State legislators from across the country learned about the importance of insurance oversight from a National Conference of Insurance Legislators panel entitled, “The Delicate Balance of Legislative Oversight.” One panelist was the Levin Center’s Ben Eikey, an expert on state legislative oversight. “Oversight can play a critical role in state legislatures seeking to promote a healthy insurance sector and so that families and businesses can obtain effective insurance at a fair price,” said Eikey. “Legislative oversight can help identify and analyze problems, encourage best practices, and help make sure financial help is there if disaster strikes.” The Levin Center at Wayne Law is named in honor of former U.S. Sen. Carl Levin, Michigan’s longest-serving U.S. senator who retired in 2015 after 36 years in the Senate conducting fact-based, bipartisan oversight investigations. Levin serves as the chair of the center which is headquartered at Wayne State University Law School. The center’s mission is to promote high quality oversight in Congress and the 50 state legislatures through oversight workshops, research, events, and other activities.

Amazon and Facebook have filed petitions seeking Federal Trade Commission Chair Lina Khan’s recusal in antitrust cases involving their companies. Khan’s confirmation to the FTC and appointment to lead the agency presents one of the clearest threats of major regulatory action in the tech sector in years. By seeking to recuse Khan, the companies are going after one of the biggest antitrust weapons the FTC has and, whether Khan is recused or not, the decision could muck up the antitrust charges against either company. Experts told CNBC that it makes sense for Facebook and Amazon to try to get Khan removed from the suits. Experts interviewed by CNBC said petitions for recusal of FTC commissioners happen but aren’t common. That makes the two petitions in a matter of weeks seem like an outlier. But, the experts said, it makes sense the companies would pull out all the stops given their opportunity to do so. “The last thing a party would want to do would be to sleep on its rights, so it’s not surprising that they would go ahead and raise the issue now,” said Stephen Calkins, a law professor at Wayne State University and a former FTC general counsel. “And raising it could serve a purpose even if all it does is to provide an argument the parties could make if any matter ever goes forward and ends up in a court.”

As a little girl on vacation visiting her lawyer uncle’s home in Mississippi, Nikki Wright would wander through his study in wide-eyed awe, mesmerized by the endless rows of legal tomes lining the bookshelves, daydreaming of a future where she would follow in his footsteps. Her uncle, Reuben V. Anderson, went on to become Mississippi’s first African American state Supreme Court judge, and Wright returned home to Detroit and transformed the girlhood aspirations Anderson had inspired into inspiring professional triumphs. After earning both her undergraduate and law degrees from Wayne State and then clerking for only the second Black man to serve on the Mississippi Supreme Court, Fred L. Banks, Jr., Wright went into private practice as a litigation attorney, honing both a sharp skill for investigation and a strong desire to give back to the community that nurtured her. These days, Wright serves as assistant vice president in the Wayne State Office of Equal Opportunity, her skills and passions having dovetailed at the same university campus where she pursued her earliest dreams. Among other things, she supports the university’s compliance efforts in investigations involving discrimination and harassment, and helps train faculty and students about these issues. Wright also helps the university ensure that WSU’s hiring committees are diverse. A member of the Social Justice Action Committee, Wright also helped the university draft recommendations aimed at boosting diversity, inclusion and equity as related to faculty hiring and retention. “I saw this job as a way for me to give back to the university,” Wright said about her decision to leave private practice for her alma mater. “Obviously, I could go into the public sector and potentially make a great deal more money, but I really wanted to take a step into a different direction and help a university that helped me. So it really came full circle for me. And that was the right decision because it allows me to give back, something I really enjoy.” Her efforts haven’t gone unnoticed. Recently, Wright was among several other women honored by the Michigan Chronicle with its “Women of Excellence” Award. The award recognizes African American women throughout metro Detroit for their leadership and public service. “When they selected me, I was really happy,” said Wright. “This type of work is really important work, and it supports the university, it supports our community. And the Michigan Chronicle is all about recognizing the work that African Americans do. It was nice that they recognized me. “ Her work at Wayne State, she says, is an extension of the efforts she’s made throughout her career to serve as a positive influence on both the community and individuals. In addition to being active in her church, Hope United Methodist, Wright has provided pro bono legal work for organizations such as the Horatio Williams Foundation, which supports local youth through mentoring, tutoring and afterschool activities. She has done charity work for the public school systems in both Detroit and elsewhere, providing resources for needy children and families. She’s also served as in-house and outside legal counsel for the Detroit Public Schools Community District. And while none of the work is easy, the load grew especially heavy in 2020 as Wright and her family also had to struggle with the death of her older brother, who passed away that March just as the coronavirus pandemic erupted. (Wright says her brother wasn’t diagnosed with COVID-19, although she suspects he may have had it.) “It was very difficult,” Wright admits. “And so we're just getting through it. We're still challenged, but we're getting through it. We were very, very close. Some of what we do now is in memory of my brother. He worked with students with the Southfield public school system, in particular, with the disabled student body. And so my family and I help to make students’ Christmas bright. We support them during Christmas by making sure that they have a full and happy Christmas.” Her work with students also reaches back to the WSU campus. For example, Wright serves as a judge for Wayne State’s Moot Court Competition. In private practice, Wright also hired and mentored young attorneys often giving them their first experience of practicing law. Whether she’s helping to diversify the faculty ranks at Wayne State or supporting students and new attorneys in metro Detroit, Wright takes heart in the fact that she’s helping others access dreams, not unlike the uncle who guided and inspired her. Doing this at her alma mater, says Wright, makes the job all the sweeter. “I’m the glad the Michigan Chronicle recognized the important work we’re doing, and I see us as continuing to support Wayne State’s efforts to tear down the barriers that impact minorities,” she says. “And I'm really happy to be doing it in a university that I care about, where I graduated with a degree in undergrad and law school. It means a lot to me.”  

The fiercest foes of America’s technology giants cheered when Lina Khan, a professor at Columbia Law School, was confirmed by the Senate last week for a seat on the Federal Trade Commission. Khan has since been named by the president as the chairwoman of the antitrust agency. Khan is one of the most prominent antagonists of big business, and in her role she will be responsible for challenging mergers and taking on companies when they use their market muscle to snuff out competition. According to antitrust experts, the biggest hurdle to putting her agenda into action is a judiciary that has made it very difficult for competition watchdogs to win ambitious cases. To make any change of consequence, whether breaking up a monopoly or stopping a takeover, enforcers must prevail in court. “None of that is easy, and it’s particularly not easy when courts are very conservative, as they are today,” says Stephen Calkins, a law professor at Wayne State University and a former general counsel at the FTC. “She’s certainly talked about breaking up companies but, my golly, that’s incredibly hard to do.” 

Kirsten Carlson, associate professor of law and adjunct associate professor of political science, wrote an article for The Conversation on police authority over non-Indians. “The Supreme Court unanimously affirmed the sovereign power of American Indian tribes on June 1, 2021, ruling that tribal police officers have the power to temporarily detain and search non-Indians on public rights-of-way through American Indian lands. In most communities in the United States, the local government has the authority to investigate and prosecute both misdemeanor and felony crimes. And local police can detain and search individuals suspected of state and federal crimes, at least until handing them off to the appropriate authorities. Tribal governments – the local governments in Indian country – have the power to prosecute tribal citizens on tribal lands. When it comes to non-Indians, though, the situation is different. In 1978, the Supreme Court ruled that tribal governments could not prosecute non-Indians for any crimes in Indian country. Tribal governments have to rely on state and federal governments to prosecute non-Indians – which doesn’t happen often. Effectively, non-Indians have been able to commit crimes in Indian country with impunity.

Wayne State University will implement a holistic defense partnership program in fall 2021. The program will pair social work and law students to assist clients in criminal defense offices in Detroit. The students will tackle systemic issues in the criminal justice system under the supervision of licensed attorneys and social workers. Administrators at the university believe that the holistic approach will spur criminal justice reforms and inspire change in their community. Dan Ellman is an externship professor at the Wayne State University Law School. “When people become enmeshed in the criminal justice system, they face a lot of consequences,” Ellman says. For some individuals, he explains, these consequences can include the deprivation of employment, parental rights and housing. Sheryl Kubiak is the dean of the Wayne State University School of Social Work. Kubiak says interdisciplinary partnerships are often fraught with misunderstandings about objectives. “In these offices, we hope to produce lawyers and social workers who are used to working together,” Kubiak says. Though this initiative may prove to be costly, Kubiak says it is a necessary investment to improve the livelihood of citizens. She explains, ”When you look at the unintended consequences of an individual who goes further and further into the criminal legal system, you have to think about what happened to their children, what about their lost revenue, what about the issues of family disruption, and what are those costs to our society?” 

Wayne State University Law School and School of Social Work are launching a holistic defense partnership for J.D. and M.S.W. students beginning in fall 2021, with the goal of addressing clients’ legal and social support needs in tandem. Holistic defense – also referred to as community orientated or comprehensive defense – is a term used to describe an innovative approach that employs an interdisciplinary team to consider both the individual and community needs when working with a person charged with a criminal offense. Unintended or collateral consequences of arrest and conviction can include loss of housing, removal of children, and even deportation. The holistic defense approach brings lawyers and social workers together to achieve positive legal and social outcomes for criminal defendants. “Holistic defense is an underutilized opportunity to effect real change in the lives of people navigating the criminal justice system,” said Wayne Law Dean and Professor Richard A. Bierschbach. “Lawyers and social workers have the same goal – to achieve the best possible outcome for their client. By training lawyers and social workers together, we open the door for future professional collaboration that can make all the difference.” In fall 2020, Social Work students embarked on the initial holistic defense pilot year, completing an immersive field placement experience and Social Work courses focused on the intersection of the criminal legal system and the behavioral health needs of their clients. Five students who recently completed the initial requirements in May 2021 worked with lawyers and fellow allied health professional teams to assess client needs, provide resources and information, and serve as an advocate for their client as they navigate complicated social systems. “The holistic defense model encompasses much of what we do each day as social workers – working in tandem with our clients, colleagues and community partners to provide comprehensive care and empower change in our community. What is unique about this approach is the integration into the criminal legal system, which has resulted in shorter client sentences, a reduction in pre-trial detention and ultimately saved taxpayer dollars,” said Social Work Dean and Professor Sheryl Kubiak.

As more businesses announce new policies on vaccinations and masks, business owners have to decide whether to keep a mandate in place and how to enforce it. For some, a relaxation on mask recommendations is, as Bay City commissioner Kerice Basmadjiam says, “a light at the end of the tunnel.” But Lance Gable, a law professor at Wayne State University, says it could be problematic. “If everyone just stops wearing masks and just stops taking precautions, including people who are unvaccinated, that’s going to result in a lot more spread of the disease,” Gable said. The problem is the unknown. “A lot of people now are going to be going around without masks and you’re not going to be able to tell who’s been vaccinated and who hasn’t been,” Gable said. But are separate businesses and entities allowed to require proof of vaccination? “They certainly could request that information, but if a person refuses, there’s nothing the business can necessarily do to force them. You can’t force someone to divulge their private medical information,” Gable said. “It’s not only going to be confusing, but I think it’s going to be unsettling for a lot of people,” Gable said.

Marilyn Kelly, Board of Governors chair, is profiled in a story by Detroit Legal News Editor-in-Chief Tom Kirvan. “When Marilyn Kelly retired from the state Supreme Court nine years ago, most political observers figured it would be but a brief respite from the world of public service. For that, we should all be thankful, as it was only two years before Kelly ran for elective office again, winning a seat in the November 2014 election on the Board of Governors at Wayne State University, where she earned her law degree with honors. Kelly’s return to the campaign trail was rooted in her “deep commitment to Wayne State and an ardent desire to help it accomplish its mission to provide an excellent education for its students and better serve the community,” she wrote in announcing her candidacy. Last month, Kelly was unanimously chosen to serve as chair of the Wayne State Board of Governors, hoping to usher in a new era of cooperation and collegiality, much like she did when she served as chief justice of Michigan’s top court. “The start of 2021 is the perfect time to reflect on the past and frame intentions for the future,” Kelly said after she was chosen chair. “To that end, I’ve consulted in recent weeks with every member of the Board of Governors. Each of us has pledged to renew our efforts to work together in the best interests of this great university. Her ties, of course, to her legal alma mater are strong. She is a past recipient of the University’s Outstanding Alumni Award, and received an honorary doctorate from WSU, where she also has been named its Distinguished Jurist in Residence. She has served as co-chair of the law school’s capital campaign and also established an endowed scholarship for law school students “who are dedicated to public service.”

Several companies have now made public their efforts to get workers vaccinated, including offering one-time bonuses and other financial incentives for employees who opt to get their shot. “Companies do have a lot of leeway in setting their own policies as to whether or not employees are going to have to receive the vaccine, but how the companies go about doing it can matter from a legal perspective," said Lance Gable, an associate professor at Wayne State Law School. It's a scenario not totally unfamiliar, Gable noted, as certain wellness incentives have been challenged in the past on the basis of discrimination. But the unique rollout of the COVID vaccine poses some never-before-seen problems too, he said. “There are separate issues about whether that is different if the vaccine has only been approved under Emergency Use Authorization. A mandatory vaccination requirement for a COVID vaccine could be permissible under federal law but only if employers put in place potential exceptions and accommodations," said Gable, citing EEOC guidance. In the EEOC's most recent guidance on wellness incentives, Gable said, it notes that any gifts or incentives companies offer should be modest, like a small gift card, lunch, or the cost of a ride, for example. Gable believes additional guidance will likely come out as the vaccine rollout continues.

Spotlight on the News interviewed two Michigan legal experts about the second Donald J. Trump presidential impeachment trial. Guests included Professor Richard Primus of the University of Michigan Law School and Professor Jonathan Weinberg of Wayne State University Law School. Primus and Weinberg looked at the important constitutional issues and politics facing the U.S. Senate jurors who will judge this historic trial.

As the U.S. Senate takes up the second impeachment trial of former President Donald Trump, there are a lot of questions about the process and legitimacy of trying someone who is no longer in office, including what the point is and how impeachment works. The House has passed an article of impeachment, charging him with “incitement of insurrection” in connection with the Jan. 6 Capitol riot, and now the process turns to the Senate. The Conversation has published several articles from scholars explaining aspects of the situation, as well as describing more generally what the purpose of impeachment was for the founders when they wrote the Constitution. This is a selection of excerpts from those articles. What happens if Trump is convicted? Though Trump can no longer be removed from office, he may still face consequences. Kirsten Carlson, a law professor at Wayne State University, explains that there is an additional step: “The Senate also has the power to disqualify a public official from holding public office in the future. If the person is convicted …, only then can senators vote on whether to permanently disqualify that person from ever again holding federal office. … A simple majority vote is all that’s required then.”

Noah Hall, a professor of law at Wayne State University, served as special assistant attorney general for the initial investigation of state officials regarding the water crisis. He said he felt the investigation he was part of had made promising progress in court, so when Nessel’s team announced they would shut down existing cases and start anew, he was frustrated and skeptical. But now, he says, he knows he was wrong. “It looks today like my skepticism was not justified and Attorney General Nessel came through on what she promised, which was, when she shut down our investigation and terminated us — myself included — she really was building back a better investigation that was going to do more work and go even further with developing charges. And it looks like that’s exactly what’s happened over the past two years,” Hall said. Snyder faces two misdemeanor charges of willful neglect of duty, for which he has pleaded not guilty. But other former officials face more serious charges, including former Michigan Department of Health and Human Services director Nick Lyon and the state’s former Chief Medical Officer Dr. Eden Wells, who have both been charged with nine felony counts of involuntary manslaughter. Hall says these new charges likely draw on decisions the Snyder Administration made back in 2012 and 2013, which set in motion the changes in Flint’s water supply that led to use of the Flint River with a lack of corrosion control. Some critics of the recent charges argue that government leaders and public servants, due to the nature of their jobs, should be permitted some benefit of the doubt, as they may have been using their best judgment to make decisions with the information that was available to them at the time. But Hall says that’s not what he thinks happened in the Flint water crisis, based on his knowledge from the initial investigation. “This was not a simple case of government officials doing the best they could and making a mistake. Quite the opposite,” he said. “These were government officials who intended to advance an agenda, and in advancing that agenda, threatened and ultimately harmed human life.”

Twitter and Facebook suspended the social media accounts of President Donald Trump last week over concerns his messages could incite further violence like the siege on the U.S. Capitol. The president and his allies quickly accused the platforms of silencing free speech. A law expert said the First Amendment doesn’t protect Trump. "In terms of whether they have the power to tell President Trump, ‘sorry we think you've broken our rules, you're booted off.’ They absolutely have the power to do that," said Jonathan Weinberg, professor and associate dean of research at Wayne State University Law School. He said Twitter is well within its legal right to ban Trump from its platform. The same goes for Amazon and others who essentially shut down Parler. "It gets to choose who it does business with and who it doesn't," Weinberg said. He said these actions do not violate anyone's First Amendment rights. "What the law says about your First Amendment rights run against governments,” he said. “They don't run against private companies." Weinberg said in a twist of irony, it was Trump and Republicans who got rid of net neutrality. Weinberg said net neutrality was designed to give people more rights to prevent being silenced by powerful media companies. "The moment President Trump got into office, the Republicans swept that all away,” he said. “They said, 'that's crazy. That's awful. That's communism. Government shouldn't be telling private companies what to do.'"

Mark Satta, assistant professor of philosophy, wrote an article for The Conversation offering perspective on the term president-elect. “On Jan. 20, Joe Biden will be sworn in as president of the United States. Until then, he is president-elect of the United States. But what exactly does it mean to be president-elect of the United States? As a lawyer and philosopher who studies word meaning, I have researched the meaning and history of the term “president-elect” using publicly available resources like the Corpus of Historical American English – a searchable database of over 400 million words of historical American English text. I’ve also used Founders Online, which makes freely available many documents written by the nation’s founders. “President-elect” is not a term that is legally defined in U.S. law. Rather, the term’s meaning has developed over time through its use by the public. Its use can be traced all the way back to George Washington.”  

Kirsten Carlson, associate professor of law and adjunct associate professor of political science, wrote an article for the Conversation.” As the world reacts to the Jan. 6 armed attack on the U.S. Capitol encouraged by President Donald Trump, many Americans are wondering what happens next. Members of Congress, high-level officials and even major corporations and business groups have called for Trump’s removal from office. Prominent elected and appointed officials appear to have already sidelined Trump informally. Vice President Mike Pence was reportedly the highest-level official to review the decision to call out the D.C. National Guard to respond to the assault on the Capitol. Informal actions like this may continue, but political leaders are considering more formal options as well. They have two ways to handle it: impeachment and the 25th Amendment.”

As the nation inches closer to a coronavirus vaccine, many businesses are wondering if they can mandate its employees to get vaccinated. Legal experts across the state have already begun to weigh in on the matter. “Employers have quite a lot of authority in requiring something like a vaccination for their employees,” Lance Gable, an associate law professor at Wayne State, said. “It’s especially true if the vaccine is likely to create a safe and healthy work environment.” Gable said we often see vaccinate mandates for those working in health care, but other industries have also set such requirements when it comes to getting vaccinations like the flu shot. In such cases, there are exemptions spelled out by the Equal Employment Opportunity Commission. “Employers have to allow for exceptions if people have either a disability, which would be covered under the Americans with Disabilities Act, or if someone has a strongly-held religious objection, (then) there are some other civil rights protections that allow them to get an exemption from a vaccine requirement on that basis,” Gable said. Gable said it’s yet to be said whether these same exemptions will apply to the COVID-19 vaccine, but it’s a matter many hope the EEOC will clarify before the vaccine is made available.

For many Muslims, the real issue behind the travel restrictions is Islamophobia. Khaled Beydoun, a law professor at Wayne State University, warns against “only understanding Islamophobia through the Muslim ban” and remains skeptical about just how much Biden will do to root out systemic Islamophobia. “The Biden administration won’t engage in the same kind of Islamophobia as Trump does” but we may see a continuance of bombing countries like Yemen, Afghanistan and Pakistan, as well as sweeping domestic surveillance programs that target Muslims.

Wayne State University professor Robert Sedler, an expert in constitutional law, said while Elizabeth Welch's election to the Michigan Supreme Court means there are more justices nominated by Democrats than Republicans, partisanship doesn't always determine how justices vote. He noted rulings where GOP-nominated justices David Viviano and Elizabeth Clement have sided with their Democratic-nominated colleagues. A notable exception, Sedler said, was the October ruling in which the court decided that a 1945 law that Gov. Gretchen Whitmer relied on for her emergency orders to combat COVID-19 was unconstitutional. The four GOP-nominated justices all ruled to void the law, sparking anger from Democrats. "It was not typical of the decisions coming from the court," Sedler said. "The court acted in a very partisan way." Sedler said while the court and the elections for justices are officially nonpartisan, he believes members keep their political support in mind. "You don't forget who brought you to the dance," he said.

In a criminal justice system centered around the plea bargain, the Sixth Amendment’s Confrontation Clause should apply to plea bargains as well as trials, according to a forthcoming essay in the Columbia Law Review. “A defendant’s trial rights come bundled—he must take them all, by going to trial, or leave them all, by pleading guilty,” wrote William Ortman, an assistant professor at the Wayne State University School of Law. The Confrontation Clause of the Sixth Amendment grants defendants the right to question witnesses testifying against them, but the clause has only been interpreted to apply to defendants who proceed to a trial. In his paper, titled Confrontation in the Age of Plea Bargaining, Ortman argued this is severely restricting in the United States, where only 5 percent of cases end up going to trial. Some 97 percent of federal cases and 94 percent of state cases end are resolved with a guilty plea negotiated before a trial is ever held. “There is no good reason to design a rule that accomplishes its mission in a small fraction of the cases and leaves the others untouched,” Ortman wrote. Ortman proposed that instead of only applying to trials, the limitation of the Confrontation Clause be changed to apply to “critical adjudication.” Trials would fall into this category, as would plea bargaining. Preliminary and pretrial hearings would not.