels still had accommodation for a few passengers, particularly in the Pacific. An elderly Scottish engineer got off the ship, walked up Queen Street, and came into our law offices. He said he wanted to make a new will, but that it would have to be attended to urgently because the ship would be sailing again the following day. He gave instructions to a member of our legal staff.

Later that day he executed a will in accordance with the New Zealand formalities, leaving his entire estate to what he said were two adult male children in Buenos Aires, Argentina and appointing them as executors of the will. He described that city as his “home.” He paid a professional fee that afternoon and left with an executed copy of the will. A second executed copy went into the Deeds Room of the firm. The ship sailed the following day, as presaged. But as it was rounding Rangitoto point, still in New Zealand territorial waters as our law then was, this man died of a heart attack.

A few days later my firm was contacted by a major trust company from New York. It transpired that this gentleman had emigrated from Scotland to Argentina in the early 1900s. He was a very proficient railroad engineer. He had become closely involved in the expansion of railways in South America. He had made a fortune—some hundreds of millions of dollars—in so doing. He was happily married and had four children. Prudentially, most of his fortune had been moved to U.S. investments looked after by the New York trust company.

At some point in his life, rather like the famous man in the greyflannel suit, he had decided he was somewhat fed up with things. He was going to disappear, in his own good time, on a sort of round-theworld jaunt. Nobody knew why. He had said to his family that if they all or some of them wished to accompany him, they were welcome.

But nobody seemed to want to accompany him on the sort of ad hoc expedition he was taking on. There were no apparent suspicious circumstances. There was no history or present indication of

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wrongdoing. He was not attracted to some young Brazilian beauty on the side, or anything of that kind. His health was fine. Indeed, he had had a full-scale check-up before he left on this venture. He had with him a traveler’s medical kit.

And, we were advised by the New York attorneys, under Argentinian succession law, as is common in a number of civil-law jurisdictions, it recognizes forced heirs who cannot in any way be deprived from their inheritance rights through a will stating different intentions. I do not need to go into all the details, but four-fifths of the estate had, by Argentinian law, to go to primary lineal descendants and descendants such as children, parents, grandchildren, grandparents, as well as the surviving spouse, followed by siblings. There was little left for testamentary discretion.

The senior partner in the firm descended on me, as one of the litigation partners, with a slightly perplexed look on his face and said: “Do we have an estate to administer here in New Zealand, or do we not?”

On the face of it, there was a monumental conflict of laws issue: whose law applied? And it did not take long to establish that in New Zealand, that was indeed a tricky question because there was House of Lords authority, in a deeply divided court, that it might well be New Zealand law which would apply here. But if New Zealand law did apply then the members of the Argentinian family could bring proceedings under the Family Protection Act 1955 (NZ), about which I shall say some more in a moment, based on a claim of a breach of moral duty by the testator. This was the only statute in the Western world (it has since been copied elsewhere) to invoke the notion of a moral duty enforceable at law. This also makes it of some real jurisprudential interest.

For present purposes I do not need to say too much more about this case. You may be curious though as to the outcome. It did involve me spending some time on it in Argentina. In the end, based on what I would describe as Lincolnesque common sense, we finally got the thing resolved. The two boys, who were the nominated trustees and who would have taken all under the New Zealand will, renounced any rights they had to probate in New Zealand. So the Argentinian scheme prevailed. One of the boys was, and still is, in the best Argentinian tradition, a keen polo player. He has at times purchased New Zealand horses from around the Cambridge area, near to this law school.

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Now I jump ahead 20 years. By now I was the Dean of Law at Auckland, but on leave as a Visiting Professor teaching at the Cornell Law School. I went to Harvard to attend a symposium. Whilst we were having a cup of tea at the morning break, a man that I did not then know came up to me. He asked if I could have a word with him about the New Zealand Family Protection Act. It turned out that this personage was Professor Richard Vance Wellman, who taught trusts and estates at the Michigan Law School for 20 years, and was one of the real movers and shakers on the Uniform Probate Code project in the United States. The conversation got so animated that we cut out of the Law School, went over to Back Bay, and had one of those fun (and slightly alcoholic) academic entanglements which are one of the things that make the job worthwhile.

My American years had alerted me to two facts of life in the United States, which will be familiar to our American guests but perhaps not so much to the New Zealanders and others present, that stalk this whole area of American law.

First, the fierce and deeply seated attachment to a notion of absolute testamentary freedom. That is, that you can leave your property to whomsoever you like.

Second, the “problem” of the concentration of wealth: it has been estimated that in the United States the top 6% of wealth-holding families own 57% of the total net family wealth. That seems to run counter to an equally deeply held American concern with equal opportunity and a notion often argued out East, though certainly not in the republican Midwest, that everybody should enjoy an equal starting point in life.

Of course what Dick Wellman wanted to know was: “Well look, if you have a statute like the New Zealand statute, how did it come about, how has it worked out in practice, and might it hold any learning for American States which might want to adopt it or something like it?” I say states because, as those present will know, the law in this area in the United States is for each state. It is not a matter of federal law.

THE ESSENTIALS OF THE NEW ZEALAND SCHEME Progressive law reform usually needs a champion. In New Zealand, inheritance law found one in the 1890s in the form of Sir Robert Stout. He is the only person to have been Prime Minister of this country and Chief Justice. He was a very fine lawyer and of a

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liberal bent. He was a strong champion of the women’s suffrage movement. He had much to do with this country being the first country in the world to grant women the vote in 1893.

Stout introduced successive bills into our Parliament in the 1890s to restrain testators from having an unlimited power of disposition by will. His first two attempts were defeated. Members of Parliament generally were unhappy with a mandatory division proposed in the bills which would have permitted the pre-disposition of no more than one-third of a testator’s estate if wife and children survived.

However, a number of members of the House indicated support for legislation which would overcome unjust wills but yet not possess the mandatory features of the bill to which they objected.

So Sir Robert’s efforts did awaken the social conscience of the House. They resulted, in 1900, in the government of the day introducing the Testators Family Maintenance Act 1900. There was a significant debate in the House about it, then in the Statutes Revision Committee. At that time New Zealand had a bicameral form of government. What you would call the Senate in the United States was the Legislative Council in New Zealand. But eventually this legislation passed in both houses and came into force on 9 October 1900.

The scheme of the Act is simple and conceptually more attenuated than what Stout had had in mind. If somebody died leaving a will without making “adequate provision” within it for “the proper maintenance and support of a spouse or children,” the court was given discretion to make such provision for them, as it considered appropriate, out of the estate.

As with any discretionary scheme, how the courts will approach the legislation is critical.

The statute was too attenuated in some respects. For instance, there was not a power to make a lump-sum payment out of the estate.

Other concerns were expressed by my court in a significant decision called Plimmer in 1906.

Interestingly perhaps to foreign observers, our Parliament is relatively responsive to concerns of this kind when expressed by senior courts. Pretty much all the concerns noted by the Court of Appeal were attended to by legislation the following year.

The current incarnation of the Act is the Family Protection Act 1955. It has been amended and expanded a number of times.

There are two features which I think I should touch on here. The first is one which I will, in a little while, compare with Michigan and

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U.S. law. It concerns the definition of a family. Obviously, the class of claimants who can challenge a will under the statute is of primary importance.

In the early-1900s statute in New Zealand, family was given an orthodox, close, nuclear-family conception. But one thing which I think is to the credit of the New Zealand Parliament over the following century is that the concept of family has been progressively extended to more or less keep pace with the ways in which society has changed. For instance, under the current iteration of the statute, claimants under the Act can now include a partner who was living in a de facto relationship with the deceased at the date of his or her death, and step-children. And partners in civil-union relationships now come within the class of claimants.

A second important feature of the New Zealand legislation— indeed it lies right at the heart of it—was articulated by my court in a case called Allardice in 1910, when the court construed the statute as encapsulating three critical principles.

(1) The Act is something more than a statute to extend the provisions of the old destitute-persons legislation in New Zealand.

(2) The Act is not a statute which empowers the court to make a new will for a testator.

(3) The Act is concerned with the moral duty of a testator.

Mr. Justice Edwards, in a paragraph which must have been repeated literally thousands of times now, said in 1906: It is the duty of the court, so far as is possible, to place itself in all respects in the position of the testator, and to consider whether or not, having regard to all existing facts and surrounding circumstances, the testator has been guilty of a manifest breach of that moral duty which a just, but not a loving, husband or father owes towards his wife or towards his children, as the case may be. If the court finds that the testator has been plainly guilty of a breach of such a moral duty, then it is the duty of the court to make such an order as appears to be sufficient, but no more than sufficient, to repair it.

Here sprang into New Zealand law the notion of a wise and just testator. It follows that the matters to be considered by such a person, while largely economic, nevertheless encompass a wide range of moral and ethical issues.

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As another member of the court, Sir Alexander Turner, said in a leading decision under the Act in the 1960s, a testator is: Required to weigh moral claims in a large sense, in which regard is had not only to the economic needs but also to the merits and deserves of his dependents, and to assess his corresponding obligations towards them after having regard to his means. This is the view that has now long been accepted, and was evolved by the courts, not in some arbitrary manner, but as a matter of interpretation of the words “adequate provision for the proper maintenance and support.� And in order to give those words in the context of the Act their full application . . . upon no other grounds indeed could the doctrine be justified.

I add one other gloss upon that which will help visitors understand the operation of the Act. That is, a famous decision of Sir John Salmond in Allen v Manchester in 1922. His Honor said that of course the nature and extent of the estate is of paramount importance.

The moral duties that arise in respect of a smallish estate may be quite different from that with respect to a substantial estate.

THE POSITION IN THE UNITED STATES, PARTICULARLY MICHIGAN Inheritance law in the United States is a matter for the individual state. This means that there are significant variances between states.

The National Conference of Commissioners on Uniform State Laws identified this as a matter of significant concern in the drafting of a Uniform Probate Code (UPC) that the states could adopt, which began in 1964. The chief reporter and a major mover and shaker was Dick Wellman of the Michigan Law School. The original UPC was promulgated in 1969. It has been revised several times since.

Although the UPC was intended for adoption by all 50 states, the original 1969 version of the Code was adopted in its entirety by only 16 states, of which Michigan was one. Significantly perhaps, these were in the Midwest and moving west. The remaining states have adopted various portions of the Code in a piecemeal fashion, but even so there are significant variations from state to state.

I will deal with the significant advances made in the Code in a little while. But first I must mention briefly the difficulties which have arisen in a significant way in the United States if some form of

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intervention in a regime of absolute testamentary freedom, in a statutory form, has not been made.

In such a situation, where a will is perceived to be distinctly unjust, the litigation strategy has to be to attack either the formalities of the will as made (so that it is said to be invalid); or to argue that in some way the propounder of the will was not in a fit state to make the will or was unduly influenced. The U.S. case law here is, with great respect, truly bizarre. For one thing, it creates a horrendous emphasis on formalism; for another, the law relating to undue influence is all too often stretched in an extraordinary fashion. And of course, if successful, the net result is that the will is set aside and then one is driven back to an earlier (valid) will (if there was one) or into an intestacy statute in the particular jurisdiction (which can actually sometimes yield a half-decent result)!

There were two fundamental objectives which the uniformity commissioners sought to achieve.

The first was led very much by the determined and splendid work of Professor John Langbein of Yale to get rid of formalism (to the extent that one could) so that the concentration in the probate examination is on the intention of the propounder. That has produced the kind of debates, which are much like those to be found in contract law, about form and substance.

The second broad theme was to square up to doing something about open-ended testamentary freedom, particularly in relation to children. As a very broad proposition, American law rightly supports parental obligations with respect to the support of children whilst the parent is alive but is curiously unsupportive after the death of the parent. And it has to be said that for a long time the response of American courts and legislatures was overwhelmingly resistant and negative to any notion of forced heirs. Even Louisiana, the only U.S. state with anything of that character in its law, scaled it back after 1996. Negative wills were upheld in a number of situations, and courts have not been entirely kind to no-contest clauses, either.

Where there is not legislation, the law is distinctly unkind to families.

Turning back to UPC, easily the most interesting feature of the U.S. uniform act is in Part 2, relating to the elective share of a surviving spouse. Given that it is almost inevitable that Parliament will have to return to the question of what happens on death in property relationships in New Zealand, and the concepts involved under this head are the best thought through in the Uniform Probate

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Code, and are interesting jurisprudentially as well as practically, we have something to learn from the United States here.

The Uniform Probate Code treats this as one of the few instances in American law where the decedent’s testamentary freedom with respect to his or her title-based ownerships must be curtailed. The way it works is that no matter what the decedent’s intent was, most jurisdictions following this thesis recognize that the surviving spouse does have some claim to a portion of the decedent’s estate. These states provide what is called a forced share. But the forced share is expressed as an option of a statutory minimum amount that the survivor can elect to take or let lapse during the administration of the estate, keeping the provision under the will. Hence it is termed an elective share. How the elective share is calculated has varied in the several iterations of the Code. But using the 2008 revision, the statute provides that the elective share is always 50%. But it is not 50% of the augmented estate, but 50% of the matrimonial-property portion of the estate.

What this is designed to do is to bring the elective-share law into line with the so-called partnership theory of marriage. As in life, so in death.

The partnership theory of marriage, sometimes also called the marital-sharing theory, can be stated in various ways. But however stated, the economic rights of each spouse are seen as deriving from an unspoken marital bargain under which the partners agree that each is to enjoy a half interest in the fruits of the marriage. A decedent who disinherits his or her spouse is seen as having reneged on the bargain.

I have seen the theory sometimes expressed in restitutionary terms as a return-of-contributions notion. Effectively the redesigned elective share implements the marital-partnership theory by means of a mechanically determined approximation system.

This gets over the horrendous problems of identifying what of the couple’s property was earned during the marriage, and what was acquired prior to the marriage or acquired during the marriage by gift or inheritance.

You will notice at once some of the huge omissions of this approach to inheritance law: it has a narrow ambit in its view of potential claimants. We have had the same sort of problems and debates in New Zealand as the character of society and what is a family have emerged as issues. We are still falling short in relation to same-sex relationships.

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In acknowledgement of our guests and fellow students, I should say a brief word about Michigan. My understanding is that Michigan had a 1939 probate code, then there was a revised probate code in 1979, which took in chunks of the UPC, and then a new probate code (the Estates and Protected Individuals Code) came into force in 2000.

EPIC follows, I think, the 1969 iteration of UPC but with a number of Michigan modifications.

JOINING SOME THREADS What all this shows in our respective countries (and this is happening elsewhere in the common-law world, too) is that there has been a long struggle over a century or so to get from a principle of absolute testamentary freedom (which is still the starting point) to one in which protection should be given where protection ought to be given.

That raises two fundamental difficulties.

First, the word ought is normative, so what the position ought to be is contestable.

Second, there is a fundamental mechanical and technical problem for lawyers: is this sort of thing better adjusted by a discretionary regime, such as we have in New Zealand, or by a more structured scheme, such as appears in the Uniform Probate Code? And all of this in a context where society is changing. And, in this country and elsewhere, the position of indigenous peoples has to be kept firmly in view, too.

THE PEOPLE OR THE LAW There is always a danger in legal abstractions trying to overtake how people actually behave. Sadly, I am not aware of New Zealand empirical evidence on what people want in this area. But the American academic work is of great interest here. The thrust of it is that testators typically give most or all of their property to their immediate family, usually the surviving spouse, though not necessarily outright.

The few attempts to survey living property owners about their intestate preferences point to much the same sort of conclusion.

Alison Dunham, of the Chicago Law School, showed in senior journals that, on the basis of individual preferences, the preference is to give everything to the spouse. There is less concern about children.

But of course this does not address the behavior (though one suspects

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there might be a similar conclusion) with respect to partners in de facto marriages.

As a battered old veteran of now nearly 50 years in the law, I am inclined to think that life, rather than the law, usually wins.

Ultimately the law will go where people really want it to go. This may suggest that the wisdom of our forebears should bear repeating: people should decide for themselves and intervention should be restricted to clear and manifest cases of need or injustice.

BACK TO WALDRON Finally, to close the circle back to Jeremy Waldron: whatever might be true of high-level constitutions or codes, in private law we surely need both quality legislation and quality judges working symbiotically, systematically, and sensitively to help resolve the reallife problems of our fellow citizens.

CLASS ACTION DEVILS AND ANGELS THOMAS M. COOLEY LAW SCHOOL: KRINOCK LECTURE 2013 UNIVERSITY CLUB OF TORONTO, TORONTO, CANADA JUSTICE PAUL M. PERELL, ONTARIO SUPERIOR COURT OF JUSTICE* The debate over damage class actions is characterized by charges and countercharges about the merits of these lawsuits, the fairness of the settlements, and the costs and benefits to society. Anecdotes abound, and certain cases are held up repeatedly as exemplars of class actions’ great value or worst excesses. In the fervor of debate, it is difficult to separate fact from fiction, aberrational from ordinary. The debate implicates deep beliefs about our social and political systems: the need for regulation, the proper role of the courts, what constitutes fair legal process. These beliefs exert such strong influence over people’s reactions to class action lawsuits that different observers sometimes will describe the same lawsuit in starkly different terms.1 So here is the question: Are class actions with the angels, or are they with the Devil?

Class counsel, the entrepreneurial lawyers who are the masterminds behind most class actions, and their chief proponents would have it that they are doing God’s work—punishing sinners and providing access to justice in an efficient and consistent way.

Defense counsel and other class-actions opponents would have it that class counsel are greedy minions of the Devil—stirring up strife and extorting a ransom as the price for the wrongfully accused defendant

* Justice Paul M. Perell was appointed to the Superior Court of Justice in Ontario in 2005. Before his appointment to the bench in May 2005, he was a partner at WeirFoulds LLP, where he practiced legal research and civil litigation.

He is an adjunct professor at Osgoode Hall Law School and at the University of Toronto. He is a former editor of the Ontario Reports and the author of numerous articles and several books. Justice Perell holds a B.A., (University of Toronto) LL.B., LL.M., Ph.D. (Osgoode Hall Law School, York University), L.S.M. 1. DEBORAH R. HENSLER ET AL., RAND INSTITUTE FOR CIVIL JUSTICE, CLASS ACTION DILEMMAS: PURSUING PUBLIC GOALS FOR PRIVATE GAIN 3 (1999).

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to escape from meritless claims or claims that have no social utility.

So who is right?

The Ontario Attorney General’s Advisory Committee on Class Action Reform defined a class action as follows: [A]n action brought on behalf of, or for the benefit of numerous persons having a common interest. It is a procedural mechanism that is intended to provide an efficient means to achieve redress for widespread harm or injury by allowing one or more persons to bring the action on behalf of the many.2 In order to understand the current controversies about class actions, it is necessary to understand their nature, their history, and how they developed. Class-action legislation was introduced in the United States in 1938, and the current Rule 23 of the American Federal Rules of Civil Procedure was enacted in 1966.3 The debate about the social merits of class actions largely began with the enactment of the current Rule 23.

In 1978, Québec became the first Canadian province to introduce class-action legislation.4 Ontario followed in 1992,5 as did British Columbia in 1996.6 In the years that followed, the Canadian federal government and all of the provinces with the exception of Prince Edward Island enacted class-action regimes.7 The modern class proceeding in the United States and Canada is the successor to the English common law’s representative action, which authorized a plaintiff to sue on behalf of others who would be

2. ADVISORY COMM. ON CLASS ACTION REFORM, MINISTRY OF THE ATTORNEY GEN., REPORT ON CLASS ACTION REFORM 15 (1990) (Can. Ont.).

3. FED. R. CIV. P. 23.

4. See Code of Civil Procedure, R.S.Q. 1978, c. C-25, §§ 1002–1051 (Can. Que.).

5. See Class Proceedings Act, S.O. 1992, c. 6 (Can. Ont.).

6. See Class Proceedings Act, R.S.B.C. 1996, c. 50 (Can. B.C.).

7. See Federal Courts Rules, SOR/1998-106 (Can.); Class Proceedings Act, S.A. 2003, c. C-16.5 (Can. Alta.); Class Proceedings Act, R.S.B.C. 1996, c. 50 (Can. B.C.); Class Proceedings Act, C.C.S.M. 2002, c. C-130 (Can. Man.); Class Proceedings Act, R.S.N.B. 2011, c. 125 (Can. N.B.); Class Actions Act, S.N.L. 2001, c. C-18.1 (Can. Nfld.); Class Proceedings Act, S.N.S. 2007, c. 28 (Can. N.S.); Class Proceedings Act, S.O. 1992, c. 6 (Can. Ont.); Code of Civil Procedure, R.S.Q. 1978, c. C-25, Book IX, art. 999-1026 (Can. Que.); Class Actions Act, S.S. 2001, c. C-12.01 (Can. Sask.).

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bound as a matter of res judicata and issue estoppel to the outcome of the litigation. Historically, the English courts of equity developed procedures to address the problems that arose in providing access to justice when the number of parties was so numerous that the pursuit of their claims was not feasible. The courts of equity developed the representative action so that it was not necessary to have all the claimants present, but their interests would be represented by one or more representative parties.8 The procedure invented by the courts of equity became a part of common-law civil procedure when the courts of equity and of the common law were fused by the law-reform movement that produced the Judicature Acts of 1873 and 1875 in England and comparable legislation across the commonwealth.9 Rules of civil procedure were introduced to authorize representative actions. For example, in Ontario, after the fusion of the courts of equity with the common-law courts, the representative action came to be governed by Rule 75 of the former Rules of Practice, which stated, “Where there are numerous persons having the same interest, one or more may sue or be sued, or may be authorized by the Court to defend, on behalf of, or for the benefit of all.” 10 The comparable provision in the United States is Equity Rule 38, which was introduced in 184211 and amended in 1912 to state, “When the question is one of common or general interest to many persons constituting a class so numerous as to make it impracticable to bring them all before the court, one or more may sue or defend for the whole.12“

8. Duke of Bedford v. Ellis, [1901] A.C. 1 (H.L.) 8, 10 (appeal taken from Eng.) (U.K.).

Under the old practice the Court required the presence of all parties interested in the matter in suit, in order that a final end might be made of the controversy. But when the parties were so numerous that you never could “come at justice,” to use an expression in one of the older cases, if everybody interested was made a party, the rule was not allowed to stand in the way.

Id. at 8.

9. See Supreme Court of Judicature Act, 1873, 36 & 37 Vict., c. 66, § 3 (Eng.).

10. RULES OF PRACTICE AND PROCEDURE OF THE S. CT. OF ONTARIO 75 (1913).

11. Fed. R. Equity 48, 42 U.S. (1 How.) lvi (1842) (This rule was originally enumerated as Rule 48.) (repealed 1912).

12. Fed. R. Equity 38, 226 U.S. 659 (1912) (repealed 1938).

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The scope or availability of the common-law representative action, however, was narrowly prescribed. In 1983, in General Motors of Canada Ltd. v. Naken,13 the Supreme Court of Canada required that the following restrictive preconditions be satisfied for the authorization of a representative action: (1) the principal issues of law and fact must be identical for each claimant; (2) the group of claimants must be definable and finite; (3) the group of claimants must claim the same remedy; and (4) there must be a discernible fund or asset against which recovery could be made. These prerequisites precluded claims for which the measure of damages is diverse, claims under separate contracts, and claims for which different remedies are being pursued. Thus, the historic representative action could not accommodate many claims that could otherwise be suitable for a class action. In Naken, the Supreme Court of Canada concluded that the common law’s representative action was inadequate to accommodate the needs of most class or group actions. The Court concluded that a comprehensive legislative scheme was required. The modern class action was a matter for the legislature to invent and fashion.

In the United States, Rule 23 had already responded to the restrictions of the common law. In Canada, class-proceedings legislation was, in part, introduced to overcome the Supreme Court’s, and other courts’, restrictive view of class proceedings at common law. But in 2001, many years after the Naken decision, the Supreme Court of Canada recognized the need for a mechanism to resolve the problem of many claimants suffering a mass wrong and accepted that the common law could be developed to accommodate class actions.14 In Western Canadian Shopping Centres, Inc. v. Dutton, the Court decided that four conditions are necessary to a class action under the developed common law: (1) the class must be capable of clear definition; (2) there must be issues of fact or law common to all class members; (3) success for one class member must mean success for all; and (4) the class representative must adequately represent the class.15 Common-law civil procedure already required that a plaintiff show a reasonable cause of action.

13. [1983] 1 S.C.R. 72 (Can.).

14. Western Canadian Shopping Centres, Inc. v. Dutton, 2001 SCC 46, para. 26 (Can.).

15. Id. at para. 35.

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These criteria for a class action were already recognized in the Canadian statutory schemes existing at the time of the Dutton judgment. For example, under Ontario’s 1992 Class Proceedings Act, the court shall certify a proceeding as a class proceeding if: (a) the pleadings disclose a cause of action; (b) there is an identifiable class; (c) the claims of the class members raise common issues of fact or law; (d) a class proceeding would be the preferable procedure; and (e) there is a representative plaintiff who would adequately represent the interests of the class without conflict of interest and who has produced a workable litigation plan.16 Thus, for an action to be certified as a class proceeding, there must be a cause of action shared by an identifiable class from which common issues arise that can be resolved in a fair, efficient, and manageable way to advance the proceeding and achieve access to justice, judicial economy, and the modification of behavior of wrongdoers.17 The Canadian criteria differed from those in the United States under Rule 23, but there were many similarities. And the underlying policy issues and policy problems are identical.

In Dutton, the Supreme Court referred to the need for court processes to keep step with mass production and other features of modern society.18 It relied, in part, on the influential Ontario Law Reform Commission’s Report on Class Actions which, almost ten years earlier, called for the enactment of class-proceedings legislation.19 In its report, the Commission stated: The mass production and sale of an inherently defective product has the potential to touch all consumers of that product. Misleading advertising by a large corporation can have province-wide or even national implications. Large scale pollution of rivers or the atmosphere can affect countless persons over a long period of time. Sophisticated securities frauds, discrimination in hiring, illegal strikes, and many other types of unlawful conduct have direct and indirect ramifications for all of society. And in the 16. Class Proceedings Act, S.O. 1992, c. 6, § 5(1) (Can. Ont.).

17. See Sauer v. Canada (Minister of Agric.) (2008), 169 A.C.W.S. 3d 27, para.

14 (Can. Ont. Sup. Ct. J.).

18. See Dutton, 2001 SCC at para. 26.

19. 1 ONT. LAW REFORM COMM’N, MINISTRY OF THE ATTORNEY GEN., REPORT ON CLASS ACTIONS (1982) (Can.).

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wake of such misconduct, the individual is very often unable or unwilling to stand alone in meaningful opposition.20 The Court came to recognize that a class action is a procedural mechanism whose purpose is to “facilitate access to justice for citizens who share common problems and would otherwise have little incentive to apply to the courts on an individual basis to assert their rights.”21 Moreover, “[i]n its simplest terms, the class action is an alternative to multiple individual proceedings involving one or more common issues.”22 The fundamental policy idea supporting class-proceedings legislation and the modern class action is access to justice for a group of claimants who have been injured by a mass wrongdoing. For example, using a class proceeding with a representative plaintiff, numerous consumers injured by a negligently manufactured pharmaceutical can sue the manufacturer for compensation for their personal injuries. With a representative plaintiff, all the passengers injured in a train derailment can sue the carrier for their losses. And franchisees harmed by the breaches of contract of their franchisor can sue as a group to right the wrongs they have suffered. With a representative plaintiff, a group of investors purchasing a corporation’s stock who are injured by the corporation’s misrepresentations during a public offering can sue the corporation for their trading losses.

Class-proceeding legislation should be generally construed. Three public policy purposes underlie the modern class action: (1) access to justice; (2) behavior modification; and (3) judicial economy, including the avoidance of a multiplicity of proceedings.23 The theory is that by aggregating the group members’ claims, a class action is designed to balance the litigation efficiencies that normally favor the defendant, whose investment in mounting a defense to one claimant’s

20. Id. at 3.

21. Bisaillon v. Concordia Univ., 2006 SCC 19, para. 16 (Can.) (citations omitted).

22. Davis v. Canada (Att’y Gen.), 2007 NLTD 25, para. 34 (Can. Nfld.), aff’d, 2008 NLCA 49; accord Hislop v. Canada (Att’y Gen.), 2009 ONCA 354, para. 57 (Can. Ont.), leave to appeal to SCC refused, 2009 SCC 33234.

23. Dutton, 2001 SCC at paras. 27–29; Hollick v. Toronto (City), 2001 SCC 68, para. 27 (Can.); Abdool v. Anaheim Mgmt. Ltd. (1993), 15 O.R. 3d 39, 47 (Can. Ont. Gen. Div.), aff’d, (1995), 21 O.R. 3d 453 (Can. Ont. Div. Ct.).

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case has utility for resisting other claimants’ cases. Thus, “class actions improve access to justice by making economical the prosecution of claims that would otherwise be too costly to prosecute individually.”24 The solidarity of a group claim also removes psychological barriers to accessing justice. And aggregating the claimants and their claims means that a defendant cannot get away with harming many when the value of individual claims that would not otherwise justify bringing the defendant to account for its wrongdoing.

The modern class action is based on an entrepreneurial model.

And it is this model that is at the core of the “devils versus angels” dialectic about class actions. The legislatures decided that access to justice could be achieved by means of entrepreneurial lawyers taking on the risks of group litigation in exchange for a share in the claimant’s recovery. This entrepreneurial incentive model for class actions is at the center of the ideological debates about the modern class action.

The ideological debates focus on damages class actions—suits for monetary relief—where defendants, often large corporations, and other class-actions opponents charge that the entrepreneurial model encourages clientless, fabricated, frivolous, vexatious, or meritless claims. Aggregating the concocted claims of the entrepreneurial lawyer makes the risks of a meritorious defense failing so great that the defendant must settle notwithstanding its innocence of wrongdoing. Class-actions opponents, who say class actions are with the devil, argue that it is unjust and not in the public interest that defendants pay ransom for the benefit of the entrepreneurial lawyer when the defendant is innocent of wrongdoing but wary of the risks of litigation and that this injustice is particularly socially dysfunctional when the cost of the coerced settlement is ultimately passed on to shareholders, consumers, or taxpayers.

Further, class-actions opponents argue that, even when the lawsuit is actually meritorious and even when many persons have actually been injured, the entrepreneurial model does not produce just settlements. The entrepreneurial lawyer may collude with the defendant and the parties may be content to settle for a return that is handsome for the lawyer. But that does not provide just compensation for the persons actually harmed: the class members.

Once again, the class action is more for the benefit of the 24. Dutton, 2001 SCC at para. 28.

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entrepreneurial lawyer than for class members. Class-actions opponents are skeptical that the safeguards built into the system— namely judicial case management, the requirement of certification screening, and the requirements of court approvals of settlements and lawyer’s fees—actually work to prevent the system from being abused for evil ends.

But class-actions proponents, who say class actions are with the angels, deny that any of these criticisms are true. They assert that, because governments do not have the will or the resources to pursue the wrongdoers, the entrepreneurial model provides genuine access to substantive justice and genuine behavior modification that benefits society. These proponents also assert that the aggregate claims advanced are for genuine claimants against real wrongdoers who should be brought to justice. The entrepreneurial lawyers take credit for modifying defendants’ behavior and for deterring the bad behavior of others who would realize that they cannot get away with hugely profitable misdeeds where an individual victim cannot afford to litigate because there is corrective collective action with class counsel as the champion for the victims. The entrepreneurial lawyers proudly play the role of private attorney generals, and they are particularly proud of discovering claims where each class member has a small loss but the defendant’s aggregate ill-gotten gains are huge; visualize 1 million consumers each suffering a $10 loss, which is a $10 million ill-gotten gain.

The late Ian Scott, the Ontario Attorney General who introduced the 1992 Class Proceedings Act,25 acknowledged that class actions were “a cost effective way to promote private enforcement and thereby take some of the pressure off enforcement by the budgetstrained government.”26 The entrepreneurial model has resulted in the

25. See generally Class Proceedings Act, S.O. 1992, c.6 (Can.).

26. See Jasminka Kalajdzic, Access to Justice for the Masses? A Critical Analysis of Class Action in Ontario 53 (2009) (unpublished L.L.M thesis, University of Toronto) (on file with author) (quoting Justice Binnie of the Supreme Court of Canada who recounted Ian Binnie’s vision for class action and the effect the Class Proceeding Act, 1992, will have on governmental ministries); IAN SCOTT WITH NEIL MCCORMICK, TO MAKE A DIFFERENCE: A MEMOIR 182 (2001) (explaining how the class action Ian Scott himself set up ensured commonality between members of the class and established safeguards to prevent frivolous causes of action); Alfresh Beverage Can. Corp. v. Hoechst AG (2002), 16 C.P.C. 5th 301 (Can. Ont. Sup. Ct. J.) (expressing a similar view to Ian Scott’s intentions

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pursuit of many class actions following regulatory agencies’ investigative reports or following government administrative agencies’ regulatory rulings.27 Entrepreneurial lawyers may respond to problems that have been identified by a regulator by bringing actions for negligence and product liability against the product manufacturer and the product’s regulator, which may be a government agency or a government.28 For example, there have been numerous class actions that follow a regulator`s ruling that a health device or a pharmaceutical is dangerous.29 There have been class actions that follow a regulator`s ruling that a product may be dangerous to the public and must be recalled, repaired, or replaced.30 But it has incensed class-actions opponents that some class actions are the “piggy-back” and “ambulance-chasing” responses of entrepreneurial lawyers to a regulator’s investigations and announcements rather than client-initiated litigation by a member of the injured public.31 The public policy of encouraging the private enforcement of public and administrative-law regulatory functions has been criticized on a variety of grounds. Reviewing antitrust law’s public and private law enforcement, Harvard Law professors David Rosenberg and James S. Sullivan question whether “piggy-back” class actions add anything to the existing public-enforcement effort in terms of deterrence, compensation, or the advancement of public policy. And they note that, in every given case, it is a question of whether the class action adequately supplements the public enforcement or grossly overshoots the optimal enforcement of competition law.32 They note that the private enforcement of antitrust law may interfere with the public enforcement and that private enforcement may be socially undesirable, because the brute force of a class action wants for the discriminating and highly refined enforcement methods used by regulators more attuned to the needs of and desires of class action as a regulator of public interest for public policy objectives).

27. See Kalajdzic, supra note 26 at 19–20, 29.

28. See id. at 18, 18 n.20, 29, 93.

29. See id. at 19–20, 20 n.23, 29.

30. Id. at 84, 93.

31. David Rosenberg & James P. Sullivan, Coordinating Private Class Action and Public Agency Enforcement of Antitrust Law, in LITIGATING CONSPIRACY: AN ANALYSIS OF COMPETITION CLASS ACTIONS 47, 49 (Stephen G.A. Pitel ed., 2006).

32. Id. at 49–51.

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the regulated business or industry.33 In other words, the class action is devilish overkill and more harmful than helpful.34 Further, there is the criticism that the enforcement of a public-law function through class actions leaves the decision of whether to enforce to entrepreneurial lawyers, who will select cases based on their economic value, thus ignoring worthy cases: particularly the smaller ones that would be socially useful opportunities for access to justice, behavior modification, and judicial economy. That class counsel reject the smaller cases is sadly ironic given the access-tojustice purpose of class-action statutes.

Policy analysts for the RAND Institute for Civil Justice suggest that the key policy question in this debate, the “angels versus devils” debate, is whether these entrepreneurially driven lawsuits are on balance socially beneficial.35 The contentious social-utility balancing arises because, although public-sector regulators may be unable to bring meritorious suits, entrepreneurial lawyers may be motivated to bring too many unmeritorious suits because of the potential for generous financial rewards.36 But such lawsuits are unjust because the defendants are motivated to settle in order to rid themselves of a nuisance claim or the risk of an aberrant court judgment on the merits. Further, even if the underlying claim is meritorious and the wrongdoing real, the entrepreneurial lawyers may be motivated to settle meritorious suits too quickly and too cheaply, without having achieved substantive access to justice for the class members or meaningful behavior modification of the defendants.

But there are analytical problems built into this policy question and in the underlying ideological debate about whether class actions are angelic or devilish in nature. There are at least three problems associated with criticizing the sins or extolling the virtues of class actions and with determining the societal worth of class actions.

These problems may obscure finding an answer to the question of whether the modern class action is with the angels or with the devil.

The first problem arises from the fact that class actions are a procedural device. Class actions are designed to achieve their goals of access to justice, behavior modification, and judicial economy without altering the substantive law. Class actions are procedural in

33.

34.

35.

36.

See id. at 50–56.

See HENSLER ET AL., supra note 1, at 9–10.

See id.

Id.

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nature; a class action does not create new substantive rights.37 While proceeding by way of class action may have some effect on substantive law, the class-action proceeding is neither designed nor intended to override long-standing substantive legal principles.38 The procedural nature of class actions means that class actions, as a human construct of civil procedure, are neither inherently good nor fundamentally evil. But they have the capacity to be instruments of good and of evil—or a bit of both.

This truth explains why class-actions proponents can present examples of socially beneficial class actions and class-actions opponents can present examples of socially detrimental class action.

But these examples ultimately prove nothing about the angelic or devilish nature of class actions. In other words, class actions are not inherently good or bad. Their worth and social utility depends on their use. Thus, the social utility of class actions ultimately depends upon whether their use can be regulated to yield for society as much good and as little evil as possible.

This truth also explains why a better policy question is whether the design of class actions includes effective ways to regulate a device that has propensities for doing good or doing evil. And this truth explains why the debate about the social merits of class actions frequently focuses on the adequacy of the existing regulatory devices.

As noted in passing above, the chief of these regulatory devices are: (1) class actions are managed or supervised by designated judges; (2) proposed class actions must satisfy legislatively prescribed criteria in order to be certified as class proceedings; and (3) settlements and lawyers’ fees must be approved by the court. Class-actions opponents

37. Bisaillon v. Concordia Univ., 2006 SCC 19, paras. 17-22 (Can.); Hollick v.

Toronto (City), 2001 SCC 68, paras. 14-15 (Can.); MacKinnon v. Nat’l Money Mart Co., 2004 BCCA 472, para. 44 (Can. B.C.); Kanitz v. Rogers Cable Inc. (2002), 58 O.R. 3d 299, para. 50 (Can. Ont. Sup. Ct. J.); Ont. New Home Warranty Program v. Chevron Chem. Co. (1999), 46 O.R. 3d 130, para. 50 (Can. Ont. Sup. Ct. J.); Serhan Estate v. Johnson & Johnson (2006), 85 O.R. 3d 665, para. 41 (Can. Ont. Sup. Ct. J.); Smith Estate v. Nat’l Money Mart Co. (2008), 57 C.P.C. 6th 99, paras. 61, 114 (Can. Ont. Sup. Ct. J.), aff’d on other grounds, 2008 ONCA 746 (Can. Ont. C.A.); Hislop v. Canada, 2009 ONCA 354 (Can. Ont.); Bendall v.

McGhan Med. Corp. (1993), 14 O.R. 3d 734, para. 48 (Can. Ont. Gen. Div.), perm. app. denied, [1993] O.J. No. 4210 (Can. Ont. Gen. Div.).

38. Brown v. Newfoundland and Labrador (Workplace Health, Safety and Comp. Comm’n), 288 Nfld. & P.E.I.R. 136, para.15 (Can. Nfld.).

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submit that these devices do not wring the evil out of the modern class action.

Class-actions proponents deny any evil but submit that the design of class action is more than adequate to prevent class actions from being misused or abused by entrepreneurial lawyers. The point remains, however, that once it is recognized that class actions are an invented procedural device, their social utility also becomes something to be invented and accomplished—and the angels versus devils debate is reshaped as a prescriptive debate rather than a descriptive debate.

The designed nature of class actions brings the discussion to the second problem of criticizing the class actions’ social utility and the entrepreneurial model that underlies it: the problem is that of diversity. A consumer product-liability class action about a shoddy but not dangerous product is very different from a consumer productliability class action for a dangerous product that caused physical or psychological injuries, which might range from trivial to permanent disabilities, suicides, and deaths.

A product-liability class action is very different from an antitrust or a pension-surplus class action. And these are all very different from an employment class action or an environmental-harm class action. The diversity of class actions makes it difficult to determine class actions’ social worth, because it is difficult to design a single mechanism that must be adaptable for a wide range of situations of mass wrongdoing. In whatever way class actions are designed, and in whatever way the regulatory devices associated with them are fashioned, the design and the devices must deal with a very diverse spectrum of cases.

This diversity problem raises questions about whether the devices to regulate class actions are flexible enough to deal with multifarious class proceedings. It also raises questions about whether the devices are adequate to deal with problems associated with representative, group, or collective proceedings that have little, if anything, to do with the entrepreneurial nature of the model and more to do with the diverse nature of the claimants being represented by the representative plaintiff and the entrepreneurial class counsel.

The third problem for a critique of class actions is the role of the judiciary. Before moving on to discuss this problem, it is important to note that very little, if any, criticism is aimed at the social utility of class actions that proceed to a court judgment, which determines the culpability, if any, of the defendant and that quantifies the amount, if

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any, of that liability. And there is no criticism aimed at class actions where the defendant consents to certification and admits liability to pay the class members compensation that comes close to making them whole for their losses and injuries. In both of these circumstances, the courts use the powerful distributive mechanisms of class actions to compensate the class members for their claims.

Rather, the criticism of class actions focuses on whether the certification procedure is adequate to screen out cases not worthy to proceed to a trial and on whether settlements are fair to the class members on behalf of whom the class action was certified.

So class actions’ criticism focuses on the front end of the procedure, whether the certification procedure is adequate to screen out cases not worthy to proceed to a trial, and whether settlements are fair to the class members on behalf of whom the class action was certified. Thus, upon analysis, the more precise focus of the debate about whether class proceedings are angelic or devilish is about the front end of the class-action procedure—not about the merits of trials in class actions. The debate is about whether the certification criteria are adequate to screen out the bad cases, and on whether the court’s supervision of the settlements and of the fees charged by the entrepreneurial lawyers is adequate to ensure that the interests of the class members are not sacrificed to the interests and expedients of class counsel and collusive defendants. The debate focuses on whether judges must, can, and do act as gatekeepers to allow the good class actions to pass through the gates of certification and settlement approval or whether the courts are failing in their role as the gatekeepers and guardians of the integrity of class actions.

The modern class-action regimes call for an activist and inquisitorial judiciary. But apart from its parens patriae jurisdiction, it is not common for courts to be so involved in the civil procedure of its litigants throughout the course of the litigation. And as the policy analysts of the RAND Institute for Civil Justice note: “How judges exercise their responsibilities not only determines the outcomes of class actions that come before them, but more important, also determines the shape of class actions to come.”39 The policy analysts argue that “[j]udges hold the key to improving the balance of good and ill consequences of damage class actions.”40

39. See HENSLER ET AL., supra note 1 at 25.

40. Id. at 31.

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But the problem of the refocused debate is that neither certification nor settlement approval are designed to be, nor are capable of being, a determination of the actual merits of the class members’ substantive claims. “An order certifying a class proceeding is not a determination of the merits.”41 On a certification motion, the question is not whether the plaintiff’s claims are likely to succeed on the merits, but whether the claims in the action can appropriately be prosecuted as a class proceeding.42 The purpose of a certification motion is to determine how the litigation will proceed, not to address the merits of the plaintiff’s claim; there is to be no preliminary review of the merits of the claim.43 The question for a judge on a certification motion is not whether it will succeed as a class action, but rather whether it can work as a class action.44 And the question on a settlement approval is whether the settlement is fair, reasonable, and in the best interests of the class members.45 But the dilemma of the refocused debate is that the measure of the judiciary’s success as a gatekeeper ultimately depends upon an assessment of the substantive merits of the law suit—and an order certifying a class proceeding is not a determination of the merits.

Ultimately, a criticism of the modern class action is a criticism of the role of the judiciary in a modern class-action regime. But it is difficult to measure whether the judiciary is succeeding or failing in carrying out its tasks without an actual assessment of the merits of the claim and defense. The critique of class actions becomes a theoretical inquiry into whether judges have the skill set and the

41. Class Proceedings Act, S.O. 1992, c.6, § 5(5) (CanLII 2014).

42. Hollick v. Toronto (City), [2001] 3 S.C.R. 158, para. 16 (Can.); Wheadon v.

Bayer Inc., 2004 NLSCTD 72 (Can. Nfld.).

43. Hollick, 2001 SCC at 159–60 (Can.); Morston v. Ontario Mun. Emp.s Ret. Bd. (2004), 4 C.P.C. 6th 115, para. 33 (Can. Ont. Sup. Ct. J.); Boulanger v.

Johnson & Johnson Corp. (2007), 40 C.P.C. 6th 170, para. 20 (Can. Ont. Sup. Ct. J.); Picard v. Québec (Att’y Gen.), 2007 QCCS 2122, para. 65 (Can. Que.). See also Ian C. Matthews, Preliminary Merits Review for Class Actions in Ontario: Thanks, but No Thanks! 6 CAN. CLASS ACTION REV. 119, 135–147 (2010).

44. Ramdath v. George Brown Coll. of Applied Arts and Tech., 2010 ONSC 2019, para. 40 (Can. Ont. Sup. Ct. J.).

45. See Baxter v. Canada (Att’y Gen.), 40 C.P.C. 6th 129, paras. 9–10 (Can. Ont. Sup. Ct. J.); Dabbs v. Sun Life Assurance, [1998] O.J. No. 1598, para. 14 (Can. Ont. Gen. Div.); Kidd v. The Canada Life Assurance Co., 2013 ONSC 1868, para. 3 (Can. Ont. Sup. Ct. J.); Parsons v. Canadian Red Cross Soc’y, 40 C.P.C. 4th 151, paras. 76, 80, 89 (Can. Ont. Sup. Ct. J.).

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institutional tools to curb any propensity for evil in an otherwise good procedural tool for access to justice.

The design of class actions and the regulatory devices associated with class actions depend upon courts moving outside of their normal sphere of using the tools of an adversarial system. To adjudicate disputes into a sphere where in order to determine whether to approve settlements and whether to approve the entrepreneurial lawyers’ fees and share of the settlement, the court is called on to be more inquisitorial and interventional than in conventional litigation under the adversarial system. Thus the societal value of a class proceeding, and whether it has been used for good, depends upon courts closely managing the process, including the notice given to and participation of class members, and closely scrutinizing the fairness of the settlement, including the details of the plan of distribution and the administration of the claims process.

In any event, this problem of examining the performance of the judiciary, like the problems of the diversity of class action situations and the designed nature of class actions, reorients the debate about the question of whether class actions are with the angels or with the devil.

So what is the answer to this question? The answer is yes; class actions are indeed with the angels or with the devil. But as the discussion above reveals, this simple answer raises a more difficult question to answer, which is whether judges have the skill set and the institutional tools to curb any propensity for evil in an otherwise good tool for providing access to justice.

REMARKS JUNE 22, 2013 LANSING, MI THOMAS M. COOLEY LAW REVIEW DISTINGUISHED BRIEF AWARDS JUSTICE STEPHEN J. MARKMAN I guess I’m always happy when I’m introduced. And I’m introduced differently than I was several weeks ago when I was introduced as one of the finest judges that money could buy in Michigan. My wife was introduced as one of the finest ladies to walk the streets, and I think she was similarly perplexed by that introduction.

All you need to know about appellate advocacy. There was the great Chief Justice that was sitting by the river many years ago in northern Michigan; it may have been the Upper Peninsula, now that I think about it. He had been retired for a very many years, but he was still the Chief Justice of the court in the eyes of most people. He was sitting by a river, a fast running river, and there was a traveler that came by and said, “I need to cross to the other side of the river. I see that you have a boat there. Would it be possible for me to use your boat, for me to borrow your boat?” And the great Chief Justice said, “I think that would be okay. You may use the boat.” And the traveler used the boat and started to cross the river. Unfortunately, there was a hole in the boat, and the boat sank, and the man drowned. There was a third person looking on at all this, and he walked over to the Chief Justice and said, “Why didn’t you inform the man that there was a hole in the boat?” and the great Chief Justice said, “Well that question was not presented to me.” All you need to know about appellate practice.

Let me tell you about one case that I was looking at yesterday.

We don’t get very many traffic cases, but there was this one traffic case that winded its way to the court. And it seemed there was a gentleman that was driving too fast, and the red and blue lights on the car behind him started flashing, and he was pulled over. The policeman walked over to the car and said, “Sir, you must have been traveling at least 20 miles over the speed limit.” And the driver said, “Sir, Officer, that couldn’t be the case. I couldn’t have been going more than one or two miles over the speed limit.” And at this point, his wife who was sitting right next to him, said, “Oh, Harry, you

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know you must have been going at least 20 miles over the speed limit.” And then the officer said, “I also noticed you have a broken light in the back of your car.” And the driver said, “Officer, I didn’t know anything about that. This is the first I’ve heard of that.” And his wife leaned over to the driver and said, “Harry, you know that light’s been out for a month. What are you talking about?” And then the officer said, “You were also driving without a seatbelt.” And the driver said, “Sir, I had my seatbelt on, I just took it off when you approached the car.” And his wife leaned over and said, “Harry, you know you never wear a seatbelt.” And at this point Harry turned to his wife and said, “Can’t you just shut up and be quiet?” And the officer said to the woman, “Does he always treat you this way? Does he always speak to you like this?” And the woman said, “Oh no, no, officer, only when he’s been drinking.” I don’t know what we’re going to do in that case, but we’re going to struggle with it and deal with it as justly as we can.

But it’s great to be here at this event. I’m delighted to address Cooley Law School’s Distinguished Brief Award dinner. I’ve been privileged to have previously judged this award a number of years ago and have always been tremendously impressed by the overall caliber of the briefs that were submitted to the competition. And by my review of this year’s award-winning briefs, those standards have clearly been maintained this year. And by this competition, I think that Cooley has played an important role in contributing to the quality of appellate practice in our state. And I congratulate all of you who are involved in this competition. It really does make a difference.

I’ve also once before spoken at this same dinner. Although on that occasion I did not participate in actually judging the competition.

And although I would like to believe that you’ve invited me again to address this evening because of the perspectives and insights on appellate practice that I might share with the students of Cooley, I must reluctantly acknowledge that there might be a more plausible explanation for your invitation. It is that, although when I last spoke at this dinner, I had not judged any briefs in that competition, I had judged each of the winning briefs in the courtroom. I had judged each of the three winning briefs following oral arguments, and each of the three winning briefs had lost. On each occasion, the nondistinguished brief had prevailed.

And I suspect that I have been invited to speak again at this dinner because you wanted Cooley students to have a glimpse of a

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judge who, the last time he was here, was not persuaded by all the statewide, award-winning briefs—and that’s no small accomplishment. You wanted Cooley students to witness a jurist who had repeatedly resisted the logic, and the insight, and the power of three of the most compelling and thoughtful briefs filed during an entire year in the appellate courts of Michigan. And you wanted this judicial specimen to be brought before you so that your students might be forewarned that on extraordinary occasions during your own legal careers, you too might have to confront such a jurist and ought to be prepared for that ordeal.

And I am that judge. Each brief had been presented to me in the course of appellate arguments. Each of them had garnered the vote of three of the seven justices of my court—which, for those who are mathematically challenged, is not an altogether welcome result. And each found myself on the side of the brief that probably, for very good reason, had never been submitted for this competition. Perhaps then, I thought at the time, you were seeking my participation in this event so that you could derive a litmus test by which your future competitions could more efficiently be decided. That is, you could summarily place in the rejection pile those briefs that actually persuaded Justice Markman. If, however, he had not been persuaded by a brief, perhaps it might be worthy of your consideration. All you would need is a check-off box accompanying the submission form: “Was this case considered by the Michigan Supreme Court? If so, did Justice Markman adopt a position (A) in support of the brief, (B) in opposition of the brief, or (C) I couldn’t decipher what he said?”

Well I’m back this year, and I’m pleased to tell you that my consciousness has been raised since that last time I was before you.

And after review of the winning briefs this year, and after an afternoon spent by my law clerk seeking to decipher my position in these cases, it appears that I decided in favor of two of the three winning briefs—a far higher batting average than last time. And I hope that the author of the third brief will please sit at a different table from me so that he will not be tempted to spill gravy or salad dressing all over me.

Now of course, I’ve gone back to review the winning briefs as I did last time. And upon further review, as well as in truth, upon initial review, these were all outstanding and extraordinarily wellcrafted briefs. And the Cooley judges, as they are accustomed to doing, made wise decisions.

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It is sometimes the case, however, that I and my colleagues on the Court will decide on a case but may choose to append to our decision with a footnote or other statement making clear that the case was decided for reasons other than those presented by the winning attorney. That is, the right results, wrong reasons. And it is even sometimes the case that we have wished to append to our decision a footnote or other statement making clear that the case was decided despite the arguments of the winning attorney. And on more than a few occasions, it has been the case that if there is a fee involved, we have wished that the winning attorney be deprived of his right to receive that fee.

And of course, the corollary is true. It is also sometimes the case that I and my colleagues will wish to append a footnote or other statement extoling the work of the losing attorney and absolving him or her of any responsibility for that outcome. In such cases, the facts and the law were just too much to overcome, but he or she did their best in that case.

Despite all of these temptations to append gratuitous statements, we rarely engage in such extracurricular communications. But of course, it is necessary for all of you to understand, as I believe that you do, that good briefs do change judicial minds.

But even the best brief cannot change the mind of a judge who believes firmly that the law simply favors the other side. That is, in the end, it is not the work product of the lawyer that is being assessed by the courts, but it is the work product of the lawmaker. Even when Tom Brennan, your school’s founder and Dean Emeritus, has appeared before our court, it is not his authority or his mastery of the law or his persuasiveness as an advocate that is ultimately being judged, as he understands well as a former justice. But it is what outcome is viewed as being compelled by the law. And the best lawyers understand that, and they argue the law. The issue is not their personality and their charisma, or their flare, or their style. In fact, in our court, you can’t even move an inch or two away from a single standing position because you’ll lose track of the microphone if you do that.

While a distinguished brief can assist the court in difficult cases (and these are usually the type that wend their way to the Supreme Court) by supplying guidance as to how to navigate the law and by focusing upon what is significant in the law and what is not significant, a brief, in the end, cannot transcend or overcome the imperatives of the law. As Justice Cardozo once said, “The picture

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cannot be painted if the significant and the insignificant are given equal prominence.” And it is the responsibility of the brief writer to ensure that a distinction is made along those lines.

It is the rule of law that is the great achievement of our civilization. And that is the pursuit of the legal process—not the rule of either judges or lawyers. The rule of law—not the rule of judges or lawyers. And that applies to the brief process, of course, just as it does in every other aspect of the legal process.

Yet none of this gainsays that, in countless cases in which clearing the legal underbrush is at its most difficult, and in which arguments of both sides are reasonable, the impact of a well-written and intelligently organized appellate brief can be decisive. The brief can be your only spokesman before and after the argument when the judge is alone in his chamber. In countless cases that I can recall over my fourteen years on the Supreme Court, and four years before that on the Court of Appeals, I can recall that distinguished-quality briefs have proven decisive in many, many cases—not by reinterpreting or reinventing the law of the land, but by facilitating the judges in the process of discovering that law.

I’d like to spend several minutes with you today in sharing with you what I believe is distinctive about appellate practice before our Supreme Court compared with our appellate practice before our Court of Appeals—a court that hears many times more cases than does my court. It is a distinctiveness that is sometimes overlooked by even experienced appellate advocates; although I note that those who have authored your distinguished briefs by and large have not been derelict in this regard. It is a distinctiveness that has been drawn from the entirely discretionary nature of our jurisdiction. Even the United States Supreme Court, whose jurisdiction is largely discretionary through the exercise of certiorari, has certain limited classes of cases that it is required to hear by statute. However, there are no exceptions to the discretionary nature of the Michigan Supreme Court’s jurisdiction. All of our cases are heard by a leave to appeal that is essentially to the Court’s discretion, although at its wise and thoughtful exercise of its discretion. Unlike our Court of Appeals, which is obligated by law and Constitution to hear almost all first appeals, second and final appeals to the Supreme Court in Michigan are heard only if a majority of the justices agree to do so.

Of the estimated 200 applications for leave to appeal that we receive each month, we grant leave and hear oral argument in only about ten to fifteen of those cases. And we afford some other form of

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preemptory relief in only another ten or fifteen or so cases. In the remainder of the cases we hear or that are presented to us, we deny leave, usually through a boilerplate order, indicating that there has been a failure to persuade. Thus, leave to appeal is denied in approximately 85% of all applications for leave each month.

There are three best practices I believe that emerge from the exceptional character of the Court’s jurisdiction. And each of you, if you plan to come before our court, or practice in the appellate process in Michigan, must bare in mind these best practices if you are going to be as effective as you can be.

First, an advocate must persuade the Court why, among these two hundred appeals each month, special attention ought to be given to your appeal. Why, among all of these appeals, many of which are submitted and well-constructed and well-organized and wellreasoned briefs, should the court grant leave in your case and devote the necessary judicial resources that are required? That, in your judgment, your case has been wrongly decided by the lower courts may be true, and is certainly relevant, but is far from dispositive. For there are many justices on my court who did not view it as merely an error-correcting court, but rather as a law-developing court. Not all justices, but some of them believe that way. Thus, you must typically demonstrate that there is some confusion or uncertainty concerning the law.

For example, the Kent County Circuit Court is deciding one legal issue in a much different way than in the Ingham or Oakland County Circuit Court, and this confusion or uncertainty pertains to an issue of legal consequence, and there are no procedural, or justiciable, or prudential obstacles to clarifying the law in your case. Indeed, one of the principle missions of the Court over the past decade has been to clear the law, to rid the law, of multiple and incompatible precedents.

That is, disputes in which the parties, in the manner of a Chinese restaurant menu, can select their favorite precedent from either column A or column B. Such a legal environment is one that is simply incompatible with the equal rule of law in which there must be a single rule to which the law must adhere.

Cases selected for oral arguments are not selected at random or by lottery, but they’re selected when the Court is persuaded that you’ve satisfied your burden of proof in showing the need for clarification in some legal area and that you, as the legal advocate, can be counted upon, as evidenced by the insightfulness and thoroughness of your brief, to assist the Court in properly resolving

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the issue presented in that case. It is not at all unusual that an appeal will be denied simply because the briefs do not communicate comfortably to the justices that clarification and rationalization of the law is likely to be significantly advanced by oral argument in a case in which the briefs have been authored as they have been or that the resolution of a difficult case can be entrusted to your advocacy. That is, the burden you must overcome to communicate to the Court is not only that the issue is significant, but that its resolution and its working out can be entrusted to your advocacy and that you, as an officer of the court, can be of assistance in giving a reasonable meaning to that law. In sum, where it is generally sufficient in the Court of Appeals to demonstrate merely that the trial court has erred in some regard, it is additionally necessary in the Supreme Court to demonstrate that its limited resources should be engaged in resolving the legal issues that lie at the heart of your dispute. And you must generalize from your individual cases and controversies to demonstrate that the issues that are raised implicate the larger justice system. These are all your obligations.

Second, as an advocate before the Supreme Court, you must seek to assist the Court in identifying a legal rule for deciding not only your specific case, but also the next one hundred cases of a similar character. Too often, I’ve heard lawyers in one manner or another apprise the court in oral argument: “I’m concerned about resolving my case favorably,” they might say, “and I do not much care whether I prevail on the basis of theory A or theory B, or even the opposite theories, so long as I prevail.” Indeed, I remember the lawyer not too long ago who was quite explicit in what he viewed as homespun, country wisdom, “Your honors, I don’t care how you get there, so long as you get there.” These lawyers will, of course, read the opinion that eventually emerges and immediately thumb down to its final words. If these read “affirmed” or “reversed,” they will be pleased or displeased, depending upon their own position, and that will be pretty much all that matters to them. However, this is extraordinarily shortsighted for a skilled appellate advocate, since getting there, in whatever fashion, cannot be all that matters to the justices before whom that lawyer is arguing. Rather, the justices must be concerned about the highway as well as about the destination.

Indeed, the rule of law is focused precisely upon how the judge gets to where he gets, not merely to where he gets. That is, the judge must be concerned about the analysis as well as about the results because that is what defines the rule of law. It is about process, not simply

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results. It is how to get where you’re going by the same rules and by the employment of the same evidence and legal tools of today as you did yesterday and as you plan to do tomorrow. For these reasons, once you’ve complied with the first appellate rule that I shared with you and justified to the Court why it should exercise this rarely invoked authority, should grant leave in your case, you must then explain how it should resolve the law in your case—more specifically, how it should resolve your case (through what legal analysis)—while at the same time articulating a reasonable legal rule or principal that will fairly and logically accommodate the next 100 cases and controversies involving a similar or related type of dispute.

I often hear one of my colleagues, sometimes myself, questioning appellate counsel as to how he or she would write the opinion in the very case that he or she is arguing. What would be your propositions and principles of law? I would never embark upon an argument in the Michigan Supreme Court or in any other tribunal with discretionary jurisdiction without asking myself how specifically I respond to that question. If you were to write the opinion, Counsel, how would your opinion read? What would your rule of law state? And by that question, the court is asking you how you would craft an opinion in that case so that it supplies a coherent statement of law for similar cases and not just a statement of decision for your own case. Most likely, the Court granted leave in your case only because you had identified a larger problem in the legal system. And you owe it to the Court to anticipate and to thoughtfully respond to that question. And indeed, even if it’s not asked, I believe thinking along those lines will supply a useful template for preparing for arguments in your own case.

Appellate courts decide the law through a particular decisionmaking process in which there are rules and traditions and limitations, both legal and prudential. They do not merely decide in a preemptory fashion along the lines of a monarch or autocrat whose legal claims will prevail and whose will not. And it is up to you to distinguish between the power of the court, and the authority of the court. The best advocates will make arguments appealing to the court’s authority, not simply to its power, which, in the view of some advocates, seems to be essentially limitless. Thus, you must evidence the ability to focus not only upon the specific facts of your own case, but also an ability to generalize from those facts to identify classes of facts that are similar and dissimilar and be able to evaluate your proposed legal rule in the context of a broad variety of related cases

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that might tomorrow, or the day after that, be considered by the court.

You run the risk that the court will conclude that leave in your case has been improvidently granted, which is not unusual if you fail to do this—if you fail to recognize that the court is seeking to articulate a legal rule or principle, not merely to identify the winners and losers, the good guys and the bad guys, in this hearing today. In sum, the bench as well as the bar are custodians of our legal system and each has an obligation to ensure that system furthers the rule of law rather than simply resolve cases on an ad hoc basis, which I believe is the antithesis of the rule of law.

Finally—third, Counsel—in arguing before the Supreme Court, as a body vested with entirely discretionary jurisdiction, you must possess at least a moderately sophisticated understanding of jurisprudence. Not only do judges of the Supreme Court have the discretion to modify or even entirely reverse the direction of law, but most are likely to have reasonably well established judicial philosophy informing them as to the circumstances under which the law should be changed. Thus, you must take into account that the judges of the appellate courts are the least fungible among judges in their approach to their own powers and authorities. This explains, for example, why the U.S. Supreme Court increasingly decides cases by a five-to-four division. With such divisions being of a recurrent and regular variety (in which the same justices regularly align themselves against the same other justices, rather than a more fluid balance on a court, in which coalitions might be more random), it explains why state courts of last resort, such as the Michigan Supreme Court, reflect similar lines of demarcation.

In arguing, for example, a common-law case—something you are most likely to do only within in the state system—you must understand how judges view the common law as evolving, what kind of circumstances and societal developments warrant reconsideration of long-standing common-law principles, and how the common law and the positive law are to be reconciled when they conflict. In arguing, for example, stare decisis, an increasingly difficult problem within state courts as a result of more mercurial tenures of state justices, you must understand justices’ differing views as to the constraints imposed by precedent, their differing views as to circumstances in which precedence can be overturned, and their differing views concerning how to resolve the tension between a judge’s oath to the law and constitution and his or her obligation to foster stability and certainty within our legal system. And in arguing

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statutory and constitutional and contractual interpretation, each of which involves slightly different nuanced approaches, you must understand the interpretative tools that a judge deems as appropriate in giving meaning to the law.

How is the law to be given proper meaning? In the course of this you might have to be conversant with the absurd-result rule, with traditional Latin maxims of interpretation, with the policy of legislative acquiescence or non-acquiescence, uses and abuses of legislative history, the rule of lenity in criminal cases, default principles of decision, burdens of proof, and approaches to equity and ambiguity. Each of these concepts has been dispositive in many Michigan Supreme Court decisions over the past fifteen years. With certain justices, for example, you will not want to urge that he or she must enact wise public policy, fill in the gaps left by the legislature, or disregard the language of the law in order to achieve a legislatively fair outcome. And with other justices, you must take equal care not to overly emphasize the role of dictionaries or suggest that interpretations of a law undertaken a century ago must invariably be treated with deference today.

One seriously intent upon becoming an appellate advocate of the first strike in the Supreme Court should understand the nature of the contemporary debate concerning the role of the judiciary and should avoid caricaturing the approaches and premises of the other side. In this regard you would do well—this is the same advice I gave several weeks ago at your graduation ceremony on the campus of Michigan State—you would do well to abide by the counsel of Abraham Lincoln, a mid-nineteenth century lawyer whose admonition I always thought obvious, but correct: If you wish to be a lawyer, be assertive, get books, sit down anywhere, and go reading for yourself. That will make a lawyer out of you quicker than any other way. Reading, reading, and reading is the main thing. Read Justice Scalia, and read Judge Bork, and also read Justice Briar, and read Professor Tribe on jurisprudence. Read Justice Story, and read a Justice you may have heard of by the name of Cooley, who used to be on the Michigan Supreme Court quite a few years ago. Read them on the law and the constitution, and how these evolve. You’re certain to differ with at least some of these commentators, it’s impossible not to, but you will better understand the audience before whom you are arguing your appeals. And you will also be better able to practice your profession.

Thus, in arguing before a court whose jurisdiction is entirely or largely discretionary, as with the Michigan Supreme Court and most

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of the other state supreme courts in the Union, you must first communicate why, among the many cases pending before that court, your case must be given priority in its issues resolved. You must, second, assist the court in resolving these issues so that they can produce a responsible outcome in the next one hundred similar cases before the court, and not merely a pleasant outcome in your specific case. And third, you must understand, in a relatively nuanced fashion, the jurisprudential first principles of the judges whom you are attempting to persuade.

And finally, I will give you one entirely gratuitous, an entirely unrelated bonus suggestion—one that I know would be concurred in by almost every appellate judge with whom I’ve ever sat with. Do not ever, ever tell the court, as a means of justifying your inability to answer a question about a case, “Your honor, I was not the trial counsel in this case.” It is the mark of an inexperienced and usually unprepared appellate attorney when this is said. And you are always better to say, “Your honor, I do not know,” or “I do not recall.” In fact, you’re better to say, “I don’t care,” but I wouldn’t suggest that either.

Thank you all for your invitation to join you this evening. I am very proud to be here, and congratulations on another successful distinguished-brief competition. Thank you.

DISTINGUISHED BRIEF The Distinguished Brief Award is given in recognition of the most scholarly briefs filed before the Michigan Supreme Court, as determined by a panel of eminent jurists. Three briefs are chosen each year and printed in the Thomas M. Cooley Law Review.

INTRODUCTION

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v.

DAVID MARK COLE, Defendant-Appellant.

This amicus brief on behalf of the Criminal Defense Lawyers of Michigan and the American Civil Liberties Union (ACLU) of Michigan argues that defendants accused of first- or second-degree criminal sexual conduct in Michigan must be made aware that pleading guilty will result in mandatory, lifetime electronic monitoring after their release in order for any plea to be valid under Michigan law and the U.S. Constitution. To be lawful, guilty pleas must be knowing and voluntary, which requires that defendants be informed of any punishment that would be a direct consequence of their guilty plea. Lifetime electronic monitoring is a direct consequence of a guilty plea to first- or second-degree criminal sexual conduct because it is mandatory and follows automatically from conviction. Lifetime electronic monitoring is also punishment because, at a minimum, it is demonstrably punitive in its effects on offenders. As the brief documents at length, lifetime electronic monitoring imposes severe physical, financial, and social burdens, and these disabilities and restraints are unrelated to or vastly excessive when compared to any reasonable non-punitive governmental interest.

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BIOGRAPHICAL STATEMENT

J.J. PRESCOTT—is a Professor of Law at the University of Michigan Law School, where he has taught since 2006. His research interests include criminal law, sentencing law and reform, employment law, and civil litigation. Much of his work is empirical in focus, and he is particularly interested in how law affects individual behavior—i.e., the real world. His recent and ongoing work includes an examination of the effects of sex offender registration and notification laws on the frequency and incidence of sex crimes and an empirical study of the socioeconomic consequences of criminal record expungement in Michigan.

Professor Prescott earned his JD, magna cum laude, in 2002 from Harvard Law School, where he was the treasurer and an editor of the Harvard Law Review. After clerking for Judge Merrick B. Garland on the U.S. Court of Appeals for the D.C. Circuit, he went on to earn a Ph.D in Economics from the Massachusetts Institute of Technology in 2006. He lives in Northville with his wife Sarah, a trial lawyer, and his two children, Annelise and Alex.

MIRIAM J. AUKERMAN—joined the ACLU of Michigan in December 2010 as the staff attorney for the newly opened West Michigan Regional Office. In addition to building a robust legal program in West Michigan, Aukerman participates in advocacy activities, such as public speaking, media interviews, and outreach work, to increase understanding of constitutional rights and the ACLU’s work. For nearly ten years, Aukerman has been an active member of both the ACLU of Michigan Western Branch Board and its Lawyers Committee. She has served as a cooperating attorney on many important issues, including racial profiling in Grand Rapids and a challenge to a Dearborn ordinance restricting protests that resulted in a significant Sixth Circuit decision on the right to protest.

She also led the ACLU’s election protection efforts in Grand Rapids in 2004 and 2008. Aukerman graduated summa cum laude from both Cornell University and the New York University Law School, where

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she received numerous academic and public-interest awards. She was also a Keasbey Scholar at Oxford University, earning a master’s degree with honors in international relations. Following law school, she was selected for a judicial clerkship on the U.S. Court of Appeals for the Second Circuit in New York with Judge Pierre Leval. The daughter of a minister, Aukerman lives with her husband and two children in Grand Rapids.

MICHAEL J. STEINBERG—has served as the Legal Director of the ACLU of Michigan since 1997 and is responsible for overseeing all litigation taken on by the ACLU throughout the state. He has worked on numerous high-impact, high-profile cases on a wide range of civil-liberties issues including freedom of speech and expression, post-9/11 issues, religious freedom, racial justice, LGBT rights, police misconduct, women’s rights, reproductive freedom, voting rights, right to counsel, and prisoner rights. Steinberg earned a B.A. with honors from Wesleyan University in 1983 and is a 1989 cum laude graduate of Wayne State University Law School. Upon graduation, he clerked for then Michigan Court of Appeals Judge Marilyn Kelly (now a Michigan Supreme Court Justice). He then established his own private practice in Ann Arbor where he specialized in civil and criminal appeals and civil-rights litigation.

Steinberg is an adjunct professor at Wayne State University Law School, a former high school teacher and coach, a former president of the Ann Arbor Chapter of the National Lawyers Guild and a founding board member of Michigan Peace Action. He has received numerous honors, including being named a public-interest fellow at Harvard Law School.

KARY L. MOSS—has served as the Executive Director of the ACLU of Michigan since 1998. She earned a Masters in International Affairs from Columbia University and a JD from CUNY Law School at Queen’s College. Before joining the ACLU of Michigan, she clerked at the United States Court of Appeals for the Second Circuit and then served as staff attorney with the ACLU’s Women’s Rights Project which was founded by Justice Ruth Bader Ginsburg. Since joining the staff, Moss has spearheaded tremendous

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growth in the organization. In addition to leading two effective capital and operating campaigns, the organization’s programs have included many high impact, important civil-rights cases including the country’s first challenge to the government’s effort to close immigration court hearings to the public, warrantless wiretapping by the National Security Administration, and the first-of-its-kind “right to read” lawsuit holding the state accountable for dismal literacy scores in a Detroit-area school district. She has served as the Chair of the ACLU’s Executive Director Council, representing all state directors in the ACLU and is a member of the Detroit News Editorial Page Advisory Board.

JOHN R. MINOCK—received his Juris Doctor from the University of Michigan Law School in 1974, lived in Ann Arbor for more than 40 years, and has practiced law as a criminal defense attorney for 36 years. John is the past president of the Criminal Defense Attorneys Association of Michigan and the 2006 Right to Counsel Award winner.

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DISTINGUISHED BRIEF The Distinguished Brief Award is given in recognition of the most scholarly briefs filed before the Michigan Supreme Court, as determined by a panel of eminent jurists. Three briefs are chosen each year and printed in the Thomas M. Cooley Law Review.

INTRODUCTION

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v.

KADEEM DENNIS WHITE, Defendant-Appellant.

The Criminal Defense Attorneys of Michigan and the Center on Wrongful Convictions of Youth collaborated on an amicus curiae brief in support of rehearing in People v. White. This case involved an interrogating police officer’s statements appealing to the conscience of a seventeen-year-old suspect who had invoked his right to silence under Miranda. The Michigan Supreme Court held that the officer’s comments did not amount to the functional equivalent of express questioning under Rhode Island v. Innis, thus a subsequent confession was admissible. This brief argues in favor of greater protections for juveniles in the custodial-interrogation setting, highlighting the particular vulnerabilities of youth and the troubling frequency of juvenile false confessions.

BIOGRAPHICAL STATEMENT BRADLEY HALL—is an attorney at the Federal Defender Office in Detroit, where he represents criminal defendants and habeas corpus petitioners in the Eastern District of Michigan and the United States Court of Appeals for the Sixth Circuit. He is the principal author of the 2012 Defender Habeas Book and has published articles in several law journals. He graduated from Michigan State University and

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Northwestern University School of Law, where he was recently awarded the 2013 Young Alumni Public Service Award. He was a law clerk for the Hon. Nancy G. Edmunds in the Eastern District of Michigan. Before law school, he worked as a counselor with incarcerated juvenile delinquents and sex offenders.

JOHN R. MINOCK—received his Juris Doctor from the University of Michigan Law School in 1974, lived in Ann Arbor for more than 40 years, and has practiced law as a criminal defense attorney for 36 years. John is the past president of the Criminal Defense Attorneys Association of Michigan and the 2006 Right to Counsel Award winner.

STEVEN A. DRIZIN—is the Assistant Dean of Northwestern University School of Law’s Bluhm Legal Clinic, a Clinical Professor of Law, and the former Legal Director of the Clinic’s renowned Center on Wrongful Convictions (2005–2013). At the Center, his research interests involve the study of false confessions and his policy work focuses on supporting efforts around the country to require law-enforcement agencies to electronically record custodial interrogations. In 2008, he co-founded the Center on Wrongful Convictions of Youth where he and his colleagues represent clients who were juveniles when arrested and use these cases to advocate for reforms to prevent wrongful convictions of youth. Before working on wrongful convictions, Drizin was the Supervising Attorney at the Clinic’s Children and Family Justice Center where he built a reputation as a national expert on juvenile-justice issues. He was a leader in the successful effort to outlaw the juvenile death penalty and co-wrote an amicus brief in Roper v. Simmons, the Supreme Court of the United States’s decision holding that capital punishment could no longer be imposed on offenders who were under the age of 18 at the time they committed their crimes. In 2005, Drizin received the American Bar Association’s Livingston Hall Award for outstanding dedication and advocacy in the juvenile-justice field.

Drizin’s scholarship in the area of interrogations and confessions has been cited by the Supreme Court of the United States and numerous federal and state appellate courts.

LAURA NIRIDER—is an Assistant Clinical Professor of Law and Project Co-Director of the Center on Wrongful Convictions of Youth at Northwestern University School of Law in Chicago. Nirider

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represents individuals who were wrongfully convicted of crimes when they were children or teenagers. Â In connection with that work, she has represented several defendants in high-profile cases involving juvenile false confessions, including members of the West Memphis Three and Dixmoor Five. Nirider has also published several articles and op-eds on juvenile interrogations and post-conviction relief and, in partnership with the International Association of Chiefs of Police, has co-authored one of the only existing juvenile-interrogation protocols. Â Nirider also regularly presents on juvenile interrogations at defender and law-enforcement training conferences around the country and has been featured in film and television programs as an expert on juvenile interrogations. Â Recently, she co-authored an amicus curiae brief on juvenile interrogations that was cited by the Supreme Court of the United States in J.D.B. v. North Carolina (2011) for the proposition that the risk of false confession is "all the more troubling . . . and all the more acute . . . when the subject of custodial interrogation is a juvenile."

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DISTINGUISHED BRIEF The Distinguished Brief Award is given in recognition of the most scholarly briefs filed before the Michigan Supreme Court, as determined by a panel of eminent jurists. Three briefs are chosen each year and printed in the Thomas M. Cooley Law Review.

INTRODUCTION

MICHIGAN PROPERTIES, LLC, Petitioner-Appellee, v.

MERIDIAN TOWNSHIP, Respondent-Appellant.

MICHIGAN PROPERTIES, LLC, Petitioner-Appellee, v.

MERIDIAN TOWNSHIP, Respondent-Appellant.

MICHIGAN PROPERTIES, LLC, Petitioner-Appellee, v.

MERIDIAN TOWNSHIP, Respondent-Appellant.

In Michigan Properties, the Michigan Supreme Court asked whether a local assessor retains the power to adjust a property's taxable value if he mistakenly fails to make the proper adjustment in the year immediately following a transfer of ownership. The Court agreed with the Michigan State Tax Commission that the answer to that question is yes.

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BIOGRAPHICAL STATEMENT BILL SCHUETTE—was elected as Michigan’s 53rd Attorney General in November 2010 and took office January 1, 2011.

Schuette has extensive experience in both federal and state government and has served Michigan in the executive, legislative and judicial branches of government. Bill Schuette’s commitment to public service began when he was elected to the United States House of Representatives. At the age of 31, he was one of the youngest Congressmen in America. Following his terms in Congress, Schuette was Michigan’s Republican candidate for the United States Senate.

He served as Director of the Michigan Department of Agriculture under then Governor John Engler. Bill Schuette was a member of the Michigan Senate for eight years, representing Michigan’s 35th Senate District. He was also elected to the Michigan Court of Appeals and served for six years as one of 28 appellate judges in Michigan. Upon his departure from the bench, Schuette joined the law firm of Warner, Norcross & Judd as Senior Counsel. A native of Midland, Michigan, Bill Schuette graduated cum laude from Georgetown University, receiving a Bachelor of Science in Foreign Service. He also studied at the University of Aberdeen in Scotland. Schuette earned his law degree from the University of San Francisco.

JOHN J. BURSCH—currently serves as Michigan’s tenth Solicitor General. Before his appointment, John chaired the Appellate Practice and Public-Affairs Litigation Groups at Warner, Norcross & Judd, where he successfully litigated appeals with more than $2.25 billion in controversy at every level of the Michigan and federal appellate systems. In addition to working with numerous Fortune 500 companies, John represented industry associations, citizen groups, Michigan legislators, local governments, three states, and Canada. In 2010, Michigan Super Lawyers listed John as one of Michigan’s “Top 100” lawyers. He is also listed in The Best Lawyers in America and is a Fellow of The Litigation Counsel of America, an invitationonly honorary society limited to less than one-half of one percent of all American lawyers. John is the only attorney ever to receive backto-back Distinguished Brief Awards for his advocacy before the Michigan Supreme Court. And in 2010, John was honored with an appointment to the American Bar Association committee that

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reviewed Elena Kagan’s writings before her Senate confirmation as a United States Supreme Court Justice. John has served in leadership positions for a number of appellate bar associations and community organizations, and he is a past chair of the American Bar Association’s Council of Appellate Lawyers.

RICHARD A. BANDSTRA—graduated from Calvin College and, after acquiring a graduate degree, taught college-level sociology. He then attended the Law School at the University of Chicago where he was an Associate Editor of the Law Review. Bandstra practiced law at Warner Norcross in Grand Rapids and then began his public service career in the state legislature where he served for nine years.

Bandstra ran for a newly created seat in the Michigan Court of Appeals in 1994 and served as a judge until being appointed Chief Legal Counsel for the Michigan Department of Attorney General in 2010. He currently serves as volunteer Executive Director of the Association for a More Just Society, a non-profit corporation helping to improve government services for the poor and powerless in Honduras.

MATT HODGES—is an assistant attorney general working in the revenue and collections division. Before joining the Attorney General’s office, Matt worked for the Michigan Tax Tribunal as a hearing referee and an administrative law specialist. Matt is a graduate of Michigan State University and MSU College of Law. Matt and his wife Ellie are both from Michigan and live in Lansing.

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MODIFICATION OF CHILD SUPPORT FOR BUSINESS OWNERS AND SELF-EMPLOYED INDIVIDUALS: BALANCING THE INTERESTS OF THE CHILD WITH THE MEANS OF THE PARENTS ABSTRACT The Michigan Friend of the Court Bureau devoted an entire subsection of the 2013 Michigan Child Support Formula to assist trial courts in determining income for business owners and selfemployed individuals. But this subsection merely provides the trial court with factors to determine when considering income, while failing to address that business owners have control over, and incentive to manipulate, their compensation, assets, and business records. As a result, child-support awards fail to meet the best interests of our children.

By establishing a five-year income average, requiring a legitimate business reason for a reduction in income, and encouraging liberal discovery, Michigan can more effectively strike a balance between the needs of the child and the actual resources of the parents. If enacted, these proposals would improve the adequacy and consistency of child-support awards while furthering the best interests of our children.

TABLE OF CONTENTS I. INTRODUCTION .............................................................................. 426 II. BACKGROUND .............................................................................. 428 A. Development of Child-Support Guidelines and Formulas ............................................................................... 428 1. Federal Legislation ...................................................... 428 2. Michigan’s Response to Federal Legislation .............. 429 B. Modification of Child Support .......................................... 429 C. 2013 Michigan Child Support Formula: Determining Income .............................................................. 430 1. Income ......................................................................... 430 2. Imputed Income........................................................... 431 3. Determining Income for Business Owners and Self-Employed Individuals .............................................. 432 D. Michigan’s Scope of Discovery ........................................ 435

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III. DEFINING THE PROBLEMS ........................................................... 436 A. The Relative Ease for Business Owners to Manipulate and Hide Compensation..................................... 436 B. Three-Year Average for Substantial Reduction Falls Short ............................................................................. 438 C. The Expense of Attorneys, Forensic Accountants, and Vocational Experts ......................................................... 438 D. The End Result.................................................................. 440 IV. PROPOSED SOLUTIONS ................................................................ 441 A. Implement a Five-Year Income Average .......................... 441 B. Encourage Liberal and Adequate Discovery .................... 442 1. Michigan’s Attempt to Encourage Full Disclosure ..... 443 2. New York’s Attempt to Encourage Adequate Discovery ........................................................................ 444 3. Applying Case Law to the Michigan Child Support Formula .............................................................. 445 IV. CONCLUSION .............................................................................. 446 I. INTRODUCTION Gary Johnson is an electrician and the sole owner of a closely held corporation. As such, he has complete control over his compensation and business records. In 2005, Gary and Amanda Johnson filed a consent judgment of divorce. The judgment stated that Gary had to pay $2,500 per month in child support for his three minor children. This amount was based on Amanda’s gross annual income of $25,000 and Gary’s gross annual income of $150,000 paid by his corporation. But Gary’s reported income decreased progressively over the next three years. From 2005 to 2008, Gary used cash from his corporation to pay his mortgage, car loan, and miscellaneous expenses. And in 2008, during an economic downturn, Gary claimed $8,000 as his gross annual income from his corporation. Not surprisingly, Gary filed a motion to reduce his childsupport obligations.

Gary was easily able to portray that his income decreased during this time because he had full control over his reported W-2 income.

As a result, the trial court found a change in circumstances supporting modification of the child-support award. In turn, this placed a complicated, detailed, and expensive burden on Amanda to show that Gary was making, or was capable of making, more than he claimed. Amanda, who was raising their children on her own, was

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forced to use the minimal business records Gary provided in discovery to meet her evidentiary burden. Making matters worse, Amanda could not afford an attorney or expert. Ultimately, Gary’s child-support obligation substantially dropped from $2,500 to $200 per month.

For decades, courts and legislatures have struggled with similar child-support-modification hearings involving business owners and self-employed individuals.1 The Michigan Legislature has recognized that business owners and self-employed individuals can easily control their income and other forms of compensation.2 Because of this control, business owners can hide assets, manipulate business records, and arrange their compensation so that it is less visible to others.3 This realization has not gone unnoticed by the Michigan Friend of the Court Bureau (FOCB). The 2013 Michigan Child Support Formula (the Formula) devotes an entire subsection to assist trial courts in determining income for business owners and self-employed individuals.4 But this subsection merely provides the trial court with factors to consider when determining income. It fails to address that business owners have control over, and incentive to manipulate, their compensation, assets, and business records. Unless Michigan imposes stricter guidelines under the Formula, it will never strike a balance between “the needs of the child and the actual resources of each parent.”5 This Comment proposes amending the Formula to improve the accuracy and adequacy of child-support awards. By establishing a five-year income average, requiring a legitimate business reason for a reduction in income, and encouraging liberal discovery, Michigan

1. The terms business owner and self-employed individual are used interchangeably throughout this Comment. For the purposes of this Comment, business owner or self-employed individual may also include majority shareholders, executives, or any person who has control over his or her form of compensation, company assets, or business documents and records.

2. See e.g., 2013 MICH. CHILD SUPPORT FORMULA MANUAL § 2.01(E)(1)(c) (Mich. State Court Admin. Office 2013) [hereinafter MCSF], available at http://courts.mi.gov/Administration/SCAO/Resources/Documents/Publications/Ma nuals/focb/2013MCS F.pdf.

3. MCSF § 2.01(E)(1).

4. MCSF § 2.01(E).

5. MICH. COMP. LAWS ANN. § 552.519(3)(a)(vi) (Westlaw 2013) (stating the goal of the Michigan Child Support Formula) (emphasis added).

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can more effectively balance the means of the parents with the needs of their children.

II. BACKGROUND The United States Congress, Michigan Legislature, and FOCB have taken drastic leaps to improve the accuracy, consistency, and adequacy of child-support awards. Federal legislation, state legislation, the Formula, and Michigan’s open discovery policy have all played major roles in providing child-support factors that aim to meet children’s needs with their parents’ actual resources.

A. Development of Child-Support Guidelines and Formulas 1. Federal Legislation Historically, federal law did not require states to establish childsupport guidelines.6 But Congress passed the Child Support Enforcement Amendments of 1984 requiring each state to establish guidelines for child-support-award amounts.7 The Amendments permitted states to enact these guidelines by judicial or administrative action or by law.8 However, these were only advisory amendments.9 Therefore, judges and decision makers still had broad discretion in determining child-support awards.10 Additionally, the Amendments required the Office of Child Support Enforcement to form a national advisory panel on childsupport guidelines.11 In 1987, this advisory panel recommended the development of national child-support guidelines, which Congress relied on to enact the Family Support Act of 1988.12

6. See Mary B. Bader & Leonard J. Sliwoski, Calculation of Child Support Amounts in North Dakota when Obligors are Business Owners, 75 N.D. L. REV. 275, 276 (1999).

7. Child Support Enforcement Amendments of 1984, Pub. L. No. 98-378, 99 Stat. 1305 (codified at 42 U.S.C.A. § 667(a) (Westlaw 2013)).

8. Id. 9. Child Support Enforcement Program; Implementation of Child Support Enforcement Amendments of 1984, 50 Fed. Reg.19,608, 19,621 (May 9. 1985) (amending 45 C.F.R. § 302.56).

10. Id. 11. LAURA W. MORGAN, CHILD SUPPORT GUIDELINES: INTERPRETATION AND APPLICATION § 1.02 (Aspen Publishers 2013).

12. Id.

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The 1988 legislation required states to establish guidelines that would create a rebuttable presumption that the amount determined by application of the guidelines is correct,13 thereby promoting consistency in child-support awards. Additionally, the Act required that each state establish criteria to determine if applying the guidelines would be unjust or inappropriate.14 The Act also mandated that states not only use the guidelines to determine initial childsupport awards, but also to determine award modification.15 Further, the Act required states to review their guidelines once every four years to ensure proper support awards.16 The Act served as a catalyst in the national overhaul of child-support guidelines.17 2. Michigan’s Response to Federal Legislation In response to federal legislation, Michigan created the FOCB.18 Under the supervision and direction of the Michigan Supreme Court, the FOCB developed a set of child-support guidelines, now known as the Michigan Child Support Formula, which it continually updates.19 Specifically, the FOCB developed a formula to determine and modify child-support amounts.20 Additionally, the FOCB provided a minimum threshold for modification of a child-support amount.21 Most importantly, “[t]he formula shall be based upon the needs of the child and the actual resources of each parent.”22 B. Modification of Child Support In Michigan, a trial court has discretion to modify a child-support award.23 After entering a judgment, a trial court can modify an award

13. Family Support Act of 1988, Pub. L. No. 100-485, 102 Stat. 2343 (codified at 42 U.S.C.A. § 667(b)(2) (Westlaw 2013)).

14. Id. 15. 42 U.S.C.A. § 667(a) (Westlaw 2013).

16. Family Support Act of 1988, Pub. L. No. 100-485, 102 Stat. 2343 (codified at 42 U.S.C.A. § 667(b)(2) (Westlaw 2013)).

17. ARNOLD H. RUTKIN, FAMILY LAW AND PRACTICE § 33.03 (Matthew Bender 2012).

18. MICH. COMP. LAWS ANN. § 552.519(1), (3)(a)(vi) (Westlaw 2013).

19. See § 552.519(1), (3)(a)(iv).

20. § 552.519(3)(a)(vi).

21. Id. 22. Id. (emphasis added).

23. See Wyzenkiewicz v. Wyzenkiewicz, 194 N.W. 482 (Mich. 1923); Edwards v. Edwards, 481 N.W.2d 769 (Mich. Ct. App. 1992).

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if there is a change in circumstances.24 Upon the petition of either parent, a court can revise or alter a child-support judgment “as the circumstances of the parents and the benefit of the children require.”25 The party seeking a modification has the burden of showing a change in circumstances justifying modification.26 The primary goal of modifying a child-support award is to establish an award that satisfies the welfare of the child, while remaining within the financial means of the supporting parent.27 When determining a new child-support amount, the trial court must apply the Formula.28 If the court deviates from the Formula, it must show that its application is unjust or inappropriate.29 C. 2013 Michigan Child Support Formula: Determining Income According to the Formula, most recently updated January 1, 2013, a child-support award includes the “payment for the general care and needs of a child.”30 1. Income The first step in any child-support hearing is to determine the parents’ individual net incomes.31 “The objective of determining net income is to establish, as accurately as possible, how much money a parent should have available for support.”32 Accordingly, the court should consider all relevant aspects of a parent’s financial status.33

24. Lemmen v. Lemmen, 749 N.W.2d 255 (Mich. 2008).

25. § 552.17(1).

26. See Aussie v. Aussie, 452 N.W.2d 859 (Mich. Ct. App. 1990).

27. Hakken v. Hakken, 298 N.W.2d 907 (Mich. Ct. App. 1980) (approving an escalator clause to accommodate the father’s expected increase in income).

28. See § 522.605.

29. Id. 30. 2013 MICH. CHILD SUPPORT FORMULA MANUAL § 1.02(A) (Mich. State Court Admin. Office 2013) [hereinafter MCSF], available at http://courts.mi.gov/ Administration/SCAO/Resources/Documents/Publications/Manuals/focb/2013MC S F.pdf.

31. Carlson v. Carlson, 809 N.W.2d 612, 614 (Mich. Ct. App. 2011) (citing Stallworth v. Stallworth, 738 N.W.2d 264, 265 (Mich. Ct. App. 2007)); see also MCSF § 2.

32. MCSF § 2.01(B); see MCSF § 2.01(A) (“The term ‘net income’ means all income minus the deductions and adjustments permitted by this manual. A parent’s ‘net income’ used to calculate support will not be the same as that person’s take

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The Formula lists many sources that are included in income.34 This list includes wages, overtime pay, commissions, bonuses, or other monies from employers;35 capital gains; money due or owed to the parent; tips or gratuities; interest; dividends; fees; gambling or lottery winnings; employer contributions to pension or retirement plans; distributed profits or payments from annuities, trust funds, insurance contracts, pension or retirement plans, social security, unemployment benefits, disability insurance, or workers compensation; and in-kind perquisites (perks).36 2. Imputed Income The trial court may impute income if it finds that the parent is voluntarily unemployed or underemployed, has an unexercised ability to earn, or voluntarily reduces or eliminates income.37 Before imputing income, the trial court must first evaluate the factors provided in the Formula:38 (a) Prior employment experience and history, including reasons for any termination or changes in employment. (b) Educational level and any special skills or training. (c) Physical and mental disabilities that may affect a parent’s ability to obtain or maintain gainful employment. (d) Availability for work (exclude periods when a parent could not work or seek work, e.g., hospitalization, incarceration, debilitating illness, etc.).

home pay, net taxable income, or similar terms that describe income for other purposes.”).

33. MCSF § 2.01(B).

34. § 552.602(m); MCSF § 2.01(C).

35. MCSF § 2.01(C)(1) (stating that these forms of income are usually reported in the Medicare, wages, and tips section of the parent’s W-2).

36. MCSF § 2.01(C).

37. MCSF § 2.01(G); Carlson v. Carlson, 809 N.W.2d 612 (2011) (providing that a court may impute income to a business owner who voluntarily reduces or eliminates income).

38. Carlson, 809 N.W.2d 615 (holding that the trial court abused its discretion when it failed to consider the factors set forth in the 2004 Michigan Child Support Formula § 2.10(E) before imputing income to the business owner).

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(e) Availability of opportunities to work in the local geographical area. (f) The prevailing wage rates in the local geographical area. (g) Diligence exercised in seeking appropriate employment. (h) Evidence that the parent in question is able to earn the imputed income. (i) Personal history, including present marital status and present means of support. (j) The presence of the parties’ children in the parent’s home and its impact on that parent’s earnings. (k) Whether there has been a significant reduction in income compared to the period that preceded the filing of the initial complaint or the motion for modification.39 Ultimately, the amount of imputed income should reflect the amount that the parent would have had if the parent had not voluntarily reduced his or her income.40 As discussed below, imputing income is increasingly important in child-support determinations involving business owners and self-employed individuals.

3. Determining Income for Business Owners and Self-Employed Individuals Among the 2013 updates to the Formula are provisions for determining the income of business owners, self-employed individuals, and executives.41 The Formula identifies several issues when determining a business owner or self-employed individuals’ income:42 (1) Difficulty in determining income for selfemployed individuals, business owners, and others occurs for several reasons.

39. MCSF § 2.01(G)(2).

40. MCSF § 2.01(G)(1)(a) (“The amount of potential income imputed (1) should not exceed the level it would have been if there was no reduction in income, (2) not be based on more than a 40 hour work week, and (3) not include potential overtime or shift premiums.”).

41. MCSF § 2.01(E).

42. MCSF § 2.01(E)(1).

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(a) These individuals often have types of income and expenses not frequently encountered when determining income for most people. (b) Taxation rules, business records, and forms associated with business ownership and selfemployment differ from those that apply to individuals employed by others. Common business documents reflect policies unrelated to an obligation to support one’s child. (c) Due to the control that[]business owners or executives exercise over the form and manner of their compensation, a parent, or a parent with the cooperation of a business owner or executive, may be able to arrange compensation to reduce the amount visible to others looking for common forms of income.43 In an attempt to alleviate these difficulties, the Formula lists several forms of compensation for the trial court to consider.44 Additionally, the trial court may consider business tax returns, balance sheets, accounting or banking records, and other business documents.45 The trial court should carefully examine these documents to determine whether the parent has disclosed all compensation as income.46 Particularly, the Formula directs trial courts to pay special attention to certain forms of compensation and situations.47 First, the court may need to examine several forms of compensation in the business.48 These include distributed profits, profit sharing, officers’ fees and other compensation, management or consulting fees, commissions, and bonuses.49 Second, the court should give special consideration to in-kind perquisites, gifts, and personal use of business property.50 In-kind perquisites may include room and board; housing, meals, mileage

43. Id. 44. See MCSF § 2.01(E)(4).

45. MCSF § 2.01(E)(2).

46. Id. 47. MCSF § 2.01(E)(4).

48. MCSF § 2.01(E)(4)(a).

49. Id. 50. MCSF § 2.01(E)(4)(b) (stating that the court should apply a fair market price to in-kind perquisites and income).

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reimbursement; personal use of a company vehicle; and other goods or services.51 Third, the trial court should carefully examine redirected income.52 In doing so, the court should look for payments made to the business owner’s friends or relatives. These payments must be included as income unless the owner can demonstrate that (1) the payments are the fair market value of work or services; and (2) the friend or relative actually performed the work or services.53 Additionally, the court should look for redirected income in the form of personal loans.54 Personal loans from a business are presumed to be redirected income, unless the business owner overcomes the presumption.55 Fourth, the Formula directs the trial court to consider tax deductions.56 For the purposes of determining child support, deductions are only considered income if they are not consistent with the nature of the business or occupation.57 Finally, the trial court should look for reduced or deferred income.58 This is particularly important because business owners have the ability to hide their income, assets, and manipulate business

51. MCSF § 2.01(E)(4)(b), (D)(1).

52. MCSF § 2.01(E)(4)(c) (defining redirected income as “amounts related by the business or company as if the redirected amounts were something other than the parent’s income”).

53. MCSF § 2.01(E)(4)(c)(ii).

54. MCSF § 2.01(E)(4)(c)(i).

55. Id. The presumption is overcome if: (1) the parent signed a contract or promissory note outlining the terms of the loan, (2) the business maintains records showing the loan owed as a receivable, (3) the parent makes installment payments and the present loan is paid current, and (4) the interest earned and repayment rate appear to be a reasonable business practice.

Id. If the presumption is overcome, the parent’s income includes the difference between the amount of the loan repaid by the parent and a repayment amount for a similar unsecured personal loan. Id. 56. MCSF § 2.01(E)(4)(e).

57. Id. Deductions to be considered include: (i) Rent paid by the business to the parent. (ii) Depreciation . . . . (iii) Home office expenses, including rent, hazard insurance, utilities, repairs, and maintenance. (iv) Entertainment expenses spent by the parent . . . . (v) Travel expense reimbursements . . . . (vi) Personal automobile repair and maintenance expenses.

Id. 58. MCSF § 2.01(E)(4)(d).

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documents or records.59 Additionally, when a parent’s income is reduced by 75% or more, the Formula explicitly recognizes a substantial change in circumstances sufficient to warrant a review of the support amount.60 The Formula directs the trial court to determine if there are any reductions in salaries, fees, or distributed profits.61 If the trial court finds that there is a substantial reduction in distributed profits, salaries, bonuses, management fees, or any other amounts paid to a parent, the court can compare these amounts to historical patterns by using “a three-year income average to determine the amount to include as a parent’s income.”62 D. Michigan’s Scope of Discovery According to the Michigan Court Rules, “parties may obtain discovery regarding any matter . . . involved in the pending action . . . .”63 The purpose of the discovery process is to simplify and clarify issues, so the Michigan Supreme Court has repeatedly recognized the state’s open discovery process.64 This open and broad discovery process “permits liberal discovery of any matter, not privileged, that is relevant to the subject matter involved in the pending case.”65 Additionally, the Michigan Court Rules require construction that secures the just, speedy, and economical determination of every action.66 The discovery process should not conceal the facts and circumstances of a controversy.67 Instead, the discovery process

59. See id.

60. 2013 MICH. CHILD SUPPORT FORMULA MANUAL SUPPLEMENT § 3.01(B)(4) (Mich. State Court Admin. Office 2013), available at http://courts.mi.gov/ Administration/SCAO/Resources/Documents/Publications/Manuals/focb/2013MC SFSuppl.pdf.

61. MCSF § 2.01(E)(4)(d).

62. MCSF § 2.01(E)(4)(d)(i)–(ii).

63. MICH. CT. R. 2.302(B)(1). But see MICH. CT. R. 3.218; 42 U.S.C.A. § 654(26) (Westlaw 2013).

64. Domako v. Rowe, 475 N.W.2d 30, 35 (Mich. 1991); Reed Dairy Farm v.

Consumers Power Co., 576 N.W.2d 709, 710 (Mich. Ct. App. 1998); see also Daniels v. Allen Indus., Inc., 216 N.W.2d 762, 764 (Mich. 1974) (“Michigan has a strong historical commitment to a far-reaching, open and effective discovery practice.”).

65. E.g., Reed Dairy Farm, 576 N.W.2d at 710; MICH. CT. R. 2.302(B)(1).

66. MICH. CT. R. 1.105; see also Reed Dairy Farm, 576 N.W.2d at 710–11.

67. E.g., Reed Dairy Farm, 576 N.W.2d at 710.

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should facilitate trial preparation, further the ends of justice, and simplify and clarify the issues of a controversy.68 III. DEFINING THE PROBLEMS Although the Formula has made substantial progress over the past three decades, it fails to consider three crucial problems regarding business owners: (1) the relative ease for business owners to manipulate and hide compensation; (2) the ability for business owners to decrease their income over a three-year period in anticipation of a modification of child-support motion; and (3) the difficulty for a parent-payee to hire attorneys, vocational experts, and forensic accountants. As a result, these child-support awards fail to strike a balance between the parents’ actual incomes and the child’s needs.

A. The Relative Ease for Business Owners to Manipulate and Hide Compensation Measuring a parent’s income or ability to pay child support is relatively simple when the parent is an employee.69 But it becomes much more complicated when the parent is a business owner.70 It is not uncommon for a business to coincidentally experience an economic downturn before or during a child-support modification hearing.71 As stated in the 2013 Formula, it is difficult to determine income for business owners because they control the form and manner of their compensation.72 This allows business owners to easily hide assets and compensation, and manipulate business documents and records.73

68. See id.

69. Bader & Sliwoski, supra note 6, at 289 (discussing the simplicity in measuring the ability of an employed parent to pay child support).

70. Id. (noting the differences in the North Dakota child-support guidelines for determining a business owner’s and an employee’s ability to pay child support).

71. Tracy Coenen, Finding Hidden Income in a Divorce or Child Support Case, FRAUD FILES BLOG (June 8, 2011), http://www.sequenceinc.com/fraudfiles/ 2011/06/finding-hidden-income-in-a-divorce-or-child-support-case/.

72. 2013 MICH. CHILD SUPPORT FORMULA MANUAL § 2.01(E)(1)(c) (Mich.

State Court Admin. Office 2013) [hereinafter MCSF], available at http://courts.mi.gov/Administration/SCAO/Resources/Documents/Publications/Ma nuals/focb/2013MCS F.pdf.

73. See id.

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This problem is exacerbated when the parent owns a business routinely paid in cash.74 In this situation, the business owner can easily hide cash from sales or services.75 As a result, the business’s reported income may only reveal a small portion of its true sales and profits.76 In nearly any closely held business, there are several ways to hide income.77 The following hypotheticals provide just a few examples of how business owners and self-employed individuals can manipulate income: (1) A surveyor could decrease compensation over a three-year period in anticipation of a child-supportmodification hearing, thus ensuring that the court’s three-year income average is lower than his actual income.

(2) A doctor filing for modification of child support could stop taking a paycheck and claim no earnings from the practice.78 (3) A barber could stop reporting income from cash receipts, while pocketing the cash and claiming less revenue.79 (4) A contractor or construction worker could offer a discount to customers if they pay with cash and do not request a receipt.80 As illustrated in the introduction, a business owner seeking a reduction in a child-support obligation can easily manipulate records to create an impression that the business has lost profits as a result of a bad economy.81 In turn, the business owner can easily demonstrate

74. Can Tennessee Cash Business Owners Hide Income to Lower Child Support?, MEMPHIS DIVORCE, http://memphisdivorce.com/can-tennessee-cashbusiness-owners-hide-income-to-lower-child-support/ (last visited Sept. 15, 2013) [hereinafter Cash Business Owners] (explaining that hiding cash from a business is less frequent in the modern economy, but the problem still exists).

75. Id. 76. Coenen, supra note 71.

77. See id.

78. See id.

79. See id.

80. See id.

81. See Practical Law: Genesee Friend of the Court (Bloomfield Community Television broadcast Jan. 29, 2013), available at http://www.bloomfieldtwp.org/ Services/cable/Videos/PracticalLaw.asp.

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a change in financial conditions.82 The burden then shifts to the payee to prove that there is no legitimate reason for the reduction in income, that the business owner has an unexercised ability to earn or is hiding income, or that the individual is living outside of his or her means.83 B. Three-Year Average for Substantial Reduction Falls Short Admittedly, the 2013 Formula has taken steps to address substantial reductions in income for business owners.84 Under the Formula, a trial court can use a three-year average of the business owner’s salary, bonuses, management fees, or other amounts paid to the business owner if a legitimate reason for a substantial reduction is not shown.85 While this may be a significant step, the three-year average still falls short. In light of this historical average, a business owner could easily decrease the amount of visible income over a three-year period, therefore negating the Formula’s attempt to solve the problem. This is especially true when the parties have a young child. Because the Formula requires parents to pay child support until a child is at least 18 years old, the business owner has a strong incentive to have the child-support award reduced to avoid paying a higher net amount.86 C. The Expense of Attorneys, Forensic Accountants, and Vocational Experts One way a payee can reveal a payor’s hidden income is through a lifestyle analysis.87 The goal of a lifestyle analysis is to determine if the business owner’s lifestyle could be supported by his or her reported income.88 This complicated procedure usually requires the payee to acquire a forensic accountant.89 In most circumstances, the

82. See id.

83. See id.

84. See generally 2013 MICH. CHILD SUPPORT FORMULA MANUAL § 2.01(E) (Mich. State Court Admin. Office 2013) [hereinafter MCSF], available at http://courts.mi.gov/Administration/SCAO/Resources/Documents/Publications/Ma nuals/focb/20 13MCSF.pdf.

85. MCSF § 2.01(E)(4)(d).

86. MICH. COMP. LAW ANN. § 552.6056(2) (Westlaw 2013).

87. Coenen, supra note 71.

88. Id. 89. Cash Business Owners, supra note 74 (“As expert witnesses, forensic accountants are experienced with many methodologies, techniques, and law

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forensic accountant examines the business owner’s expenses and compares them to reported income.90 Expenses include mortgage payments, utilities, car payments, groceries, dining out, vacations, and any other expense of the business owner.91 Once the forensic accountant calculates the total expenses, the next step is to determine if the business owner’s reported income is sufficient to pay those expenses.92 If the reported income is insufficient, there is possibly an unknown source of income.93 Moreover, a payee may hire a vocational expert to aid in imputing income in situations where the business owner is voluntarily unemployed or underemployed.94 The vocational expert may provide evidence of currently available positions in the business owner’s field and the average salaries of similar positions, attest to the owner’s employability or capability to earn more income, and provide an opinion as to the business owner’s potential salary range if he or she was not voluntarily unemployed or underemployed.95 This evidence can give the court a reliable basis for imputing income to the business owner.96 In addition to hiring forensic accountants and vocational experts, it may be necessary to hire an experienced attorney.97 There is no doubt that a payee’s best option to prove a business owner is hiding or manipulating compensation is to hire a forensic accountant, vocational expert, or experienced attorney. But for a payee who is relying on child-support payments for rent, food, and other expenses for the children, these are unreasonable solutions.

concerning catching the cash business owner who underreports income or seeks to conceal or hide income.”).

90. Coenen, supra note 71.

91. See id.

92. Id. 93. Id. 94. What is a Vocational Expert? Why would I need to hire one for my case?, DADS DIVORCE (Oct. 29, 2007 1:00 PM), http://www.dadsdivorce.com/component/ content/article/29-finance/133-what-is-a-vocational-expert-why-would-i-need-tohire-one-for-my-case.

95. Id. 96. Id. 97. Practical Law: Genesee Friend of the Court, supra note 81 (discussing the importance of having experienced attorneys in child-support-modification cases involving business owners).

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Forensic accountants charge anywhere from $300 to $500 per hour.98 And the average hourly rate for attorneys in a major metropolitan area can range from $100 to $400 per hour.99 Not to mention, childsupport-modification cases can last for months.100 This expensive and often complex litigation makes it difficult for a payee raising children on a limited income to ensure that a proper child-support award is granted.

D. The End Result The 2013 Formula discusses what the court must consider when determining the income of business owners and self-employed individuals.101 But realistically, some parties will still be untruthful or easily hide their compensation.102 Additionally, the Formula does little to remedy the problem.103 Although the Underground Economy Task Force made specific recommendations in 2010, the FOCB included very few of these recommendations in the 2013 Formula.104 And even if they were adopted, many of the suggestions are unreasonable at best. Even the Underground Economy Task Force recognizes that several of its recommendations will “languish for lack of funding” or “become subjects of vigorous debates.”105 If business owners cannot demonstrate a legitimate reason for income reduction, they can defeat the Formula’s intent by merely reducing

98. How Much Does a Forensic Accountant Cost?, HOWMUCHISIT.ORG, http://www.howmuchisit.org/forensic-accountant-cost/ (last visited Sept. 15, 2013).

99. Legal Representation: What will it Cost?, NORTHWEST MICHIGAN LEGAL DIRECTORY, http://www.miseasons.com/legal/articles/costs.html (last visited Sept.

15, 2013).

100. Henry S. Gornbein, Ten Child Support Issues in 2010, FAMILY LAW OF MICHIGAN.COM, http://www.familylawofmichigan.com/child-custody-and-support/ ten-child-support-issues-in-2010 (last visited Sept. 15, 2013).

101. 2013 MICH. CHILD SUPPORT FORMULA MANUAL § 2.01(E) (Mich. State Court Admin. Office 2013) [hereinafter MCSF], available at http://courts.mi.gov/ Administration/SCAO/Resources/Documents/Publications/Manuals/focb/2013MC SF.pdf.

102. MORGAN, supra note 11, at § 6.01.

103. See generally MCSF § 2.01(E).

104. See generally, MICH. UNDERGROUND ECON. TASK FORCE, MICH. SUP. CT., UNDERGROUND ECONOMY (June 2010), available at http://courts.mi.gov/ Administration/SCAO/Resources/Documents/Publications/Reports/UETF2010.pdf. ; see MCSF § 2.01(E).

105. MICH. UNDERGROUND ECON. TASK FORCE, MICH. SUP. CT., UNDERGROUND ECONOMY 29 (June 2010), available at http://courts.mi.gov/Administration/SCAO/ Resources/Documents/Publications/Reports/UETF-2010.pdf.

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their income for three years. The end result is a child-support obligation that fails to meet “the needs of the child and the actual resources of each parent.”106 IV. PROPOSED SOLUTIONS The FOCB can increase the adequacy of child-supportmodification awards by amending the Formula to implement a fiveyear income average and encouraging business owners to fully disclose accurate accounts of their financial status.

A. Implement a Five-Year Income Average As discussed above, the three-year income average fails to recognize that business owners may reduce their income in preparation for a child-support modification. Therefore, the FOCB should amend § 2.01(E)(4)(d) of the Formula to include a five-year income average instead of a three-year income average.

This proposed amendment would make it more difficult to reduce income in preparation for a modification hearing.107 All child-support cases are eligible for Friend of the Court review every 36 months; by requiring the court to use a five-year historic income average, the Formula would force business owners to independently move to modify support at the very least.108 Additionally, many business owners may not have the time to intentionally reduce income or want to wait an extended five-year period before attempting to reduce support obligations. In return, a substantial amount of child-support awards are more likely to reflect the business owner’s true income.

Business owners may argue that this amendment could result in an unfair outcome during challenging economic situations. But a business owner can avoid the five-year average by showing the trial court that a legitimate business reason existed for the reduction in income.109 Amending §2.01(E)(4)(d) of the 2013 Formula does not completely solve the central issue.110 But it provides a viable fix by

106. See MICH. COMP. LAWS ANN. § 552.519(3)(a)(vi) (Westlaw 2013) (emphasis added).

107. See MCSF § 2.01(E)(4)(d).

108. See MICH. COMP. LAWS ANN. § 552.517 (Westlaw 2013).

109. The legitimate business reason test also promotes full disclosure of business records and documents.

110. See supra part III.

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forcing business owners to reduce income for an additional two years.

B. Encourage Liberal and Adequate Discovery The need for liberal discovery and disclosure is especially important in several factual scenarios involving child-support awards.111 First, extensive discovery is necessary to test the accuracy of the alleged change in circumstances during a modification proceeding.112 Second, liberal discovery is necessary to compare a parent’s lifestyle with his or her reported income.113 Third, liberal discovery is necessary for a court to properly impute income.114 Finally, liberal and adequate discovery is necessary when a business owner has control over his or her income because business records and documents are essential for the court to determine the business’s income and economic status. 115 It is also imperative for the court and opposing party to have liberal discovery when the business’s revenue is usually in cash.116 During a child-support proceeding, the court has a duty to protect the best interests of the child.117 This means that formal discovery rules are relaxed in favor of allowing each party to rely on the other party’s disclosures.118 But in McDowell v. McDowell, the Michigan Court of Appeals expressed how difficult it can be to determine income when there is insufficient disclosure by the business owner.119 The court stated: It was difficult in this case to arrive at an income for the calculation of child support, and the reason for said difficulty was not that Plaintiff was unreasonably fishing for income as was argued by Defendant. Mr. McDowell and his wife gave every appearance of not being forthcoming with information, and being totally uncooperative with Plaintiff and her attorney when it came to discovery. Notwithstanding the difficulties,

111.

112.

113.

114.

115.

116.

117.

118.

119.

MORGAN, supra note 11, at § 6.01.

Id. Id. Id. Id. Id. Id. Id. See No. 273807, 2008 WL 2151372, at *9 (Mich. Ct. App. May 22, 2008).

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Plaintiff tried valiantly to persuade this Court of hidden income. That persuasion, unfortunately for Plaintiff, did not happen . . . .120 Because the trial court struggled with determining the business owner’s income, the payee was forced to seek relief from the Court of Appeals—a costly endeavor.

1. Michigan’s Attempt to Encourage Full Disclosure One Michigan court has attempted to solve this problem. In Cymbal v. Cymbal, the Michigan Court of Appeals held that a business owner did not prove a change in circumstances because he failed to produce his entire financial status.121 The business owner argued for a reduction in child support because his income had substantially dropped.122 The court held that the business owner did not prove a change in circumstances.123 The court reasoned that the record only showed a potential decrease in the business owner’s income.124 The court noted that in some cases, a reduction in income would justify modification.125 But the business owner in Cymbal had substantial assets and deliberately hid a portion of those assets. 126 So the business owner failed to meet his burden. Failing to consider a defendant’s complete financial status is therefore clear error.127 This decision should encourage business owners to provide a complete financial disclosure. If a business owner knows that a complete disclosure of financial records is required to demonstrate a change in circumstances, there will be a strong incentive to fully disclose all of the documents. But the approach taken in Cymbal falls short in one critical aspect—the ruling fails to address that a business owner can hide assets, manipulate business records or documents, and rearrange compensation.

120.

121.

122.

123.

124.

125.

126.

127.

Id. 204 N.W.2d 235, 236–37 (Mich. Ct. App. 1972).

Id. at 236.

Id. at 237.

Id. at 236.

Id. Id. Id.

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2. New York’s Attempt to Encourage Adequate Discovery Recently, a string of New York cases applied a relatively new rule to child-support cases involving business owners.128 In New York, a court can impute income if it is determined that a parent’s account of his or her finances is not credible or is suspect.129 In these situations, New York family courts now impute income to a parent based on past income and future potential earnings.130 In the leading case on the issue, Sena v. Sena, the court established that “[a] Support Magistrate may properly impute income in calculating a support obligation where he or she finds that a party’s account of his or her finances is not credible or is suspect.”131 In Sena, an independent contractor provided the court with inconsistent evidence about his salary, business expenses, and federal income tax returns.132 Under these circumstances, the family court did not err in imputing income to the independent contractor.133 Since Sena, many New York courts have imputed income to business owners whose financial disclosures were not credible.134 In Rohme v. Burns, the court found that the father’s reported income was not credible.135 The father owned an investment company that held rights to securities software.136 In his testimony, the father stated that he only made $26,000 the previous year, but the court found that the father’s testimony was vague and contradictory.137 Thus, the court imputed income of $100,000 to the father.138

128. See Sena v. Sena, 885 N.Y.S.2d 738, 739 (N.Y. App. Div. 2009) (imputing income where a business owner’s financial disclosure was not credible or suspect); see also Oshodi v. Olouwo, 941 N.Y.S.2d 858, 859 (N.Y. App. Div. 2012) (imputing income where a taxi-cab driver’s finances were inconsistent with his mortgage payments); Rohme v. Burns, 939 N.Y.S.2d 532, 533 (N.Y. App. Div. 2012) (imputing income where a business owner’s testimony was vague and contradictory); Huddleston v. Rufrano, 951 N.Y.S.2d 179, 180–81 (N.Y. App. Div. 2012) (imputing income where finances were not credible).

129. Sena, 885 N.Y.S.2d at 739.

130. Huddleston, 951 N.Y.S.2d at 181.

131. 885 N.Y.S.2d at 739.

132. Id. at 740.

133. Id. 134. See supra note 128 and accompanying text.

135. See 939 N.Y.S.2d 532, 534 (N.Y. App. Div. 2012).

136. Id. at 533.

137. Id. at 534.

138. Id.

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Additionally, in Oshodi v. Olouwa, the court found that a taxi-cab owner and operator’s financial disclosure was not credible because he failed to explain how he could afford a $3,000 per month mortgage on a salary of $300 per week and his wife’s disability payments of $600 per month.139 Based on the standard established in Sena, the court determined that the taxi-cab owner’s financial disclosure was suspect, and it imputed income of $500 per week to him.140 3. Applying Case Law to the Michigan Child Support Formula Like the court in Cymbal,141 the Formula should explicitly provide that if business owners fail to fully disclose their financial status, they cannot prove a change in circumstances. Additionally, the Michigan Child Support Formula should adopt a guideline similar to the rule in Sena.142 Specifically, if a trial court has a reasonable belief that a business owner’s disclosure is suspect or not credible, the trial court can directly impute income to the business owner. In determining the proper amount of income to impute, the trial court should consider the business owner’s past income and the factors in § 2.01(G)(2) of the 2013 Formula.143 To improve the adequacy of child-support obligations, the Formula must provide a strong incentive for business owners to fully disclose accurate business documents and records during the discovery process. The Cymbal and Sena approaches do just that.

Taken together, these approaches encourage a business owner to fully disclose all business records, assets, and compensation. Moreover, the changes create a penalty for inaccurate records. Business owners will have a greater incentive to accurately disclose information if they know that failure to do so will result in direct imputation of income or dismissal of their motion to modify child support.

Ultimately, these changes will help protect the best interests of the child by establishing child-support awards that more accurately reflect the means of the parent.

139. 941 N.Y.S.2d 858, 859 (N.Y. App. Div. 2012).

140. Id. 141. See supra text accompanying notes 121–27.

142. See supra text accompanying notes 128–33.

143. See 2013 MICH. CHILD SUPPORT FORMULA MANUAL § 2.01(G)(2) (Mich.

State Court Admin. Office 2013) [hereinafter MCSF], available at http://courts.mi.gov/Administration/SCAO/Resources/Documents/Publications/Ma nuals/focb/2013MCS F.pdf; see supra II.C.2.

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By applying these proposals to the problem set forth in the introduction of this Comment, it is clear that these results will help improve the adequacy of awards in child-support modification cases.

Unless Gary Johnson can show the trial court a legitimate business reason for a substantial reduction in income, his income over the past five years will be averaged to determine his current income.

Therefore, the $150,000 that Gary claimed for his 2005 salary would be used by the court to determine his current income. Not only does this produce a more accurate income figure, but it forces Gary to wait an additional two years if he plans to “cheat” the system.

Alternatively, if the trial court believes that Gary’s W-2, business records, or any other depiction of his financial status is suspect or not credible, the court can dismiss his case or directly impute income to Gary. Additionally, Amanda Johnson is not faced with the nearly impossible task of retaining attorneys and experts with a limited income. This results in a more adequate determination of income for child-support awards, which will more adequately provide for the children.

IV. CONCLUSION If enacted, these proposals would improve the adequacy and consistency of child-support awards, while furthering the best interests of the child. But these proposals only begin to address the problems when determining income for business owners in childsupport-modification cases. Business owners and self-employed individuals will always have control over their compensation, assets, and business records. But this does not mean that judicial and statutory remedies should remain dormant on the issue while innocent children fall victim to their parents’ personal agendas.

Instead, the legal system must look for solutions to protect our children and their future. As Frederick Douglass said, “It is easier to build strong children than to repair broken men.”144 STEPHEN MADEJ*

144. Pete McCormack, Frederick Douglass on Power and Free Speech, PETEMCCORMACK.COM, http://www.petemccormack.com/blog/?p=7689 (last visited Sept. 15, 2013) (quoting Frederick Douglass). * Stephen Madej is a student at Thomas M. Cooley Law School, where he serves on the Thomas M. Cooley Law Review Board of Editors. Before entering Thomas M. Cooley Law School, he received his bachelor’s degree from The University of Michigan—Dearborn College of Business. The author would like to

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thank Professor Ashley Lowe, Professor Derek Howard, Erin Flynn, and Audrey Marshall for their help with this Comment. The views expressed in this Comment are solely the author’s and do not necessarily represent the views of any other persons.

PROTECTING THE WORST AMONG US: A NARROW QUARLES PUBLIC-SAFETY EXCEPTION IN THE BOSTON BOMBING AND OTHER TERROR INVESTIGATIONS ABSTRACT This Comment considers the public-safety exception to the Miranda requirements and, specifically, how the exception applies to the FBI’s 16-hour pre-Miranda interrogation of suspected Boston Marathon bomber Dzhokhar Tsarnaev. It details the history of the public-safety exception from its genesis in New York v. Quarles to the recent high-profile domestic-terror cases of Umar Farouk Abdulmutallab and Faisal Shahzad. While evaluating arguments for a less restrictive reading or an outright elimination of the publicsafety exception (as has been advocated by many politicians in the wake of domestic terror attacks) and for a narrow reading, this Comment argues that the narrower reading’s benefits outweigh its potential costs; such a reading preserves the constitutional rights of the accused, promotes faith and certainty in the system, and would not result in increased danger to the public.

TABLE OF CONTENTS

I. INTRODUCTION ............................................................................. 450 II. BACKGROUND ............................................................................. 452 A. The Fifth Amendment, Miranda, and Quarles ................... 452 B. From Times Square to Underwear: Application of the Quarles Public-Safety Exception in the Federal Circuits, Khalil, Shahzad, and Abdulmutallab ...................... 455 1. United States v. Khalil ................................................. 455 2. Shahzad ....................................................................... 456 3. Abdulmutallab ............................................................. 458 C. Reactions from Congress and the Department of Justice ................................................................................ 461 D. Proposed Tests for the Quarles Exception ....................... 464 III. DZHOKHAR TSARNAEV AND THE BOSTON BOMBING.................. 465 IV. PROSECUTING TERROR: A MILITARY OPTION, A BROAD QUARLES EXCEPTION, OR A NARROW EXCEPTION? ........................... 468 A. Military Tribunals ............................................................. 468 B. Broad Public-Safety Exception ......................................... 470 C. Narrow Public-Safety Exception ...................................... 472

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V. CONCLUSION ............................................................................... 477 I. INTRODUCTION

On August 15, 2013, a deafening explosion tore through jubilant marathoners and the densely packed crowds that gathered to cheer them on in the heart of Boston.1 Seconds later another blast went off, hurling shrapnel into the panicked crowd at the Marathon finish line.2 The twin improvised-explosive devices, planted by brothers Tamerlan and Dzhokhar Tsarnaev just minutes before, killed 3 and injured close to 300, adding a bloody new page to the growing list of terror attacks in post-9/11 America.3 Tragically, domestic terror attacks like the Boston Bombing have become an all-too-familiar feature of the American landscape in recent years. Since 2009, the country has suffered mass shootings at Fort Hood,4 a Sikh temple in Wisconsin,5 a movie theater in Aurora, Colorado,6 and in Tucson, which killed six and wounded Congresswoman Gabrielle Giffords.7 Law enforcement has become all too aware of the desperate urgency of not only identifying and arresting the perpetrators, but also ensuring that those individuals have not planned or participated in additional terror plots. This urgency was exemplified in the Boston Bombing, where police found additional explosive devices both with the Tsarnaevs and a short distance away from the site of the two original blasts.8

1. Court

Documents Detail Timeline in Marathon Bombing, (June 4, 2013, 2:19 PM), http://www.myfoxboston.com/ story/22044162/court-documents-detail-timeline-in-marathon-bombing.

2. Id. 3. Id. 4. Gunman Kills 12, Wounds 31 at Fort Hood, NBCNEWS.COM (Nov. 5, 2009, 10:48 PM), http://www.nbcnews.com/id/33678801.

5. CNN Wire Staff, Gunman, Six Others Dead at Wisconsin Sikh Temple, CNN (Aug. 5, 2012, 10:36 PM), http://www.cnn.com/2012/08/05/us/wisconsintemple-shooting.

6. Michael Pearson, Gunman Turns ‘Batman’ Screening into Real-Life ‘Horror Film’, CNN (July 20, 2012, 9:59 PM), http://www.cnn.com/2012/07/20/ us/colorado-theater-shooting/index.html.

7. Marc Lacey & David M. Herszenhorn, In Attack’s Wake, Political Repercussions, N.Y. TIMES, Jan. 8, 2011, http://www.nytimes.com/2011/01/09/us/ politics/09giffords.html.

8. Josh Levs & Monte Plott, Boy, 8, One of 3 Killed in Bombings at Boston Marathon; Scores Wounded, CNN (Apr. 18, 2013, 10:25 AM), MY FOX BOSTON . COM

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Any American who has watched a crime show is familiar with the rights created by the Supreme Court of the United States’ decision in Miranda v. Arizona.9 The Court recognized that danger to the general public or law enforcement could supersede those rights when it created the public-safety exception in New York v. Quarles.10 But now some commentators argue that the frequency of domestic terror attacks calls for a far broader public-safety exception or the outright suspension of Miranda safeguards for terror suspects.11 Others, concerned about civil liberties, insist that domestic terror suspects should be treated no differently than any other criminal suspect and provided with the appropriate constitutional protections and safeguards.

Vital policy considerations inform both sides of this debate.

Proponents of a broad view or a special rule for terror cases raise concerns over additional loss of life, coordinated attacks, and the fact that the current public-safety exception does not contemplate largescale contemporary terror plots.12 Their ideological opponents cite the need for continuity, fairness, adherence to existing precedent, and maintaining constitutional protection for the accused.13 With an increasing number of terror attacks committed by American citizens on American soil, it is exceedingly important to the law enforcement and legal communities to resolve this issue.

This Comment argues for a narrow reading of the Quarles publicsafety exception in terror cases because the benefits outweigh the potential costs. A narrow reading preserves the constitutional rights

http://www.cnn.com/2013/04/15/us/boston-marathon-explosions; David Abel et al., Accused Marathon Bomber Faces 30-Count Indictment, BOSTON GLOBE, June 27, 2013, http://www.bostonglobe.com/metro/2013/06/27/boston-marathon-bombsuspect-dzhokhar-tsarnaev-face-state-federalindictments/y9v7apoiowQxx1BrUMGPnL/story.html.

9. 384 U.S. 436 (1966).

10. 467 U.S. 649 (1984).

11. See David T. Hartmann, The Public Safety Exception to Miranda and the War on Terror: Desperate Times Do Not Always Call for Desperate Measures, 22 GEO. MASON U. C.R. L.J. 219, 244 (2012); see also Peter Baker, A Renewed Debate over Suspect Rights, N.Y. TIMES, May 4, 2010, http://www.nytimes.com/ 2010/05/05/nyregion/05arrest.html; Charlie Savage, Holder Backs a Miranda Limit for Terror Suspects, N.Y. TIMES, May 9, 2010, http://www.nytimes.com/2010/05/ 10/us/politics/10holder.html.

12. See infra Part IV.B. 13. See infra Part IV.C.

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of the accused, promotes faith and certainty in the system, and would not further endanger the public.

II. BACKGROUND

A. The Fifth Amendment, Miranda, and Quarles One of the cornerstones governing interrogations of suspects is the Fifth Amendment, which pledges that no defendant will be compelled to be a witness against himself.14 Due to concerns about the inherently coercive nature of custodial interrogation,15 the Supreme Court ruled in Miranda that a suspect’s statements made during a custodial interrogation are inadmissible in court unless the prosecution demonstrates that it took certain measures to safeguard the suspect’s right against self-incrimination.16 These measures include affirming the right to remain silent, the right to counsel regardless of ability to pay, and the acknowledgement that any statements made may be used against the suspect.17 Importantly, the majority also defined custodial interrogation as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way,”18 thereby encompassing encounters outside the traditional police interrogation room.

While the minority19 and naysayers across the country20 forecasted a plague of criminals set free by Miranda, the Court’s decision has little to no negative impact on law-enforcement efforts.

Studies suggest that over 80% of Mirandized suspects willingly waive their rights.21 And in the vast majority of cases, law

14. U.S. CONST. amend. V. 15. See Miranda, 384 U.S. at 454, 461, 467.

16. Id. at 444.

17. Id. 18. Id. 19. See id. at 516–17 (Harlan, J., dissenting).

20. See H. Lynn Edwards, The Effects of “Miranda” on the Work of the Federal Bureau of Investigation, 5 AM. CRIM. L. Q. 159, 160–61 (1966); see also Fred E. Inbau, Crime and the Supreme Court, 6 CRIMINOLOGICA 29, 29 (1968). “The decisions that have severely handicapped the police and created the big loopholes through which the guilty escape have been a contributing factor in the increase of crime in recent years.” Id. 21. See, e.g., Paul G. Cassell & Bret S. Hayman, Police Interrogation in the 1990s: An Empirical Study of the Effects of Miranda, 43 UCLA L. REV. 839, 859 (1996).

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enforcement’s evidence is not limited to the suspect’s statements.22 But perhaps the best indication that Miranda does not frustrate lawenforcement efforts is that the FBI itself has spoken out in defense of Miranda procedures. In 2010, FBI Director Robert Mueller remarked that “Miranda has not stood in the way of getting extensive intelligence . . . .”23 And three retired FBI interrogators wrote to the President that “[i]n our decades of working in law enforcement, including the years following 9/11, Miranda rights never interfered with our ability to obtain useful information or make prosecutable cases.”24 Despite both the qualitative evidence and the anecdotal support of experienced law-enforcement professionals indicating that Miranda does not hinder law enforcement, several post-Miranda decisions chipped away at the newly established rights by creating exceptions in certain situations. Arguably the most significant post-Miranda decision was New York v. Quarles.25 In Quarles, a rape victim flagged down police, described her attacker, and told the officers that the man in question had just entered a nearby grocery store with a gun.26 The officers entered the grocery store, located the suspect, and then handcuffed and arrested him.27 But the suspect was no longer carrying the gun.28 The officers, fearing that a customer might find the gun and harm someone, asked the suspect, “Where’s the gun?” before reading him his Miranda rights.29 Only after the suspect answered the question and the officers recovered the gun did the officers read him his rights.30 At trial, Quarles attempted to suppress the gun on the grounds that the officers’ question about its location was obtained in violation

22. See DAVID S. KRIS & J. DOUGLAS W ILSON, NATIONAL SECURITY INVESTIGATIONS & PROSECUTIONS § 24:5 (2d ed. 2013).

23. Chris Strohm, FBI Says Miranda Readings Don’t Hurt Bureau, GOV’T EXECUTIVE (Oct. 6, 2010), http://www.govexec.com/defense/2010/10/fbi-saysmiranda-readings-dont-hurt-bureau/32505/.

24. Spencer Ackerman, FBI Interrogators Urge Obama to Keep Miranda Warnings Intact, WASH. INDEP. (May 13, 2010, 9:32 AM), http://washingtonindependent.com/8476/fbi-interrogators-urge-obama-to-keepmiranda-warnings-intact.

25. 467 U.S. 649 (1984).

26. Id. at 651–52.

27. Id. at 652.

28. Id. 29. Id. 30. Id.

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of Miranda.31 The Supreme Court took the opportunity to carve out a crucial exception to Miranda.32 Reasoning that the facts of the case “present[ed] a situation where concern for public safety must be paramount,”33 the majority asserted a “public safety” exception to the Miranda requirements. This exception made a suspect’s unMirandized statements fully admissible so long as they were “reasonably prompted by a concern for public safety.”34 The Court noted that use of the public-safety exception does not require a concern for the public alone; the exception is also applicable when there is a reasonable concern for the officers’ safety.35 But the Court cautioned that the new exception must be construed narrowly.36 So both law-enforcement officers and reviewing courts were to draw a clear line between questions designed to lessen fears for public safety and questions designed solely to elicit testimonial evidence.37 In Quarles, the Court held that potential concealment of the gun in a public area was sufficient to trigger the public-safety exception and render Quarles’s statements admissible.38 In his dissent, Justice Marshall raised two primary concerns that remain today. First, Justice Marshall insisted that the type of emergency questioning at issue in Quarles was—and always had been—available to law enforcement; in situations where time was of the essence or Miranda was otherwise impracticable, interrogators were completely free to ask questions if they were equally prepared to forego admission of the resulting statements at an eventual trial.39 In Justice Marshall’s view, this made the public-safety exception superfluous. Second, he agreed with the Miranda majority in their view that the right against self-incrimination trumped whatever public-safety concerns might exist.40

31.

32.

33.

34.

35.

36.

37.

38.

39.

40.

Id. at 652–53.

Id. Id. Id. at 656.

Id. at 655–56.

Id. at 658.

Id. at 658–59.

Id. at 657, 659–60.

Id. at 686 (Marshall, J., dissenting).

Id. at 688 (Marshall, J., dissenting).

The majority should not be permitted to elude the Amendment’s absolute prohibition simply by calculating special costs that arise when the public’s safety is at issue. Indeed, were constitutional

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B. From Times Square to Underwear: Application of the Quarles Public-Safety Exception in the Federal Circuits, Khalil, Shahzad, and Abdulmutallab Since the Quarles decision in 1984, most federal circuit courts have analyzed public-safety-exception cases using one of two different approaches.41 The Second, Fourth, Fifth, Sixth, and Tenth Circuits employ a narrow approach to the exception, requiring “officers to have actual knowledge of an imminent threat to public safety before utilizing [it].”42 Conversely, the First, Eighth, and Ninth Circuits favor a broad approach, permitting use of the exception when there are “inherently dangerous circumstances posing a material threat to officers or the public, without regard to an immediate or objective threat.”43 The remaining circuits have either not ruled on the subject or have applied inconsistent approaches.44 While the majority of public-safety-exception cases have involved firearms or drugs, only a mere handful involved pipe bombs or other explosives.45 1. United States v. Khalil Compared to the facts in the Tsarnaev investigation, the most similar case is United States v. Khalil.46 In Khalil, the suspects’ roommate tipped off New York City police that co-defendants Gazi Ibrahim Abu Mezer and Lafi Khalil were planning to bomb a subway train to “punish the United States for supporting Israel.”47 When police raided the apartment, one of the defendants grappled with an officer, attempting to take his gun; the other attempted to reach a

adjudication always conducted in such an ad hoc manner, the Bill of Rights would be a most unreliable protector of individual liberties.

Id. 41. Keith A. Petty, A Different Kind of Criminal? Miranda, Terror Suspects, and the Public Safety Exception, 4 ELON L. REV. 175, 181 (2012).

42. Id. 43. Id. (quoting Rorie A. Norton, Note, Matters of Public Safety and the Current Quarrel over the Scope of the Quarles Exception to Miranda, 78 FORDHAM L. REV. 1931, 1934 (2010)).

44. Id. at 182.

45. See Joanna Wright, Mirandizing Terrorists? An Empirical Analysis of the Public Safety Exception, 111 COLUM. L. REV. 1296, 1320 (2011).

46. 214 F.3d 111 (2d Cir. 2000).

47. Id. at 116 (citations omitted).

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black bag that officers believed contained the bombs. The police shot and wounded both men, disabling them.48 The officers then discovered that the black bag did indeed contain pipe bombs and that a switch on one of them had been flipped.49 Justifiably concerned for their safety and the safety of the surrounding general public, the police questioned Abu Mezer at the hospital while he received treatment for his injuries—and before he was Mirandized.50 Abu Mezer spoke freely, responding completely to questions about the number of bombs he made, how they were constructed, and how they could best be defused.51 He also professed to be “with” the Hamas terrorist organization and noted a specific subway train he intended to bomb because he believed that “there were a lot of Jews who [rode] that train.”52 At trial, Khalil and Abu Mezer moved to suppress the statements given at the hospital, noting the lack of Miranda warnings throughout the interrogation.53 In response, the government cited the publicsafety exception to justify their actions.54 The Court of Appeals for the Second Circuit applied a narrow approach to the public-safety exception and held that the officers’ questioning fit comfortably within its bounds.55 So Abu Mezer’s hospital-interrogation statements were admissible in their entirety.56 2. Shahzad But not all statements elicited by interrogation under the publicsafety exception are used at trial. Faisal Shahzad, a naturalized United States citizen born in Pakistan, was a college-educated suburban homeowner and father living in Bridgeport, Connecticut.57

48. Id. at 115.

49. Id. 50. Id. at 115, 121.

51. Id. at 115.

52. Id. at 116.

53. Id. at 121.

54. Id. 55. Id. 56. Id. at 122. It is noteworthy that the events in Khalil occurred before the terrorist attacks on September 11, 2001. Id. 57. Nina Bernstein, Bombing Suspect’s Route to Citizenship Reveals Limitations, N.Y. TIMES, May 7, 2010, http://www.nytimes.com/2010/05/08/ nyregion/08immig.html.

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But ties with militant Muslims, his own financial difficulties,58 and the 2007 Pakistani commando attack on the Red Mosque in Islamabad, which left over 100 Muslims dead, led to his radicalization.59 Shahzad traveled to Pakistan where the Pakistani Taliban gave him five days of explosives training, financial backing, and a plan to execute when he returned to the United States.60 On May 1, 2010, Shahzad left a newly purchased vehicle loaded with gasoline, propane, fertilizer, and fireworks in New York City’s Times Square and attempted to ignite the homemade bomb.61 Passersby were alarmed by smoke and “popping sounds” coming from the vehicle and flagged down police, who called the bomb squad.62 Ultimately, the explosives failed to ignite, and authorities searched the vehicle without further incident.63 After identifying Shahzad through the vehicle he bought in Connecticut, the FBI arrested him two days later when he boarded an international flight bound for Dubai.64 After his arrest, interrogators used the public-safety exception to question Shahzad without advising him of his Miranda rights.65 This

58. See generally Alexis Mainland et al., Timeline: Faisal Shahzad, NYTIMES.COM (May 5, 2010), http://www.nytimes.com/interactive/2010/05/05/ nyregion/shahzad-timeline.html (discussing that, among other setbacks, Chase Financial foreclosed on Shahzad’s house in September 2009).

59. Andrea Elliott, Militant’s Path from Pakistan to Times Square, N.Y. TIMES, June 22, 2010, http://www.nytimes.com/2010/06/23/world/ 23terror.html?pagewanted=all (stating that while the siege of the Red Mosque and the subsequent deadly raid were carried out by Pakistani forces, Shahzad and other radicals felt that it was carried out at the behest and with the enthusiastic approval of the United States).

60. Id. 61. Mark Mazzetti et al., Suspect, Charged, Said to Admit to Role in Plot, N.Y. TIMES, May 4, 2010, http://www.nytimes.com/2010/05/05/nyregion/ 05bomb.html?ref=faisalshahzad.

62. Michael M. Grynbaum et al., Police Seek Man Taped Near Times Sq. Bomb Scene, N.Y. TIMES, May 2, 2010, http://www.nytimes.com/2010/05/03/nyregion/ 03timessquare.html.

63. Id.; see also Murray Weiss, One Thing Bothering Faisal . . ., N.Y. POST, May 20, 2010, http://www.nypost.com/p/news/local/ one_thing_bothering_faisal_SblxnJA7jm9JjRj6cqp4nM (discussing that the fireworks used were not powerful enough to ignite the explosives, and even had they been, the fertilizer was non-explosive).

64. Weiss, supra note 63.

65. Stephanie Condon, Faisal Shahzad Was Read Miranda Rights After Initial Questioning, CBSNEWS (May 4, 2010, 6:20 PM), http://www.cbsnews.com/8301-

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initial interrogation began on the evening of May 3, 2010 and continued on into the early morning hours of May 4. At some indeterminate point that day, detectives read Shahzad his rights.66 Presumably before being Mirandized, Shahzad freely admitted that he planned to detonate another car bomb in New York City had he not been arrested.67 Even after being advised of his rights, Shahzad cooperated fully with his interrogators, providing what Assistant FBI Director John Pistone called “valuable intelligence and evidence . . . .”68 Subsequently, Shahzad’s statements led directly to multiple arrests in Pakistan, including a Pakistani army major.69 Ultimately, Shahzad pleaded guilty to all counts against him and received a mandatory life sentence.70 At his sentencing, Shahzad protested for the first time that he was not Mirandized on May 4.71 He stated that he “asked for the [sic] Miranda” on the second day of his initial interrogation and that “the F.B.I. denied it to [him] for two weeks” while simultaneously threatening his family.72 The truth of that untimely assertion was never determined because Shahzad’s guilty plea made the issue moot.

3. Abdulmutallab Like Faisal Shahzad, Umar Farouk Abdulmutallab, known as the Underwear Bomber, sought to attack the United States as a gesture of Muslim jihad. He cited his religious obligation, anger over United States support of Israel, and his long-simmering hatred of the United

503544_162-20004108-503544/faisal-shahzad-was-read-miranda-rights-afterinitial-questioning/.

66. Warren Richey, Miranda Rights and Alleged Times Square Bomber: Questions Linger, CHRISTIAN SCI. MONITOR, May 4, 2010, http://www.csmonitor.com/USA/Justice/2010/0504/Miranda-rights-and-allegedTimes-Square-bomber-questions-linger.

67. Press Release, Fed. Bureau of Investigation, Faisal Shahzad Sentenced in Manhattan Fed. Court to Life in Prison for Attempted Car Bombing in Times Square (Oct. 5, 2010), available at http://www.fbi.gov/newyork/press-releases/ 2010/nyfo100510.htm.

68. Richey, supra note 66.

69. Faisal Shahzad Probe Earns Pakistan CIA Visit, CBSNEWS (May 19, 2010, 12:14 PM), http://www.cbsnews.com/2100-202_162-6499127.html.

70. Michael Wilson, Shahzad Gets Life Term for Times Square Bombing Attempt, N.Y. TIMES, Oct. 5, 2010, http://www.nytimes.com/2010/10/06/nyregion/ 06shahzad.html?_r=0.

71. Id. 72. Id.

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States for the killing of Muslims in Israel, Yemen, Iraq, Somalia, and Afghanistan as motivating forces.73 In 2009, Abdulmutallab traveled to Yemen where an al-Qaeda terrorist group trained, advised, and equipped him.74 On his trip back to the United States, Abdulmutallab attempted to detonate an explosive device concealed in his underwear shortly before his flight landed in Detroit on Christmas Day, 2009.75 The bomb was specially constructed to elude metal detectors and airport screeners and contained PETN and TATP—two powerful explosives.76 Abdulmutallab planned to detonate the explosives using a chemical-filled syringe.77 But the device failed to work properly and set only a small fire, causing minimal damage to the aircraft’s cabin wall and severe burns to Abdulmutallab’s thighs and genitals.78 The flight crew and passengers immediately restrained Abdulmutallab,79 and U. S. Customs and Border Protection officers took him into custody as soon as the flight landed.80 Noting that Abdulmutallab’s burns required serious medical attention, the officers transported him to the hospital and contacted the FBI.81 Abdulmutallab admitted that he acted on behalf of alQaeda and revealed details about his plan and the explosive device

73. David Ashenfelter & Tresa Baldas, Underwear Bomber Pleads Guilty in Surprise Move, DETROIT FREE PRESS, Oct. 13, 2011, http://www.freep.com/ article/20111013/NEWS06/110130494/Underwear-bomber-pleads-guilty-surprisemove.

74. Dan Murphy, Al-Qaeda Ties of Umar Farouk Abdulmutallab: How Deep do they Go?, CHRISTIAN SCI. MONITOR, Dec. 28, 2009, http://www.csmonitor.com/ World/Global-News/2009/1229/Al-Qaeda-ties-of-Umar-Farouk-AbdulmutallabHow-deep-do-they-go.

75. Press Release, Fed. Bureau of Investigation, “Underwear Bomber” Umar Farouk Abdulmutallab Pleads Guilty (Oct. 12, 2011), available at http://www.fbi.gov/detroit/press-releases/2011/underwear-bomber-umar-faroukabdulmutallab-pleads-guilty [hereinafter Abdulmutallab Press Release].

76. Id. 77. Id. 78. Adam Martin, The Surreal Moments of the Underwear Bomber’s Trial, WIRE (Oct. 12, 2011, 12:02 PM), http://www.thewire.com/national/2011/10/ laughing-at-danger-the-underwear-bombers-surreal-trial/43580/.

79. Peter Slevin, Fear and Heroism Aboard Flight 253, W ASH. POST, Dec. 27, 2009, http://articles.washingtonpost.com/2009-12-27/news/36928724_1_jasperschuringa-passenger-jet-umar-farouk-abdulmutallab.

80. United States v. Abdulmutallab, No. 10-20005, 2011 WL 4345243, at *1 (E.D. Mich. Sept. 16, 2011).

81. Id.

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before arriving at the hospital.82 At this point, none of the authorities involved advised him of his Miranda rights.83 The Customs officers who brought Abdulmutallab to the hospital told the FBI about his ties to al-Qaeda, and the interrogating agents were concerned that additional terror attacks might be imminent in the United States and across the globe.84 After receiving treatment and painkilling medication, he was moved to a hospital room where two FBI special agents and a Customs officer began interrogating him.85 They questioned Abdulmutallab for roughly 50 minutes without reading him his rights, interrogating him about where he traveled, when he had traveled, how, and with whom; the details of the explosive device; the details regarding the bomb-maker, including where Defendant had received the bomb; his intentions in attacking Flight 253; and who else might be planning an attack. Every question sought to identify any other potential attackers and to prevent another potential attack.86 Once the agents had the information they were looking for (or were satisfied that Abdulmutallab could not provide it to them), they stopped interrogating him.87 Shortly after, they read him his rights and shared his statements with “other law enforcement and intelligence agencies worldwide, further underscoring that it was obtained for purposes of public safety, to deal with other possible threats.”88 During prosecution, Abdulmutallab moved to suppress the statements he made on the way to the hospital, during his treatment, and in the course of the 50-minute FBI interrogation on the grounds, among other things, that the public-safety exception did not apply

82. Id. 83. See id.; Eugene Volokh, Consitutional Rights of Non-Citizens, VOLOKH CONSPIRACY (Feb. 18, 2009, 8:31 PM), http://www.volokh.com/posts/ 1235007104.shtml (discussing the applicability of Miranda rights for foreign nationals).

84. Abdulmutallab, 2011 WL 4345243, at *1.

85. Id. 86. Id. at *2.

87. Id. 88. Id. at *6.

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under the circumstances.89 A federal judge for the Eastern District of Michigan denied the motion, holding that the exception was appropriate.90 The judge reasoned that the agents were justified in suspecting a multi-pronged attack based on their “training, experience, and knowledge of earlier al-Qaeda attacks.”91 And the judge noted that all of the FBI’s questions were intended to address that suspicion, and the interrogation’s brief duration supported the FBI’s assertion that the agents only delayed Miranda to address specific, legitimate public-safety concerns.92 Because Abdulmutallab later pleaded guilty, the judge’s ruling on the motion to suppress provides the only official court record that exists on the FBI’s use of the exception in this case.93 C. Reactions from Congress and the Department of Justice Thanks to these headline-grabbing cases, figures across the political spectrum have weighed in on Miranda rights for terrorists and, more specifically, use of the public-safety exception in terror cases. Although Attorney General Eric Holder previously made vigorous arguments that the criminal-justice system was properly equipped to deal with terrorist prosecutions, he abruptly reversed his position in 2010.94 He declared that “interrogators needed greater flexibility to question terrorism suspects than is provided by existing exceptions” and called on Congress to pass legislation allowing law enforcement to bypass Miranda completely when interrogating terror suspects.95 That same year, Democratic Representative Adam Schiff introduced the Questioning Terrorism Suspects Act, aiming to automatically codify the public-safety exception in all terrorism interrogations.96 Under the proposed legislation, within six hours of the arrest, the federal government must apply to a judicial officer with evidence that the arrestee is (1) a terrorism suspect who (2) “may be able to provide intelligence necessary to protect the public safety.” If the judge approves this application,

89.

90.

91.

92.

93.

94.

95.

96.

Id. at *5.

Id. Id. Id. at *5–6.

Abdulmutallab Press Release, supra note 75.

Savage, supra note 11.

Id. Hartmann, supra note 11, at 244.

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the public safety exception would apply for the following 48 hours. During this time the suspect would remain uninformed of his Miranda rights, and “any confession made . . . [would] not be considered inadmissible.”97 Representative Schiff’s colleagues on the other side of the aisle also called for an overhaul of Miranda and the public-safety exception. In the wake of Shahzad’s attempted Times Square bombing, Republican Senator Christopher S. Bond said, “We’ve got to be far less interested in protecting the privacy rights of these terrorists than in collecting information that may lead us to details of broader schemes to carry out attacks in the United States.”98 Republican Representative Peter King thought that framing the debate in terms of a criminal prosecution was a mistake.99 Instead he called for prosecution by military commissions as a way of collecting more information from terror suspects.100 And Senator John McCain opined that the primary concern in interrogating terror suspects should be collecting evidence that could be used to prevent future attacks.101 “Our priority,” added Senator McCain, “should not be telling them they have a right to remain silent.”102 As stated above, the FBI has endorsed the use of Miranda and the public-safety exception in all criminal prosecutions, including terror cases.103 Indeed, the Bureau’s own Domestic Investigations and Operations Guide and Legal Handbook for Special Agents explicitly states that, for interrogations taking place on United States soil, “Miranda warnings are required to be given prior to custodial interviews.”104 But this does not apply to interrogations under the public-safety exception.105 Interrogation guidelines under the exception have been largely absent, at least officially.

But a 2011 internal memorandum leaked to the New York Times shines a light on the Bureau’s evolving stance on interrogating terror

97.

98.

99.

100.

101.

102.

103.

104.

105.

Id. at 244–45 (internal citations omitted).

Baker, supra note 11.

Id. Id. Id. Id. See Ackerman, supra note 24.

KRIS & W ILSON, supra note 22, at n.10.

Id.

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suspects.106 The memo begins by reaffirming existing policy.107 But it also provides that “the circumstances surrounding an arrest of an operational terrorist may warrant significantly more extensive publicsafety interrogation without Miranda warnings than would be permissible in an ordinary criminal case.” 108 This permits more leeway under the exception than was previously available to interrogators. The memo also instructs agents that “[t]here may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat . . . .” 109 This appears to run counter to the majority of public-safety-exception jurisprudence.

The Obama administration has been silent on the contents of the memo, and no criminal cases have come to light involving a use of the public-safety exception under its terms. No matter the Bureau’s public stance, it is apparently wrestling with redefining and potentially broadening the scope of the exception in the face of recent domestic terrorism.

106. F.B.I. Memorandum, N.Y. TIMES, Mar. 25, 2011, http://www.nytimes.com/ 2011/03/25/us/25miranda-text.html?_r=0&gwh=190A6279E487BE3D1B55F35 1795DA95C. 107. Id. The Department of Justice and the FBI believe that we can maximize our ability to accomplish these objectives [i.e. identifying, apprehending, interrogating, and detaining suspected terrorists] by continuing to adhere to FBI policy regarding the use of Miranda warnings for custodial interrogation of operational terrorists who are arrested inside the United States . . . .

Id. 108. Id. Interestingly, the memo goes on to define an operational terrorist [as] an arrestee who is reasonably believed to be either a high-level member of an international terrorist group; or an operative who has personally conducted or attempted to conduct a terrorist operation that involved risk to life; or an individual knowledgeable about operational details of a pending terrorist operation.

Id. This casts a fairly wide net and would presumably apply to a wide range of apolitical, relatively small-scale crimes so long as the offenses could somehow be termed a terrorist operation and involved risk to life.

109. Id.

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D. Proposed Tests for the Quarles Exception Legal scholars and commentators have weighed in on this debate with two potential approaches deserving particular mention.

One approach is a three-part test to judge whether an interrogation satisfies the public-safety exception under Quarles.110 First, when an objective threat is present, the officer “must have a reason to believe the suspect has, or recently had, a weapon.”111 Second, the threat must be immediate, meaning that “someone other than the police must be able to gain access to the weapon and inflict harm with it.”112 Third, a court would objectively evaluate the officer’s questions “to ensure that they are narrowly tailored to the threat at hand” and to determine compliance with Quarles.113 While this approach is meant to address public-safety-exception cases in general and not the subset of terror-suspect interrogations,114 it generally conforms to the more narrow approach adopted by the Second, Fourth, Fifth, Sixth, and Tenth Circuits requiring “officers to have actual knowledge of an imminent threat to public safety before utilizing the exception.”115 The second approach is to adopt a far broader public-safety exception in terror cases.116 This approach bears a strong resemblance to Representative Schiff’s aforementioned legislation117 and proposes that a public-safety exception would be “automatically deemed to exist” whenever a suspect is arrested for a terrorismrelated offense.118 Law enforcement would not be required to comply with Miranda at any point thereafter, and the suspect’s statements would remain admissible at trial.119 And rather than mandating the presence of an objective, immediate threat or actual knowledge, “the detaining officer under this standard need only have a reasonable belief that the suspect is

110. Petty, supra note 41, at 196.

111. Id. 112. Id. 113. Id. 114. Id. 115. Id. at 181.

116. See Paul Cassell, Time to Codify a Miranda Exception for Terrorists?, VOLOKH CONSPIRACY (Oct. 21, 2010, 10:27 AM), http://www.volokh.com/ 2010/10/21/time-to-codify-a-miranda-exception-for-terrorists/.

117. See Hartmann, supra note 11, at 244–45.

118. Cassell, supra note 116.

119. Id.

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involved in a terrorism related offense.”120 This approach significantly expands the public-safety exception beyond even the broad approach favored by the First, Eighth, and Ninth Circuits.121 For the reasons listed below, this approach to the Quarles exception is inferior to the narrow exception and provides minimal gains that do not offset the social costs and erosion of constitutional rights.

III. DZHOKHAR TSARNAEV AND THE BOSTON BOMBING In early 2013, Dzhokhar Tsarnaev enacted a plot and inadvertently stepped into these varying applications of the publicsafety exception. Brothers Dzhokhar and Tamerlan Tsarnaev, both ethnic Chechens,122 emigrated to the United States separately with family members in 2002 and 2004.123 Despite never living in Chechnya, the brothers’ Internet and social-media usage indicates that both—especially the elder Tamerlan—were powerfully drawn to that country’s long-standing and bloody conflict with Russia.124 While the brothers acclimated to their new home with varying degrees of success,125 only Dzhokhar became a naturalized citizen, taking the oath of citizenship in September 2012.126 Though the picture is not yet complete, sometime while living in the United States the Tsarnaevs gravitated toward radical Islam and began downloading essays and exhortations written by current and former al-Qaeda members.127 Also during this time, one or both of

120. Id. 121. Petty, supra note 41, at 181.

122. Miriam Elder & Matt Williams, Chechnya Connections Build Picture of Tamerlan and Dzhokhar Tsarnaev, THEGUARDIAN, Apr. 19, 2013, http://www.guardian.co.uk/world/2013/apr/19/tamerlan-dzhokhar-tsarnaev-bostonbombings-chechnya.

123. Id. 124. Id. 125. Id. 126. John R. Ellement et al., Dzhokhar Tsarnaev, Marathon Bombing Suspect, Charged in Federal Court with Using a Weapon of Mass Destruction, BOSTON GLOBE, Apr. 22, 2013, http://www.boston.com/metrodesk/2013/04/22/whitehouse-dzhokhar-tsarnaev-bombing-suspect-tried-federal-court/VvkTs5UtwmsuEn KMXMVSXM/story.html.

127. Denise Lavoie & Tom Hays, Dzhokhar Tsarnaev, Boston Bombing Suspect, Was Influenced by Internet: Indictment, HUFFINGTON P OST (June 28, 2013, 6:37 AM), http://www.huffingtonpost.com/2013/06/28/dzohkhar-tsarnaev-internetindictment_n_3515432.html; see also Janet Reitman, Jahar’s World, ROLLING STONE, July 17, 2013, at 46, available at http://www.rollingstone.com/culture/

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the brothers returned periodically to Dagestan and possibly visited Chechnya.128 Both countries have been referred to as “recruiting grounds for Muslim extremists.”129 In 2012, law-enforcement officials confirmed that Tamerlan spent six months in Dagestan, where he may have received terrorist training.130 On April 15, 2013, the Tsarnaevs put into motion the plan that Bill Keating, House Homeland Security Committee member, called a “sophisticated, coordinated, planned attack.”131 While mingling with the densely packed crowd near the Boston Marathon’s finish line, the brothers planted homemade explosive devices assembled from pressure cookers and explosive powder purchased online.132 One of the Tsarnaevs downloaded the instructions from a jihadi website.133 Placing the pressure-cooker devices in backpacks, the duo set down their bundles and walked away shortly before the explosions ripped through the crowd.134 These explosives killed 3 and wounded close to 300.135 And the police later found two additional pressure-cooker devices that could have killed or injured many more.136 Armed with knives, firearms, and more homemade explosive devices,137 the Tsarnaevs eluded authorities for four days, killing a Massachusetts Institute of Technology police officer and then carjacking, kidnapping, and robbing a passing motorist.138 After identifying the brothers through various security cameras at the scene of the bombing, police finally cornered them in Watertown, Massachusetts, where Tamerlan was killed in a police shootout.139

news/ahars-world-20130717 (detailing the declining fortunes of the Tsarnaev family in the United States). Given their similar financial and social reverses, parallels can certainly be drawn between the radicalization of the Tsarnaev brothers and that of Faisal Shahzad.

128. Elder & Williams, supra note 122.

129. Associated Press, AP: Feds: Boston Suspect Downloaded Bomb Instructions, HERALD SUN, June 27, 2013, http://www.heraldsun.com/news/blog/ nationworld/x1065839567/AP-Feds-Boston-suspect-downloaded-bombinstructions.

130. Id. 131. Levs & Plott, supra note 8.

132. Abel et al., supra note 8.

133. Id. 134. Id. 135. Id. 136. Levs & Plott, supra note 8.

137. Abel et al., supra note 8.

138. Id. 139. Id.

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Dzhokhar was seriously wounded but managed to hide in a boat for several hours before police found and arrested him.140 Authorities rushed Dzhokhar to the hospital, where FBI and other law-enforcement officials remained by his side during his treatment.141 Dzhokhar was transferred to a federal-prison hospital two days later, immediately after his condition stabilized.142 After prosecutors charged Tsarnaev with using a weapon of mass destruction, the FBI began interrogating him.143 He was not advised of his Miranda rights.144 For 16 hours, members of the FBI High Value Detainee Interrogation Group questioned Tsarnaev, who had to write his answers because his throat was so seriously wounded.145 While the full substance of the interrogation is uncertain, Tsarnaev did admit to his role in the bombing.146 And he revealed that he and Tamerlan planned to drive to New York City and detonate more of the homemade pressure-cooker bombs in Times Square.147 But this plan was foiled when their carjacking victim escaped and called for help, drawing police to Watertown.148 Tsarnaev termed this a “spontaneous plan” hatched after their grisly success in Boston.149 No lawenforcement official suggested that Tsarnaev gave valuable evidence—or any evidence at all— regarding official links with alQaeda or any other potential terrorist attacks during this time.

140. Id. 141. Ashleigh Banfield, Source: Dzhokhar Tsarnaev Arrived at Hospital ‘Covered in Blood’, CNN (May 1, 2013, 5:35 AM), http://www.cnn.com/2013/04/ 29/us/boston-bomber-hospital-arrival.

142. Id. 143. Richard A. Serrano et al., Miranda Reading Silences Boston Suspect, L.A. TIMES, Apr. 26, 2013, http://articles.latimes.com/2013/apr/26/nation/la-na-bostonbombing-20130426.

144. Id.; see also Glenn Greenwald, Report: Dzhokhar Tsarnaev’s Repeated Requests for a Lawyer Were Ignored, THEGUARDIAN, Apr. 29, 2013, http://www.guardian.co.uk/commentisfree/2013/apr/29/tsarnaev-right-to-counseldenied. This recent report suggests that Tsarnaev repeatedly and unequivocally requested counsel from the earliest stages of his FBI interrogation. Id. If true—and the report is currently unconfirmed—denial to a criminal suspect of one of the most basic constitutional rights would raise even graver concerns than a willful stretching of the public-safety exception. Id. 145. Serrano et al., supra note 143.

146. Id. 147. Id. 148. Id. 149. Id.

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When FBI interrogators learned that the federal magistrate assigned to the case was on the way to conduct Tsarnaev’s initial appearance, they terminated the interrogation and left before the judge arrived.150 The judge personally read Tsarnaev his Miranda rights.151 The interrogators eventually returned, only to find Tsarnaev invoking his Miranda rights and refusing to cooperate.152 Tsarnaev was charged with 30 criminal counts related to the bombing, including the murder of the security officer and the carjacking.153 He is currently awaiting trial where he faces either the death penalty or a life sentence.154 It is uncertain if the evidence against him, apart from the FBI interrogation, will be sufficient to convict him; if the government will attempt to admit all of his statements under the public-safety exception, and if the court will allow it; and even if Tsarnaev, like Shahzad and Abdulmutallab, will simply avoid the foregoing questions and plead guilty.

IV. PROSECUTING TERROR: A MILITARY OPTION, A BROAD QUARLES EXCEPTION, OR A NARROW EXCEPTION? A. Military Tribunals Before reaching the question of whether a broad or narrow interpretation is appropriate in terror prosecutions, it is prudent to address a very different option: prosecution by a military tribunal.

Several lawmakers and commentators have argued that terrorists— even United States citizens—should be interrogated and prosecuted in precisely this fashion.155 Such simplicity is attractive; under military auspices, there is no requirement for Miranda rights or concern over the bounds of Quarles. And interrogators would be free to question terror suspects indefinitely. But there are two major problems with this viewpoint.

First, there is no evidence that the criminal-justice system lacks the required power or flexibility to effectively prosecute terror suspects. Numerous high-profile and infamous terror suspects have been successfully tried and convicted in federal criminal court.

Among these include: the Oklahoma City bombers, Timothy

150.

151.

152.

153.

154.

155.

Id. Id. Id. Ellement et al., supra note 126.

Id. Baker, supra note 11.

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McVeigh and Terry Nichols; the Unabomber, Theodore Kaczynski; and the 1993 World Trade Center bomber, Ramzi Yousef.156 Even after 9/11, the Bush administration, an outspoken proponent of military tribunals, chose to prosecute some of its highest-profile terror suspects through the criminal-justice system.157 And a 2007 study showed that of the 28 federally prosecuted terror suspects whose cases had reached disposition by that time, only 3 were acquitted.158 In comparison, six years after President Bush signed the military order authorizing the employment of military tribunals, only ten detainees were charged and not a single one had been brought to justice.159 This high conviction rate in the criminal-justice system strongly suggests that “[t]he regular criminal justice process in the federal courts has served and can continue to serve as an adequate, efficient, and fair method to bring terrorists to justice,” particularly when compared to the inefficacy of military tribunals.160 And second, the more fundamental question is whether American society is prepared to authorize the per se prosecution of terror suspects by military tribunals. Faisal Shahzad and Dzhokhar Tsarnaev are both naturalized American citizens,161 as many domestic terrorists in the future will likely be. Since United States citizens may not be tried under the Military Commissions Act, pursuing such a course would require far-reaching new legislation that would be contrary to the great weight of American jurisprudence.162 If the criminal-justice system is serving its purpose and the true goal is to see justice done, it is senseless to make a midstream switch to military tribunals, which are unproven at best and unconstitutional at worst. Though it has been considered in the past and will doubtless be raised in the future, using military tribunals for terror prosecutions is an inferior option to interrogating and prosecuting through the criminal-justice system and the Quarles exception.

156. Alberto R. Gonzales, Waging War Within the Constitution, 42 TEX. TECH L. REV. 843, 861 (2010).

157. See id. at 861–62.

158. Hartmann, supra note 11, at 239–40.

159. Kim D. Chanbonpin, Ditching “The Disposal Plan:” Revisiting Miranda in an Age of Terror, 20 ST. THOMAS L. REV. 155, 158 (2008).

160. Id. at 159.

161. Bernstein, supra note 57; Ellement et al., supra note 126.

162. Robert A. Levy, Does the Military Commission Act Apply to U.S. Citizens?, CATO INST. (Oct. 2, 2006, 1:28 PM), http://www.cato.org/blog/does-militarycommission-act-apply-us-citizens.

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B. Broad Public-Safety Exception Generally those favoring a broad interpretation of the publicsafety exception do not suggest that criminal suspects do not deserve Miranda. But they argue that Miranda and the public-safety exception under Quarles “create innumerable challenges to the criminal prosecution of terrorists” and make such prosecutions unreasonably difficult.163 Certainly the public-safety exception grants a degree of flexibility to law enforcement as they pursue legitimate safety concerns.164 And dispensing with Miranda requirements altogether would help law enforcement gather intelligence and prevent future crimes. But the question remains whether this strategy is the wisest course.

Proponents of a broad public-safety exception believe that the world has fundamentally changed since Miranda and Quarles. And some argue that this precedent contemplated a kinder, gentler, more innocent time.165 This thinking is persuasive to Americans who still feel threatened by terrorist plots from both foreign enemies and homegrown terrorists. The Shahzad, Abdulmutallab, and Tsarnaev attacks “[demonstrate] that terrorist groups, or even radicalized individuals, will not stop trying to kill United States citizens in dramatic, horrifying ways.”166 And to some, the danger to public safety is a question of scale—when the typical terrorist plot is potentially so much more deadly than a loose gun in a supermarket, practicality insists that the exception expands to a proportionate degree.167 Though persuasive, this thinking does not comport with the law.

Beginning with Quarles, the Supreme Court stressed that the publicsafety exception was intended to be narrow.168 And the Court has never stood for the proposition that the existence of an emergency

163. Hartmann, supra note 11, at 239.

164. W ILLIAM E. RINGEL, SEARCHES AND SEIZURES, ARRESTS AND CONFESSIONS § 26.13 (2d ed. 2013).

165. See Wm. Robert Johnston, Worst Terrorist Strikes in the United States, JOHNSTON’S ARCHIVE, http://www.johnstonsarchive.net/terrorism/wrjp255us.html (last updated May 23, 2013). While admittedly the political and religious elements of terrorism have changed over the last several decades, it would be a disservice to suggest that the Miranda and Quarles Courts were unfamiliar with large-scale terror attacks. By the time those cases were decided, the United States had already witnessed numerous politically, religiously, or racially motivated mass attacks.

166. Petty, supra note 41, at 186.

167. KRIS & W ILSON, supra note 22, at § 24:21.

168. New York v. Quarles, 467 U.S. 649, 658 (1984).

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will allow police to question a suspect in any manner necessary to diffuse whatever danger might exist.169 Later cases established that “[i]t is the character of the questions—related to safety as opposed to investigatory concerns—that is most important under this application of the Quarles public safety exception.”170 Some commentators have even interpreted Quarles and its progeny to mean that the exception “does not extend beyond the moment of arrest,” which is not compatible with a broad approach.171 But ultimately the Supreme Court has the final say.172 Putting the question of legality aside, supporters of a broad exception must still address whether this approach is wise. Would a broad exception result in a wealth of new evidence that would be worth drastically altering or outright removing the constitutional rights of an American citizen?

Faisal Shahzad continued cooperating for days after he received (and properly waived) his Miranda rights.173 Umar Farouk Abdulmutallab only received his rights after he stopped cooperating and authorities concluded that they would obtain no further valuable evidence under the exception.174 And in Khalil, use of a broad public-safety exception would have yielded precisely the same results as the narrow one used by law enforcement in the case. It was only after the threat to the police and the public had been dealt with that Abu Mezer discussed his reasons for making the bombs, his idea to plant the explosives on a subway train, and the source of the bombs’ ingredients.175 Even the broadest Quarles exception would have revealed nothing more. Under a broad interpretation, the only factor in the Khalil equation that would

169. See RINGEL, supra note 164.

170. Petty, supra note 41, at 182 (citing United States v. Estrada, 430 F.3d 606, 612 (2d Cir. 2005)).

171. Amos N. Guiora, Relearning Lessons of History: Miranda and Counterterrorism, 71 LA. L. REV. 1147, 1172 (2011).

172. See Dickerson v. United States, 530 U.S. 428 (2000). The Court ruled that a federal statute purporting to overrule or circumvent Miranda was unconstitutional.

Id. This case firmly established that Miranda warnings are not merely prophylactic rules, but they are constitutional and ultimately for the Court to rule on. Id. at 437, 444.

173. Richey, supra note 66.

174. Richard A. Serrano & David G. Savage, Officials OKd Miranda Warning for Accused Airline Plotter, L.A. TIMES, Feb. 1, 2010, http://articles.latimes.com/ 2010/feb/01/nation/la-na-terror-miranda1-2010feb01.

175. United States v. Khalil, 214 F.3d 111, 116 (2d Cir. 2000).

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change is the timing (or the presence at all) of Miranda rights. Abu Mezer held nothing back after being Mirandized, and the authorities’ compliance with Miranda endangered no one.

In the Boston Bombing case, Dzhokhar Tsarnaev stopped cooperating with interrogators after being Mirandized. But so far the FBI has not revealed any valuable evidence gained from their 16hour, extra-constitutional interview: security cameras already placed both brothers at the scene and authorities found another pressurecooker bomb similar to the ones used at the Boston Marathon in their car;176 eyewitnesses tied them to the carjacking and shootout with police;177 and the FBI obtained online proof that Tsarnaev purchased explosives and had an affinity for al-Qaeda and jihad.178 The only new information obtained was the brothers’ second spontaneous plot to travel to Times Square.179 But given that it involved only Dzhokhar, who was in intensive care, and Tamerlan, who was dead, this information was moot.

Even the bounds of a broad public-safety exception were probably exceeded well before the 16-hour mark. And Tsarnaev no longer posed even a minimal threat to public safety. The broad approach did not result in any additional public-safety evidence in the Boston Bombing case, and it is doubtful that the small amount of actionable evidence it would produce in the future is worth the erosion of constitutional rights.

C. Narrow Public-Safety Exception The most sensible course is a narrow reading of the public-safety exception; one that comports with the Court’s intentions in Miranda and Quarles, squares with the existing approaches of five federal circuits, and guarantees similar results as a broad approach. The narrow approach’s scope is “circumscribed by the exigency which justifies it”180 and recognizes that “public safety questioning is at the extreme end of lawful interrogation.”181 Such a narrow approach— one that includes an objective and immediate threat, along with interrogator questions narrowly tailored to respond to that threat—

176.

177.

178.

179.

180.

181.

Serrano et al., supra note 143.

See id.

Lavoie & Hays, supra note 127.

See supra text accompanying notes 146–49.

New York v. Quarles, 467 U.S. 649, 658 (1984).

Petty, supra note 41, at 198.

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was applied in Khalil.182 There, the pipe bombs in the duffel bag coupled with Abu Mezer and Khalil’s aggressive actions toward the police presented an objective and immediate threat.183 And police questioning before Miranda was narrowly tailored to address that threat, with investigators returning later to seek statements of a more testimonial nature.184 This provided law enforcement with every detail needed to neutralize any further threats posed by Abu Mezer and Khalil and successfully prosecute the pair. Complying with Miranda and using the narrow reading of the Quarles exception fostered an aura of legitimacy and stability to the proceedings that would have been absent under a broad exception.

More than any other case, Khalil illustrates that courts are extremely willing to apply the exception in domestic terror cases, particularly when authorities suspect the use of explosives. But the evidence for this is more than just anecdotal. Studies have shown that both federal and state courts allow suspects’ statements under the exception in an overwhelming 89% of cases involving bombs or other explosive devices.185 This indicates that courts are unlikely to question law enforcement’s use of the public-safety exception in cases where danger to the public is particularly grave, like Khalil and the Boston Bombing.

The FBI could have easily employed such a circumscribed, narrow approach in the Tsarnaev interrogation. With one deadly bombing under his belt, another explosive device found in his car,186 numerous links to al-Qaeda material on his computer,187 and a demonstrated propensity for extreme aggression against both the police and the public in general,188 agents were right to be concerned about an immediate threat to public safety. But given his lack of material ties to al-Qaeda, the small probability of additional threats, and the complete neutralization of both Tsarnaev brothers, those legitimate concerns could have been quickly addressed.189 Continuing to interrogate him for hours could potentially produce

182.

183.

184.

185.

186.

187.

188.

189.

Id. See United States v. Khalil, 214 F.3d 111, 115 (2d Cir. 2000).

Id. at 115–16.

See e.g., Wright, supra note 45, at 1320.

Levs & Plott, supra note 8.

Abel et al., supra note 8.

See id.

See id.

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testimonial rather than investigative evidence, as expressly forbidden

by Quarles and every other public-safety-exception case thus far.190 A narrowly drawn exception would also best reflect American values. As a nation of laws, the United States prizes fairness and predictability. Much like Miranda, a narrow approach would have “positive effects for suspected criminals and for law enforcement by adding predictability and confidence that confessions will pass constitutional muster.”191 And as the Miranda majority recognized, the United States is a society that values upholding individuals’ constitutional rights over social costs.192 Responding to terror attacks by suspending, loosening, or removing these constitutional rights would be an “erosion of civil liberties akin to the counter-terror and interrogation policies that were widely condemned in the previous [Bush] administration.”193 In fact, commentators have suggested that sacrificing constitutional liberties for security concerns may be more dangerous.194 Continuing to dilute constitutional liberties in the face of terror threats sends a dangerous message to budding terrorists— neither death to the enemy, nor to themselves is necessary to achieve success. It now appears that so long as they attempt to harm Americans, the resulting atmosphere of alarm may cause a governmental backlash of restricting laws, thereby causing all Americans to suffer, albeit indirectly. If America continues to overreact in this manner, the number of attempted terrorist attacks could increase, creating demand for the enactment of more oppressive laws to

190. See New York v. Quarles, 467 U.S. 649, 658–59, 667–68 (1984) (O’Connor, J., concurring in part and dissenting in part).

191. Petty, supra note 41, at 188.

192. See Miranda v. Arizona, 384 U.S. 436, 479 (1966).

The whole thrust of our foregoing discussion demonstrates that the Constitution has prescribed the rights of the individual when confronted with the power of government when it provided in the Fifth Amendment that an individual cannot be compelled to be a witness against himself. That right cannot be abridged.

Id. 193. Petty, supra note 41, at 185.

194. Stephen Holmes, In Case of Emergency: Misunderstanding Tradeoffs in the War on Terror, 97 CALIF. L. REV. 301, 349–50 (2009) (discussing the necessity of maintaining a presumption of innocence even in terrorist scenarios).

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fight this increase in terrorism, which in turn would beget more terrorist attacks.195 As a practical matter, law enforcement’s hands are not tied even in those unlikely cases presenting a stark, concrete choice between protecting the public and eliciting and using un-Mirandized statements. Justice Marshall provided a clear answer to this conundrum in his dissenting opinion in Quarles: protect the public and ask away. Justice Marshall wrote: [t]he public’s safety can be perfectly well protected without abridging the Fifth Amendment. If a bomb is about to explode or the public is otherwise imminently imperiled, the police are free to interrogate suspects without advising them of their constitutional rights. . . . [N]othing in the Fifth Amendment or our decision in Miranda v. Arizona proscribes this sort of emergency questioning. All the Fifth Amendment forbids is the introduction of coerced statements at trial. 196 Justice Marshall recognized that the cases in which law enforcement has nothing but a suspect’s coerced and un-Mirandized statements are rare and possibly unheard of. But in such cases, law enforcement could still protect the public by using those statements.

And the criminal-justice system could still prosecute using a wealth of other evidence against the suspect discovered before trial.

Assuming there was a credible threat involved in the Tsarnaev interrogation, he could be effectively prosecuted without any of the resulting coerced statements.

Finally, the narrowly applied public-safety exception has never resulted in death or injury to the public or to a police officer. Even under a narrow exception, interrogators could conceivably question terror suspects for days on end, so long as there was an objective and immediate threat and the interrogator did not shift the questioning from seeking investigative to testimonial evidence. Rather than hindering law enforcement, this provides a clear and simple formula: question without Miranda until public or officer safety is no longer at issue, and then return to standard Miranda procedure and inform the suspect of his or her constitutional rights. This principle should apply

195. Ryan T. Williams, Stop Taking the Bait: Diluting the Miranda Doctrine Does Not Make America Safer from Terrorism, 56 LOY. L. REV. 907, 954 (2010).

196. New York v. Quarles, 467 U.S. 649, 686 (1984) (emphasis added).

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whether the exigency at hand is a gun thrown aside by a fleeing suspect or a ticking time bomb in a public place; a narrow exception allows for the neutralization of both while still preserving the rights of citizens.

Admittedly, there are potential social costs to this approach as there always are when individual constitutional rights take precedence over law-enforcement officials’ need to investigate and prosecute crime.197 It is possible that the unwillingness to change the constitutional landscape to fight terrorism more aggressively may be interpreted as a sign of socio-political weakness, encouraging more terrorists to attack an easy target. But in the post-9/11 era, the motivation for terrorism appears to be foreign policy—not any perception of the United States as weak or unwilling to prosecute.198 And a just and predictable system resulting in fair convictions for terrorists is perhaps the greatest symbol of national strength.199 But employing a narrow approach could result in decreased suspect cooperation, which happened after Tsarnaev was Mirandized.200 While this is a legitimate fear, recall that over 80% of Mirandized suspects waived their rights201 (including Faisal Shahzad)202 and that Miranda rights would not be necessary until the public-safety emergency is neutralized.

But the most compelling policy reason for employing a narrow approach to the public-safety exception is that it coincides with societal values and allows for prosecuting terror suspects—without fundamentally changing American jurisprudence. Changing laws and constitutional liberties to acknowledge terror gives those who use it more power than a bomb or a gun and more lasting historical and political impact.

197. But see Miranda, 384 U.S. at 481. “The limits we have placed on the interrogation process should not constitute an undue interference with a proper system of law enforcement. As we have noted, our decision does not in any way preclude police from carrying out their traditional investigatory functions.” Id. 198. See Elliott, supra note 59; Ashenfelter & Baldas, supra note 73; Lavoie & Hays, supra note 127.

199. On a domestic level, level-headed lawmakers calling for intelligence, moderation, and adherence to existing law in terror investigations risk electoral defeat at the hands of opponents categorizing them as weak or unwilling to fight terror. This topic, however, is beyond the scope of this Comment.

200. Serrano et al., supra note 143.

201. Cassell & Hayman, supra note 21, at 859.

202. Richey, supra note 66.

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A broad public-safety exception, or one in which the traditional constitutional guidelines are suspended merely by a terrorism-related offense, could have serious domestic consequences. It would give law enforcement “incentive to categorize offenses as terrorism related in order to get around Miranda warnings,”203 and one “based on the inherent dangerousness of the situation could well render Miranda rights meaningless . . . .”204 Discarding or mangling Miranda rights and the narrow public-safety exception of Quarles is not worth the social cost of losing some of the constitutional rights Americans hold most dear.

V. CONCLUSION

A narrow application of the public-safety exception provides sufficient protection against domestic terror attacks. A less restrictive reading threatens vital constitutional rights and would provide little, if any, practical benefit to offset the loss of those rights. Employing military tribunals to prosecute terror suspects is an even less useful solution given the federal criminal system’s high success rate, the complete lack of effective terror prosecutions by military tribunals thus far, and the non-existent legal basis for trying American citizens in such a fashion. Instead the best course is to allow law enforcement to use the exception as circumstances warrant, but only “where there are sufficient indicia supporting an objectively reasonable need to protect the police or the public from immediate harm.”205 Applying the Quarles exception narrowly to the Boston Bombing case would have led to an identical result—a full interrogation about possible additional plots and explosive devices and a complete preservation of public safety—without the constitutional concerns raised by a criminal suspect’s 16-hour, non-Mirandized FBI interrogation. And a narrow exception would continue to work effectively in future terror investigations. As long as an objective threat to the public exists, law enforcement can interrogate without Miranda warnings, effectively safeguarding American lives and preventing a suspect from invoking his or her rights; after that point, a suspect would be treated just like any other criminal.

203. Petty, supra note 41, at 197.

204. Elizabeth Nielsen, The Quarles Public Safety Exception in Terrorism Cases: Reviving the Marshall Dissent, 7 CRIM. L. BRIEF 19, 30–31 (2012).

205. United States v. Estrada, 430 F.3d 606, 614 (2d Cir. 2005).

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Because terror attacks create public panic, the backlash against any sort of “special treatment” for this most unsympathetic of criminal suspects makes attempts to redefine the public-safety exception understandable. But in such tragic circumstances it is vital to preserve the constitutional protections enjoyed by all Americans and to strive for justice for even the worst among us.

It is prudent to consider the words of Justice Brandeis in Olmstead v. United States206—words nearly a century old that were employed by the majority in Miranda and have lost none of their potency or relevance in spite of the intervening decades: In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means . . . would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.207 This sentiment is no less true today than when the words were written in 1928 or when the Miranda majority cited them in 1966.

This is a nation of laws, and it has consistently and unequivocally stated that those laws accord the citizens’ constitutional rights greater weight than law enforcement’s momentary needs. To abandon that principle now in reaction to the domestic terror attacks that threaten contemporary America is not only inconsistent but unwise. Doing so would diminish the United States and its Constitution. Worse, it would allow terrorists to change the nation forever, and not for the better. It is precisely for these reasons that the United States must adhere to a narrow application of the Quarles public-safety exception in terror cases—one which protects the public effectively while still granting constitutional protections to those who seem to deserve them least.

206. 277 U.S. 438 (1928).

207. Id. at 485 (Brandeis, J., dissenting); Miranda v. Arizona, 384 U.S. 436, 480 (1966).

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CHRISTOPHER R. SCHAEDIG*

* Christopher Schaedig is a third-year student at Thomas M. Cooley Law School in Ann Arbor, graduating in September 2014. He wishes to thank Rebecca Sand-Schaedig for continually inspiring him to greater heights. He would also like to thank Professor Jamie Baker for her invaluable guidance in writing this Comment.

THOMAS M. COOLEY LAW REVIEW SPECIAL PATRONS Frederick M. Baker, Jr. Mike Korn Jon L. Sandler James Vlasic

Duane A. Carr Russell J. Russler Daniel M. Stefaniuk David C. Whipple

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