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March 18, 2008

Law School Building Expansion Project In The Design Phase

By Sarah Rizzo

The Michigan Law School’s building expansion project is currently in the design phase after the Board of Regents formally approved the proposal in December. With an estimated cost of $102 million, the project will include the construction of two buildings. The Board of Regents will vote again in the future on the design and construction schedule.

In December, the Board also voted to approve the hiring of Hartman-Cox Architects of Washington D.C.; Integrated Design Solutions of Troy, Michigan will work with Hartman-Cox on the expansion designs. Hartman-Cox’s previous projects include law buildings and libraries at Georgetown University, Washington University in St. Louis and the University of Connecticut. Integrated Design Solutions is currently working on the University of Michigan’s art museum renovation. The schematic design drawings are in the drafting process.


The construction of additional buildings has been in the works for several years. In 1999, the law school commissioned a study about the Law School’s evolving space needs. Students were interviewed about what changes they thought would be useful. Brent Dickman, Director of Finance and Planning, said “it became very clear that there needed to be more common areas, office space and classrooms.?

The project will be funded with Law School resources, University investment proceeds, and gifts from private donors. According to Dickman, there is still more fundraising to be done, but there is a plan in place.

The project aims to enlarge the space available and to meet the demands of the increased student and faculty size, as well as to facilitate different teaching styles. The expansion calls for a 100,000-square foot, $80 million academic building to be built on the south side of Monroe Street, north of the Gerald R. Ford School of Public Policy. A 16,000-square foot Law School Commons building will be located on the south side of the existing quad between Hutchins Hall and the Legal Research Building.

The buildings will house classrooms, clinics, seminar rooms, office space, study areas, faculty offices, and lounge facilities. Plans include special clinical program facilities that incorporate elements of modern law offices, such as client conference rooms. The expansion project will also include the replacement of the gray metal siding on the Legal Research Building and various upgrades to Hutchins Hall.

The building committee has set up seven design groups to oversee elements of the project: clinics, south hall classrooms, law school commons, sustainability, south hall administration, faculty support spaces, and IT infrastructure.

Student representatives sit on the design groups to provide input. “I was happy to serve in an advisory capacity for the design groups. I think that the new buildings will provide extra student space that will be very helpful for students in future years,? says Sarah Bullard, a 1L student representative on the building committee. “The Building Committee cares a great deal about the student representatives’ input and pays a lot of attention to all our opinions,? adds Bullard.

Student groups are also offering their input into the project. The Environmental Law Society formed the Green Building Initiative to lobby the building committee to set higher environmental standards for the new buildings. The group wants the renovation plans to allow for the structures to be certified by the Leadership in Energy and Environmental Design Green Building Rating System (LEED). No decision has been reached about LEED certification, but the Building Committee has voiced its intention to make sustainability a priority.

It is unclear whether construction on the two buildings will be completed at the same time. Dickman says there seems to be a general consensus amongst committee members that the new buildings will look and feel like the current Law Quadrangle. Hartman-Cox has previously worked on a number of Collegiate Gothic style projects.

After design plans are finalized, they will be submitted to the Board of Regents for approval. The final stage in the process will be the Board’s approval of the construction schedule. “Construction could begin in as early as 18 months or in the Fall of 2009,? says Dickman.

Letter to the President On Football Ticket Policy Change

Dear President Coleman,

I write this letter to you extremely hurt by the lack of consideration
the Athletic Department has decided to show the University’s graduate
students. It has recently come to my attention that graduate students
here at the University of Michigan are going to be afforded the lowest
level of seating preference in coming football / all other sporting
seasons.

As a lifelong Michigan resident, a die-hard UofM football fan, and a
law student at your university, I am disappointed, hurt, and confused
by this decision.

One of the many reasons I chose to attend law school at the University
of Michigan was in order to have a Big Ten experience that my
undergraduate career did not provide. The football games are an
integral part of the unique university and law school cultures, and
have been an important part of my law school career my first year at
Michigan. Many of my close friends I made at football games at the
beginning of the year. I felt very blessed to be sitting at the front
of section 33 this past season, and I approached the football games
with the same level of vigor and pride as any undergraduate.

To be moved from the front of Section 33 to lowest priority on the
totem pole sends a discouraging message to incoming law students as to
how the University values its law students, and how law students should
feel about the University.

I’ve attached a photograph to this email that ran in the local Ann
Arbor newspaper this past season. In it, you will see the frustration
and despair on the faces of UofM students as the football team
surrendered a costly touchdown. Those pictured in the photo are my law
school classmates -- I can identify each by name. We are a positive
representation of this University to the community and to the world,
and I cannot understand why our status has been shifted on such short
notice (we have one week to sign up for tickets, beginning tomorrow).
This is not to mention the hurt felt by the domestic partners, spouses,
and children of graduate students who were afforded the opportunity to
sit with their loved one at football games last year, but will be
denied that opportunity in the future.

I love this University. I am a Wolverine. But apparently that is not
good enough to ever garner a close seat at the football games. No
matter how many classes I take, how many credits I’ve accumulated, or
how much money I spend, I will always be a second class citizen at
Michigan sporting events. I don’t think this is a message the
University wants to be sending.

Yours,
Daniel S. Horwitz

Photo by Larry E. Wright of the Ann Arbor News

PRS Strategery: Steep Learning Curves, Relatively Easy Fixes

By Rebecca Oyama and Charlie Clinch

In the previous issue, the RG set out to explain the basics of Michigan Law’s Priority Registration System (“PRS?). Our brief survey indicated that PRS may offer some advantages over systems used at our peer schools; however, a few common concerns suggest that simple modifications could do much to improve our system’s efficiency and transparency.


Say What?

Some students find the learning curve a bit too steep to master the mechanics of the system on their first or second attempt. Though the Registrar’s Office provides mandatory information sessions and detailed written instructions, when it comes time to use PRS, many students are still unclear about the process. One 1L fall starter complained about the time-consuming process of learning the entire PRS procedure only to choose a single elective. This is a particularly significant concern as the timing of PRS coincides with the approach of a 1L fall-starter’s first finals period. Some aspects of the system take longer to master. Said a 2L, “I wasn’t aware that Round One only allows you a maximum of one seminar. I might have changed the order of my preferences had I known that PRS would stop processing my request if I got the first seminar listed.? (Note: During Round One, PRS can assign students to a maximum of one seminar, one practice/simulation course, and one clinic. See “Clinical Care? box for details on this process).

Professors also question if there are ways that the system could be made more straightforward. “I just find the whole process mystifying. Simplicity and transparency would be my plea,? said Professor Larsen, who currently teaches a seminar on presidential power. According to Professor Reimann, who led a comparative law seminar to Turkey over spring break, “At least in the ‘prof-pick’-mode, the current seminar enrollment system is quite problematic. One big problem is that the deadlines for the students to sign up and for the professors to [review] their statements of interest or complete an interview … coincide. If a student can still sign up on Friday 4:59 pm… how can I, as a professor, still interview that student?? Adds Reimann, “To be sure, none of this is the personal fault of any of the administrators involved, [who were] as accommodating as they could be given what the system is.?

Fortunately, the Administration recognizes the system as a work in process. Assistant Dean for Student Affairs David Baum agreed that: “Prof Pick seminars are, by nature, a bit more complicated... Professor Reimann does have a good point that the coincidence of the student sign up deadline and interview deadline can create challenges. We will try to find ways to solve this problem in the future.?

In an interview with the RG, Dean Baum and Amy Bishop were open to improving problematic areas wherever feasible. Dean Baum stated, “We’re always willing to listen to constructive criticism and consider things we can do to make the system work better for students.? Such a receptive attitude could be crucial in fostering a back-and-forth exchange between the administration . However, Dean Baum stressed that such changes take time to implement and cannot be expected overnight.

The Roots of Uncertainty

So what is it about this system that is so complicated that it ‘mystifies’ not only students but one of the nation’s most formidable constitutional scholars?? Specifically, the PRS system and the Prof Pick designation effectively transform the act of course registration into a game of strategy. Generally, the more informed the student, the better she or he will fare in the process.

One source of PRS ambiguity, we believe, is the Registrar’s use of footnotes to inform students about course restrictions and requirements. While the footnotes contain many helpful details, numbering up to 107 this Winter semester, the use of footnotes has become excessive. Yet some crucial information is mysteriously absent. The number of seats available in the course, for example, is not always disclosed. Nor is there any way of knowing whether one is likely to need to use a priority to enroll.

Another complaint is that professors are free to increase the class size after the priority system has run. This has resulted in some students spending a priority, only to discover plenty of seats available on the first day of class. (Note: during the pre-registration period, the administration will often switch a class to a larger room if the initial round of bids reveals a significantly higher demand than anticipated. Thoughtful changes like this should be an understandable exception.)

Also complicating matters is the posting of special sign up procedures, like the Prof Pick designation. Last semester, the Prof Pick requirement was not posted for some courses until PRS had already opened. While students had time to adjust their course selections, those who created their lists even a few days beforehand may not have seen the changes or were forced to rearrange their lists at the last minute.

Finally, the fear of not getting into a seminar compels some students to select as many courses as possible in order to get into “something.? This causes some students to hold on to classes they are not happy with because they cannot gauge their chances of admission into a more preferable course that has a long waitlist. At the end of the day, this has the danger of creating a stalemate situation where everyone is waiting for someone else to move.

Not-So-Extreme Makeover

While the diverse demands of selecting law courses may mean that the school’s PRS system is not going anywhere, there is room for improvement. A few ways we might start:

1. More information, and earlier. The timely uploading of class schedules, special sign up procedures, and course descriptions would greatly lessen student registration worries. If Prof Pick designations and course descriptions were made available well in advance of the registration period, students who map out their courses early would not have to fear last-minute revisions. This would also allow students to prepare their courses well in advance so that the process does not coincide with the busy period approaching finals.
2. Clearer instructions. Less is more. Presenting students with a more user-friendly guide—either a very basic version of the original 30-page instructions or improved index navigation online might make the system easier to follow. Unearthing buried footnotes by displaying them next to a course once it is selected in PRS, or including permanent or critical footnote text in the actual course description, would make course selection more straightforward. Information like prerequisites, limited grade option, and special requirements that the course fulfills (writing requirement, professional responsibility) would always be available, leaving footnotes to address time sensitive or irregular course restrictions. If that proves too complicated, perhaps a chart of classes and relevant footnotes in one place could suffice.

3. (A little) Hand-holding. For 1L fall starters with limited choices in the winter (read: a schedule-permitting, “first-years allowed? elective with no prerequisites), sifting through the entire course schedule is a draining process. A system or document that filters out courses that conflicts with first-year required classes or has prerequisites that 1Ls clearly lack wouldn’t be difficult to generate and would make the choice much easier to manage.

4. Waitlist management. The Round Two request process could be modified to enable students to give up their seat in one seminar for a more desirable one without fear of winding up empty-handed. For example, several other schools’ online registration systems include a feature called “conditional add/drop,? which allows students to automatically drop a class only on the condition that they have been able to add a certain course. Such an option would be useful when entering the second round of PRS requests and would encourage more movement on and off stagnant waitlists.

5. More automation. One reason that contributes to the length of the registration process from start to finish is the amount of human data management that is required to transfer the law school’s customized PRS results from Round One and Two into the university-wide Wolverine system before Add/Drop* may begin. Perhaps a programmer or other staff member could assist in reducing the clean-up necessary for the PRS/Wolverine hand-off, freeing up administrative staff to tend to other issues that arise. A similar programming fix might reduce some of the time necessary for the all-important waitlist “clean-up,? when unresponsive students are removed from the waitlist. Currently, the process is email-based, but it might be much faster if the students could reconfirm their own commitment to a waitlist online.

6. Doing our part. Lastly, there’s a lot more that we can do as students to lessen each others’ registration woes. The spirit of our wonderfully resourceful LawOpen listserv could be garnered to help spread information about classes. Georgetown Law and Fordham Law, for example, maintain sections on their student government websites that have surveys about different professors and classes and how difficult it is to get into specific classes. In fact, until about five years ago, a similar Zagat-like publication existed at Michigan titled “Notes from the Underground.? It contained full-page evaluations of specific courses that included sections on content, the professor’s teaching style, and short quotes, all collected from student surveys. Though the publication fizzled out due to diminishing number of willing writers, several similar ideas have been floated around the school to start an open, self-governing (or minimally moderated) class-related forum. APALSA has already started one among its membership, and there are murmurs of a school wiki-site that might include one as well. An effort to centralize such an effort, whether through the LSSS or the RG, would generate obvious returns. Of course, a downside could be even longer waitlists for the lesser-known secret “gem? courses, but as the court in Lee Optical once said: one step at a time, friends.

*not “Round Three? as referred to in the previous RG article.


Correction: Clinical Care - In the previous article, the RG neglected to explain the special process instituted last semester for clinic selection, which now occurs prior to Round One registration. Students who want to take a clinic must fill out a clinic application and submit it approximately 10 days prior to Round One registration. Students are then notified prior to Round One registration whether they have been accepted into a clinic. If a student is admitted, no priority is spent. Further, when the student begins Round One registration, the screen will reflect enrollment in a clinic.

“Navigating the Jurisdictional Maze: Combating Crime in Indian Country"

The Native American Law Students Association at the University of Michigan Law School invites you to American Indian Law Day 2008!

Submitted by NALSA

This year the program will focus on crime in Indian Country, specifically domestic
violence and the manufacture, sale, and use of methamphetamine. Speakers will discuss the barriers that have been created to achieving criminal justice in Indian Country, how crime is currently being combated, and what actions are currently being taken to obtain justice.


Criminal justice has always been a concern within Indian Country. But now, within recent years, the lack of criminal justice in Indian Country has received national attention.

In 2007, Amnesty International published, “Maze of Injustice: The failure to protect Indigenous women from sexual violence in the U.S.?, detailing the plight of Native women in Indian Country. The report states that “[m]ore than one in three Native American or Alaskan women will be raped at some point in their lives. Most do not seek justice because they know they will be met with inaction or indifference. As one support worker said, ‘Women don’t report because it doesn’t make a difference. Why report when you are just going to be revictimized?’?

Sexual violence against Native women isn’t the only criminal justice problem in Indian Country. Domestic violence also targets Native children. In addition, trafficking, manufacturing, and the use of methamphetamine run rampant within Indian lands.

Why the lack of criminal justice in Indian Country? Why are the rates of violence and drug use so much higher than anywhere else in the United States? Michigan Indian Law Professor Gavin Clarkson explains one reason for the lack of justice by noting the jurisdictional maze created by Congress and the United States Supreme Court. In his L.A. Times Op-ed, “Reservations Beyond the Law?, Professor Clarkson describes how tribes are stuck with a situation in which they can only prosecute misdemeanors committed by Indians within their reservation boundaries. The States prosecute crimes committed by non-Indians against non-Indians, but when a non-Indian victimizes and Indian, only U.S. attorneys can take action. Problems arise when U.S. attorneys do not pursue these non-Indian on Indian crimes. For instance, some pedophiles became teachers within schools in Indian reservations because of little fear of prosecution for molesting Indian children. Also aware of the lack of law enforcement, methamphetamine traffickers have moved onto Indian Country.

The maze of criminal jurisdiction in Indian Country is just one reason for the lack of criminal justice. Another significant reason for the lack of justice can be attributed to under-resourcing of already under-sourced law enforcement.

This is just a glimpse into the issues that will be addressed at Indian Law Day on March 28. The program will be from 1:00pm - 4:00pm in Hutchins Hall room 138 and is free and open to the public. Three panels will take place; the first will focus on the current status of Indian Country, such as the problems of domestic violence and methamphetamine, jurisdictional confusion, and lack of law enforcement resources. The second discussion will feature the U.S. Attorney from the Western District of North Carolina and how she works to combat crime in Indian Country. And the third discussion will focus on the action that is being taken in Washington, D.C., specifically regarding a proposal for change from the Senate Committee on Indian Affairs.

Speakers Include:

? Gretchen Shappert, U.S. Attorney for the Western District of North Carolina and Chairman
of the Native American Issues Subcommittee for the Department of Justice.

? Elizabeth Kronk, Assistant Professor of Law at the University of Montana School of Law.

? John Harte, Policy Director for the Senate Committee on Indian Affairs.

? Bonnie Clairmont, Victim Advocacy Specialist at the Tribal Law and Policy Institute in
Minneapolis, MN.

? Lesley Kandaras, Legislative Aide for Congresswoman Stephanie Herseth Sandlin of South Dakota

Senator Levin Helps Clinic Students Seeking Clemency for Client

By Anna Magazinnik

On February 18, two Michigan 3Ls interviewed Senator Carl Levin (D-MI) for a DVD that they will use to supplement their petition for clemency for Thomas Cress. Cress, who is borderline-mentally disabled, has served twenty-two years of a life sentence without parole for the rape and murder of a Battle Creek teenager. Cress has steadfastly maintained his innocence and passed a lie detector test. For many years, students from the Michigan Clinical Law Program have been trying to free him. Having exhausted all of his legal options, the students are appealing to Governor Granholm for clemency.

The case against Thomas Cress essentially rests on the testimony of witnesses who claimed that Cress confessed to them. However, three of the witnesses later admitted to having fabricated their story to receive reward money. Meanwhile, Arkansas resident Michael Ronning, who had been in Michigan when the murder took place, confessed to the crime for which Cress now sits in prison. Ronning has been convicted of and tied to numerous rapes and murders in several states. According to Doron Yitzchaki and Timothy Kuhn, 3Ls working on Cress’ clemency plea, Ronning’s rapes and murders exhibit similar characteristics to the one Cress has been convicted of. For example, all involved women with red hair, and all of the bodies were found partially buried within two miles of where Ronning lived at the time. However, when the Chief of Police came to the prosecutor to ask about reopening the case given all of this new evidence, the prosecutor destroyed the DNA evidence that had been collected from hair found in the victim’s hands. The destruction of this evidence was discovered a few years later, at which point the prosecutor claimed it had been “routine.?

Although the Court of Appeals initially ruled for Cress, finding that the trial court abused its discretion in refusing to grant a new trial, the Michigan Supreme Court in 2003 overturned that decision 8-1. In doing so, the Court did not even address the issue of the DNA destruction. In 2007, the Sixth Circuit affirmed the denial of Cress’ Habeas petition, effectively concluding all of Cress’ legal options. Although the Michigan Supreme Court did not consider the destruction of DNA evidence, in her dissent Justice Kelly said this was the particularly troubling aspect of the case. Even with the DNA technology available at the time, an expert testified that the hair excluded Cress as a suspect. Yitzchaki and Kuhn note that this underscores how important the DNA would have been with the better technology available now. They therefore hope to convince Governor Granholm that the prosecutor’s destruction of the DNA evidence robbed Cress of the ability to demonstrate his innocence.

This belief is shared by both the former Police Chief and also the detective in charge of investigating the Battle Creek rape and murder. It is also shared by Senator Levin, who was one of the sponsors of the Innocence Protection Act, passed in 2004, which prohibits prosecutors from destroying DNA evidence after securing a conviction. Senator Levin cited the case of Thomas Cress as demonstrating the need for the legislation. In his interview with Yitzchaki and Kuhn, Senator Levin stated that what most caught his attention about the case was that he knows of no other case where the people in charge later decide the convicted man is innocent and go to bat as strongly for him as the former Police Chief and detective are for Cress. In fact, in addition to interviewing Senator Levin, Yitzchaki and Kuhn will also include on the DVD interviews with the former Police Chief and the detective. Coupled with all of the new evidence in the case, such as the confession by another man and the recanting of the testimony by several witnesses, Senator Levin said that the combination of the circumstances show how unusual this case is.

Yitzchaki and Kuhn hope that the unusualness of the case will help set Cress apart from
the flood of other petitions they expect the Governor to receive now that she has set up a special clemency committee below the parole board, suggesting the state is getting ready to grant many such petitions. One possible reason for this is simply that the state does not have the budget to hold that many people in prison. According to Yitzchaki and Kuhn, Governor Granholm has so far only granted a few petitions for clemency and all have been for medical reasons and not due to false convictions. But they are hopeful that the involvement of influential people such as Senator Levin will highlight the particular injustice surrounding Cress’ continued imprisonment. If they are unsuccessful with this attempt at clemency, a new petition can be made again every two years. However, the best time for a favorable outcome is toward the end of a governor’s term, when most such petitions are granted.

The DVD is being made with the help of four University of Michigan undergraduate film students with an interest in law school. One of the students, Josh Noffke, a freshman, is also putting together a website which should be up soon at www.freetomcress.com. The website will feature an online petition as well. Yitzchaki and Kuhn hope to get as many people involved in the petition as possible.

Constitutional Cocktails: The Lethal Injection Debate Explained

By Dan Jones,
ACLU Publicity Co-Chair

On March 5, the ACLU chapter of the University of Michigan Law School hosted “The Constitutionality of the Three-Drug Cocktail: The Lethal Injection Debate,? a panel discussion of pending Supreme Court case Baze v. Rees. Professor Kim Thomas, moderator, was joined by Columbia University Hospital Anesthesiologist Dr. Mark Heath and accomplished capital punishment defense litigator George Kendall.

Dr. Heath opened his remarks by disclosing that his research on lethal injection has made him an opponent of its use. He then described the four-step process by which lethal injections are administered. First, an I.V. is inserted into the prisoner. Dr. Heath explained that inserting I.V.s into prisoners isn’t as simple a procedure as one would guess. Numerous slides showed the failed IV injection points on the skin of executed prisoners. One prisoner endured up to nineteen attempts. Dr. Heath speculated that the difficulty of inserting I.V.s into prisoners can be attributed to a number of factors, including the prisoner’s anxiety, the cold temperature of the room where the procedure takes place, and, oftentimes, the incompetence of the personnel who do the task.

The second step of the process is the injection of the drug thiopental, a general anesthetic. Even though the guidelines for administering thiopental call for a dose strong enough to lead to long-term unconsciousness, insufficiently low dosages frequently result from errors in dosage calculation or drug administration. Dr. Heath used as an example an executed prisoner with a post-mortem dosage in his blood so weak that there was a 95% likelihood that he was conscious as the next two drugs were administered.
The third step of the process is the injection of the drug pancuronium, a paralytic which restricts all voluntary movement but does not affect brain function. If pancuronium is coupled with an insufficient anesthetic, a prisoner may experience suffocation (as breathing is a voluntary movement) before the potassium takes effect, or may experience the excruciating pain of lethal injection without being able to manifest his suffering in any way. Unlike the administration of the anesthetic, the purpose of this step is not to benefit the prisoner, but solely to give an appearance of serenity to observers of the execution. Dr. Heath characterized it as a “cosmetic? procedure.

The final step of the process is the injection of the drug potassium, which kills the prisoner. According to Dr. Heath, a prisoner who is conscious while having potassium injected into his body would feel as if a blowtorch had been applied to half his torso.

Dr. Heath’s final point was that the personnel who carry out lethal injections are often grossly unsuited for the task. However, most physicians would decline invitations or requests to participate in lethal injection procedures.

George Kendall opened his portion of the discussion by emphasizing just how narrow the legal questions involved in Baze v. Rees are. First is the question of which of two competing standards should be used to determine whether a punishment is cruel and unusual in violation of the Eighth Amendment: whether there is an unnecessary risk of pain and suffering, or whether there is a substantial risk of wanton infliction of pain. Second is the question of whether the program in Kentucky runs afoul of the proper standard. Kendall speculated that, even if the Court finds the Kentucky system unconstitutional, some states will not employ good faith in their efforts to change their systems so as to conform to the judgment. Kendall closed his lecture by pointing out that most state capital punishment programs have been designed by small numbers of individuals in closed rooms, insulated from the democratic process. He thinks that a realistic goal for capital punishment defense litigators is obtaining the most humane means of execution for their clients.

Finally, the panel compared the standards states impose for euthanizing animals to those used for executing human beings. Though many states ban the use of paralytics for the euthanization of animals, many of the same states require their use for the execution of human beings. The panelists expressed hope that states will meet, or perhaps even exceed, minimum veterinary standards in the execution of human beings.

18 U.S.C.A. § 2421: Spitzer? I hardly knew her!

By Rooks

For anyone living under a rock – yes, Sub-3 counts – Eliot Spitzer, (newly former) governor of New York, was recently discovered, via federal wiretap, to be patronizing some seriously expensive (like, more than a week’s salary in NYC Biglaw expensive) prostitutes. When the prostitution ring got busted, so did he, and Albany still has a touch of the vapors to prove it.

Since about 37 different people this past week asked me what I thought about Spitzer’s shenanigans and if I was planning to write something about the entire debauched debacle, I figured that popular demand dictated that I weigh in on this, a completely over-reported subject. So, if you’ve reached your Spitzer saturation point and cannot deal with even one more article about the guy, blame your classmates.


So, what do I think? Primarily, I think it’ll come as little surprise to anyone who’s been paying attention that I’m vehemently for the decriminalization of prostitution. There may be slightly more surprise that I disapprove of Spitzer’s actions, for two main reasons. First, by all accounts his wife had no idea, and, let’s face it, that sucks; second, there are a number of rumors going around that Spitzer was paying for unprotected sex, and that really sucks. If he just had to cheat without some sort of arrangement (which I don’t buy, but whatever), he could’ve at least wrapped it up – to endanger not only the wellbeing of his marriage, but also the wellbeing of his wife (presuming they still enjoyed a sexual relationship) is just shady.

A third thing that annoys me about all of this is that he busted prostitution rings during his tenure as attorney general, and was all filled with moral rectitude about it – way to be a hypocrite, Eliot. Of course, this is no different than any number of political and/or community leaders who publicly hate on their own bad habits (see generally Craig, Haggard, et al), but it doesn’t mean it annoys me any less. So do I think what Spitzer did is reprehensible? Sure. Do I think it should be illegal? Not exactly.

But enough about what I think.

In the interest of keeping things (slightly) fresh, now seems like as good a time as any to talk about the Mann Act (also known as the White Slave Traffic Act), which has gotten some press in light of Mr. Spitzer’s poor choice of sexual venue, but not nearly enough.

The Mann Act was originally enacted in 1910, and, in that incarnation, banned the transportation of “any woman or girl? across state lines for prostitution, debauchery, or immoral purposes. (The Commerce Clause: laying the smackdown on getting laid since 1910.) This basically meant that any sex the US government construed as immoral, whether or not it was technically illegal, could be prosecuted under the Mann Act, provided you made a run for the border before you did it. (Take that, Taco Bell.) Though Congress couldn’t regulate any of this activity per se, extra-marital sex, unwed sex, interracial sex, polygamous sex, and, of course, paid sex were all fair game as soon as one or more participants left their state in order to engage in them.

In 1986, someone realized that this was a mite bit ridiculous, and the Mann Act was altered to apply to all genders, and only sex for which one could be charged with a criminal offence. As Bowers v. Hardwick, randomly enough, also came down in 1986, this version would still include gay sex, statutory rape, polygamy, possibly BDSM, and of course, paid sex.

The last time 18 U.S.C.A. § 2421 was altered was in 1998, to change the sentencing guideline. Other than that, the main text remained short, if less than sweet: “Whoever knowingly transports any individual in interstate or foreign commerce, or in any Territory or Possession of the United States, with intent that such individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title or imprisoned not more than 10 years, or both.?

The only way (arguably) to avoid prosecution under the Mann act is if the state to which you travel sports legalized prostitution. (Though the above reading is a valid one, there appears to yet be some argument as to whether the law is actually applied in such a way.) Since Spitzer provided the transportation for his alleged hook-up from NYC to DC (Chinatown bus represent!), and prostitution remains a misdemeanor in our nation’s capitol, he would qualify for prosecution under the Mann Act, should the government seek to pursue it; this could mean the difference between 90 days in jail and 10 years.

The Mann Act probably won’t make it onto your bar exam, but, just in case you, like Spitzer, have a vested interest in its application (ahem), here’s a hypo to make sure you’ve gotten the general idea.

Ren, Ariel, Rusty and Willard travel across state lines to engage in a night of dancing (which is prohibited in their hometown due to its inextricable tie to prurient feelings) and possibly sex. Assuming Ren and Rusty are both 18, while Willard and Ariel are 17, and that all four dance, after which Ren and Ariel engage in oral sex, while Rusty and Willard have heterosexual intercourse in the traditional manner, can any or all of the teens be prosecuted under the Mann Act?

Answer: That depends. (See? Just like a law school exam!) If the age of consent in the state to which the teens traveled is 18, and there are no exceptions for consenting minors, then Rusty can be charged under the Mann Act, provided the state is not one in which the alleged victim must be female to qualify for statutory rape protections. If the state specifically prohibits acts of sodomy to minors, even with consent (a la Kansas), then Ren could also possibly be charged under the Mann Act, as oral sex generally qualifies as sodomy. If all teens were above the age of consent in their destination state, and all acts performed were legal, then it is unlikely, though not, it seems, impossible, that any of the teens would be charged under the Mann Act. Bonus: However, under the Mann Act of 1910 as interpreted by Caminetti v. United States, even if no sex was had, if the government saw fit to agree with the teens’ home community that dancing was, in fact, immoral (John Lithgow is a very persuasive man), all four could still be charged (though it might well depend on who was driving the car and who paid for gas).

Special thanks to Prawfsblog and Volokh Conspiracy for some good info and robust debate, respectively, including the (new to me) fact that prostitution is technically legal in Rhode Island. Who knew?


To submit a question or idea for Res Gestae’s sex columnist, please feel free to e-mail rg@umich.edu, or, if you’d prefer greater anonymity, deposit your question under cover of night in the RG student group pendaflex outside Legal Research 116.

A Blast From The Past!

By Meredith Weill

Here at the Res Gestae, we decided to take a peek into our filing cabinets. Navigation of the contents was somewhat hazardous (nary a Pendaflex and very few labels in sight), but the risk yielded some great treasures from the nearly 60 years of RG history. Over the next several issues, we will be bringing to you, Dear Reader, the best results of our RG office excavations—opinion pieces from the mid-twentieth century (What insight they could provide into the thinking of the partners at the firms where we will work!), photographs illustrating contemporary fashion (Were you aware that Professor Krier wore velour pants?), and other fun, in a section we’re calling, “Kicking it Old School.? We hope you enjoy it.

This week, we inaugurate Kicking it Old School with a “then and now? edition. On March 7-8, the Law School’s chapter of the Federalist Society hosted the organization’s 2008 National Student Symposium: The People and the Courts (see page 6). The last time the National Student Symposium came to Michigan Law was in 1989. Then, the topic was “Property: the Founding, the Welfare State, and Beyond.? Both events featured an outstanding slate of speakers. Here we present to you snapshots from yesteryear... and about a week ago.

Here we have Professor Miller (of Property, Bloodfeuds, and Faking It fame) with Professor Richard Epstein of the University of Chicago. Professor Epstein remains now, as he was then, a leading law and economics theorist. How efficient.

Our very own Professor Krier (velour pants not pictured) with Alex Kozinski, current Chief Judge on the United States Court of Appeals for the 9th Circuit and the “Number 1 Male Superhottie of the Federal Judiciary? as determined by the blog “Underneath Their Robes? in 2004.

Be Kind Rewind

By George Bishop

With his latest offering, Michel Gondry (Eternal Sunshine of the Spotless Mind) has given us a valentine to the filmic medium. Be Kind Rewind is goofy, maudlin and full of flaws but is also witty, genuinely sentimental, and relentlessly inventive. Mr. Gondry has wrapped up everything that America loves about the movies, from the laughable lows to the spectacular highs, and presented it as a gift to the audience.

The action unfolds in a shabby video store nestled in downtown Passaic, New Jersey. The impossibly dilapidated shop is owned by Mr. Fletcher (Danny Glover) whose quasi-adopted son Mike (Mos Def) mans the counter. The store, which deals only in VHS and bears the moniker Be Kind Rewind, is frequented by a gallery of nerds and miscreants, most prominent among them Jerry (Jack Black), a cracked out conspiracy theorist with too much time on his hands. When Mr. Fletcher leaves on a mysterious trip to update his inventory and save his shop, Jerry, despite Mike’s best intentions, manages to erase all the tapes. Rather than buy new copies, or face the music and tell Mr. Fletcher, Jerry and Mike decide to remake the blanked titles with their own creative flair.

The duo’s first “sweded? offering, Ghostbusters, runs through Passaic like a viral YouTube video and soon Jerry and Mike are flooded with requests. It is in these bits of films within the film that Mr. Gondry shines. His ingenuity with simple camera tricks, optical illusions, and clever props becomes that of Jerry and Mike’s. A few model houses beneath a jungle gym becomes the setting for a skyscraper showdown a la Rush Hour 2 and streamers and aluminum foil, along with some very funny jump cuts, are all that the boys need to recreate the action from the Ghostbusters finale. Their creativity culminates in a feature length biopic of Fats Waller (a jazz legend alleged to have played in Passaic and been raised in the building now inhabited by Be Kind Rewind) whose story is rebuilt through the various tall tales of the town members.

It’s a testament to his own love of the medium that a magician like Mr. Gondry would share his secrets with the audience. He has always been vocal in his disdain for digital effects and, after viewing such a spectacle of invention, I have to wonder why moviegoers have become so taken with glossy, CG laden blockbusters. Be Kind Rewind’s dada aesthetic breathes magic back into film like no computer ever could and reminds us that great movies start with passion and creativity.