Volume 51, Issue 2

4 posts

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

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.

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

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.

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Retaking Mecca: Healing Harlem through Restorative Just Compensation

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.

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

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.

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