The October issue of 艾可直播 College Law Review is now available. The issue features four articles by outside authors as well as four student notes. Summaries of the eight pieces can be found below. The full texts are also听.
听by Greer Donley & Jill Wieber Lens
Abortion rights are more vulnerable now than they have been in decades. Professors Lens and Donley, in their article听Second-Trimester Abortion Dangertalk, focus specifically on the most assailable subset of those rights: the right to a pre-viability, second-trimester abortion. This Article builds on Supreme Court precedents, such as听Carhart v. Gonzales, that rely on the 鈥渨oman-protective rationale鈥� to support restrictions to safe, second-trimester abortion procedures. In response to this increasingly prevalent rationale, advocates for the abortion rights movement must embrace second-trimester abortion 鈥渄angertalk.鈥� Dangertalk, the authors explain, refers to the uncomfortable truths about abortion that supporters often avoid, including the nature and emotional complexities behind second-trimester abortion procedures. The Article ultimately argues that folding dangertalk into the dialogue about second-trimester abortions will help to rebut the woman-protective rationale that courts and states use to justify second-trimester abortion restrictions.听
听by Shayak Sarkar
滨苍听Tax Law's听Migration, Professor Sarkar illustrates that tax law remains highly consequential to the experience of migration, especially for the financially vulnerable. This is plainly demonstrated in the treatment of noncitizens by various tax law-based emergency relief programs, particularly in light of the COVID-19 pandemic. This Article identifies this reality and explores two principal associations of immigration and tax law. First, this Article explores how the tax system has both assisted some groups in settling in the United States and made it more difficult for others, indicating that tax law has a discernible policing effect on immigrant populations. Second, this Article explores how tax enforcement authorities use laws pertaining to movement and migration amongst the states to effectuate compliance with tax laws. Specifically, this Article notes that such mobility laws often require wealthy individuals to remain in place when facing an outstanding tax obligation, but poor individuals to leave, when remaining is their primary hope. This Article calls attention to tax law's听treatment of those most in need of help during national crises, and urges careful exploration of the impact of tax law on immigrant populations.
听by Brian Sheppard
Will automation ever produce laws? Professor Sheppard explores this question in听The Reasonableness Machine. The law's use of standards, frequently based on moral guidelines, presents a considerable hurdle. The challenge surrounds the adaptation of computer logic to legal interpretive frameworks that are based on abstract concepts, such as what is "reasonable" in a given situation. This complication makes it difficult to assess the potential of automation in lawmaking and its associated costs. This Article examines these issues by exploring possible automated applications of the Reasonably Prudent Person Test. This Article explains that cost concerns may initially drive automation to specific interpretations of the test, but that as technology develops, other interpretations could be explored. This article warns, however, of the consequences automation can have on participatory and deliberative democracy through the potential elimination of juries.
听by Shelley Welton
滨苍听The Bounds of Energy Law, Professor Welton provides a comprehensive review of the energy law landscape, its growth, its inadequacies, and its potential to address the world鈥檚 most pressing environmental challenges. This Article proposes a seismic shift in the current approach to energy law, one that fundamentally challenges, rather than tweaks, last century鈥檚 tools for managing the extraction, transport, and delivery of fossil fuels. The field of energy law, Professor Welton asserts, must expand to encompass (1) changes to institutions, politics, and power; (2) discussion of the ongoing advocacy for the Green New Deal and the Black Lives Matter movement, as it pertains to the overlap between environmental and racial equity; and (3) recognition of the pervasive impact of reducing fossil fuels across a multitude of industries, and how energy law can assist to usher the United States closer to a no-carbon future.
by Yehuda Adar & Shmuel I. Becher
Professors Adar and Becher, in听Ending the License to Exploit: Administrative Oversight of Consumer Contracts, criticize the assumption embedded in modern consumer contracts law that aggrieved consumers possess adequate tools to detect and challenge exploitative terms, as well as the assumption that courts vigilantly and effectively scrutinize these terms. This Article offers a new, dynamic model of administrative oversight to combat these false assumptions about exploitative consumer contracts. Such an administrative mechanism, this Article argues, has the potential to reverse the wave of unfair, unconscionable, or legally invalid terms in everyday consumer contracts. The regulatory regime that Professors Adar and Becher propose shifts the burden of tackling boilerplate exploitative language from the current system of private enforcement, which cannot ably address these problems, to a sophisticated and robust scheme of administrative scrutiny that is much better equipped to grapple with the necessary solutions.
听by John F. Ferraro
Since its inception in 1984, compassionate release in the federal criminal justice system was woefully underutilized. The compassionate release system used to require motions be brought by the Bureau of Prisons, with individuals incarcerated in federal prisons unable to move for compassionate release themselves. Upon the passage of the First Step Act, incarcerated individuals could bring motions on their own behalf. This new statutory directive from Congress, however, clashed with pre-existing regulations on what constitutes "extraordinary and compelling circumstances" -- situations in which compassionate release could be appropriate. In navigating this issue, all the circuits that have addressed the issue, save one, have determined that this inconsistency allows federal courts to exercise wide discretion in determining when to grant compassionate release, unfettered by now inapplicable regulations. This Note begins by surveying the novel and not-so-novel rationales courts have determined warrant compassionate release. This Note then advocates for continued use of wide judicial discretion, as a means to effectuate the First Step Act's goal of addressing the scourge of mass incarceration.
听by Caroline M. Gelinne
The COVID-19 pandemic continues to touch almost every aspect of day-to-day life, including access to paid leave. Before COVID-19, the United States stood out as the only highly-developed nation in the world not to guarantee paid leave for privately-employed citizens due to family and medical reasons. The pandemic forced Congress to enact the first-ever paid family and medical leave (PFML) law, although its enforcement was only temporary. That emergency PFML law lapsed this听year, and now policy-makers are struggling to make national PFML permanent. Corporations, however, resist any federally-imposed standard for PFML. This Note examines the legislative history of the Family and Medical Leave Act (FMLA) of 1993 to illustrate how corporate interests historically and systematically challenge popular, progressive legal reform. The future of PFML, this Note argues, does not need to be obsolete if policy-makers can absorb lessons from history and apply the bipartisan, coalition-building model from the FMLA era to currently proposed PFML legislation.
听by Emily A. Ivers
Personal data is omnipresent and its profitability grows rapidly. This growth has shed light on the fundamental dissimilarity between the privacy regimes in the European Union and United States. In 2020, the Court of Justice of the European Union held that the United States鈥� privacy laws and agreement were inadequate to meet the European Union鈥檚 standards. Its reasoning rang familiar to the court鈥檚 2015 judgment, which held practically the same. Both decisions left American companies at risk to massive fines for unlawful data use; but disengaging from transatlantic data trade altogether poses a significant financial burden as well. This Note argues that the United States should allow individual states with stricter privacy legislation, like California, to negotiate their own agreements with the European Union. It concludes that a 鈥榮tate-based adequacy now鈥� policy will propagate 鈥榥ational adequacy over time鈥� as states compete to profit from E.U. data.
听by Scott J. Sheltra
Automobile accidents are exceptionally common torts. When an injured plaintiff brings suit against a tortfeasor to recover damages, the plaintiff often has a litany of debts to resolve. Frequently, the two most significant debts are medical liens filed by the providers who treated the plaintiff and the attorney's fees the plaintiff incurs to hire legal counsel to secure the tort settlement. What happens when the amount of available insurance proceeds is insufficient to cover all of the plaintiff's debts? Plaintiffs' attorneys have argued that courts should apply the Common Fund Doctrine, an equity principle that effectuates proportionate sharing of attorney's fees by all claimants to a settlement award, to compel medical providers to reduce their liens to contribute to the plaintiff's legal fees. After all, the medical providers were reliant on the efforts of the plaintiff's counsel to receive payment on their liens. A minority of courts have agreed with this argument, and recent academic discussions have also supported this position. This Note rejects these contentions, and expands on the majority opinion by arguing that application of the Common Fund Doctrine in this context is inappropriate, as it both mischaracterizes the impact of the attorney's work on the collectability of medical liens and exacerbates - rather than mitigates - legitimate questions of equity and fairness.听