Monthly Archives: February 2024

83 posts

An Injury to the Inheritance: Locating an Affirmative Obligation to Climate Adaptation in the Law of Waste

Issues Volume 52, Issue 4

By Samuel Niiro

As global temperatures continue to rise, most climate policy conversations have focused on mitigation measures, aimed at reducing the proliferation of greenhouse gases and curbing the rise in temperatures. Discussions, especially in legal literature, about climate adaptation measures — those intended to, for example, prepare for rising sea levels or increasing incidence of extreme weather events — have generally focused on the powers and responsibilities of government actors. Private citizens too, however, may also have a duty to prepare for climate change.

The law of waste is a longstanding doctrine under which holders of a current possessory interest in real property, such as tenants or mortgagors, bear certain responsibilities towards holders of concurrent or future interests, such as lessors or mortgagees. This Note argues that a subset of the law of waste, called permissive waste, may be read to impose a duty to affirmatively pursue climate adaptation measures on tenants and other similarly-situated individuals. Part II provides background information on current efforts to find a legal basis for a duty to pursue climate adaptation. Part III examines the history of the law of waste, with particular attention to the concept of permissive waste. Parts IV and V outline how the law of waste could be applied to the problem of climate adaptation, exploring the necessary conditions for such a claim to be made as well as the uses and limitations of using the law of waste in this fashion.

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“A Statement About Who Deserves to Live Here”: The Fair Housing Act Implications of Housing New York

Issues Volume 52, Issue 4

By Pablo Zevallos

New York City faces the twin problems of housing segregation and a shortage of affordable housing. In response, Mayor Bill de Blasio developed Housing New York, a plan to create or preserve 300,000 affordable units across a variety of income bands. As part of this plan, the City instituted inclusionary zoning policies and modified density caps in certain neighborhoods while targeting units for households in a range of income brackets citywide. Yet many residents and community advocates have long argued that homes developed under the plan are unaffordable to working-class, disproportionately affecting Black and Latino New Yorkers.

This Note takes a first pass at analyzing the plan’s compliance with the Fair Housing Act of 1968 through the lens of the plan’s income affordability targets and its household targets (the latter being deciphered through the aforementioned changes to city policy on density and the number of bedrooms targeted in new housing units). It examines key neighborhood demographics for communities targeted for inclusionary zoning and argues that the plan’s income affordability targets and its household targets, taken together with the City’s existing community preference policy, likely have a disparate impact on Black and Latino New Yorkers by disproportionately denying members of these communities housing and by perpetuating segregation within and between neighborhoods. This Note then propose a non-comprehensive set of remedies that would fall within jurisprudential constraints on Fair Housing Act cases.

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The Illinois Millionaire’s Exemption and the Utility of Campaign Contribution Limits

Issues Volume 52, Issue 4

By Nora Huppert

Illinois‘ 2014 and 2018 Gubernatorial elections raised eyebrows and drew national media attention for the astronomical amounts of money raised by the candidates in the form of direct campaign contributions, often from individual wealthy backers. These extreme campaign contributions, which in many states are strictly limited, were made possible in Illinois by operation of a unique campaign finance scheme enacted only a few years earlier. This law, meant to emulate the federal “Millionaire‘s Exemption” (or “Millionaire’s Amendment”) which had previously been held unconstitutional by the U.S. Supreme Court, lifts contribution limits completely in a given race once certain conditions are met. This was intended to level the playing field by allowing “underdog” candidates facing opponents backed by wealthy interests to raise a little more money from their supporters. In these Gubernatorial elections, however, the main beneficiaries of the law were exactly those candidates who were empowered to raise many millions from individual wealthy donors.

In the aftermath of these elections, commentators began to ask whether the Illinois law was “backfiring” by simply allowing wealth-backed candidates to raise even more money from wealthy supporters. As such, this Note examines campaign finance data in recent statewide and legislative elections in Illinois in which contribution limits were lifted to analyze whether the law operated as intended. Part II explains the constitutional backdrop against which the Illinois law was enacted and the relevant scholarly and legal views on the utility of campaign contribution limits in a universe in which independent spending cannot be meaningfully regulated. Part III estimates how much the law allowed candidates in recent statewide and legislative races to raise above campaign contribution limits and analyzes the real-world effect of the law. Part IV concludes that the limits-off law fails to serve its intended purpose in practice and that its benefits are outweighed by its “floodgates” effect on select big-money races; Part IV also proposes pathways for reform that might realign campaign finance law in Illinois with the limits-off law‘s admirable rationale.

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A Congressional Edifice: Reexamining the Statutory Landscape of Mandatory Arbitration

Issues Volume 52, Issue 4

By Andrew McWhorter

In the last century arbitration has grown to be a large and important part of the U.S. legal system. However, mandatory arbitration has been used in recent years to bar class action lawsuits and limit the procedural remedies available to certain classes of litigants. At the same time, the routes to challenging the use of mandatory arbitration have been increasingly closed off, with the courts broadly ruling in favor of its use and agency action likely foreclosed in the immediate future. In turn, the debate over mandatory arbitration has calcified, with one side arguing for an almost total ban on mandatory arbitration and the other arguing for few, if any, limits.

Despite these prevailing currents, Congress has enacted a handful of statutes that limit or regulate the use of mandatory arbitration in some way. This Note examines each of these statutes in turn with particular focus on the mechanisms by which they limit mandatory arbitration and the likely interests embodied in their passage. Drawing on the structure of these prior enactments, this Note ultimately argues in favor of a more holistic approach towards mandatory arbitration reform focused on the contexts in which mandatory arbitration is available and the processes applied in those contexts. This compromise position would curb the abuses of mandatory arbitration while retaining its benefits.

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Facing the Coordination Reality: Removing Individual and Party Limits on Contributions to Presidential Campaigns

Issues Volume 52, Issue 3

By Zachary Morrison

Since Citizens United, a new era of campaigning has emerged in which traditional campaign functions have been outsourced to candidate-centric outside groups. In the 2016 presidential election, ten campaigns had raised less money than their allied Super PACs and other outside groups. Federal election regulations that restrict coordination between these outside groups and campaigns are outdated and poorly enforced. American democracy is weakened by this unprecedented electoral activity because of decreased donor transparency, increased negativity without accountability, and voter confusion.

This Note concludes, after examining outside group political activity in the 2012 and 2016 presidential cycles, that candidate-centric outside groups create the same risk of corruption as direct contributions to campaigns. Therefore, this Note proposes that proponents of stricter campaign finance regulation should consider removing limits on individual and political party contributions to presidential campaigns. Allowing individuals and parties to provide unlimited funds to campaigns would diminish the appeal of outside groups and increase the political pressure on campaigns to disavow their use. This realistic, if not pessimistic, proposal offers a simple legislative solution to some of the concerning elements of an increased reliance on outside groups, while leaving the possibility for a different Supreme Court to permit radical change.

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When Fido is Family: How Landlord-Imposed Pet Bans Restrict Access to Housing

Issues Volume 52, Issue 3

By Kate O’Reilly-Jones

Renters today face widespread landlord-imposed pet restrictions. At the same time, Americans increasingly view their pets as family members, and many do not see giving up their animals as an option when looking for housing. Consequently, pet-owning renters often struggle to find suitable places to live and end up compromising on quality, location, and safety. As homeownership drops and renting becomes more prevalent across the United States, landlord-imposed pet restrictions increasingly constrain choices, effectively reducing access to housing for many Americans. These policies particularly impact low-income families and those with socially-maligned dog breeds.

This Note analyzes how landlord-imposed pet restrictions burden renters with dogs, with a particular focus on renters in the Los Angeles area. Parts II and III explain how legal and cultural attitudes toward pets are evolving, and how public and private restrictions constrain pet ownership. Part IV discusses the impact of landlord-imposed pet restrictions on renters and compares the situation to non-rental contexts in which people have sacrificed their own well-being to protect their pets. Part V asserts that the Fourteenth Amendment Due Process Clause and the penumbral right to privacy can be interpreted to protect pet-owning families from government-imposed pet restrictions. It argues that while these constitutional protections do not apply in the private rental context, they do suggest that landlords unreasonably infringe on renters’ privacy interests and that legislators should act to constrain landlord control.

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Why the Intent Test Falls Short: Examining the Ways in Which the Legal System Devalues Gestation to Promote Nuclear Families

Issues Volume 52, Issue 3

By Lauren Springett

For hundreds of years, the act of gestating and giving birth to a child was the lynchpin of the mother-child relationship. Now, changes in technological and societal norms have made it possible for motherhood to be established by some combination of gestation, genetics, and intent. As maternity disputes have increased, courts have privileged genetic and intent-based claims to motherhood over gestation-based claims.

This Note argues that in privileging genetic and intent-based claims to maternity over gestation-based claims, courts have implicitly devalued the historic importance of gestation in ways that privilege nuclear families at the expense of more marginalized women. Part II provides background on the evolution of the mother-child relationship in U.S. family law. Part III discusses the ways in which the legal system’s current approach to maternity disputes was shaped by its historical approach to paternity disputes. Part IV explores the ways in which the current approach specifically disadvantages gestational mothers — in particular, gestational surrogates and birth mothers. Part V proposes a model of reform that would more fully recognize both the contributions of gestational mothers and the rights of children to have relationships with all the women involved in their creation.

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Until Violence Do Us Part: Evaluating VAWA’s Bona Fide Marriage Requirement

Issues Volume 52, Issue 3

By Anna Boltyanskiy

The Violence Against Women Act (VAWA) allows those victims of domestic violence who are married to U.S. Citizens or Lawful Permanent Residents to “self-petition” for lawful status. To be approved under VAWA, the self-petitioner must prove, among other things, that her marriage was bona fide. This Note examines the practical difficulties that battered immigrants face in producing primary evidence of bona fide marriage and discusses the perverse incentives this requirement creates. Specifically, VAWA petitioners’ abusive spouses often destroy the documentation of bona fide marriage, never include the immigrant spouse’s name on the documents to begin with, or threaten further abuse if the immigrant spouse tries to obtain the documents. Because these issues are only amplified in a short-lived marriage, battered immigrants have perverse incentives to stay with their abusive partners longer, to marry their abusers, and to have children with them. As a possible solution, this Note argues that U.S. Citizenship and Immigration Services should give greater weight to affidavits as qualitative proof of bona fide marriage, which allows VAWA petitioners to explain any documentary gaps and to tell their own stories.

Intersex in 2018: Evaluating the Limitations of Informed Consent in Medical Malpractice Claims as a Vehicle for Gender Justice

Issues Volume 52, Issue 2

By Caroline Lowry

Each year, hundreds of individuals are born intersex, meaning they have genitalia that do not meet the criteria for being exclusively male or female. For decades, doctors have performed corrective genital surgeries on intersex infants in an attempt to make it easier for them to grow up as “normal” boys and girls. In recent years, however, there is a growing consensus that cosmetic genital correctional surgeries are both unnecessary and often harmful to the long-term wellbeing of intersex individuals. Given increasing recognition of negative outcomes over the past decade, critics and activists have called for a moratorium on corrective genital surgeries performed on infants. In 2017, an intersex youth named M. Crawford obtained the first legal settlement ever in the United States challenging infant correctional surgeries under the doctrine of informed consent.

This Note explores the implications of this the landmark legal settlement on efforts to combat nonconsensual genital correction surgery performed on intersex children. In particular, this Note explores the strengths and weaknesses of pursuing litigation based on the informed consent claims raised in M.C.’s lawsuit. This Note also offers alternative methods to combat the practice of performing intersex correctional surgeries.

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The Regulatory Leash of the One-Year Refugee Travel Document

Issues Volume 52, Issue 2

By Paulina Sosa

Asylees, refugees, and some Lawful Permanent Residents must obtain a Refugee Travel Document (RTD) from U.S. Citizenship and Immigration Services in order to travel abroad. These non-citizens cannot use passports from their home country, as doing so could result in a loss of their asylee or refugee status. RTDs are only valid for one year and must be renewed annually until the non-citizen naturalizes, if their holders plan to travel abroad. Because most countries require that a tourist’s travel document have a minimum remaining validity of anywhere from three months to one year, RTD holders are inhibited from completing their business or personal travel for many months out of the year.

Part I of this Note introduces the problem of the one-year validity period and discusses the relevant terms and concepts pertaining to asylum and refugee classifications. Part II then discusses the history of refugee travel documents before and after the enactment of the U.N. Convention Relating to the Status of Refugees and the related 1967 Protocol Relating to the Status of Refugees before examining how the United States and other countries comply with their obligations under the Protocol. Part III delves further into the processes of applying for, obtaining, and using a refugee travel document. Part IV discusses how refugee travel documents affect two different kinds of rights: the limited right of reentry into the United States and the right to international travel, both of which also vary according to immigration status. Part V argues for an increased validity period of at least two years and outlines how the change could impact asylees, refugees, and lawful permanent residents. Finally, Part VI outlines the potential barriers to implementing the proposed regulatory reform, such as national security policy and political will.

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Least Restrained Environment: Amending the IDEA to Require Positive Behavioral Interventions and Supports in IEPs

Issues Volume 52, Issue 2

By Helin Azizoglu

Students with disabilities are disproportionately restrained and secluded in schools. Though sometimes these practices are employed as necessary safety measures to de-escalate a behavioral crisis and protect students and staff from injury, they are prone to abusive or unsafe implementation, especially when performed by untrained or inadequately trained staff. In recent years, research has emerged illuminating the risks associated with these practices, which can lead to injury or death when performed improperly.

There is currently no federal legislative or regulatory framework in place addressing the practice of restraint and seclusion in schools, and state practices vary widely. As such, this Note proposes amending the Individuals with Disabilities Education Act, the statute governing the rights of students with disabilities, to affirmatively require the inclusion of positive behavioral interventions and supports in individualized education plans. Additionally, this Note proposes recommendations to bolster protections for students with disabilities at the state level.

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Tiebreaker: An Antitrust Analysis of Esports

Issues Volume 52, Issue 2

By Max Miroff

Electronic sports (esports) offers a novel case study in how antitrust analysis should approach multi-sided markets that rely on the ability of numerous entities to access intellectual property (IP). A game publisher’s IP in its game allows for permissible monopolization, but also creates opportunities for anticompetitive IP misuse. Tournament organizers, teams, players, broadcasters, spectators, and advertisers all need access to publishers’ IP to participate in esports markets. As publishers vertically integrate into the downstream market for esports content in their games, they rationally seek to minimize competitive pressure from other entities in the market. A publisher can do this by using its IP monopoly in its game to dominate the downstream esports market in its game by, for example, refusing to license broadcast rights to independent tournament organizers. This Note argues that in order to promote consumer welfare through market competition, antitrust law should restrict game publishers from using IP rights in their games to monopolize the downstream esports market for those games. Because multi-sided markets which rely on access to IP and blur the lines between producer, intermediary, and consumer are likely to grow, the stakes for effective antitrust analysis in these markets will only continue to climb.

Part I introduces the esports industry and overviews how antitrust law can be used to shape more competitive markets for the benefit of esports consumers. Part II provides an economic analysis of esports in order to define antitrust-relevant esports markets in which enforcement could be appropriate. Part III outlines the structure of a tying claim against publishers that use their IP monopoly over their games to acquire or maintain a monopoly over esports content produced with their games. Part IV contends that a publisher’s IP rights should not insulate it from liability for downstream anticompetitive behavior. Part V argues that antitrust enforcement would be superior both to the creation of an independent esports governance body, because such enforcement would facilitate market solutions rather than top-down rulemaking, and to the creation of a fair use exemption for esports, because such an exemption would be comparatively overbroad.

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Settling High: A Common Law Public Nuisance Response to the Opioid Epidemic

Issues Volume 52, Issue 1

By Michael J. Purcell

As legislatures and administrative agencies have struggled to successfully address the ongoing opioid crisis, many state attorneys general have stepped in and filed suit against major pharmaceutical manufacturers and distributors. Among the claims being made in such suits is one of “public nuisance.” Though these types of parens patriae claims have historically been a controversial means of dealing with major social issues, they also have the potential to serve an invaluable role in getting defendants to the settlement table. In order for such settlements to prove valuable, however, state attorneys general must think critically about how to structure them to ensure that they work in conjunction with ongoing legislative and administrative policies to address the full scope of the opioid epidemic.

By analyzing the strengths and weaknesses of past settlements in public health litigation, state attorneys general can structure a settlement which builds on these strengths and supports an effective response to the largely unique issues posed by the opioid crisis. Specifically, this Note argues that states should continue to pursue public nuisance causes of action against opioid manufacturers in an effort to get them to negotiate large-scale settlements that could then be used to finance immediate and ongoing legislative responses to the opioid epidemic. Part II discusses the background of the opioid crisis, explores how state and federal governments have unsuccessfully responded to it, and argues that the greatest impediment to the success of such legislative and administrative efforts has been a lack of financial resources. Part III then explores public nuisance law as it has been used in dealing with public health issues and how it might serve an invaluable role in incentivizing high settlement in the context of opioid manufacturers. Finally, Part IV draws on previous settlements to create a template for how state attorneys general in settlement negotiations with opioid manufacturers ought to structure settlements moving forward. Ultimately, the Note posits that they should turn their attention away from viewing settlements as a means to establish new substantive regulations for the industry and should instead focus their efforts on maximizing financial returns from these settlements such that they may fill the resource gap that has crippled the state’s ability to fully combat the opioid crisis.

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Operationalizing the Third Prong of the Federal Trade Commission’s 2015 Statement Regarding “Unfair Methods of Competition”

Issues Volume 52, Issue 1

By Harris S. Rothman

Courts have long held that the Federal Trade Commission’s authority to prohibit “unfair methods of competition” embraces not only the enforcement of the prohibitions of the Sherman and Clayton Acts, but also a “standalone” mandate to challenge practices that violate the spirit but not the letter of these laws. In a 2015 Statement, the Commission announced that it “is less likely to challenge an act or practice as an unfair method of competition on a standalone basis if enforcement of the Sherman Act or Clayton Act is sufficient to address the competitive harm arising from the act or practice.” The meaning of the “sufficient to address” condition is not immediately obvious, and the statement’s critics have pointed to it as just one respect in which the statement is unhelpfully vague. Despite a recent surge in scholarship arguing that the Clayton and Sherman Acts as applied are insufficient to promote the original goals of antitrust law, scholars have not devoted extensive analysis to the interpretation of the third prong’s language.

This Note argues that the third prong reflects the Commission’s determination that the most appropriate use of standalone authority is to fill gaps in the “traditional” antitrust regime of the Sherman and Clayton Acts. The Note proceeds to propose a decision-making framework that the Commission could use to actuate that interpretation. Part II introduces the basic policies of the antitrust laws and the provisions of the Sherman, Clayton, and Federal Trade Commission Acts. Part III reviews the scope of the Commission’s standalone authority under Section 5 of the FTC Act. Part IV analyzes the third prong of the Commission’s 2015 Statement, and argues that it is best interpreted as favoring gap-filling uses of standalone authority relative to other applications. It then develops a framework to guide the Commission in identifying legitimate gaps in the antitrust regime, identifies circumstances in which standalone enforcement may be most appropriate outside of such gaps, and demonstrates how the Commission might apply the framework in weighing a standalone complaint against Google’s allegedly anticompetitive implementation of “Universal Search.”

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Whiter and Wealthier: “Local Control” Hinders Desegregation by Permitting School District Secessions

Issues Volume 52, Issue 1

By Meaghan E. Brennan

When a school district is placed under a desegregation order, it is to be monitored by the district court that placed the order until the district is declared unitary. Many school districts have been under desegregation orders since shortly after Brown v. Board, but have failed to desegregate. Even when a school district is making an honest attempt, fulfilling a desegregation order is difficult. These attempts can be further complicated when a racially-identifiable set of schools secedes from the district. Such school district disaggregations make traditional desegregation remedies more difficult by further isolating children of different races.

In the past few decades, dozens of school districts have seceded to create wealthy districts filled with white children adjacent to poorer districts with children of color. This Note argues that school district secessions harm desegregation efforts and, in turn, the educational achievement of students in those districts. Two school districts — one in Jefferson County, Alabama and another in Hamilton County, Tennessee — serve as examples of how secession movements arise and how the conversations progress. Secession proponents often advocate for increased “local control” — seemingly innocuous rhetoric that serves as a guise for racism and other prejudice.

This Note argues that school district disaggregation is made far too easy by judicial preoccupation with local control and by the moralpolitical failure of state legislatures. But it is possible to discourage segregative school district disaggregation by reworking the concept of local control so that it prioritizes all children, and by adopting state legislation that promotes consolidated, efficient school districts.

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The Freedom of Tweets: The Intersection of Government Use of Social Media and Public Forum Doctrine

Issues Volume 52, Issue 1

By Samantha Briggs

In recent years, American presidents and other government actors have moved much of their communications with the general public online, through their use of social media. President Donald Trump is particularly known for his use of Twitter and his extensive communications via his account, @realDonaldTrump. Such government social media usage has historically gone unchecked by the courts, but that changed when the Knight Institute brought suit against President Trump for violating the First Amendment rights of users blocked by @realDonaldTrump.

This litigation is an illuminating example of why First Amendment analysis must extend to government social media pages, and yet raises new challenges. There are logical reasons why government actors may want to exert certain controls over their social media pages, though these controls will potentially run against the First Amendment. As such, this Note not only argues why First Amendment analysis must extend to government use of social media, but also proposes methods for how government actors might structure their online presences to avoid First Amendment rebuke.

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Gubernatorial Impoundment: An Implied Solution for a Budgeting Challenge

Issues Volume 53, Issue 4

By Zachary Blair

In recent years, states have had to make drastic cuts to their budgets even as the economy flourished in the wake of the Great Recession. The task of balancing state budgets has always been a formidable one, but recent shifts in revenue sources and their ability to generate reliable funding have made this challenge increasingly common and difficult. Historically, states have viewed budget balancing as a fundamentally legislative obligation and prerogative, which is often delegated to the executive branch in the form of impoundment statutes because of the executive’s superior budgeting capabilities.

In several states, however, the legislature has either kept the power to balance the budget for itself or has delegated insufficient discretion to the executive, hampering the state’s ability to meet its constitutional obligation to balance the budget. Consequently, this Note presents an alternative interpretation of the power to impound. It conceives of impoundment as a shared constitutional power exercisable by either the executive or legislature that can be constrained by statute. This interpretation permits the executive to better leverage its strengths in fiscal matters to resolve budget deficits quickly and efficiently, ensuring that the state meets its constitutional obligation to balance the budget.

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An Appointment with Time: Defining the Scope of a Timely Challenge After Lucia v. SEC

Issues Volume 53, Issue 4

By Dustin G. Graber

In its Appointments Clause jurisprudence, the Supreme Court has articulated a “timely challenge” requirement for litigants contesting the appointment of Officers of the United States. Most recently, the Court recited this language in Lucia v. SEC, a case in the October 2017 term, where it granted the petitioner a new hearing before a Securities and Exchange Commission Administrative Law Judge after finding a violation of the Appointments Clause. However, the Court has yet to provide a concrete definition for the phrase.

This Note seeks to fill this gap by providing a comprehensive framework to assess the timeliness of these constitutional challenges. It begins by tracing the doctrinal evolution from its origin in Ryder v. United States to its present iteration. Coupled with Court’s discretionary approach to nonjurisdictional constitutional issues raised in the first instance on appeal, this Note argues that review by a constitutionally valid officer is necessary to extinguish the timeliness of a challenge. This reasoning draws upon the Court’s treatment of the de facto officer and de facto validity doctrines in the Appointments Clause context and tests it in the context of a hypothetical SEC proceeding.

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Living in the Blast Zone: Sexual Violence Piped onto Native Land by Extractive Industries

Issues Volume 53, Issue 4

By Lily Grisafi

Native American women around the country, and particularly those living near extractive industries, face an epidemic of sexual violence. The high rates of violence against Native women are due in large part to the lack of liability for those most responsible. Flaws in United States and tribal criminal justice systems create de facto jurisdictional gaps that allow perpetrators to commit crimes on tribal land with impunity. In particular, restrictions on tribal sovereignty and criminal jurisdiction, inadequate funding for tribal criminal justice systems, and federal apathy to crimes on tribal land deepen the pre-existing problem of violence against Native women.

This Note elucidates the realities and causes of violence against Native women, in order to find legal solutions for holding perpetrators and extractive companies liable. Part II discusses the facts and legal backdrop of this epidemic of violence. Part III then examines how laws inhibiting tribal sovereignty combined with federal prosecutorial inaction are responsible for this epidemic. Part IV puts forth available legal solutions for holding perpetrators and extractive companies accountable through United States and tribal criminal justice systems. To hold perpetrators accountable, tribes should be legally permitted to exercise enhanced criminal jurisdiction over non-native defendants, and the Federal government should provide tribes with the inter-agency support and federal funding necessary to carry out this enhanced jurisdiction effectively. For their part, extractive corporations should be held responsible through federal regulation and civil action. Federal agencies should regulate extractive companies in the context of and in correlation with their businesses’ impacts on neighboring Native women’s safety. When, despite proper federal regulation, these corporations engage in negligent hiring practices that lead to increased violence against Native women, the corporations should be held civilly liable for public nuisance in state and tribal court.

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Characterizing the Harms of Compromised Genetic Information for Article III Standing in Data Breach Litigation

Issues Volume 53, Issue 4

By Terry Wong

As direct-to-consumer genetic testing has proliferated, individuals face a heightened risk of having their genetic information exposed in data breaches. In response to these breaches, individuals that turn to the federal courts as an avenue for recovery must overcome the legal barriers that have often frustrated victims in traditional data breach contexts. In particular, these plaintiffs have struggled due to the circuit split among the U.S. courts of appeals over whether certain harms are sufficient to confer Article III standing in data breach cases. While federal courts continue to debate over the sufficiency of traditional data breach harms, compromises of genetic information raise exceptional considerations and harms that should favor the conferral of Article III standing.

This Note analyzes that the implications of data breaches involving compromised genetic information that justify an expansive approach to the conferral of Article III standing. Part II of this Note surveys the growing prevalence of data breaches and discusses the common legal obstacles that victims face in seeking recovery against breached entities. Part III outlines the relevant Article III standing requirements and reviews the circuit split among the U.S. courts of appeals by focusing on the primary hurdle for data breach victims — establishing injury in fact. Part IV raises and analyzes the exceptional features and implications of data breaches involving genetic information. In doing so, this Part characterizes the potential harms resulting from genetic information compromise and discusses how they should impact the Article III standing analysis to satisfy the injury-in-fact requirement.

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Proxy War: The Role of Recent CEQA Exemptions in Fixing California’s Housing Crisis

Issues Volume 53, Issue 3

By Annelise Bertrand

As California’s housing crisis continues to balloon, legislators are scrambling to identify its root causes and fashion fixes. One major challenge to the state’s housing fix is its existing fix for a different issue: environmental protection. The California Environmental Quality Act (CEQA) is one of the strongest state-level environmental statutes in the United States, and mandates that residential projects of a certain scale and potential impact undergo rigorous rounds of public review prior to approval. It also grants a private right of action against a project approval to any anonymous individual, and given the glacial pace of such litigation, the exercise of this right often informally functions as an injunction. Recognizing its defensive potential, prosperous communities have repurposed a law intended to preserve the environment into a weapon of exclusion that preserves property values and views by preventing the construction of new and affordable housing where most needed.

To counteract CEQA abuse in the housing domain, the California legislature has passed three bills that streamline environmental review for projects that reserve a certain portion of units for affordable housing: SB 35, SB 540, and AB 73. This Note examines each bill in turn and, after reviewing their requirements in light of inclusionary housing literature, ultimately argues that the streamlining efforts are unlikely to produce the effects hoped for due to their mismatched incentives and concessions. Finally, the Note concludes with several recommendations for improving future CEQA-based affordable housing initiatives in the Golden State.

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Bargaining Life Away: Appellate Rights Waivers and the Death Penalty

Issues Volume 53, Issue 3

By Edmund A. Costikyan

In our criminal justice system, it is now a matter of little note that the vast majority of cases are resolved by guilty plea rather than at trial, without a single fact ever presented to a jury. Since the passage of the Sentencing Reform Act of 1984, it has become common practice for plea agreements to require not only that a defendant waive her right to trial by pleading guilty, but also that she waive her right to ever appeal her conviction or sentence. This Note explores the waiver of appellate rights from both a due process and public policy standpoint, arguing ultimately that when a defendant faces a potential death sentence at any point during the adjudication of her case, her appellate rights cannot be constitutionally waived; additionally, that in both the interest of justice and the public interest, such waivers should not be sought or upheld.

Part II of this Note introduces the relevant background of the plea bargaining system and the use of appellate waivers. Part III discusses the issues raised both when a defendant is asked to waive her appellate rights and by the enforcement of such waivers once effected, before addressing the arguable benefits of such waivers. Finally, Part IV seats these arguments in the context of capital punishment, where, due to the finality of the punishment and its powerful coercive force, the unreviewability of a conviction is at the highest level of concern.

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Diagnostic Trends and Donald DD.: Has the Watershed Case Changed How State Doctors Diagnose Sex Offenders?

Issues Volume 53, Issue 3

By Maximilian J. Auerbach

Twenty states currently have laws providing for the civil management of sex offenders through involuntary confinement or outpatient supervision. These “SVP statutes” unanimously require a finding of a “mental abnormality,” a legal standard that has generated significant debate since the Supreme Court affirmed the standard’s constitutionality in Kansas v. Hendricks. Proving the existence of a mental abnormality requires psychiatrists to diagnose sex offenders, and much of the aforementioned criticism focuses on the reliability of these predicate diagnoses. The New York Court of Appeals, in State v. Donald DD., interpreted these cases to mean a sole diagnosis of antisocial personality disorder is insufficient to find a mental abnormality.

This Note investigates whether, and to what extent, the Donald DD. decision has affected New York’s ability to civilly manage sex offenders and changed the diagnoses used in those civil management proceedings. Part II explores the constitutional requirements for SVP statutes established by the Supreme Court in Kansas v. Hendricks and Kansas v. Crane. Part III details the civil commitment scheme in New York, with particular focus on the diagnostic stages of a case. Part IV summarizes a review of civil management cases in New York since 2007 in order to determine whether Donald DD.’s holding affected New York’s ability to civilly manage sex offenders, or the diagnoses offered by state experts when seeking civil management. This review includes analyses of whether Donald DD. has changed how frequently New York recommends sex offenders for civil management, and how frequently the State succeeds at trial. This Note observes that, while the case may have had some effect on referral, it has not affected trial success rates. Additionally, this Note finds some evidence that Donald DD. may have led to increased psychopathy diagnoses, unspecified and other specified paraphilic disorder diagnoses, and the number of diagnoses assigned to individual respondents.

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Socially Accountable Investing: Applying Gartenberg v. Merrill Lynch Asset Management

Issues Volume 53, Issue 3

By Zachary Barker

In the past several years, the investment management industry has seen the tremendous growth of mutual funds that invest according to principles of socially responsible investment (SRI). What is missing from this growing sector, however, is any oversight as to whether these funds actually accomplish their socially conscious mission. With the Securities and Exchange Commission reluctant to police “social disclosure,” the unregulated promises of these SRI funds present a significant consumer protection risk.

This Note proposes that existing securities laws provide a potential avenue to effective SRI fund regulation without the need for new regulatory action. The rules of fiduciary obligation for mutual fund directors imposed by § 36(b) of the Investment Company Act and the landmark decision Gartenberg v. Merrill Lynch Asset Management, which until now have largely been applied to funds’ financial performance, could easily be adapted by SRI fund investors to ensure a modicum of oversight for those funds’ social performance. State laws governing the management of public benefit corporations, which impose on directors a duty to disclose and compare corporate social performance, can provide potential principles for evaluating social performance.

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#TimesUp On Individual Litigation Reform: Combatting Sexual Harassment Through Employee-Driven Action and Private Regulation

Issues Volume 53, Issue 2

By Natalie Dugan

In 2017, the New York Times published a story that exposed severe sexual misconduct on the part of Harvey Weinstein, an American film producer. The revelation of Weinstein’s conduct proved to be a watershed moment for the public’s comprehension of sexual harassment and violence in the workplace. Movements like the #MeToo and TimesUp initiatives quickly gained substantial momentum, reflecting a newfound and widespread commitment to combatting this form of misconduct.

This Note, however, aims to illuminate the barriers to progress those movements, and others, will face in their attempts to eradicate sexual harassment and violence in the broader workplace context, beyond the scope of Hollywood. The narrow focus on overt sexual misconduct, along with a general failure to circumvent the pre-existing shortcomings of the U.S. court system in addition to the various disadvantages of pursuing individual litigation, have the potential to prevent such movements from achieving lasting change. As such, this Note offers an alternative framework for combatting sexual misconduct in the workplace, through the implementation of employee-driven groups modeled after The Fair Food Program. Moreover, this Note offers possible means through which government intervention might facilitate cooperation between corporations and said employee-driven groups.

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The Curious Case of Lawrence Hoskins: Evaluating the Scope of Agency Under the Anti-Bribery Provisions of the FCPA

Issues Volume 53, Issue 2

By Christian R. Martinez

The Foreign Corrupt Practices Act (FCPA) explicitly defines the categories of entities subject to its provisions. One such category refers to any “agent of a domestic concern.” But what exactly is an agent of a domestic concern? In United States v. Hoskins, the Second Circuit decidedly refused to answer that question. This Note argues that, in the context of cross-border bribery, an agent of a domestic concern has a specific definition: a local third-party contracted by a non-local supplier to serve as a representative and to facilitate the movement of bribe payments between that supplier (the briber) and a local consumer (the bribee).

In making this argument, this Note underscores the significance of the Organisation for the Economic Co-operation and Development’s (OECD) Convention on Combatting Bribery of Foreign Public Officials in International Business Transactions (Anti-Bribery Convention) and its effect on FCPA enforcement. Part II provides background information to the FCPA and examines the Second Circuit’s decision in United States v. Hoskins. Part III explores the importance of the OECD Anti-Bribery Convention and juxtaposes this Note’s proposed definition of an agent of a domestic concern with traditional principles of agency. Part IV applies this Note’s proposed definition of an agent of a domestic concern to the facts of United States v. Hoskins and explains why courts should adopt this definition as well.

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Algorithmic Harms to Workers in the Platform Economy: The Case of Uber

Issues Volume 53, Issue 2

By Zane Muller

Technological change has given rise to the much-discussed “gig” or “platform economy,” but labor law has yet to catch up. Platform firms, most prominently Uber, use machine learning algorithms processing torrents of data to power smartphone apps that promise efficiency, flexibility, and autonomy to users who both deliver and consume services. These tools give firms unprecedented information and power over their services, yet they are little-examined in legal scholarship, and case law has yet to meaningfully address them. The potential for exploitation of workers is immense, however the remedies available to workers who are harmed by algorithm design choices are as yet undeveloped.

This Note analyzes a set of economic harms to workers uniquely enabled by algorithmic work platforms and explores common law torts as a remedy, using Uber and its driver-partners as a case study. Part II places the emerging “platform economy” in the context of existing labor law. Part III analyzes the design and function of machine learning algorithms, highlighting the Uber application. This Part of the Note also examines divergent incentives between Uber and its users alongside available algorithm design choices, identifying potential economic harms to workers that would be extremely difficult for workers to detect. Part IV surveys existing proposals to protect platform workers and offers common law causes of action sounding in tort and contract as recourse for workers harmed by exploitative algorithm design.

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The Sentencing Judge’s Role in Safeguarding the Parental Rights of Incarcerated Individuals

Issues Volume 53, Issue 1

By Anna Iskikian

Incarcerated parents face a disproportionate risk of having their parental rights terminated. According to a recent analysis of three million child-welfare cases nationwide, parents whose children have been placed in foster care due to their incarceration, but who have not been accused of child abuse, endangerment, or drug use, are more likely to lose their parental rights than parents who have physically or sexually assaulted their children. A dramatic rise in the prison population and the passage of the Adoption and Safe Families Act (ASFA) have driven the increase in the loss of parental rights among incarcerated parents. Furthermore, sentencing guidelines and mandatory minimums constrain a judge’s ability to adequately consider a defendant’s parenthood at sentencing.

This Note examines the sentencing judge’s role in preventing the termination of parental rights of incarcerated parents and proposes the establishment of a judicial recommendation against termination proceedings while a parent is incarcerated. Part II of this Note examines the history of criminal sentencing and the historical practice of granting a judicial recommendation against deportation (JRAD) to noncitizen defendants. Part III analyzes the disproportionate rate at which incarcerated parents lose their parental rights as compared to nonincarcerated parents. Part IV argues for amending the ASFA to implement the JRAD’s analog in the parental rights context and concludes that accounting for loss of parental rights at sentencing serves retributive, deterrent, and rehabilitative aims.

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Strict Tort Liability for Police Misconduct

Issues Volume 53, Issue 1

By Elias R. Feldman

The disproportionate rates at which police use wrongful deadly force against racial minorities in the United States is a matter of significant national concern. This Note contributes to the ongoing conversation by proposing a new legal reform, which calls for the state law imposition of strict tort liability on municipal governments for police misconduct. Such a reform could remedy the harms of police misconduct more fully than the existing laws do.

Under the Restatement (Third) of Torts, a person who is found by a court to have carried on an “abnormally dangerous activity” will be subject to strict liability for physical harm resulting from that activity. An abnormally dangerous activity is one which creates a foreseeable and highly significant risk of harm even when reasonable care is exercised in its performance; it is also an activity of “uncommon usage” in the sense that the risk it creates is nonreciprocal. In Part II, this Note explains how the policies and practices of modern policing, in conjunction with human cognitive limitations, cause policing to create a foreseeable and highly significant risk of harm even when performed with reasonable care. Part III then explains how policing’s risk is disproportionately borne by racial minorities, and how this nonreciprocity of risk imposes a dignitary harm on third-party racial minorities distinct from the physical harm suffered by police misconduct’s immediate victims. Part IV, in turn, discusses how policing’s nonreciprocal risk also makes policing “uncommon” in the relevant sense. Having established that policing is the kind of activity to which strict liability can be properly applied as a matter of law, this Note argues in Part V that imposing strict tort liability on municipalities for police misconduct is desirable as a matter of policy because strict liability rules are uniquely effective at correcting the misallocation of social costs and benefits stemming from nonreciprocal risk. Finally, this Note concludes in Part VI by anticipating possible political and legal objections to the proposed reform.

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The Starting Point: Structuring Newark’s Land Use Laws at the Outset of Redevelopment to Promote Integration Without Displacement

Issues Volume 53, Issue 1

By Malina Welman

In 2017, New Jersey’s largest municipality, Newark, made history when its city council passed an inclusionary zoning ordinance requiring, in part, that at least twenty percent of new residential projects be set aside for moderate- and low-income households. Acknowledging the surge of development moving down along New Jersey’s Gold Coast, policymakers brought forth this legislation to ensure that, as Newark inevitably redevelops into a more economically prosperous urban center, the city concurrently provide a realistic opportunity to generate affordable housing. By placing affordability at the forefront of its concerns, Newark has thus demonstrated its commitment to equitable growth, but this Note principally argues that in isolation, the inclusionary zoning ordinance is more symbolic than it is effective upon analyzing its terms. Therefore, while a mandatory, city-wide inclusionary zoning program is a necessary first step, true integration in redeveloping cities can only be realized by enacting a combination of anti-displacement and equitable growth regulations tailored to the particular needs of its residents.

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Measuring the Impact of Mergers on Labor Markets

Issues Volume 53, Issue 1

By Aryeh Mellman

While the Department of Justice (DOJ) traditionally reviews mergers solely in terms of their impacts of prices for consumers, the antitrust laws were enacted to deal with broader socio-political problems like industrial concentration as well as prices. A new line of research on labor market concentration suggests an additional area of concern for antitrust law, noting that even as mergers decrease prices, they can increase labor market concentration, keeping wages low for employees of merging companies.

This Note analyzes a merger through the lens of its predicted impact on wages, rather than prices. Part II lays out the evolution of antitrust law and merger review from its early multifaceted socio-political focus to its current narrow economic angle. Part III then questions whether the price-focused consumer welfare standard is as complete as it appears to be. Next, Part IV reviews the literature on labor market concentration and demonstrates how the tools that measure concentration in the product market can easily do the same in the labor market. Part V conducts a retrospective empirical analysis of a past merger, assessing whether it would have passed DOJ muster had the agency considered its effect on wages. Finally, Part VI suggests possible changes to the merger review process in light of the research and case study.

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Lenity Before Kisor: Due Process, Agency Deference, and the Interpretation of Ambiguous Penal Regulations

Issues Volume 54, Issue 4

By Thomas Z. Horton

When interpreting ambiguous punitive regulations, lower courts face a choice: either follow the Supreme Court’s instruction in Kisor v. Wilkie and defer to the enforcing agency’s typically more severe interpretation, or rely on the venerable rule of lenity — also endorsed by the Supreme Court — and adopt a less severe interpretation. This choice need not be made. Kisor deference and lenity do not clash when properly applied because these two doctrines operate at different levels of ambiguity. Lenity tips in favor of a defendant when a regulation’s meaning is subject to “reasonable doubt,” whereas agency deference applies only when a regulation is “genuinely ambiguous” — a more searching standard. Lenity, therefore, must apply before agency deference. This order of operations makes sense of both the doctrines and their justifications. Lenity’s constitutional underpinnings — in particular, the due process requirements of “fair notice” and conviction “beyond a reasonable doubt” — take precedence over the lower-order policy rationales behind agency deference.

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The Patent Trap: The Struggle for Competition and Affordability in the Field of Biologic Drugs

Issues Volume 54, Issue 4

By Charlotte Geaghan-Breiner

The biologic drug market in the U.S. suffers from a dearth of competition. Ten years after the passage of the Biologics Price Competition and Innovation Act (BPCIA), competition from biosimilars remains weak, and prices of branded biologics continue to increase at rates that outstrip inflation. This crisis of non-competition has resulted in billions of dollars in lost savings and reduced access to treatment, especially for vulnerable groups. Patent thickets — dense webs of overlapping patents — are one of the main barriers to biosimilar competition. By protecting their products with patent thickets, branded biologic manufacturers are able to deter competition from biosimilars and maintain periods of market exclusivity that far exceed statutory limits. This Note analyzes regulatory gaps in the BPCIA that allow patent thickets to thrive, and recommends both legislative and administrative solutions. Part II assesses the market landscape for biologic drugs in the U.S. and concludes that, of all barriers to biosimilar competition, patent thickets are the most significant. Part III evaluates the BPCIA framework in light of patent thickets and identifies aspects of the statute that allow patent thickets to block biosimilar market entry. Part IV analyzes recent legislative proposals to address the problem of patent thickets, and recommends administrative changes to strike a better balance between innovation and competition in the field of biologics.

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Immigration Court is Out of Sessions: Restoring Nonregulatory Termination to Immigration Judges Post–Matter of S-O-G- & F-D-B-

Issues Volume 54, Issue 4

By Susanna Booth

In 2018, Attorney General Jeff Sessions promulgated three Board of Immigration Appeals (BIA) decisions that sharply curtailed the power of immigration judges (IJs) to manage their own dockets and safeguard the due process rights of immigrant respondents. One such decision, Matter of S-O-G- & F-D-B-, eliminated IJs’ ability to terminate proceedings outside of specific circumstances, removing a traditional tool IJs used to dispense with unnecessary or unconstitutional proceedings.

Yet recent circuit court decisions undergird the conclusion that Matter of S-O-G- & F-D-B-’s reasoning is incorrect. This Note first traces the long history of expanding IJ authority, highlighting IJs’ gradual recognition of a discretionary termination power. After examining the reasoning of S-O-G- & F-D-B-, this Note then argues that, contrary to the Attorney General’s interpretation, IJs do possess the inherent authority to terminate removal proceedings, even outside of circumstances specifically identified by statute. Finally, this Note considers the viability of eventual challenges to S-O-G- & F-D-B- and argues that either executive, legislative, or judicial action is necessary to restore IJs’ power to discretionarily terminate proceedings and protect the rights of immigrant respondents.

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Giving Voice to the Silenced: The POWER Act as a Legislative Remedy to the Fears Facing Undocumented Employees Exercising Their Workplace Rights

Issues Volume 54, Issue 3

By Elie Peltz

Undocumented workers in the United States number nearly eight million and are key contributors to major industries and regional economies across the country. Yet undocumented workers often hesitate to report labor law violations due to the fear of making themselves known to immigration authorities. In recent years, employers have felt emboldened to ignore the labor rights of undocumented workers amidst a political climate marked by anti-immigrant rhetoric and increased government monitoring of immigrants. Although federal, state, and local law all provide criminal and civil remedies for undocumented workers who have experienced workplace violations, these forms of relief do not protect undocumented workers from their greatest fear — deportation. Consequently, many undocumented workers continue to suffer workplace abuse in silence.

This Note explores two complementary federal government reforms to insulate undocumented workers who report workplace abuse from deportation: 1) expansion of the U nonimmigrant status visa program, and 2) restriction of U.S. Immigration and Customs Enforcement’s ability to deport individuals who have pending actions against employers. This Note then analyzes proposed legislation that fixes the shortcomings of these attempts at reform: The Protect Our Workers from Exploitation and Retaliation Act (POWER Act), most recently introduced in Congress in November of 2019. Finally, given enforcement trends that emerged under the Trump Administration, this Note critically assesses the viability of the POWER Act and considers ways to bolster the legislation’s protections for undocumented workers.

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Invisible Victims: Combatting the Consequences of the College Admissions Scandal for Learning-Disabled Students

Issues Volume 54, Issue 3

By Susannah G. Price

In a recent college admissions bribery scheme, a network of wealthy parents paid entrance exam proctors, admissions insiders, and medical providers to rig the system that enables students with disabilities to receive testing accommodations. By purchasing false disability diagnoses, these parents procured testing accommodations and facilitated cheating on standardized tests — all in an effort to gain admission to top-tier universities. As a result, disability rights advocates fear a backlash against students with legitimate needs for disability accommodations in the college admissions process.

The purposes of this Note are to explore the practical consequences of the scandal for students with learning disabilities and to present a legal framework for preserving disability rights. This Note proposes: (1) adopting a purposive statutory interpretation of the Americans with Disabilities Act (ADA) as amended in 2008 to ensure that the rights of learning-disabled students are not violated; and (2) implementing this interpretation through legislative and regulatory amendments as well as judicial construction. The Note begins with a summary of the college admissions scandal and its exploitation of disability accommodations. Part II examines the legislative framework and case law that govern testing accommodations, including the ADA and its 2008 amendments (ADAAA). Part III outlines the trend of treating prior receipt of accommodations as a quasi-prerequisite for future accommodations, and how this trend discriminates against disabled students with recent diagnoses. Part III also details how the emphasis on prior receipt of accommodations is contrary to the purpose of the ADAAA and proposes adopting a purposive statutory and regulatory interpretation to ensure that first-time applicants for accommodations are not unduly penalized. Part IV identifies concrete methods to implement this interpretation and adequately safeguard the rights of learning-disabled students, including legislative amendment of 42 U.S.C. § 12102, regulatory amendment of 28 C.F.R. § 36.309, and corresponding judicial construction.

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Ill-Advised, Ill-Prescribed: A Remedy for the Alarming Usage of Psychotropic Drugs Among Migrant Children Held in U.S. Detention Facilities

Issues Volume 54, Issue 3

By Ilana Gomez

In recent years, many U.S. detention facilities have faced intense scrutiny for failing to comply with the 1997 Flores Settlement Agreement — a binding agreement that outlines national standards for the detention and release of migrant minors. Among other Flores Settlement violations, a 2018 class-action lawsuit revealed that a detention facility in Texas was unlawfully administering psychotropic medications to migrant minors under its supervision. The class members in Flores v. Sessions alleged receiving psychotropic drugs without parental or legally authorized consent, in addition to experiencing abusive medical practices. In response, the U.S. District Court in Flores v. Sessions ordered that the detention facility follow Texas child welfare laws and regulations when administering psychotropic medications to detained minors.

After the Flores v. Sessions order, detention facilities across the country have looked to their respective state child welfare laws and policies for instruction on how to authorize psychotropic medications to detained migrant minors. At present, state laws and policies governing consent and assent to psychotropic treatment vary across jurisdictions and are not tailored to the needs of migrant minors detained separately from their families. Of concern is the lack of guidance on who should consent for a migrant minor when their parent or legal guardian is not available; and the lack of procedure on how and when to obtain consent and assent from migrant youth. To address these outstanding issues, this Note proposes a national consent and assent framework for minors undergoing psychotropic treatments at U.S. detention facilities. By incorporating Loretta Kopelman’s “Best Interests Standard,” this framework will help facilitate the administration of psychotropic drugs in a manner that respects the health, safety, and rights of migrant youth.

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Back to Good: Restoring the National Emergencies Act

Issues Volume 54, Issue 3

By Samuel Weitzman

As amended after the Supreme Court’s decision in Immigration & Nationality Services v. Chadha, the National Emergencies Act (NEA) vests the President with crisis powers that cannot be terminated or taken away even by majorities in both Houses of Congress. President Donald Trump’s 2019 declaration of a “national emergency” at the southern border of the United States as a pretext to secure funding for his border wall with Mexico threw into sharp relief the perils and shortcomings of this imbalanced arrangement. This Note argues first that the President lacks any inherent emergency powers; any such powers that might exist belong to Congress and are within Congress’ discretion to delegate to the President. In turn, this Note contends that the post-Chadha change to the emergency termination procedure undermined the statute’s basic efficacy in service of formalist constitutional theory. Under a revisionist, functionalist reading of Chadha, the original emergency termination procedure was constitutionally permissible as a political legislative veto. Alternatively, the recently proposed ARTICLE ONE Act would help to return the NEA to its original role of constraining executive use of emergency authorities.

Predicated Predictions: How Federal Judges Predict Changes in State Law

Issues Volume 54, Issue 2

By Connor Clerkin

Erie v. Tompkins requires federal courts to apply state substantive law in diversity suits. In determining the content of the relevant state law, federal judges tend to rely on decisions made by the highest court of the relevant state. Yet decisions subsequent to Erie required federal judges to do more than mechanically apply prior state law decisions; rather, these judges predict how the highest court of the state would rule on the legal issue at that time, thus reducing the possibility of divergent outcomes due to forum. This rule results in the occasional federal court prediction that, if faced with a given legal issue, a state’s highest court would deviate from its previous decisions.

The purpose of this Note is to collect and analyze those cases in which federal judges predict deviations from established state law. This Note compiles and analyzes each case in which a federal court has predicted a change in state law and follows up with the subsequent state high court decision that either verified or rejected that prediction. This Note then categorizes and tallies the various analytical methods used by federal judges in making their decisions, with a table of cases and their utilized methods collected in Appendix I. First, this Note reviews the mid-century Supreme Court decisions that led to the modern predictive method and demonstrates how each federal Circuit Court utilizes that method. Next, this Note discusses problems with the predictive method addressed by scholarship and illustrated with examples from the collected cases. Finally, this Note analyzes the cases in which federal courts predict deviations from established state law and suggests that to improve the verification rate of their predictions of change, federal courts should predict such a divergence only when capable of making certain kinds of arguments.

Remedying Public-Sector Algorithmic Harms: The Case for Local and State Regulation via Independent Agency

Issues Volume 54, Issue 2

By Noah Bunnell

Algorithms increasingly play a central role in the provision of public benefits, offering government entities previously unimaginable ways of optimizing public services, but they also pose risks of error, bias, and opacity in government decision-making. At present, many publicly-deployed algorithms are created by private companies and sold to government agencies. Given robust protections for trade secrets in the courts and feeble state open records laws, such algorithms, even those with fundamental flaws or biases, may escape regulatory scrutiny. If state and local governments are to avail themselves of the benefits of algorithmic governance without triggering its potential harms, they will need to act quickly to design regulatory systems that are flexible enough to respond to continual innovation yet durable enough to withstand regulatory capture. This Note proposes a novel regulatory solution in the form of a new, independent agency at the state or local level — an Algorithmic Transparency Commission — devoted to the regulation of publicly-deployed algorithms. By establishing such an agency, tailored to the needs of each jurisdiction, state and local governments can continue to enhance their efficiency and safeguard companies’ proprietary information, while also fostering a greater degree of algorithmic transparency, accountability, and fairness.

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SALT, Subsidies, and Subnational Spending

Issues Volume 54, Issue 2

By Alak Mehta

Historically, the Internal Revenue Code has permitted itemizing taxpayers to deduct state and local tax (SALT) payments on their federal tax returns. While this SALT deduction has been adjusted and refined over the years, it has been a mainstay of the federal tax code. As of December 2017, taxpayers were entitled to deduct the full amount of state and local property tax payments, as well as their choice of either state and local income taxes or sales taxes. The Tax Cuts and Jobs Act of 2017 (TCJA) dramatically altered this provision by setting a $10,000 limit on the amount a taxpayer may deduct from her federal taxable income to account for all state and local tax payments. This $10,000 cap on SALT deductibility is scheduled to expire on December 31, 2025, by which point Congress will likely readdress this issue.

This Note proposes that the next iteration of the SALT deduction scheme should allow for full deductibility of state taxes, while retaining a cap on the deductibility of local taxes. This distinction between the treatment of state and local taxes would reflect the relative advantages of public administration at the state level. State-level funding and provision of public services strikes the optimal balance between the competing goals of local administration and redistributive spending. Instituting full state tax deductibility would incentivize a shift in the funding and provision of redistributive federal programs to the state level, and would further the goals of state autonomy and policy innovation. Moreover, reducing or eliminating local tax deductibility would increase the internal policy consistency of the Internal Revenue Code, mitigate the regressive nature of the SALT deduction, and help reduce residential income segregation.

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Molecule Size Doesn’t Matter: The Case for Harmonizing Antitrust Treatment of Pay-for-Delay Agreements

Issues Volume 54, Issue 2

By Morgan Marmaro

With notoriously the most-expensive drug prices in the world, the United States has failed to use all of the tools in its shed to combat the unending upwards trend. One such important tool is U.S. antitrust law that targets companies that improperly charge monopoly and supracompetitive prices long past their original patent’s expiration. Some companies have found a way to game the regulatory approval system by suing would-be generic competitors and then, under the guise of settlement, paying them to delay their market entry — allowing a brand drug manufacturer to maintain their monopoly prices and continue raking in large profits. The Actavis Supreme Court found these agreements involving reverse payments — also known as pay-for-delay — can violate antitrust laws even in light of the existing patents. This Note argues that in an ongoing case, In re Humira that examines reverse payments between biologic drug companies, the district court was right to engage in an Actavis analysis but did so improperly. In re Humira provides a prime opportunity to strengthen and clarify U.S. jurisprudence on reverse payments and market allocations to reduce ambiguity in an evolving pharmaceutical sphere: biologics and biosimilars. This Note further argues that to harmonize the antitrust treatment of pharmaceuticals — small molecule and biologic — both clear judicial standards and legislation are needed.

This Note proceeds in four parts. Part II discusses various forms of antitrust abuses that arise in the pharmaceutical sphere and that often accompany reverse payment agreements. It follows with the relevant legal and regulatory backgrounds of small and large molecule drugs. Part III then considers the consequences of lax antitrust scrutiny on pharmaceuticals and finishes with an in-depth examination of the In re Humira litigation. Lastly, Part IV proposes a two-fold solution, legal and legislative, to the problems posed by Actavis’s lack of legal clarity. Ultimately, the purpose of this Note is to demonstrate that the way a drug is manufactured, approved, or allowed to compete does not alter the application of antitrust law seeking to rid the market of collusive agreements between rivals.

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Bend and Snap: Adding Flexibility to the Carpenter Inquiry

Issues Volume 54, Issue 1

By Sherwin Nam

The Supreme Court’s decision in Carpenter v. United States, which requires law enforcement to obtain warrants to access historical cell-site location information, raises new questions about the application of the Fourth Amendment to biometric technologies, such as facial recognition technology (FRT) and voice recognition technology (VRT). While “no single rubric definitively resolves which expectations of privacy are entitled to protection,” this Note seeks to demonstrate that current applications of the rubric offered in Carpenter — considering voluntariness, invasiveness, comprehensiveness, ease of data collection, and retrospectivity — are inadequately flexible. To safeguard the private and intimate details that ongoing “seismic shifts in digital technology” continue to reveal, the courts need a bolder, more robust framework for Fourth Amendment protection. Using FRT and VRT as illustrative examples, this Note argues that analyses of reasonable expectations of privacy involving biometric technologies should recognize the right to anonymity as an integral part of the Carpenter inquiry.

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Commercial Free Speech Constraints on Data Privacy Statutes After Sorrell v. IMS Health

Issues Volume 54, Issue 1

By Bastian Shah

Collection and use of big data drive the modern information economy. While big data can produce valuable innovations, it also comes with perils for consumers. In particular, consumers have little ability to protect their privacy online and are unnerved by the hyper-targeted advertising to which they are subjected. In response to these concerns, American states have begun enacting general data privacy laws similar to those passed in Europe. At the same time, the United States Supreme Court has grown wary of laws attempting to restrict companies from distributing and using data for advertising purposes. For instance, in Sorrell v. IMS Health, the Court found that a Vermont statute aimed at preventing targeted advertising by pharmaceutical manufacturers violated the commercial free speech doctrine. Since Sorrell, the constitutionality of data privacy statutes has been ambiguous.

This Note argues that data privacy laws that empower consumers to meaningfully protect their privacy by opting out of unwanted data collection do not violate the commercial free speech doctrine. Part II defines data privacy and summarizes the objectives current data privacy laws seek to achieve. Part III analyzes commercial speech jurisprudence before and after Sorrell and discusses the effect of Sorrell on commercial free speech jurisprudence and data privacy law. Part IV argues that government interest in empowering consumers by giving them meaningful choices in their online privacy is important enough to survive scrutiny under the post-Sorrell commercial free speech paradigm.

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A Critique of Consumer Advocacy Against the Restatement of the Law of Consumer Contracts

Issues Volume 54, Issue 1

By David Berman

In May 2019, the American Law Institute proposed adopting a Restatement of the Law of Consumer Contracts. In it, the Restatement’s Reporters suggested a “grand bargain,” which removed the requirement that consumers meaningfully assent to contractual terms and compensated for this by adding teeth to ex post remedies already available to consumers. The proposed Restatement drew immense criticism from consumer advocates, who argued both that meaningful assent was not disappearing in the common law, and that the ex post remedies did not go far enough to cure consumer harms. In the wake of this critique, the draft was shelved for further consideration.

This Note argues that consumer advocates’ approach to critiquing the Restatement is misguided. Contrary to the position of consumer advocates, the Reporters were fundamentally correct in identifying the gradual demise of assent as a reality in consumer contracts. However, this Note acknowledges that ex post review procedures, such as the application of the unconscionability doctrine, are inadequate mechanisms for redressing consumer harm.

Instead, this Note argues that consumer groups are better served by focusing on ex ante regulation of contract design, which would ensure that consumers are presented with fair contracts. This Note suggests that consumer advocates should focus their attention on the adoption of more rigorous Unfair and Deceptive Acts & Practices statutes on the state level. Provided that the right combination of prohibited terms, administrative updating mechanisms, and enforcement provisions are included, such state-level regulation would better protect consumers from unfair adhesive contracts.

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Out of Sight, Out of Mind: Rural Special Education and the Limitations of the IDEA

Issues Volume 54, Issue 1

By Lydia Turnage

In 1975, the Individuals with Disabilities Education Act (IDEA) established a substantive right to “free appropriate public education” (FAPE) for children with special needs. Since that time, the right to FAPE has primarily been defined by — and enforced through — the IDEA’s robust set of procedural safeguards and avenues for private enforcement. However, the Act’s emphasis on procedure over substance has prevented the realization of meaningful educational programming for a significant number of special needs students. This Note illustrates the fundamental tension between the IDEA’s substantive and procedural goals by contrasting the legislative and judicial vision of the IDEA with the current state of special education in rural public schools.

Part II gives a general overview of frameworks for policy implementation. Part III provides a background in the evolution of special education law, with a focus on the role that courts have played in the development of special education policy. Part IV argues against the IDEA’s proceduralist approach by demonstrating how this approach fails to account for the challenges faced by rural students at every stage of the special education process, including eligibility for special education, the formulation and enforcement of individualized education plans, and the provision of feasible alternatives to students’ initial public school placement. Finally, Part V argues that the current framework for the provision of special education should be modified to include more effective means for enforcing students’ rights and should incorporate the “inclusive schools” approach, which allows for a more substantive, collaborative, and holistic approach to providing FAPE.

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Decency Comes Full Circle: The Constitutional Demand to End Permanent Solitary Confinement on Death Row

Issues Volume 55, Issue 4

By Brandon Vines

Many of the two thousand Americans living under a sentence of death spend twenty-three hours a day in a concrete box the size of a parking space. Often the only human touch they feel is being handcuffed and the only natural light comes from a small grill at the top of an exercise cell. However, change is at hand. The Supreme Court has emphasized that the Eighth Amendment’s prohibition of cruel and unusual punishments draws its meaning from the evolving standards of decency that mark the progress of a maturing society. To date, there has been a dearth of information available regarding the historical and modern conditions on death row.

This Note addresses this gap. Part I provides, for the first time, a complete historical narrative of the development of the American death row from the Colonial Era to the Twenty-First Century. Part II reviews the findings of a survey of every jurisdiction with capital punishment to capture a national snapshot of conditions on America’s death rows. The findings in both Parts suggest that the system of permanent solitary confinement on death row has neither the weight of history nor the support of the majority in either contemporary practice or social values. Indeed, there is an accelerating trend away from the practice. Part III places this evidence in constitutional context and argues that the twelve states that retain permanent solitary death rows are out of pace with America’s evolving standards of decency and violate the Eighth Amendment.

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Racialized Self-Defense: Effects of Race Salience on Perceptions of Fear and Reasonableness

Issues Volume 55, Issue 4

By Suzy J. Park

Through a controlled experiment, this Note investigates the hypothesis that implicit references to racial stereotypes, such as subtle racial imagery, trigger mock jurors’ implicit biases to a greater degree than explicit invocations of racial stereotypes. Across six conditions, 270 participants read facts resembling those of People v. Goetz, in which a White defendant shot four young men in a subway train, allegedly in self-defense. Half of the participants viewed photos depicting the victims as White; the other half viewed photos depicting the victims as Black. Participants were further randomly assigned to read the defense attorney’s statement to the jury layered with implicit, explicit, or no racial cues. Following the experimental manipulation, participants indicated to what degree they believe that the defendant subjectively and reasonably believed that he was faced with a physical threat at the time of the shooting. Contrary to the hypothesis, the experiment found no statistically significant difference between explicit and implicit appeals to race in triggering individuals’ racial biases regardless of the race of the victims. This Note contributes to the existing literature by providing experimental data on exactly how powerful the use of implicit racial imagery may be in the courtroom and by probing the mechanism through which racially coded language affects jurors’ decision-making. The results further suggest that, since courts cannot easily make people “turn off” their prejudices through the use of race salience, choosing jurors during voir dire who are internally and genuinely motivated to be unprejudiced is all the more important.

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The Role of the Excessive Fines Clause in Ending the Criminalization of Homelessness

Issues Volume 55, Issue 4

By Siobhan Allen

Over the last decade, the United States has seen a dramatic increase in both homelessness and the laws that criminalize it. This Note contends that the Eighth Amendment’s Excessive Fines Clause is a powerful but underutilized tool available to end the criminalization of homelessness.

Part I reviews the history of civil and criminal punishment of homelessness in the United States and of the Excessive Fines Clause. Part II explores the weaknesses of other Eighth Amendment doctrines in their application to people experiencing homelessness. Part III explores the Excessive Fines Clause as a constitutional protection against civil punishment for people experiencing homelessness. This Part also evaluates what constitutes “excessive” and “fine” within the meaning of the Clause, and how proportionality between perpetrator, action, and the amount of a fine factors into the “excessiveness” analysis. Finally, Part IV discusses the benefits and drawbacks of applying the Excessive Fines Clause in conjunction with other Eighth Amendment doctrines as a constitutional framework for people experiencing homelessness. The Note concludes by arguing that the Excessive Fines Clause should be used as a tool to stop the criminalization of homelessness.

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Do Municipalities Need a Lender of Last Resort? Evaluating the Federal Reserve’s Pandemic-Era Municipal Lending Program

Issues Volume 55, Issue 3

By Arpan Patel

In March 2020, the COVID-19 pandemic pushed the $4 trillion American municipal debt market—a critical source of funding for state and local governments—to the brink of collapse. On March 27, 2020, Congress passed the Coronavirus Aid, Relief, and Economic Security Act, which in part empowered the Board of Governors of the Federal Reserve and the Department of the Treasury to establish a Municipal Liquidity Facility to “help state and local governments better manage cash flow pressures in order to continue to serve households and businesses in their communities.” Although the Federal Reserve authorized the Municipal Liquidity Facility to lend up to $500 billion to municipalities, only two borrowers, who drew on 1.27% of the total capacity, tapped the facility. The debates that sprang up around the Municipal Liquidity Facility demonstrate that scholars have yet to grapple with the institutional, legal, and historical constraints of Federal Reserve support for state and local governments.

This Note addresses that gap. It begins by situating the Municipal Liquidity Facility within the history of the Federal Reserve’s monetization of municipal bonds. The Note goes on to evaluate Congress’ legislative mandate for the Municipal Liquidity Facility and the operational, political, and legal dynamics of the program. Finally, based on the institutional history, legal authority, and politics of the Federal Reserve, this Note examines policy proposals to reform the Federal Reserve’s role for supporting municipalities during crises. Ultimately, this Note attempts to place the pandemic-era policy experiment in historical context, and then draw out lessons to help answer a critical question for policy makers: when municipal governments face financing crises, what is the proper role for the Federal Reserve?

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