Issues

113 posts

When Anti-Discrimination Law Discriminates: A Right to Transgender Dignity in Disability Law

Issues Volume 50, Issue 2

By Katie Aber

The Americans with Disabilities Act of 1990 (ADA) and its subsequent amendments in 2008 provided comprehensive protection against discrimination based on actual or perceived disabilities. In a compromise necessary to pass the bill, however, the drafters excluded certain disorders deemed to be morally reprehensible, including gender identity disorders. Gender identity disorder, which has since been reclassified in the Diagnostic and Statistical Manual of Mental Disorders as gender dysphoria, describes the distress experienced by transgender individuals as a result of the incongruence between their gender identity and their biological sex. While not all transgender individuals have gender dysphoria, gender dysphoria is exclusively associated with transgender people. Unlike many of the other disorders excluded from protection under the ADA, gender dysphoria neither involves criminal conduct nor causes harm to oneself or others. This Note argues that the exclusion of gender dysphoria from the ADA violates the dignitary rights of transgender individuals because it stigmatizes and demeans them by refusing to apply the broad, almost universal, definition of disability established by the Act to gender dysphoria. The result is that transgender individuals are ineligible to seek access to anti-discrimination protection that they might otherwise qualify for under the ADA. This Note considers the Supreme Court’s analysis of dignity in recent gay-rights jurisprudence, asserts that the Supreme Court recognizes dignitary rights, and argues that the ADA’s exclusion imposes a dignitary harm on all transgender people. This Note concludes that, because the exclusion of gender identity disorder is based on animus, which the Supreme Court has held to lack a rational relationship to a legitimate state interest, the provision is unconstitutional.

Download Article

An Assault on the Fundamental Right to Parenthood and Birthright Citizenship: An Equal Protection Analysis of the Recent Ban of the Matrícula Consular in Texas’ Birth Certificate Application Policy

Issues Volume 50, Issue 4

By Cathy Liu

Recent changes in Texas’s birth certificate application policy have made it nearly impossible for hundreds — and perhaps thousand — of undocumented immigrants to obtain birth certificates for their U.S.-born children. The Texas Department of State Health Services (DSHS) has implemented a policy banning state registrars from accepting the matrícula consular (matrícula) as an identifying document applicants may present as part of the state’s birth certificate application process. Matrículas are consular identification cards issued by Mexican consulates to citizens of Mexico living outside of the country. They are widely-accepted as a reliable form of identification and are often the only identification available to undocumented immigrants. Without alternative forms of ID, undocumented parents cannot satisfy the policy’s identification verification procedure and consequently cannot obtain birth certificates for their children.

Undocumented parents lacking birth certificates for their children cannot fully access their fundamental right to parenthood, which includes the right to make decisions on how best to raise and care for their children. Enrolling a child in schools and daycare and obtaining public benefits like Medicaid and Section 8 housing assistance all require presentation of that child’s birth certificate. In addition, although the children affected by the changes are citizens by virtue of being born in the U.S., they cannot fully exercise their rights as citizens, including the right to travel interstate, to receive a public education as well as the right to work. Furthermore, the policy may, in some instances, have the effect of denaturalizing U.S.-born children, thereby depriving them of their statuses as U.S.–citizens.

This Note provides an Equal Protection analysis of Section 181, the provision of the Texas Administrative Code that codifies this new policy. Part I explains the recent changes in Texas’ birth certificate application procedures. Part II provides an overview of the Equal Protection Clause. Parts III through V argue that the new Texas policy violates the Equal Protection Clause. This Note first argues that strict scrutiny is the appropriate standard of review in analyzing the constitutionality of the policy. It then argues that the policy fails to survive strict scrutiny review because it fails to further a compelling state interest, is underinclusive in its attempt to prevent fraud, and because less discriminatory alternatives can as effectively deter identity crimes and fraud.

Download Article

Still Underwater: The Need for Temporary Foreclosure and Mortgage Relief for Victims of Future Natural Disasters

Issues Volume 50, Issue 4

By Jason M. Sugarman

Over four years ago, Superstorm Sandy decimated New York and New Jersey. Homes were destroyed, individuals were displaced, and the costs of repairing damaged properties were enormous. Many Superstorm Sandy victims could not maintain their monthly mortgage payments, and as a result faced foreclosure.

This Note proposes that New Jersey adopt legislation providing temporary foreclosure and mortgage relief to victims of future natural disasters. Part II of this Note describes FEMA;s origination and its role in assisting natural disaster victims. Part III outlines Superstorm Sandy‘s destructiveness and its impact on homeowners. Part IV explains the National Flood Insurance Program and specifically why so many Superstorm Sandy victims had underpaid flood insurance claims. Part V describes HUD’s role in helping natural disaster victims and the state sponsored programs in New York and New Jersey that used grants from HUD to assist Superstorm Sandy victims. Parts VI and VII outline additional problems, such as foreclosure, that Superstorm Sandy victims faced while trying to return to their homes. Part VIII examines New Jersey legislation that provides temporary foreclosure and mortgage relief for Superstorm Sandy victims. Finally, Part IX describes the terms of this Note‘s legislative proposal and the policy basis for enacting temporary foreclosure and mortgage relief for victims of future natural disasters.

Download Article

Shielded from Justice: How State Attorneys General Can Provide Structural Remedies to the Criminal Prosecutions of Police Officers

Issues Volume 50, Issue 4

By Isaac G. Lara

The recent string of police shootings involving unarmed civilians has prompted national outcry over the actions of law enforcement officials. Many state and local law enforcement agencies today are reexamining the way prosecutors handle these incidents. In most jurisdictions today, District Attorneys are responsible for investigating such cases, which is problematic given the reciprocal relationship that exists between District Attorneys and law enforcement agencies. Specifically, District Attorneys rely on police officers to make arrests, interrogate suspects and testify at trial. In turn, police officers rely on District Attorneys to translate their arrests into convictions. This relationship creates a real or perceived conflict-of-interest, which can severely undermine public confidence in the criminal justice system.

State Attorneys General, however, may provide structural solutions to this problem. To illustrate this, this Note conducts a broad survey of the five major categories of actions that State Attorneys General can use during investigations into police shootings. This Note also offers recommendations as to how State Attorneys General can improve on current practices to ensure fair investigations and outcomes. Recommendations include appointing a special prosecutor from a different district; launching a conflict-of-interest inquiry; cooperating with the federal government in devising a national database of police shootings; and reexamining the legal parameters of the use of force.

Download Article

Rethinking Judicial Review of Arbitration

Issues Volume 50, Issue 4

By Nico Gurian

Mandatory arbitration is everywhere in the daily life of most Americans — when they sign a cell phone contract, buy a cable subscription, or sign up for a checking account. For most Americans, there is no avenue to acquire these basic goods and services without giving up the right to litigate disputes before a court of law. The increased use of mandatory arbitration clauses is not an accident. Buoyed by the Supreme Court’s expansive interpretation of the Federal Arbitration Act over the last few decades, businesses have used mandatory arbitration clauses to insulate themselves from liability by, for example, including class-action waiver provisions in arbitration agreements that can make it financially impossible for plaintiffs to bring substantive claims.

A key aspect of the current arbitral system is that arbitrators’ decisions are subject to extremely limited judicial review, which is an underlying assumption of both Supreme Court jurisprudence and scholarship in this area. This Note seeks to question that assumption. First, it considers traditional rationales for limited judicial review of arbitral decisions and argues that these justifications fail to take into account the realities of the current arbitral system. Second, borrowing from administrative law, it offers a proposal for how states could tailor a system of increased judicial review of arbitration decisions that would better promote fairness while preserving the positive effects of arbitration.

Download Article

Digital-Age Discrimination: The Voting Rights Act, Language-Minorities, and Online Voter Registration

Issues Volume 50, Issue 3

By Morgan E. Saunders

Online Voter Registration, a new and exciting advancement in election administration, conveniently allows individuals to register to vote on the Internet. However, Online Voter Registration also highlights deficiencies within the United States election system. Specifically, many states’ Online Voter Registration websites are only available in English, despite the fact that citizens in those states have a federally guaranteed right to access all of their election materials in a different language. This right comes from the minority-language provisions of the Voting Rights Act, which require certain states and counties to provide all election materials in specific languages other than English that are common within their jurisdictions. Unfortunately, these provisions often go unenforced or under-enforced. States and counties have been especially slow to come into compliance with the minority-language provisions with regards to their online election materials, like their Online Voter Registration websites. Due to the underenforcement of this section of the Voting Rights Act, there is little legal precedent on which to base future litigation. This Note argues that all Online Voter Registration systems provided by states containing minority-language covered jurisdictions must be provided to voters in all covered languages. It also provides both a litigation and legislative strategy to ensure full compliance with the minority-language provisions on the Internet. Achieving full compliance with the VRA is critical to ensure that non-English-speaking voters have equal access to the ballot.

Download Article

Closely Held Conscience: Corporate Personhood in the Post–Hobby Lobby World

Issues Volume 50, Issue 3

By Sean Nadel

This Note seeks to reframe scholarly criticism of Hobby Lobby by evaluating the case in the context of the evolving doctrine of corporate personhood and, specifically, the Obama Administration’s recent regulations that cabin the decision by implementing a new federal definition of “closely held corporations.” This Note suggests that, although problematic in certain regards, Hobby Lobby does not represent the return of Lochner. Indeed, the innovation of Hobby Lobby is not its interpretation of RFRA or the Free Exercise clause, but rather its extension of standing under RFRA to corporate parties. Accordingly, the concerns over Hobby Lobby are better articulated in the realm of corporate personhood rather than in the debate surrounding the First Amendment, making a focus on “Free Exercise Lochnerism” an ill-fitting mode of analysis. Moreover, by examining the progressive response to Hobby Lobby, epitomized by the resulting Department of Health and Human Services (HHS) regulations, the advantages of viewing the decision in terms of corporate personhood will become apparent. Part II of this Note examines the events precipitating Hobby Lobby, the decision in Hobby Lobby itself, and the debate surrounding and subsequent implementation of the resulting HHS regulations, which set the most comprehensive federal definition to date of closely held corporations. Part III critiques the HHS regulations by pointing to several problems, which both undermine the efficacy and goals of the regulation itself and pose precedential issues for the treatment of corporations in other contexts. Particularly, Part III comments that the post–Hobby Lobby effort to protect reproductive rights has undermined Hobby Lobby’s powerful language about corporate personhood, which could be used to advance corporate social responsibility, a key move for many progressive causes like environmentalism and workers’ rights. Part IV suggests an alternative to the current regulations that relies on the internal sincerity-testing model of RFRA, which evaluates whether the belief professed by plaintiff is authentic; this could prove to be less problematic than the current regime.

Download Article

Guardians as Gatekeepers and Other Issues of the Establishment Clause and Parole

Issues Volume 50, Issue 3

By Daniel W. Sack

The United States is relatively unique compared to other countries in two particular areas: how religious its citizens profess to be and how many of its citizens are incarcerated. This Note examines how these two characteristics interact in the parole context with an emphasis on the role of the chaplaincy in such proceedings. Federal courts have wrestled — relatively inconclusively — with where to draw the line between permissible and coercive consideration of religious attributes in the parole setting. Giving religious factors too much weight could potentially pressure inmates into adopting insincere religious habits in the hopes of obtaining favorable treatment; conversely, too little weight could fail to recognize the secular attributes of religious participation that often lend themselves toward rehabilitation. This Note suggests that limited inquiry by parole boards into the structural- or community-based (as opposed to philosophical- or tenet-based) components of an inmate’s religion may be appropriate. So too may be the parole board’s acceptance of a letter of reference from a prison chaplain. Conversely, this Note argues that prison chaplains overstep their bounds and violate the Establishment Clause when they serve on parole boards by putting a coercive force on inmates to become religious or follow a certain religion. This Note ultimately strives to flesh out the complicated and varied ways in which inmates’ freedoms of and from religion intersect with their attempts to obtain freedom through parole.

Download Article

Beyond the Reach of the Constitution: A New Approach to Juvenile Solitary Confinement Reform

Issues Volume 50, Issue 3

By Abigail Q. Cooper

In the last year, the call to reform the practice of solitary confinement has come from all sides. Most of the attention has been on changes at the federal level, despite the fact that the vast majority of inmates in the United States are held at the local and state level. Additionally, the proposed reforms have centered around constitutional arguments that the use of solitary confinement is a violation of the Eighth Amendment. This Note argues that a constitutional ruling in this area is neither necessary nor sufficient to effect change. Solitary confinement is a problem beyond the reach of the Constitution. Rather, it is a byproduct of chronic underfunding, understaffing, and a pervasive culture within prisons that regards solitary confinement as a means of keeping correctional officers safe and maintaining order.

After carefully analyzing the recent settlement in Illinois, as well as a recent lawsuit in New York, this Note argues that reformers should shift their focus to the state level, and, specifically, to the office of the Attorney General. As defense counsel for the state, the Attorney General controls the course of these litigations — including the decision of if, and when, to settle. Yet, an Attorney General is also duty-bound to represent the interests of the People, even when defending the state and its officers in court. Thus, the state Attorney General must always keep an eye towards the plaintiffs — the juveniles themselves — and their interests during these lawsuits and settlement negotiations. Moreover, as the chief legal officer to the state, the Attorney General is uniquely positioned to bring together crucial stakeholders within the government and correctional facilities in order to negotiate a settlement agreement. By examining the filings and transcripts in the New York and Illinois lawsuits, which this Note does for the first time, it becomes clear how crucial state Attorneys General are to ending juvenile solitary confinement.

Download Article

The Internet of Things and Potential Remedies in Privacy Tort Law

Issues Volume 50, Issue 2

By Alexander H. Tran

The Internet of Things (IoT) is an intriguing digital phenomenon in technology that creates many legal challenges as the world becomes more interconnected through the Internet. By creating a connected system, the IoT links a network of physical objects, like consumer devices, and enables these devices to communicate and exchange data. In the very near future, almost every consumer device, from cars to a coffee mug, may connect through the Internet. The IoT has incredible potential to better society by providing immense amounts of rich sensory data for analytics and other uses. Nevertheless, there are also many latent dangers that could manifest as the IoT proliferates, including privacy violations and security risks.

The legal scholarship surrounding privacy issues with respect to the IoT is currently underdeveloped. This Note adds to the discussion of privacy law by analyzing the legal repercussions of the IoT and its relationship to privacy tort law. It summarizes the foundations of privacy law and current regulations that apply to the IoT and concludes that current laws and regulations provide limited remedies for consumers harmed by the IoT. It then provides a potential solution by suggesting that two privacy torts, the public disclosure of private facts tort and the intrusion upon seclusion tort, can provide partial civil remedies for those consumers. Each of the two privacy torts has evolved in different ways since its creation, and this Note explores the advantages and disadvantages of both. Finally, this Note advocates for the expanded use and revitalization of these privacy torts through judicial application in IoT cases as a potential strategy for regulating the IoT.

Download Article

An Uncertain Privilege: Reexamining the Scope and Protections of the Speech or Debate Clause

Issues Volume 50, Issue 2

By Philip Mayer

The Speech or Debate Clause of the United States Constitution was put in place to protect and preserve the independence of the legislative branch. The United States Supreme Court has consistently read the Clause broadly to effectuate this purpose, and it has applied the Clause’s protections absolutely to ensure that legislators are not questioned by a hostile executive or judiciary in regard to their legislative activities. In recent years, a circuit split has developed regarding whether the Clause provides for a documentary non-disclosure privilege, which would shield legislators from subpoenas or search warrants issued by the executive branch and enforced by the judiciary. The Ninth and Third Circuits have rejected such a documentary non-disclosure privilege, while the D.C. Circuit has consistently reaffirmed its commitment to a broad documentary non-disclosure privilege. Adding further uncertainty to the Clause’s protections, the Ninth Circuit has also denied the Clause’s protections to legislators involved in negotiations about future legislation. In order to provide clarity to the Clause’s privileges, the Supreme Court should adopt a limited documentary non-disclosure privilege and should apply the Clause’s protections to non-criminal negotiations in anticipation of future legislation.

Download Article

The Privacy Case for Body Cameras: The Need for a Privacy-Centric Approach to Body Camera Policymaking

Issues Volume 50, Issue 2

By Ethan Thomas

Body-mounted cameras are being used by law enforcement with increasing frequency throughout the United States, with calls from government leaders and advocacy groups to further increase their integration with routine police practices. As the technology becomes more common in availability and use, however, concerns grow as to how more-frequent and more-personal video recording affects privacy interests, as well as how policies can both protect privacy and fulfill the promise of increased official oversight.

This Note advocates for a privacy-centric approach to body camera policymaking, positing that such a framework will best serve the public’s multifaceted privacy interests without compromising the ability of body cameras to monitor law-enforcement misconduct. Part I surveys the existing technology and commonplace views of privacy and accountability. Part II examines the unique privacy risks imposed by the technology as well as the countervailing potential for privacy enhancement, demonstrating the value of an approach oriented around privacy interests. Part III assesses how the failure to adopt this approach has resulted in storage policies for body camera footage that inhibit the technology’s ability to best serve the public and suggests that a privacy-centric perspective can lead to better policymaking. Finally, Part IV examines the flaws of prevailing views with respect to policies for accessing footage and discusses how a revised privacycentric perspective could lead to better policies.

Download Article

Enhanced Disclosure as a Response to Increasing Out-of-State Spending in State and Local Elections

Issues Volume 50, Issue 1

By Tyler Roberts

Over the past several years, states and localities have experienced increasing amounts of election spending flowing in from out of state. A number of states passed statutes limiting the amount candidates may accept from out-of-state donors, but most of these statutes have been struck down by lower courts. The Supreme Court’s steady emphasis on the value of political speech — regardless of the source — makes it doubtful that the Court will overturn these decisions and permit states to limit contributions from out of state. This Note suggests that states enact disclosure requirements that require aggregate disclosure from out-of-state groups at the time of advertising. These disclosure requirements are likely constitutional and are also effective at informing voters about the sources of political speech.

Download Article

Does Brady Have Byte? Adapting Constitutional Disclosure for the Digital Age

Issues Volume 50, Issue 1

By Hilary Oran

Under Brady v. Maryland and its progeny, prosecutors have a constitutional obligation to disclose any material evidence that may be favorable to the defendant. Despite a prosecutor’s best efforts to comply, there are inherent difficulties associated with identifying such documents. For instance, discerning what is “material” requires anticipating, before trial, how all the evidence will come together during trial. Further, finding this evidence may resemble the proverbial search for a “needle in a haystack” when the amount of evidence becomes copious. This search becomes even more daunting in an age of voluminous electronic discovery that spans from digital files to social media to e-mails, potentially amounting to over a million pages of documents.

This category of discovery was foreign to the judicial system at the time of Brady’s 1963 decision. However, despite the transformation of discovery since then, prosecutors’ constitutional disclosure obligations remain unchanged. Accordingly, there is currently no uniform approach to assess potential Brady violations premised on high volume electronic discovery. This Note will explore the current practices for adapting Brady for the digital age. Ultimately, this Note advocates for a new standard that requires prosecutors to adhere to recognized, minimum requirements when divulging a case file, but provides for circumstances in which a defendant’s limited resources require the prosecution to surpass this benchmark in order to fulfill its constitutional obligation.

Download Article

Inadequate Access: Reforming Reproductive Health Care Policies for Women Incarcerated in New York State Correctional Facilities

Issues Volume 50, Issue 1

By Kate Walsh

In February 2015, the Correctional Association of New York released a report studying the quality of and access to reproductive health care for incarcerated women and found that “[o]verall . . . reproductive health care for women in New York State prisons is woefully substandard, with women routinely facing poor-quality care and assaults on their basic human dignity and reproductive rights.” The findings of this and other studies provide concrete evidence of the poor quality of reproductive health care available to incarcerated women and signal to legislatures that these policies should be changed.

Incarcerated women face three issues of particular concern relating to reproductive health care: access to gynecological examinations, sanitary supplies, and contraception. The purpose of this Note is to examine New York State policies addressing reproductive health care for incarcerated women, identify problems with them, and make recommendations for reform. This Note will examine current policies and practices of New York State correctional facilities that address gynecological examinations, sanitary supplies, and contraception, and assess why these policies are problematic from both legal and medical perspectives. Furthermore, it will recommend bringing New York’s policies in line with legal, medical, and international standards as a strategy for reform. Finally, it will advocate for using existing federal and state programs including Title X to provide funding for reproductive care both prior to and after release.

Download Article

Charter School Jurisprudence and the Democratic Ideal

Issues Volume 50, Issue 1

By Tara Raam

This Note will explore the implications of recent charter school legislation on democratic principles in the context of public education. In 2015, the Washington Supreme Court held, in League of Women Voters of Washington v. State, that charter schools are not “common schools.” Thus, the court proscribed the application of state funds designated for “common schools” towards supporting charter schools. Part II provides background on the development of charter schools and describes the Washington Supreme Court’s decision in League of Women Voters, particularly the Court’s reliance on its 1909 interpretation of the Washington constitution’s “common schools” principle in School District No. 20 v. Bryan, as well as the legislative response to League of Women Voters and subsequent lawsuit. Part III argues that evolving views of school governance necessitate a reading of the Bryan requirements that is more sensitive to the democratic ideals of participation, deliberation, and accountability underlying Bryan. Recognizing the League of Women Voters interpretation of Bryan as the only appropriate means of voter control of public schools would have harmful and far-reaching effects not contemplated by the Bryan court on public schools across the United States. Part IV challenges whether a system of state-authorized charter schools can achieve the democratic ideal, and ultimately offers a portfolio of school options as one possible democratic solution.

Download Article

College Student Homelessness: A Hidden Epidemic

Issues Volume 51, Issue 4

By Chad Klitzman

This Note examines a surprising obstacle for an increasing number of college students: homelessness. After first offering an overview of legislation in the education field dealing specifically with the education of those experiencing homelessness, this Note then offers insights into how and why people experiencing homelessness tackle both the world of higher education and their respective institutions’ capacities to service their needs both in and out of the classroom. This exploration occurs largely through interview testimony conducted by the author. Many institutions lack the resources needed to service all of a students’ needs (food, clothing, etc.). After exploring the malleability of the higher education and social services systems, this Note argues that certain policy changes — legislation, community work, and change at the institutional level — would be beneficial in combatting this growing homelessness epidemic.

Download Article

Cultural Property: The Hero of Dance’s Drama

Issues Volume 51, Issue 4

By Vanessa Gonzalez

The importance, if any, of art in society has long been debated. Aristotle believed music presented individuals with three benefits: pleasure and amusement, moral training and cultivation of the mind.1 One could argue that many believe art generally provides at least one of these benefits to the public. As a matter of law, there are various statutory regimes intended to safeguard and promote artistic expression. Yet these laws overlook the vulnerability of certain types of art, including dance. This Note explains how a gap in the law has formed so that there is a risk that important dance choreography will be lost to our future generations without appropriate legal action. Part II illustrates the important economic and preservation functions of arts organizations, along with the existential obstacles they face due to their nonprofit status. Part III discusses the two main legal paradigms, nonprofit organizational law and copyright law, that touch on dance preservation and how they fail to adequately preserve dance choreography. Finally, Part IV proposes a new avenue for legislation to address dance preservation according to its intangible attributes.

Download Article

Clashing Standards in the Courtroom: Judicial Notice of Scientific Facts

Issues Volume 51, Issue 4

By Gregory Segal

The doctrine of judicial notice, contained in Rule 201 of the Federal Rules of Evidence, serves as a powerful tool for judges to bring in adjudicative facts without introducing any witnesses. Given the broad language of Rule 201(b), federal courts have used this doctrine for a wide and expanding range of materials. When a fact is judicially noticed, its impact is tremendous: in civil cases, under Rule 201(f), a jury must treat any fact that has been judicially noticed as conclusive. Judicial notice can be applied to scientific facts, but little attention has been paid to how judicial notice operates vis-à-vis the high bar set for the admission of expert scientific testimony under Daubert.

This Note explores this possibility. It begins by explaining the mechanics of judicial notice and the Daubert standard, and looks at how judicial notice has been applied to certain scientific facts. The Note identifies potential problems with current approaches: misapplication of Rule 201 with scientific facts and the possibility of evidence getting in via the judicial notice standard but not under Daubert. This Note argues that transparency is the key to avoiding these problems, such as judges providing more detailed explanations when taking judicial notice, applying Daubert in their judicial notice analysis, and more clearly citing precedent in taking judicial notice.

Download Article

The Patriarch and the Sovereign: The Malheur Occupations and the Hyper-Masculine Drive for Control

Issues Volume 51, Issue 3

by Courtney Irons

On January 2, 2016, a group of armed protestors seized control of the Malheur National Wildlife Refuge. The occupation followed a long tradition of resistance in western states of federal land management policy, but the members took a stricter approach to federalism than most. The group fully rejected federal sovereignty over the land, and in doing so demonstrated a particularly gendered approach to power and government.

The purpose of this Note is to explore how the occupier’s understanding of federalism relates to theories on masculinity. Drawing on statements made during the course of the occupation, news reports, and testimony during the subsequent legal proceedings, this Note will argue the occupiers’ patriarchal beliefs about masculinity influenced and informed their understanding of federalism with the belief that doing so may help us understand the growing nationalist and extremist views in conservative movements today.

Download Article

Embracing Federalism in Special Prosecution Models: An Analysis of Experimentation in the States

Issues Volume 52, Issue 3

By Sabrina Singer

The main project of this Note is to use the example of police officer-involved deaths of unarmed civilians to craft and apply different special prosecution models. In Part II, this Note starts from the proposition that a special prosecutor should supersede the local prosecutor to investigate and prosecute certain cases, such as the police-involved death of unarmed civilians. This Note then identifies and addresses the criticisms made by opponents of special prosecution models.

In Part III, this Note presents and analyzes the existing special prosecution models implemented in states to address cases of police officer-involved deaths of unarmed civilians. Part IV uses the example of New York as an in-depth case study. Then, Part V distills down these complete state models to “dimensions” – areas where the models differ – to provide an analytical structure for readers to use in their own evaluation and design of special prosecution models. The dimensions also provide a structure for Part VI, which proposes and evaluates special prosecution models that seek to address incidents of police officer involved deaths of unarmed civilians. The broader utility of the dimensions will be as a framework for any future special prosecution model that seeks to address any future latent law enforcement gaps.

Download Article

This House is Not Your Home: Litigating Landlord Rejections of Housing Choice Vouchers Under the Fair Housing Act

Issues Volume 51, Issue 3

By Maia Hutt

Over 2.2 million low-income households participate in the federal Housing Choice Voucher (HCV) program. Voucher holders, who are disproportionately people of color and individuals with disabilities, are frequently discriminated against or denied housing by landlords. This Note argues that prospective tenants who are rejected by landlords for participating in the HCV program have a right of action against landlords under the Fair Housing Act’s disparate impact provisions. The Supreme Court’s recent decision in Inclusive Communities provides the necessary framework for evaluating these claims, and suggests that federal courts’ historical rejection of disparate impact claims brought by voucher holders is no longer good law. Integrating state and local source of income protection laws into the Inclusive Communities burden-shifting resolves the tension between state and federal approaches to source of income protection, and vitiates the rights of voucher holders.

Download Article

Catalyzing the Separation of Black Families: A Critique of Foster Care Placements Without Prior Judicial Review

Issues Volume 51, Issue 3

By Kathleen Simon

Although decades of efforts have realized significant progress toward the goal of eliminating racial discrimination in the child welfare system, black children continue to enter foster care at rates that exceed their level of need. This Note explores how the standard practice of removing a child without prior judicial authorization has quietly contributed to this civil rights crisis by enabling racial bias to go unchecked in the placement decision-making process.

In an attempt to understand how state legislatures can ensure that risk, rather than race, informs foster care placements, this Note introduces an original analysis comparing the racial disparity rates in foster care entries among states. Based on the study’s finding that greater racial disparities exist in jurisdictions with flexible emergency removal laws, this Note recommends that states excuse pre-deprivation hearings only when taking the time to seek an ex parte court order would jeopardize a child’s safety.

Download Article

Download Appendix

Toward Standardized Enforcement of Cross-Border Insolvency Decisions: Encouraging the United States to Adopt UNCITRAL’s Recent Amendment to its Model Law on Cross-Border Insolvency

Issues Volume 51, Issue 2

By Lia Metreveli

The broad and specific objectives of international insolvency have led to the emergence of several theories, such as territorialism and various forms of universalism, on how to best achieve these goals. In 1997, the United Nations Commission on International Trade Law (UNCITRAL) proposed a Model Law, based largely on modified universalism, to promote judicial cooperation in — and decrease the costs of — cross-border insolvency cases. The European Union, Australia, and the United States have all adopted the Model Law, either in part or in full. But the enforcement of cross-border insolvency judgments in these jurisdictions continues to be erratic, as judges implement the decisions of foreign courts inconsistently. Consequently, in 2015, the Commission proposed an amendment to the Model Law — the Recognition and Enforcement of Insolvency-Related Judgments — which would enforce insolvency-related orders subject to seven narrowly enumerated exceptions, such as due process and fraud. Rather than rely on judicial gap filling, Congress should adopt the proposed amendment, which will provide clarity and predictability to cross-border insolvencies, reduce costs, and maximize value to creditors.

Download Article

“Doping on a Hanger”: Regulatory Lessons from the FINA Elimination of the Polyurethane Swimsuit Applied to the International Anti-Doping Paradigm

Issues Volume 51, Issue 2

By Rachel MacDonald

In 2008, swimwear manufacturer Speedo released the world‟s first polyurethane competition body suit, the LZR Racer. Compared to “doping on a hanger,” the suit was an unprecedented leap in swimsuit technology, and more than 130 world records were broken in only the first seventeen months after the LZR became available to competitive swimmers. Upon realizing the polyurethane swimsuits stood to radically change swimming, the Fédération Internationale de Natation (FINA) implemented regulation that swiftly and successfully eradicated the problem.

In contrast, the World Anti-Doping Agency (WADA) has yet to effectively control athletic doping. Focus on the international anti-doping regime intensified in 2014 upon the exposure of widespread, permissive doping among internationally competitive Russian athletes. Further, WADA statistics reveal doping remains a serious and growing problem.

Despite the different scopes and missions of FINA and WADA, there are several regulatory lessons that can be extracted from FINA‟s successful polyurethane swimsuit ban and applied to WADA’s struggle to eliminate doping in sports. The goal of this Note is to compare the international doping problem and the polyurethane swimsuit ban and then to ascertain how the successful FINA regulatory paradigm might be applied to the international anti-doping regime. Ultimately, FINA’s example suggests that WADA might benefit from making changes including: creating more specific regulations that can be articulated and then applied in a predictable and consistent manner, implementing a hierarchical bureaucratic scheme, effecting multi-tier monitoring and enforcement measures, enabling the establishment of independent oversight bodies, and a variety of other measures.

Download Article

Retaking Mecca: Healing Harlem through Restorative Just Compensation

Issues Volume 51, Issue 2

By Meron Werkneh

Neighborhood redevelopment often brings about major cultural shifts. The Fifth Amendment‟s Takings Clause allows for the taking of private property only when it is for public use, and requires just compensation. Courts have expanded the “public use” requirement to allow “urban renewal projects” where the economic development of the area stands as the public purpose. The consequent influx of private developers in the name of economic revitalization has led to the displacement of many communities — particularly those made up of low-income people of color.

This displacement has been extremely visible in Harlem. Harlem was once considered the Mecca of black art and culture, but the last few decades have brought changes that may cost it this title. Rampant land condemnations and redevelopment efforts incited a noticeable socioeconomic shift in the historic neighborhood. Residents and small business owners pushed against these eminent domain actions, but to no avail — Harlem‟s gentrification continued. Rising rents and institutional barriers compelled the slow exodus of longtime African American residents and business owners unable to afford the increasing costs.

This Note explores the expansion of “public use” after Kelo v. City of New London, noting how it encouraged gentrification, particularly in Harlem. It argues that the current compensation scheme does not meet the constitutional standard of being “just” because it does not account for the loss of the community as a unit, or the dignitary harm suffered due to forcible displacement in the name of “revitalization.” Finally, it proposes Community Benefits Agreements as the vehicles through which gentrifying communities can receive restorative compensation, offering recommendations for creating a CBA that could begin to heal Harlem.

Download Article

Why Ross v. Blake Opens a Door to Federal Courts for Incarcerated Adolescents

Issues Volume 51, Issue 2

By Nika Cohen

The Prison Litigation Reform Act (PLRA), particularly through its exhaustion provision, imposes significant obstacles on whether an incarcerated person may raise claims about conditions of confinement in court. The PLRA, as interpreted, demands proper compliance with a correctional facility’s grievance procedures, no matter how complex those procedures are. Though many struggle to comply, certain groups of the incarcerated population have been unduly prevented from litigating abuses. One such group is incarcerated adolescents, who — despite recent recognition that they should be differentiated from adults in the criminal justice system — remain subject to the same difficult exhaustion standard as incarcerated adults.

This Note argues that the Supreme Court’s most recent interpretation of the PLRA’s exhaustion provision demands a different analysis of attempts by nonordinary incarcerated groups to exhaust. In Ross v. Blake, issued in 2016, the Court clarified that grievance procedures must be “capable of use” or “accessible” for a person to be required to exhaust them; otherwise, there is no available remedy and the claim should not be dismissed for failure to exhaust. This Note uses adolescents incarcerated in adult facilities as an example of a nonordinary group to explain why they lack an available remedy under Ross. In light of recent research establishing that adolescents have significant cognitive and developmental differences from adults and are at a higher risk of victimization, courts should account for their increased difficulty in understanding and complying with adult facilities’ grievances procedures. Without an “accessible” means of obtaining relief, adolescents incarcerated in adult facilities should not be barred from the courts for their failure to exhaust.

Download Article

Dynamically Interpreting Property in International Regulatory Takings Regimes

Issues Volume 51, Issue 1

By Hao Zhu

The North American Free Trade Agreement (NAFTA)’s Article 1110 — which created an expropriations remedy for foreign investors — has expanded into an international regulatory takings regime over the last two decades. Newer international trade agreements, such as the Trans Pacific Partnership Agreement (TPPA), have continued to include expropriations provisions by default, further expanding the reach of these takings regimes.

This Note focuses on the NAFTA in order to explore the tension within international regulatory takings regimes, between investor property interests and sovereign interests to regulate for the public welfare. First, this Note traces the contours of international regulatory takings doctrines, organizing them in a Penn Central framework. Against other commentators, this Note argues that though the case law has not been a model of clarity, the law has settled into a framework analogous to Penn Central. Second, this Note elaborates on and rejects the critique that international regulatory takings regimes erode states’ sovereignty to regulate for the public welfare, while acknowledging that the structural problem of private law tribunals deciding the public law values of property needs to be addressed.

To address this structural problem, this Note proposes that the NAFTA’s authoritative bodies interpret property dynamically, in light of the public welfare concerns raised by global climate change. Specifically, this Note proposes that the NAFTA’s Free Trade Commission issue authoritative Notes of Interpretation to dynamically interpret Article 1110 to shift the balance toward sovereign regulatory power to address global climate change. Lastly, this Note applies that interpretation of Article 1110 to the facts of the dispute between TransCanada Corp. and the United States over the Keystone XL oil pipeline, ultimately concluding that no regulatory takings occurred.

Download Article

Access Denied: Data Breach Litigation, Article III Standing, and a Proposed Statutory Solution

Issues Volume 51, Issue 1

By Patrick Lorio

As businesses and individuals increasingly rely on electronic technology to facilitate transactions, hackers have taken advantage of the weaknesses of data security systems intended to protect sensitive information. As a result, hackers have gained access to individuals’ personal and financial information. American law, however, has been slow to catch up to the threat posed by data security breaches. Although breaches have become commonplace in the past decade, victims of data breaches are often denied their day in court. Instead, many federal courts find that plaintiffs who sue companies for failing to adequately protect their private information lack Article III standing, the constitutional doctrine that requires plaintiffs to show an “injury-in-fact” in order to sue in federal court. While some jurisdictions hold that hackers having access to individuals’ information is sufficient to confer Article III standing, other jurisdictions dismiss plaintiffs’ cases unless the plaintiffs can demonstrate unreimbursed financial loss directly attributable to the data breach, a very high bar to reach.

The purpose of this Note is threefold. First, I analyze the existing split within the U.S. Courts of Appeals with regard to the correct theory of Article III standing to apply in data breach cases. The circuit split primarily involves disputes over the correct interpretation of Clapper v. Amnesty International, a 2013 U.S. Supreme Court case dealing with the “imminency” requirement of Article III standing’s injury-in-fact component. Second, I predict what the recent holding in Spokeo v. Robbins (2016) portends for data breach victims. Spokeo heightened the scrutiny that federal courts must place on the “concreteness” of injury in addition to the inquiry into “imminency.” Finally, I propose that the strict Article III standing requirements articulated by the Supreme Court in both Clapper and Spokeo necessitate action by Congress. I argue that Congress should pass a comprehensive data breach statute that would confer standing upon victims of data breach. I conclude by showing how a recent Third Circuit decision demonstrates the viability of a statutory solution to the problem encountered by data breach victims.

Download Article

Time of Desperation: An Examination of Criminal Defendants’ Experiences of Allocuting at Sentencing

Issues Volume 51, Issue 1

By Joshua Burger-Caplan

For criminal defendants, allocution is the last time they may address the court before sentencing is pronounced. For many defendants, whether because they pled guilty or did not testify at trial, it is their only such opportunity. According to a recent survey of federal judges, allocution at sentencing can, for better or worse, significantly affect sentencing decisions. Other researchers have suggested that, beyond such effects, allocution is also important in creating opportunities for defendant expression that go beyond the presentation of mitigating information.

Despite the impact of sentencing, little research has been done into defendants’ perspectives on their own allocutions. This Note draws on interviews to explore the ways in which defendants prepare for and experience their allocutions, and situates their rationales for allocution within the existing literature. Part II provides background information on how allocution has been treated in the courts. Part III discusses the Note’s interview methodology. Parts IV and V respectively examine the humanization and mitigation rationales for allocution from the perspective of defendants, and conclude that it is the mitigation rationale that more accurately reflects the accounts given by defendants.

Download Article

Beyond Categorical Exclusions: Access to Transgender Healthcare in State Medicaid Programs

Issues Volume 51, Issue 1

By Samuel Rosh

This Note addresses a major barrier to care that transgender individuals face: “categorical exclusions” barring payment for healthcare related to gender transition in state Medicaid programs, along with policies prohibiting payment for such care when deemed “cosmetic.” It first argues that because the dysphoria and discrimination that transgender individuals experience affect their quality of life and mental well-being, and derive from a discord between their appearance and gender identity, those considerations should be taken into account in the legal determination of medical necessity. As medical studies and the views of major medical associations demonstrate, healthcare for gender transition has been found medically necessary for some individuals to mitigate their gender dysphoria.

This Note then describes the arguments for and against the invalidity of categorical exclusions and other policies that deny transgender individuals access to medically necessary care, focusing on Section 1557 of the Affordable Care Act as well as more general provisions of federal Medicaid law. It then examines these issues in the context of litigation regarding New York’s limitations on transgender healthcare, which ultimately culminated in a medical necessity standard. Finally, it considers the arguments that Medicaid coverage for gender transition would be too costly, and that requiring states to cover such care would undermine principles of federalism.

Download Article

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.

Download Article

“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.

Download Article

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.

Download Article

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.

Download Article

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.

Download Article

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.

Download Article

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.

Download Article

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.

Download Article

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.

Download Article

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.

Download Article

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.

Download Article

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.

Download Article

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.”

Download Article

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.

Download Article

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.

Download Article

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.

Download Article

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.

Download Article

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.

Download Article