Open Access journal ISSN (Print) 2165-5235 - ISSN (Online) 2167-9088 This journal is no longer being updated because: the publisher no longer provides RSS feeds
Authors:Nicholas Pisegna Abstract: Anaheim police officer Daron Wyatt shot and killed Adolph Gonzalez following a traffic stop and physical confrontation among Gonzalez and officers Wyatt, and Matthew Ellis. Gonzalez’s successors brought a 42 U.S.C. § 1983 claim alleging, among other claims, a violation of Gonzalez’s Fourth Amendment right to be free from the use of unreasonable and excessive force. In Gonzalez v. City of Anaheim, the Ninth Circuit held that inconsistencies in the officers’ testimony regarding the physical confrontation raised a genuine dispute of material fact concerning the immediacy of the threat that Gonzalez posed to the officers and others. As a result, the court held that summary judgment was not proper. This Comment argues that the majority appropriately applied a strict summary judgment standard that more broadly considers what constitutes a dispute of material fact because the defendants were the cause of the defendant’s death and the only surviving eyewitnesses. By allowing such cases to reach the jury, this summary judgment standard protects the constitutional rights of the deceased and prevents courts from improperly relying on one-sided, potentially self-serving testimony by state actors. PubDate: Wed, 01 Nov 2017 16:12:24 PDT
Authors:Emily Koruda Abstract: In Peralta v. Dillard, the U.S. Court of Appeals for the Ninth Circuit, sitting en banc, denied a prisoner suffering from severe tooth decay and dental disease legal recourse from a state prison that had not provided him adequate medical treatment. In its six-to-five ruling, the Ninth Circuit ignored more than thirty years of precedent when it allowed courts to consider budgetary constraints and resource allocation available to prison officials in actions brought by inmates pursuant to 42 U.S.C. § 1983. In doing so, the court eliminated the option for inmates to seek solely monetary damages for Eighth Amendment violations. As a result of this decision, prisoners who have suffered injuries due to a prison official’s deliberate indifference are left with neither remedy nor recourse. Additionally, the court’s ruling renders ineffective important incentives that had encouraged states to improve prison conditions. States can now hide behind their budgets and neglect to improve poor conditions by citing lack of resources as a defense. This Comment explores the majority’s holding that lack of resources may in some circumstances justify cruel and unusual prison conditions contrary to the Eighth Amendment and Ninth Circuit precedent, and argues that the dissenting opinions more accurately reflect precedent in advocating for the constitutionally required medical treatment of U.S. prisoners. PubDate: Wed, 01 Nov 2017 16:12:20 PDT
Authors:Daniel Fishman Abstract: In 2012, a debt collector, Med-1 Solutions, won a judgment against Mark Suesz in Pike Township Small Claims Court for unpaid debt that arose in Lawrence Township, Indiana. Suesz, a resident of Hancock County, sued Med-1 for a violation of the Fair Debt Collection Practices Act, which requires small claims suits to be brought in the same “judicial district or similar legal entity” where the debtor lives or where the debt originated. In Suesz v. Med-1 Solutions, L.L.C., the U.S. Court of Appeals for the Seventh Circuit, sitting en banc, ruled in favor of Suesz and held that Pike Township Small Claims Court was a separate “judicial district or similar legal entity” from Lawrence Township, making Med-1’s original suit illegal. This Comment argues in favor of the en banc majority’s interpretation because it (1) incorporated the flexibility that Congress inserted within the statute, (2) allowed states to customize their judicial system to meet their residents’ needs, and (3) most importantly, prevented debt collectors from using the localized courts as a weapon against debtors. PubDate: Wed, 01 Nov 2017 16:12:17 PDT
Authors:Patrick Driscoll Abstract: On June 5, 2013, the U.S. Court of Appeals for the Third Circuit, sitting en banc, concluded that the Morrow family failed to state a claim against their school district for failing to protect their daughters from harm sustained by a school bully. By dismissing the Morrows’ suit, the Third Circuit failed to hold schools accountable for violence against students under their watch. Worse still, the majority’s holding incentivized inaction by school administrators even though they are uniquely positioned to protect bullied students. Judge Julio M. Fuentes, in his dissent, found that Blackhawk High School had coercive control of their students such that a special relationship, and therefore a duty to protect, existed. The failure of the Third Circuit to adopt this reasoning left students vulnerable to school bullying while shielding schools from liability. PubDate: Wed, 01 Nov 2017 16:12:14 PDT
Authors:Erica Coray Abstract: On September 27, 2013, the U.S. Court of Appeals for the Fifth Circuit, sitting en banc, held in favor of Kerry Woods, a heterosexual male construction worker who claimed sex discrimination based on gender stereotyping by Chuck Wolfe, his heterosexual male supervisor. In EEOC v. Boh Bros. Construction Co., the majority based its analysis on Wolfe’s subjective view of Woods’ non-conformance with gender stereotyping in holding there was discrimination. The use of a subjective test ensures that victims of severe or pervasive sex discrimination have a remedy even if they visibly conform to gender stereotypes. Additionally, the majority correctly protected all employees who experience severe or pervasive sex discrimination irrespective of their environments by concluding that the inherently vulgar context of the construction site did not automatically invalidate the claim. The dissenting judges’ emphasis on using an objective standard when analyzing claims of sex discrimination based on gender stereotyping would improperly deny victims of severe or pervasive harassment a remedy simply because they appear to comply with the judges’ opinions of gender norms. PubDate: Wed, 01 Nov 2017 16:12:10 PDT
Authors:Kevin Bergin Abstract: In Patel v. City of Los Angeles, the U.S. Court of Appeals for the Ninth Circuit struck down Los Angeles Municipal Code section 41.49, which authorized warrantless, on-site search and seizure of hotel and motel guest registries. In doing so, the majority recognized that in the absence of a warrant, an administrative record inspection scheme must provide the opportunity for pre-compliance judicial review of the search’s reasonableness. By recognizing section 41.49’s lack of pre-compliance review, the majority took a step to curb police officers’ arbitrary, unmonitored application of the statute. In turn, this will provide a disincentive for targeting guests without probable cause, as officers no longer have direct, uncontested access to hotel registries. In granting certiorari and hearing the case, the Supreme Court should recognize the extent to which this revision serves to prevent arbitrary police searches. PubDate: Wed, 01 Nov 2017 16:12:07 PDT
Authors:Mary Kate Sexton Abstract: In July 2016, the United States Court of Appeals for the Fifth Circuit reheard en banc its own three-judge panel decision ruling that Texas Senate Bill 14 (SB 14), a law requiring individuals to present a form of photo identification in order to vote, was unconstitutional in violation of the First and Fifteenth Amendments to the U.S. Constitution and Section 2 of the Voting Rights Act. The en banc Fifth Circuit reversed the District Court for the Southern District of Texas’s decision that SB 14 violated Section 2 of the Voting Rights Act. The en banc Fifth Circuit affirmed, however, the district court’s ruling that SB 14 violated the Voting Rights Act because of its discriminatory effect, and remanded that issue to the district court to determine an appropriate remedy prior to the 2016 general election. The dissenting opinion argued that the majority relied on improper evidence to support its determination that SB 14 had a discriminatory effect on certain Texas voters. This comment argues that the en banc Fifth Circuit properly determined that SB 14 could have been enacted with a discriminatory purpose, and in fact did have discriminatory effects that unconstitutionally interfered with low-income minorities’ participation in the political process. PubDate: Wed, 28 Jun 2017 09:03:36 PDT
Authors:Alexander Pringle Abstract: On July 22, 2016, the Supreme Court of Virginia found Virginia Governor Terence McAuliffe’s actions restoring full political rights to 206,000 Virginians convicted of a felony unconstitutional. At the same time, the court issued a writ of mandamus ordering Commonwealth officials to remove these convicted felons from the voting rolls and return their names to the list of prohibited voters. Governor McAuliffe had restored the political rights of these released felons en masse, via a single Executive Order on April 22, 2016, eschewing the typical case-by-case review process for restoration of voting rights. The majority in the case held that the Governor’s Executive Order of April 22, 2016, along with subsequent orders, had violated article I, section 7 of the Virginia Constitution by illegally suspending the execution of laws without consent of the representatives of the people. The dissenting justices, applying a different interpretation, argued that the petitioners in the case lacked standing to pursue their claim, and that even if they had such standing, Governor McAuliffe’s actions would have been proper based on the plain reading of the Virginia Constitution. This comment argues that Justice Powell’s dissent most faithfully interprets the Virginia Constitution. It contends that given the contested nature of the historical record and the plain meaning of the constitutional language, the Virginia Supreme Court erred in finding Governor McAuliffe’s actions unconstitutional. PubDate: Wed, 28 Jun 2017 09:03:29 PDT
Authors:Meghan Looney Abstract: On July 14, 2016, the U.S. Court of Appeals for the Sixth Circuit held that criminal defendants have a legitimate privacy interest in their booking photographs, thereby reversing and remanding a grant of summary judgment in favor of the Detroit Free Press’s request for the booking photographs of four police officers who had recently been indicted for bribery and drug conspiracy. In holding that the public disclosure of booking photographs may constitute an unwarranted invasion of personal privacy, the majority overturned twenty years’ worth of Sixth Circuit precedent. The court properly acknowledged that booking photographs convey a portrait of guilt to the viewer, and that the Freedom of Information Act’s exemptions are meant to protect individuals who have not yet been convicted from having humiliating personal information freely disclosed to the public. This Comment argues in favor of the majority’s holding, which acknowledged that defendants have a privacy interest in their booking photographs and adopted a case-by-case approach to balancing that privacy interest against the public interest in releasing the photographs. The Sixth Circuit’s decision protects the personal identity of the accused in the age of the Internet, and allows defendants to truly maintain their presumption of innocence until proven guilty. PubDate: Wed, 28 Jun 2017 09:03:21 PDT
Authors:Venus Chui Abstract: On June 20, 2016, in State v. Gray, the Arizona Supreme Court held that for a defendant to invoke the defense of entrapment, he or she must affirmatively admit each element of the crime. The case emerged after Maverick Gray was arrested and charged for selling cocaine to an undercover police officer, and raised the entrapment defense at trial without disputing the government’s evidence of his guilt. The court explained that simply choosing not to challenge the evidence does not rise to the level of an affirmative admission. The dissent persuasively argued that Arizona’s entrapment statute is draconian by contradicting a defendant’s right against self-incrimination, protected by the Fifth Amendment to the U.S. Constitution. This Comment agrees with the dissent’s position that Arizona’s entrapment defense should be read narrowly to uphold fairness and to protect defendants’ constitutional liberties. PubDate: Wed, 28 Jun 2017 09:03:13 PDT
Authors:Christopher Cataldo Abstract: On April 15, 2016, the Iowa Supreme Court held that employers in workers’ compensation cases could deny liability for medical expenses incurred by employees even if they did not give notice to the employee that expenses were no longer authorized. Employers can avoid liability by demonstrating that the employee knew or reasonably should have known that such expenses were no longer authorized at the time the employee incurred them. In reaching this decision, the Iowa Supreme Court reversed two lower court decisions and the workers’ compensation commissioner. Judge Daryl L. Hecht’s dissent argued against the majority’s new “employee knowledge” standard, reasoning that it is incompatible with the clear language of the worker’ compensation statute and would therefore create confusion and uncertainty in workers’ compensation cases by upsetting the balance of interests between employers and employees that the legislature set. This Comment argues in favor of the dissent’s proposed approach because the employee knowledge standard increases the already substantial advantages employers enjoy over employees in workers’ compensation cases and is fundamentally unfair towards Iowa workers, the principal population the statute was designed to protect and benefit. PubDate: Wed, 28 Jun 2017 09:03:05 PDT
Authors:Maria Benvenuto Abstract: On July 5, 2016, in State v. Dennis K., the Court of Appeals of New York upheld the civil commitment of two individuals in accordance with article 10 of the Mental Hygiene Law. The majority relied on the testimony of expert witnesses and the individuals’ past criminal records to classify them as possessing a “mental abnormality” that predisposes them to commit sexual offenses, a necessary element of a civil commitment finding. The court ultimately found the evidence presented sufficient to make this classification and indefinitely restrict the freedom of such individuals. In contrast, the dissent emphasized the lack of certainty in such classifications, specifically in the link between the mental diagnoses of the individuals and their predisposition to commit sexual offenses. In civilly committing individuals who may not be predisposed to commit sex offenses, the dissent accurately argues that the state statute is not serving a legitimate purpose, and is therefore unjustly infringing on the substantive due process rights of those who commit sexual offenses, an already politically unpopular group. PubDate: Wed, 28 Jun 2017 09:02:57 PDT
Authors:Michael A. Stegman Abstract: There is no one explanation for why access to mortgage credit remains so tight this far into the housing recovery, nor is there a consensus on why our national homeownership rate has fallen to a fifty-year low, but one thing is clear: the homeownership and rental markets are two sides of the same coin. As such, policymakers must understand that pressures and problems in one have implications for the other. As we disentangle and address the interwoven causes of our credit access and homeownership challenges, we do have a set of affordable rental policies and programs, proven effective and informed by ongoing research and best-practice executions. Free from legacy obligations, and with fresh eyes, new ideas, and a modest investment, the new administration has a tremendous opportunity to meet our most urgent affordable rental needs right out of the block. What should constitute that package of policies and programs is the focus of this article. PubDate: Sat, 27 May 2017 10:40:50 PDT
Authors:Patricia A. McCoy et al. Abstract: Virtually no attention has been paid to the problem of cyclicality in debates over access to mortgage credit, despite its importance as a driver of tight credit. Housing markets are prone to booms accompanied by bubbles in mortgage credit in which lenders cut underwriting standards, leading to elevated loan defaults. During downturns, these cycles artificially impede access to mortgage credit for underserved communities. During upswings, these cycles make homeownership unnecessarily precarious for many who attain it. This volatility exacerbates wealth and income disparities by ethnicity and race. The boom-bust cycle must be addressed in order to assure healthy and sustainable access to credit for creditworthy borrowers. Although the inherent cyclicality of the housing finance market cannot be fully eliminated, it can be mitigated to some extent. Mitigation is possible because housing market cycles are financed by and fueled by debt. Policymakers have already begun to develop a suite of countercyclical tools to help iron out the peaks and troughs of the residential mortgage market. In this article, we discuss why access to credit is intrinsically linked to cyclicality and canvass possible techniques to modulate the extremes in those cycles. PubDate: Sat, 27 May 2017 10:40:46 PDT
Authors:Clark L. Ziegler et al. Abstract: A 1989 report by the Federal Reserve Bank of Boston identified major racial disparities in mortgage lending in the City of Boston that could not be explained by income, credit scores, or other objective underwriting factors. In response, city and state officials, community organizations, and major banking institutions joined together in 1990 to design and launch what is now the Massachusetts ONE Mortgage program. The program is built around a low down payment mortgage loan with discounted interest rates, a state funded loan loss reserve that eliminates the need for mortgage insurance, retention of servicing and credit risk by the originating lenders for the life of the loans, a rigorous homebuyer education requirement for all participating borrowers, and a network of post-purchase support including immediate intervention on delinquent loans. After twenty-five years of operation, $3.4 billion in mortgage originations and nearly 20,000 home purchases by low- and moderate-income homebuyers, the program has been a resounding success. About half of all loans have been to households of color, and about two-thirds of the home purchases have been in urban neighborhoods that are historically underserved by conventional credit. Delinquency rates have been comparable to prime loans, and foreclosure rates have been substantially lower than prime loans. PubDate: Sat, 27 May 2017 10:40:41 PDT
Authors:Roberto G. Quercia et al. Abstract: The Great Recession has raised concerns about the promotion of homeownership to low- and moderate-income families. The subprime credit boom of the early 2000s was replaced with an overall credit retrenchment. The reforms to the housing finance system, begun with the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act, remain incomplete given the uncertain future of the Federal National Mortgage Association (“Fannie Mae”) and the Federal Home Loan Mortgage Corporation (“Freddie Mac”). In light of this uncertainty, can or should homeownership continue to be supported, and if so, in what way' In this paper, we examine one model of targeted mortgage lending for low-income households: the Community Advantage Program (CAP). Using more than ten years of longitudinal data, we summarize the design and key outcomes of CAP before and after the financial crisis, including mortgage performance, wealth accumulation, and the drivers of these outcomes. We then present lessons learned and suggest innovative approaches for the design of similar programs in the future. PubDate: Sat, 27 May 2017 10:40:37 PDT
Authors:Lisa Davis Abstract: The standard mortgage supply chain is so costly and inefficient that large national banks have dramatically scaled back their provision of mortgages to low- and moderate-income households. Absent regulatory requirements, subsidy, improvement in the way the mortgage supply chain works, or maybe all three, low- and moderate-income households will continue to be underserved by those banks with the largest share of the mortgage market. A number of factors contribute to this problem, including expensive marketing costs and commissions, as well as the obsolete, paper-based technology for loan production. Arguably, the national banking system has never excelled at providing fairly priced mortgages to low- and moderate-income borrowers or in low- and moderate-income communities without external motivation, and furthermore, has still not dealt with a history of discrimination that underlies this lack of capacity. While community development organizations, local and regional banks, and credit unions have developed small local capacity to address these credit gaps, we need a system for scaling up and integrating the ability to serve this sector of the market. For example, we need a method for integrating the housing counseling system and the risk mitigation benefits it provides into the loan origination process and secondary market pricing.This Article envisions a new way of organizing the community development sector in order to expand sustainable credit to qualified low- and moderate-income borrowers. To reduce costs, the existing housing counseling system would be tapped to provide outreach and marketing in place of the marketing structure used by mortgage brokers and banks. In this new supply chain, housing counseling agencies would refer loan applicants to community development financial institutions (CDFIs) or credit unions, which would originate mortgages at reduced cost. To further limit costs, marketing would be shifted to a technology platform that would allow applicants to apply online and connect housing counseling agencies to CDFIs and secondary market buyers. CDFIs would be connected to one another and able to share, standardize and manufacture not only loan products but also efficient systems for delivering them both to consumers and the secondary market. The Article closes by describing two initiatives that are seeking to create a national marketplace of CDFIs, linked to the housing counseling system, to create a wholesale conduit for home loans. PubDate: Sat, 27 May 2017 10:40:32 PDT
Authors:Edward J. Kane Abstract: The mortgage market can be portrayed as a complicated machine that processes information and disinformation to help lenders and would-be homeowners to fashion an enforceable and fair set of mutual obligations. The papers in this symposium issue focus on ameliorating cyclical speed-ups and slowdowns in the lender-operated parts of this machine. My discussion focuses on two issues: (1) how transitioning to a gig economy is changing household needs for owner-occupied and rental homes across different age groups; and (2) how to use the legal system to lessen the informational disadvantage that would-be homeowners face in understanding the deals they are offered. PubDate: Sat, 27 May 2017 10:40:28 PDT
Open Access journal
