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Articles 1 - 30 of 58
Full-Text Articles in Law
Transcript – Civil Liberties: The Next 100 Years, Susan Herman, Erwin Chemerinsky, Ellis Cose, Anthony Romero, Nadine Strossen
Transcript – Civil Liberties: The Next 100 Years, Susan Herman, Erwin Chemerinsky, Ellis Cose, Anthony Romero, Nadine Strossen
Journal of Law and Policy
In honor of Professor Susan Herman’s distinguished academic career and tenure as the ACLU’s president, a panel was held on Friday, October 13, 2023 at Brooklyn Law School and on Zoom to discuss the current state of civil liberties in the United States. The participants also discussed Professor Herman’s new book, Advanced Introduction to US Civil Liberties. The transcription below captures the discussion among Susan Herman, Erwin Chemerinsky, Ellis Cose, Anthony Romero,and Nadine Strossen. All panelists have approved of the overall substantive accuracy of this transcription. Any remaining errors in this transcript should be attributed to the Journal of Law …
Out Of Captivity: Preventing Captive Audience Meetings In The Age Of National Labor Relations Board Flip-Flopping, Rebecca Gans
Out Of Captivity: Preventing Captive Audience Meetings In The Age Of National Labor Relations Board Flip-Flopping, Rebecca Gans
Journal of Law and Policy
Captive audience meetings are one of the most effective tools available to companies fighting union campaigns. This tactic, despite being inherently coercive, is currently legal. In April 2022, the General Counsel of the National Labor Relations Board released a memorandum stating that the Board intends to consider these mandatory meetings illegal, arguing that the right to refrain embraced by the anti-labor Taft-Hartley Act should be applied here in a pro-labor context. While this ban would be a positive shift in policy for labor rights, due to frequent flip-flopping by the Board, it would almost certainly be undone by the next …
Public Service Loan Forgiveness? How Improvements To A Student Debt Cancellation Program Can Help To Deliver Gideon's Promise, Jane Fox, Winston Berkman-Breen
Public Service Loan Forgiveness? How Improvements To A Student Debt Cancellation Program Can Help To Deliver Gideon's Promise, Jane Fox, Winston Berkman-Breen
Journal of Law and Policy
Student debt is a generational crisis facing forty-five million Americans today. Among those with the highest rates of student loan debt are attorneys and among attorneys, those working in public interest have been hit particularly hard as they carry these same high debt rates yet earn low salaries. While student debt has run roughshod over Americans seeking higher education for almost forty years, another crisis has ravaged Americans who are swept up in the criminal legal system. Mass incarceration and mass policing have sent millions to prisons and jails and separated millions of parents and children through family courts. Often …
Weathering The Storm: Establishing Internally Displaced People’S Right To Affordable Housing In The Wake Of Natural Disasters, Raina Hasan
Journal of Law and Policy
In 2020, natural disasters caused more internal displacement than war; floods, storms, and wildfires caused thirty million new displacements globally, and 1.7 million in the U.S. alone. The data and history suggest that masses of people will be displaced every year and will face housing insecurity without any formal acknowledgement of their unique plight or a guarantee that internally displaced persons (“IDPs”) will have protected rights. This Note proposes that, considering the worsening climate crisis leading to more frequent and severe natural disasters, the U.S. should codify the rights of internally displaced people as laid out in the United Nations’ …
Protecting The ‘Unwanted’: How And Why We Should Defend Former Gang Members In Their Pursuit Of Asylum, Anjani P. Shah
Protecting The ‘Unwanted’: How And Why We Should Defend Former Gang Members In Their Pursuit Of Asylum, Anjani P. Shah
Journal of Law and Policy
This Note discusses the flaws in the tripartite analysis to determine whether an asylum seeker satisfies the protected ground of “membership in a ‘particular social group’” (“PSG”). An applicant seeking a PSG determination must prove: (1) “immutability,” (2) “social distinction,” and (3) “particularity.” This Note argues that when PSG asylum claims are denied and appealed to the Board of Immigration Appeals (“BIA”), the BIA has incoherently tangled what is actually required in order to compel an affirmative PSG determination. One group of asylum seekers that has been significantly disadvantaged by this tripartite test is former gang members. This Note argues …
Hacking Copyright: Holding Cops Accountable For Abusing Youtube’S Copyright Filter System, Tyler Bloom
Hacking Copyright: Holding Cops Accountable For Abusing Youtube’S Copyright Filter System, Tyler Bloom
Journal of Law and Policy
This Note both explores the mechanisms and incentive structures that make “copyright hacking” possible and explains the legal system’s failure to provide recourse for victims of successful “copyright hacks” by police officers. Because the DMCA has failed to keep pace with the internet’s exponential growth, OSPs, such as YouTube, have developed filtering systems that can be exploited to “copyright hack” users and ultimately suppress their speech. A victim of “copyright hacking” by a police officer currently has no recourse; the doctrine of qualified immunity functionally precludes them from suing for violating their First Amendment rights. This Note proposes two possible …
When Sexual Assault Becomes Incident To Military Service, Lauren C. Brady
When Sexual Assault Becomes Incident To Military Service, Lauren C. Brady
Journal of Law and Policy
For seventy-two years, federal courts have barred military servicemembers who are survivors of sexual assault from recovery under the Federal Tort Claims Act (FTCA). The Feres doctrine, promulgated from the Supreme Court case Feres v. United States, became the foundation for federal courts’ decisions that sexual assault is incident to one’s service in the military. Courts’ over-deference to the military has enabled a system that turns a blind eye to perpetrators and abusive environments on bases. However, the Ninth Circuit recently turned the tide in FTCA cases, holding in Spletstoser v. Hyten that military sexual assault survivors should be permitted …
Administrative Deference And The Social Security Administration: Survey And Analysis, Nicholas M. Ohanesian
Administrative Deference And The Social Security Administration: Survey And Analysis, Nicholas M. Ohanesian
Journal of Law and Policy
The purpose of this article is to examine the role of administrative deference when decisions of the Social Security Administration are reviewed by federal courts. The concept of administrative deference to administrative agencies in federal courts goes back to the 1930’s during the rise of the New Deal—with the high-water mark reached by the Supreme Court in Chevron v. National Resources Defense Council. Since this point, there has been a growing chorus calling to re-examine or outright roll back the deference owed to these agencies when their decisions are reviewed in federal court. Prior to rewriting the standards, this article …
America’S Constant Crisis Of Care: The Case For Passing A National Direct Care Ratio For Nursing Homes, Marissa Espinoza
America’S Constant Crisis Of Care: The Case For Passing A National Direct Care Ratio For Nursing Homes, Marissa Espinoza
Journal of Law and Policy
For decades, the conditions in America’s nursing homes have been the subject of bombshell media reporting, governmental investigations, and public outrage. Longstanding issues—such as chronic staffing shortages and inadequate infection control measures—were laid bare as the COVID-19 pandemic tore through nursing homes, exposing society’s most vulnerable populations—the elderly and the sick—to appalling living conditions. Amid horrifying media reports documenting life inside nursing homes, and in response to mounting public outrage, legislators sprang into action. The most aggressive policy proposed was a direct care ratio, which caps the profits that nursing home owners can extract from facilities by mandating a minimum …
Section 230 And The Problem Of Social Cost, Stanley M. Besen, Philip L. Verveer
Section 230 And The Problem Of Social Cost, Stanley M. Besen, Philip L. Verveer
Journal of Law and Policy
This Article employs, with certain modifications, the framework developed in Ronald Coase’s classic article, “The Problem of Social Cost,” to analyze the current debate over Section 230 of the Communications Decency Act. This provision absolves interactive computer services, also known as platforms, from liability when they disseminate materials that cause “harm” to third parties, “harm” that can take the form of compensable damage of a sort found in ordinary tort cases but also can include broader injuries to social order and cohesion in the form of such things as hate speech and misinformation. The Article begins by pointing out that, …
The Patient Assistance Problem, Daniel O’Brien Lichtenauer
The Patient Assistance Problem, Daniel O’Brien Lichtenauer
Journal of Law and Policy
Implemented in January 2006 as a voluntary enrollment supplement to standard Medicare plans, Medicare Part D coverage subsidizes the cost of prescription drugs for participants. However, significant gaps in coverage exist for those suffering from rare diseases that require costly drugs. Pharmaceutical companies seek to remove the powerful market force of patient price sensitivity by directly sponsoring or substantially funding “patient assistance programs” that help cover out-of-pocket costs. While pharmaceutical donors insist that their goal is strictly altruistic, the reality is that many of these programs offer a financial windfall for drug makers because they help funnel patients towards new …
Big Dreams And Pyramid Schemes: The Ftc’S Path To Improving Multi-Level Marketing Consumer Protections In Light Of Amg Capital Management And The 2016 Herbalife Settlement, Camille H. Mangiaratti
Big Dreams And Pyramid Schemes: The Ftc’S Path To Improving Multi-Level Marketing Consumer Protections In Light Of Amg Capital Management And The 2016 Herbalife Settlement, Camille H. Mangiaratti
Journal of Law and Policy
Multi-level marketing, also known as “MLM,” is a type of sales business that relies on both sales to consumers and recruitment of sellers into the company’s tiered commission structure. MLMs are wildly and enduringly popular, especially because they claim to be a flexible and easy source of income for people who need it most. However, almost everyone who joins an MLM will lose money, and many MLMs are illegal pyramid schemes. Millions of Americans are harmed by MLMs every year. Despite this, the government does very little to punish MLMs who lie to prospective participants about their odds of success. …
The Roberts Court, State Courts, And State Constitutions: Judicial Role Shopping, Ariel L. Bendor, Joshua Segev
The Roberts Court, State Courts, And State Constitutions: Judicial Role Shopping, Ariel L. Bendor, Joshua Segev
Journal of Law and Policy
In this Article we reveal a dual dilemma, both material and institutional, that the Supreme Court in its current composition faces when reviewing liberal state court decisions based on the state constitution. The Article further describes substantive and procedural tactics that the Court adopts to address this dilemma, and illustrates the arguments by analyzing a number of recent Supreme Court decisions. The two dilemmas, the combination of which serve as a “power multiplier,” of sorts, have arisen following the last three appointments to the Supreme Court, which resulted in a solid majority of conservative Justices nominated by Republican presidents. One …
On The Outer Reaches Of The Marketplace Of Ideas: The Weaponization Of Title Vi Against Palestinian College Activists, Gavriella Fried
On The Outer Reaches Of The Marketplace Of Ideas: The Weaponization Of Title Vi Against Palestinian College Activists, Gavriella Fried
Journal of Law and Policy
On U.S. college campuses, Palestinian rights activists who are critical of Israel risk legal consequences. Title VI of the Civil Rights Act prohibits discrimination on the basis of race, color, or national origin in any program receiving federal funds. Over the past two decades, at least eighteen Title VI complaints have been filed against U.S. colleges and universities, alleging that Palestinian rights activists’ political expression is a form of anti-Semitism. In December 2019, President Trump promulgated Executive Order 13,899, which formally extended Title VI protections to Jews and directed enforcement agencies to investigate allegations of anti-Semitism using guidance that includes …
A Firm Pillar Of Local Justice: The Failures Of The New York Town And Village Justice Courts Supporting Statewide Adoption Of The District Court Model, Noah Sexton
Journal of Law and Policy
Town and village justice courts have been the center of municipal law, both civil and criminal, since the mid-nineteenth century. However, in the modern world, they have become corrupt, poorly managed institutions, creating issues involving procedural integrity and civil rights. In order to remedy these failures and modernize the New York State Unified Court System, state legislators must look to the district court model as it currently exists in Nassau and Eastern Suffolk Counties. The district court model offers several benefits, including the imposition of educational and experiential requirements for judges, the creation of internal and external oversight institutions, the …
“A Dollar Ain’T Much If You’Ve Got It”: Freeing Modern-Day Poll Taxes From Anderson-Burdick, Lydia Saltzbart
“A Dollar Ain’T Much If You’Ve Got It”: Freeing Modern-Day Poll Taxes From Anderson-Burdick, Lydia Saltzbart
Journal of Law and Policy
How much should it cost to vote in the United States? The answer is clear from the Supreme Court’s landmark opinion in Harper v. Virginia State Board of Elections—nothing. Yet more than fifty years later, many U.S. voters must jump over financial hurdles to access the franchise. These hurdles have withstood judicial review because the Court has drifted away from Harper and has instead applied the more deferential Anderson-Burdick analysis to modern poll tax claims—requiring voters to demonstrate how severely the cost burdens them. As a result, direct and indirect financial burdens on the vote have proliferated. Millions of voters …
Business Interruption Insurance In The Time Of Covid-19: Who Should Foot The Bill?, Paul Mchugh
Business Interruption Insurance In The Time Of Covid-19: Who Should Foot The Bill?, Paul Mchugh
Journal of Law and Policy
COVID-19-related business closures led to thousands of business interruption insurance claims and lawsuits across the country. However, throughout the history of business interruption policies, obstacles such as virus exclusions and “physical damage” requirements have been added in response to prior pandemics and catastrophic losses. These exclusions and requirements have led to many hurdles and outright denials for those seeking payment on their policies. So, then, can business owners still find some economic refuge in these policies? Despite outright denials in many courts, at least a handful of federal judges as well as a number of members of Congress seem to …
The Hunt For Loot: Proposed Solutions To More Effectively Regulate Addictive Gambling Mechanics In Video Games, Andrew Brewer
The Hunt For Loot: Proposed Solutions To More Effectively Regulate Addictive Gambling Mechanics In Video Games, Andrew Brewer
Journal of Law and Policy
Over the past decade, more and more video game developers have embraced “loot boxes” as a lucrative source of revenue. But recent concerns over the potential harms of loot boxes, particularly to children, have raised questions about their use and prompted attempts to regulate them throughout the world. This Note explores recent attempts—both foreign and domestic—to regulate loot boxes and proposes new solutions based on those strategies’ shortcomings. By carefully and competently defining terms and exceptions, and providing for more aggressive oversight of agency regulatory efforts, federally-crafted loot box legislation can more effectively protect children from predatory gambling mechanics in …
Splendid Isolation: Va’S Failure To Provide Due Process Protections And Access To Justice To Veterans And Their Caregivers, Yelena Duterte
Splendid Isolation: Va’S Failure To Provide Due Process Protections And Access To Justice To Veterans And Their Caregivers, Yelena Duterte
Journal of Law and Policy
Imagine you are a spouse and caregiver of a severely injured post-9/11 veteran. Your spouse served in the Marine Corps, with several deployments to Iraq. During their last deployment, your spouse sustained a severe traumatic brain injury and suffers from post-traumatic stress disorder. Due to these injuries, they need consistent care throughout the day. Thankfully, upon their return, the VA provided a caregiver program that allowed you to step away from your job and focus on caring for your spouse full time. As part of this program, you received a caregiver stipend of $2,400 per month, healthcare, and support from …
Qap Out: Why The Federal Government Should Require More From How States Allocate Low-Income Housing Tax Credits, Connor Blancato
Qap Out: Why The Federal Government Should Require More From How States Allocate Low-Income Housing Tax Credits, Connor Blancato
Journal of Law and Policy
Prohibitively high land acquisition and construction costs block affordable housing developers from using the Low-Income Housing Tax Credit program in high opportunity areas. Policymakers must study the history of housing policy in the United States and realize that the LIHTC program works because it suitably balances previously problematic private-market competition, federalism concerns, and compliance issues. Federal lawmakers can look to Qualified Allocation Plans drafted by individual states as a way to encourage the construction of affordable housing without upsetting this equilibrium. To encourage such development, the federal government can require states, in determining tax credit allocations through QAPs, to give …
The Legal History Of State Legislative Vacancies And Temporary Appointments, Tyler Yeargain
The Legal History Of State Legislative Vacancies And Temporary Appointments, Tyler Yeargain
Journal of Law and Policy
We love paying attention to special elections. They operate as catharsis for opposition parties and activists, easily serve as proxies for how well the governing party is doing, and are ripe for over-extrapolation by prognosticators. But in thirty states and territories throughout the United States, state legislative vacancies are filled by a combination of special elections and temporary appointments. These appointment systems are rarely studied or discussed in academic literature but have a fascinating legal history that dates back to pre-Revolutionary America. They have substantially changed in the last four centuries, transitioning from a system that, like the Electoral College, …
Shoring Up The Hear Act: Proposed Amendments To Federal Legislation Designed To Assist Heirs And Claimants Of Nazi-Looted Art, Alexander Hull
Shoring Up The Hear Act: Proposed Amendments To Federal Legislation Designed To Assist Heirs And Claimants Of Nazi-Looted Art, Alexander Hull
Journal of Law and Policy
From 1933 to 1945, Nazi German forces executed a mass campaign of property confiscation, stealing as many as 600,000 pieces of art, including paintings, tapestries and sculptures from museums and private collections across Europe. It is estimated that some 300,000 pieces of art are still missing or are currently in the possession of someone other than the so-called “true” owner, based on reviews of Nazi documentation conducted by the Jewish Restitution Organization. While Nazi art looting has been regarded as “dehumanizing,” “self-advancing” and concomitant with the Nazi regime’s larger genocidal crusade, restitution in this context has been framed as a …
High Stakes: Throwing A Hail Mary To Congress For A Federal Ban On Sports Betting In College Athletics, Kaitlyn Kallert
High Stakes: Throwing A Hail Mary To Congress For A Federal Ban On Sports Betting In College Athletics, Kaitlyn Kallert
Journal of Law and Policy
The Supreme Court’s 2018 decision overruling the Professional and Amateur Sports Protection Act’s (“PASPA”) federal prohibition on sports betting as unconstitutional under the Tenth Amendment has cleared the way for states to legalize sports gambling, which, in turn, has proven a controversial subject. Supporters of state legalization of sports gambling “argue that legalization will generate revenue for states and critically weaken illegal sports betting operations, which are often commissioned by organized crime.” However, as the Supreme Court notes, opponents contend that the legalization of sports betting will expose America’s youth to accessible gambling, “encourage people of modest means to squander …
Single Subject Rules And Civil Rights: Using Legislative-Process Restrictions To Facially Challenge Constitutionally Suspect Laws, Annie Melton
Journal of Law and Policy
This Note argues that the single subject rule, a procedural restriction, can be used to facially challenge certain insidious laws. By giving courts an opening to review a law in its most elemental form—a deliberated-over means of adequately implementing a new, or remedying an existing, policy—the single subject rule tests it for characteristics like clarity, practicality, and predictability. The rule is rarely litigated in many states, but doing so draws attention to a fundamental philosophy of the legislative process, which is especially compelling in light of the ideological battles that are dominating statehouses across the country and giving rise to …
Political Ideology As A Limited Protected Class Under Federal Title Vii Antidiscrimination Law, Anne Carey
Political Ideology As A Limited Protected Class Under Federal Title Vii Antidiscrimination Law, Anne Carey
Journal of Law and Policy
As the political climate in the United States becomes increasingly divided, more and more employees are fired for their off-duty political speech. Political speech is highly protected from government interference under the First Amendment, but it is not well protected from discrimination in employment matters. This is despite the fact that employers can be just as powerful and influential as the government. Although employee political speech is not currently protected at the federal level, there are a myriad of state statutes that protect employee speech from employer retaliation. Some of these state statutes protect speech on a broader level, others …
The Time Has Come For Congress To Finish Its Work On Harmonizing The Definition Of "Employee", Russel A. Hollrah, Patrick A. Hollrah
The Time Has Come For Congress To Finish Its Work On Harmonizing The Definition Of "Employee", Russel A. Hollrah, Patrick A. Hollrah
Journal of Law and Policy
The meaning of the term “employee” is critically important for the purposes of laws governing work relationships. This is because these laws, for the most part, cover only employees, and do not cover self-employed individuals, commonly referred to as independent contractors or independent entrepreneurs. Currently more than ten different tests are used to determine whether an individual qualifies as an “employee” for purposes of federal and state statutes. This multiplicity of tests has frequently left independent entrepreneurs and their clients uncertain whether their contractual relationships will be respected for purposes of applicable statutes. This exposes companies doing business with independent …
The New York Court Of Appeals' Expansion Of The Definition Of The Term “Parent” Leaves Future Questions Unanswered, Ilana Sharan
The New York Court Of Appeals' Expansion Of The Definition Of The Term “Parent” Leaves Future Questions Unanswered, Ilana Sharan
Journal of Law and Policy
On August 30, 2016, the New York Court of Appeals in Brooke S.B. v. Elizabeth A.C.C., expanded the definition of the term “parent,” overruling the twenty-five-year-old bright line rule that limited standing to seek custody or visitation to traditional parents. In 1991, the New York Court of Appeals decided Alison D. v. Virginia M. where they defined “parent” to include only people who have a biological or adoptive relationship with the child, reasoning that the typical family consisted of a husband and wife. In many cases subsequent to Alison D., the court attempted to alleviate the harsh application this rule …
26 Usc Section 280e: Will The Dragon Now Be Slayed?, Bill Greenberg, Rebecca Greenberg
26 Usc Section 280e: Will The Dragon Now Be Slayed?, Bill Greenberg, Rebecca Greenberg
Journal of Law and Policy
26 USC § 280E of the Internal Revenue Code (“§ 280E”) prohibits the deduction of ordinary business expenses for businesses deemed by the federal government to be drug traffickers as defined by the Controlled Substances Act (“CSA”). The tax enactment is specifically designed to serve as a disincentive to socalled drug traffickers who might otherwise deduct “ordinary and necessary business expenses” from their taxes. However, this harms legitimate cannabis businesses by promoting unintended consequences, such as under-reported income. For three decades, there has been a patent incongruity between § 280E’s congressional purpose and the expansion of state-legalized cannabis businesses in …
No “Gift” Giving Here: The Inadequate Gifted Education Programs In New York State And The Need For Gifted Education Reform, Jamie M. Kautz
No “Gift” Giving Here: The Inadequate Gifted Education Programs In New York State And The Need For Gifted Education Reform, Jamie M. Kautz
Journal of Law and Policy
Gifted Education is a topic that is often not at the forefront of educational issues throughout federal and state discussions and legislative actions. However, while there are a large number of students in classrooms across the country who are “gifted,” the number of individual states with comprehensive gifted programs within their public school districts is small. As a result, gifted programming is limited and gifted students are not guaranteed any sort of academic assistance beyond that of a standard classroom curriculum for their designated grade levels. More importantly, in the majority of states, including New York, the legal protections offered …
Cutting Off The Umbilical Cord–Reflections On The Possibility To Sever The Parental Bond, Tali Marcus
Cutting Off The Umbilical Cord–Reflections On The Possibility To Sever The Parental Bond, Tali Marcus
Journal of Law and Policy
Parenthood is a status comprising exclusivity relating to the rights and responsibilities concerning the child. The rights and obligations imbued in the parental status are evident first and foremost during the child’s minority. Nonetheless, the status has legal meaning and implications that extend beyond the child’s minority and carry on throughout adulthood. By defining parenthood and assigning parental status, the law establishes legal as well as social responsibility towards the child and a bond for life. This article questions the eternal aspect of parenthood and aspires to initiate discussion pertaining to the social and legal conventions that pose parenthood as …