Volume 52, Issue 4

4 posts

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

Issues Volume 52, Issue 4

By Samuel Niiro

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

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

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

Issues Volume 52, Issue 4

By Pablo Zevallos

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

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

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

Issues Volume 52, Issue 4

By Nora Huppert

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

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

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A Congressional Edifice: Reexamining the Statutory Landscape of Mandatory Arbitration

Issues Volume 52, Issue 4

By Andrew McWhorter

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

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

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