Volume 51, Issue 1

4 posts

Dynamically Interpreting Property in International Regulatory Takings Regimes

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.

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

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.

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

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.

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

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.

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