Authors:Lilah Kleban Abstract: Pre-embryos, procured through in-vitro fertilization (IVF), become a source of dispute when couples divorce or separate before using them. Particularly, couples may fight over who has decision-making power to use or not use the frozen pre-embryos for pregnancy. State courts across jurisdictions typically apply one of three categorical approaches: disposition contracts, contemporaneous mutual consent, or a balancing interests test. Each approach fails to provide courts with structures to fully evaluate each party’s interests at the time of dispute and account for inherent sex and gender differences that impact their stakes in the dispute. This Note proposes a modified balancing test that accounts for couples’ changing interests over time and provides defined balancing factors to ensure commensurate weight for sex and gender differences between parties. PubDate: Wed, 23 Nov 2022 18:52:38 PST
Authors:Dorit R. Reiss et al. Abstract: Social movements use legal tools to create narratives. Those narratives support social agendas which certain movements leverage to mislead their followers and potential followers. In this Article, we examine one influential anti-vaccine organization, the Informed Consent Action Network (ICAN), that uses its far-reaching platform to create false narratives around legal action. Again and again, this anti-vaccine group misrepresented both the legal and the factual meanings of court decisions, settlements, and other legal actions to create a narrative to galvanize its followers and influence newcomers. ICAN filed lawsuits that make anti-vaccine arguments—even when the legal framework did not fit doing so—and misrepresented the results. Most commonly in this category, while FOIA requests can only ask for documents and cannot ask queries, ICAN framed its frequent FOIA requests and subsequent lawsuits as if they were asking the agency to answer questions, rather than provide records. The group then presented the results to support one of its narratives—that vaccines cause autism—when the results did not, in fact, support such a narrative. This Article shows how legal tools advance disinformation and misinformation, creating a misleading, alternative reality. PubDate: Wed, 23 Nov 2022 18:52:37 PST
Authors:Matt Choi Abstract: In their campaign efforts, Super PACs and political candidates often engage professional media agencies or political consulting firms to aid them in production and placement of advertisements on media outlets, planning of advertising efforts, and planning campaign strategy. But an increasing number of Super PACs have taken to hiring the same media agencies and consulting firms as the candidates they support. Through the use of a so-called “common vendor,” Super PACs and their supported candidates can coordinate advertising strategies with each other without triggering the federal limits on spending and fundraising.The Federal Election Commission (FEC) and the public must recognize the threat that the unregulated use of common vendors poses to our electoral democracy. Because the FEC has adopted regulations that make bringing complaints regarding common vendors nearly impossible, Super PACs and political candidates continue to evade accountability. The FEC should therefore reconsider adopting a rule presuming coordination whenever a Super PAC and a political candidate use a common vendor. By doing so, the FEC can require candidates and their Super PACs to truly ensure and document that no coordination takes place by performing due diligence prior to engagement and documenting their communications with the media agency. In addition, a more detailed firewall provision can serve to prophylactically stop actual coordination from taking place. Addressing the common vendor rule alone will not diminish the ever-increasing amount of funds poured into political campaigns by wealthy donors, but closing off this loophole is essential to an overall campaign regime of full disclosure from political actors. PubDate: Wed, 23 Nov 2022 18:52:37 PST
Authors:Skylar Albertson Abstract: A set of motions filed during the COVID-19 pandemic challenged federal judges to consider whether they should always view the duration of imprisonment—as contrasted with prison conditions—as the sole determinant of how much punishment a sentence carries out. Under 18 U.S.C § 3582(c)(1)(A)(i), federal judges may “reduce” already imposed terms of imprisonment upon finding that “extraordinary and compelling reasons” warrant reductions. Prior to 2019, the Bureau of Prisons (BOP) effectively controlled the scope of a catch-all subcategory of “Other Reasons” justifying sentence reductions. The BOP used this authority almost exclusively for people who were in the final stages of terminal illness. The First Step Act of 2018 (FSA) amended § 3582(c) in a manner that freed federal judges to decide for themselves what types of circumstances meet the “extraordinary and compelling reasons” standard. The FSA also authorized people in federal custody to file motions on their own behalf, instead of permitting only the Director of the BOP to do so. Roughly a year later, the COVID-19 pandemic prompted the increased use of lockdowns and other restrictions inside U.S. prisons. Among the many thousands of people who moved for sentence reductions, several hundred argued that imprisonment with these new restrictions amounted to a greater punishment than pre-pandemic imprisonment. This Article explores the lessons that the decisions adjudicating these motions offer for the design of sentencing laws—including second looks—as well as efforts to increase transparency surrounding life inside prisons. PubDate: Wed, 23 Nov 2022 18:52:36 PST
Authors:Michelle Hunt Abstract: In the 1969 landmark case Tinker v. Des Moines Independent Community School District, the Supreme Court reassured students that they do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Ever since then, the exact scope of students’ free speech rights has been unclear, but the high court has used Tinker’s substantial disruption test to clarify its scope in successive legal challenges. In 2017, B. L., a Mahanoy Area School District student, was suspended from her cheerleading team after using vulgar language off-campus that made its way back to her coaches. She challenged the decision in the courts, and when her case reached the Court of Appeals, the Third Circuit declined to use Tinker’s test in its decision, instead ruling that Tinker categorically does not apply to any off-campus speech. The Third Circuit’s argument that courts should use a bright-line rule in applying Tinker to off-campus speech is a compelling one. This Comment evaluates the substance of the Third Circuit’s decision, describes the Supreme Court’s eventual retort, and discusses why the Supreme Court’s ruling fails millions of public school students and their families. While the Supreme Court vindicated B. L., students suffer without clear guidance regarding student free speech rights. PubDate: Tue, 19 Apr 2022 10:23:00 PDT
Authors:Abbey Derechin Abstract: This Note examines the statutory landscape of mental health parity in the United States. The lens of this Note is through the mental illness of anorexia. Parity laws mandate analogous limitations between mental and physical illness. Therefore, because anorexia has many physical manifestations, it serves as a nice juxtaposition to physical illnesses. This Note will argue for broad interpretation of the Mental Health Parity and Addiction Equity Act (MHPAEA) through comparative analysis of counterpart statute, the California Mental Health Parity Act (CMHPA). It will explore how courts have interpreted the CMHPA broadly to suggest that the MHPAEA should be interpreted the same way. PubDate: Tue, 19 Apr 2022 10:23:00 PDT
Authors:Phil Rich Abstract: Few law students remember judicial accounting law from their property law course, and it’s hard to blame them. This little-discussed body of law is formulaic and rarely addressed by appellate courts. Judicial accounting law, however, should not be ignored. The law, which allocates equity to cotenants (or, more colloquially, co-owners) of residential property upon partition of that property, guides homeowners’ behavior and shifts wealth between them. This Note argues that state legislatures should reform judicial accounting law to better protect those cotenants living in their homes from partitions brought by cotenants living elsewhere.The problem with judicial accounting law lies in its rigid approach to distributing property among cotenants. Current judicial accounting law considers only six monetary factors when allocating equity to cotenants, including housing payments and the fair market value of rent (credited to cotenants who are not living in the home). As this Note explains, this inflexible process ignores the unique nature of residential property, improperly pushing occupying cotenants—those who live on the property—away from their home. To prevent harm to occupying cotenants, judicial accounting law should incorporate some additional non-monetary factors to enable judges to shift more equity to the occupying cotenant in cases where (1) that cotenant has an established connection to their home and community, and (2) the non-occupying cotenant has induced the occupying cotenant to rely on stable housing. This modest change in law promotes utility while remaining grounded in analogous areas of law, such as the marital distribution of property. PubDate: Tue, 19 Apr 2022 10:22:59 PDT
Authors:Jennifer Hickey Abstract: The United States is in the midst of a family planning crisis. Approximately half of all pregnancies nationwide are unintended. In recognition of the social importance of family planning, the Affordable Care Act (ACA) includes a “contraceptive mandate” that requires insurers to cover contraception at no cost. Yet, a decade after its enactment, the ACA’s promise of universal contraceptive access for insured women remains unfulfilled, with as many as one-third of U.S. women unable to access their preferred contraceptive without cost.While much attention has been focused on religious exemptions granted to employers, the primary barrier to no-cost contraception is the profit motivation of private insurance companies. This Article fills a crucial gap by providing an in-depth examination of the insurance practices that burden contraceptive access for the vast majority of reproductive-aged women on both public and private insurance. Private insurers are afforded substantial discretion in the products they choose to cover and the costs they set, and this causes significant disparities in the availability and affordability of various contraceptive methods. Arguments for equitable and enhanced contraceptive access are traditionally grounded in claims of constitutional rights to reproductive freedom. Unfortunately, this rhetoric of individual rights, rooted in privacy jurisprudence, focuses only on restraining the state from interfering with a woman’s reproductive decisions. This absolves the state of responsibility for family planning and allows women to shoulder the burden of unintended pregnancy as a matter of individual choice and responsibility.This Article instead applies vulnerability theory to establish state responsibility for just and fair distribution of contraception. A vulnerability approach imposes positive obligations on the state to provide contraception as a form of resilience, rather than allowing the state to abdicate responsibility to the private insurance market and individual women under a limited “consumer protection” role. This approach requires the state to monitor and regulate the discretion afforded to insurance companies in making public decisions regarding coverage of various contraceptive methods. This includes examining inequitable insurance practices and policies and assessing power imbalances between insurers, providers, and pharmaceutical companies and patients. In this manner, the United States can move beyond its narrow consumer-oriented approach to contraception and recognize that contraception is vital to fulfillment of important social obligations, not an individual choice made by empowered consumers. PubDate: Tue, 19 Apr 2022 10:22:58 PDT
Authors:Leonard S. Rubinowitz et al. Abstract: During the Montgomery Bus Boycott, the Montgomery Improvement Association combined a boycott with a successful constitutional challenge to bus segregation laws, producing more progress to desegregate the buses than either strategy could have brought about on its own. The Montgomery Improvement Association’s approach was a paradigm of the synergy between a social movement and social change litigation.This Article argues for opportunities for synergy between social movements and social change litigation in three ways: 1) extending the time frame; 2) joining the forces of two separate organizations to produce change, unlike the single organization in Montgomery; and 3) creating an innovative new program that is different from either of the earlier separate strategies. The Article takes housing desegregation in metropolitan Chicago as a case study. As a result of close, ongoing collaboration between two organizations, substantially more low-income Black families in metropolitan Chicago secured affordable housing of their choice than in the decade before the two organizations joined forces and produced “delayed synergy.” PubDate: Tue, 19 Apr 2022 10:22:57 PDT
Authors:Peter C. Douglas Abstract: The United States today has refocused its attention on its continuing struggles with civil rights and police violence—struggles that have always been present but which come to the forefront of the collective consciousness at inflection points like the current one. George Floyd—and uncounted others—die at the hands of the police, and there is, justifiably, outrage and a search for answers. Although the reasons why Black and Brown people are disproportionally subject to unconstitutional police violence are manifold, one reason lies in the Supreme Court’s 1983 decision in City of Los Angeles v. Lyons. While many scholars have criticized the Burger Court’s Lyons decision from a variety of valuable vantage points, this Note takes a different approach, considering the extent to which Lyons was the product not of a single Court, but of generations of jurists. Through an extensive historical case study, this Note hopes to provide a new perspective on why the Lyons decision was wrong and why the majority opinion failed to support its holding. With the Lyons ancestry laid bare, this Note then uses that historical understanding to advocate for greater transparency in federal jurisprudence. Specifically, this Note argues that decisions like Lyons are, in part, made possible by obfuscatory jurisprudential approaches to “saying what the law is.” Regardless of the precise nature of the federal judiciary’s systemic problems, certain jurisprudential methodologies tend to reinforce and preserve those problems. To begin addressing systemic issues in the federal judiciary, we must embrace some modest, but powerful, adjustments to how jurists “say what the law is.” PubDate: Wed, 24 Nov 2021 11:33:34 PST
Authors:Kara Kurland Abstract: Until the Supreme Court’s 2020 decision in Ramos v. Louisiana, non-unanimous jury verdicts were constitutional and utilized in two states: Louisiana and Oregon. The Ramos decision not only declared the practice of non-unanimous jury verdicts unconstitutional, but it also emphasized the essential nature of jury verdict unanimity in criminal trials throughout American history and legal jurisprudence. A year later, in Edwards v. Vannoy, the Court considered retroactive application of Ramos. Utilizing the test created in Teague v. Lane that assessed the retroactivity of new rules of criminal procedure, the Court announced that, despite the essential nature of the unanimous jury verdict requirement, it was not a “bedrock element of criminal procedure.” Therefore, like every other new rule of criminal procedure to date, this rule did not apply retroactively. After acknowledging that the Teague test had never found a new rule of criminal procedure to meet its demanding standard, Edwards then took the drastic step of eliminating the bedrock exception to Teague altogether. This Note argues that the Edwards Court was wrong in its analysis and conclusion to deny hundreds of prisoners relief based on non-unanimous jury verdicts that were obtained prior to Ramos. Though the Supreme Court has denied relief to those prisoners, this Note explains that state courts still have the ability to retroactively apply Ramos and that justice requires state courts to adjudicate non-unanimous jury verdict claims accordingly. PubDate: Wed, 24 Nov 2021 11:33:33 PST
Authors:Sunaya Padmanabhan Abstract: This Note compares the balancing tests implemented by the United States Supreme Court and the European Court of Human Rights to determine the legal status of abortion within their jurisdictions. This Note will argue that the Supreme Court’s balancing test better protects a woman’s legal path to an abortion because it A) limits states’ restrictions to specific categories and B) regulates the extent to which states can restrict a woman’s pre-viability abortion.This Note will also examine the ways in which each court’s abortion jurisprudence substantively restricts a woman’s ability to obtain an abortion, even where legal avenues to the procedure exist. It will explore how anti-abortion states utilize weaknesses in the Supreme Court’s undue burden framework to impose obstacles on a woman’s right to an abortion. In the European context, it will review how anti-abortion countries take advantage of the discretion, granted by the European Court of Human Rights, to determine the legality of abortion and criminalize abortion care outside of particular circumstances provided by law, creating a chilling effect that substantively limits a woman’s access to abortion.This Note proposes that the Supreme Court should further develop the “effect” piece of its undue burden test such that states cannot enact laws which have the effect of preventing women from terminating their pregnancies. It also recommends that the European Court of Human Rights alter its balancing framework to reduce member-state discretion in the evaluation of whether a law violates a woman’s right to privacy. PubDate: Wed, 24 Nov 2021 11:33:32 PST
Authors:Christina Payne-Tsoupros Abstract: This Article argues that school police, often called school resource officers, interfere with the state law right to education and proposes using the constitutional right to education under state law as a mechanism to remove police from schools.Disparities in school discipline for Black and brown children are well-known. After discussing the legal structures of school policing, this Article uses the Disability Critical Race Theory (DisCrit) theoretical framework developed by Subini Annamma, David Connor, and Beth Ferri to explain why police are unacceptable in schools. Operating under the premise that school police are unacceptable, this Article then analyzes mechanisms to effect the abolition of police in schools, focusing on solutions to school policing that are consistent with DisCrit principles.This Article proposes using the state law constitutional right to education as that mechanism. Every state, in its constitution, provides for some form of a right to education. While an imperfect solution, this Article considers the state constitutional right to education as an approach to remove police from schools with broader ramifications for dismantling the school-to-prison pipeline. PubDate: Wed, 24 Nov 2021 11:33:31 PST
Authors:Grace Kim Abstract: Current asylum law requires that asylum seekers prove that they have a “well-founded fear of persecution.” However, a “well-founded fear”—the evidentiary standard in asylum cases—has remained ambiguous and difficult to apply in asylum cases. In Cardoza-Fonseca, the Supreme Court held that an asylum seeker can establish a well-founded fear with less than a 50% probability of future persecution. Although the Supreme Court sought to clarify the meaning of a well-founded fear, the decision has complicated the evidentiary standard by implying that it consists of two parts: the subjective component and objective component. The “subjective” component—the asylum seekers’ subjective fear of being persecuted if they return to their home countries—is superfluous because this component is rarely contested. The subjective component is essentially a non-issue because asylum seekers can prove this component by stating that they are afraid to go back to their home countries. The objective component—whether asylum seekers’ fears are objectively reasonable—remains unclear. Moreover, courts have misapplied the well-founded fear standard and interpreted the objective component in inconsistent ways. Thus, this Note argues that the Supreme Court should eliminate the subjective component in the well-founded fear analysis and assume that asylum seekers have a genuine fear if they submit an application. In addition, the Supreme Court should simplify the objectively reasonable fear analysis to “a reasonable possibility of persecution,” which would be a 10% chance of persecution. A reasonable possibility of persecution would emphasize how a well-founded fear points to a threshold or probability of persecution rather than a separate, convoluted analysis. PubDate: Sat, 17 Apr 2021 10:23:00 PDT
Authors:Elika Nassirinia Abstract: Standing is a long held, judicially-created doctrine intended to establish the proper role of courts by identifying who may bring a case in federal court. While standing usually requires that a party asserts his or her own rights, the Supreme Court has created certain exceptions that allow litigants to bring suit on behalf of third parties when they suffer a concrete injury, they have a “close relation” to the third party, and there are obstacles to the third party's ability to protect his or her own interests. June Medical Services, heard by the Supreme Court on June 29, 2020, involves the Unsafe Abortion Protection Act, a Targeted Regulation of Abortion Providers (TRAP) law which requires abortion providers in Louisiana to have admitting privileges at a hospital within thirty miles of where the providers perform abortions. This law decreased the number of abortion clinics in Louisiana from six to three. In addition to the admitting privileges issue in the case, Louisiana challenged the entitlement of the plaintiff-providers to third-party standing in bringing suit, arguing that abortion providers do not meet the requirements of third-party standing. Louisiana’s arguments pose a grave danger to reproductive rights across the country, as the abolishment of third-party standing for abortion providers would severely restrict the number of cases brought forth challenging abortion restrictions. Louisiana’s arguments ignore a long line of precedent that recognizes third-party standing of abortion providers challenging health and safety regulations, as well as the well-documented dangers of TRAP laws to women’s health. In addition, Louisiana’s rationale rests on inaccurate assumptions about the dynamic between abortion providers and their patients, and disregards the very real and dangerous hindrance in the path of women seeking to file lawsuits on their own behalf in cases involving abortion restrictions. PubDate: Sat, 17 Apr 2021 10:23:00 PDT
Authors:Kurt A. Holtzman Abstract: Supreme Court Justice Neil Gorsuch recently noted that “juries in our constitutional order exercise supervisory authority over the judicial function by limiting the judge’s power to punish.” Yet in the majority of jurisdictions, contemporary judge-only sentencing practices neuter juries of their supervisory authority by divorcing punishment from guilt decisions. Moreover, without a chance to voice public disapproval at sentencing, juries are muted in their ability to express tailored, moral condemnation for distinct criminal acts. Although the modern aversion to jury sentencing is neither historically nor empirically justified, jury sentencing opponents are rightly cautious of abdicating sentencing power to laypeople. Nevertheless, jury endorsement of criminal sentencing is critical to the legitimacy of criminal law. It is also necessary if criminal law is to remain responsive to evolving social mores. Unfortunately, today, studies suggest that actual criminal sentences are largely detached, if not divergent, from community preference. The criminal advisory jury is a mechanism to solve these issues by allowing juries to express community sentiment on punishment while preserving the values inherent in autonomous judicial sentencing. The jury is one of the most democratic institutions within the United States and sits readily assembled for most criminal trials. Failing to solicit its views of just desert for the criminal it has convicted is an opportunity wasted; an opportunity the criminal advisory jury construct will seize. PubDate: Sat, 17 Apr 2021 10:22:59 PDT
Authors:Charlotte Franklin Abstract: Title IX of the Education Amendments of 1972 (Title IX) prohibits discrimination on the basis of sex in federally funded education programs or activities. Since its enactment, Title IX has dramatically increased interscholastic and intercollegiate athletic opportunities for women and girls. Despite indisputable progress since Title IX’s enactment, particularly for female athletes, many high schools and universities still fail to offer equal athletic opportunities for members of both sexes. Inadequate educational resources for high school and university athletic department administrators leads to a misunderstanding of Title IX’s requirements. This misunderstanding results in institutional misconduct and non-compliance with Title IX. In particular, booster club funds and private donations often result in non-compliance by schools, and administrators who do not understand the scope of the law may not even recognize this non-compliance. Sport-specific booster club funds and privately funded earmarked donations pose a threat to Title IX compliance if administrators allocate these gifts without regard for equitable distribution. To redress disparities between men’s and women’s athletic programs, OCR should offer more robust educational resources and implement Title IX trainings so administrators can prevent misallocating booster club funds and private donations. OCR should train representatives from high school and collegiate athletic conferences to help spread awareness to administrators at their respective institutions. In addition to OCR-mandated trainings, administrators should collaborate with the leaders of their institutions’ booster clubs, alumni associations, and other prospective donors to ensure these individuals recognize the Title IX implications of their gifts. Greater understanding of Title IX is critical for everyone involved throughout the gift-giving process—from the initial donation to the departmental allocation of the funds. Ultimately, if OCR implements more substantive educational resources about Title IX, compliance with the law would improve. This compliance would help ensure equal opportunities are afforded to every student, regardless of sex. PubDate: Sat, 17 Apr 2021 10:22:58 PDT
Authors:Peter H. Huang Abstract: Pandemics lead to emotions that can be good, bad, and unconscious. This Article offers an interdisciplinary analysis of how emotions during pandemics affect people’s responses to pandemics, public health, financial economics, law, and leadership. Pandemics are heart-breaking health crises. Crises produce emotions that impact decision-making. This Article analyzes how fear and anger over COVID-19 fueled anti-Asian and anti-Asian American hatred and racism. COVID-19 caused massive tragic economic, emotional, mental, physical, and psychological suffering. These difficulties are interconnected and lead to vicious cycles. Fear distorts people’s decision readiness, deliberation, information acquisition, risk perception, and thinking. Distortions affect people’s financial, health, and political decisions, causing additional fears. Emotions have direct health impacts and indirect behavioral impacts, which in turn have their own health impacts. People differ vastly in whether, how much, and when they experience anxiety, complacency, and panic during pandemics. A common path is to feel some anxiety initially, then panic, and finally become complacent. This Article advocates these responses to pandemics:(1) paying people directly monthly pandemic financial assistance,(2) encouraging people to practice mindfulness,(3) gently enforcing Non-Pharmaceutical Interventions,(4) fostering accurate information acquisition about pandemics, and(5) applying psychological game theory to better understand emotions that depend on beliefs about leadership. PubDate: Sat, 17 Apr 2021 10:22:57 PDT
Authors:Ernesto A. Hernandez-Lopez Abstract: Tariffs on Personal Protective Equipment (PPE), such as face masks and gloves, weaken the American response to COVID. The United States has exacerbated PPE shortages with Section 301 tariffs on these goods, part of a trade war with China. This has a disparate impact felt by minority communities because of a series of health inequity harms. COVID’s racial disparity appears in virus exposure, virus susceptibility, and COVID treatments. This Article makes legal, policy, and race-and-health arguments. Congress has delegated to the United States Trade Representative expansive authority to increase tariffs. This has made PPE supplies casualties of the trade war. In political terms, the Trump administration prioritized increasing tariffs over public health readiness. Regarding race, PPE shortages exemplify the socioeconomic effects of trade policies and add to COVID’s racial disparities. PubDate: Sat, 17 Apr 2021 10:22:56 PDT
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