Daily Archives: February 29, 2024

16 posts

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

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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