WMU-Cooley Law School Law Review Fall 2019 - Volume 25 Issue 2

WESTERN MICHIGAN UNIVERSITY COOLEY LAW REVIEW Volume 35

Fall 2019

Issue 2 Iss

Articles The Meaning of Sex in Michigan’s Civil Rights Act— and the Expedient Overconfidence of Textualism

Joseph Kimble

Custody Out of Control: How State Definitions of “Custody” Threaten Detainees’ Right to Healthcare

Taylor Kordsiemon

The Quantification of Remedying Change: How the Proliferation of Autonomous Vehicles Will Transform Michigan’s Insurance Regime

Ryan M. Mardini

Comment The Rapist’s Second Attack: Terminating Rapists’ Parental Rights

Ashley Van Fleet

Distinguis Distin guish hed Brief Keynote Speech - Justice Megan K. Cavanagh Nexteer Auto Corp. v. Mando America Corp., et.al.

Mary Massaron, William H. Horton, Andrew T. Baran, Alexandra S. Wald, Mark Spatz, John J. Bursch, & David J. Shea

Cite this volume as 35 W. MICH. U. COOLEY L. REV. (2019).

The Western Michigan University Cooley Law Review is published twice annually by the students of Western Michigan University Thomas M. Cooley Law School, 300 South Capitol Avenue, Lansing, Michigan 48901. ubscriptions: Special Patrons, $50 per year; Law Firm Subscriptions Benefactors, $100 per year; regular subscriptions, $30 per year. Inquiries and changes of address may be directed to lawreview@cooley.edu or to WMU Cooley Law Review, care of Western Michigan University Thomas M. Cooley Law School, 300 South Capitol Avenue, Lansing, Michigan 48901.

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Copyright © 2019 by Western Michigan University Thomas M. Cooley Law School.

WESTERN MICHIGAN UNIVERSITY THOMAS M. COOLEY LAW SCHOOL James McGrath, President & Dean Frank Aiello, Chief of Staff

BOARD OF DIRECTORS Hon. Louise Alderson, Vice Chair Aaron V. Burrell Christina L. Corl Scott A. Dienes Sharon M. Hanlon Kenneth V. Miller Edward H. Pappas

Mustafa Ameen James W. Butler III Thomas W. Cranmer John M. Dunn Hon. Jane E. Markey Lawrence P. Nolan, Chairman Hon. Bart Stupak

OFFICERS Cherie L. Beck – Corporate Secretary

Kathleen A. Conklin – Senior Vice President of Operations and Finance, & Treasurer

PROFESSOR, FOUNDER, AND PAST PRESIDENT The Honorable Thomas E. Brennan (deceased)

DEANS EMERITI Michael P. Cox, Dean and Distinguished Professor Emeritus Keith J. Hey, Dean and Distinguished Professor Emeritus Robert E. Krinock, Dean and Professor Emeritus (deceased) Don LeDuc, Dean Emeritus

DISTINGUISHED PROFESSORS EMERITI Curt Benson Kathleen Butler Karen Chadwick Pat Corbett Mark Dotson Gerald Fisher James Hicks John Kane Mara Kent Dena Marks Helen Micken Charles Palmer Ernest Phillips Marjorie Russell Chris Shafer Norman Stockmeyer Ronald Trosty William Weiner

David Berry Evelyn Calogero Dennis Cichon David Cotter Cynthia Faulkner Judith Frank (deceased) Emily Horvath Eileen Kavanagh R. Joseph Kimble John Marks Lawrence Morgan Nora Pasman-Green Philip Prygoski (deceased) John Scott Jane Siegel John Taylor William Wagner F. Georgann Wing Ann Miller Wood

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Ronald Bretz Terrence Cavanaugh Julie Clement Mary D’Isa Norman Fell Elliot Glicksman (deceased) Peter Jason (deceased) Peter Kempel (deceased) Dorean Koenig Dan McNeal Maurice Munroe James Peden John Rooney Charles Senger Brent Simmons Gina Torielli Cynthia Ward Nancy Wonch

PROFSSORS EMERITI Sherry Batzer Lewis Langham Donna McKneelen Norman Plate Lorna Patricia Thorpe-Mock

James Carey Ashley Lowe Monica Navarro Dan Ray Karen Truszkowski

Heather Garretson Paul Marineau Florise Neville-Ewell Kevin Scott

DEANS Lena Q. Bailey

Tracey Brame

Associate Dean of the Grand Rapids Campus & Professor

Assistant Dean of Admissions & Financial Aid

Lisa Fadler

Christine Church

Assistant Dean of Career and Professional Development & Visiting Professor

Associate Dean of Academic Programs & Professor Katherine Gustafson

Lisa Halushka

Assistant Dean of the Tampa Bay Campus & Associate Professor

Assistant Dean of Auburn Hills Campus & Professor

Laura LeDuc

Mable Martin-Scott

Associate Dean of Planning, Assessment & Accreditation

Assistant Dean of Lansing Campus & Professor

Daniel W. Matthews

Michael McDaniel

Associate Dean of Tampa Bay Campus & Professor

Associate Dean of the Lansing Campus & Professor

Duane A. Strojny

Amy Timmer

Associate Dean of Library & Instructional Support & Professor

Associate Dean of Students and Professionalism & Professor

Joan Vestrand

Victoria Vuletich

Associate Dean of the Auburn Hills Campus & Professor

Assistant Dean of the Grand Rapids Campus & Professor

Paul J. Zelenski

Senior Vice President and Associate Dean of Enrollment & Student Services

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PROFESSORS Frank C. Aiello Gary Bauer Jeanette Butrrey Mark Cooney Renalia Dubose Anthony Flores Christopher Hastings Barbara Kalinowski Don LeDuc Marla Mitchell-Cichon Florise Nevelle-Ewell Toree Randall Daniel Sheaffer Stevie J. Swanson Patrick Tolan Carly Wolf

Tammy Asher Brendan Berry Paul Carrier Lisa DeMoss Heather Dunbar Dustin Foster Richard C. Henke Linda Kisabeth Gerald MacDonald Michael K. Molotor Monica Nuckolls Lauren Rousseau Paul Sorensen Jeffrey Swartz Gerald Tschura

Amy Bandow Erika Brietfeld Bradley Charles Mark Dotson David Finnegan Marjorie Gell Emily Horvath Tonya Krause-Phelan Nelson Miller Martha Moore Kimberly O’Leary Devin Schindler Ronald Sutton David Tarrien Victoria Vuletich

ADJUNCT PROFESSORS Mustafa Ameenuddin David Berry William Burleson Terrence Cavanaugh Christina Danielewicz Mary D’Isa Chad Engelhardt William Fleener Richard Garcia Alana Glass Jill Hamel Nancy Hillary Ieisha Humphrey Caroline Johnson Lewis Langham Peggy MacDougall Paul Marineau Timothy McDonald Julie Mullens Peter Nick Nazaretian Lawrence Phelan Robert Rothman Traci Schenkel J. Michael Shea Thomas Siver Daniel Stauffer Cari Sullivan Lawrence Graham Ward

Byron Babbish Monika Brasseur-Carter Lindsay Canan Mary Lou Cuellar-Stilo Elizabeth Devolder Michelle Donovan Steven Fantetti Donald Frank Brent Geers Phillip Green Robert Heitmeyer Daniel Houlf Theresa Jean-Pierre Coy Sheila Lake Michael Leffler Steven Mann Ellen Mason Scott Mertens Andrea Muroto-Bilabaye Eric Nelsestuen Karen Poole Christopher Sabella Joseph Shada Benjamin Shotten Samantha Sliney Edward Sternisha Brad Sysol Michael Warren

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Laura Bare Scott Brinkmeyer James Carey James Cunningham Stacey Dinser James Dworman Joseph Farah John Fraser Laura Genovich Jonathan Grossman Christi Henke Michael Hughes Katie Johnson Sal LaMendola Shari Lesnick Daryl Manning Catherine McCollum Paul Monicatti Thomas Myers John Nicolucci Dale Rietberg Kamau Sandiford Thomas Shaevsky Patrick Simasko Lucas Smith-Marin Robert Stocker Victor Veschio Zena Zumeta

WESTERN MICHIGAN UNIVERSITY COOLEY LAW REVIEW MICHAELMAS 2019 BOARD OF EDITORS Jonathan W. Brignall Editor-in-Chief

Bridget Saxton

Asja Jackson

Uduak-Obong T. Eyo

Ashlee Morris

Executive Managing Editor

Interim Editor-in-Chief

Executive Subcite Editor

Executive Articles Editor

Amanda Wilson Executive Solicitation Editor

Shanda VanderArk Interim Executive Articles Editor

Hope Finney

Executive Symposium Editor

Mark Cooney

Faculty Advisor

ASSISTANT EDITORS

Jacob Chappelle Collen Kolis Zeina Hamadeh Cameron Lilijestrand Katrina Hoftstetter Karen Prestel Diekolola Ibironke Amany Rishmawi David Jech Tera Watson Ronnisha Williams

MANAGING ASSOCIATE EDITORS Lanita Carter Kellie McGuire

SENIOR ASSOCIATE EDITORS

Heidi Decker Jonathon Flancher Keisha Gibson Crystal Grantham

Johanna Stevens

Anthony Julliet Jessica McLemore Lona Sayej Daria Solomon

ASSOCIATE EDITORS

Mackenzie Christensen Sahar Faraj

Yingzhe Yang

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Stacey Knowles Adil Mughal

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

Michaelmas 2019 Recipient: Lanita Carter EUGENE KRASICKY AWARD This award is presented to the Assistant Editors of the Western Michigan University Cooley Law Review who made the most significant contributions to the publication of the Law Review.

Michaelmas 2019 Recipient: Kellie McGuire McGuire DAWN C. BEACHNAU AWARD This award is presented to the member of the Western Michigan University Cooley Law Review Voting Board of Editors who made the most significant contribution to the Law Review through leadership and dedication.

Michaelmas 2019 Recipient: Bridg Brid get Saxton

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WESTERN MICHIGAN UNIVERSITY COOLEY LAW REVIEW TRINITY 2019

BOARD OF EDITORS Jonathan W. Brignall Editor-in-Chief

Ashley Kagey

Rebecca Gorbutt

Bridget Saxton

Ashlee Morris

Executive Managing Editor

Executive Subcite Editor

Interim Managing Editor

Interim Subcite Editor

Uduak-Obong T. Eyo

Jenae Stolarzyk

Executive Solicitation Editor

Executive Articles Editor

Amanda Wilson

Interim Solicitation Editor

Amia Banks

Executive Symposium Editor

Mark Cooney

Faculty Advisor

Hope Finney

Interim Symposium Editor

ASSISTANT EDITORS

Jacob Chappelle Zeina Hamadeh Diekolola Ibironke Idaewikphe Ivowi Cameron Lilijestrand Lynette McAlpine

Omojomiloju Ogunfiditimi Amany Rishmawi Lauren Simasko Lemontr'e Taylor Karen Valdez Charlotte Williams

MANAGING ASSOCIATE EDITORS Alexis Morris Kellie McGuire

SENIOR ASSOCIATE EDITORS

Giuliana Allevato Patrick Batterson Keith Brown Isabelle Gavriloski Laila Malki

Yarenis Martinez DeVante McCullom Hannah Roberts Blaise Ryan Lona Sayej

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ASSOCIATE EDITORS

Heidi Decker Jonathon Flancher Kiesha Gibson

Johanna Stevens

Anthony Juillet Jessica McLemore Daria Solomon

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

Trinity 2019 Recipients: Lona Sayej Hannah Roberts EUGENE KRASICKY AWARD This award is presented to the Assistant Editors of the Western Michigan University Cooley Law Review who made the most significant contributions to the publication of the Law Review.

Trinity 2019 Recipients: Kellie McGuire Jessica McLemore DAWN C. BEACHNAU AWARD This award is presented to the member of the Western Michigan University Cooley Law Review Voting Board of Editors who made the most significant contribution to the Law Review through leadership and dedication.

Trinity 2019 Recipient: Amia Banks

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WESTERN MICHIGAN UNIVERSITY COOLEY LAW REVIEW HILARY 2019

BOARD OF EDITORS Arturo Alfaro Editor-in-Chief

Jonathan W. Brignall

Ashley Kagey

Executive Managing Editor

Interim Editor-in-Chief

Rebecca Gorbutt Executive Subcite Editor

Amia Banks

Executive Symposium Editor

Aisha Henry

Executive Articles Editor

Jenae Stolarzyk

Executive Solicitation Editor

Uduak-Obong T. Eyo

Mark Cooney Faculty Advisor

Interim Executive Articles Editor

ASSISTANT EDITORS

Ashley E. Chalut Jacob Chappelle Idaewikphe Ivowi Lynette McAlpine

Omojomiloju Ogunfiditimi Lauren Simasko Lemontr'e Taylor Karen Valdez Raquel Wollaston

MANAGING ASSOCIATE EDITORS Megan L. Babut Alexis Morris

SENIOR ASSOCIATE EDITORS

Brandon Crabill Yarenis Martinez Kishnee Theus

LeChana Waldon-Bailey Charlotte M. Williams Jameel S. Williams Kyle Zielinski

ASSOCIATE EDITORS

Giuliana Allevato Laila Malki Patrick Batterson DeVante McCullom Keith Brown Hannah Roberts Crystal M. Grantham Blaise Ryan Isabelle Gavriloski Lona Sayej Dominique Talaga

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

Hilary 2019 Recipients: Yarenis Martin Yarenis Martinez Kyle Zielinski Zielinski EUGENE KRASICKY AWARD This award is presented to the Assistant Editors of the Western Michigan University Cooley Law Review who made the most significant contributions to the publication of the Law Review.

Hilary 2019 Recipients: Jacob Chappelle Jacob Alexis Morris DAWN C. BEACHNAU AWARD This award is presented to the member of the Western Michigan University Cooley Law Review Voting Board of Editors who made the most significant contribution to the Law Review through leadership and dedication.

Hilary 2019 Recipient: Rebecca Gorbutt

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WESTERN MICHIGAN UNIVERSITY COOLEY LAW REVIEW

VOLUME 35

FALL 2019

ISSUE 2

CONTENTS FROM THE EDITOR...........................................................................xiii ARTICLES The Meaning of Sex in Michigan’s Civil Rights Act – and the Expedient Overconfidence of Textualism

Joseph Kimble ................................................................... 151 Custody Out of Control: How State Definitions of “Custody” Threaten Detainees’ Right to Healthcare

Taylor Kordsiemon ............................................................ 159 The Quantification of Remedying Change: How the Proliferation of Autonomous Vehicles Will Transform Michigan’s Insurance Regime

Ryan M. Mardini ............................................................... 193 COMMENT The Rapist’s Second Attack: Terminating Rapists’ Parental Rights

Ashley Van Fleet................................................................ 243 DISTINGUISHED BRIEF Keynote Speech

Justice Megan K. Cavanagh ............................................. 265 Nexteer Automotive Corp. v. Mando American Corp., et. al.

Mary Massaron, William H. Horton, Andrew T. Baran, Alexandra S. Wald, Mark Spatz, John J. Bursch, & David J. Shea ..................................................................... 275

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On behalf of the WMU Cooley Law Review team, it is my honor and privilege to present you with this edition of our journal. First, I want to thank our readers and subscribers for your continued support and patronage of our publication. Second, I want to thank all the members of WMU Cooley Law Review who worked on each article presented in this edition because their passion for writing, dedication, and quest for excellence is evident in the finished product. Finally, I want to thank the contributing authors for their confidence in our team and allowing us to collaborate in advancing the legal discussion in their respective fields.

In this edition, we present a diverse collection of articles spanning a wide variety of subjects. The first article discusses the impact of textualism on recent decisions of the Michigan Supreme Court. The second article addresses the effect of the definition of “custody” on the ability of prisoners to obtain appropriate healthcare.

The third article is a forward-looking discussion of the impact of autonomous vehicles on Michigan’s no-fault insurance statute (note that since the article was written, some significant changes have been made to Michigan’s nofault law). Finally, our student comment discusses the parental rights of rapists, with a focus on improving protection for victims. We are also pleased to present the keynote speech from our Distinguished Brief Awards dinner, and the second in our series of two award-winning briefs from 2018.

As we compiled this edition, we had to choose from a number of high-quality articles. The articles ultimately chosen were selected because they offer useful and unique perspectives on their subject matter. As always, we hope to provide insightful and thought-provoking articles that lend their perspective to important conversations. I am sure you will enjoy this edition and thank you again for your continued interest.

With appreciation, Jonathan W. Brignall xiii

THE MEANING OF SEX IN MICHIGAN’S CIVIL RIGHTS ACT—AND THE EXPEDIENT OVERCONFIDENCE OF TEXTUALISM JOSEPH KIMBLE* In the summer of 2018, Michigan’s former attorney general opined that Michigan’s Elliott–Larsen Civil Rights Act—which prohibits “discrimination because of . . . sex”1—does not protect against discrimination based on sexual orientation or gender identity.2 That reading was no surprise: this is the official who filed an amicus brief opposing same-sex marriage in the Obergefell v.

Hodges3 case. Nor was it surprising that he did so in the name of the textualist methods promoted by the Republican majority on the Michigan Supreme Court for the last 20 years or so.

Textualism professes to be a neutral, rule-of-law approach to judicial interpretation. In fact, it is anything but. Rather, it has become the brand name for ideologically conservative judging. In 2017, I published a study in the Wayne Law Review on the Supreme Court’s overruling of earlier decisions—many of them several decades old.4 In 81 overrulings—itself a remarkable number—the Republican-appointed or -nominated justices reached a conservative result 78 times.5 That’s an ideology rating of 96.3%, a number that * Joseph Kimble is a distinguished professor emeritus at Western Michigan University–Cooley Law School. He has lectured throughout the United States and abroad, published many articles on legal writing, and written three books, the latest of which is Seeing Through Legalese: More Essays on Plain Language. He is senior editor of The Scribes Journal of Legal Writing, the longtime editor of the “Plain Language” column in the Michigan Bar Journal, the editor of the “Redlines” column in Judicature, a past president of Clarity, a founding director of the Center for Plain Language, and senior director of the Kimble Center for Legal Drafting at WMU–Cooley. Since 1999, he has been a drafting consultant on all U.S. federal court rules. He led the work of redrafting the Federal Rules of Civil Procedure and Federal Rules of Evidence. He has received several national and international awards for his work.

1. MICH. COMP. LAWS ANN. § 37.2102(1) (West 1992).

2. See Bill Schuette, Validity of Interpretive Statement Interpreting Term “Sex” as Used in Elliott–Larsen Civil Rights Act, Op. Att’y Gen. No. 7305 (July 20, 2018).

3. 135 S. Ct. 2584 (2015).

4. Joseph Kimble, What the Michigan Supreme Court Wrought in the Name of Textualism and Plain Meaning: A Study of Cases Overruled, 2000–2015, 62 WAYNE L. REV. 347 (2017).

5. Id. at 352.

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cannot be explained or justified by any jurisprudence that’s evenhanded.

The attorney general’s opinion is more of the same.

PLAIN MEANING AND DICTIONARIES The opinion began by intoning the “plain meaning” mantra of textualism. But “plain meaning,” as scholars have pointed out, is not usually as simple to define, or to divine, as textualists make it out to be.6 The Michigan Supreme Court, incidentally, has been a conspicuous overuser of “plain meaning” because its strict, narrow test for what is and isn’t ambiguous—whether language is “equally susceptible” of more than one meaning 7—stands virtually alone among state and federal courts. The test in almost all other courts is whether language is susceptible of more than one reasonable interpretation.8 For the plain meaning of sex, the attorney general resorted to dictionaries, as textualists persistently do. Never mind that combing through dictionaries to help decide cases is misguided as a matter of language theory because it tends to value isolated definitions more than the contextual patterns that words appear in. Never mind that dictionary editors are themselves skeptical: one has said that judges’ reliance on dictionaries is “probably wrong, in almost all situations.” 9 More to the point is the scathing criticism that has been heaped on judges’ actual performance. One study describes the use of dictionaries by the United States Supreme Court justices, no less, as “strikingly ad hoc and subjective” and as reflecting a tendency to “cherry-pick definitions that support results reached on other grounds.”10 6. See id. at 356–59 (citing multiple critics and criticisms of judicial reliance on “plain meaning”).

7. Marilyn Kelly & John Postulka, The Fatal Weakness in the Michigan Supreme Court Majority’s Textualist Approach to Statutory Construction, 10 T.M. COOLEY J. PRAC. & CLINICAL L. 287, 288 (2008).

8. Id. at 289, 294–95, 296, 299.

9. Jesse Sheidlower (former editor of the Oxford English Dictionary), quoted in Adam Liptak, Justices Turning More Frequently to Dictionary, and Not Just for Big Words, N.Y. TIMES (June 13, 2011), https://www.nytimes.com/2011/06/14/us/ 14bar.html.

10. James J. Brudney & Lawrence Baum, Oasis or Mirage: The Supreme Court’s Thirst for Dictionaries in the Rehnquist and Roberts Eras, 55 WM. & MARY L. REV. 483, 483, 491 (2013).

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The attorney general didn’t exactly cherry-pick, but neither did he give the full picture. He cited two definitions from the 1969 edition of the American Heritage Dictionary (the Civil Rights Act was passed in 1976).11 But there were five definitions, one of which was this: “The sexual urge or instinct as it manifests itself in behavior.” 12 And that dictionary did not order definitions by frequency of use.

The attorney general also cited a 1975 edition of MerriamWebster’s New Collegiate Dictionary, but he again ignored another definition: “sexually motivated phenomena or behavior.” 13 You might suppose that this definition, like the one from the American Heritage Dictionary above, refers to the act of sex itself, but both dictionaries give “sexual intercourse” as an additional, distinct meaning. At any rate, the two ignored definitions are certainly broad enough to include sexual orientation—that is, to implicate discrimination based on sexually motivated behavior.

Now, nobody doubts that in 1976, when the Civil Rights Act was passed, people would have understood the word sex as mainly referring to a binary distinction based on reproductive organs.

Dictionaries, though, do not establish that: you know it because of what you know about the world in 1976. In fact, you don’t even need a dictionary to make your case. But anyone who does consult a dictionary will or should know that it offers a grab bag.

In his opinion, the attorney general repeatedly used the terms plain language, plain meaning, plain text, unambiguous, and clear.

This too is typical of textualists in overstating the extent to which words have a singular or self-evident “plain” meaning. 14 As one commentator puts it, “[t]he greatest failing of textualism . . . is its hubris.”15 Finally, even if in this instance, this untypical instance, the meaning of sex was plain 40-plus years ago, the question remains whether it has or should have the same meaning today. More on that hot topic in the concluding section below.

11. Schuette, supra note 2, § II.A (quoting in part Sex, AMERICAN HERITAGE DICTIONARY (1st ed. 1969)).

12. See Sex, AMERICAN HERITAGE DICTIONARY (1st ed. 1969).

13. See Sex, MERRIAM-WEBSTER’S NEW COLLEGIATE DICTIONARY (1975).

14. See Kimble, supra note 4, at 361–76 (analyzing several sample cases in which the court cited—questionably—dictionaries and plain meaning to support its decisions).

15. RICHARD L. HASEN, THE JUSTICE OF CONTRADICTIONS: ANTONIN SCALIA AND THE POLITICS OF DISRUPTION 26 (Yale Univ. Press 2018).

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MICHIGAN LAW The attorney general’s opinion relied heavily on a 25-year-old decision of the Michigan Court of Appeals, Barbour v. Department of Social Services.16 That decision did indeed assert that the Civil Rights Act does not proscribe discrimination based on sexual orientation. But the court devoted just one sentence to that assertion: “A review of federal case law reveals [that] title VII’s protections are aimed at gender discrimination, not discrimination based on sexual orientation.”17 Thus, the court grounded its decision entirely on federal cases interpreting similar language in federal law.

The attorney general’s opinion stated that, more recently, the Michigan Supreme Court “has observed that [the Civil Rights Act] ‘neither provides a cause of action for sexual orientation discrimination nor grants municipalities the authority to create one.’ ”18 But if you read the opinion in Mack v. City of Detroit and locate that sentence, you’ll find that it comes with no analysis or citation to authority except the Civil Rights Act itself; it’s pure ipse dixit.19 In short, the only Michigan case that really looked at this issue did so by deferring to federal cases interpreting Title VII of federal law. And as the attorney general conceded, two federal circuits reversed course this year and held that Title VII does bar discrimination based on sexual orientation. 20 Another circuit, the Sixth, has held that Title VII bars discrimination based on transgender and transitioning status. 21 The floor beneath Michigan’s thin caselaw on this issue is cracking.

But what about stare decisis? The Michigan Supreme Court considers whether (among other things) a previous decision was “wrongly decided,” or “poorly reasoned,” or “deeply flawed”; whether it has become “so fundamental to everyone’s expectations that to change it would produce not just readjustments, but practical 16. Schuette, supra note 2, § II.B (citing Barbour v. Dep’t of Soc. Servs., 497 N.W.2d 216 (Mich. Ct. App. 1993)).

17. Barbour, 497 N.W.2d at 218.

18. Schuette, supra note 2, § II.B (quoting Mack v. City of Detroit, 649 N.W.2d 47, 53 (Mich. 2002)).

19. Mack, 649 N.W.2d at 52–53.

20. Zarda v. Altitude Express, Inc., 883 F.3d 100, 132 (2d Cir. 2018) (en banc); Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339, 551–52 (7th Cir. 2017) (en banc).

21. Equal Emp’t Opportunity Comm’n v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560, 600 (6th Cir. 2018).

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real-world dislocations”; and whether “changes in the facts or law no longer justify it.”22 Surely, it’s at least arguable that the Supreme Court’s decision in Mack wasn’t reasoned at all and that recent changes in federal caselaw no longer justify the court of appeals’ decision in Barbour.

And would you say that there is such widespread reliance on those decisions that it would cause real-world dislocations (as opposed to readjustments) if people could no longer discriminate against the LGBT community?

The attorney general is, of course, required to follow Michigan caselaw. But once again, he exaggerated how solid and stable that law is. And I believe he is wrong in suggesting that the Civil Rights Act is so clear, so plain, that a future Michigan Supreme Court would cross the line by concluding that it does more than protect only against discrimination based on body parts at birth. Three federal circuits have already decided that the word sex in Title VII is not so limited. How those recent federal decisions will be treated by the newly constituted United States Supreme Court is anybody’s guess. I have a hunch (and hope I’m wrong).

REFLECTIONS ON TEXTUALISM I’ve mentioned in this piece several of the deficiencies of textualism. It grossly overestimates the extent to which words have an ascertainable clear meaning. Its habitual resort to dictionaries is misguided and all too often selective. In actual practice—as one study after another shows—it is put to ideological ends.

I’ve written elsewhere about another deficiency: textualism’s overreliance on highly malleable and often conflicting canons of construction. Among them: last antecedent, series qualifier, ejusdem generis, surplusage.23 Beyond all that, though, is the inherently retrograde nature of textualism. This is what the debate fundamentally hinges on.

Textualists like the attorney general and the majority on the Michigan Supreme Court (since the turn of the century) insist that the meaning of statutory language is fixed as of its enactment. That original ordinary meaning is stable; it does not morph over time. It may apply 22. See, e.g., Rowland v. Washtenaw Cty. Rd. Comm’n, 731 N.W.2d 41, 49–52 (Mich. 2007).

23. See Joseph Kimble, articles on canons and textualism from the years 2014 to 2018, https://papers.ssrn.com/author=624332.

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to new situations that the drafters did not have in mind, but the meaning does not change.24 This distinction is facile, in my view. Put aside the difficulty in many or most cases of definitively unearthing the original ordinary meaning. Even when that can be done, just because the drafters may have been mainly thinking of one sense of a word does not mean that another, broader sense couldn’t apply—especially in light of the statute’s purpose. The majority opinions in the Second and Seventh Circuits both quoted the Supreme Court’s unanimous decision in Oncale v. Sundowner Offshore Services, Inc., involving a claim under Title VII for same-sex workplace harassment: “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils . . . .”25 Thus, as Judge Wood wrote for a majority of the Seventh Circuit: “It is . . . neither here nor there that the Congress that enacted the Civil Rights Act in 1964 and chose to include sex as a prohibited basis for employment discrimination . . . may not have realized or understood the full scope of the words it chose.”26 The en banc decisions by the two circuits provoked strong dissents arguing (of course) that in 1964, the common, ordinary public meaning of sex had to do with biological sex.27 Again, this is where the debate is joined. Strict textualists are unwilling to concede that a contemporary reader may ascribe to a term a meaning that was less than ordinary, but still recognized or plausible, at the time (was within the term’s “full scope,” as Judge Wood put it above) and has since become so common that it can be fairly applied to achieve the statute’s purpose.

The two majority opinions both discussed at length why “actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex.”28 Judge Wood emphasized that the plaintiff, a lesbian, was treated differently from a man in a relationship with a woman, so her employer “disadvantag[ed] her because she is a

24. See, e.g., ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 86 (2012) (“The meaning of rules is constant.

Only their application to new situations presents a novelty.”).

25. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998) (Scalia, J., delivering majority opinion).

26. Hively, 853 F.3d at 345.

27. See id. at 362–65; Zarda, 883 F.3d at 145 (quoting the dissent from Hively).

28. Hively, 853 F.3d at 343.

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woman.”29 That was an evil that the Civil Rights Act sought to remedy.

I believe that as the research of language experts and cognitive scientists becomes better known to judges and legal scholars, strict textualism will seem increasingly narrow and ill-founded. In the meantime, I’m with William Eskridge, who says that “both statutory text and legislative purpose are critically important to a proper application of statutes—and they naturally act together and not as competing approaches.”30 A case in point? The meaning of sex in Michigan’s Civil Rights Act.

29. Id. at 345 (citing Ulane v. E. Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984)).

30. WILLIAM N. ESKRIDGE JR., INTERPRETING LAW: A PRIMER ON HOW TO READ STATUTES AND THE CONSTITUTION 9 (2016).

CUSTODY OUT OF CONTROL: HOW STATE DEFINITIONS OF “CUSTODY” THREATEN DETAINEES’ RIGHT TO HEALTHCARE TAYLOR KORDSIEMON* ABSTRACT Although the Supreme Court has held that the Constitution requires a government entity to provide adequate healthcare to those in its custody, it has never clearly defined “custody” in that context. As a result, states have passed laws detailing when government entities must provide care to those in custody and the conditions under which healthcare providers can be reimbursed for that care. However, those statutes use their own definitions of custody, usually requiring a formal arrest, which causes state courts to treat the threshold constitutional question of custody and access to care as a statutory question. This incongruence between the constitutional and state law definitions of custody not only threatens detainees’ right to healthcare but also corrupts law enforcement incentives and results in unfair treatment to hospitals and healthcare providers.

This article fills a gap in the literature regarding constitutional custody by supplying a definition adapted from Fourth Amendment seizure jurisprudence and applying it to the unique circumstances surrounding detainee healthcare. The article ultimately urges the Supreme Court to adopt this definition and encourages state legislatures to amend their laws to define custody in the same way.

* Judicial law clerk for the Honorable Diana Hagen of the Utah Court of Appeals; J.D. 2019, University of Virginia School of Law. The author would like to thank Charles Barzun, Professor at the University of Virginia School of Law, for his insight and encouragement in advising the author on this article. The author would also like to thank Matthew Church, Austin Westerberg, and Chinny Sharma for their assistance talking through and editing the article. Finally, the author would like to thank his wife, Chloe, for her constant unwavering support.

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TABLE OF CONTENTS ABSTRACT .................................................................................. 159 INTRODUCTION ................................................................................ 160 I.THE RIGHT TO HEALTHCARE FOR PERSONS IN CUSTODY .............. 162 II.THE CONSTITUTIONAL DEFINITION OF CUSTODY ......................... 166 III.STATE DEFINITIONS OF CUSTODY ............................................... 171 A. State Court Conflation of the Constitutional and Statutory Definitions of Custody ..................................................... 172 B. State Court Recognition of the Distinction Between Constitutional and Statutory Duty to Provide Healthcare to Those in Custody ............................................................. 176 IV.CONSEQUENCES OF THE INCONGRUENCE BETWEEN CONSTITUTIONAL AND STATE DEFINITIONS OF CUSTODY ........ 178 A. The Threat to Detainees .................................................. 178 B. The Corruption of Law Enforcement Incentives ............. 181 C. Unfairness to Hospitals and Quality of Care .................. 185 V.WHAT IS THE SOLUTION?............................................................. 187 CONCLUSION .................................................................................. 190 INTRODUCTION In April 2006, Alberto Contreras Gonzalez (Contreras) sustained serious injuries after breaking a window and jumping from the fourth floor of a Kansas county jail in a misguided bid for freedom. Contreras had been in and out of county jail over the previous month due to drug charges and an immigration detainer from the United States Immigration and Customs Enforcement. After bonding out from his most recent stint, Contreras returned to the county jail to retrieve personal items he had left there. When county sheriff’s office personnel discovered Contreras was at the jail, they mistakenly believed that he had escaped from a different facility. An officer was instructed to hold Contreras in a room at the jail until her supervisor could arrive. Contreras, likely fearing criminal prosecution and deportation, smashed the window with a chair and jumped from four stories up. He broke both hips on impact and laid in agonizing pain until police officers arrived and handcuffed him. An ambulance

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eventually came to transport Contreras to a hospital, and the police chose not to formally arrest him. 1 The facts above give rise to interesting and important questions.

Did the police have a constitutional obligation to see that Contreras received treatment for his injuries? If so, who had to pay for that care?

Would the question concerning payment governed by the Constitution or state law? And if there was no obligation to provide care, given that governments are generally understood to have an obligation to provide care to those in their custody, then why not?

At first glance, some of these questions have easy answers. The Supreme Court has held that governments have a duty to see that necessary medical care is given to those in their custody, including pretrial detainees and those injured in the course of an arrest. 2 The question of who pays for that care is a matter of state law, and the Constitution does not dictate who has to pay or whether compensation for care must be provided at all. 3 However, by determining that compensation for such care is a matter of state law, the Supreme Court inadvertently invited state legislatures and state courts into the federal constitutional arena. States have almost unanimously passed laws requiring government entities to provide healthcare and reimbursement for treatment given to prisoners and pretrial detainees who are in state “custody.” But these laws usually define custody differently than it is defined in the constitutional context—typically requiring either detention in a holding facility or formal arrest. This has caused some state courts to confuse the constitutional issue of custody that grants a positive right to healthcare, with the legislative issue of custody for purposes of whether reimbursement is required under state law. Even where state courts recognize the distinction and properly analyze both points, the way in which the states have elected to define custody leads to unjust results that could be eliminated if changed to fit with the constitutional definition.

This article explores the inconsistencies between the constitutional definition of custody and state-law definitions as pertaining to those either injured in the course of arrest or otherwise seized by police before or without formal arrest. This is where custody is most unclear.

1. Univ. of Kansas Hosp. Auth. v. Bd. Of Comm’rs of City of Wabaunsee, 327 P.3d 430, 430-33 (Kan. 2014).

2. City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244-45 (1983) (discussing the obligation of governments to provide healthcare to incarcerated persons and those injured in the course of arrest).

3. Id. at 245.

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Section I will provide a historical overview of the right to healthcare for persons in state custody and discuss the most relevant Supreme Court decisions on that front. Section II will discuss possible definitions of custody from the body of constitutional law and suggest that custody, for purposes of the right to healthcare, is analogous to a seizure under the Fourth Amendment. Section III will analyze how state courts and legislatures have defined custody in ways that differ from the constitutional definition and, in some cases, conflate constitutional and statutory questions surrounding custody. Section IV will discuss the legal and social problems that arise from states’ illadvised definitions of custody. Finally, Section V will present possible solutions to the problems discussed in the previous section.

I.

THE RIGHT TO HEALTHCARE FOR PERSONS IN CUSTODY

The Supreme Court clearly established the right for prisoners to receive adequate healthcare in Estelle v. Gamble.4 Gamble, a prisoner of the Texas Department of Corrections, injured himself when a bale of cotton fell on him while unloading a truck for a work assignment. 5 He experienced extreme back pain and other symptoms for three months before filing a § 1983 complaint alleging that his unsatisfactory care violated the Eighth Amendment. 6 Expanding on principles described in previous cases,7 the Court held that governments have an “obligation to provide medical care for those whom it is punishing by incarceration.” 8 However, for a prisoner to successfully state a claim under the Eighth Amendment, the conduct alleged must amount to “deliberate indifference to [the] serious medical needs of prisoners. . .”9 Mere “medical malpractice” is 4. Estelle v. Gamble, 429 U.S. 97 (1976).

5. Id. at 99.

6. Id. at 99-101.

7. The earliest Eighth Amendment cases held that it primarily functioned to prohibit barbaric execution methods and torture, such as disembowelment, beheadings, “public dissection”, and other grotesque acts. Wilkerson v. State of Utah, 99 U.S. 130, 135 (1878) (describing acts of “unnecessary cruelty” forbidden by the Eighth Amendment). However, the cases immediately preceding Estelle had evolved beyond mere prohibition of brutal punishments to also ban conduct at odds with “the evolving standards of decency that mark the progress of a maturing society.” Estelle, 429 U.S. at 102 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)).

8. Estelle, 429 U.S. at 103.

9. Id. at 104. Justice Stevens, the lone dissenter in Estelle, criticized the deliberate indifference standard inasmuch as it conditioned violations of the Eighth

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insufficient, and the proper avenue to recover for such is state tort law.10 Gamble’s complaint alleged that he had been treated numerous times by multiple doctors, but that the care he received was negligent.

His complaint, therefore, failed to state a claim upon which relief could be granted.11 The Court continued to expand its jurisprudence regarding the deliberate-indifference standard and prisoner healthcare as prisoners continued to allege that their medical needs were being ignored. 12 Important developments continued in the lower courts as well, with several courts of appeals finding that the “best [medical treatment] that money could buy” is not required by Gamble.13 However, the Supreme Court has regulated the quality of prisoner healthcare by encouraging states to defer to medical consensus when evaluating a prisoner’s condition14 and finding that prisoners have a right to “effective” care. 15 In the wake of Estelle, the question arose whether the right to healthcare only applied to prisoners being held in state or federal facilities, or if it also extended to other persons who are in government custody. Another question was whether government entities have a constitutional obligation to pay for that care. The Supreme Judicial Amendment on the subjective motivations of a defendant as opposed to an objective standard of care required by the Constitution. Id. at 116-17 (Stevens, J., dissenting).

10. Id. at 105-106.

11. Id. at 107.

12. See, e.g., Wilson v. Seiter, 501 U.S. 294 (1991) (holding that prisoners must show a culpable state of mind to prove violations of the Eighth Amendment); Helling v. McKinney, 509 U.S. 25 (1993) (finding that a prisoner’s Eighth Amendment claim could be based upon possible future harm to health due to current medical conditions).

13. Mayweather v. Foti, 958 F.2d 91, 91 (5th Cir. 1992); see also Schaub v.

VonWald, 638 F.3d 905, 935 (8th Cir. 2011) (quoting Johnson v. Doughty, 433 F.3d 1001, 1013 (7th Cir. 2006)) (“[I]nmates are only entitled to ‘adequate medical care,’ not the best care possible.”).

14. See, e.g., Akins v. Virginia, 536 U.S. 304, 319-20 (2002) (deferring to the general consensus of medical experts from the American Association on Mental Retardation and the American Psychiatric Association regarding the clinical definition of mental retardation); see also Roper v. Simmons, 543 U.S. 551, 569 (2005) (finding that capital punishment for juveniles violates the Eighth Amendment after deferring to a scientific and sociological consensus that juveniles are not as morally culpable as adults).

15. Brown v. Plata, 563 U.S. 493, 531-32 (2011) (finding that a reduction in prisoner population was an appropriate remedy where “overcrowding may prevent the timely diagnosis and care necessary to provide effective treatment and to prevent further spread of disease.”).

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Court of Massachusetts considered both questions in Massachusetts General Hospital v. City of Revere.16 In that case, police shot a suspect while responding to a breaking and entering in progress.17 The police summoned an ambulance, which took the suspect to a hospital where he received a total of $13,308.91 worth of medical treatment. 18 When the city refused to compensate the hospital for the treatment given to the wounded suspect, the hospital instigated a suit alleging that “the prohibition against deliberate indifference to the medical needs of prisoners contained implicitly in the Eighth Amendment compels . . . a government agency or division responsible for supplying those medical needs to pay for them.”19 The Massachusetts court agreed that this was a natural extension of Estelle: “It is not the fact of incarceration . . . that triggers the protections afforded by the Eighth Amendment. Rather, it is the suspect’s loss of freedom when he ‘cannot by reason of the deprivation of his liberty, care for himself.’” 20 Apparently fearing that nonpayment would lead hospitals to refuse to treat arrestees, the court concluded that reimbursement to hospitals providing care required by the Eighth Amendment was necessary to guard against the “deprivation of rights.”21 The City of Revere appealed to the Supreme Court of the United States, which reversed the judgment of the Massachusetts court. 22

16. Mass. Gen. Hosp. v. City of Revere, 434 N.E.2d 185 (Mass. 1982).

17. Id. at 185-186.

18. Id. at 186 n. 1 & 186 n. 4. Technically, the suspect spent one period in the hospital immediately after being shot, and then returned for more treatment, including surgery.

19. Id. at 187-188.

20. Id. at 188 (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)).

21. Id. at 189. This conclusion may have been a leap given the then-current state of the law, as the court’s only support for this position came from a different postEstelle decision from Florida, which stated, without citation to any authoritative source, “Although there are no cases in Florida which directly so hold, we may assume that a county or other governmental entity would be liable to a private physician or hospital which renders medical services to its prisoners.” Dade County v. Hospital Affiliates Intern., Inc., 378 So.2d 43, 44 (Fla. Dist. Ct. App. 1979).

22. City of Revere v. Mass. Gen. Hosp., 463 U.S. 239 (1983). While all the justices on the Court concurred in its judgement, some justices expressed disagreements or concerns with the majority opinion. Id. at 246 (Rehnquist, J., concurring) (arguing that the majority opinion unnecessarily expressed opinions on constitutional issues); Id. at 246-47 (Stevens, J., concurring) (arguing that the Court unwisely exercised its jurisdiction to grant certiorari).

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After explaining its jurisdictional basis,23 the Court held that the Eighth Amendment was not actually at issue in the case. The prescription on cruel-and-unusual punishment could not be applicable to a suspect injured in the course of arrest because the “State does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law.”24 Thus, the Eighth Amendment’s requirement to avoid deliberate indifference to the medical needs of prisoners only applies to those who are actually serving a duly imposed sentence of incarceration.

However, the Court found that government officials cannot ignore the medical needs of those in state custody (but not technically incarcerated) merely because the Eighth Amendment does not apply.

Rather, the Due Process Clause of the Fourteenth Amendment entitles persons injured by police seizure, and other pretrial detainees, to at least as much care as convicted prisoners receive under the Eighth Amendment.25 More importantly, “whatever the standard may be,” a government entity fulfills its constitutional obligations merely by ensuring that medical care is actually provided. 26 The Constitution does not require that a state, county, or municipality reimburse a medical provider for its services, unless such payment is absolutely 23. Although the hospital claimed that the Court lacked jurisdiction to hear the case because the Massachusetts court’s decision rested on adequate state grounds, the Supreme Court determined that the decision was based on an interpretation of the Federal Constitution, and so fell under its jurisdiction. Id. at 242. Furthermore, the Court found that limiting the hospital’s ability to assert the constitutional rights of a third party (the injured suspect) would “serve no functional purpose.” Id. at 243 (quoting Craig v. Boren, 429 U.S. 190, 194 (1976)).

24. Id. at 244 (quoting Ingraham v. Wright, 430 U.S. 651, 671-72, n.40 (1977)).

25. Id. at 244-245 (1983). The Supreme Court has not squarely addressed the standard that applies to medical neglect claims by pretrial detainees, only stating that pretrial detainees have “at least” as great a right to medical care as the incarcerated.

Id. However, the lower courts have almost universally held that pretrial detainees alleging medical neglect must prove deliberate indifference to show a violation of the Fourteenth Amendment, the same standard required of incarcerated persons to show an Eighth Amendment violation. See, e.g., Hartsfield v. Colburn, 491 F.3d 394, 396 (8th Cir. 2007); United States v. Gonzales, 436 F.3d 560, 573 (5th Cir. 2006); Cavalieri v. Shepard, 321 F.3d 616, 621 (7th Cir. 2003); Burrell v. Hampshire Cty., 307 F.3d 1, 7 (1st Cir. 2002); Danese v. Asman, 875 F.2d 1239, 1243 (6th Cir. 1989); but see Gordon v. Cty. of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018) (holding that medical indifference claims brought by pretrial detainees should be evaluated under a more lenient “objective deliberate indifference standard”).

26. See Mass. Gen. Hosp., 463 U.S. at 245.

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necessary to receive care. 27 Otherwise, the Court declared, reimbursement is a “matter of state law.” 28 II.

THE CONSTITUTIONAL DEFINITION OF CUSTODY

As will be explained in more detail in Section III, state courts have largely failed to adopt a constitutional definition of “custody” in determining who has a positive right to healthcare, relying instead on state statutory definitions. The Supreme Court is at least partially responsible for this failure because it has not offered much guidance on how custody operates when evaluating the right to healthcare.

Constitutional law more generally offers several potential definitions of custody, each with their own separate test, which could plausibly apply to pre-trial detainees and those injured in the course of arrest.

These possible definitions are as follows: (1) custody is the same as a formal arrest; (2) custody as defined in Miranda v. Arizona;29 and (3) custody is the same as a seizure of the person under the Fourth Amendment.

The most restrictive constitutional definition of custody is formal arrest. Surprisingly, the Supreme Court has not clearly defined “arrest,” although what constitutes an arrest is a crucial question for many Fourth Amendment and false-arrest claims.30 Instead the Court has constantly vacillated, discussing “arrest” in new and contradictory 27. Id. 28. Id. It may actually be more accurate to say that hospital reimbursement for pretrial detainee treatment is a matter of state choice rather than law, as it is possible for state and local government entities to rely on federal law instead of addressing the matter in local legislation. For example, the Emergency Medical Treatment and Labor Act (EMTALA) is a federal law that requires hospitals that accept Medicare funds to administer emergency services to the public regardless of an individual’s ability to pay. 42 U.S.C. § 1395dd. So, instead of implementing state laws to deal with reimbursement in such instances, a state could instead rely on hospitals to provide emergency treatment to pretrial detainees under the authority of EMTALA and force the hospitals to eat the costs. However, in practice, few states take this approach because EMTALA only requires hospitals to provide emergency treatment and stabilize patients, after which they can terminate care; which may fail to satisfy constitutional obligations to detainees or incarcerated persons. All states have provided for some sort of reimbursement for prisoner and/or detainee care (some using existing fee schedules under the federal Medicaid or Medicare programs) to encourage hospital willingness to treat those in custody. State Prisons and the Delivery of Hospital Care: PEW CHARITABLE TRUSTS (Jul. 19, 2018).

29. 384 U.S. 436 (1966).

30. See generally Thomas K. Clancy, What Constitutes an “Arrest” within the Meaning of the Fourth Amendment, 48 VILL. L. REV 129 (2003).

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ways without ever reconciling its new decisions with past definitions. 31 The Court does, however, appear to recognize a distinction between certain seizures and formal or custodial arrests. 32 A formal or custodial arrest seems to be characterized as a seizure resulting “in a trip to the station house and prosecution for [a] crime.”33 Adopting the definition of a formal arrest to determine whether a person is in custody, such that a government entity has an obligation to provide adequate healthcare, is underinclusive. It would offer no protection in that regard to individuals injured or suffering from an emergent medical condition who are accosted by lesser seizures, such as Terry stops or more extended detentions that do not result in a formal arrest.34 Those lesser seizures can place limitations on an individual’s ability to obtain medical attention for herself in a manner equal to a formal arrest by restricting that person’s freedom of 31. Prof. Clancy provides a useful historical overview of Supreme Court jurisprudence in this area. Id. at 141-166. Before 1968, the Court’s definition of arrest was that same as the common law definition, suggesting that any detention by the police was an arrest. That definition became incompatible with the holding of Terry v. Ohio, 392 U.S. 1 (1968), which differentiated between stops and arrests and described the latter as involving a trip to the police station and initiation of criminal charges. But the Court laid out a different vision of an arrest that same year in Peters v. New York, 392 U.S. 40 (1968), when it necessarily found that an arrest had taken place in order to justify a search incident to arrest that occurred after an officer detained a suspect. Later decisions such as Gustafson v. Florida, 414 U.S. 260 (1973) and United States v. Robinson, 414 U.S. 218 (1973), differentiated between three different types of seizures: stops, arrests, and formal or custodial arrests. But the court reverted to only two types of seizures, stops and arrests, only six years later in Dunaway v. New York, 442 U.S. 200 (1979). That reversion, however, has not prevented the court from differentiating formal and informal arrests in cases such as INS v. Delgado, 466 U.S. 210, 215 (1984); Michigan v. Summers, 452 U.S. 692, 696, 700 (1981); and New York v. Belton, 453 U.S. 454, 455, 457 (1981). The Court apparently reversed course again in California v. Hodari D., 499 U.S. 621 (1991) when it described arrests as only requiring an application of physical force, an apparent return to the common law definition that any seizure is an arrest. But that notion was implicitly rejected in Knowles v. Iowa, 525 U.S. 113 (1998) when the Court found that a traffic stop was more analogous to a Terry stop and so did not justify a full-blown search incident to arrest.

32. See, e.g., Rodriguez v. United States, 135 S. Ct. 1609, 1614, 1621 (2015); Virginia v. Moore, 553 U.S. 164, 177 (2008); Knowles v. Iowa, 525 U.S. 113, 117 (1998).

33. Terry v. Ohio, 392 U.S. 1, 17 (1968).

34. See Commonwealth v. Montoya, 896 N.E.2d 638, 641 (Mass. App. Ct. 2008) (noting that an “arrest,” or more extensive seizure, can take place before a “formal arrest.”).

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movement.35 Furthermore, it would enable police officers, upon observing an emergent medical need, to simply terminate the seizure prior to the point of a formal arrest and abandon the previously seized person in crisis. Therefore, formal arrest is not a good constitutional definition of custody in this context.

Another common definition of custody in the constitutional sphere helps to determine when an officer is obligated to inform a suspect of her rights under Miranda v. Arizona 36 during questioning or interrogation. While custody for this purpose does not necessarily require a formal arrest, it requires either “a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” 37 The modern test for Miranda custody focuses on whether a “reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave.”38 The primary issue with the Miranda definition of custody—as related to healthcare—is its focus on the risk of “a serious danger of coercion” during police questioning. 39 This, again, presents a real danger of underinclusiveness. A person in custody for Miranda purposes simply needs to feel free to terminate the interrogation, but they need not feel free to leave the presence of the police entirely. That is because Miranda concerns itself with preventing coercive police interrogations, not allowing free access to healthcare. Thus, individuals undergoing Terry stops may be entirely unfree in terms of movement, but still not in custody for Miranda purposes because they do not reasonably feel coerced into forfeiting their right to silence. 40 That leaves the final possible constitutional definition of custody— wherein the government has a duty to obtain adequate healthcare for any person it seizes within the meaning of the Fourth Amendment. “A Fourth Amendment seizure occurs when there is a governmental 35. See Brendlin v. California, 551 U.S. 249 (2007) (finding that passengers in traffic stops are “seized” under the Fourth Amendment because an officer temporarily restrains or terminates the passenger’s freedom of movement).

36. 384 U.S. 436 (1966).

37. California v. Beheler, 463 U.S. 1121, 1125 (1983) (internal quotations omitted).

38. Howes v. Fields, 565 U.S. 499, 509 (2012) (internal brackets and quotations omitted).

39. Id. at 508-509.

40. United States v. Bautista, 684 F.2d 1286, 1291 (9th Cir. 1982) (citing Oregon v. Mathiason, 429 U.S. 492, 495 (1977)) (“Terry stops, though inherently somewhat coercive, do not usually involve the type of police dominated or compelling atmosphere which necessitates Miranda warnings.”).

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termination of freedom of movement through means intentionally applied.”41 A government agent can successfully seize a person in two ways: by the use of “either physical force or, where that is absent, submission to the assertion of authority.”42 Any physical touching can constitute a seizure. 43 However, mere assertion of authority is insufficient to constitute a seizure—there must be submission to that show of authority on behalf of the person being seized.44 Seizure under the Fourth Amendment provides the best constitutional definition of custody for evaluating the right to healthcare. This definition primarily concerns itself with restrictions on freedom of movement, meaning that it will provide protection to all persons who are not free to procure healthcare for themselves due to intentional government constraints—the primary concern in such cases.45 Therefore, concerns about underinclusiveness are less serious than with the other two definitions. Furthermore, this definition most closely aligns with what the Supreme Court has already said about the right of pretrial detainees to medical care. In Revere, while finding that the government did not have a constitutional duty to pay for care, the Court assumed that the government did have a constitutional obligation to see that care was provided—even though the injured suspect had yet to be placed under formal arrest and was not subject to interrogation.46 This is because the suspect in Revere had been seized by the officer’s use of physical force against him, thus placing him within the officer’s custody.

This definition of custody is also the most consistent with how the federal courts have analyzed civil-rights claims regarding failure to provide medical treatment. Although the right to healthcare while in custody is secured by the Fourteenth Amendment, the Supreme Court has said that “all claims that law enforcement officers have used excessive force. . .in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard, rather than under a

41. Scott v. Harris, 550 U.S. 372, 381 (2007) (internal brackets and ellipses omitted).

42. California v. Hodari D., 499 U.S. 621, 626 (1991).

43. Id. at 625-626.

44. Id. at 626-28.

45. See Estelle v. Gamble, 429 U.S. 97, 104 (1976) (noting that a prisoner cannot care for himself “by reason of the deprivation of his liberty.”).

46. City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 245 (1983).

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‘substantive due process’ approach.”47 This led courts to treat “failure to provide medical care during and immediately following an arrest as a claim of excessive force under the Fourth Amendment.”48 If failure to provide medical treatment is going to be treated as a Fourth Amendment claim, then it is logical that custody be defined consistent with Fourth Amendment seizure law for purposes of determining whether one had a positive right to healthcare under the circumstances.

Admittedly, there is a risk that this definition of custody is too inclusive. Serious questions arise if any physical touch can constitute a seizure sufficient to place an individual within custody. For example, does the duty to provide medical care apply to an extremely minor injury sustained during a seizure? What if a person is injured in the course of a seizure but then escapes? Is this person still in custody such that the government would be liable if it did not ensure he received medical treatment?

Fortunately, there is a simple answer to these questions. The real concern here is that government officers have a duty to provide medical treatment to individuals in their custody who are unable to seek aid for themselves. This inability to self-help only becomes a concern in the event of a serious and immobilizing injury, which would preclude escape or a lengthy detention. 49 So, the constitutional definition for these purposes can and should be adjusted to reflect that the seizure results in an actual inability to self-help. That way, a police officer cannot escape a duty to provide medical care by simply releasing a suspect who has sustained an injury serious enough to prevent him from helping himself after being let go. Alternatively, if a less- serious injury still requires treatment, an officer would have a

47. Graham v. Connor, 490 U.S. 386, 395 (1989).

48. Obas v. Cty. of Monterey, No. 09-CV-05540-LHK, 2011 WL 738159, at *4 n. 1 (N.D. Cal. Feb. 22, 2011), aff’d, 504 F. App’x 558 (9th Cir. 2013); see also Estate of Phillips v. City of Milwaukee, 123 F.3d 586, 595-96 (7th Cir. 1997) (holding that Graham requires failure to provide medical treatment claims to be examined under Fourth Amendment); Price v. Cty. of San Diego, 990 F. Supp. 1230, 1241 & n. 22 (S.D. Cal. 1998) (examining failure to provide CPR claim under Fourth Amendment); Tatum v. City & Cty. of S.F., 441 F.3d 1090, 1097-99 (9th Cir. 2006) (examining failure to provide CPR claim under Fourth Amendment).

49. See Rowland v. Perry, 41 F.3d 167, 175 (4th Cir. 1994) (finding no obligation to provide care to an individual injured during the course of a seizure who was only detained for fifteen minutes and able to leave without assistance).

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duty to provide care if the detention is sufficiently lengthy to risk further harm due to a delay in treatment. 50 III.

STATE DEFINITIONS OF CUSTODY

One might think that application of the precedent laid out in Revere and the law of constitutional custody would be fairly straightforward.

When a governmental entity takes a person into constitutional custody, that entity assumes a duty to see to that person’s medical needs, or at least refrain from deliberate indifference to those needs. When an entity fails to meet that obligation, it can be held liable in a civil-rights action. There will, of course, be difficulties in assessing particular factual scenarios and determining what amounts to deliberate indifference, but at least the holdings of the cases are clear, with all of the relevant provisions plainly defined. 51 However, by leaving the issue of who pays for detainee medical care to the states, the Supreme Court unwittingly threw a wrinkle into the equation. It invited states to redefine custody—which is usually constitutionally defined. State legislatures, when drafting laws governing reimbursement for healthcare services rendered to those in custody, had to decide what counts as “custody” such that a governmental entity would be liable for the expense of care. This led some state courts, when interpreting these laws, to conflate constitutional custody (which determines whether an individual has a positive right to care) with legislative or statutory custody (which determines whether a healthcare provider is owed reimbursement for treatment). It is possible for one to be in constitutional custody but not statutory custody, but the existence of competing definitions led some state courts to neglect the former and use only the latter when determining if a governmental entity has a duty to provide care. Other courts recognize the distinction and properly bifurcate their custodial 50. See Martin v. Gentile, 849 F.2d 863, 871 (4th Cir. 1988) (concluding that a 14-hour delay in getting medical care did not violate a suspect’s Fourteenth Amendment rights because his “injuries were [not] serious enough to require medical attention any earlier than he received it”).

51. Admittedly, this assumes that the deliberate indifference standard applies to pretrial detainees, as most lower courts have held. See supra text accompanying note 25. While this is the majority position, the correctness of applying the subjective deliberate indifference standard to detainees is controversial. See, e.g., Catherine T. Struve, The Conditions of Pretrial Detention, 161 U. PA. L. REV. 1009 (2013); DeAnna Pratt Swearingen, Innocent Until Arrested?: Deliberate Indifference Toward Detainees’ Due-Process Rights, 62 ARK. L. REV. 101 (2009).

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analyses. However, even in cases where courts properly distinguish between constitutional and statutory custody, the legislatures’ decisions to define custody in a way that does not comport with constitutional law threatens detainee access to care, corrupts police incentives, and leads to unjust results for healthcare providers. This will be discussed in Section IV. A.

State Court Conflation of the Constitutional and Statutory Definitions of Custody

In an apparent effort to align state law with constitutional requirements, states have passed legislation compelling prisons and other governmental entities to provide necessary healthcare to those in custody. Where some statutes explicitly refer to “custody,”52 others substitute different words such as “prisoner” 53 or “inmate”54 to represent those who are in “custody,”55 or “the state’s custody.” Still others use the terms interchangeably. 56 No matter what wording is used, the statutes almost all treat custody as requiring a formal arrest or detention in some sort of confinement facility. 57 By comparison, the 52. See, e.g., Colo. Rev. Stat. Ann. 16-3-401(2) (“Persons arrested or in custody shall be treated humanely and provided with adequate food, shelter, and, if required, medical treatment.”).

53. See, e.g., ALA. CODE ANN. § 14-6-19 (2019) (“Necessary clothing and bedding must be furnished by the sheriff or jailer, at the expense of the county, to those prisoners who are unable to provide them for themselves, and also necessary medicines and medical attention to those who are sick or injured, when they are unable to provide them for themselves.”

54. See, e.g., GA. CODE ANN.. § 42-5-2 (2009),(“[I]t shall be the responsibility of the governmental unit, subdivision, or agency having the physical custody of an inmate to maintain the inmate, furnishing him food, clothing, and any needed medical and hospital attention.”).

55. See, e.g., COLO. REV. STAT. ANN.. 16-3-401(2) (2019), (“Persons arrested or in custody shall be treated humanely and provided with adequate food, shelter, and, if required, medical treatment.”).

56. See, e.g., ARIZ. REV. STAT. ANN. § 31-201.01 (2019), (“The director shall hold in custody all persons who are sentenced to the department under the law and shall hold such persons for the term directed by the court, subject to law . . . .The director shall provide medical and health services for the prisoners.”).

57. See, e.g., UTAH CODE ANN. § 17-22-8 (requiring sheriffs to provide medical care to “all persons committed to jail by competent authority.”); S.C. Code Ann. § 24-5-80 (“The governing body of each county in this State shall furnish, at all times, sufficient food, water, clothing, personal hygiene products, bedding, blankets, cleaning supplies, and shelter from extreme heat or cold or rain for all persons confined in a jail and access to medical care.”) (emphasis added).

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constitutional definition of custody may require providing medical care to persons not yet under formal arrest or incarcerated, as argued in Part II.58 States have also passed laws detailing the conditions necessary for healthcare providers to be reimbursed for treatment provided to prisoners and those in statutory custody. Typically, these laws refer back to the statutes imposing a duty to provide medical care and say that when a statutory duty exists, a duty to pay the healthcare provider for the care also exists. 59 Others impose the duty to provide care and stipulate that healthcare providers will be reimbursed for such care in the same statute. 60 In either case, reimbursement for the cost of treatment hinges on whether the patient was in “custody” as that term is defined by state law.

The meaning of “custody” bears on multiple legal questions, and the existence of multiple definitions has bred confusion in many state courts evaluating the right to healthcare. This issue most often arises when courts hear disputes between a healthcare provider seeking reimbursement for care and a local government entity. In determining which individuals have a positive right to medical care, custody is a threshold constitutional question—if you are not in the government’s custody, then the government has no constitutional obligation to provide care. When determining whether a healthcare provider has a right to reimbursement for care provided to individuals in constitutional custody, state courts must make a determination as to whether a suspect was also in statutory custody, an entirely separate inquiry. Too often, courts will confuse these definitions and use statutory instead of constitutional custody to determine if there was a duty to provide care and, finding it lacking, conclude there is no duty

58. See City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 245 (1983) (finding a duty to provide medical care to suspect shot in the course of arrest); see also Part II, supra.

59. See, e.g.,UTAH CODE ANN.. § 17-50-319 (defining a “county charge” as including the costs of medical care as described in UTAH CODE ANN.§ 17-22-8, supra n.57).

60. See, e.g., CONN.. GEN. STAT. ANN. § 18-7 (“[The commissioner] shall provide for the prisoners suitable food and clothing and suitable implements and materials for their work, and shall provide for the relief of any sick or infirm prisoner, and the cost thereof shall be paid by the state from funds appropriated and available for such purpose and, if the prisoner is hospitalized the cost thereof shall be paid as provided in section 18-52a.”).

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to reimburse.61 In fact, using the proper analysis, it is entirely possible for there to be a constitutional obligation to provide care but no statutory duty to reimburse healthcare providers for the costs of that care.62 For example, take the case concerning Contreras, who injured himself after jumping from the fourth floor of a jailhouse as described in the introduction of this Article.63 The court’s holding in that case treated the question of reimbursement and obligation to provide care as two sides of the same coin: “A county does not receive a benefit and is not unjustly enriched when a healthcare provider treats a person injured within the county’s borders unless the county. . .had a legal obligation to provide medical care to that person.”64 But the court either forgot or ignored the fact that, although reimbursement for medical costs is a matter of state law, access to healthcare for persons in custody is a constitutional matter. 65 The court concluded that the police had no obligation to provide healthcare to Contreras, despite the fact that they placed him in a closed room in the county jail, subsequently handcuffed him, and held him until an ambulance came to take him to the hospital after his doomed escape attempt. 66 This conclusion followed the court’s adoption of a statutory definition of custody whereby a positive right to healthcare only exists if an individual is “restrain[ed]. . .pursuant to an arrest or the order of a court or magistrate.”67 This definition did not include Contreras because he “was not serving a jail sentence, had not been arrested, and was not otherwise committed to jail at the time of his hospitalization.”68

61. Elizabeth Weeks Leonard, State Constitutionalism and the Right to Health Care, 12 U. PA. J. CONST. L. 1325, 1356-57 (2010) (explaining that state courts typically interpret the Constitution’s requirement to provide healthcare to those in custody to mean those “under arrest in police custody”).

62. Some state courts have successfully recognized this distinction, as discussed in Part III.B. 63. Univ. of Kansas Hosp. Auth. v. Bd. Of Comm’rs of Wabaunsee, 327 P.3d 430, 430-33 (Kan. 2014).

64. Id. at 431 (emphasis added).

65. Id. at 440.

66. Id. at 441 (“The Hospital Authority’s theory was that it had performed a valuable service for the County, which was obligated to provide medical care to Contreras as a prisoner in the sheriff’s custody. As we have discussed, the County did not have that obligation.”).

67. Id. at 440 (quoting K.S.A. 22-2202(9)).

68. Id.

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In contrast, if the Contreras court used the constitutional definition to determine custody, then it would have almost certainly found that police had a constitutional obligation to provide care to Contreras. At the outset, Contreras had been seized by either submitting to the authority of the officer who detained him in the room or by the physical act of placing him in the room. One could argue that Contreras broke custody by jumping from the window, but such arguments are not entirely convincing. Contreras’ escape attempt was precisely that, an attempt. While he may have successfully exited the room where he was confined, he never successfully escaped the boundaries of government property. Just as one would not think of a prisoner who escaped his cell as having successfully escaped custody when he is apprehended before exiting prison grounds, one should not view Contreras as having escaped custody when he lay crippled just outside the jail’s front door. Moreover, whether he did escape custody is irrelevant because he was seized into custody again when police arrived and handcuffed him. As soon as the injured Contreras was in police custody, under the constitutional definition, the police would have an obligation to see that he received medical treatment. To find that no such duty existed, as the Contreras court did, is analogous to finding that it would be constitutional for the police to have simply removed the handcuffs and left Contreras to his fate on the ground— although thankfully that is not what happened. That position is clearly rebuffed by the Revere Court’s conclusion that police had a duty to provide healthcare to someone injured in the course of arrest, after the suspect had been seized via gunshot. 69 The police in Revere could not have simply abandoned the suspect after shooting him without running afoul of the Constitution.

The conflation of the constitutional and statutory definitions of custody has occurred in multiple state courts. Most states seem to recognize that they have a constitutional obligation to provide healthcare to individuals who are under arrest and being kept as pretrial detainees,70 but that positive right is not always found to exist before a 69. City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 245 (1983) (finding that the police fulfilled their constitutional duty by ensuring the suspect received medical treatment).

70. See, e.g., Univ. of Kansas Hosp. Auth. 327 P.3d at 436-37 (Kan. 2014) (“[T]he Constitution imposes a duty to provide medical care for prisoners in certain situations[.]”); see also Myrtle Beach Hosp., Inc. v. City of Myrtle Beach, 532 S.E.2d 868, 870 (S.C. 2000) (“The parties agree that the City is required by the Federal Constitution to ensure that a detainee receives necessary medical care.”); Emergency

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formal arrest has taken place. For example, in Sisters of Third Order of St. Francis v. Tazewell County, an appellate court in Illinois determined that the County had no duty to reimburse a hospital for care provided to a suspect who had been shot in the course of arrest. 71 The court based this conclusion on the fact that the police decided not to proceed with a formal arrest, or charge the suspect with a crime, until after he had been released as a patient. 72 The relevant statute only required the warden of the jail to provide “medical aid” to “all prisoners under his charge. . ..” 73 Because the police did not formally arrest the suspect during the course of his hospitalization, the court determined that he was not within the charge of the county. So, although the officers did, in fact, obtain medical care for the suspect, they had no legal obligation to do so and thus the County was not liable for reimbursement.74 The mistaken conclusion that an officer has no duty to provide medical care until a formal arrest has taken place or a suspect is in statutory custody has been reached in other state courts as well.75 B. State Court Recognition of the Distinction Between Constitutional and Statutory Duty to Provide Healthcare to Those in Custody Not every state court has bungled the analysis concerning the constitutional right to care and the statutory duty to pay reimbursement. Notably, however, the underlying facts of most of these cases did not present a serious question regarding whether a Physicians Integrated Care v. Salt Lake City., 167 P.3d 1080, 1083 (Utah 2007) (“[T]he Fourteenth Amendment requires government entities to obtain medical care for injured pretrial detainees.”).

71. Sisters of Third Order of St. Francis v. Tazewell County, 461 N.E.2d 1064 (Ill. App. 1984).

72. Id. at 1066-67.

73. Id. at 1065-1066 (quoting Ill. Rev. Stat. 1981, ch. 75, par. 19).

74. Id. at 1066.

75. See, e.g., Oregon State Bd. of Higher Educ. For & on Behalf of Univ. of Oregon Health Scis. Ctr. v. Washington Cty., 629 P.2d 373, 376 (Or. Ct. App. 1981) (“‘custody,’ within the meaning of the statutes, exists whenever the prisoner is either placed under guard or where his physical condition makes it such that he could not leave the hospital of his own free will and, in either case, whenever confined to assure his ultimate attendance at trial”); Windham Cmty. Mem’l Hosp. v. City of Willimantic, 348 A.2d 651, 656-57 (Conn. 1974) (finding city not liable for medical expenses of suspect fatally shot in the course of arrest because no state statute imposed an obligation on the officer to provide medical care).

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suspect was in custody, such as a suspect injured in the course of arrest or otherwise injured by a police seizure and subsequently released.

Rather, these suspects were arrested and being held as pretrial detainees in detention centers.

In one case, Myrtle Beach Hosp., Inc. v. City of Myrtle Beach, a hospital sought reimbursement for $300,000 in emergency-room expenses it accrued providing treatment to the city’s pretrial detainees.76 At the outset, the South Carolina Supreme Court noted that “the City is required by the Federal Constitution to ensure that a detainee receives necessary medical care.” 77 But it also noted that, under Revere, the determination of who pays for such care is a matter of state law.78 An examination of the relevant state laws and the legislative intent behind those laws revealed, in the view of the court, that the South Carolina legislature intended “that jailers (whether county or state) are to bear the expenses, including those incurred in rendering health care, for persons incarcerated following their convictions,” but not for pretrial detainees.79 The court recognized that a constitutional mandate to provide care can exist even where there is no statutory duty to pay for that care. This stands in contrast to the courts described above who concluded there was no duty to pay for detainee care after finding no legal duty to provide care even where constitutional custody likely existed. 80 Similarly, the Utah Supreme Court heard a dispute between a healthcare provider seeking reimbursement for over four years of unpaid medical expenses incurred while treating a county’s pretrial detainees.81 The court acknowledged that the county had an obligation under the Fourteenth Amendment to provide medical care to injured pretrial detainees, including those injured in the course of arrest. 82 After describing the constitutional duties at issue, the court proceeded 76. Myrtle Beach Hosp., Inc. v. City of Myrtle Beach, 532 S.E.2d 868, 870 (S.C. 2000). The City of Myrtle Beach had a policy to only pay the medical bills of pretrial detainees injured in the course of arrest or as a direct result of their incarceration. Id. at 870 n.1.

77. Id. at 870 (citing City of Revere v. Mass. Gen. Hosp., 463 U.S. 239 (1983)).

78. Id. 79. Id. at 871.

80. Compare Myrtle Beach Hosp. Inc., 532 S.E.2d 868 (S.C. 2000), with Univ. of Kansas Hosp. Auth. v. Bd. Of Comm’rs of Cty. of Wabaunsee, 327 P.3d 430, 440 (Kan. 2014).

81. Emergency Physicians Integrated Care v. Salt Lake Cty., 167 P.3d 1080 (Utah 2007).

82. Id. at 1083.

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to determine whether there was a statutory duty to pay for the medical care, noting that a statutory duty existed for counties “to pay expenses necessarily incurred in the support of persons charged with or convicted of a criminal offense and committed to a county jail,” including “pretrial inmates.”83 Because these courts did not have to make a substantive inquiry into whether custody existed, as the detainees at issue were in custody under any definition, it remains unclear how they would apply the constitutional law of custody to a different set of facts, such as those at issue in the Contreras case 84 or Sisters of Third Order of St. Francis.85 IV. CONSEQUENCES OF THE INCONGRUENCE BETWEEN CONSTITUTIONAL AND STATE DEFINITIONS OF CUSTODY This section will explain some of the practical and theoretical consequences that result from the incongruence between how the Constitution and state laws define custody as applied to those injured near the time of police seizure. Some of these consequences result from the failure of state courts to recognize a duty to provide care where a suspect is in constitutional but not statutory custody. Others arise as a result of state legislatures deciding to define custody in a way that does not comport with constitutional law. Because these statutory definitions of custody only determine when there is a duty to provide reimbursement for medical costs, a matter of state law, they are not unconstitutional, but they are still bad public policy with negative consequences.

A.

The Threat to Detainees

Ironically, the right to healthcare for this subset of pretrial detainees is most often discussed in state courts when those detainees did, in fact, receive the healthcare to which they were constitutionally entitled.86 The fact that medical treatment was provided forms the very 83. Id. at 1084 (internal quotes and citations omitted).

84. Univ. of Kan. Hosp. Aut. v. Bd. of Comm’rs of Cty. of Wabaunsee, 327 P.3d 430 (Kan. 2014).

85. Sisters of Third Order of St. Francis v. Tazewell County, 461 N.E.2d 1064 (Ill. App. 1984).

86. See, e.g., Univ. of Kansas Hosp. Auth. v. Bd. Of Comm’rs of Cty. of Wabaunsee, 327 P.3d 430 (Kan. 2014) (police called an ambulance to assist man injured in an attempted escape from county jail); Sisters of Third Order of St. Francis

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basis of the legal dispute in those cases, because hospitals would have no need to sue for reimbursement if they had not suffered the expense of distributing care. For this reason, a state court’s conclusion that there was no duty to provide care, and thus no correspondent duty to provide reimbursement, may appear merely academic with no practical consequences for the injured detainee. Not so. There are many cases demonstrating that police officers regularly neglect their duty to provide medical attention to arrestees, pretrial detainees, or others seized through police force. 87 Furthermore, there are reasons to believe that this neglect is likely caused, at least partially, by confusion over police duties to arrestees and the public at large.

There are two general ways in which an officer can fail in the duty to provide care to an individual in custody. First, officers can arrest an injured person and fail to provide the necessary care—regardless of whether the arrest or use of force caused the injury. 88 Second, officers can otherwise seize an injured person, thus bringing them into constitutional custody, and subsequently release that person without obtaining medical care. 89 Notably, officers are not constitutionally obligated to render first aid themselves; they fulfill their duties by

v. Tazewell County, 461 N.E.2d 1064 (Ill. App. 1984) (police transported injured suspect to the hospital).

87. See, e.g., City of Canton v. Harris, 489 U.S. 378 (1989) (detainee released without receiving medical care despite clear symptoms of crisis); Paine v. Johnson, 689 F. Supp. 2d 1027 (N.D. Ill. 2010) (plaintiff alleges she was raped and fell seven stories after police arrested and released her without obtaining mental health treatment despite clear signs of mental illness); Xavier Ingram and Darren A. Dickerson, v. County of Camden, Defendants, No. CV 14-5519 (JBS-KMW), 2019 WL 1424330 (D.N.J. Mar. 29, 2019) (plaintiff alleges officer broke plaintiff’s neck in the course of arrest and, instead of calling for medical assistance, caused further injury through additional rough treatment).

88. Estate of Carter v. City of Detroit, 408 F.3d 305 (6th Cir. 2005) (denying qualified immunity where arrestee died of a heart-attack after the officer ignored her requests for medical attention and accompanying symptoms); Valderrama v.

Rousseau, 780 F.3d 1108 (11th Cir. 2015) (denying qualified immunity where officers delay getting medical care for arrestee after shooting him in the testicles).

89. Peschel v. City of Missoula, No. CV 08-79-M-JCL, 2009 WL 902438 (D. Mont. filed Mar. 27, 2009) (denying qualified immunity where officers released pretrial detainee after ignoring his requests for medical assistance); see also John Blackmon, Civil Liability and Medical Care of Arrestees, 2 AELE MO. L.J. 101 (2017) (“When arrestees clearly need care, there may be liability, under some circumstances, simply for releasing them without providing it.”).

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quickly calling for medical professionals to provide aid.90 In any case, reconciling the constitutional and statutory definitions of custody would help ensure that fewer individuals are denied medical treatment to which they are constitutionally entitled.

Police are not experts in constitutional or statutory law, and police training often fails to teach police exactly what the rights of arrestees, or other people they seize, are regarding access to medical care. 91 Inadequate police training may be exacerbated by a total lack of policy dictating how police should respond to a medical emergency. 92 Although most police department manuals appear to require police to call for medical assistance if they formally arrest someone who is seriously injured, most also lack policy regarding duties to injured persons who are seized by police but released without formal arrest. 93

90. See Maddox v. City of Los Angeles, 792 F.2d 1408 (9th Cir.1986) (finding no clearly established right to have officers perform CPR immediately after arrest and before transportation to the hospital); Rich v. City of Mayfield Heights, 955 F.2d 1092 (6th Cir. 1992) (finding that officers did not have clearly established duty to cut down and perform first aid on inmate who had hanged himself). However, officers have affirmative duties to not interfere with the delivery of medical care and to ensure that medical care can be delivered. Scozzari v. Medzianowski, 597 Fed. Appx. 845, (6th Cir. 2015) (“[T]he obligation to provide adequate medical care to an injured detainee is not discharged merely by promptly calling for assistance, but extends to ensuring that medical responders are able to access the victim without unreasonable delay.”).

91. See generally Canton v. Harris, 489 U.S. 378 (1989) (discussing the lack of police training regarding the medical treatment of detainees); see also Wayne A. Logan, Police Mistakes of Law, 61 EMORY L.J. 69, 104-109 (2011) (discussing the inadequacy of police legal training).

92.

See Richard Pérez-Peña, Why First Aid Is Often Lacking in the Moments After a Police Shooting, N.Y. TIMES (Sept. 21, 2016), https://www.nytimes.com /2016/09/22/us/why-first-aid-is-often-lacking-in-the-moments-after-a-policeshooting.html (quoting Jim Bueermann, a former police chief and president of the National Police Foundation as he discusses lack of departmental policies articulating officer duties in the aftermath of a police shooting).

93. Police Manuals, https://policemanuals.neocities.org/ (last visited Apr. 6, 2019). Criminal justice reporter C.J. Ciaramella has collected police manuals from departments in the largest U.S. cities. A review of these manuals reveals that most departments only have an explicit policy to obtain medical care for arrestees, with no mention of other persons. The lack of policy concerning medical treatment for individuals who are released before formal arrest is especially concerning given an increased trend of police seizing and detaining law-abiding individuals due to police mistakes of law. See generally Logan, supra n.90 (discussing the problem of police detaining individuals due to misunderstandings of what the law is). If police are

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The lack of policy, training, and custody doctrine puts individuals at risk of not receiving care, because U.S. law assumes that police cannot be required to respect an individual’s rights unless that right is “clearly established,” and a right is not clearly established unless plainly stated by the courts.94 Simplifying any legal analysis that police must do by reconciling constitutional and statutory definitions of custody would decrease the likelihood of a mistake regarding the duties owed to an individual in their custody.

B.

The Corruption of Law Enforcement Incentives

The criminal law and its enforcement are generally considered to serve at least one of several purposes: retribution, rehabilitation, deterrence, and incapacitation. 95 However, the incongruence between the constitutional and state definitions of custody corrupts lawenforcement incentives and pushes police officers to make enforcement decisions that do not serve any of these purposes. When faced with the prospect of arresting an injured suspect and initiating criminal proceedings, an officer may be dissuaded from making an arrest based solely on a determination that his department can escape liability for medical care if he declines to arrest the suspect. This incentive, based on the economic interests of law enforcement and government bodies as opposed to principles of retribution and public safety, works to undermine how criminal law enforcement should operate.

This concern is not purely hypothetical. In the Contreras case, for example, it is likely that the police chose not to arrest or further prosecute Contreras after his failed escape because the officers were aware that it would impose liability on their department for his medical bills. In considering what would have happened if Contreras had not been injured during his escape, the Kansas Court of Appeals appeared to believe this was a possibility: What if Contreras had not been injured in his jump? Is it logical to argue that [the police captain] would have unaware of the rights of people injured through police seizure but then released due to blamelessness, then that is problematic.

94. See John C. Jeffries, Jr., What’s Wrong with Qualified Immunity?, 62 FLA. L. REV. 851, 854-66 (2010) (describing qualified immunity and the difficulties of finding clearly established law).

95. Robert A. Pugsley, Retributivism: A Just Basis for Criminal Sentences, 7 HOFSTRA L. REV. 379, 381 (1978).

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merely watched Contreras run away, especially when Contreras had just broken out a jail window? It is certainly much more logical to infer that [the police] would have pursued Contreras and even called for back-up. After all, [the police captain] suspected that Contreras may have escaped from custody. Moreover, Contreras had just committed criminal damage to the Wabaunsee County Jail . . . .Wabaunsee County cannot reasonably argue that had Contreras been found in an uninjured condition they would have just released him.96 Note that if state legislatures conformed their reimbursement statutes with the constitutional law of custody, then officers would have no incentive to act this way. But so long as officers can avoid institutional liability for medical expenses by declining to place injured suspects under arrest, they will have an incentive to exercise discretion to not arrest people simply because they were injured near the time of arrest—not because the person did not deserve to be arrested.

Assuming, as seems reasonable, that the Kansas Court of Appeals is correct that the officers would have arrested and charged Contreras but for his injury, one must wonder whether this and other instances like it are a proper use of enforcement discretion. Like all law enforcement decisions, the decision of whether or not to arrest and prosecute an individual should be based on whether it would serve the ultimate purposes of criminal law: retribution, rehabilitation, deterrence, and incapacitation.97 It is unlikely that a decision to not 96. Univ. of Kansas Hosp. Auth. v. Bd. of Comm’rs of Cty. of Wabaunsee, 251 P.3d 673, *4 (Kan. Ct. App. 2011). There are other cases where police seem to have either declined to arrest or significantly delayed arrest in order to dodge liability. See, e.g., Sisters of Third Order of St. Francis v. Tazewell County, 461 N.E.2d 1064 (Ill. App. 1984) (police waited until the suspect they transported to the hospital, for treatment, was discharged before making the arrest); Macon-Bibb Cty. Hosp. Auth. v. Reece, 492 S.E.2d 292 (Ga. 1997) (police transported gunshot-wounded suspect to hospital but did not formally arrest him until hospital discharge).

97. See Joseph Goldstein, Police Discretion Not to Invoke the Criminal Process: Low-Visibility Decisions in the Administration of Justice, 69 YALE L.J. 543, 572 (1960) (relaying criticism of non-enforcement of narcotics laws because “[r]etribution, restraint, and reformation are subverted by a policy which condones the use and possession of narcotics. And deterrence cannot be enhanced by a police program which provides potential and actual suppliers and users with more illustrations of nonenforcement than enforcement.”).

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arrest someone to avoid institutional liability for a suspect’s medical expenses would substantially further any of these purposes.

Retribution in the criminal justice system is premised on the idea that persons who commit wrongful acts deserve to undergo a proportionate punishment.98 On its face, any decision to not arrest a criminal suspect allows that suspect to escape the legal consequences of his illegal or wrongful acts, undercutting retributivism. Returning to Contreras as an example, let us assume that destruction of government property is a wrongful act that is typically deserving of legal punishment. A strict reading of retributive principles deems it improper that the police declined to arrest Contreras in the face of indisputable evidence that he broke the jailhouse window because they failed to punish a morally and legally culpable individual. 99 To be fair, even theorists who believe that the principal aim of criminal punishment is retribution concede that there are circumstances in which “some of the guilty will not receive their negative due.”100 For instance, “normative innocence” exists where an actor breaks the law without being morally blameworthy, or at least not blameworthy enough to deserve the punishment the law normally requires.101 Additionally, it has been argued that “mercy” is compatible 98. Alec Walen, “Retributive Justice”, THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Winter 2016 Edition), available at https://plato.stanford.edu/archives /win2016/entries/justice-retributive/.

99. Larry Alexander & Kimberly Kessler Ferzan, Criminal Law, Punishment, and Desert: CRIME AND CULPABILITY: A THEORY OF CRIMINAL LAW 7 (2009) (describing “strong retributivism” as mandating punishment wherever there is desert).

100. Id. at 8.

101. Josh Bowers, Legal Guilt, Normative Innocence, and the Equitable Decision Not to Prosecute, 110 Colum. L. Rev. 1655, 1678-79 (2010).

Ken White, a former prosecutor and legal blogger, described a case of normative innocence that he reluctantly prosecuted early in his career. A man who had just been seriously hurt in a motorcycle accident, dumped by his girlfriend, kicked out of the apartment where he had been living, and fired from his job went to the bank to retrieve funds from a settlement he recently received. The teller told him that the funds were on hold. Unable to obtain his much-needed funds, the man told the teller that he had a bomb in his jacket and ordered the teller to hand over the cash in the drawer. He took the money, drove to his ex-girlfriend’s apartment, and wept in his car while waiting to be arrested. Although he had undoubtedly committed each element of the crime, the jury, in an apparent act of nullification, decided that he was not blameworthy and hung 11-1 for acquittal. Ken White, Confessions of an ExProsecutor, REASON (June 23, 2016), https://reason.com/archives/2016/06/23/ confessions-of-an-ex-prosecutor/; @popehat (Ken White), “Time for a judge being

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with retributivism inasmuch as one’s suffering, independent of the legal punishment for his actions, should be considered when making enforcement decisions.102 For example, police who have custody of an injured suspect could decide that the injury is punishment enough and elect not to carry out a formal arrest, for fear that further punishment would be disproportionate to the offense committed.

However, although not every decision to release an injured suspect without arrest may be motivated by a desire to avoid monetary liability, the notions of normative innocence and mercy are absent where such motivations are present. Police, in such circumstances, are not concerned with the suspect’s blameworthiness or balancing the scales of justice, but instead seek to protect the coffers of their employers. A suspect is not normatively innocent of a crime simply because he has been injured around the time that, but for the injury, he would be arrested. Nor is it merciful to decline to arrest an injured suspect simply to avoid institutional liability; it is an act of selfinterest. Instead, retribution demands intentional punishments aimed, at least in part, at sending a message to the community condemning the wrongful act.103 Retribution cannot rely on happenstance suffering or the natural fallout that results from one’s decision to break the law, such as an injury near the time of arrest. 104 Additionally, a decision not to formally arrest an injured suspect to avoid liability for medical expenses does not seem to enhance public safety through deterrence, incapacitation, or rehabilitation. Before choosing to break the law, people may consider the possibility that they will be hurt in either the commission of the crime or course of

mean story? Time for a judge being mean story. The year . . . . is 1997, [if I recall correctly]. I’m a rookie AUSA. I have a bank robbery case. /1,” TWITTER (Aug. 8, 2018), https://twitter.com/Popehat/status/1027220125932376066 (Twitter thread describing this story in more detail).

102. Bowers, supra n.101 at 1682. Other theorists, however, debate whether mercy is a desirable aspect of criminal law enforcement because “justice demands punishment for culpable behavior,” and any exception required by mercy represents “a positive injustice.” Id. at 1680.

103. Walen, supra n.98 Section 2.1.

104. See Alexander & Ferzan, supra n.99 at 11 (“In practice, a court may inflict a ‘shaming’ punishment, wherein a defendant is subject to public disapproval for his conduct; but if the defendant’s loss of public respect is not the product of a judicially imposed sanction but just the product of the defendant’s conviction, courts may ignore this ‘fall from grace’ as irrelevant to what further sanction should be imposed.”).

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arrest,105 but the chance of non-arrest due to that injury adds no apparent deterrent value. If anything, the possibility of non-arrest due to injury, if considered at all, would appear to be an incentive to commit crime rather than a deterrent. Similarly, inasmuch as a criminal may be incapacitated due to injury, that incapacitation is not aided through non-arrest. The decision to not arrest an injured individual because he is incapacitated frees that person to continue committing offenses as soon as he is recovered. Finally, there is no evidence that non-arrest due to injury would serve rehabilitative purposes. In fact, non-arrest increases the chance that the injured person must fund the care as opposed to a government entity. Inasmuch as medical expenses contribute to poverty,106 and poverty is correlated with crime, 107 then this may be more likely to push individuals toward more crime instead of a reformed lifestyle.

In sum, incentivizing police to not arrest injured individuals to avoid liability for medical costs does not serve the interests of justice or criminal law, but rather undermines those interests.

C.

Unfairness to Hospitals and Quality of Care

Allowing state legislatures or courts to narrow the definition of custody also unfairly burdens hospitals with the costs of treating persons in custody.108 The Emergency Medical Treatment and Labor Act (EMTALA) requires emergency rooms at hospitals accepting 105. Cf. WILLIAM M. LANDES & RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF TORT LAW 10-11 (1987) (discussing how risk of personal injury deters individuals from tortious behavior); see also John R. Lott & David B. Mustard, Crime, Deterrence, and Right-to-Carry Concealed Handguns, Coase-Sandor Institute for Law & Economics Working Paper No. 41, 3 (1996) (finding that criminals turned to “less risky crimes” in the wake of liberalized gun laws due to “the threat of being shot”).

106. Andrea S. Christopher, et al., The Effects of Household Medical Expenditures on Income Inequality in the United States, 3 AMERICAN JOURNAL OF PUBLIC HEALTH 108 (Mar. 1, 2018) (finding that medical expenses push millions of Americans below the poverty line).

107. See Leonard J. Long, Optimum Poverty, Character, and the Non-Relevance of Poverty Law, 47 RUTGERS L. REV. 693, 707 (1995) (discussing the correlation between poverty and crime).

108. See L. Taylor Hamrick, Comment, Where Healthcare and Policing Converge: How Georgia Law Promotes Evasion of Financial Responsibility for Indigent Arrestees’ and Municipal Inmates’ Medical Care, 67 MERCER L. REV. 741, 742-43 (2016) (discussing Georgia’s reimbursement statute for inmate care and describing “uncompensated hospitals” as “victims of the statute’s shortcomings”).

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Medicare funds to provide medical screenings and stabilizing care to patients regardless of a patient’s ability to pay. 109 EMTALA is, however, an unfunded mandate, which means that hospitals are forced to absorb the cost of EMTALA-required care.110 Thus, EMTALA and Revere’s deference to state law regarding reimbursement “work together to allow city and county law enforcement to compel treatment of injured persons in their custody while avoiding any financial responsibility for that treatment with a quick detour to the hospital before booking.”111 Furthermore, because the law surrounding custody in this context is so unclear, hospitals may have a difficult time knowing whether they are entitled to reimbursement.112 This invites protracted litigation and additional costs for hospitals.113 That the costs of providing medical care for persons in custody can be placed on a single party flouts general notions of fairness and contravenes the Supreme Court’s suggestion that it is “but just that the public be required to care for the prisoner, who cannot by reasons of the deprivation of his liberty, care for himself.”114 In addition to being unfair to hospitals and other healthcare providers, there are reasons to be concerned that the lack of guaranteed reimbursement for custodial treatment may affect the quality of care for persons in custody. The quality of care offered in hospitals varies based on insurance status, with privately insured persons receiving higher quality care than the uninsured or those enrolled in Medicare or Medicaid.115 This suggests that hospitals, consciously or otherwise, respond to economic incentives when delivering care to patients— 109. 42 U.S.C. § 1395dd (2011).

110. EMTALA Fact Sheet, AM. C. EMERGENCY PHYSICIANS, https://www.acep. org/life-as-a-physician/ethics—legal/emtala/emtala-fact-sheet/ (last visited Apr. 7, 2019).

111. Hamrick, supra n.108 at 761-62.

112. Id. at 756.

113. Id. 114. Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quoting Spicer v. Williamson, 132 S.E. 291, 293 (N.C. 1926)) (emphasis added).

115. Christine S. Spencer et al., The Quality of Care Delivered to Patients Within the Same Hospital Varies by Insurance Type, 32 HEALTH AFF. 1731, 1731 (2013), https://doi.org/10.1377/hlthaff.2012.1400; Lara Gardner & Sharmila Vishwasrao, Physician Quality and Health Care for the Poor and Uninsured, 47 INQUIRY: THE JOURNAL OF HEALTH CARE ORGANIZATION, PROVISION, AND FINANCING 62, 62 (2010), https://journals.sagepub.com/doi/pdf/10.5034/inquiryjrnl_47.01.62.; Brian Blase, Medicaid Provides Poor Quality Care: What the Research Shows, THE HERITAGE FOUNDATION, no. 2553, at 1, (2011) https://www.heritage.org/healthcare-reform/report/medicaid-provides-poor-quality-care-what-the-research-shows.

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expending higher-quality care when full reimbursement is more certain. When hospitals admit persons in custody, it stands to reason that those patients will likewise receive lower-quality care—unless governments are willing to guarantee payment for care provided, a guarantee currently lacking due to strict definitions of custody in state reimbursement statutes. The problem of incentivizing low-quality care for persons in custody is especially concerning because hospitals already face difficulties providing prisoner care that lead to worse health outcomes.116 V.

WHAT IS THE SOLUTION?

The Supreme Court and state legislatures should address the incongruent definitions of custody and the resultant confusion they have caused relating to the right to healthcare. The right to healthcare for persons in custody arises from the Federal Constitution, and it follows that a universal definition of custody should be adopted nationwide. The most obvious path to this ideal is for the Supreme Court to address the issue. An alternative is for the legislatures or courts of the individual states to universally adopt the constitutional definition of custody in their reimbursement statutes, a step some states have already taken. Each of these solutions has its own advantages and disadvantages.

At a minimum, the Supreme Court should clarify the level of custody required to obtain a positive right to healthcare. As argued above, the most logical definition to adopt in this context is to equate custody to a seizure under Fourth Amendment law: a person is in custody if her freedom of movement is curtailed via use of physical force or submission to authority. By clearly addressing this issue, the Supreme Court could eliminate state court reliance on statutory definitions of custody when determining if a right to healthcare exists.

It would help ensure that persons in custody receive the healthcare that they need and create a more bright-line rule that is easy for police officers to understand and respect.

116. See Janet Colwell, Caring for Prisoners, ACP HOSPITALIST (Oct. 2017) (describing the unique challenges facing healthcare providers in caring for the prison population), https://acphospitalist.org/archives/2017/10/caring-for-prisoners.htm; see also Incarcerated Workers Organizing Committee & Research|Action Cooperative, Cruel and Usual: A National Prisoner Survey of Prison Food and Health Care Quality (Apr. 2018) (national survey of prisoners showing prisoner dissatisfaction with quality of healthcare), http://researchaction.net/wpcontent/uploads/2018/04/IWOC-Report-04-18-FINAL.pdf.

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However, clarifying the constitutional definition of custody does not address all of the problems caused by this area of law. Even if state courts understood and properly applied constitutional law when evaluating the right to healthcare, those same courts must still rely on state-law definitions of custody when analyzing the right of hospitals to reimbursement for care. As described in Part IV, this causes its own problems. Addressing this issue would require the Supreme Court to overturn the rule laid down in Revere that “the Constitution does not dictate how the cost of [detainee healthcare] should be allocated as between the entity and the provider of the care. That is a matter of state law.”117 Overruling Revere, at least in that limited regard, and imposing a constitutional duty on governments to pay for the healthcare of those in their custody would make state reimbursement statutes irrelevant and eliminate the legal confusion and social ills that result from those statutes’ shortcomings. State and local governments could no longer rely on EMTALA to compel hospitals to give free care to persons in custody. This would be fairer to hospitals and likely result in higher quality healthcare for such patients.118 It is unclear, however, what the exact basis for overruling the rule in Revere would be. Revere was a unanimous decision, and the only disagreements among the justices concerned whether the Court should have described the duties owed to persons injured in the course of arrest119 and whether the Court should have taken the case in the first place.120 Furthermore, the rule in Revere, a 36-year-old decision, does not appear to be the subject of much academic discussion or criticism.121 At least one commentator has criticized EMTALA as violating the Takings Clause of the Fifth Amendment by requiring medical services without just compensation, 122 a criticism that could 117. City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 245 (1983).

118. See Estelle, 429 U.S. 97 at 104.

119. Revere, 463 U.S. at 246 (Rehnquist, J., concurring in part).

120. Id. at 246-47 (Stevens, J., concurring).

121. A Westlaw search conducted April 7, 2019 only revealed 251 law review articles that cite to Revere at all, and only five that include the phrase “a matter of state law.” For comparison, Estelle v. Gamble, 429 U.S. 97 (1976), is only seven years older than Revere and has been cited 1,961 times in law reviews.

122. See E.H. Morreim, Dumping the “Anti-Dumping” Law: Why EMTALA Is (Largely) Unconstitutional and Why It Matters, 15 MINN. J.L. SCI. & TECH. 211, 211-212, 248 (2014); E.H. Morreim, EMTALA Turns 30: Unconstitutional from Birth, 28 THE HEALTH LAW 32, 38 (2015); E.H. Morreim, EMTALA: Medicare’s Unconstitutional Condition on Hospitals, 43 HASTINGS CONST. L.Q. 61, 62 (2015).

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apply with equal force to the rule in Revere that compensation is not constitutionally mandated. But without more widespread academic criticism, or evidence that the lack of guaranteed reimbursements is causing hospitals to refuse to treat vast numbers of persons in custody, the Court seems unlikely to change course.

Short of the Supreme Court reconsidering its rule in Revere, the individual states could address the incongruent custody definitions by passing legislation adopting the constitutional definition in their reimbursement statutes. If each state elected to follow this course, it would have the same practical effect as if the Court did reconsider Revere.

Some states have taken steps in this direction but have yet to fully address the problem. For example, the Colorado Court of Appeals determined that “custody,” for purposes of Colorado’s statute requiring prisoner healthcare, meant “the restraint of a person’s freedom in any significant way”—a definition that closely aligns with the constitutional definition proposed here. 123 However, the Supreme Court of Colorado determined that the statute did not imply a private right of action whereby hospitals could seek reimbursement for treating persons in custody. 124 So, while the courts may have the definition right, hospitals in Colorado may still struggle to get reimbursed.

Florida has also adopted rules that make it more difficult for police to intentionally dodge liability for medical care by passing legislation that requires governments to pay for the care of indigent persons “ill, wounded, or otherwise injured during or at the time of arrest for any violation of a state law or a county or municipal ordinance.” 125 Analyzing this statute, Florida appellate court determined that persons It is beyond the scope of this Article to fully analyze the strength of this theory, but it is worth noting that at least two federal courts of appeals appear to have rejected it. Baker Cty. Medical Servs., Inc. v. U.S. Att’y. Gen., 763 F.3d 1274, 1279 (11th Cir. 2014) (holding that requiring a hospital to treat federal detainees at Medicare rate was not a taking); Burditt v. U.S. Dep’t. of Health and Human Servs., 934 F.2d 1362, 1376 (5th Cir. 1991) (finding that physician participation in EMTALA is voluntary and so not a taking).

123. Denver Health & Hosp. Auth. v. City of Arvada ex rel. Arvada Police Dep’t, 405 P.3d 308, 313-14 (Colo. App. 2016) (citation omitted).

124. City of Arvada ex rel. Arvada Police Dep’t v. Denver Health & Hosp. Auth., 403 P.3d 609, 616 (Colo. 2017) (It is unclear if the Supreme Court of Colorado agreed with the appellate court’s definition of custody as it did not address the issue in its opinion).

125. FLA. STAT. ANN. § 901.35 (2019).

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seized by police and transported to the hospital before being “booked” or formally arrested were in custody for purposes of the statute. 126 This rule requires police to furnish medical care for injured persons that they intend to arrest and also imposes liability on government entities for that care.127 This prevents police from seizing an injured individual, obtaining medical care, and postponing arrest until after treatment is completed in an effort to avoid liability. 128 However, it is uncertain how this rule would apply to seized individuals who police decline to arrest entirely due to their injuries. 129 Other states should follow course but also take care to improve on the areas where Colorado and Florida fall short. There are, of course, inherent difficulties in a state-by-state solution for the incongruent definitions of custody. Ideally, the definition would be universal nationwide, but getting fifty state legislatures to adopt identical statutes is a tall order. The relative political inclinations of states could also make this difficult, inasmuch as adopting the proposed definition of custody may be seen as a “liberal,” or even “anti-police,” political move. However, it would likely enjoy near-universal support from the healthcare lobby because it would help ensure reimbursement for care and bring much-needed clarity to this area of law.

CONCLUSION The incongruent definitions of custody between federal constitutional and state statutory law have worked to confuse state courts regarding the right to healthcare for persons in state custody, with courts treating custody—a threshold constitutional question—as a statutory issue. Additionally, statutory definitions of custody requiring formal arrest often deprive hospitals of reimbursement for care that they do provide. The Supreme Court should clarify the right to medical care by adopting a definition of custody that corresponds 126. City of Fort Myers v. Hosp. Bd. of Dirs. of Lee Cty., 505 So. 2d 590, 591 (Fla. Dist. Ct. App. 1987) (“[The statute] requires the sheriff to furnish medical care to his prisoners. The fact that a prisoner is taken to the hospital on the way to the county detention facility does not shift this responsibility.”).

127. Id. 128. See, e.g., Macon-Bibb Cty. Hosp. Auth. v. Reece, 492 S.E.2d 292 (Ga. 1997) (police transport gunshot-wounded suspect to hospital but wait to formally arrest until hospital discharge).

129. See, e.g., Univ. of Kansas Hosp. Auth. v. Bd. Of Comm’rs of Cty. of Wabaunsee, 327 P.3d 430 (Kan. 2014) (police decline to formally arrest individual who broke his hips after shattering and jumping from the window of a county jail).

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with seizure under the Fourth Amendment. States should also pass legislation adopting the constitutional definition of custody for statutes governing hospital reimbursement for any care provided to those in custody.

THE QUANTIFICATION OF REMEDYING CHANGE: HOW THE PROLIFERATION OF AUTONOMOUS VEHICLES WILL TRANSFORM MICHIGAN’S INSURANCE REGIME RYAN M. MARDINI* ABSTRACT The law of the land, deployed via the United States Constitution, is the formal embodiment of regulations that both policymakers and judiciaries have long inscribed into judicial decisions and statutory tomes. As the world becomes progressively cultivated through the ever-growing technological sphere, the law is destined to acclimate to undertake the forthcoming changes. The world continually finds itself one step closer to entering the realm of science fiction. In consideration of looming changes, many technological innovations are threatening to stimulate a succession of paramount alterations to the backbone of the insurance law industry. Nearly all these novel technologies (i.e. telematics, blockchain, digital platforms, artificial intelligence, etc.) are created with an intent to enhance the state that mankind uses to communicate and interact with one another, as well as increasingly improve living and driving standards. Autonomous vehicles are an offspring of this technology and are paving the way for a better and safer future for transportation.

Insurance laws, as they currently stand, are state-based—as opposed to being federally regulated. States employ various liability theories, such as a traditional tort-based negligence standard of liability—a nofault standard, or product liability. This article examines said types of insurance laws but argues that looking down the road, the proliferation of autonomous vehicles might very well spell the end of auto insurance. The auto insurance industry would slowly be replaced by product liability claims. This article argues that Michigan’s NoFault Act and product liability statue will both require transformation to adapt to the inevitable rise of product liability claims.

By analyzing the theoretical and abstract structure of Michigan’s NoFault Act and product liability statute, this article arms the reader with an analytical foundation to scrutinize Michigan’s insurance laws. The article will show that the laws are not inherently flexible to account * Ryan M. Mardini is a Michigan licensed Corporate & Tax Attorney with a specific focus on mergers & acquisitions (M&A), banking, finance, and tax law. Mr. Mardini is also involved in FinTech applications and artificial intelligence.

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for the influx of liability implications that autonomous vehicles may bring, and, therefore, will need to be transformed considerably.

TABLE OF CONTENTS INTRODUCTION ................................................................................ 194 I.CURRENT STATISTICS OF VEHICLE SAFETY IN THE UNITED STATES .................................................................................. 201 II.THE CURRENT TECHNOLOGY OF DRIVERLESS CARS: DRIVING THROUGH LEVELS 0 TO 5 ......................................................... 204 III.ASSESSING LIABILITY ................................................................. 207 IV.AUTONOMOUS VEHICLES VS. MICHIGAN’S NO-FAULT ACT ....... 214 A. Overview of Michigan’s No-Fault Laws ......................... 215 B. Background of MCL §500.3101 ...................................... 216 C. First-Party Claims Pursuant to MCL 500.3105 (1) ........ 219 D. Third-Party Claims—The Negligence Standard ............. 226 V.REFORMATION OF MICHIGAN’S PRODUCT LIABILITY STATUTE ... 231 A. Overview of Michigan’s Product Liability Statute .......... 231 B. California’s Greenman Supreme Court Decision ........... 234 VI.The Doctrine of Res Ipsa Loquitur .................................. 238 VII.CONCLUSION ............................................................................. 240 INTRODUCTION “The reality about transportation is that it’s future-oriented. If we’re planning for what we have, we’re behind the curve.”

- Anthony Foxx 1 It is no longer a question of “if,” but rather, a question of “when” autonomous vehicles will occupy the streets of America. This novel technology was “nothing but a marvel far beyond our comprehension, much like if you were to show a jet engine to someone at the turn of the century.”2 However, the idea of a computer-based vehicle roaming around the streets of your neighborhood is not such a marvel anymore; 1. Kevin Robillard, Foxx Takes a Futuristic Turn at DOT, POLITICO (Sept. 7, 2014, 9:45 PM), https://www.politico.com/story/2014/09/anthony-foxx-departmentof-transportation-110656.

2. Ryan Mardini, Are Autonomous Vehicles Really Safer Than Humans?, Before the Bar Blog, A.B.A. FOR LAW STUDENTS (Apr. 4, 2018), https:// abaforlawstudents.com/2018/04/04/are-autonomous-vehicles-really-safer-thanhumans/.

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it started as a concept that has taken the world by storm. Under scores of technological progressions, the insurance industry has been an unvarying island in a sea of high-tech change. While most vehicles in today’s world utilize a handful of some categories of automated technology, fully autonomous vehicles3 will perhaps markedly reduce the number of accidents that occur, as well as enrich the driver’s experience.4 Michigan defines an automated motor vehicle as “a motor vehicle on which an automated driving system has been installed, either by a manufacturer of automated driving systems or an upfitter that enables the motor vehicle to be operated without any control or monitoring by a human operator.”5 While the human driver is alleviated of the task of driving, the fundamental purpose of autonomous vehicles serves to combat the occurrence of car accidents caused by reckless or negligent drivers. 6 But these vehicles—although equipped with state-of-the-art technological brains—will inevitably encounter mishaps and crashes.

In Michigan, an injured party may bring a claim against his own

3. See discussion infra Part II (detailing the difference between all levels of automation).

4. See generally Colin O’Donnell, With Autonomous Vehicles it’s not About the Journey, it’s About the Destination, TECH CRUNCH, (Dec. 27, 2017), https:// techcrunch.com/2017/12/27/with-autonomous-vehicles-its-not-about-the-journeyits-about-the-destination/. See also Jeffrey K. Gurney, Sue My Car Not Me: Products Liability and Accidents Involving Autonomous Vehicles, 13 U. ILL. J. L. TECH. & POL’Y 247, 251 (2013) [hereinafter Sue My Car Not Me].

5. MICH. COMP. LAWS ANN. § 257.2b(2) (West 2016) (“Automated motor vehicle does not include a motor vehicle enabled with 1 or more active safety systems or operator assistance systems, including, but not limited to, a system to provide electronic blind spot assistance, crash avoidance, emergency braking, parking assistance, adaptive cruise control, lane-keeping assistance, lane departure warning, or traffic jam and queuing assistance, unless 1 or more of these technologies alone or in combination with other systems enable the vehicle on which any active safety systems or operator assistance systems are installed to operate without any control or monitoring by an operator.”). See also MICH. COMP. LAWS ANN. § 257.2b(3) (West 2016) (“‘Automated technology’ means technology installed on a motor vehicle that has the capability to assist, make decisions for, or replace a human operator.”). This article will use the term “autonomous” interchangeably with the term “automated motor vehicle.”

6. See Sue My Car Not Me, supra note 4 at 250 (citing Sven A. Beiker, Legal Aspects of Autonomous Driving, 52 SANTA CLARA L. REV. 1145, 1149 (2012) (“Driver error is by far (95%) the most common factor implicated in vehicle accidents.”).

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insurance7 or the other negligent driver.8 If a plaintiff was injured by a vehicle’s defect, the injured party could bring a product liability lawsuit against the manufacturer of the vehicle. 9 But what happens when there is no human driver to sue? What about when there is a human driver, but that individual has no control over the operation of the vehicle itself?

Broadly, and to a certain degree, Michigan’s insurance system, comprised of both the State’s No-Fault Act (hereinafter referred to as the “Act”),10 as well as its product liability statute,11 will need to change to account for the proliferation of autonomous vehicles.

Michigan’s No-Fault Act, discussed in detail below, focuses on a broader approach than a tort-based system, insomuch as the Act provides compensation to an injured party irrespective of whether the victim can prove that the other party was at fault. 12 The Act retains some form of fault liability, insofar as it allows for an injured party to file a third-party, tort-based claim of liability (against the driver of the vehicle) if the victim’s injuries exceed a certain threshold.13 On that basis, the analysis as to the determination of liability under the Act becomes vastly similar to a tort-based negligence system, leading to 7. See discussion infra Section IV.C (showing a claim brought forth by an injured party pursuant to first-party claims, which is discussed in further detail in this section).

8. Contra infra Section IV.D (contrasting this claim brought forth by the injured party pursuant to third-party claims, which is discussed in further detail in this section).

9. MICH. COMP. LAWS ANN. § 600.2946 (West 1996).

10. MICH. COMP. LAWS ANN. § 500.3101 (West 2019).

11. MICH. COMP. LAWS ANN. § 600.2946.

12. See generally MICH. COMP. LAWS ANN. § 500.3105(1)–(2) (West 1973). See also James M. Anderson, Paul Heaton & Stephen J. Carroll, The U.S. Experience with No-Fault Automobile Insurance: A Retrospective, RAND INST. FOR CIV. JUST. at 11 (2010).

13. See MICH. COMP. LAWS ANN. § 500.3135(1)–(2)(a)(ii) (West 2019) (“A person remains subject to tort liability for noneconomic loss caused by his or her ownership, maintenance, or use of a motor vehicle only if the injured person has suffered death, serious impairment of body function, or permanent serious disfigurement.”). See also Kreiner v. Fischer, 683 N.W.2d 611, 616 (Mich. 2004), overruled by McCormick v. Carrier, 795 N.W.2d 517 (Mich. 2010) (“In exchange for the payment of these no-fault economic loss benefits [such as medical expenses, lost wages, replacement services, and attendant care services] from one’s own [auto] insurance company, the Legislature limited an injured person’s ability to sue a negligent operator or owner of a motor vehicle for bodily injuries. In particular, the Legislature significantly limited the injured person’s ability to sue a third party for noneconomic damages, e.g., pain and suffering.”)

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similar issues when assessing liability—subjecting the manufacturer of the vehicle to a host of various liability claims. 14 For a Plaintiff to bring forth a first-party claim against their own insurance company, the injury must be “accidental,” “bodily,” and should “arise[] out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle . . . .”15 A Plaintiff can bring forth a third-party negligence claim against either a human driver or the vehicle’s software manufacturer; the former can only be brought when the vehicle employs levels 0-3, while the latter will require a product liability claim16.

“Products liability is the main basis for manufacturer liability.”17 Statutorily, and on its surface, Michigan’s product liability law seems to generally embrace the idea of product liability that has been adopted by a host of other jurisdictions—that the manufacturer of a product should be held liable for distributing an inherently defective product to the consumers using it. Strictly speaking; however, the Michigan courts have never grappled with a strict product liability case that definitively outlined that Plaintiffs need not prove alternative designs, but only that there was a defect of some kind. By way of example, in the California Supreme Court case of Greenman v. Yuba Power Products, Inc.,18 California explicitly stated that “[a] manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.”19 14. See Mark A. Geistfeld, A Roadmap for Autonomous Vehicles: State Tort Liability, Automobile Insurance, and Federal Safety Regulation, 105 CAL. L. REV. 1611, 1613 (2018) (“[A] regulatory-compliant autonomous vehicle would subject the manufacturer to tort liability only for crashes caused by malfunctioning physical hardware (strict products liability); malfunctions of the operating system due to either programming error (same) or third-party hacking (strict liability again, with an important caveat); the manufacturer’s failure to adopt a reasonably safe design or to provide adequate warnings for ensuring safe deployment of the vehicle (an ordinary products liability claim); or the manufacturer’s failure to treat consumers and bystanders equally when designing the vehicle and its operating system (an ordinary negligence claim). A manufacturer would also be subject to tort liability for not complying with the federal regulations (negligence per se).”).

15. MICH. COMP. LAWS ANN. § 500.3105(1), construed in Rice v. Auto Club Ins. Ass’n, 651 N.W.2d 188, 192 (Mich. Ct. App. 2002).

16. See discussion infra Part III. 17. Sue My Car Not Me, supra note 4, at 257.

18. 377 P.2d 897 (Cal. 1963).

19. Id. at 900 (emphasis added).

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As it currently stands, Michigan has no case that fully embraces the theory of product liability as California and other jurisdictions do.

Instead, Michigan’s product liability statute, discussed in further detail below, outlines various elements that the Plaintiff must prove to successfully bring a claim. 20 Michigan’s current product liability law obliges the Plaintiff to bring forth evidence that establishes in part that the product was “not reasonably safe at the time” it “left the control of the manufacturer or seller” and that a “practical and technically feasible alternative production practice was available.” 21 This article argues that Michigan should revise its product liability statue and move towards a stricter theory of liability, where the Plaintiff no longer has the burden to prove those several elements, but rather only has to prove that they were injured during the course of operating a vehicle’s software produced by the product manufacturer and that the product was defective.22 This article takes a deeper dive into Michigan’s No-Fault-based insurance system and addresses two main theories of liability: no-fault (both first-party and third-party claims) and product liability. This article further argues that, while the proliferation of autonomous vehicles will not transform first-party claims under Michigan’s NoFault Act, tort-based third-party claims will decrease substantially, paving the way for an increase in product liability lawsuits.

In order to recognize and appreciate the change that Michigan’s insurance regime must undergo, it is helpful to think of it in terms of the following analogy: in a worker’s compensation claim, 23 an individual who gets injured on the job is paid workers’ compensation benefits by the employer or its insurance carrier, and in the event of a dispute, the employee resolves his claim through the administrative measures with few claims ending up in court. 24 In Michigan, a worker’s compensation claim pays certain benefits to the injured party 20. See MICH. COMP. LAWS ANN. § 600.2946.

21. MICH. COMP. LAWS ANN. § 600.2946(2).

22. See discussion infra Section V.A (discussing a more exhaustive analysis as to the comprehensive analysis, which is a high-level overview of what theory Michigan should adopt).

23. See generally MICH. COMP. LAWS ANN. § 418.381 (West 2011) (providing instructions for bringing a claim under the Worker’s Disability Compensation Act).

24. See BUREAU WORKERS’ DISABILITY COMP., MICH. DEP’T CONSUMER & INDUS. SERVS., AN OVERVIEW OF WORKERS’ COMPENSATION IN MICHIGAN 1 (2000) [hereinafter AN OVERVIEW OF WORKERS’ COMPENSATION IN MICHIGAN] (“Workers’ compensation is the system we use to provide wage replacement, medical, and rehabilitation benefits to men and women who are injured while at work.”).

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so long as the injured party can prove that they were, in fact, injured and that they were injured while working on the job. 25 As a result, the respective injury is assessed accordingly (i.e. whether it is permanent or temporary, full or partial) and the injured party receives a certain amount of monetary damages (i.e. wage loss benefits,26 specific loss benefits,27 reasonable and necessary medical care,28 vocational rehabilitation,29 and death benefits.30).31 This system is inherently characterized as a no-fault type system, insomuch as the injured party need not be burdened with the task of proving that their employer acted negligently or recklessly.32 This article argues that Michigan’s insurance system—via its nofault act and product liability statute—should change to adopt an insurance regime akin to the above-mentioned analogy. This article further argues that auto manufacturers and software providers should collectively agree to undertake the costs of automated vehicle-related accidents. Under a worker’s compensation type insurance regime, it is plausible to suggest that a percentage of the autonomous vehiclerelated risks that are allocated to the manufacturers should be “reallocated through liability insurance contracts to insurance companies, just as workers’ compensation risks are now shifted from employers to workers’ compensation insurers.”33 Since it is foretold that it is only a matter of time before autonomous vehicles take over the streets, Michigan will be in a much better position if it employs an insurance system that removes the plaintiff’s burden of proving in part that the manufacture of the software was “not reasonably safe” and that a “practical and 25. See id. at 1–2, 8.

26. MICH. COMP. LAWS ANN. § 418.301(7)–(9) (West 2011); MICH. COMP. LAWS ANN. § 418.351(2)–(3) (West 1982); MICH. COMP. LAWS ANN. § 418.361(3) (West 2011).

27. MICH. COMP. LAWS ANN. § 418.361(2)(a)–(f).

28. MICH. COMP. LAWS ANN. § 418.315 (West 2014).

29. MICH. COMP. LAWS ANN. § 418.319(1) (West 2011).

30. MICH. COMP. LAWS ANN. § 418.321 (West 1994); MICH. COMP. LAWS ANN. § 418.345 (West 1996); MICH. COMP. LAWS ANN. § 418.415 (West 1969).

31. See generally MICH. COMP. LAWS ANN. § 418.381.

32. See generally MICH. COMP. LAWS ANN. §§ 418.111–171 (providing coverage and liability information for Michigan’s Worker’s Disability Compensation Act of 1969).

33. Daniel A. Crane, Kyle D. Logue & Bryce C. Pilz, A Survey of Legal Issues Arising from the Deployment of Autonomous and Connected Vehicles, 23 MICH. TELECOMM. TECH. L. REV. 191, 259 (2017).

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technically feasible alternative production practice was available” when it left the manufacturer or seller. 34 This will allow Michigan to stay ahead of the game by the upsurge in product liability claims, and decrease in third-party tort claims under the act.

This article makes two contributions to pressing societal and legal concerns germane to the future inundation of autonomous vehicles within the U.S. markets—that are driven by large-scale car manufacturers such as Ford, Tesla, GM, and Audi.35 First, this article examines the strict interaction between the driverless car and Michigan’s no-fault insurance system by providing a more in-depth analysis as to whether Michigan’s No-Fault Act and product liability statute will need to change to account for the upsurge in autonomous vehicles. Second, this article argues that, since liability will move towards the manufacturer of the vehicle’s software, as opposed to the driver of the vehicle, two changes should occur: (1) while first-party claims under Michigan’s No-Fault Act will remain the same, thirdparty claims will need to change due to the absence of the human driver and the upsurge in product liability claims; and (2) Michigan’s product liability statute will need adopt a stricter product liability theory in order to allow for a less burdensome process for the plaintiff to successfully prevail on such a claim. 36 As a result, plaintiffs will be able to bring a first-party claim against their own insurance company, or a product liability claim against the manufacturer of the software, or a combination of both.

The first section of this article provides an overview of historical and current statistical data surrounding the United States’ car accident rates. The second section serves to educate the reader about the background of the current underlying technology of autonomous vehicles and their various levels of automation. The third section summarizes the frameworks of two main theories of liability: tort liability pursuant to Michigan’s No-Fault Act, and product liability.

The fourth and fifth sections of this article analyze Michigan’s No34. MICH. COMP. LAWS ANN. § 600.2946(2).

35. Danielle Muoio, Ranked: The 18 Companies Most Likely to Get Self-driving Cars on the Road First, BUS. INSIDER, (Sept. 27, 2017, 12:42 PM), http://www .businessinsider.com/the-companies-most-likely-to-get-driverless-cars-on-the-roadfirst-2017-4 (“The Detroit-based automaker aims to roll out a fleet of driverless vehicles in a ride-hailing or -sharing service in 2021. Ford is tripling the size of its autonomous test fleet to 100 cars this year, which are currently being tested in Arizona, Michigan, and California.”).

36. MICH. COMP. LAWS ANN. § 500.3101 (West 2017). See discussion infra part IV.

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Fault Act and product liability statute, respectively, and arm the reader with an analytical foundation to scrutinize Michigan’s insurance laws and conclude that there is a dire need for change. The sixth and final section of this paper provides an overview of the doctrine of Res Ipsa Loquitur and concludes that this doctrine will be the guiding principle for plaintiffs attempting to recover from manufacturers.

I.

CURRENT STATISTICS OF VEHICLE SAFETY IN THE UNITED STATES

Maintaining the safety and security of automobiles is of paramount concern due to the calamitous effect that car accidents have on the citizens of Michigan.37 Human error is the crucial factor that sits at the epicenter of the “reckless driving” phenomenon.38 In fact, “[s]ome ninety percent of motor vehicle crashes are caused at least in part by human error.”39 While the overall frequency of car accidents within the United States has been slowly plummeting over the past few decades, they remain a major public health concern throughout the country. 40 Studies have shown that the U.S.—compared to other high37. See St. of Mich., Mich. Dep’t of St. Police, 2017 Year End Traffic Crash Statistics (Mar. 26, 2018), https://www.michigan.gov/documents/msp/2017_YearEnd_for_Web_621451_7.pdf (reporting extensively on injuries, fatalities, and factors related to traffic crashes).

38. Sue My Car Not Me, supra note 4, at 250 (citing Sven A. Beiker, Legal Aspects of Autonomous Driving, 52 SANTA CLARA L. REV. 1145, 1149 (2012) (“Driver error is by far (95%) the most common factor implicated in vehicle accidents.”).

39. Bryant Walker Smith, Human Error As a Cause of Vehicle Crashes, STAN. L. SCH.: THE CTR. FOR INTERNET AND SOC’Y (Dec. 18, 2013, 3:15 PM), http://cyberlaw.stanford.edu/blog/2013/12/human-error-cause-vehicle-crashes (“NHTSA’s 2008 National Motor Vehicle Crash Causation Survey is probably the primary source for the common assertion by NHTSA officials that ‘[h]uman error is the critical reason for 93% of crashes’ (at least if ‘human error’ and ‘driver error’ are conflated). The 93% figure is absent from the report itself (probably intentionally) but calculable from the totals given on page 24.”)

40. See Patricia C. Dischinger, Gabriel E. Ryb, Joseph A. Kufera, & Shiu M. Ho, Declining Statewide Trends in Motor Vehicle Crashes and Injury-Related Hospital Admissions, 57 ANNALS OF ADVANCES IN AUTO. MED. 247, 247–48 (2013) (discussing national reports and comparing vehicle crash data for two five-year periods, 2001-2005 and 2006-2010, in Maryland) (“During the 10-year period, there were a total of 1,881,548 occupants involved in police-reported crashes and 4,057 fatalities. During the same period there were 46,807 admissions to hospitals due to crash-related injuries in Maryland, and 800 in- hospital fatalities. The number of police-reported crashes declined by nearly 35,000 and the number of crash-related

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income countries 41—is still struggling with mortalities due to automobile accidents.42 For example, the World Health Organization released a “fact sheet” that sheds light on this issue: “Approximately 1.35 million people die each year as a result of road traffic crashes. . . . Road traffic injuries are the leading cause of death for children and young adults aged 5-29 years.”43 This data suggests that, despite the fact that auto deaths have declined in the broad sense, they are still a major concern. The National Safety Council estimated that approximately 40,000 people died in car crashes in 2016, signaling a whopping 6% rise from 2015’s statistics.44 Part of this rapid spike in auto deaths is due to distracted driving. The National Highway Traffic Safety Administration stated that “[i]n 2016 alone, 3,450 people were killed, [and] 391,000 were injured in motor vehicle crashes involving distracted drivers in 2015.”45 In response to these growing concerns, the answer lies within the computer-based element of driving. Studies show that the widespread use of autonomous vehicles will drastically lessen the number of car fatalities dropped by nearly 40% from 2001 to 2010 (Figure 1). The total number of occupants aged 16 and older who were involved in crashes declined from 990,126 in 2001-2005 to 891,422 in 2006-2010 (-9.6%).”)

41. See Aria Hangyu Chen, U.S. has Highest Car Crash Death Rate, Despite Progress, CDC Says, CNN https://www.cnn.com/2016/07/07/health/us-highestcrash-death-rate/index.html (last updated July 7, 2016, 9:16 AM), (“Researchers analyzed data from 2000 to 2013 from the World Health Organization and the Organisation for Economic Co-operation and Development. They compared U.S. numbers with those of 19 countries, including Japan, Sweden and the United Kingdom. . . . The United States also performed badly in other measures. It ranks first in crash deaths per 100,000 people and per 10,000 registered vehicles. It’s the second-highest, after Canada, in the percentage of deaths involving alcohol (at 31%).

And the United States is the third-lowest, after Austria and Belgium, in national front seat belt use (at 87%) among the 20 countries.”).

42. CTRS. FOR DISEASE CONTROL AND PREVENTION & NAT’L CTR. FOR INJ. PREVENTION AND CONTROL, WISQARS INJURY MORTALITY REPORT: 2015 UNITED STATES, UNINTENTIONAL OVERALL MOTOR VEHICLE DEATHS AND RATES PER 100,000 (2015).

43. Road Traffic Crashes, WORLD HEALTH ORG. (Dec. 7 2018), http://www. who.int/mediacentre/factsheets/fs358/en/.

44. See Police Reports Don’t Capture Real Reasons Drivers Crash, NAT’L SAFETY COUNCIL, https://www.nsc.org/road-safety/safety-topics/distracteddriving/underreported (calling for better crash data collection on police reports in order to save more lives) (last visited Aug. 19, 2019).

45. U.S. Dep’t of Transp., Nat’l Highway Traffic Safety Admin., Distracted Driving, https://www.nhtsa.gov/risky-driving/distracted-driving (last visited Feb. 7, 2019).

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accident mortalities and injuries.46 The conventional American society is largely aware that the lack of reasonable care, social commotion, and the inability to control time-sensitive situations are all crucial factors germane to the result of vehicle accidents. Furthermore, the National Motor Vehicle Crash Causation Survey (“NMVCCS”) conducted a “car crash” study and concluded that, “The critical reason [for the weighted sample of 5,470 crashes investigated from 2005 to 2007] . . . was assigned to the driver in 94 percent (±2.2%) of the crashes.”47 These statistics exemplify the urgent need for a reduction in the vehicular accident rate. But how will the courts grapple with the liability of the increased use of autonomous vehicles?48 While the above-mentioned statistics fuel the argument that autonomous vehicles are desirable in order to bolster public safety— particularly since a paramount issue with car deaths is linked to human error—the vast majority of Americans are still wary of this new phenomenon.49 46. See Mike Ramsey, Self-Driving Cars Could Cut Down on Accidents, Study Says, WALL ST. J. (Mar. 5, 2015), https://www.wsj.com/articles/self-driving-carscould-cut-down-on-accidents-study-says-1425567905 (“Widespread embrace of self-driving vehicles could eliminate 90% of all auto accidents in the U.S., prevent up to $190 billion in damages and health-costs annually and save thousands of lives, according to a new report by consulting firm McKinsey & Co.”).

47. U.S. Dep’t of Transp., Nat’l Highway Traffic Safety Admin., Critical Reasons for Crashes Investigated in the National Motor Vehicle Crash Causation Survey (Feb. 2015) https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication /812115 (“In about 2 percent (±0.7%) of the crashes, the critical reason was assigned to a vehicle component’s failure or degradation, and in 2 percent (±1.3%) of crashes, it was attributed to the environment (slick roads, weather, etc.). Among an estimated 2,046,000 drivers who were assigned critical reasons, recognition errors accounted for about 41 percent (±2.1%), decision errors 33 percent (±3.7%), and performance errors 11 percent (±2.7%) of the crashes.”).

48. Cf. Sue My Car Not Me, supra note 4, at 255–57 (illustrating “autonomous cars and the interplay of tort liability . . . examin[ing] four specific scenarios: the Distracted Driver, the Diminished Capabilities Driver, the Disabled Driver, and the Attentive Driver.”).

49. Andrew J. Hawkins, Americans Still Deeply Skeptical About Driverless Cars: Poll, THE VERGE (Jan. 12, 2018, 2:37 PM), https://www.theverge .com/2018/1/12/16883510/self-driving-car-poll-congress-bill-safety (“Americans still don’t trust self-driving cars, and are nervous about the coming onslaught. Asked how concerned they’d be to share the road with a driverless car, 31 percent said they’d be ‘very concerned,’ while 33 percent said ‘somewhat concerned,’ according to the poll which was just released by Advocates for Highway and Auto Safety.”); But cf. Ashley Halsey III, Driverless Cars Promise far Greater Mobility for the Elderly and People with Disabilities, WASH. POST (Nov. 23, 2017),

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THE CURRENT TECHNOLOGY OF DRIVERLESS CARS: DRIVING THROUGH LEVELS 0 TO 5

“Automated or self-driving vehicles are about to change the way we travel and connect with one another.”

- Elaine Chao 50 Technological advancements are generating a continuum between the conventional human-dependent vehicles that are prevalent in the world today and the automated, computer-based vehicles that are entering the market. The concept of driverless vehicles is merely one of many mechanisms in response to the rapid succession of such technology. Only 10 years ago, the mere notion of a self-driving car was ridiculed and dismissed swiftly. Vehicles equipped with such innovative technology were only seen in Hollywood “blockbuster” movies. But as the industrial, high-tech world progresses and evolves, the idea that automated vehicles could one day take over the streets becomes more of a reality. In fact, nearly all of the world’s leading automobile manufacturers have been explicitly vocal about their current and future plans with respect to equipping their vehicles with an automated system.51 By way of example, Ford, General Motors (GM), BMW, Audi, Tesla, and Volvo (among many more) have all publicly commented on their fleet of automated vehicles, some with anticipation to roll them out into the markets as early as 2021.52 But what exactly is an autonomous vehicle? Due to the widespread misperception of what a driverless vehicle encompasses, it is imperative to lay out the foundation of all levels of automation that have the potential to be implemented in a vehicle. In 2016, the National Highway Traffic and Safety Administration (NHTSA) provided an updated policy, formally accepting and delineating the 5 levels of autonomy prescribed in the Society of Automotive Engineers (SAE) https://www.washingtonpost.com/local/trafficandcommuting/driverless-carspromise-far-greater-mobility-for-the-elderly-and-people-with-disabilities /2017/11/23/6994469c-c4a3-11e7-84bc-5e285c7f4512_story.html?utm_term= .0b91bcf3e4cb (demonstrating how autonomous vehicles will benefit citizens with various disabilities, giving them freedom to run personal errands or transport themselves from place to place without additional help and citing that “[m]ore than 60 million people are hearing or vision impaired, according to the Centers for Disease Control and Prevention.”).

50. Elaine L. Chao, U.S. Sec’y of Transp., Remarks at the Detroit Auto Show (Jan. 14, 2018).

51. Muoio, supra note 35.

52. See id.

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International’s J3016 document labeled “Taxonomy and Definitions for Terms Related to On-Road Motor Vehicle Automated Driving Systems.”53 Levels 0-5 all employ diverse forms of technology that enable them to provide the driver with a long line of driving aids and crash-avoidance systems.

For the purposes of this article, levels 0, 1, and 2 will be referred to as the “lower levels,” while levels 3, 4, and 5 will be referred to as the “higher levels.” Level 0 employs virtually no automation whatsoever. At this level, human drivers are in full control over the entire vehicle and its functions, with minimal driving aids but no automation of any kind. 54 At level 1, the driver has some—but very minimal—automated assistance, allowing the driver to retain full control over the vehicle.

While most functions at this level are still controlled by the human driver, the software system can control one function at a time— adaptive cruise control, automatic braking, etc.55 Level 2 employs partial automation where, while remarkably similar to level 1, the automated system is capable of performing more than one of the driving tasks mentioned above. 56 Level 3 autonomous vehicles employ what is known as conditional automation. These are the vehicles that have been subject to the most publicity and criticism because the jump provides for such a big change in automation from level 2 to 3. There is debate over whether the automation utilized in Tesla’s famous Model S and Model X vehicles is level 2 or level 3. Practically, vehicles that possess level 3 automation are considered “automated driving systems.”57 The 53. Hope Reese, Updated: Autonomous Driving Levels 0 to 5: Understanding the Differences, TECH REPUBLIC (Jan. 20, 2016, 10:47 AM), https://www. techrepublic.com/article/autonomous-driving-levels-0-to-5-understanding-thedifferences/ (last updated Nov. 1, 2016) [hereinafter Understanding the differences].

See also SAE INT’L, J3016, SURFACE VEHICLE INFORMATION REPORT: TAXONOMY AND DEFINITIONS FOR TERMS RELATED TO ON-ROAD MOTOR VEHICLE AUTOMATED DRIVING SYSTEMS (2014).

54. See Bryant Walker Smith, SAE Levels of Driving Automation, STAN. L. SCH.: THE CTR. FOR INTERNET AND SOC’Y, http://cyberlaw.stanford.edu/blog/2013/12/saelevels-driving-automation (last visited Aug. 29, 2019) [hereinafter Levels of Driving Automation].

55. See id. (stating expectation at level 1 that the driver retains full control and performs all “dynamic driving” tasks necessary).

56. Id. 57. Id. See also Matt Burgess, When Does a Car Become Truly Autonomous?

Levels of Self-driving Technology Explained, WIRED (Apr. 21, 2017), http://

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uniqueness of the level 3 system is that it is able to monitor its surrounding environment while operating the vehicle. 58 While the presence of a human driver is still necessary at this level (in order to intervene whenever needed), the vehicle’s automated system is able to take control of the safety-critical functions, subject to limitations of certain traffic or environmental conditions.59 This driver’s readiness to intervene is paramount, as it is what distinguishes the level 3 system from the rest of the higher levels of automation. As a result, the driver is not required to monitor the situation or the driving environment, because level 3 automation can perform this task on its own. The only responsibility the driver possesses is to intervene when necessary; it is necessary for a driver to intervene when the vehicle’s software can no longer operate the vehicle on its own. Therefore, when an unforeseen event occurs, the software provides both audio and visual warnings, requesting the driver to take control and operate the vehicle.

Levels 4 and 5 are widely dubbed as “fully autonomous.”60 Systems that are armed with these levels of automation can drive the vehicle without the assistance or presence of a human driver. Level 4 automation is labeled as “high automation,” and are presently thought of as vehicles of the near future. 61 They are “designed to perform all safety-critical driving functions and monitor roadway conditions for an entire trip.”62 At the highest level, level 5, the vehicle’s system is deemed to be at full automation. This level refers to a fullyautonomous system where the vehicle performs equal to that of a human driver, in every driving scenario. 63 The fundamental factor segregating the latter two levels is the concept of the operational design domain (“ODD”).64 By and large, ODD is a concept that limits the level 4 automated system to a specific, predetermined set of driving scenarios.65 As such, level 5 systems can, www.wired.co.uk/article/autonomous-car-levels-sae-ranking (explaining that some consider Tesla’s Autopilot system to be level 2).

58. See Burgess, supra note 57. See also Understanding the differences, supra note 53.

59. Understanding the differences, supra note 53.

60. Id. 61. Id. 62. Id. 63. See Levels of Driving Automation, supra note 54.

64. Id. 65. See Automated Driving Systems 2.0: A Vision for Safety, NAT’L HIGHWAY SAFETY ADMIN., U.S. DEP’T OF TRANSP. 6 (2017), https://www.nhtsa.gov/sites/ nhtsa.dot.gov/files/documents/13069a-ads2.0_090617_v9a_tag.pdf.

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theoretically, handle any driving environment they approach, while level 4 vehicles are limited with respect to a variety of factors, such as roadway types, geographical area, speed range, environmental conditions, and other domain constraints. 66 It is evident that the rapid proliferation of autonomous vehicles will revolutionize the automotive industry. But the industry itself still encounters sundry restrictions in liability, societal acceptance, and adverse responses to catastrophic car-accident stories. While these issues are gaining staggeringly broad currency around the world, this article limits the analysis set forth below only to the issue of liability – especially within the realm of insurance law.

III.

ASSESSING LIABILITY

The philosophical approach to autonomous vehicles is simple: they are constructed with the purpose of curtailing both the volume and the severity of the current state of car crashes.67 The question of liability seems to be a topic of contention, within both the societal realm and the scholarly realm.68 A fundamental element regarding the practicability of driverless vehicles lies within the realm of assessing the frequency and the impact that such vehicles could potentially have during a crash. Since it is foretold that autonomous vehicles will possess the long sought-after dexterity to mitigate the occurrence of 66. See generally id.

67. JAMES M. ANDERSON ET AL., AUTONOMOUS VEHICLE TECHNOLOGY: A GUIDE FOR POLICYMAKERS 9–16 (2016) [hereinafter A Guide for Policymakers].

68. See generally Bryant Walker Smith, Automated Driving and Product Liability, 2017 MICH. ST. L. REV. 1, 2 (2017) [hereinafter Automated Driving and Product Liability]; Philip Koopman & Michael Wagner, Challenges in Autonomous Vehicle Testing and Validation, 4 SAE INT’L J. TRANSP. SAFETY 15, 15–16 (2016); Sophia H. Duffy & Jamie Patrick Hopkins, Sit, Stay, Drive: The Future of Autonomous Car Liability, 16 SMU SCI. & TECH. L. REV. 453 (2013); Kevin Funkhouser, Paving the Road Ahead: Autonomous Vehicles, Products Liability, and the Need for a New Approach, 2013 UTAH L. REV. 437 (2013); Andrew P. Garza, “Look Ma, No Hands!”: Wrinkles and Wrecks in the Age of Autonomous Vehicles, 46 NEW ENG. L. REV. 581 (2012); Dorothy J. Glancy, Robert W. Peterson & Kyle F. Graham, A Look at the Legal Environment for Driverless Vehicles, 69 LEGAL RES. DIGEST 1, 3 (2016); Dana M. Mele, The Quasi-Autonomous Car as an Assistive Device for Blind Drivers: Overcoming Liability and Regulatory Barriers, 28 SYRACUSE SCI. & TECH. L. REV. 26 (2013); Andrew R. Swanson, Comment, “Somebody Grab the Wheel!”: State Autonomous Vehicle Legislation and the Road to a National Regime, 97 MARQ. L. REV. 1085 (2014); David C. Vladeck, Machines Without Principles: Liability Rules and Artificial Intelligence, 89 WASH. L. REV. 117 (2014).

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car crashes,69 the theory of legal liability remains a concern when courts venture to assess who was at fault. Thus, both the “theory” of liability and determining liability are doctrinal matters that influence the analysis of tort liability for personal injury. 70 It is important to note that liability will largely depend on what level of automation the vehicle is programmed to possess. At the lower levels, the analysis as to who a potential plaintiff can recover from will be virtually similar as it stands today. This is because the human driver is expected to monitor and retain control over both the vehicle and the driving environment.71 Thus, first-party claims pursuant to the Act will remain the same as they do today, insomuch as the Plaintiff can still recover benefits from their own insurance company, even if they are involved in an autonomous vehicle crash. The concern, however, lies within the question of who to sue when the human driver has absolutely no control of the vehicle whatsoever. 72 At the higher levels, the automated driving system monitors the driving environment and is 69. Carrie Schroll, Splitting the Bill: Creating a National Car Insurance Fund to Pay for Accidents In Autonomous Vehicles, 109 NW. U. L. REV. 803, 804-05 (2015) [hereinafter Creating a National Car Insurance Fund to Pay for Accidents In Autonomous Vehicles] (“In an effort to reduce accidents, automobile companies are inventing new technologies that increasingly automate driving. These technologies include collision-mitigating braking systems and lane-keeping systems, which temporarily take control away from humans to rectify human errors and prevent accidents. Some companies are beginning to create fully autonomous vehicles (AVs). These cars are completely automated and rely very minimally on humans for their operation. Google is at the forefront of creating AVs, but many large car companies are also planning to incorporate AVs into their fleets within the next decade. Google touts these AVs as having the potential to almost entirely eliminate human error, reducing automobile accidents by 90%.”) (citation omitted).

70. Gary E. Marchant & Rachel A. Lindor, The Coming Collision Between Autonomous Vehicles and the Liability System, 52 SANTA C LARA L. REV. 1321, 1321–23 (2012) [hereinafter Collision Between Autonomous Vehicles and the Liability System].

71. See id. at 1326–27. (The reason that the analysis will be the same is largely due to the fact that the human driver can still be held liable and deemed negligent in his operation of the vehicle or, at the very least, in his carelessness of watching the environment.).

72. See generally Robert J. Szczerba, Rise of the Machines: Understanding the Autonomy Levels of Self-Driving Cars, FORBES (July 19, 2018, 11:43 AM), https://www.forbes.com/sites/robertszczerba/2018/07/19/rise-of-the-machinesunderstanding-the-autonomy-levels-of-self-driving-cars/#380a61069593.

The analysis henceforth will be pertaining to autonomous vehicles that are at levels 4 and 5, taking the human element of driving away complete and resorting to a software system that has full control over the vehicle itself.

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expected to possess full control over the vehicle when in its driving functions.73 It is important to note that level 3 vehicles are being gradually introduced into today’s market.74 The uniqueness of these level 3 vehicles is two-fold: (1) they hold the full potential to drive themselves without the assistance of a human driver; and (2) simultaneously allow the human driver to take full control should anything happen. 75 The assessment and evaluation of level 3 vehicles are crucial because they are the first level of cars that are threatening to substantially disconnect humans from the driving process. Level 4 and 5 vehicles are coming – but at this moment in time, the level 3 vehicles are being scrutinized and held to a very high standard.

By and large, a plaintiff’s cause of action for personal injury may be based on one or more of the following tort theories of liability: nofault, traditional negligence, or strict liability. 76 In fact, “the overarching and unifying normative principle of American tort law is fault, consisting of intentional wrongs and negligence.”77 While the latter two theories are among the most common, they are not analogous. A plaintiff’s negligence claim is centered on the defendant’s actions (or lack thereof) quantified by the standard of reasonable care.78 Contrastingly, strict liability disregards the concept of fault altogether and applies to the defendant who caused the harm or injury.79 Because this article dives deep into the waters of what 73. See id.

74. See Andrew J. Hawkins, The New Audi A8 Luxury Sedan is a High-tech Beast that can Drive Itself, THE VERGE, (July 11, 2017, 11:41 AM), https://www.theverge. com/2017/7/11/15952510/audi-a8-level-3-autonomous-driving-self-parking (“Audi is the latest carmaker to double down on self-driving software in the race to bring a fully autonomous vehicle to market.”).

75. See Understanding the differences, supra note 53 (quoting Ford autonomous vehicles expert, Jim McBride, stating that the fact that the driver in level 3 is still present and will intervene if necessary, but is not required to monitor the environment is “the biggest demarcation between levels 3 and 4”).

76. Stephen D. Sugarman, A Century of Change in Personal Injury Law, 88 CALIF. L. REV. 2403, 2406–07 (2000).

77. James A. Henderson, Jr., Why Negligence Dominates Tort, 50 UCLA L. REV. 377, 379 (2002) (citing Restatement (Third) of Torts: Liability for Physical Harm (Basic Principles) (Tentative Draft 2001)).

78. See Collision Between Autonomous Vehicles and the Liability System, supra note 70, at 1323.

79. Id. (“Courts, however, have retreated from applying strict liability in its absolute form, instead tempering it with some sort of reasonableness consideration in most applications. To that extent, the standard for strict liability begins to converge

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Michigan’s insurance regime entails, the analysis and arguments set forth below are limited to the potential liability within the jurisdiction of Michigan (i.e., no-fault and product liability).

Before performing a nuanced analysis as to what Michigan’s NoFault statute is comprised of, it is important to address one of the leading topics of contention amongst the midst of a more automated America: insurance rates. The present state of affairs dictates that insurance rates are calculated based on a multitude of various factors that are collectively and collaterally pulled together to give an individual their premium rates.80 Against that basis, it is primarily the specific attributes of each driver that formulates the premium they receive. Common factors used to calculate premiums include: driving record history, claim history, number of accidents, license suspension or revocation, and any moving violations. There are other obscured characteristics that insurance companies consider, such as age, gender, marital status, and occupation (students).81 While this article does not dive deep into why these attributes are employed when determining the insurance premium rates, the introduction of autonomous vehicles has the potential to markedly transform that model. In effect, if the preponderance of the vehicles on the road are driver-less, these attributes mentioned above would not matter because it is the automated system that is operating the vehicle, and not the human. 82 Insurance companies will then shift their focus away from a human driver’s characteristics and towards the manufactured automated software. 83 In succession, this will inevitably

with the standard for negligence, and thus the two are considered together in the discussion of defects and liability. . .”).

80. See Jessica Bosari, What Really Goes Into Determining Your Insurance Rates?, FORBES (Jan. 8, 2013), https://www.forbes.com/sites/moneywisewomen /2013/01/08/what-really-goes-into-determining-your-insurance-rates/. See also, How Auto Insurance Companies Calculate Risk, DMV.ORG, https://www.dmv. org/insurance/how-auto-insurance-companies-calculate-risk.php (last visited Feb. 7, 2019).

81. Id. 82. John Cusano & Michael Costonis, Driverless Cars Will Change Auto Insurance: Here’s How Insurers Can Adapt, HARV. BUS. REV. (Dec. 5, 2017), https://hbr.org/2017/12/driverless-cars-will-change-auto-insurance-heres-howinsurers-can-adapt.

83. Id.

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give rise to a higher percentage of manufacturer/product liability claims and suggestively reduce the claims of personal liability. 84 As mentioned above, Michigan has never fully adopted a product liability theory, as a multitude of other states have, such as California.85 But there is a good reason for that: Detroit is widely dubbed as “Motown” or “Motor City.” Detroit has taken on these nicknames because of its deep-rooted historical involvement with the American automotive production industry. Michigan is known as the home of cars and car manufacturers. As a result, Michigan never embraced a strict liability theory for products because it is a vehicle manufacturing state. Therefore, as society prepares itself to transition from the driver-dependent vehicles to driverless vehicles, this article argues that Michigan will have to reconsider its decision to repudiate the no-fault automotive system.

There are two types of liability that this article examines: (1) tort liability under Michigan’s No-Fault Act for both drivers and insurers, and (2) product liability against the vehicle’s software manufacturer.

Both of these types are paramount. They need to be discussed in detail to arm the reader with an adequate analytical foundation to critique Michigan’s No-Fault Act and product liability statute against the hurdles that accompany the insurance of a driverless car.

“The threat of massive product liability litigation involving AVs is widely perceived as one of the chief obstacles to AV development and sales, if not the number one threat.”86 Although the future liability of such autonomous vehicles remains unpredictable, there is a prevalent 84. How Autonomous Vehicles Will Grow Auto Insurance Before Shrinking It, INS. J. (May 19, 2017), https://www.insurancejournal.com/news/national/2017/05/ 19/451621.htm.

85. Greenman v. Yuba Power Prods. Inc., 377 P.2d 897, 900 (Cal.1963).

86. Stephen S. Wu, Product Liability Issues in the U.S. and Associated Risk Management, AMERICAN BAR ASSOCIATION (2005) at 576, https://www.americanbar.org/content/dam/aba/administrative/sciencetechnology/20 16/autonomousdrivingproductliabilitychapter.authcheckdam.pdf [hereinafter Product Liability Issues in the U.S.] (“Crippling suits could force manufacturers to exit the market and may deter some manufacturers from entering the market because of a belief that the sales are not worth the risk. If these dire predictions come to pass, the U.S. and other parts of the world experiencing a flood of lawsuits may lose the use of a technology that would save many times more lives than it would endanger.

If, however, the industry finds effective ways to manage the risk of product liability, it can bring to market a lifesaving technology while maintaining practices to minimize accidents and resulting liability, as well as the profitability needed to offer AVs in the market over time.”)

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rationale that forecasts the expansion of manufacturer liability and corrosion in personal liability.

The [Autonomous Vehicle] technology is potentially doomed if there are a significant number of . . . cases, because the liability burden on the manufacturer may be prohibitive of further development. Thus, even though an autonomous vehicle may be safer overall than a conventional vehicle, it will shift the responsibility for accidents, and hence liability, from drivers to manufacturers. The shift will push the manufacturer away from the socially optimal outcome—to develop the autonomous vehicle.87 The structure of the doctrine of negligence—evaluating the duty of reasonable care owed by the human driver—is too attenuated to assess claims encompassing the pioneering technology of a driverless car. 88 This is brought to fruition by the fact that autonomous vehicles serve to supersede the driver’s less-than-perfect human judgment and actions, leading to a less likely chance of collision. 89 Further, a plaintiff is far more likely to sue the manufacturer, claiming a manufacturing defect of the vehicle’s software, than to claim the human driver made an error in judgment.90 As a result, this article argues that cases that would have only been brought against the human driver will now be replaced by product liability claims brought against the manufacturers of the vehicle’s software.

The question of liability about Michigan’s No-Fault liability system remains unclear. Is the human driver liable? Or is the software liable? Michigan employs an owner’s liability statute, but that does not 87. A Guide for Policymakers, supra note 67, at 111 (quoting Collision Between Autonomous Vehicles and the Liability System, supra note 70, at 1334).

88. See generally Steven Wittenberg, Automated Vehicles: Strict Products Liability, Negligence Liability and Proliferation, ILL. BUS. L. J. (2016) (concluding that strict liability would be more efficient than negligence because negligence requires a higher showing of proof) [hereinafter Strict Products Liability, Negligence Liability and Proliferation].

89. Legal Issues Raised by the Driverless Vehicle Revolution - Part 2, QUINN EMANUEL TRIAL LAW.: BUS. LITIG. REP., https://www.quinnemanuel.com/thefirm/news-events/article-january-2016-legal-issues-raised-by-the-driverlessvehicle-revolution-part-2/ (last visited Feb. 9, 2019).

90. See Automated Driving and Product Liability, supra note 68, at 2 (“Because driving decisions will shift from human drivers to automated systems (and their designers), a larger share of the crashes that nonetheless occur will implicate product liability law. This means that, in comparison to the automotive industry today, the automated driving industry will likely bear a bigger slice of a smaller pie of total crash costs.”)

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help distinguish who would be liable: the driver—or in this case, the operator—or the owner? Below are a few scenarios that help shed light on this novel issue.

Some legal scholars suggest assessing responsibility using products liability principles and focusing on the driver’s level of reliance on the autonomous vehicle. In purely autonomous mode, probably the manufacturer is liable based on manufacturing defect or design defect. If autonomous mode is disabled, probably the driver is liable due to negligence. When switching in and out of autonomous mode, probably the driver is liable, except manufacturer’s liability may be extended even in cases of driver error due to manufacturer’s failure to warn, or warning defect.91 As evidenced by the above, complications regarding the assessment of liability still arise, although limited, within the higher levels of automated vehicles. 92 The main impetus behind a product liability claim is to bring suit against the manufacturer of the vehicle’s automated system. If an autonomous vehicle crashes, a plaintiff can sue the manufacturer of the vehicle’s software for “manufacturing defects, design defects, and failures to warn.”93 As a result, this article

91. Alan D. Eastman, Is No-Fault Auto Insurance the Answer to Liability Concerns of Autonomous Vehicles?, 5 AM. J OF BUS. AND MGMT. 85, 86 (2016) (“Another complication stems from the failure to warn or warning defect, whereby manufacturers have a duty to provide instructions on the safe use of their product and to warn consumers of hidden dangers. Situations that seem to be driver negligence could be turned into manufacturer’s liability if it can be shown that manufacturer training programs were inadequate for the general driving population.”) [hereinafter Is No-Fault Auto Insurance the Answer to Liability Concerns of Autonomous Vehicles?].

92. Id. (“The occupants of the vehicle should not be liable for an accident if they have no control of the vehicle’s operation. However, what if passenger delays getting in or out of the vehicle contribute to an accident occurring? What responsibility does the owner of the vehicle have for proper maintenance of the autonomous systems?

There will likely not be a single manufacturer to hold responsible either. ‘The list of potential parties includes the vehicle manufacturer, the manufacturer of a component used in the autonomous system, the software engineer who programmed the code for the autonomous operation of the vehicle, and the road designer in the case of an intelligent road system that helps control the vehicle.’”) (quoting Collision Between Autonomous Vehicles and the Liability System, supra note 70, at 1328) ; See Collision Between Autonomous Vehicles and the Liability System, supra note 70, at 1328.

93. See Sue My Car Not Me, supra note 4, at 257 (citing Watson v. Ford Motor Co., 699 S.E.2d 169, 174 (S.C. 2010)).

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argues that Michigan should adopt a strict product liability regime that closely resembles that of California, as discussed below.

Before autonomous vehicles were deployed, car accidents were primarily attributed to one or more of the following three reasons: “(i) the driver; (ii) a vehicle malfunction or defect; and/or (iii) unavoidable natural conditions (weather, road conditions, animal on the road, etc [sic]).”94 For level 4 and 5 autonomous vehicles, liability largely rests on the vehicle’s operating system. But the problem lies in the middle with vehicles that employ levels 2 and 3. At level 3, the human driver retains some level of responsibility depending on whether the driver should take control of the vehicle’s operation.95 If the system warns that the driver should take control, and the driver does not—or does so negligently—the burden then shifts from the vehicle’s software back to the human driver.96 While a separate analysis can be performed with respect to the various implications of removing the human driver from the equation, this article will focus on the apportioning liability under the current state of Michigan’s No-Fault Act and product liability statute.

IV.

AUTONOMOUS VEHICLES VS. MICHIGAN’S NO-FAULT ACT

Two main factors must be present within a traditional no-fault insurance system: “(1) payment of first-party no-fault benefits (called personal injury protection or PIP), and (2) restrictions on the right to sue, or limited tort options.”97 Proponents of no-fault based systems delineate that it eliminates the troublesome determination of who was at fault, while simultaneously ensuring that compensation would be 94. See Collision Between Autonomous Vehicles and the Liability System, supra note 70, at 1326.

95. Id. 96. Id. at 1326–27 (“For example, if the instruction manual instructed the owner not to use the autonomous vehicle in certain weather conditions, or on specific types of traffic patterns, but the owner does so anyway, the driver may be held at least partially at fault. Similarly, if the driver failed to utilize, or was negligent in utilizing an available over-ride mechanism to assume control of the vehicle, he or she may be allocated some or all of the blame for a resulting accident. In most cases though, especially those involving a dedicated and totally autonomous vehicle, the driver is unlikely to be a factor in the liability determination.”).

97. See Is No-Fault Auto Insurance the Answer to Liability Concerns of Autonomous Vehicles, supra note 92, at 86, (“After an initial burst of state adoptions of no-fault laws in the early 1970’s, use of no-fault auto insurance has declined.

Reasons for the failure of no-fault auto insurance plans to proliferate include opposition from trial lawyers and the failure of no-fault plans to lower premiums.”).

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available to the victim regardless of the legal fault of a tortfeasor. 98 Within the realm of automobile insurance, the publicly recognized phrase “No‐Fault” largely applies to “person injured in an automobile accident has a right to recover economic losses such as medical expenses and lost wages, regardless of whether he or she was at fault in causing the accident.”99 A.

Overview of Michigan’s No-Fault Laws

Michigan’s No-Fault laws jettison the archaic need to demonstrate “fault” in an attempt to recover damages for injuries sustained from an automobile accident.100 The conventional American ideology—about fault-based liability—rests on the following tort-based premise: if an individual harms you, you can sue them for the injuries you sustain, as long as their behavior fell beneath a standard of care imposed by law.101 In its essence, a No-Fault based jurisdiction seeks to significantly lessen (or even abolish) the volume of capital that is delegated to paying “administrative” or legal fees within jurisdictions venturing to determine fault. 102 Rather, the result is “more equitable compensation for economic losses paid” within a No-Fault jurisdiction, as the cash can alternatively be used to compensate automobile accident victims for actual damages incurred.103 Unlike the traditional fault-based system, the core philosophy behind the NoFault system guarantees that any injured party—irrespective of the percentage of fault (if any) they were allocated—are entitled to some 98. See generally Michigan’s Auto No-Fault System, MICH. HEALTH & HOSP. ASS’N, https://www.mha.org/Issues-Advocacy/Auto-No-Fault-Insurance (last visited Feb. 14, 2019).

99. Erin Hysell, Mad Science: How The Michigan Supreme Court Unreasonably Eliminated Coverage of Experimental Procedures Under the State’s No‐Fault Act, 47 NEW ENG. L. REV. 243, 245–46 (2012) (citing ROBERT H. JOOST, AUTOMOBILE INSURANCE AND NO‐FAULT LAW § 1:1 (2d ed. 2002)).

100. See Matthew Blunt, Highway to a Headache: Is Tort-Based Automotive Insurance on a Collision Course with Autonomous Vehicles?, 53 WILLAMETTE L. REV. 107, 128 (2017) [hereinafter Highway to a Headache] (citing David Perlow, Its Time For a Tune Up: Torquing Michigan’s “Faulty” Automobile Insurance System, 24 T.M. COOLEY L. REV. 281, 283 (2007) [hereinafter Torquing Michigan’s Faulty Insurance].

101. See Collision Between Autonomous Vehicles and the Liability System, supra note 70, at 1323.

102. See Is No-Fault Auto Insurance the Answer to Liability Concerns of Autonomous Vehicles, supra note 92, at 86.

103. Id.

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form of compensation, and not just the plaintiff (or respective winner) of the lawsuit.104 Currently, the majority of Michigan’s auto-related lawsuits are largely comprised of third-party claims,105 whereby the injured party brings a claim against the other negligent driver, as opposed to their own insurance company.106 If you take the human driver out of the equation, third-party negligence claims could be significantly reduced, paving the way for an increase in product liability cases against the vehicle’s software manufacturer. Jurisdictions that implement a tortbased insurance system—where an injured party can sue the tortfeasor himself—will encounter a host of issues due to the absence of a human driver.107 Under traditional negligence principles, “a person who is wrongfully injured in a motor vehicle accident would be entitled to recover from a negligent driver . . .”108 Any accident that occurs will lead to a substantial increase in product liability claims, mainly because the vehicle’s software must have been defective in some way.

B.

Background of MCL §500.3101

Historically, Michigan was not always dubbed the “No-Fault” state. Rather, Michigan previously deployed the traditional negligence principles that are set forth by the majority of states today.109 However, in response to the significant problems that surfaced under that system,110 the Michigan Legislature enacted the No-Fault Act in 104. See Torquing Michigan’s Faulty Insurance, supra note 101, at 283 (citing George T. Sinas & Wayne J. Miller, Motor Vehicle No-Fault Law in Michigan 1-1 (2005)).

105. GARY L. WICKERT, AUTOMOBILE INSURANCE SUBROGATION IN ALL 50 STATES (3rd ed. 2012).

106. First- and third-party claims are outlined in much more detail below. See discussion infra Sections IV.C, IV. D. 107. See generally TODD LITMAN, VICTORIA TRANSPORT POLICY INSTITUTE, Autonomous Vehicle Implementation Predictions: Implications for Transport Planning, March 18, 2019 (discussing the progress on the path to replace human driving) [hereinafter Implications for Transport Planning]; See also Understanding the differences, supra note 53.

108. ROBERT E. LOGEMAN, TORTS: MICHIGAN LAW AND PRACTICE §4.1, at 172, (Linda Miller Atkinson et al. eds., 2018) [hereinafter Torts: Michigan Law and Practice].

109. Id. 110. Id. (referencing the problems that arose under the traditional negligencebased tort system that Michigan had previously adopted “including undercompensated serious injuries, overcompensated minor injuries, discrimination

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1973—MCL 500.3101 et seq. 111 With this resurgence in accountability, came a modification that armed the injured party with some kind of compensation for economic losses, regardless of fault.112 By and large, traditional no-fault insurance systems are divided into three distinct classifications: pure, 113 modified,114 and add-on.115 Michigan utilizes a modified no-fault insurance system, whereby an individual driver—who must purchase no-fault insurance116— is entitled to receive personal injury protection for “accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle.”117 The impetus behind Michigan’s No-Fault Insurance system is three-fold: “(1) to increase the benefits paid to injured persons, (2) to ensure prompt payment of benefits, and against the poor and the uneducated, overburdened courts, and long payment delays.”).

111. Id. (citing Shavers v Att’y Gen., 267 N.W.2d 72 (Mich. 1978), cert. denied, 442 U.S. 934 (1979)).

112. Id. at 172–73 (“The No-Fault Act substantially altered the accountability of the negligent driver in a motor vehicle negligence lawsuit. The act mandates that the designated no-fault insurer (in most instances, the injured party’s own insurer or an insurer of a vehicle in the household) pay benefits for certain economic losses, such as medical bills and some wage losses and other expenses, regardless of fault. MCL 500.3107-.3108. In addition, the No-Fault Act limits the liability of the negligent driver by providing immunity from suit in some instances by limiting the damages available. MCL 500.3235”).

113. See Highway to a Headache, supra note 101, at 128 (citing Torquing Michigan’s Faulty Insurance, supra note 101, at 283) (explaining that no state has enacted a pure no-fault liability system and that “‘[p]ure’ no-fault insurance jurisdictions completely bar recovery in tort for injuries sustained in a car accident.”).

114. Id. at 129 (citing MICH. COMP. LAWS ANN. § 500 (2015)) (“[The] modified no-fault insurance. . . permits policyholders to recover in tort for injuries that exceed a pre-determined statutory threshold, or if the personal injury benefits paid to the insured are insufficient to cover the victim’s economic damages.”). See also Torquing Michigan’s Faulty Insurance, supra note 101, at 286 (“Michigan is an example of a state that used the pure no-fault model as guidance when the legislator’s enacted Michigan’s own, unique version of no-fault automobile insurance (No-Fault Act).”).

115. Highway to a Headache, supra note 101, at 128–30 (citing Torquing Michigan’s Faulty Insurance, supra note 101, at 285. (combining no-fault and tortbased insurance systems, “[e]ssentially, this ‘add-on’ system allows motorists in a tort-based state to purchase additional no-fault coverage.”)

116. See MICH. COMP. LAWS ANN. § 500.3101. See also MICH. COMP. LAWS ANN. § 500. 3102(2) (West 1990) (making an individual guilty of a misdemeanor if operating a vehicle without insurance on a public highway).

117. MICH. COMP. LAWS ANN. § 500.3105(1).

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(3) to reduce the proportion of premium dollars paid out for administrative (i.e., legal) costs.”118 Although twelve (12) United States jurisdictions currently employ some form of a no-fault based insurance system, 119 Michigan’s NoFault Act is unique in many ways. 120 One of the most patent characteristics of Michigan’s unique insurance system is that it requires by law,121 that a driver purchase some form of a basic NoFault insurance policy—evidencing a “zero-option” choice where Michigan drivers can only handpick between the limited categories of a No-Fault policies, rather than retaining the ability to decide not to purchase one at all. 122 But perhaps the distinctive feature that makes Michigan’s No-Fault system remarkably unique hails from a specific provision under the Act that calls for unlimited medical benefits for treatment of the injured victim. 123 This element of the Act is

118. SHARON TENNYSON, THE HIGH COSTS OF MICHIGAN’S NO-FAULT AUTO INSURANCE: CAUSES AND IMPLICATIONS FOR REFORM 4 (2011) (citation omitted) [hereinafter High Cost of Michigan’s No-Fault Insurance].

119. Justin Thomas, Putting Programmers in the Driver’s Seat: State Tort Systems Applied to Autonomous Automobiles, 93 U. DET. MERCY L. REV. 553, 556 [hereinafter Tort Systems Applied to Autonomous Automobiles] (citing No-Fault Auto Insurance, INS. INFO. INST. (Feb. 2014), http://www.iii.org/issue-update/nofault-auto-insurance, and JEFFREY O’CONNELL & SAMUEL H. MCCOY, LAW OF LIABILITY INSURANCE § 48.01 (2015)).

120. See Torquing Michigan’s Faulty Insurance, supra note 101, at 286.

121. See MICH. COMP. LAWS ANN. § 500.3101(1).

122. Torquing Michigan’s Faulty Insurance, supra note 101, at 286 (citing Shavers v. Kelley, 267 N.W.2d 72 (Mich. 1978)).

123. MICH. COMP. LAWS ANN. § 500.3107(1) (West 2019) (“(1)Subject to the exceptions and limitations in this chapter, and subject to chapter 31A, personal protection insurance benefits are payable for the following: (a) Allowable expenses consisting of reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery, or rehabilitation.

Allowable expenses do not include either of the following: (i) Charges for a hospital room in excess of a reasonable and customary charge for semiprivate accommodations, unless the injured person requires special or intensive care. (ii) Funeral and burial expenses in excess of the amount set forth in the policy, which must not be less than $1,750.00 or more than $5,000.00.”) See also Torquing Michigan’s Faulty Insurance, supra note 101, at 287 (“However, it should be noted that these provisions are often used by insurance providers to justify the high cost of Michigan’s automobile-insurance premiums”). But see David Eggert, Bill to Cut Auto Insurance Premiums Passed by Michigan Legislature, INS. J.(May 28, 2019) (https://www.insurancejournal.com/news/midwest/2019/05/28/527583.htm) (describing new legislation that will provide Michigan drivers choices in personal

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unmatched, dubbing Michigan’s No-Fault to some as “the Cadillac of auto insurance policies.”124 C.

First-Party Claims Pursuant to MCL 500.3105 (1)

Michigan’s No-Fault system divides the victim’s rights into two independent categories of possible claims: first-party claims 125 and third-party claims.126 The best way to understand the distinction between these two is to think of first-party benefits as economic loss and third-party benefits as noneconomic loss. 127 A first-party claim is initiated by the injured party—the policyholder—against his or her own insurance carrier for no-fault benefits.128 In contrast, a third-party no-fault claim occurs when an injured party initiates a tort claim against another driver(most commonly the negligent driver) 129 thus, third-party claims are based on standard negligence principles. As a result, this paper puts forth the argument that first-party claims under the Act will remain the same as autonomous vehicles become more widespread, as injured Plaintiffs can still recover benefits from their own insurance companies, irrespective of the concept of fault.

With respect to first-party claims, the injured party brings a suit against their own insurance company for various benefits, such as replacement services, recurring medical expenses, wage loss, and others.130 As such, Michigan’s No-Fault Act does not restrict the dollar injury protection coverages, among other things, in order to reduce premiums starting in July 2020.)

124. Press Release, Insurance Institute of Michigan, National Study Shows Average Auto Insurance Premiums in Michigan Falling (Dec. 21, 2010) (quoting IIM Executive Director Pete Kuhnmuench). https://www.michiganautolaw.com /blog/2013/02/07/michigans-no-fault-system-is-an-incredible-value-just-ask-peterkuhnmuench-of-the-insurance-institute-of-michigan/(last visited Oct. 23, 2019).

125. See Torts: Michigan Law and Practice, supra note 109, at 173–74 (explaining that a first-party claim is a claim by an individual against a no-fault insurer who, by contract or law, is required to pay no-fault benefits to the claimant).

126. See VARNUM, MICHIGAN NO-FAULT LAW: YOUR QUESTIONS ANSWERED 2 (2016) (“Third-party claims are against the person(s) at fault for the accident for damages such as pain and suffering, excess wage loss and other damages.”)

127. See Id. (specifying that first-party claims are comprised of medical expenses, wage loss benefits, replacement services and other benefits).

128. See Torts: Michigan Law and Practice, supra note 109, at 173 (“The responsible insurer, by contract or law, is required to pay no-fault first-party benefits to the claimant, even if the claimant is wholly at fault in causing the injury-producing accident. A first-party claim does not sound in tort, but rather in contract”).

129. Id. at 174.

130. Id. at 173.

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amount of medical expenses; insurance companies must, therefore, pay all medical expenses that are related to the accident. 131 But perhaps the main discrepancy between the two is the fact that the insurance company is not responsible for pain and suffering—those noneconomic damages are reserved for third-party claims against the negligent driver.132 With respect to a first-party claim, the first plan of action under the Act develops when the victim of an automobile accident files a claim against his/her own insurance company. 133 The Act delineates specific mandatory coverage that every Michigan insurance carrier must include in their own respective policies. 134 The basic No-Fault policy has three main parts: Personal injury protection (“PIP”), Property protection (“PPI”), and Residual Bodily Injury and Property Damage Liability Insurance (“BI/PD”).135 As referenced earlier, PIP benefits are referred to as the payments made by the insurance carrier to the accident victim.136 Michigan law necessitates the purchase of at least basic PIP insurance coverage by drivers or operators of a vehicle. 137 When one or more autonomous vehicles collide in Michigan, there are two main factors that need to be considered in order to assess the outcome: the potential distribution of PIP benefits (first-party claims) and assigning fault (third-party claims).138 The outset of a first-party claim analysis pursuant to the Act starts with section 3105(1), which states, in relevant part: 131. Id. But see Eggert, supra note 124 (motorists will be able to choose policies with limited medical coverage in the near future under the new legislation).

132. See Torts: Michigan Law and Practice, supra note 109, at 174. See generally Philip L. Merkel, Pain and Suffering Damages at Mid-Twentieth Century: A Retrospective View of the Problem and the Legal Academy’s First Responses, 34 CAP. U. L. REV. 545, 567 (2006) and Marcus L. Plant, Damages for Pain and Suffering, 19 OHIO ST. L. J. 200, 203 (1958) (discussing inconsistencies with noneconomic damages).

133. See Lawrence C. Falzon, Michigan No-Fault: The Rise and Fall of Socialized Negligence, 56 U. DET. J. URB. L. 99, 102 (1978). [hereinafter Michigan No-Fault Rise and Fall]. (citing Mich. Comp. Laws Ann. § 500.3107 (West Supp. 1978)). See also High Cost of Michigan’s No-Fault Insurance, supra note 119, at 3.

134. See Michigan No-Fault Rise and Fall, supra note 134, at 102–03.

135. See Consumer Counselor, Insurance Information for Michigan Consumers, Brief Explanation of Michigan No-Fault Insurance, https://www.michigan.gov /documents/cis_ofis_ip202_25083_7.pdf. (last visited Apr. 26, 2019).

136. Id. See also MICH. COMP. ANN. § 500.3107 137. Id. 138. See Torts: Michigan Law and Practice, supra note 109, at 173-74.

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Under personal protection insurance an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle, subject to the provisions of this chapter. 139 Pursuant to M.C.L. § 500.3105(1), the analysis for determining whether an injured party can recover first-party no-fault benefits involves two main factors: (1) we must determine “whether the injury at issue is covered,” i.e., whether it is “accidental,” “bodily,” and “aris[es] out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle;” and (2) we must then determine whether said injury is excluded under other provisions in the No-Fault Act and whether an exception to an exclusion would save the claim. 140 This paper will focus its analysis on the former rather than the latter, as the former is germane to the complex issues surrounding the proliferation of autonomous vehicles.

In a vast majority of first-party claims, it is usually undisputed that the injured party actually suffered an accidental and bodily injury; 141 the Plaintiff always complains of some injury they sustained, whether it be a fracture, broken rib, whiplash, etc. Thus, the integral part of the analysis will be to determine whether the injuries arose out of “the ownership, operation, maintenance[,] or use of a motor vehicle as a motor vehicle.”142 Whether an injury arises out of the use of a motor vehicle “as a motor vehicle” under section 3105 turns on whether the injury is closely related to the “transportational function of motor vehicles.”143 However, a vehicle does not need to be in motion at the 139. MICH. COMP. LAWS ANN. § 500.3105(1) (emphasis added). See Rice 651 N.W.2d 188 at191–94 (2002 (analyzing the application of the statute).

140. Rice, 651 N.W.2d at 192.

141. Cf. Id. (this sentence is used as a generalized example for first-party claims.)

142. Id. See MICH. COMP. LAWS ANN. § 500.3105(1). There is a subtle interplay between first-party and third-party claims, as the answer to this question has an impact on whether a plaintiff can bring forth a third-party claim against another driver for “pain and suffering. Under a third-party claims, in order for a victim of an accident to sue for pain and suffering under the Act, they must prove 4 basic elements: (1) that the other driver was at least 50% at fault for causing the accident; (2) that the victim was injured during the car accident; (3) that the victim’s injuries are a result of the car accident itself, and not an unrelated matter; and (4) that the victim sustain a specific type of injury, widely dubbed the “threshold injury,” which states, “if the injured person has suffered death, serious impairment of body function, or permanent serious disfigurement.” See MICH. COMP. LAWS ANN. § 500.3135 (It should also be noted that this section also has requirements for third-party claims.)

143. McKenzie v. Auto Club Ins. Ass’n, 580 N.W.2d 424, 429 (Mich. 1998).

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time of an injury in order for the injury to arise out of the use of a motor vehicle as a motor vehicle. 144 The expression “as a motor vehicle” does necessitate a broad determination of whether the vehicle was being used, maintained, or operated for transportation purposes.145 The question of ownership is addressed by statute via Michigan’s owner’s liability statute.

M.C.L. 257.401 provides in pertinent part: (1) This section shall not be construed to limit the right of a person to bring a civil action for damages for injuries to either person or property resulting from a violation of this act by the owner or operator of a motor vehicle or his or her agent or servant. The owner of a motor vehicle is liable for an injury caused by the negligent operation of the motor vehicle whether the negligence consists of a violation of a statute of this state or the ordinary care standard required by common law. The owner is not liable unless the motor vehicle is being driven with his or her express or implied consent or knowledge. It is presumed that the motor vehicle is being driven with the knowledge and consent of the owner if it is driven at the time of the injury by his or her spouse, father, mother, brother, sister, son, daughter, or other immediate member of the family. 146 144. Id. (citing MICH. COMP. LAWS ANN. § 500.3106 (West 1987)).

145. Id. at 219.

146. MICH. COMP. LAWS ANN. § 257.401(1) (West 2003) (emphasis added). See also MICH. COMP. LAWS ANN. § 500.3101(3), which states in part: (“(l) ‘Owner’ means any of the following: (i) A person renting a motor vehicle or having the use of a motor vehicle, under a lease or otherwise, for a period that is greater than 30 days. (ii) A person renting a motorcycle or having the use of a motorcycle under a lease for a period that is greater than 30 days, or otherwise for a period that is greater than 30 consecutive days. A person who borrows a motorcycle for a period that is less than 30 consecutive days with the consent of the owner is not an owner under this subparagraph. (iii) A person that holds the legal title to a motor vehicle or motorcycle, other than a person engaged in the business of leasing motor vehicles or motorcycles that is the lessor of a motor vehicle or motorcycle under a lease that provides for the use of the motor vehicle or motorcycle by the lessee for a period that is greater than 30 days. (iv) A person that has the immediate right of possession of a motor vehicle or motorcycle under an installment sale contract.”) See also MICH. COMP. LAWS ANN. § 257.37 (West 1988) (Michigan Vehicle Code) (“‘Owner’ means any of the following: (a) Any person, firm, association, or corporation renting a motor vehicle or having the exclusive use thereof, under a lease or otherwise, for a

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Liability pursuant to Michigan’s owner’s liability statute can be satisfied by four factors: “(1) operating the vehicle (2) with the owner’s express or implied consent or knowledge and, in doing so, (3) causes injury (4) by negligently operating the vehicle in violation of Michigan’s statute or the ordinary care standard.”147 Analyzing the statute, a conclusion can be made with respect to autonomous vehicles—owners of autonomous vehicles will likely be held legally liable for an accident if the Plaintiff can prove he is an owner under the Act.148 “The [owner’s liability] statute makes the owner liable, not because he caused the injury, but because he permitted the driver to be in a position to cause the injury.”149 The Michigan owner’s liability statute holds the owner of vehicle responsible for any negligent actions of any person, as well as the negligence (or defect) of the autonomous vehicle’s software that is deemed to be “operating” the car with the owner’s “express or implied consent.”150 Michigan’s Supreme Court has further delineated that, “by statute, the owner of a motor vehicle is liable for its negligent operation if it is being driven with the owner’s permission.”151 If one cannot prove ownership, one can then prove that the driver of the autonomous vehicle was effectively operating the vehicle to be held liable both under MCL 500.3105, as well as Michigan’s owner’s period that is greater than 30 days. (b) Except as otherwise provided in section 401a, a person who holds the legal title of a vehicle. (c) A person who has the immediate right of possession of a vehicle under an installment sale contract.”)

147. Tort Systems Applied to Autonomous Automobiles, supra note 120, at 559.

148. Hodges v. City of Dearborn, No. 308642, 2013 WL 2095803, at *6 (Mich.

Ct. App. May 14, 2013) (holding that the deceased plaintiff was the owner of the vehicle, despite the fact that the title to the vehicle was in someone else’s name. The court further explained that “a vehicle may have more than one owner,” delineating that it was possible that the plaintiff and the title holder were both owners for the purpose of the No-Fault Act. This suggests that the threshold of proving the ownership requirement is rather low.).

149. Cowan v. Strecker, 229 N.W.2d 302, 304 (Mich. 1975) (quoting Roberts v.

Posey, 194 N.W.2d 310, 312 (Mich. 1972)) (“The statute absolves the owner from liability only when the vehicle is being driven without his express or implied consent or knowledge. The consent or knowledge, therefore, refers to the fact of the driving.

It does not refer to the purpose of the driving, the place of the driving, or to the time of the driving.”)

150. Tort Systems Applied to Autonomous Automobiles, supra note 120, at 559-60 (citing MICH. COMP. LAWS ANN. § 257.401(1)) (emphasis added).

151. See Clevenger v. Allstate Ins. Co., N.W.2d 553, 558 (Mich. 1993) (citing MICH. COMP. LAWS ANN. § 257.401(1); M.S.A. § (257.401)).

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liability statute.152 Now, the issue becomes how to define the term “operating” when there is no human driving the vehicle. Fortunately, Michigan has adopted legislation that expands the definition of operating a vehicle in an attempt to address the progression of operating an autonomous vehicle. 153 Section 35a of the Michigan Vehicle Code states in part that: “‘Operate’ or ‘operating’ means 1 or more of the following: (a) Being in actual physical control of a vehicle. . . . [or] (b) Causing an automated motor vehicle to move under its own power in automatic mode upon a highway or street regardless of whether the person is physically present in that automated motor vehicle at that time.”154 “As used in this subdivision, ‘causing an automated motor vehicle to move under its own power in automatic mode’ includes engaging the automated technology of that automated motor vehicle for that purpose.”155 Michigan’s legislation provides ample evidence that the term “operation” includes the use of autonomous vehicles.156 Therefore, Michigan has shed light on the fact that the owner’s liability statute and the operating requirement under MCL 500.3105, are not limited to mere human drivers, but are justifiably expanded to incorporate an autonomous system.157 As a result, an operator includes technology or automation that possesses the power and structural capability to empower a motor vehicle to drive, without a human being’s intervention. 158 152. MICH. COMP. LAWS ANN. § 257.401(1); See also MICH. COMP. LAWS ANN. § 500.3105.

153. See MICH. COMP. LAWS ANN. § 257.35a.

154. Id. 155. Id. See also MICH. COMP. LAWS ANN. § 257.2b(2) (“‘Automated motor vehicle’ means a motor vehicle on which an automated driving system has been installed, either by a manufacturer of automated driving systems or an upfitter that enables the motor vehicle to be operated without any control or monitoring by a human operator. Automated motor vehicle does not include a motor vehicle enabled with 1 or more active safety systems or operator assistance systems, including, but not limited to, a system to provide electronic blind spot assistance, crash avoidance, emergency braking, parking assistance, adaptive cruise control, lane-keeping assistance, lane departure warning, or traffic jam and queuing assistance, unless 1 or more of these technologies alone or in combination with other systems enable the vehicle on which any active safety systems or operator assistance systems are installed to operate without any control or monitoring by an operator.”).

156. See MICH. COMP. LAWS ANN. § 500.3105.

157. Id. 158. Id.

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If the Plaintiff cannot prove the operation requirement, the owner’s liability statute requires the express or implied consent or knowledge of the owner of the vehicle. Therefore, the autonomous vehicle must be operating under the owner’s express or implied consent or knowledge. Without this factor, the owner will not be held liable under the owner’s liability statute.159 The autonomous vehicle—despite its ability to operate without human assistance—cannot effectively start, move, or operate the vehicle itself without the owner’s command to do so. While the world has knowledge of certain automated systems that possess the theoretical capability of starting the ignition without the presence of a human inside the car, 160 the driver or owner must command the automated system to engage in such behavior. Unless and until automated technology develops a mind of its own and is able to start and operate vehicles without the owner’s command,161 the owner of the vehicle will still be held liable for any actions set forth by the system.

Last, when the plaintiff asserts a first-party claim, they must successfully prove the negligent operation of the vehicle, which either violated Michigan’s statute or the “ordinary standard of care.”162 Because third-party, tort-based claims will be discussed in further detail below, this analysis is limited to breach of the ordinary standard of care. Further, the plaintiff would need to prove that the vehicle was negligently operated by its automated technology, violating Michigan’s ordinary care standard. 163 As a result, an autonomous vehicle would be subjected to liability by engaging in the “inherently dangerous activity of driving.”164 It is evident that the proliferation of driverless cars would plausibly generate increased insurance costs as well as product liability claims 159. See Mich. Comp. Laws § 257.401 (2019).

160. Aarian Marshall, Fully Self-Driving Cars Are Really Truly Coming to California, WIRED (Feb. 26, 2018), https://www.wired.com/story/california-selfdriving-car-laws/.

161. I Robot (The Internet Movie Database 2004).

162. Tort Systems Applied to Autonomous Automobiles, supra note 120, at 561 (citing MCL 257.401(1)).

163. Id. (“According to Clumfoot v. St. Clair Tunnel Co., [190 N.W. 759, 760 (Mich. 1922)] a plaintiff may recover in a negligence action if his injury “was the natural and probable consequence” of the defendant’s negligent act or omission.

Essentially, under Michigan’s owner’s liability statute, an injured party must show that a reasonable person could have foreseen the injury based on the manner in which the automated system operated the vehicle.”).

164. Id.

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related to the manufacturing of the vehicle’s software. As a result, claims pertaining to the manufacturing defects of the software or technology will result in a supplementary cause of action founded on product liability.165 The main concern relating to Michigan’s caps on noneconomic damages would become an increasingly significant issue with respect to autonomous vehicles. 166 Therefore, because a plaintiff can successfully bring a first-party claim against their own insurance company for Personal Injury Protection (PIP) benefits pursuant to the act and Michigan Compiled Laws § 500.3015(1), first-party litigation claims will largely remain the same as the use of autonomous vehicles becomes more widespread.

The other alternative basis for a plaintiff to recover damages that are a consequence of an autonomous vehicle crash is a third-party claim against the vehicle’s negligent driver. However, this claim can only be brought if the autonomous vehicle employs a lower level of automation, i.e. levels zero to three. The higher levels of automation, (levels four to five), do not require a human driver to be present in the vehicle while it is operating.

D.

Third-Party Claims—The Negligence Standard

Regarding third-party litigation claims, the plaintiff must prove two elements to prevail: (1) that the other driver was at least 50% at fault, using the traditional tort elements of negligence;167 and (2) that the plaintiff meets the no-fault damages threshold of serious impairment injuries (most commonly known as the “threshold requirement”).168 While some states employ a monetary threshold of

165. Pursuant to MCL 500.3114 and 500.3115, there is an element of priority embedded within the No-Fault Act, ranking the various carriers that an injured party can claim from: first from their own insurance company; second from the insurer of a household relative; third from the insurer of the owner of the vehicle—and in this case, the autonomous vehicle; fourth from the insurer of the operator of the autonomous vehicle (software system or safety driver, depending on who was in control at the time of the accident); and fifth from a random assignment of the claim to a Michigan insurance company.

166. See MICH. COMP. LAWS § 600.2946a (2019).

167. The elements of negligence are: Duty; Breach; Causation (But-for and Proximate); and Damages. See RESTATEMENT (THIRD) OF TORTS. 168. See Torts: Michigan Law and Practice, supra note 109, at Chapter 4-3 (“Serious impairment of body function is defined as an “objectively manifested impairment of an important body function that affects the person’s general ability to lead his or her normal life.” MICH. COMP. LAWS § 500.3135(7)”).

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injuries,169 Michigan—along with a handful of other states—employs a verbal threshold, whereby there is a description of a certain degree of seriousness. In third party litigation claims, the plaintiff “sues the driver of the vehicle [for non-economic damages], alleging the breach of a duty that resulted in a serious injury . . . provided that the claimant’s injuries meet the threshold requirement of Michigan Compiled Laws § 500.3135.”170 The claim here is based on a classic automobile negligence claim—but marginally adjusted by the Act’s restrictions of proving the threshold injury. While this threshold requirement is the fundamental basis of the vast majority of automobile no-fault (third party) claims in Michigan, this issue is not central to this paper since the gravity of the injury threshold—how serious the Plaintiff’s injuries are—will remain the same whether it is a traditional vehicle or an autonomous vehicle.171 Under the negligence principles, a defendant is generally held civilly liable for harm he or she causes.172 Michigan’s Supreme Court has established that “[i]n order to make out a prima facie case of negligence, the plaintiff must prove the four elements of duty, breach of that duty, causation, and damages.”173 The fundamental question germane to a negligence question is whether the Defendant breached his duty to the Plaintiff and caused damages as a result. This analysis is not uncommon, and in fact is familiar to all within the realm of insurance and automobile litigation.

There are two main types of defendants that a plaintiff can bring a third-party negligence claim against: (1) the negligent driver of a lower-level-autonomous vehicle for breaching their duty by driving

169. Some states have a monetary threshold of seriousness (i.e. $5K and over).

170. Id. at 4-4.

171. See Mark E. Warmbier, Defining Serious Impairment of Body Function: The Aftermath of Kreiner and the Need for Change, (2005), at 14 [hereinafter Defining Serious Impairment of Body Function] (“In rendering its final decision, the [Kreiner v. Fisher, 471 Mich. 109 (2004)] Court initially turned to the plain language of Michigan’s no-fault statute and reiterated the definition of a serious impairment of body function. As defined by the Michigan Compiled Laws, section 500.3135(7), a serious impairment of body function is “an objectively manifested impairment of an important body function that affects the person’s general ability to lead his or her normal life.”) (citing MICH. COMP. LAWS § 500.3135(7) (2004)).

172. See Torts: Michigan Law and Practice, supra note 109.

173. Brown v. Brown, 739 N.W.2d 313, 316-17 (Mich. 2007) (citing Fultz v.

Union-Commerce Assoc., 683 N.W.2d 587, 590 (Mich. 2004)).

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negligently; 174 (2) the manufacturer of the vehicle’s software for breaching its duty by virtue of negligent operation of the software and any defects the software may have; or a combination of both. The former can only be brought when a lower-level vehicle is involved.

This is because, without a human driver, a plaintiff will no longer be able to bring forth third-party claims against a driver for negligent driving. While the latter can be pursued when any level of automation is deployed, these claims will likely transform into product-liability claims against the manufacturer of the software for defects that caused the injury. As a result, a plaintiff will need to rely on either first-party claims against their own insurance company or a product liability claim against the manufacturer of the vehicle’s software.

Vehicles that employ automation levels zero to three require the human driver to monitor the situation and to intervene if necessary, providing the driver with audio and visual warnings.175 Thus, the human driver can still be found liable if he or she fails to heed the warnings of the vehicle’s software system. In terms of traditional negligence principles, the plaintiff will need to prove that the human driver (defendant) owed a duty to the plaintiff to exercise reasonable care when driving the vehicle. 176 The plaintiff will then have to prove that defendant breached said duty by failing to exercise reasonable care when operating the autonomous vehicle, not heeding the vehicle’s warnings, or taking precaution under the reasonable care standard. If the vehicle provides the driver with a specific warning, (i.e. to take control over the vehicle due to an impending crash or volatile-road condition), the driver then has the responsibility to heed the warnings and take action.177 The final two elements of a negligence action involve the requirements of proving causation and damages. 178 Because the issue of damages would be the same whether the accident involved a driveroperated or autonomous vehicle, this section will focus on the issue of 174. In analyzing the duty element, it has always been understood that it is “the motorists’ duty to drive an automobile reasonably safely and not to endanger persons or their property.” See Torts: Michigan Law and Practice, supra note 109, at Chapter 4-13 (citing Wright v Cane, 106 N.W. 71 (1905)); “In general, a driver must use ordinary reasonable care in the operation of a motor vehicle, in the speed at which it is driven, and in maintaining an appropriate lookout.” Zarzecki v. Hatch, 79 N.W.2d 605 (1956); Sponkowski v. Ingham County Rd Commn, 393 N.W.2d 579 (1986).

175. See discussion supra Part II (“The Current Technology of Driverless Cars”).

176. Fultz v. Union-Commerce Assoc., 683 N.W.2d 587, 590 (Mich. 2004)).

177. See discussion supra Part II (“The Current Technology of Driverless Cars”).

178. Brown, 739 N.W.2d at 316-17.

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causation. “Actual causation requires the defect to be the cause in fact of the accident, while proximate causation limits injuries to ‘those physical harms that result from the risks that made the actor’s conduct tortious.’”179 Therefore, the plaintiff must prove that, but for the defendant’s breach of duty by negligently ignoring the vehicle’s warnings, plaintiff would not have sustained such injuries. 180 Michigan’s Supreme Court outlined the governing standard of proximate cause: Proximate causation involves examining the foreseeability of consequences and whether a defendant should be held legally responsible for such consequences given his negligent acts or omissions. This Court has defined proximate cause as “a foreseeable, natural, and probable cause.” Such causation is distinct from factual or “but for” causation, and issues of proximate causation thus call for an independent, searching inquiry, the focus of which is whether the result of conduct that created a risk of harm and any intervening causes were foreseeable. Probability of harm is thus a relevant consideration to determine whether the defendant’s conduct was foreseeable or if the defendant should be held legally liable in light of the circumstances.

Since there are risks that can be foreseen but would not be avoided by a reasonable person, for liability to attach the harm must be of a kind that defendant should have avoided or it must be shown that defendant’s actions presented an unreasonable risk of harm. 181 The analysis should focus more on the causation as a whole, as opposed to the intervening and superseding causes. 182 If the plaintiff 179. See Strict Products Liability, Negligence Liability and Proliferation, supra note 89 (citing Thompson v. Kaczinski, 774 N.W.2d 829, 838 (Iowa 2009)). See also, Skinner v. Square D Co., 516 N.W.2d 475, 479 (Mich. 1994) (“In order to establish causation, a plaintiff must prove two elements: (1) cause in fact and (2) proximate cause.”).

180. Id. (“The cause in fact element generally requires showing that ‘but for’ the defendant’s actions, the plaintiff’s injury would not have occurred.”).

181. Jones v. Detroit Med. Ctr., 806 N.W.2d 304, 305 (Mich. 2011) (order) (citations omitted).

182. If an intervening force is not reasonably foreseeable under an objective standard, it constitutes a “superseding cause” which relieves a prior negligent defendant from liability. Ridley v. City of Detroit, 590 N.W.2d 69, 73 (Mich. Ct. App. 1998), remanded on other grounds sub nom.; Ridley v. Collins, 622 N.W.2d 65 (Mich. 2000). “While an act of God or the gross negligence or intentional misconduct by the victim or a third party will generally be considered a superseding cause, ordinary negligence by the victim or a third party will not be regarded as a superseding cause because ordinary negligence is reasonably foreseeable.”; see People v. Schaefer, 703 N.W.2d 774, 786 (Mich. 2005); see also Love v. City of

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can prove that the injuries were foreseeable and were the proximate cause of the defendant’s negligent actions, the plaintiff will prevail.

This paper argues, however, that the proliferation of autonomous vehicles will shift the allocation of fault from the human driver to the software manufacturer, thereby shifting the current attribution of culpability for automobile crashes. What happens when an autonomous vehicle makes a last-second lane change and crashes into an oncoming car183 or when the vehicle’s software censor system fails to distinguish the side of a large white truck against a bright, sunny sky?184 While in the latter two instances, both vehicles themselves appeared to be entirely at fault, they still, nevertheless, carried human drivers who had the capability and legal duty to intervene and thwart an impending accident. In the former, the human driver was aware of the oncoming traffic and the vehicle’s sudden lane change but failed to take action because of the assumption that the vehicle would stop and change back to its original course. 185 In the latter, the human driver failed to heed the software’s continuous audio and visual warnings and failed to put his hands on the steering wheel. 186 The higher the level of autonomy the vehicle possesses, the more compelling the argument that the software should be held responsible, rather than the human driver, becomes.

As noted above, plaintiffs can bring a claim against the vehicle’s software manufacturer based on latent or hidden defects, leading to a Detroit, 716 N.W.2d 604, 610 (Mich. Ct. App. 2006) (Cooper, J., dissenting) (applying Schaefer to civil case); An intervening cause is considered reasonably foreseeable when the defendant’s negligence “enhanc[es] the likelihood that the intervening cause will occur.” Hickey v. Zezulka, 487 N.W.2d 106, 119 (Mich.

1992); “[W]hether an intervening negligent act of a third person constitutes a superseding proximate cause is a question for the jury.” Ykimoff v. Foote Mem. Hosp., 776 N.W.2d 114, 133 (Mich. Ct. App. 2009) (quoting Taylor v. Wyeth Lab., Inc., 362 N.W.2d 293, 300 (Mich. Ct. App. 1984)); Lastly, there may be more than one proximate cause contributing to an injury. Lewis v. Yale Co., 888 F.2d 1391 (Table), 1989 WL 136144, at *2 (6th Cir. Nov. 13, 1989).

183. Alex Davies, Google’s Self-Driving Car Caused Its First Crash, WIRED, February 29, 2016, https://www.wired.com/2016/02/googles-self-driving-car-maycaused-first-crash/ [hereinafter Google’s Self-Driving Car].

184. Danny Yadron and Dan Tynan, Tesla driver dies in first fatal crash while using autopilot mode, THE GUARDIAN, June 30, 2016, https://www.theguardian .com/technology/2016/jun/30/tesla-autopilot-death-self-driving-car-elon-musk [hereinafter Tesla driver dies in first fatal crash].

185. Google’s Self-Driving Car, supra note 186.

186. Tesla driver dies in first fatal crash, supra note 187.

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defective software or automated technology. 187 “An example of a breach of that duty would be simply failing to warn of, or make safe, defects or hazards in the automated vehicle.”188 These claims likely will not be brought forth pursuant to third-party claims under the Act, but pursuant to Michigan’s product liability laws. Thus, because automated vehicles will progressively evolve and require less intervention by human drivers, product liability lawsuits will rise.

V.

REFORMATION OF MICHIGAN’S PRODUCT LIABILITY STATUTE

The proliferation of autonomous vehicles will inevitably bring forth scores of product liability claims by virtue of drivers’ inherent reliance on the vehicle’s automated technology. This is especially true for vehicles that employ high levels of automation—where the vehicle’s software is relied upon to take control of the vehicle’s operation—irrespective of the climate or the presence of a human driver.189 As a result, a logical deduction can be made that the rate of product liability claims will sky-rocket, while the number of negligence-based third-party tort claims (pursuant to the Act) against the human driver of an autonomous vehicle will plunge.

A.

Overview of Michigan’s Product Liability Statute

Under Michigan’s current insurance regime, an injured party can make either a first-party claim against their own insurance company or a third-party claim against the at-fault driver for non-economic damages that the party has incurred as a result of a car accident. 190 The situation changes, however, with higher levels of automation. If a level 4 or 5 automated vehicle (high and total automation) was involved in a car accident, it can be logically deduced that liability would fall onto the manufacturer of the software system that is operating the vehicle; this is because there is no human driver present and the software is the 187. Id. (quoting Larsen v. General Motors Corp., 391 F.2d 495, at 505 (“Where the danger is obvious and known to the user, no warning is necessary and no liability attaches for an injury occurring from the reasonable hazards attached to the use of chattels or commodities; but where the dangerous condition is latent it should be disclosed to the user, and non-disclosure should subject the maker or supplier to liability for creating an unreasonable risk.”).

188. Strict Products Liability, Negligence Liability and Proliferation, supra note 89.

189. See discussion supra Part II (“The Current Technology of Driverless Cars”).

190. See discussion supra Part III. See also generally, MICH. COMP. LAWS § 500.3135 (2) and (7).

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sole operator. Against that premise, the only tort-based claim that could be brought forth by the Plaintiff is a product liability claim under the laws of Michigan for a defect against the manufacturer of the vehicle.191 MCL§ 600.2945(h) defines a product liability action to be “an action based on a legal or equitable theory of liability brought for the death of a person or for injury to a person or damage to property caused by or resulting from the production of a product.”192 Michigan’s product liability statute states, in relevant part: MCL 600.2946 (2) In a product liability action brought against a manufacturer or seller for harm allegedly caused by a production defect, the manufacturer or seller is not liable unless the plaintiff establishes that the product was not reasonably safe at the time the specific unit of the product left the control of the manufacturer or seller and that, according to generally accepted production practices at the time the specific unit of the product left the control of the manufacturer or seller, a practical and technically feasible alternative production practice was available that would have prevented the harm without significantly impairing the usefulness or desirability of the product to users and without creating equal or greater risk of harm to others. An alternative production practice is practical and feasible only if the technical, medical, or scientific knowledge relating to production of the product, at the time the specific unit of the product left the control of the manufacturer or seller, was developed, available, and capable of use in the production of the product and was economically feasible for use by the manufacturer. Technical, medical, or scientific knowledge is not economically feasible for use by the manufacturer if use of that knowledge in production of the product would significantly compromise the product’s usefulness or desirability.

(4) In a product liability action brought against a manufacturer or seller for harm allegedly caused by a 191. MICH. COMP. LAWS § 600.2946 (2019).

192. MICH. COMP. LAWS § 600.2945(h) (2019).

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product, there is a rebuttable presumption that the manufacturer or seller is not liable if, at the time the specific unit of the product was sold or delivered to the initial purchaser or user, the aspect of the product that allegedly caused the harm was in compliance with standards relevant to the event causing the death or injury set forth in a federal or state statute or was approved by, or was in compliance with regulations or standards relevant to the event causing the death or injury promulgated by, a federal or state agency responsible for reviewing the safety of the product . . .193 As outlined by the above statute, a plaintiff bringing forth a product liability claim in Michigan must satisfy various requirements, such as establishing that the product was not reasonably safe and that a technically feasible alternative production practice was available that would have prevented the harm they experienced without significantly impairing the usefulness or desirability of the product, and that would not have created equal or greater risk of harm to others.194 The plaintiff must go beyond that threshold and further refute the rebuttal presumption outlined in the statute, and prove that the manufacturer was not complying with state and federal regulations at the time of purchase or sale.195 Michigan’s product liability laws have made vehicle product defect cases exceptionally demanding for Michigan plaintiffs and manufacturers; these cases generally warrant massive resources to be litigated effectively.196 This paper puts forth the premise that Michigan’s current product liability statute is not strict enough to welcome the proliferation of autonomous vehicles and that it should adopt a stricter product liability theory in order to address the anticipated rise in product liability cases, as discussed in detail below.

The injured party must, therefore, sustain serious bodily injury or death in order to justify the massive litigation costs that accompany a product liability claim in Michigan. Bringing forth a products liability action without serious bodily harm would mostly likely preclude a plaintiff 193. Id. (emphasis added).

194. Id. at (2).

195. Id. at (4).

196. See Defining Serious Impairment of Body Function, supra note 174, at 4. See also, Klinke v. Chrysler Corporation and John Colone Chrysler-Plymouth-Dodge, Inc., Docket Nos. 107730-107732, Decided: July 31, 1998.

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from receiving appropriate damages, as the costs of hiring experts and litigating this process will not outweigh the cap placed on pain and suffering damages in Michigan product liability cases.197 Michigan should adopt a strict liability theory, as it is one of the “easiest type of claim for a plaintiff to prove.” 198 As the law in Michigan currently stands, the main issue that a plaintiff must prove is whether the autonomous vehicle was defective.

A plaintiff may assert that the product was defective in its design, the product was defective in the way it was manufactured, and/or that the defendant failed to provide adequate warnings or instructions to the users of the product. Of greatest concern for AV litigation are design defect and failure to warn claims. 199 As a result, a plaintiff bringing forth a product liability lawsuit against the manufacturer of the vehicle will need to rely on the testimony of an expert witness that must definitively outline why and how the vehicle’s software was defective, was unreasonably safe, and lay out any and all the alternative designs that could have potentially thwarted the defect.200 With respect to the failure to warn claims, a plaintiff suing in Michigan can assert that the manufacturer of the autonomous vehicle failed to provide satisfactory warnings. This would be brought under the theory of strict liability. In the end, though, all roads lead back to the argument that this paper sets forth: that Michigan should correct its current product liability statute and adopt a strict liability theory in order to aid both the plaintiffs, as well as the manufacturers, as the proliferation of autonomous vehicles near.

B.

California’s Greenman Supreme Court Decision

It is clear, therefore, that Michigan plaintiffs and manufacturers alike will experience an extremely burdensome task of litigating any product liability lawsuit involving an autonomous vehicle. The parties will need to call witnesses, experts, undergo studies and tests that outline the cause of the accident, and why the software was “unreasonably safe.” As a result, Michigan is currently in the midst of 197. MICH. COMP. LAWS § 600.2946(a) (2019) provides, in relevant part: (1) In an action for product liability, the total amount of damages for noneconomic loss shall not exceed $280,000.00, unless the defect in the product caused either the person’s death or permanent loss of a vital bodily function, in which case the total amount of damages for noneconomic loss shall not exceed $500,000.00.

198. Product Liability Issues in the U.S., supra note 87, at 582.

199. Id. at 582-83.

200. MICH. COMP. LAWS ANN. § 600.2946 (2019).

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the looming perils of abundant product liability litigation that autonomous vehicles will bring, and will need to undergo transformation in order to prepare for this threat. 201 Michigan should transform its product liability statute in order to find a more efficient way to manage the flood of forthcoming product liability suits. The solution is to adopt more of a strict theory of product liability, 202 such as California.

As briefly touched upon earlier in this paper, the California Supreme Court case of Greenman v. Yuba Power Products203 is the landmark case that put California on the map as a state that adequately addresses product liability lawsuits by maintaining a strict liability theory. The Greenman case involved a Plaintiff (Greenman) who was utilizing a shop-smith power tool that was manufactured by Defendant, Yuba Power Products, when a piece of wood that he was working on flew out of the machine and struck him in the head where he sustained serious injuries.204 Greenman brought forth the suit on a breach of warranty claim, and the Court ultimately held that Greenman was allowed to bring forth such a claim, and need not show express warrant or give sufficient notice, because the Defendant was strictly liable. 205 The Greenman decision was “the first unequivocal court decision adopting both the rule and the theory of strict liability in torts for products.”206 By virtue of this benchmark decision, there is a powerful 201. Studies have shown that the “threat of massive product liability litigation involving [autonomous vehicles] is widely perceived as one of the chief obstacles to AV development and sales, if not the number one threat.” Product Liability Issues in the U.S., supra note 87, ch. 26 (citing “Some of the largest obstacles to autonomous consumer vehicles are the legalities [3].” Reports from Lloyd’s of London and the University of Texas listed product liability as among the top obstacles for AVs.”).

202. Automated Driving and Product Liability, supra note 68, at 2 (“The Article concludes that the current product liability regime, while imperfect, is probably compatible with the adoption of automated driving systems. These systems, when introduced, are likely to be substantially safer than human-driven vehicles.”).

203. Greenman v. Yuba Power Prod. Inc., 377 P.2d 897 (Cal. 1963).

204. Id. at 898–99.

205. Id. at 900–01.

206. John W. Wade, Chief Justice Traynor and Strict Tort Liability For Products, 2 HOFSTRA L. REV. 455, 459 (1974) [hereinafter Strict Tort Liability For Products] (“And it has been followed by state after state, to the point that today, only twelve years later, the jurisdictions which have not adopted the strict liability theory are insignificant in number. Greenman has been cited by the state courts in almost threefourths of the states and by the federal courts in several more states. The transition to the strict liability rule has not only been complete, it has also taken place in an unprecedentedly short time.”).

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phrase that Justice Traynor’s highlighted in his opinion that outlined the principle of strict liability as a fundamental baseline theory; it stated: “A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.”207 While this sentence created and persistently set forth, a central theory of liability that courts subsequently followed, it is a supplementary sentence from the opinion that this paper argues that Michigan should adopt and employ within its insurance regime. The phrase reads: To establish the manufacturer’s liability it was sufficient that plaintiff proved that he was injured while using the [product] in a way it was intended to be used as a result of a defect in design and manufacture of which plaintiff was not aware that made the [product] unsafe for its intended use.208 The decision of Vandermark v. Ford Motor Co.209 puts to rest any argument that advocates that Justice Traynor’s words were mere dicta, as “it is a very strong indication that Greenman has established in California that liability of a manufacturer no longer need rest on contract warranty, but will be imposed as strict liability in tort.” 210 The discrepancies between Michigan’s product liability statute and California’s Supreme Court decision of Greenman are patent.

Michigan does not have a seminal case that memorializes the theory of strict product liability, as does Greenman. Hence, there is a strong argument in favor of Michigan, embracing such a theory as a means of facilitating the inevitable movement from human-dependent vehicles to driverless vehicles. This shift, as mentioned above, will undoubtedly be accompanied by scores of product liability claims that Michigan will not be able to handle. 211 Michigan’s product liability statute sets forth a myriad of factors that the plaintiff needs to establish in order to 207. Strict Tort Liability For Products, supra note 209, at 462 (citing 59 Cal. 2d 57, 377 P.2d 897, 27 Cal. Rptr. 697 (1962)).

208. Id. at 462-463, Yuba Power Prod. Inc., 377 P.2d at 901.

209. Michael M. Shea, Comment, Products Liability: Strict Liability in Tort Notes and, 4 SANTA CLARA L. REV. 218, (1963) [hereinafter Strict Liability in Tort] (quoting Vandermark v. Ford Motor Co., 34 Cal. Rptr. 723, 729 (cal. app. 2d 1963), vacated, 391 P.2d 168 (1964).

210. Id. at 219.

211. See discussion supra. See also, MICH. COMP. LAWS ANN. § 600.2946 (West 2019).

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prevail in a product liability claim. 212 This paper further recognizes and appreciates Michigan’s reluctance to deploy such a permanent theory, as it is a vehicle manufacturing powerhouse state. Against that premise, however, it is essential that Michigan utilize this theory in order to welcome the proliferation of autonomous vehicles and the foreseeable rise in product liability claims that accompany them. But how can Michigan do so?

Michigan should go a step beyond the product liability statute it currently employs and adopt a strict liability theory. Meaning, a plaintiff has to put forth evidence to prove that the vehicle’s software was defective and that the plaintiff suffered a serious bodily injury to life or limb213 while using or operating the vehicle; that alone should suffice in order for the injured party to now seek recovery from the product manufacturer or seller. This theory would work with respect to autonomous vehicles because a party who was injured by an autonomous vehicle may not have done anything wrong (i.e. they were not negligent or reckless) but would allow them to still recover due to a manufacturing or design defect.

With this theory, the plaintiff will be relieved of the burden214 of hiring an expert witness in order to perform an exhaustive review of the vehicle’s software and, assess whether there was “a practical and technically feasible alternative production practice [that] was available.”215 As the law in Michigan currently stands, plaintiffs endure this long and burdensome process and undergo a host of various challenges when bringing forth such evidence. The plaintiff has to bring forth the suit, hire a computer or software expert to identify the code or formula used in the vehicle’s software, put forth the evidence that the product was unreasonably safe, identify all possible and feasible alternatives, and convince the jury—who are most likely illinformed of the various complexities of these state-of-the-art vehicles.

These vehicles are at the epicenter of the tech-age phenomenon and will only become more multifaceted. As a result, Michigan should amend its current product liability act whereby plaintiffs have to prove a host of various complex elements, and instead rely on a stricter product liability theory, analogous to Greenman’s decision in California.

212. See generally MICH. COMP. LAWS ANN. § 600.2946 (West 2019).

213. Strict Liability in Tort, supra note 212, at 218 (citing Vandermark v. Ford Motor Co., 34 Cal. Rptr. 723, 729 (cal. app. 2d 1963), vacated, 391 P.2d 168 (1964).

214. See Defining Serious Impairment of Body Function, supra note 169, at 4.

215. MICH. COMP. LAWS ANN. § 600.2946 (2019).

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As the intro to this paper outlined, Michigan manufacturers of autonomous vehicles will have to fund some source of money to compensate potential injured parties for the accidents that occur. On that account, this paper argues that, if Michigan adopts a strict product liability theory, manufacturers may be averse to continue production of these cars if they hold all of the risk, and will, therefore, be entitled to some affirmative defenses. 216 In regards to the lower levels of automation (i.e. levels 0-3), the burden will be shifted to the manufacturers and will require them to put forth a defense that relies upon the interference of the human driver. As such, if a human driver interfered with the automated system’s operation of the vehicle, the manufacturers will not be held liable if there was a foreign element that interrupted the equation. This defense, however, cannot be used when assessing liability with respect to the higher levels of automation (i.e. levels 4 and 5), as these vehicles do not require a human driver to be present.217 VI.

The Doctrine of Res Ipsa Loquitur

If Michigan employs a strict product liability theory, plaintiffs are likely to rely on the common law doctrine – Res Ipsa Loquitor. 218 “The 216. MICH. CT. R. 2.111 (3) (3) Affirmative Defenses. Affirmative defenses must be stated in a party’s responsive pleading, either as originally filed or as amended in accordance with MCR 2.118.

Under a separate and distinct heading, a party must state the facts constituting (a) an affirmative defense, such as contributory negligence; the existence of an agreement to arbitrate; assumption of risk; payment; release; satisfaction; discharge; license; fraud; duress; estoppel; statute of frauds; statute of limitations; immunity granted by law; want or failure of consideration; or that an instrument or transaction is void, voidable, or cannot be recovered on by reason of statute or nondelivery; (b) a defense that by reason of other affirmative matter seeks to avoid the legal effect of or defeat the claim of the opposing party, in whole or in part; (c) a ground of defense that, if not raised in the pleading, would be likely to take the adverse party by surprise.

217. See discussion supra Part II. 218. Compare Mitcham v. City of Detroit, 94 N.W.2d 388, 393 (Mich. 1959) (concluding that “[b]y whatever euphemisms we may choose to call it, we suspect that res ipsa loquitur is here to stay”), with Wilson v. Stilwill, 309 N.W.2d 898, 905 (Mich. 1981) (“Michigan has not formally adopted the doctrine of res ipsa loquitur.

However, the underlying concepts of res ipsa loquitur, which are circumstantial evidence and negligence concepts, have been applied in Michigan.”). Nonetheless, in 1987, the Michigan Supreme Court formally recognized what had become a practical reality:

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major purpose of the doctrine of res ipsa loquitur is to create at least an inference of negligence when the plaintiff is unable to prove the actual occurrence of a negligent act.”219 Pursuant to Michigan’s version of the doctrine of res ipsa loquitur, the plaintiff must establish the following elements: 1. [t]he event must be of a kind which ordinarily does not occur in the absence of someone’s negligence[,] 2. [t]he event must have been caused by an agency or instrumentality within the exclusive control of the defendant[,] 3. [t]he event must not have been due to any voluntary action or contribution on the part of the plaintiff[, and] 4. [e]vidence of the true explanation of the event must be more readily accessible to the defendant than to the plaintiff.220 Against that background, a plaintiff that raises the claim of res ipsa loquitur cannot rely on mere speculation, but will need to put forth circumstantial evidence that advances a reasonable inference of causation.221 Further, said plaintiff must also present “substantial evidence from which a jury may conclude that more likely than not, but for the defendant’s conduct, the plaintiff’s injuries would not have occurred.”222 Therefore, the plaintiffs who rely on this doctrine will need to overcome the burden of establishing causation because the mere possibility that a breach of duty caused the injury is not sufficient to rely on this doctrine.223 The plaintiffs will have the option of proving to the jury that, despite performing an exhaustive and comprehensive analysis as to the car accident, they could not find any defect whatsoever, and should be able to rely on the doctrine of res ipsa loquitur as a result. The plaintiff Whether phrased as res ipsa loquitur or circumstantial evidence of negligence, it is clear that such concepts have long been accepted in this jurisdiction. The time has come to say so. We, therefore, acknowledge the Michigan version of res ipsa loquitur which entitles a plaintiff to a permissible inference of negligence from circumstantial evidence.

Jones v. Porretta, 405 N.W.2d 863, 872 (Mich. 1987) (quotation marks omitted) (the Michigan Supreme Court has previously issued somewhat ambiguous statements regarding the doctrine of res ipsa loquitur).

219. Porretta, 405 N.W.2d at 872 (emphasis added).

220. Wilson v. Stilwill, 309 N.W.2d 898, 905 (Mich. 1981) (concluding that the plaintiff in a medical malpractice claim had not established a prima facie case of negligence by the defendant hospital).

221. Skinner v. Square D Co., 516 N.W.2d 475, 480 (1994).

222. Id. 223. Id.

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puts forth a rebuttable presumption, by virtue of relying on the strict product liability theory, that there was a defect in the autonomous vehicle and that because the plaintiff was using or operating the vehicle when it crashed and he sustained injuries, the manufacturer should be liable. The manufacturer, as a defendant, can rebut this presumption via expert testimony that delineates that they have checked every inch of the vehicle and every line of computer programming code and found no defect whatsoever.

Because tort law has developed with certain types of harms or injuries, either in the negligence arena or the products liability arena, the idea that the circumstances of the accident speak to either negligence or product defect won’t require the plaintiff to actually put forth specific evidence to prove it. Within this context, the idea that the autonomous vehicle crashed tells us that something was inherently wrong with the vehicle. Hence, the doctrine of res ipsa loquitur can be relied upon. Therefore, this paper argues that Michigan should use this theory of liability to move beyond fault, move beyond product liability, and move generally to a no-fault product liability arena.

VII.

CONCLUSION

In summary, the proliferation of automated vehicles will arguably reduce the number of accidents, as well as minimize the cost of crashes. This argument is two-fold: (1) that the majority of car accidents that occur in the world today are largely due to human error, and (2) that by reducing the risk of human error, autonomous vehicles can reduce the likelihood of accidents, which would resultantly reduce the overall costs of accident coverage under Michigan’s No-Fault Act. Proponents of this technology argue that, because of their ability to encouragingly reduce the risk of crashes, automated vehicles could potentially eliminate the need for specialized automobile insurance.

The widespread use of driverless cars could also weaken the degree to which a driver must be found at fault in an accident. While Michigan’s No-Fault Act eliminates this concern, especially with respect to first-party claims, it remains an issue with third-party claims when assessing the level of fault that the human driver possessed in order to initiate an action against the tortfeasor. Because currently the driver is considered to be the sole party responsible for a crash, autonomous vehicles will likely dilute the notion that drivers are the only factors to consider when determining fault. In the case of level 3 autonomous vehicles, both the driver and the software itself could be held liable for an accident. On one hand, the software itself could

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malfunction and not provide the driver with adequate warnings, leading to an accident. On the other hand, there is also the possibility that the human driver could ignore the software’s effective warning of an impending crash, leading to a car crash. As a result, the shift from driver-dependent vehicles to automated cars (and the software’s manufacturer), the use of such technology is likely to challenge the established social allocation of blame for accidents. This will bring about the inevitable rise in product liability lawsuits and a drop in personal liability lawsuits, insomuch as the plaintiffs will come after the vehicle’s software manufacturer, as opposed to the negligent driver of the other vehicle.

As outlined in the various sections of this paper, Michigan’s “modified” No-Fault Insurance system is not uniquely positioned to handle the influx of autonomous vehicles and the host of product liability issues that accompany them. Michigan’s no-fault act allows a Plaintiff to bring two main types of claims: first-party claims and thirdparty claims. With respect to first-party claims, an injured party can bring a claim against his own insurance carrier for benefits such as wage loss, medical benefits, etc., but cannot seek to recover noneconomic damages; those are reserved for third-party claims.

Third-party claims, in contrast, allow a plaintiff to bring forth a claim against the negligent driver of the vehicle for noneconomic damages, such as pain and suffering, as long as the plaintiff can meet the injury threshold of serious impairment to an important bodily function. These two actions do not provide Michigan with an effective and clear manner that can facilitate the rise of product liability cases. Since the No-Fault Act is not in a good position to welcome these vehicles, we then look to Michigan’s product liability statute for a form of relief.

While first-party claims pursuant to the Act will largely remain the same, third-party claims will need to undergo changes in order to account for the absence of the human driver’s negligence. But the question of insurance under the Act and insurance rates in general rise to the fore of this debate: will drivers or passengers even need insurance? Since the “driver” of the autonomous vehicle is merely sitting in a seat while the system operates the vehicle, much like a passenger on a bus sits on a seat while the bus driver drives, will said driver need to purchase insurance? This issue raises many concerns with respect to liability and the manner in which a plaintiff can bring forth a claim.

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Pursuant to Michigan’s product liability statute, 224 a plaintiff bringing such a lawsuit against a manufacturer or seller is required to satisfy a host of requirements, such as “establish[ing] that the product was not reasonably safe at the time the specific unit of the product left the control of the manufacturer or seller and that, according to generally accepted production practices at the time the specific unit of the product left the control of the manufacturer or seller, a practical and technically feasible alternative production practice was available that would have prevented the harm without significantly impairing the usefulness or desirability of the product to users and without creating equal or greater risk of harm to others.” 225 The plaintiff bringing forth such a claim will be burdened by the lengthy and troublesome process, which includes bringing in testimony from computer expert witnesses in order to prove that the product was unreasonably safe and outline any and all practical and technically feasible alternative designs. All while attempting to convince the illinformed jury that a vehicle was defective in some manner. In summation, this paper argues that Michigan should adopt a strict product theory of liability, much like California has in its Supreme Court decision of Greenman v. Yuba Power Products.226

224. MICH. COMP. LAWS ANN. § 600.2946 (2019).

225. See Id. 226. Greenman v. Yuba Power Prod. Inc., 377 P.2d 897, (Cal. 1963).

THE RAPIST’S SECOND ATTACK: TERMINATING RAPISTS’ PARENTAL RIGHTS ASHLEY VAN FLEET* ABSTRACT This comment examines state laws regarding the termination of Rapists’ Parental Rights. It places special emphasis on the difficult issues faced by the rape victim, who has to continue to interact with her rapist in a parenting context. It discusses the current state of law in the various states and recommends reforms to improve the overall system and improve protection for victims.

TABLE OF CONTENTS I. INTRODUCTION ..............................................................................244 II.A LEGISLATIVE HISTORY OF RAPE ................................................246 III.CURRENT RAPE LEGISLATION AND CULTURE ..............................248 IV.THE UGLY TRUTH OF RAPE .........................................................249 V.PARENTAL RIGHTS ........................................................................250 VI.LEGISLATION LIMITING OR OTHERWISE TERMINATING PARENTAL RIGHTS ...................................................................................251 VII.STATE LEGISLATION...................................................................252 A. Legislation for States Limiting or Terminating Parental Rights ................................................................................253 B. The Result of State Legislation .........................................257 C. The Positive and Negative Effects of Current Legislation259 i. Model Legislation.......................................................259 ii. Legislation Providing Inadequate Protections ............261 VIII. LEGISLATIVE REFORM............................................................263 IX.CONCLUSION ...............................................................................264 * Ashley Van Fleet is graduating from WMU-Cooley Law School in January 2020. She is a recipient of WMU-Cooley’s leadership award and was an Associate Editor of the WMU-Cooley Law Review. She received her undergraduate degree from Lake Superior State Unversity, majoring in Criminal Law. She plans to practice tax law with the State of Michigan after graduation. She enjoys the company of her dog Tippy.

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I. INTRODUCTION In 2011 Noemi, a high school student, was raped by her coworker. He was later charged with first-degree sexual assault, but was able to plead to the lesser charge of third-degree sexual assault. 1 The state of Nebraska, where the attack occurred, would only allow Noemi to terminate her rapist’s parental rights if he had been convicted of first-degree sexual assault. 2 But because her attacker was convicted of a lesser degree of sexual assault, his parental rights over Noemi’s daughter were still intact. 3 Noemi has been left in a terrible position. “Now, I have to text my rapist or email my rapist.

To leave my daughter with someone I didn’t trust. [I’m] forced to parent with him and to see him on a weekly basis . . . to talk to him about my daughter’s school activities and her health.” 4 Since state legislation failed to keep both Noemi and her daughter safe from her rapist by terminating his parental rights, Noemi is facing a life sentence of having to parent her child alongside her rapist. 5 During a time where reports of sexual assault boom across the airways and have seemingly become a common occurrence, it is important to take a step back and consider how current laws protect women from their attackers after a rape has occurred.6 This paper will specifically address cases where rape has occurred and resulted in a pregnancy. While many forms of sexual assault and abuse have nuanced problems, this comment will specifically address cases of rape and the rights retained by rapists. Nearly one in five women (18.3 percent) have reported being raped in their lifetime; this is

1. Thom Patterson, ‘I Have to Text My Rapist’: Victims Forced to Parent with Attackers, CNN: HEALTH (Nov. 18, 2016), https://www.cnn.com/2016/11/17/health /rape-parental-rights/index.html.

2. Id. 3. Id. 4. Id. 5. Id. 6. An Updated Definition of Rape, DEP’T OF JUST. (Jan. 6, 2012, 2:35 PM), http://www.justice.gov/archives/opa/blog/updated-definition-rape (demonstrating that states use different terms to define the act that this paper will refer to as “rape,” as some states refer to it as criminal sexual conduct, rape, or sexual assault and all instances discussed in this paper are a type of penetrative sexual assault that results in pregnancy).

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equal to almost 22 million women in the United States. 7 Of those women who have been raped, five percent become pregnant. 8 To most, it seems as if abortion is the only answer to a rape resulting in pregnancy. But what protections does the law offer for a woman who is unwilling or unable to obtain an abortion?

For women who decide to carry out their pregnancies, the laws protecting a mother and her child from her rapist are grossly inadequate.9 For this reason, it is imperative that stronger legislation is adopted nationwide to protect victim-mothers and their children through the termination of rapists’ parental rights. 10 Part II discusses the history of rape as well as current definitions of rape. Part III gives insight on national trends and current legislative culture regarding rape and terminating rapists’ parental rights. Part IV details the propensity of rape-conceived pregnancies. Part V discusses what encompasses parental rights. Part VI gives a discourse on legislation that can limit or otherwise terminate parental rights. Part VII considers current federal and state legislation that limits or terminates rapists’ parental rights. Its subsections debate both model and state statutes and discuss which are adequate with regard to their impact on victim-mothers and their children. Finally, Part VIII suggests legislative reform that can provide even greater protections to victimmothers and their children.

7. See MICHELE C. BLACK ET AL., CTR. FOR DISEASE CONTROL & THE NAT’L INTIMATE PARTNER AND SEXUAL VIOLENCE SURV., 18 (2011), https://www.cdc.gov/violenceprevention/nisvs/index.html (presents information together which originated from separate studies and RAINN presents this data for educational purposes only, and strongly recommends using the citations to review any and all sources for more information and detail including 1.

The Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, National Crime Victimization Survey, 2010-2014 (2015); 2. Federal Bureau of Investigation, National Incident-Based Reporting System, 2012-2014 (2015); 3.

Federal Bureau of Investigation, National Incident-Based Reporting System, 20122014 (2015); 4. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Felony Defendants in Large Urban Counties, 2009 (2013)).

8. Melisa M. Holmes, Rape-related Pregnancy: Estimates and Descriptive Characteristics from a National Sample of Women, 175 AM. J. OBSTETRICS GYNECOLOGY, 320, 321 (1996).

9. Kara N. Bitar, The Parental Rights of Rapists, 19 DUKE J. GENDER L. & POL’Y 275, 276 (2012).

10. For the purpose of this paper the biological mothers will be referred to as “victim-mothers”, their children will be referred to as being “rape conceived”, and their biological fathers will be referred to as “rapist-fathers” regardless if there has been a prosecution and/or conviction of rape.

PREVENTION,

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A LEGISLATIVE HISTORY OF RAPE

Today’s rape victim rarely has the opportunity to see her attacker inside a courtroom. Although nearly one out of every five women have been raped in their lifetime, 11 it is estimated that for every 1,000 sexual assaults that occur, only 230 are reported to the police, and only 46 lead to arrest of the rapist.12 Finally, only “five cases will lead to a felony conviction,” and only “4.6 rapists will be incarcerated” for their crime. 13 We as a society know that rape is occurring with an alarming frequency, yet the conviction rates do not reflect this. Despite enormous societal changes towards greater protections for rape victims, these numbers still reflect a frighteningly low conviction rate for rapists.

Sir William Blackstone, a much-revered, eighteenth-century-legal scholar,14 first defined rape in his Commentaries on the Laws of England, which shaped much of English and American common law.15 The definition of rape that Blackwell provided was the “carnal knowledge of a woman forcibly and again[s]t her will[,]” 16 which was punishable, until recently, by death. 17 Although rape has always been viewed as both a serious and horrific crime, rape has historically had a very low conviction rate. 18 Legal scholars have asserted that part of the reason for this is due to the past requirement that a woman must physically fight her attacker to the “utmost,” and that the rape

11. See Black, supra note 7, at 18.

12. The Criminal Justice System: Statistics, RAINN, https://www.rainn.org /statistics/criminal-justice-system 13. Id. 14. Sir William Blackstone, BLACKSTONE INSTITUTE, http://www.blackstone institute.org/_oldsite/sirwilliamblackstone.html (2012-2019).

15. Id. 16. WILLIAM BLACKSTONE. COMMENTARIES ON THE LAWS OF ENGLAND: BOOK THE FOURTH, 209 (14th ed. 1803), https://babel.hathitrust.org/cgi/pt?id =mdp.35112203968484;view=1up;seq=274. See e.g., Commonwealth v. Burke, 105 Mass. 376, 377 (1870) (“All the statutes of England and of Massachusetts, and all the text books of authority, which have undertaken to define the crime of rape, have defined it as the having carnal knowledge of a woman by force and against her will.”).

17. Coker v. Georgia, 433 U.S. 584, 597–98 (1977).

18. Christina E. Wells & Erin Elliott Motley, Reinforcing The Myth of The Crazed Rapist: A Feminist Critique of Recent Rape Legislation, 81 B.U.L REV. 127, 146 (2001).

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must be both violent and forcible to be criminally considered rape. 19 Further, there were traditionally “extra-elemental” factors that must be proven in addition to the rape itself, such as a corroboration requirement, cautionary instructions to the jury, and fresh-complaint rules. 20 Further, marital rape, as well as rape between an unmarried couple living together,21 was not recognized by the courts.22

19. See generally id., at 146–47. See also Susan Estrich, Rape, 95 YALE L.J. 1087, 1107–08 (1986). See e.g., Brown v. State, 106 N.W. 536, 538 (Wis. 1906) (“Not only must there be entire absence of mental consent or assent, but there must be the most vehement exercise of every physical means or faculty within the woman’s power to resist the penetration of her person, and this must be shown to persist until the offense is consummated.”).

20. Estrich, supra note 19, at 1137–40.

21. See, MODEL PENAL CODE § 213.6(2), (4) & (5) (AM. LAW INST. 2009) (“(2) Spouse Relationships. Whenever in this article the definition of an offense excludes conduct with a spouse, the exclusion shall be deemed to extend to persons living as man and wife, regardless of the legal status of their relationship. The exclusion shall be inoperative as respects spouses living apart under decree of judicial separation; . . . (4) Prompt Complaint. No prosecution may be instituted or maintained under this Article unless the alleged offense was brought to the notice of public authority within [3] months after a parent, guardian or other competent person specially interested in the victims learns of the offense; and (5) Testimony of Complainants. No person shall be convicted of any felony under this Article upon the uncorroborated testimony of the alleged victim. Corroboration may be circumstantial. In any prosecution before a jury for an offense under this Article, the jury shall be instructed to evaluate the testimony of a victim or complaining witness with special care in view of the emotional involvement of the witness and the difficulty of determining the truth with respect to alleged sexual activities carried out in private.”) (alteration in original).

22. See, MODEL PENAL CODE § 213.1(1) & (2) (AM. LAW INST . 2009) (“(1) Rape. A male who has sexual intercourse with a female not his wife is guilty of rape if: he compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone . . . Rape is a felony of the second degree unless (i) in the course thereof the actor inflicts serious bodily injury upon anyone, or (ii) the victim was not a voluntary social companion of the actor upon the occasion of the crime and had not previously permitted him sexual liberties, in which cases the offense is a felony of the first degree. (2) Gross Sexual Imposition: A male who has sexual intercourse with a female not his wife commits a felony of the third degree if (a) he compels her to submit by any threat that would prevent resistance by a woman of ordinary resolution.”).

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CURRENT RAPE LEGISLATION AND CULTURE

Recent legal reforms have expanded the legal recognition of rape as well as redefined it as “sexual assault.” 23 The last 25 years have been filled with both legislative and political reform resulting in new definitions of rape.24 The Bureau of Justice Statistics compiles survey data on yearly rape and sexual assault crimes. Their current definition used for rape is the following: Forced sexual intercourse including both psychological coercion as well as physical force. Forced sexual intercourse means penetration by the offender(s). Includes attempted rapes, male as well as female victims, and both heterosexual and same[-]sex rape. Attempted rape includes verbal threats of rape. 25 The legislative history surrounding rape is not the only culprit for why it is underreported. Societal views surrounding sexual assault only serve as roadblocks for rape victims seeking protections under the law. When the word “rape” is uttered, stereotypical images of men—strangers sulking in alleyways, behind cars or bushes, grabbing the first female that walks past—are conjured up.26 But eight out of ten rapes occur by someone the victim already knows, and often go unreported because the victim is afraid their attacker will retaliate.27 Moreover, the victim may feel too ashamed to report 23. Wells & Motley, supra note 18, at 150 – 51.

24. See generally Timothy W. Murphy, A Matter of Force: The Redefinition of Rape, 39 A.F. L. REV. 19, 20-21 (1996). (discussing two general approaches that have emerged. The first being the Michigan Model which eliminates the element of consent as it was thought to have improperly focused attention on the victim’s conduct versus that of the accused. Instead, “force or coercion” is used to define rape and includes a broad range of acts that encompass rape although severe personal injury is not required. The second approach, first adopted in Wisconsin, redefines consent but does not eliminate it as an element. In this approach, consent is not defined in terms of resistance to the sexual assault but is redefined as “words or actions by a [competent] person. . .indicating a freely given agreement to have sexual intercourse or sexual conduct.” Therefore, affirmative consent must be obtained and may not be passive.)

25. Rape and Sexual Assault, BUREAU OF JUST. STATS., https://www.bjs.gov /index.cfm?ty=tp&tid=317.

26. Wells & Motley, supra note 18, at 154 27. See Statistics about Sexual Violence, Nat’l Sexual Violence Res. Ctr. (2015), https://www.nsvrc.org/sites/default/files/publications_nsvrc_factsheet_mediapacket_statistics-about-sexual-violence_0.pdf [hereinafter Statistics about Sexual

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the incident. It is not surprising that rape is the most under-reported crime, as 63 percent of sexual assaults are not reported to the police.28 In addition to feeling fear and embarrassment, victims may also feel that their rapist did not fit the “stranger-rape prototype.”

Therefore, they are unsure or don’t believe that they are victims of rape, when in fact they are.29 IV.

THE UGLY TRUTH OF RAPE

It is estimated that 32,101 rapes result in pregnancies each year for women aged 18 years and older. 30 Of that number, 32.4 percent did not discover that they were pregnant until they had already entered their second trimester. 31 Further, 32.3 percent decided to keep their child, whereas 50 percent of those who became pregnant opted for an abortion.32 Finally, 5.9 percent of women placed their child for adoption, and an additional 11.8 percent of women had a miscarriage.33 Up to 12,263 women give birth to rape-conceived children annually.34 This underscores the desperate need for legislative reform—providing greater protections for women and their children by terminating their rapists’ parental rights. It is important to note that, of the women who choose to continue their pregnancy following Violence] (citation omitted); see also U.S. Department of Justice, Extent, Nature, and Consequences of Intimate Partner Violence: Findings From the National Violence Against Women Survey, 51 (2000), https://www.ncjrs.gov/pdffiles1 /nij/181867.pdf; see also Callie Marie Rennison, Rape and Sexual Assault: Reporting to Police and Medical Attention, U.S. Dep’t of Just. (Aug. 2002), http://bjs.ojp. usdoj.gov/content/pub/pdf/rsarp00.pdf.

28. Statistics about Sexual Violence, supra note 27.

29. See Martha Chamallas, Deepening the Legal Understanding of Bias: On Devaluation and Biased Prototypes, 74 CAL. L. REV., 747, 783 – 84 (2001); see also Shauna R. Prewitt, Giving Birth to a “Rapist’s Child”: A Discussion and Analysis of the Limited Legal Protections Afforded to Women Who Become Mothers Through Rape, 98 GEO. L. J. 827, 838 – 39 (2010); see also Jinye Yoo et al., Rapists’ Parental Rights: Adding Insult to Injury, 52 C RIM. LAW BULL. 1 (2016).

30. See Holmes, supra note 8, at 322.

31. Id. 32. Id. 33. Id. (spontaneous abortions are referred to as miscarriages).

34. Id. (determined by the approximate number of women giving birth to rapeconceived children per year multiplied by the number of women who kept their children and added to the children given up for adoption by the total amount of approximated rape-conceived pregnancies).

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a rape, the large majority of women opt to keep their children.

Knowing this, it is cruel for states to offer inadequate protections for both the victim-mother and her child, which can lead to a lifetime of the victim-mother being tethered to her rapist. 35 V.

PARENTAL RIGHTS

Parental rights are fundamental rights under the Due Process Clause of the 14th Amendment; therefore, requiring special protection by the government. 36 Parental rights are ultimately divided into two subcategories: physical and legal custody, which can be either joint or shared.37 McCarty v. McCarty defined legal custody as, “[T]he right and obligation to make long range decisions involving education, religious training, discipline, medical care, and other matters of major significance concerning the child’s life and welfare.”38 “Joint legal custody was defined as both parents having equal rights or an equal voice in making those legal decisions for their child.”39 The court further underscored that neither parent’s right was superior to the other.40 The case also defined physical custody as, “[T]he right and obligation to provide a home for the child and to make the day-to-day decisions required during the time the child is actually with the parent having such custody.” 41 Joint physical custody was detailed as not having to be a 50-50 equal split, and most commonly is not so.42 For example, the custody might be solely with one parent for the school year and with the other parent during summer vacation months, or it might be a division between weekdays and weekends.43 If a parent does not have physical custody of their child, they generally enjoy visitation rights. 44 Courts have determined that visitation may be granted to the non-custodial parent even if they 35. See Prewitt, supra note 29, at 827, 831-35.

36. Troxel v. Granville, 530 U.S. 57, 66 (2000); see also Fundamental Right, CORNELL L. SCH.: LEGAL INFO. INST., available at https://www.law.cornell.edu /wex/fundamental_right.

37. McCarty v. McCarty, 807 A.2d 1211, 1213 (2002).

38. Id. at 1213 (quoting Taylor v. Taylor, 508 A.2d 964 (2002)).

39. Id. 40. Id. 41. Id. 42. Id. 43. Id. 44. See Bitar, supra note 9, at 277 (citation omitted).

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have been found to sexually abuse their child. 45 This accentuates the importance that courts place on biological parents having the right to access their children.

Another right available to parents is the right to be notified if the child is placed for adoption. When the mother chooses adoption for her child, she surrenders her rights to the child voluntarily. 46 The courts have consistently shown a tendency to protect the biological connection between parent and child and have generally held that fathers have a right to block adoption by withholding their consent. 47 The “best interest of the child” standard backs up this principle and further bolsters the requirement that the biological father’s consent to the adoption of the child is necessary. 48 VI.

LEGISLATION LIMITING OR OTHERWISE TERMINATING PARENTAL RIGHTS

Knowing what parental rights are available to a parent, there are ultimately five ways that a father’s parental rights can be limited or terminated by statute: (1) his rights to be notified about or require his consent for adoption; (2) his right to physical custody; (3) his right to legal custody; (4) his right to visitation; and (5) complete termination of all parental rights.49 Termination may be either voluntary or involuntary.50 When parental rights are being terminated involuntarily, as should be the 45. Arnold v. Naughton, 486 A.2d 1204, 1207 (1985).

46. Margot E. H. Stevens, Rape-Related Pregnancies: The Need to Create Stronger Protections for the Victim-Mother and Child, 65 HASTINGS L.J. 865, 880 (2014).

47. See Ardis L. Campbell, Annotation, Rights of Unwed Father to Obstruct Adoption of His Child by Withholding Consent, 61 A.L.R. 5th 151 (2005). See also Stanley v. Illinois, 405 U.S. 645 (1972) (declaring constitutional status of an unwed father’s rights to his children); Quilloin v. Walcott, 434 U.S. 246 (1978) (declaring the protected interests of a father’s potential relationship with his child less significant than those of parents that have assumed the responsibility); Caban v.

Mohammad, 441 U.S. 380 (1979) (considering the rights of an unwed father that did not currently have custody of his children); Lehr v. Robertson, 463 U.S. 248 (1983) (stating that an unwed father has “an opportunity interest” with his child).

48. Id. 49. See Jihye Yoo, et al., Rapists’ Parental Rights: Adding Insult to Injury, 52 CRIM. LAW BULL. 1, 5 (2016); see also Bitar, supra note 9, at 286-87 (citations omitted).

50. Grounds for Involuntary Termination of Parental Rights, CHILD WELFARE INFO. GATEWAY, https://www.childwelfare.gov/pubpdfs/groundtermin.pdf.

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case for rape-conceived children, most states require that a court determine: (1) by clear and convincing evidence, that a parent is unfit;51 and (2) whether severing the parent-child relationship is in the child’s best interests. 52 Recognizing that rape can and does result in pregnancy, the federal government has enacted legislation to protect both the victimmothers and their rape-conceived children. In 2015, under the Obama Administration, Congress authorized the Rape Survivor Custody Act (which came in under the Justice for Victims of Trafficking Act). 53 This act encourages termination of rapists’ parental rights using the clear and convincing evidence standard. States normally use this standard to terminate a person’s parental rights, and the federal government incentivizes this action by providing additional funding to the states.54 States that complied during the fiscal year of 2016, and thus were eligible for funding, were Alaska, Colorado, Florida, Georgia, Hawaii, Indiana, Iowa, Maine, Michigan, Missouri, Texas, and Wisconsin.55 The creation of this act, and the states’ compliance with it, shows that there is a trend toward the termination of rapists’ parental rights.

VII.

STATE LEGISLATION

In addition to the federal government passing the Rape Survivor Custody Act, states have also enacted legislation to protect the rights of victim-mothers and their children.56 Approximately 45 states and the District of Columbia have current legislation regarding the parental rights of sexual-assault offenders.57 Several states have more than one law addressing the limitation of offenders’ parental rights.

These laws come in two categories: the restriction of parental rights, and the complete termination of parental rights.58 Ultimately, in cases 51. Santosky v. Kramer, 455 U.S. 745, 478 (1982).

52. Grounds for Involuntary Termination of Parental Rights, supra note 50.

53. See generally Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22 §403.

54. Funds Awarded under the Rape Survivor Child Custody Act, U.S. DEP’T OF JUST.: OFF. ON VIOLENCE AGAINST WOMEN, https://www.justice.gov/ovw/page /file/1005396/download.

55. Id. 56. Parental Rights and Sexual Assault, NAT’L CONF. OF ST. LEGS., http://www .ncsl.org/research/human-services/parental-rights-and-sexual-assault.aspx#Table.

57. Id. 58. Id.

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where rape resulted in pregnancy, 30 states allow for the complete termination of rapists’ parental rights, 20 states allow for some form of restriction of rapists’ parental rights, and some states permit both.59 A total of five states have no restrictions on rapists’ parental rights: Alabama, Maryland, Minnesota, North Dakota, and Wyoming.60 During the 2017 legislative season, 17 states introduced approximately 30 bills, which focused on some aspect of parental rights of rape offenders.61 Although states have made positive strides toward terminating rapists’ parental rights, many laws are still grossly inadequate in protecting victim-mothers and their rapeconceived children.

A.

Legislation for States Limiting or Terminating Parental Rights

The following table compares state legislation regarding the limitation or termination of parental rights (TPR). 62 State Alaska

Conviction No

Burden of Proof Not Specified

Arizona

Yes

Not Specified

Arkansas

Yes

Not Specified

California

Yes

Not Specified

Colorado

Yes

Clear & Convincing Evidence Clear & Convincing Evidence

No

59.

60.

61.

62.

Context TPR for Adoption/ Grounds for TPR Denial of all legaldecision making or parental time rights Paternity/ Child Support Custody of Children/ Child Support TPR/ Adoption TPR/ Adoption

Id. Id. Id. TPR as meaning “Termination of Parental Rights.”

Statute Alaska Stat. §25.23.180 Ariz. Rev Stat §25-416 2016 HB 2488 Ark. Stat. Ann. §9-10-121 2013 HB 1002 Cal. Fam. Code §3030 Colo. Rev. Stat. §19-5-105.5 2013 SB 227 Colo. Rev. Stat §19-5-105.7 2014 HB 1162

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Connecticut

Yes No Yes & No

Clear & Convincing Evidence Clear & Convincing Evidence Clear & Convincing

TPR/ Child Welfare/ Reunification Child Welfare/ Adoption/ TPR TPR Child Protection/ Prohibition on Visitation Child Custody

Delaware

Yes

Not Specified

District of Columbia

Yes

Not Specified

Florida

No

Clear & Convincing Evidence Not Specified

Georgia

Not Specified

No No No Hawaii

Yes

Clear & Convincing Evidence Clear & Convincing Evidence Clear & Convincing Evidence Not Specified

Ground for TPR Juvenile court definitions that apply to TPR/ CHINS63/ Delinquency Legitimation/ Paternity TPR/ Adoption TPR/ Adoption

No

Clear & Convincing

Custody & Visitation/ Child Support TPR allowed/ Child Support

Idaho

Not Specified

Not Specified

TPR

Illinois

Yes, and no

Clear & Convincing Evidence

Parentage Act/ Parenting Time/ Child Support

Indiana

No

Clear & Convincing Evidence

TPR

[Vol. 35:2 Conn. Gen. Stat. §17a-111b 2001 HB 6652 Conn. Gen. Stat. §17a-112 2016 HB 5605 Conn. Gen. Stat. §45a-717 2016 HB 5605 Del. Code tit. 13, §724A D.C. Code §16914(k) 2013 B 184 Fla. Stat. §39.806 Ga. Code §15-112 2016 SB 331 Ga. Code §19-722 2016 SB 331 Ga. Code §19-810 2016 SB 331 Ga. Code §19-811 2016 SB 331 Hawaii Rev. Stat. §571-46 2013 SB 529 Hawaii Rev. Stat. §571-61 2013 SB 529 2016 SB 2811 Idaho Code §162005 2005 HB 325 Ill. Rev. Stat. ch.

750, §46/622 2013 HB 3128 2016 HB 1531 Ind. Code §31-353.5-1 et.seq.

2016 HB 1064

63. CHINS as meaning “Children in Need of Services”; See Kristen Widner, Children in Need of Services: A Guide to Cases under Article 5 of Georgia’s New Juvenile Code, JUST GA.: BUILDING JUSTICE & SAFETY FOR CHILDREN, http://law.uga.edu/sites/default/files/Guide%20to%20Children%20In%20Need%20 of%20Services%20Procedures%20in%20Georgia’s%20New%20Juvenile%20Code .pdf; see also GA. CODE ANN. §15-11-2(1) (2017).

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Kansas

THE RAPIST'S SECOND ATTACK No

Clear & Convincing Evidence

Grounds for PR

Yes

Not Specified

Factors for TPR

Yes

Factor for Unfitness

Kentucky

Yes

Clear & Convincing Evidence Not Specified

Louisiana

Yes

Not Specified

Maine

Yes, and no

Preponderance of the Evidence if Conviction; Clear & Convincing if No Conviction Clear & Convincing Evidence

TPR allowed

Paternity/ Prohibition on Visitation Rights Prohibition on custody

No

Massachusetts

Yes

Not Specified

Michigan

Yes, and no

Not Specified if Conviction; Clear & Convincing if No Conviction Clear & Convincing Evidence Clear & Convincing Evidence Not Specified

No Mississippi

No

Missouri

Yes

Montana

Yes Yes

Clear & Convincing Evidence Not Specified

Nebraska

Yes

Not Specified

Nevada

Yes

Not Specified

Child Custody & Child Support Adoption/ Ground for TPR

Grounds for TPR

Paternity Established Grounds for TPR Ground for TPR Grounds for TPR Criminal Code/ Forfeiture of all Parental & Custodial Rights Grounds for TPR Prohibition on Custody & Visitation

255 Iowa Code §232.116 Iowa Code §600A.8 2016 HB 2386 Kan. Stat. §382269 Kan. Stat. §382271 Ky. Rev. Stat. §403.322 La. Child. Code §1015 La. Child. Code §1004 2001 SB 1076 2016 HB 1135 Me. Rev. Stat.

Ann. Tit. 19-A, §1658 2016 SB 575 Me. Rev. Stat.

Ann. Tit. 22, §4055 2016 SB 575 Mass. Gen. Laws Ann. Ch. 209C, §3 Mich. Comp.

Laws §722.25 2016 HB 4481 Mich. Comp.

Laws §722.1445 2016 SB 858 Miss. Code §9315-119 2017 SB 2342 Mo. Rev. Stat. §211.447 1997 HB 343 Mont. Code. Ann. §41-3-609 Mont. Code Ann. §45-5-503 Neb. Rev. Stat. §292 Nev. Rev. Stat. §125C.210

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New Hampshire

Yes, and No

New Jersey

Yes

Not Specified if Conviction; Beyond a Reasonable Doubt if no Conviction Not Specified

New Mexico

Not Specified

Not Specified

New York

Yes

Not Specified

Custody & Visitation

North Carolina

Yes

Clear & Convincing Evidence Not Specified

Ground for TPR/ Abuse, Neglect, Dependency Criminal Code/ Prohibition on Custody No Parental Rights

Yes

TPR Allowed

N.H. Rev. Stat.

Ann. §170-C:5a 2014 SB 253

Prohibition on Custody & Visitation / Child Support Adoption

N.J. Stat. Ann. §9:2-4.1

Ohio

Yes

Oklahoma

Not Specified

Clear & Convincing Evidence Not Specified

Oregon

Yes

Not Specified

TPR allowed/ Child Support

Yes

Not Specified

Not Specified

Not Specified

Best Interest Factor in Determining Child Custody/ Child Support Adoption/ Ground for TPR

Yes

Not Specified

Factor for Custody Determination

Rhode Island

Yes

Not Specified

Prohibition on Custody & Visitation

South Carolina

Yes

Not Specified

Grounds for TPR

South Dakota

Not Specified

Not Specified

Tennessee

Yes

Clear & Convincing Evidence Not Specified

Custody & Visitation Adoption/ Grounds for TPR

Pennsylvania

Yes

[Vol. 35:2

Ground for TPR

Prohibition on Custody & Visitation/ Child Support

N.M. Stat. §32A5-19 N.Y. Dom. Rel. §240 2013 SB 5069 NC. Gen. Stat. §7B-111 2012 HB 235 N.C. Gen. Stat. §14-27.21 through §1427.23 Ohio Rev. Code §3109.50 est.seq.

2014 SB 207 Okla. Stat. tit.

10A, §1-4-904 Or. Rev. Stat. §419B.510 2011 SB 522 Or. Rev. Stat. §107-137 Pa. Cons. Stat. tit.

23, §2511 Pa. Con Stat. tit.

23, §4321 1992 HB 79 2015 SB 663 Pa. Cons. Stat. tit 23, §5329 Pa. Cons. Stat. tit.

23, §4321 1992 HB 79 2015 SB 663 R.I. Gen. Laws §15-5-16 2013 SB 43 2013 HB 6231 S.C. Code §63-72570 S.D. Codified Laws §25-4A-20 Tenn. Code. Ann. §36-1-113 2010 HB 4139 Tenn. Code Ann. §36-6-102 2010 HB 4139

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Texas

No

Clear & Convincing Evidence Not Specified

Utah

Yes

Vermont

Yes

Virginia

Yes

Washington

Yes

Clear & Convincing

TPR Allowed

West Virginia

Yes

Not Specified

Wisconsin

Yes

Not Specified

No Custodial Responsibility or Parenting Time/ Child Support Ground for TPR

Clear & Convincing Evidence Not Specified

Grounds for TPR Criminal Code; Prohibition on Custody & Parenting Time/ Child Support Restriction of Parent-Child Contact Child Custody

257

Tex. Fam. Code §161.007 1997 HB 1091 Utah Code Ann. §76-5-414 2013 HB 152 Vt. Stat. Ann. Tit. 15, §665 2014 HB 88 Va. Code §20124.1 Wash. Rev. Code §13-34-132 2000 SB 6217 W. Va. Code §489-209a Wis. Stat. Ann. §48.415

64

B.

The Result of State Legislation

Looking at all states’ statutes collectively, there are ultimately three types of legislation regarding the termination of rapists’ parental rights. The first type of legislation is actually an absence of a statute, which allows for a complete judicial determination of the case regarding the limitation or termination of parental rights. 65 The main problem stemming from this type of legislation is that the victim-mother has no way of knowing what fate may befall her and her child. This lack of protection leaves a woman who does not choose abortion stripped of any real choice over her and her child’s fates, as she may be subjected to a life co-parenting with her rapist.

The second type of legislation calls for the requirement of a criminal conviction of rape or sexual assault to terminate or limit parental rights. Typically, in civil cases, the clear and convincing evidence standard is required to involuntarily terminate a parent’s rights. This is a standard that requires a showing that “[t]he party must present evidence that leaves you with a firm belief or conviction

64. Parental Rights and Sexual Assault, NAT’L CONF. OF ST. LEGS., supra note 56.

65. Jihye Yoo, et al., supra note 49.

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that it is highly probable that the factual contentions of the claim or defense are true.”66 However, by requiring a criminal conviction of a rapist, the burden of proof in an otherwise civil action then becomes the higher standard required for a criminal conviction. A criminal conviction requires proof beyond a reasonable doubt, which means showing the following: Proof beyond a reasonable doubt is proof that leaves you firmly convinced the defendant is guilty. A reasonable doubt is a doubt based upon reason and common sense and is not based purely on speculation . . . If after a careful and impartial consideration of all the evidence, you are not convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant not guilty.67 Employing this criminal standard in an otherwise civil matter is grossly inadequate because it calls for a higher burden of proof.68 Ordinarily, it takes a much lower standard of proof to terminate or limit parental rights. Requiring a conviction of rape results in a higher burden of proof than is necessary for any other instance of civil termination of parental rights. 69 This results in an almost insurmountable barrier for victim-mothers to overcome as shown by the devastatingly low conviction rates for rape.

The requirement of conviction also presents difficulties because some states require a high-level conviction of rape to terminate a rapist’s parental rights, but do not terminate the rights of rapists convicted of a lesser offense. 70 Victim-mothers have no control over what offense is charged or offered as a plea. This provides inadequate protection for victim-mothers and their children because many

66. 1.7 Burden of Proof—Clear and Convincing Evidence, U.S. CTS. FOR THE NINTH CIR., http://www3.ce9.uscourts.gov/jury-instructions/node/48.

67. 3.5 Reasonable Doubt—Defined, U.S. CTS. FOR THE NINTH CIR., http://www3.ce9.uscourts.gov/jury-instructions/node/338.

68. Cf. David P. Bryden & Sonja Lengnick, Criminal Law: Rape in the Criminal Justice System, 87 J. CRIM. L. & CRIMINOLOGY, 1211–1212 (1977).

69. See generally Grounds for Involuntary Termination of Parental Rights, supra note 50.

70. E.g., N.C. GEN. STAT. § 14-27.21(c), 14-27.22(c), 14-27.23(d) (2017).

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charges of rape can potentially be pled down to a lesser offense. 71 Therefore, the rapist-father may have committed the offense but can potentially receive a lower conviction, which enables him to slip through the laws protecting victim-mothers.

The third and final type of legislation, which is the gold standard for statutes of this type, calls for a showing of clear and convincing evidence that the child was conceived from rape. The clear and convincing evidence standard is what a plaintiff is usually required to show when terminating another parent’s rights to their child. 72 It is the most logical approach, especially considering the low reporting and conviction rates for rape.

C.

The Positive and Negative Effects of Current Legislation

Although great progress has been made by states with legislation concerning the termination of a rapist’s parental rights, there are still great strides to be made. Likewise, there are standards imposed by some states that set the tone for positive legislative reform that other states should model to provide greater protections for both the victim-mother and her child.73 i.

Model Legislation

Several segments of states’ legislation should serve as guideposts that should be applied nationwide to further protect victim-mothers and their rape-conceived children. For example, Florida’s statute specifies that the termination of parental rights is in the child’s best interest if that child was conceived from rape. Florida uses the clear and convincing standard to determine if conception is from rape. 74 Hawaii considers any rape that occurs in the United States to be grounds to terminate the rapist’s parental rights.75 Hawaii also uses clear and convincing evidence, which further broadens protections for victim-mothers and does not require a conviction from another state to terminate parental rights. 76 This is significant because not all 71. See LINDSEY DEVERS, U.S. DEP’T OF JUST.: BUREAU OF JUST. ASSISTANCE, PLEA AND CHARGE BARGAINING: RES. SUMMARY 1 (2011) (observing that in 2003 over 90% of cases were resolved through trial or plea).

72. See COLO. REV. STAT. ANN. § 19-5-105.7 (West 2019).

73. Parental Rights and Sexual Assault, NAT’L CONF. OF ST. LEGS., supra note 56.

74. FLA. STAT. § 39.806(1)(m) (2017).

75. HAW. REV. STAT. ANN. § 571-61(b)(5) (West 2017).

76. Id.

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rapists offend in the state where they apply for parental rights.

Implementing this carryover provision nationwide broadens protection for victim-mothers. Like Florida, Hawaii also presumes that a termination of parental rights is in the child’s best interest when the child was conceived from rape. 77 Maine has a two-prong determination for rapist-fathers depending on if (a) they were convicted of the rape by which their children were conceived, or (b) there was no conviction. 78 If there has been a conviction of rape, then the burden of proof to terminate parental rights is by a preponderance of the evidence.79 Without a conviction of rape, Maine only requires proving that the rape occurred and resulted in the conception of the child by clear and convincing evidence. 80 Like Hawaii, Maine also allows for termination of parental rights if the rape occurred outside of the state, therefore affording broad protection for victim-mothers and their children. The statute declares that the state will terminate parental rights if the “child was conceived as a result of an act by the parent of sexual assault or a comparable crime in another jurisdiction.”81 Kentucky acknowledged the problem that victim-mothers and their children face if their rapist-fathers receive parental rights in the following statute: The Commonwealth also recognizes that victims of a sexual assault who have elected to raise a child born as a result of the sexual assault, as well as that child, may suffer serious emotional or physical trauma if the perpetrator of the assault is granted parental rights with the child.82

77. Id. 78. ME. REV. STAT. ANN. tit. 19-A, § 1658 (2016).

79. 1.6 Burden of Proof—Preponderance of the Evidence, U.S. CTS. FOR THE NINTH CIRCUIT, http://www3.ce9.uscourts.gov/jury-instructions/node/47 (preponderance of the evidence is an even lower standard than the clear and convincing evidence standard).

“Where a party has the burden of proving any claim by preponderance of the evidence, it means you must be persuaded by the evidence that the claim is more probably true than not true.”

80. ME. REV. STAT. ANN. tit. 19-A, § 1658 (2016).

81. Id. 82. KY. REV. STAT. ANN. § 403.322 (LexisNexis 2018).

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This addition at the very beginning of the statute forces the courts to recognize the true trauma that occurs when a rapist-father obtains parental rights over his rape-conceived child. 83 Vermont is another state that has legislative language similar to Kentucky. It is also important to note that their legislation concerning the termination of rapists’ parental rights specifically states that a conviction is not needed. Vermont’s statute states that: The State has a compelling interest in not forcing a victim of sexual assault or sexual exploitation to continue an ongoing relationship with the perpetrator of the abuse. Such continued interaction can have traumatic psychological effects on the victim, making recovery more difficult, and negatively affect the victim’s ability to parent and to provide for the best interests of the child. Additionally, the State recognizes that a perpetrator may use the threat of pursuing parental rights and responsibilities to coerce for the sexual assault or sexual exploitation, or to harass, intimidate, or manipulate the victim.84 This compelling language recognizes the traumatic effects on both the victim-mother and her rape-conceived child when a rapistfather obtains and exercises his parental rights. The statute also acknowledges that rapists can (and do) manipulate, harass, and intimidate the victim-mothers.85 Perhaps the most compelling part of this language is the fact that the state not only recognizes the issues the victim-mother and her child face, but also makes the safeguarding of these victims a state interest. This further underscores the importance of the victim’s protection. 86 ii.

Legislation Providing Inadequate Protections

Conversely, there are several states with laws that attempt to protect victim-mothers; but, many of these statutes have glaring loopholes through which rapist-fathers are still able to obtain parental rights. The most alarming example of this are states with express provisions that do not allow the termination of parental rights in cases of marital rape. Nevada and West Virginia expressly state that 83.

84.

85.

86.

Id. VT. STAT. ANN. tit. 15, § 665 (2018).

Id. Id.

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their statutes do not cover cases where the rape occurred during a marriage.87 This devastating legislative language purposefully does not cover victim-mothers who are married to their rapist. Martial rape makes up 10 to 14 percent of all rapes.88 All states have criminalized marital rape under at least one section of their sexual offense codes. 89 Why, then, would these states, which recognize that marital rape is a serious offense, carve out a legislative exception which leaves victim-mothers and their children vulnerable to their rapists?

Another glaring inadequacy in the law exists in North Carolina.

North Carolina’s statute specifies that to terminate parental rights in rape cases there must be a felony conviction of: first-degree forcible rape, second-degree forcible rape, or the statutory rape of a child by an adult.90 This devastating law means that it is likely that a victimmother will not be able to meet this standard and will be denied protections because of the horrifically low-conviction rates for rape.

Further, the requirement of a first-degree, second-degree, or statutory rape conviction leaves the victim-mother and her child unprotected by the law if the rapist-father pleads down to the lesser offense of sexual battery—a misdemeanor which is not covered under North Carolina’s statute. 91 Even if the mother can meet the conviction requirement, the law only specifies that two parental rights can be terminated: (a) the right to custody, and (b) the right of inheritance. 92 But this statutory language does not include the express termination of parental or visitation rights, and it is silent on termination of rights in cases of adoption. 93 This law allows the possibility for courts to exercise judicial discretion and give convicted rapist-fathers custody and visitation rights. It also allows rapist-fathers to refuse consent in cases of adoption, even if the rapist-father has been convicted of felonious rape.

North Carolina is not the only state that fails to address the termination of all parental rights. Rhode Island also is silent on the 87. NEV. REV. STAT. § 125C.210 (2017); see also W. VA. CODE § 48-9-209a (2018).

88. Raquel Kennedy Bergen, Martial Rape: New Research and Directions, NAT’L ONLINE RES. CTR. ON VIOLENCE AGAINST WOMEN (2006), https://vawnet.org/sites/default/files/materials/files/201609/AR_MaritalRapeRevised.pdf.

89. Id. at 2.

90. N.C. GEN. STAT. ANN. § 14-27.21 to -.23 (West 2017).

91. Id. § 14-27.33(b); see also id. § 14-27.21 to -.23.

92. Id. § 14-27.21(c), -.22(c), -.23(d).

93. Id.

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termination of the rapist-father’s parental rights and only expressly addresses custody and visitation rights. 94 Rhode Island also requires a criminal conviction and does not allow for the clear and convincing evidence standard to apply in the absence of such a conviction. 95 Many states have inadequate laws regarding the termination of rapists’ parental rights. States which require a higher burden of proof to terminate rights do not adequately protect rape victims. They either exclude cases of marital rape from their statutory protections or disregard the ongoing trauma suffered by victim-mothers and rapeconceived children who are forced to have ongoing contact with rapists. The insufficient protections offered by these states must be replaced with statutes more reflective of modern views on the rights of rape victims.

VIII.

LEGISLATIVE REFORM

Many positive strides have been made in past years towards the statutory recognition of rape. This legislation reform is reflective, on both the federal and state level, to broaden protections for rape victims—especially those who become mothers or are conceived from rape. Knowing both the positive and negative effects of statutes governing the termination of rapists’ parental rights, additional changes must be made to bolster protections for victim-mothers and their children. Ideal legislation contains: (1) statutory language that recognizes the trauma to victims and their children when rapistfathers retain parental rights, and makes preventing these negative effects a compelling state interest; (2) a requirement of clear and convincing evidence to terminate parental rights, regardless of whether or not there is a rape conviction; and (3) language that allows a full termination of parental rights, including custody, visitation, and legal rights, and terminates the consent requirement for adoption.

As recognized in Kentucky and Vermont, continued interaction with a rapist can cause ongoing traumatic psychological effects to the victim-mother and her rape-conceived child. The prevention of ongoing trauma following a rape should be considered a compelling state interest. Therefore, statutory language that reflects this goal should be included in the protections offered by every state to rape victims.

94. 15 R.I. GEN. LAWS ANN. § 15-5–16(d)(3)-(5) (West 2017).

95. See id.

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Clear and convincing evidence should be the standard for terminating parental rights in every state. This standard should apply regardless of whether there is a conviction. Hawaii and Florida use this standard. Some states conviction requirements force rape victims to face a higher burden of proof. In normal civil cases, without the involvement of a rapist, the burden of proof is either preponderance of the evidence or clear and convincing evidence. By forcing rape victims to rise to a higher burden of proof, the statute allows an already victimized person to be victimized again. Additionally, legislation should consider out-of-state rape convictions, like the statutes of Maine and Hawaii. Similarly, legislation should also create a presumption that termination of a rapist’s parental rights is in a child’s best interest.

Finally, state statutory language should permit full termination of parental rights in rape cases. This should include the termination of visitation, legal, and custody rights. It should terminate a rapistfather’s right to refuse consent in rape-involved adoption cases.

These protections should also extend to cases of marital rape.

Affording victim-mothers and their children these protections ensures that they will not live a lifetime bullied, harassed, and in fear of the rapist. No woman should ever have to experience the horrific atrocities of rape. It is unacceptable for states to allow a rapist to attack again through the exercise of their parental rights. State legislation must provide for the termination of rapists’ parental rights.

IX.

CONCLUSION

Women can and do become pregnant after rape. A significant portion of women decide to raise their rape-conceived children.

Knowing this, states must pass legislation that helps both the victimmother and her rape-conceived child. Almost one in five96 women experience rape, and if a woman happens to become pregnant and chooses to keep her child, she can face a second attack that will continue an entire lifetime—having to co-parent with her rapist. It is time that states create protections for both victim-mother and her child by enacting legislation to terminate her rapist’s parental rights.

1.

96. The National Intimate Partner and Sexual Violence Survey, supra note 7, at

REMARKS JULY 24, 2019 LANSING, MI WMU COOLEY LAW REVIEW DISTINGUISHED BRIEF AWARD JUSTICE MEGAN CAVANAGH Thank you, Professor Cooney. I understand that my colleagues and predecessors on the Court have been regular attendees at this event, so I follow in very distinguished footsteps in coming here to congratulate the winners.

For example, Chief Justice McCormack gave this keynote back in 2014, and just two years before that, Chief Justice Robert Young was the speaker when attorney and Professor McCormack was one of the award winners.

Both gave such terrific advice regarding brief writing at the appellate level, so I have some homework for everyone. Before you write another brief, I encourage you to look back in the Cooley Law Journal to review their speeches and to take their advice.

For my part, I want to take a different approach and talk more generally about two important topics – first, about appellate advocacy and then second, about the administrative functions of the Michigan Supreme Court.

These might seem to be quite different topics, but they are related in that they are not well understood and yet they both play a critical role in our justice system.

First, appellate advocacy. As you are likely aware – I am the newbie on the Court and, until about 8 months ago, was a practicing appellate lawyer. So I thought I would share with you some of my observations on appellate advocacy from both sides of the bench.

And, in preparing to talk to you tonight, I asked myself two questions: What did I, as a practitioner, in both the trial and appellate courts, want from our Supreme Court? And, as a new Justice, what have I learned about what the Court wants from practitioners?

So, I’ll start with my perspective as an appellate practitioner. As an attorney representing my client in the Supreme Court, I wanted the Justices to understand the real world, practical implications of the Court’s decisions. Not just how a statute or a court rule reads on paper - or how it should work in a sterilized world - but how it

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actually works in the courtroom, in business, in people’s families and homes. Many a time I was frustrated at an opinion or a court-rule change that fixed one problem, only to cause another. And I wished that the Court had considered the longer-term, sometimes less obvious, implications of its decision.

As an attorney, I also wanted clear guidance and predictability from the Court so that I could advise my clients honestly about the extent of their rights, their potential liabilities, their likelihood of achieving relief on any particular issue. While open ended tests or vague rules might be good business for attorneys, they don’t help litigants - property owners, business owners, townships, employers, employees - achieve certainty and structure their affairs.

And finally, I wanted the Court to understand that people want the opportunity to be heard, fairly heard by the Court. While everyone wants to win their case, most can accept a loss so long as they know that they were afforded a fair opportunity to advance their cause.

There is one case which exemplifies this point for me. I represented a family in West Michigan who, for generations, had owned a piece of property and maintained a family home in a Lake/Park Association. When the County conducted a survey of the park, it determined that a portion of my client’s property encroached on County-owned land (as did a couple of other property owners). As a result, the County required my clients to remove their boat storage building, a parking pad and a gate. When my clients refused, the County sued.

Now, I have to tell you, at the time of this lawsuit, there had already been three Michigan Supreme Court opinions and three Court of Appeals opinions addressing the nature and extent of the County’s ownership interest in this park - going back to, I kid you not, 1912! And . . . none of them were in my client’s favor. But . . . my client certainly had good faith arguments to be made to challenge these decisions.

And my client advanced these arguments in the circuit court - and lost - after pages and pages of briefing by multiple parties, the circuit court hearing lasted mere minutes. So the case came to me to handle the appeal to the Court of Appeals. I told my clients - I primarily worked with the two adult sons in the family - that, while we had arguments, the odds of success were very slim.

But we proceeded and briefed and then appeared for oral argument in the Court of Appeals. I walked into the Court of Appeals

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in Grand Rapids that morning and met, for the first time, the patriarch of the family - a sweet, soft-spoken elderly gentleman who came with his sons to watch the argument. He brought with him that day a framed old photograph of the family cottage and held it in his lap, quietly in the courtroom as I argued.

The argument lasted at least thirty minutes - the panel had clearly read and understood all the briefs, the history of the property, and asked questions of all sides. But about two weeks later, the opinion came out, and we lost.

The two sons wanted to talk about filing an application for leave to the Supreme Court - so we had a couple long discussions about the likelihood of success, the cost, the timing, etc. We still had arguments, but they weren’t going to get them any relief.

At the end of our discussion, I asked, what did they want to do?

The father spoke up and said, we don’t need to pursue this any further. I can accept that we lost - but I could not accept that the circuit court wasn’t willing to even listen to us. I still think we should win - but at least I know that those three judges on the Court of Appeals, read what we wrote and listened to what we had to say. I can accept the loss now because we were finally given a fair chance to present our case.

That man’s point always sticks with me - the opportunity to be heard is as important, sometimes more important, than the result in a particular case. As a practitioner, I wanted the Court to understand how important the process is to those affected by the Court’s decision. How protecting a right to a fair process - ensuring the opportunity for a hearing, the chance to be heard - is a Court’s most important job.

So, for me, now sitting on the other side of the bench — I try to consider what I, as a practitioner, wanted from the Court. On every disposition of a case, I ask myself: Have I thought about how this decision, how this court-rule change, how this interpretation of a statute, works in the real world?

Does this decision prove unworkable in everyday practice, everyday life?

Does this decision create a new problem that I may not be thinking about?

Do the words I choose, make clear what I am trying to express?

Am I actually providing guidance towards resolution of a problem?

Was the process protected?

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Did the parties get a fair opportunity to be heard?

(Oh . . . and was I nice to the lawyers? I hated it when a judge was cranky, or sarcastic, or dismissive, or short-tempered . . . or just plain mean to me!)

So, now, what I’ve learned from my short time on the bench about what the Court wants from the practitioners.

Ask us the hard questions - and give us the best tools to answer those questions. Our job is to resolve the hard questions - the jurisprudentially significant questions - the ones that will impact not just one particular case or certain parties, but the cases that come after, the parties who aren’t in front of us. No matter how sympathetic we may be to a particular error by the circuit court or Court of Appeals, our role in our Court system is not error correction.

So bring us those hard questions, expect us to answer those questions - and give us the tools to do that. Of course - give us thoroughly researched briefs and good oral advocacy. But also focus on issue preservation and record building. No one is more frustrated or disappointed than the Court when it has to deny leave on an important issue because it was not raised or preserved in the lower courts - or because the factual record upon which the decision may turn hasn’t been made.

Don’t get bogged down in all the details, though important, and lose focus on the key elements of your case. Drill down, cut out peripheral arguments, and just focus on the essential points that the judges or justices need to hear. Remember, the effectiveness of your brief is not measured in the page count or number of arguments – as I heard another Judge say recently, “word counts are not aspirational.”

Rather, the effectiveness of a brief (and oral argument) is measured in whether you moved the needle and influenced the Justices to either grant leave and take your client’s case or to decide in your client’s favor. At the same time, remember that my colleagues and I on the Court are not presiding over a writing contest but a legal dispute. In legal disputes, the law wins every time. So, my advice to you is simple – don’t let your writing get in the way.

My next bit of advice comes from Twitter – of course. My good friend and colleague, Chief Justice Bridget McCormack recently shared a post from the University of Michigan Law School. The post was a snapshot of a letter left in a drawer at the Lawyers Club by a rising second year law student. 1 1. https://twitter.com/UMichLawAdmit/status/1150755497064247297

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The letter from this 2L had the usual advice that you might expect – maintain perspective, take time for yourself, go to office hours, etc.

But the last line was what caught my attention. This aspiring lawyer wrote: “Embrace your time here, learn to accept uncertainty, and learn lots. In the end, you’ll be glad you did.”

“Learn to accept uncertainty.” Great advice. I think all too often it’s easy to get bogged down in the details trying to reduce uncertainty rather than accept it.

Embracing uncertainty doesn’t mean leaving things to chance.

Embracing uncertainty means taking chances with your writing and with your presentation in oral argument.

For example, don’t just play it safe – wade in to an issue and feel it out – push back on the boundaries. Be willing to admit limitations and weak points in your argument and explain why you should prevail nevertheless. Don’t just waive the free-fire zone, invite questions and answer them with authority. Be ready to answer an offthe-wall hypothetical and provide your own hypothetical that makes your case. That’s embracing uncertainty.

And another thing the Court wants from practitioners: Tell us how we can improve the administration of our courts and the practice of law. The people in this room and the public generally are aware of the role the Michigan Supreme Court plays in deciding important cases that affect our daily lives. But less well known is the role our Court plays in the administration of justice in our state’s 242 trial courts.

Chief Justice McCormack talks frequently about what the public wants from state courts and about how Michigan courts deliver.

There are four key principles that drive our work.

First, INDEPENDENCE. Unlike the executive and legislative branches, the judicial branch is nonpartisan. This means that politics must not inform our work. Our judicial decisions must be based instead on neutral application of the law. Moreover, the administration of justice must reflect a fundamental commitment to the rule of law, to fairness, and to equal treatment.

Second, ACCESSIBILITY. Justice must be available to everyone, not just to those who can afford it. We must work diligently to ensure that courthouse doors are open to all. This means we will continue to be creative in tearing down barriers to our courts, opening not just real doors, but creating virtual doors that take advantage of technology to increase access.

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Third, ENGAGEMENT. The judiciary must be attuned to the problems and concerns of the communities that most depend on our work. Judges must be willing to engage with civic organizations, community leaders, and advocacy groups to ensure that we are responsive to the needs of those we serve. An engaged judiciary is an informed judiciary.

The fourth and last principle is EFFICIENCY. The judiciary also must be careful and prudent stewards of public resources. This means we must provide the best possible service to the litigants that who appear before us. Most importantly, courts must be efficient while treating our customers with dignity and respect.

We deliver on these principles by what we do and how we do it.

Delivering on those principles means taking a long hard look at how things have been done in the past and making the tough decisions needed to change.

For example, I share concerns expressed by the Chief Justice that Michigan’s system of pretrial justice is not living up to our expectations of equal treatment and fairness. Whether you have cash in your wallet shouldn’t determine whether you are detained prior to trial. Danger to the community and risk of flight should be the factors in making that decision.

But today, the majority of jail beds are taken by nonviolent or low risk offenders waiting for trial and forcing sheriffs to release other potentially violent or high-risk offenders who are serving sentences in jail. Our bail system is upside down– threatening public safety rather than enhancing it. Instead of serving the needs of communities, the bail system is an expensive burden on families.

In fact, we know that the average cost to detain a pretrial defendant is nearly $75 a day, costing taxpayers nationwide nearly $14 billion a year. We also know that more than half of Michigan’s 15,000 jail inmates are pretrial defendants, and based on national data, three- quarters of the pretrial detained population are charged with nonviolent offenses.

What does this mean for those nonviolent detainees? In addition to the risk of losing employment, housing, and child-care arrangements, a pretrial detainee is over four times more likely to be sentenced to jail.

Jailed pretrial defendants are 25 percent more likely to plead guilty than individuals released on bail; 22 percent more likely to fail to appear in court once they are released; and 17 percent more likely to commit new crimes than individuals released within 24 hours of

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their arrest. Jailed pretrial defendants also face longer sentences if they are convicted.

No doubt, courts are not the only player in a very complicated criminal justice system. There are many decision-makers who might not even be aware of the costs of their decisions. But courts are critical to solutions.

I am pleased to report that we have two new initiatives aimed at improving the courts’ role in pretrial detention.

The first is our own: currently five district courts are piloting a pretrial risk assessment tool so that judges can make evidence-based bond decisions that will increase public safety and reduce costs associated with unnecessary pretrial detention.

The second is a major project we are undertaking with substantial support and expertise from the Pew Charitable Trusts.

Earlier this spring, Governor Whitmer signed an Executive Order establishing the Michigan Joint Task Force on Jail and Pretrial Incarceration. The Task Force is a county-state inter-branch and bipartisan effort to collect data and make recommendations aimed at increasing the efficiency and effectiveness of pretrial detention and alternatives. Lt. Governor Gilchrist and Chief Justice McCormack are co-chairing the Task Force.

This Task Force will help Michigan get a comprehensive, datadriven understanding of who is in jail, why they are there, and what steps might be taken to reduce jail populations, increase public safety, and save money – all while protecting the rights of every person.

The Task Force met this morning in Detroit and heard from the experts who reported on their initial findings regarding the cost of our jail system. Are you ready for this? The operational cost of Michigan’s jails exceeds a half billion dollars annually. That’s more than what the state spends on our system of 28 community colleges and their 170,000 students (about $400 million).

Once the Task Force has crunched all the numbers, talked to experts nationwide, and listened to the public, they will be making reform recommendations early next year.

Given the bipartisan interest in criminal justice reform, I share the Chief Justice’s optimism that the result will make Michigan a national leader in safeguarding rights and saving money.

[Cut for time: We are already a national leader when it comes to helping self-represented litigants navigate our justice system. Since 2012, the Michigan Legal Help website –

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www.michiganlegalhelp.org – has been accessed more than 7.3 million times. Currently, the site has nearly 45,000 visitors each week and, with the help of online ‘toolkits,’ users complete more than 320 legal forms each day. Residents who cannot afford a lawyer can also seek assistance at 19 self-help centers statewide.

The most popular content on the site is Family Law, with more than 700,000 visits to the do-it-yourself tools, including do-ityourself divorce forms. Other popular include tenant rights, child support, eviction, and personal protection orders.

Another way we are opening the virtual doors of our courtrooms is through a pilot online dispute resolution project in 17 counties in two case types: small claims and landlord-tenant cases.

These are not cases where people generally have the resources to hire a lawyer – they are managing these disputes on their own. With ODR, litigants no longer have to take time off work, arrange childcare, travel to court, and find parking before they can even have a conversation about their case.

You can buy groceries online. You can buy a car online. You can get online advice on how to lose weight and improve your health.

Online dispute resolution helps courts keep pace with the rest of society.

The ODR pilot builds on the success of online traffic ticket review. More than 30 courts statewide already offer this service, so that drivers can resolve their tickets online without having to take off work and go to court. You don’t have to go to court, so neither does the officer, allowing him or her to stay on patrol.

The results of online ticket review are impressive. For example, 39 percent of participants could not otherwise make it to court.

Online review also saves court 80 percent of staff time (157 minutes v 27 minutes) and resolves cases 72 percent faster (2 weeks v 50 days).

Clearly, technology is opening the virtual doors of our courthouses and making them more efficient, and there are many more examples including our plans to expand e- filing to every court in the state. Talk about revolutionary change – the ability to file anywhere at any time. No more making copies, driving to the court, fighting for a parking spot, waiting at the clerk’s window. Cut for time] Our plans to increase engagement are just as important as our technology initiatives.

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For example, the success of our 188 drug, sobriety, mental health, and veterans’ courts statewide is directly related to their level of community engagement.

Graduates of drug and sobriety courts are much less likely to be convicted of a new offense within three years of admission to the program. And mental health and veterans’ courts have been remarkably successful in helping participants return to work.

These problem-solving courts are so successful because instead of the traditional adversarial format, treatment courts are all about supporting participants in transforming their lives with the help of an array of community services. As Chief Justice McCormack has said, treatment courts change what it means to serve justice.

Engagement also means reaching out and talking to the public about their concerns. One example of this is the Elder Abuse Task Force. Justice Richard Bernstein and I are working with the Attorney General’s office to examine the adult guardianship system. Our goal is to make recommendations regarding ways to strengthen court supervision and better protect older and vulnerable Michiganders who cannot care for themselves.

The Task Force has already held more than a half dozen listening sessions to hear from the public about their experiences with elder abuse. For example, earlier this week, we were in Ann Arbor, Macomb County, and Farmington. Tomorrow, we’ll be in Mt. Pleasant and Friday in Flint and Bay City. Public input will be critically important so that any needed reforms truly will make a difference for families and for moms and dads who need help.

Finally, I do want to announce a new engagement initiative.

Starting next month, Chief Justice McCormack, Justice Beth Clement, and I will be visiting district, circuit, and probate courts statewide. These visits are not just ceremonial. We will hear and decide actual cases in courts from Wayne to Marquette. I guess you could call this our “have gavel, will travel” plan. Bridget, Beth, and I can’t wait to sit on those local benches. The experience will no doubt make us better Justices, but I also think the experience will help us do a better job administering the court system.

And I am incredibly optimistic that you all will help our Court – your Court - make sure that all of Michigan’s courts are independent, accessible, engaged, and efficient. Thank you very much and congratulations again to the winners.

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 imminent jurists. Two briefs are chosen each year and printed in the Western Michigan University Cooley Law Review. To preserve the author’s style, the brief has been reprinted in its entirety, exactly as submitted to the Michigan Supreme Court.

INTRODUCTION Nexteer Automotive Corporation,

Plaintiff-Appellee,

v.

Mando America Corporation, et. al.,

Defendants-Appellants,

SUPPLEMENTAL BRIEF OF DEFENDANTS-APPELLANTS

ABSTRACT Michigan statutes and public policy strongly favor the enforceability of private arbitration agreements. For these reasons, the Michigan Court of Appeals and an overwhelming number of federalcourts and courts in other states have held that a party claiming waiver of an arbitrationclause must prove prejudice, whether the waiver is express or implied.

This prejudice requirement serves the policy favoring arbitration and the legislative purpose undergirding Michigan’s Arbitration Act. And application of the prejudice requirement equally, to both express and implied waiver, eliminates artificial distinctions and simplifies the waiver analysis. Moreover, adopting a rule that treats inconsistent conduct less harshly than oral or written inconsistency would be contrary to the goals of arbitration. Accordingly, the Court should reverse the Court of Appeals and hold that an arbitration waiver always requires proof of prejudice. Regardless of the Court’s holding on the first question presented, Mando’s agreement to a preliminary form case management order did not expressly waive its right to arbitration. At all relevant times, Mando preserved its right to

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arbitrate, and this Court should so hold. Either way, the Court of Appeals should be reversed.

BIOGRAPHICAL STATEMENT Mary Massaron is a partner with Plunkett Cooney in Bloomfield Hills, MI. A past president of DRI – The Voice of the Defense Bar, has concentrated her practice in appellate law for almost 30 years. A former law clerk to Justice Patricia J. Boyle of the Michigan Supreme Court, she has handled or supervised the handling of over 400 appeals resulting in approximately 50 published opinions, including over 100 appeals in the Sixth Circuit Court of Appeals.

William H. Horton is the Chair of the Business and Commercial Litigation Section of Giarmarco, Mullins & Horton, P.C. in Troy, MI. He has been trying lawsuits for over 30 years. He primarily practices in the areas of business and commercial disputes, employment law, and real estate cases.

Andrew T. Baran is the Chair of Employment and Labor Law for Giarmarco, Mullins & Horton, P.C. in Troy, MI. He concentrates his practice in matters relating to employment and commercial disputes, including cases involving breach of contract, discrimination, harassment, wrongful discharge, and agreements restricting competition. He has extensive litigation experience in both federal and state courts and regularly handles cases before federal and state agencies such as the Equal Employment Opportunity Commission, the Michigan Department of Civil Rights, and the National Labor Regulations Board.

Alexandra S. Wald is a partner with Cohen & Gresser in New York, NY. She practices in general commercial litigation, employment litigation, and intellectual property litigation. She regularly represents clients in intellectual property litigation, particularly relating to trade secrets, patent infringement, and trade dress. She is a graduate of Columbia Law School.

Mark Spatz is a partner with Cohen & Gresser in New York, NY. He has extensive experience handling complex litigation and arbitration, with a particular focus on defending manufacturers in products liabiltity litigation and consumer class actions. He is a graduate of the University of Pennsylvania Law School.

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John J. Bursch served as Michigan’s tenth Solicitor General and currently practices in his own firm, Bursch Law PLLC in Caledonia, MI. He represents Fortune 500 companies, foreign and domestic governments, top public officials, and industry associations in highprofile cses, primarily on appeal. He has argued 12 U.S. Supreme Court cases since 2011 and 32 state supreme court cases, including 30 in the Michigan Supreme Court.

David J. Shea is the founding and managing partner of Michigan-based Shea Aiello. He focuses his leadership and expertise in several primary areas: representing investors and their trusted advisors in investment loss and FINRA- related matters in Michigan and nationwide; representing businesses in national commercial insurance loss and agency malpractice litigation; serving as Board Member and outside General Counsel for Hantz Group, one of the largest financial service companies in the Midwest where he oversees all legal, regulatory and employment matters; and managing the dayto-day vision, growth and operations of the law firm. Mr. Shea is also active in general commercial litigation matters, as well as representing plaintiffs in legal malpractice claims.

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WESTERN MICHIGAN UNIVERSITY Cooley Law Review SPECIAL PATRONS 2018 DISTINGUISHED BRIEF REVIEW PANEL Honorable Rosemarie Aquilina Honorable Kathleen Jansen Honorable Michael Riordan Honorable Paul Denenfeld Professor Bradley Charles Professor Mark Cooney Professor David Finnegan Professor David Tarrien

WESTERN MICHIGAN UNIVERSITY

COOLEY LAW REVIEW

WESTERN MICHIGAN UNIVERSITY COOLEY LAW REVIEW is also available electronically at:

WESTERN MICHIGAN UNIVERSITY COOLEY LAW REVIEW

A Publication of Western Michigan University Thomas M. Cooley Law School

Volume 35 Issue 2

Western Michigan University Cooley Law Review

Pages 150-333

Fall 2019