Columns

I thought long and hard on how to start this series to get the attention of readers. And I don’t mean just to “tickle” their interest in the subject so they read it but with the hope they understand the ominous message about the future we face.
David Wallace-Wells, who has written extensively on the environment, did it by starting his book with the following eight words: “It is worse, much worse, than you think.”

By Berl Falbaum

(EDITOR’S NOTE: With this column, we begin to publish a five-part series on the environment written by our contributing political columnist Berl Falbaum, a veteran journalist and author of 12 books. The columns will appear over the next few weeks. Berl has studied the issue for the last two decades, including writing a book, “Code Red! Code! Red! How Destruction of the Environment Poses Lethal Threat to Life on Earth.”)

I thought long and hard on how to start this series to get the attention of readers. And I don’t mean just to “tickle” their interest in the subject so they read it but with the hope they understand the ominous message about the future we face.

David Wallace-Wells, who has written extensively on the environment, did it by starting his book with the following eight words: “It is worse, much worse, than you think.”

I will try it with the following: The Earth is becoming uninhabitable for humans much faster than many experts predicted. And it may well be too late to stop the environmental deterioration on numerous fronts, not just global warming that receives most of the attention.

Scientists are warning we are on the cusp of the Earth experiencing its sixth extinction, the first one caused by humans -- you and me.

The last extinction, the fifth, happened 65 million years ago when an asteroid crashed into the Earth, wiping out the dinosaurs.

There is not an inch of land, or a body of water on the planet, no matter how small or isolated, which is not being impacted by environmental issues. Yes, including your beautiful gated subdivision.

The following comes from a story, published by The Guardian, on a report written by renowned environmental experts:

“Many of Earth’s ‘vital signs’ have hit record extremes, indicating that the future of humanity hangs in the balance ...

“More and more scientists are now looking into the possibility of societal collapse… [The report] assessed 35 vital signs in 2023 and found that 25 were worse than ever recorded, including carbon dioxide levels and human population. This indicates a ‘critical and unpredictable new phase of the climate crisis.’”

Consider the following: Patagonia, which sits on the western side of South America, is one of the least populated regions on the planet. With an area of 1 million square kilometers, Patagonia is larger than 80 percent of countries on Earth. It has less than 5 percent of the population of both Chile and Argentina, making it a sparsely populated region.

Yet, it is being severely impacted by polluted air and water carried by currents of both and it is inundated with microplastics.

Or consider this: A scientist testing a submarine took it to the deepest depths of the oceans. some 36,000 feet. What did he find? Plastic garbage bags and candy wrappers.

Even the shape of the Earth is being affected. You read that correctly. Scientists at ETH Zurich in Switzerland, published a report in the National Academy of Sciences of the U.S. that the moon’s gravitational pull has steadily lengthened days, but polar melting is redistributing water closer to the equator. This makes the Earth more oblate -- or fatter -- slowing the rotation of the planet and lengthening the day faster than the lunar effect alone.

While we should be addressing environmental dangers, the deadly threats have been met with apathy and/or denial. We should be discussing the environment as we did COVID at its peak.

Instead, raging fires, floods, melting glaciers, soaring temperatures, plastic contamination, air and water pollution, nuclear waste disposal, deforestation --- and so much more -- are met with a sentence or two in news reports. Like in, “By the way ...”

Jonathan Watts, The Guardian’s global environment editor, wrote: “…weather catastrophes have become so commonplace that they risk being normalized. Instead of outrage and determination to reduce the dangers, there is a sense of complacency: these things happen. Someone else is responsible. Somebody else will fix it.”

The Guardian, incidentally, publishes four stories on the environment every day and they contain mostly negative news.

In one opinion piece The Nation wrote during the Los Angeles fire calamity: “These mega-fires have called forth a mega-failure by much of the news media. A review of coverage to date shows that most journalism is still not accurately representing how the climate crisis is upending our civilization by driving increasingly frequent and severe extreme weather.

“Too much of the [Los Angeles fire] coverage has simply ignored the climate crisis altogether, an inexcusable failure when the scientific link between such mega-fires and a hotter, dryer planet is unequivocal.”

Full disclosure: I am a journalist, not a scientist. I did not conduct any independent research. My reporting comes from researching the research done by world experts.

In these articles, I did not attribute every statistic, conclusion, prediction or finding because I thought that would be awkward and annoying to readers.

But it all comes from authoritative sources. In my book, I list more than 100 references.

This series is not recreational reading.

There is no good news to report.

With that warning, here goes.

The rise of artificial intelligence (AI) has the potential to completely upend antitrust law as we know it, according to Professor Daniel Crane.
In a recent article in the New York University Law Review, Crane notes that AI is at the core of a number of emerging technologies with the potential to reinvent the entire economy—and that idea carries profound implications for the practice of law.

By Bob Needham
Michigan Law

The rise of artificial intelligence (AI) has the potential to completely upend antitrust law as we know it, according to Professor Daniel Crane.

In a recent article in the New York University Law Review, Crane notes that AI is at the core of a number of emerging technologies with the potential to reinvent the entire economy—and that idea carries profound implications for the practice of law.

Crane—the Richard W. Pogue Professor of Law—recently answered five questions about the issue:

1. Do you see the impact of AI on antitrust being greater than on other areas of the law?

Probably not.

The cumulative effect of all of this is going to fundamentally reshape the whole way the economy works. It’s relevant to everything that touches our economy, from the way we write contracts, to the way securities are offered, to the way insurance policies are written, to the way labor markets work.

In his book The Coming Wave, Mustafa Suleyman describes how AI has synergies with things like synthetic biology, robotics, quantum computing, nanotechnology, energy expansion, and so forth.
I wanted to take what is being said by these technologists who are looking forward 10 or 20 years out and ask what it means for antitrust law.

Of course, the predictions could be wrong. But if these trends do continue, they have dramatic implications. It’s not limited to antitrust. It really applies to all human existence, honestly.

2. Your article details the four pillars of antitrust law that you expect to buckle if trends continue on their present course. Of the four, which one would be affected first?

I think we’re seeing one already: this idea that one function of competitive markets is to obtain information about people and what people want. Friedrich Hayek famously made the point that no central planner ever has enough information to really understand human desires, and I think he was clearly right.

Yet now the technology we already have is so far ahead in getting into our brains, and almost reprogramming our brains. Amazon has already patented a business method for prospective delivery of things you don’t know you want yet. We’re on that track pretty fast.

From scans of your eyeballs or your fingertip movements to looking at facial patterns in a movie theater, AI-enabled systems are able to figure out how people are reacting to products and services. Businesses are already widely using this to know us as consumers and even to program us as consumers.

So the traditional consumer discovery function that we attribute to markets is becoming obsolete.

3. You see new, comprehensive regulation as a likely response to these issues. What might that look like?

AI will certainly be regulated.

I’m focusing on what kind of regulation can replace the functioning of competitive markets. Because if the predictions are true, competitive markets will go the way of the dodo bird. We’ll have a few large companies controlling even much bigger swaths of the economy than they do today.

So what could regulation look like?

Some technologists are saying that instead of trying to program the outputs of an AI-driven system, we might instead program the inputs. An AI system has to have marching orders, called its objective function. The problem with regulating AI systems is that what happens between the objective function, the command, and the outputs is a big black box.

So one regulatory response would be to address what the business is allowed to tell their AI to do. For example, instead of “Maximize the profits of the firm,” the AI might be required to allow innovation without dramatic price increases.

4. You speculate that the coming wave might actually overwhelm antitrust law altogether. How likely do you think that is to happen?

In the short run? Not very likely.

If we’re looking 20 or 30 years out, I think it’s increasingly going to overwhelm antitrust law. If the current path of these technologies continues, it’s going to be very difficult for antitrust law to continue doing the things that it tries to do.

Think about all the cases against big tech right now. They’re largely based on internal documents and emails.

Once you turn over more business discretion to an AI, you’re not going to have that anymore. You’re not going to have evidence of a predatory intent or a predatory practice. Firms will get bigger and bigger because the best AI will have a slim advantage, which will multiply itself across all the business outputs of the firm and lead to dominance.

I think there’s very little that regulators can do to stop that from happening, at least using the current antitrust law. There’s almost an inevitability to the continuing roll-up of the economy in a few big firms. The paper is really ultimately a call to be prepared for this.

5. How should we prepare for these changes?

A lot has to do with making sure that we have expertise and understanding of these emerging technologies in the right places in government. The wave is going to wash over us whether we want it to or not.

The question from a citizen’s perspective is, how do you get ready to participate in democracy where this consolidation of power is likely to continue? How do we advocate for regulatory solutions that give agency to you and me as citizens, as voters, as participants in markets and in workforces?

Regulation of objective functions—the inputs of AI systems—seems to me like a promising way to focus some energy, because it says we’re not giving up a democratic voice in how the economy operates.

The economy may fundamentally change, but what shouldn’t ever change is the fact that the economy works for people and that the citizens need to have a voice in how their economy works.

A troubling gap in Michigan’s 2019 no-fault reform act has become increasingly apparent as auto insurance companies exploit provisions allowing family members to be excluded from coverage without their knowledge or consent.

By A. Vince Colella
Moss & Colella P.C.

A troubling gap in Michigan’s 2019 no-fault reform act has become increasingly apparent as auto insurance companies exploit provisions allowing family members to be excluded from coverage without their knowledge or consent.

In a recent Jackson County Circuit Court case, this oversight led to devastating consequences for a motorcyclist who suffered serious injuries in a freeway accident, including severe damage to his pelvis and wrist. The victim required extensive medical care, including surgery, inpatient hospitalization, and a comprehensive physical therapy and rehabilitation program, ultimately incurring medical expenses exceeding $100,000.

Unknown to the injured motorcyclist, his spouse had previously elected to exclude him from their Personal Injury Protection (PIP) medical coverage, exercising a provision within the no-fault statute that permits opting out when covered under a qualified health plan. The motorcyclist’s situation became dire when it was discovered that his qualified health plan contained an exclusion for medical expenses related to motor vehicle accidents—a critical detail his spouse likely overlooked when making the election.

Michigan’s transition to a cafeteria-style approach for auto insurance coverage has left drivers facing complex premium decisions and potentially devastating consequences when insurance carriers fail to explain nuances that could substantially impact post-accident coverage adequately.

The provision central to the Jackson County case, MCL 500.3107c, allows an applicant or named insured to select PIP coverage limits of $250,000 per individual per loss. Yet the coverage decisions extend beyond mere limit selection — under MCL 3017d, the applicant or named insured can exclude their spouse and any household relatives by simply indicating they have qualified health care plan coverage. While the Act requires insurers to provide a standardized form for excluding family members and mandates that these forms explain coverage limits and associated risks, it does not require applicants to prove their excluded family members have qualified healthcare coverage. This oversight creates a dangerous scenario where spouses and household members risk complete loss of PIP coverage for medical expenses following a severe accident.

Most concerning is the apparent absence of any statutory duty requiring auto insurance companies to notify family members when they’ve been excluded from the policy by the named insured.

The Department of Insurance and Financial Services (DIFS) anticipated these coverage gaps when it amended its model form for PIP medical opt-outs. DIFS Bulletin 2023-11-INS, which contains the agency recommendations for all Michigan automobile insurance companies, explicitly requires “specific proof for Qualified Health Coverage purposes.” The amended form contains language mandating that an applicant or named insured “provide current updated documentation every year for … qualified health coverage.” The language appears to be more than a mere recommendation; rather, it imposes an implicit obligation on insurers to verify that any spouse or family member being excluded from PIP medical coverage maintains qualified healthcare coverage. The model form thus attempts to create a safeguard that the legislature failed to include in the statutory framework. However, without explicit statutory authority requiring insurers to follow DIFS’ guidance, the model form’s protective measures may prove toothless in practice.

The no-fault Act’s silence regarding protection against unauthorized coverage opt-outs creates a significant vulnerability for Michigan motorists. When challenged on these issues, auto insurance companies will likely seek refuge in principles of statutory construction that prevent courts from reading additional requirements into unambiguous statutes, as recently demonstrated in Bronson Health Care Group v Esurance, ___ Mich App ___ (2023) (Docket No. 363486). However, courts confronting these cases should balance strict constructionist approaches against compelling public policy considerations that have historically shaped Michigan’s no-fault system. Since its inception in 1972 until the 2019 reforms, Michigan’s no-fault system prioritized protecting motorists against catastrophic medical and financial losses following auto accidents. While recent reforms may signal a shift away from guaranteed unlimited medical coverage, the legislature’s inclusion of a qualified health coverage requirement for PIP opt-outs clearly indicates it did not intend to leave motorists completely exposed to devastating medical bills. This suggests courts should interpret the Act’s provisions to prevent family members from being stripped of coverage without their knowledge, consent, or proof of alternative coverage.

The evolving landscape of Michigan’s no-fault insurance system has created unforeseen gaps in coverage that can devastate families following serious accidents. While the legislature’s intent may have been to provide flexibility and cost savings through various coverage options, the lack of statutory safeguards has allowed insurance companies to exclude family members from coverage without their knowledge or consent.

Until the legislature addresses these oversights, courts should interpret the Act’s provisions in a manner that promotes its historical purpose of protecting Michigan motorists from catastrophic losses. At a minimum, insurance carriers should be required to verify qualified health coverage for excluded individuals and provide notice to all affected household members. Without these basic protections, more Michigan residents may face overwhelming medical bills despite believing they have adequate insurance coverage.

Policymakers and academics have long been concerned about the danger posed by “shadow banks”—financial institutions that function like banks but are not subject to banking regulations, such as money market mutual funds or stablecoin issuers.

By Bob Needham
Michigan Law

Policymakers and academics have long been concerned about the danger posed by “shadow banks”—financial institutions that function like banks but are not subject to banking regulations, such as money market mutual funds or stablecoin issuers.

That lack of safeguards leaves shadow banks susceptible to instability that can quickly spread throughout the financial system. Typical approaches to addressing this risk have focused on changing banking laws.
Yet a conversation between Professors Gabriel Rauterberg and Jeffery Zhang during a stroll around the Law Quad led to a new idea: using securities law instead.

Rauterberg and Zhang took the idea from that initial conversation and developed it into a new paper, forthcoming in the Stanford Law Review.

They argue that securities regulators—who already exercise some authority over shadow banks—can and should do more, even if it might not be the first-best solution. They recently answered five questions about the issue:

1. How does the shadow banking sector contribute to problems of insecurity in the broader economy?

Rauterberg: Businesses need both long-term and short-term funding. They get a lot of their short-term funding from the shadow banking sector. So when there are mass withdrawals of financing from the shadow banking sector, it destabilizes the shadow banks themselves. Then it also dries up funding for businesses just when we’re in a moment of financial instability or panic. The broader economy depends on financial institutions for funding, and it turns out they’re kind of fragile.

Zhang: If the shadow banking market was tiny, it probably wouldn’t matter. But shadow banking in the last few decades of US financial history has grown into a multi-trillion-dollar industry. When you have an industry that large, that is so interconnected with the rest of the US economy—and that is also subject to the dynamics of bank runs, but without the safeguards that banks have—you get problems in the real economy.

2. Efforts to address this vulnerability have largely focused on banking law, but your paper suggests approaching the issue through securities law. How did you develop this idea?

Zhang: It started in 2022, when a banking law scholar (Zhang) was walking with a securities law scholar (Rauterberg) around the Law Quad. We’d both noticed how banking scholars and securities scholars don’t really talk to each other. We talked about how these economic phenomena are well known, but everyone has their own tools and their own perspectives. When you have entrenched views, it’s hard to think about the problem from the other side. So we asked ourselves, what would be another approach, even if it’s not perfect?

Rauterberg: We began with an observation that turned out to be massively more complicated than we thought it would be—that securities law provides securities regulators with a lot of jurisdiction over aspects of shadow banking. And as a result, there was this ambiguous relationship that seemed worth exploring between the two bodies of law. That started us thinking about whether that meant that securities regulators could play a more important role.

3. You mentioned that securities regulators already have some authority over shadow banking. What’s an example of that?

Rauterberg: One entire body of law that securities law usually doesn’t think of as relating to shadow banking, but it could, is broker dealer regulation. Broker dealers play a huge role in the financial sector. They can influence financial stability, but broker dealer regulation is designed only with customer protection goals in mind, not broader systemic issues.

For another example, money market fund regulation is at the heart of shadow banking. The Securities and Exchange Commission (SEC) knows that it’s important to financial stability, but has taken only modest action. The paper wrestles with this because it’s an ambiguous proposition, but the SEC could probably do more on that front.

4. What’s an example of the bigger reforms you advocate?

Zhang: To stick with money market funds—they are like banks. We force banks to hold capital for safety and soundness purposes; why not have money market funds do the same? The SEC could do this.

Of course, the counter argument is that this is really aggressive. In fact, this idea has been floated before, and the SEC has not taken it up. The industry certainly balks at it every single time, but that doesn’t mean that, logically, it isn’t a proper solution.

5. The paper discusses how finding political will for these changes could be an issue. Does that become even harder with a new presidential administration?

Rauterberg: Like a lot of the things about the incoming administration, it’s uncertain. The SEC in the first Trump administration was widely regarded as a perfectly reasonable SEC making competent if contestable judgment calls. Overall, though, I think the change makes it less likely the SEC will adopt these proposals.

Most of the people who study shadow banking think that this is such a big problem, we need to plan for whatever moment gives an opening for regulatory reform. That opening might be in six years or in two years. Some of these reforms could be doable as a staff-initiated set of changes. But the presidential administration will shape things.

Zhang: If you focus on the standard talking points, a Republican administration might mean less regulation. But what we are really addressing here is financial crises, system-wide failures. When that happens, everybody loses. Nobody wants that.

This should be thought of as the beginning of an undertaking, of a true synthesis of securities law and banking law. This first collaboration is planting a seed; we’re just going to let it grow, and we think it’s going to grow quite well.

When people divorce, it should be a (mostly) clean break from their former spouse. Most know future earnings are considered for child support and spousal support  if ordered and modifiable.

By Marie E. Matyjaszek

When people divorce, it should be a (mostly) clean break from their former spouse. Most know future earnings are considered for child support and spousal support  if ordered and modifiable.

But what about speculative employment benefits you earn in the future or post-judgment? Those should be yours and yours alone, right?

If you said yes, the Michigan Court of Appeals agrees with you.

In the 2009 published case Skelly v Skelly, 286 Mich App 578, a Wayne County trial court awarded Thomas Skelly’s former wife, Patricia, part of his future benefits with his employer Ford Motor Co. Tom had a lucrative position at Ford which came with a retention bonus, paid out in installments, totaling $108,000. The point of the bonus was to have Tom stay put at Ford through May 31, 2009 to receive the full amount. If he didn’t, he had to reimburse Ford for every payment received.

The lower court did its usual equitable division of marital retirement, assets, and debts, and awarded Patricia spousal support of $5,000 per month.

While recognizing that the future retention bonus payments would likely be separate property, the court ultimately chose to invade it, noting Patricia’s limited ability to earn, and “in the Court’s mind, [the retention award] is based on performance during the marriage,” and awarded Tom 60 percent, and Patricia 40 percent.

The court went on to award Patricia 40 percent of any future bonus received by Tom, in addition to the retention bonus.

Earned bonuses are considered for support, including modifications as they are income, but the parties were divorced July 23, 2008, almost a full year before Tom could even get the last payment of his retention bonus.

Not surprisingly, Tom appealed.

The Court of Appeals noted that assets earned during the marriage are part of the marital estate whether they are received during the marriage or after the judgment has been entered. However, the difference in the Skelly case is that the retention bonus was not truly earned during the marriage, so none of it was marital property.

Don’t forget, Tom had to work until May 31, 2009 to get the full $180,000, and he had to pay it all back, including portions already received, if he didn’t stay with Ford until that time. Because of this, he hadn’t earned the money as “he had not satisfied the condition subsequent ... required by the agreement between him and his employer.”

Ultimately, the Court of Appeals found the lower court erred in considering any portion of the retention bonus as marital property subject to division.

It also held that the third payment was not separate property subject to invasion because he had not yet earned that money when the parties were divorced.

The appellate court ruled that because speculative, future bonuses are not currently in existence, you can’t award them as part of the marital property division.

Once again, they aren’t earned during the marriage and are “based solely on the potential occurrence of future events unrelated to the marriage.”

Not even a crystal ball could’ve helped Patricia win this case.

A judge has vacated the double murder conviction and sentence of Michigan Innocence Clinic (MIC) client LaVone Hill, providing him the relief he has been seeking for more than 22 years.
Hill was convicted in 2002—in part due to the police corruption—of two murders he did not commit.

By Michigan Law

A judge has vacated the double murder conviction and sentence of Michigan Innocence Clinic (MIC) client LaVone Hill, providing him the relief he has been seeking for more than 22 years.
Hill was convicted in 2002—in part due to the police corruption—of two murders he did not commit. Wayne County Judge Patricia Fresard dismissed the charges on October 23 following an investigation by the Wayne County Prosecutor’s Conviction Integrity Unit.

The prosecutor’s office has said that it will not retry Hill.

“For almost 23 years, I’ve had to live with the reality of the nightmare that I may die in prison, an innocent man, based on misconduct and corruption in the Detroit Police Department, namely Sergeant Walter Bates,” Hill said.

“I am happy today to be a free man, but so sad for all of the innocent men I am leaving in prison behind me. I am also very sad that the families of the victims lost their loved ones and were lied to about me being the guy who killed them.”

Hill is the 44th wrongfully convicted person who has been freed by the work of the Michigan Innocence Clinic, housed at the University of Michigan Law School.

Michigan Innocence Clinic Co-Director Jenna Cobb said, “We thank the Wayne County Conviction Integrity Unit for recognizing this awful injustice and agreeing to release Mr. Hill after more than 22 years of wrongful incarceration for a murder that he did not commit.

“This is a remarkable case involving a recanting witness, extreme instances of witness coercion by police, other witnesses who later confirmed that Mr. Hill was not present on the night of the shooting, and an apology from the true perpetrator. While Mr. Hill will never get back the many years he lost in prison, today we join Mr. Hill in celebrating his release and looking forward to the impact he will make outside of prison walls.”

A false statement and a life sentence

On September 8, 2001, two people were shot and killed following a dice game in Detroit.

A few nights later, police picked up a supposed witness to the shooting on unrelated drug charges. The witness—who could neither read nor write proficiently—was detained for seven days, during which Sergeant Walter Bates of the Detroit Police Department wrote a false statement for him to sign. The false statement said that the witness saw Hill shoot the victims with a handgun while walking down the street.

No other witness ever implicated LaVone Hill in the crime.

During the 2002 trial, the witness recanted his false statement implicating Hill. He testified that Hill had not been present on the night of the shooting and that Bates had coerced his false statement. Bates testified that he had not.

On September 6, 2002, Hill was convicted of two counts of first-degree murder and two counts of possession of a firearm during the commission of a felony. He was sentenced to life in prison with no possibility of parole.

New evidence led to vacated decision

The decision to vacate Hill’s convictions comes after the discovery of several pieces of new evidence by Hill’s attorneys at the Michigan Innocence Clinic, including:

• Two independent witnesses who had been present the night of the shooting swore that Hill had not been present at the dice game where the shooting took place.

• New ballistics evidence confirmed that a high-powered rifle was used in the killings rather than a handgun, as stated in the prior witness’s recanted statement.

• The son of one of the victims of the crime said that another man had confessed to killing his father.

• New evidence also showed that Bates was suspended from the police force multiple times during Hill’s case—including while he testified in the case, a fact that was not disclosed to either the defense or the jury at the time of trial.

Moreover, Bates, who had amassed significant gambling debt, was using his experience in the Detroit Police Department to mastermind a string of bank robberies while this case was pending. Bates was later convicted of bank robbery and conspiracy to commit bank robbery.

The recent proceeding resulted in Hill’s immediate release from state custody in Muskegon, where his family, friends, and MIC advocates excitedly greeted him.

The Michigan Innocence Clinic is the first non-DNA innocence clinic in the country. In its 15-year history, the MIC has achieved 44 victories on behalf of its wrongfully convicted clients. MIC exonerees have served anywhere from a few months to 46 years in prison.