Keeping Current-Property Incollection
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Darryl Wilson, Keeping Current-Property, 35 Probate and Property 16 (2021)Clicking on the button will copy the full recommended citation.
2021
An Ethical Gap in Agency Adjudication Article
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Louis J. Virelli, An Ethical Gap in Agency Adjudication, 69 Buff. L. Rev. 1329 (2021)Clicking on the button will copy the full recommended citation.
There is an ongoing crisis of confidence in American government. Accusations of incompetence and political self-dealing dominate news cycles as public institutions seek to combat—with varying degrees of success—the public health and economic consequences of a global pandemic. Highlighted in this struggle is the larger issue of the importance of integrity to the efficacy and legitimacy of administrative government. This is especially true for agency adjudication, as it is the form of agency action that most directly impacts individuals. Recusal—the process by which an adjudicator is removed, voluntarily or involuntarily, from a specific proceeding—is a time-honored way of protecting the integrity of all manner of quasi-judicial activity, including agency adjudication. Yet the existing landscape of agency recusal standards exhibits gaps in coverage that potentially threaten the efficacy of, and public confidence in, that adjudication. This Article, which is based on a report for the Administrative Conference of the United States, is the first to identify the full range of recusal standards that impact agency adjudicators and to evaluate their effectiveness in light of recusal’s dual purposes of promoting fairness to litigants and public confidence in the integrity of the proceedings. It concludes that the best way to fill the ethical gap in agency adjudication is through agency-specific recusal regulations that seek to preserve both the reliability and effectiveness of agency adjudication.
Does the U.S. Supreme Court’s Decision in Wayfair Apply Retroactively? Article
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Walter Hellerstein and Andrew D. Appleby, Does the U.S. Supreme Court’s Decision in Wayfair Apply Retroactively?, 102 Tax Notes State 715 (2021)Clicking on the button will copy the full recommended citation.
A recent decision of the Oregon Tax Court suggests that it may be premature to dismiss the challenging questions raised by the retroactive application of Wayfair as entirely hypothetical. Accordingly, after providing an overview of the case law governing retroactive application of Supreme Court state tax decisions repudiating preexisting constitutional doctrine, we examine the Oregon Tax Court’s opinion in Global Hookah Distributors Inc. v. Department of Revenue, which addressed the question whether Wayfair applied retroactively to the state’s tobacco products tax.
When the Sum of the Parts are More than the Whole: How Fully Secured Creditors Can Be Preferred in Bankruptcy Article
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Theresa J. Pulley Radwan, When the Sum of the Parts are More than the Whole: How Fully Secured Creditors Can Be Preferred in Bankruptcy, Stetson L. Rev. Forum (2021)Clicking on the button will copy the full recommended citation.
The bankruptcy system seeks to provide debtors with relief from overwhelming debt, while ensuring a fair and equitable distribution to creditors. Though the filing of a bankruptcy petition stays most debt collection efforts and repayment outside of the bankruptcy system, payments made prior to the bankruptcy filing may diminish funds available to distribute to creditors during the bankruptcy case. In order to prevent pre-petition transfers from impacting post-petition distribution within the bankruptcy system, the Bankruptcy Code provides the bankruptcy trustee with the power to avoid various pre-petition transfers and to recover those transfers from the recipient. With regard to one of those potential transfers—preferential transfers—courts regularly find that transfers to fully secured creditors cannot be avoided. However, this conventional wisdom fails to consider how other sections of the Code that allow such creditors to recover additional payments in bankruptcy causes a benefit to those creditors at the expense of others. This article seeks to resolve the lack of congruity between these sections to protect the purposes behind recovery of preferential pre-petition transfers.
A Simple Model of Corporate Fiduciary Duties: With an Application to Corporate Compliance Article
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Will Bunting, A Simple Model of Corporate Fiduciary Duties: With an Application to Corporate Compliance, 17 Review of Law & Economics 583 (2021)Clicking on the button will copy the full recommended citation.
This article models the duty of care as a response to moral hazard where the principal seeks to induce effort that is costly to the agent and unobservable by the principal. The duty of loyalty, by contrast, is modeled as a response to adverse selection where the principal seeks truthful disclosure of private information held by the agent. This model of corporate loyalty differs importantly with standard adverse selection models, however, in that the principal cannot use an observable and verifiable outcome as a screening mechanism to ensure honest disclosure and must rely upon an external third-party audit technology, such as the court system. This article extends these simple models to the issue of corporate compliance and argues that the optimal judicial approach would define the duty to monitor as a subset of due care–and not loyalty–but hold that the usual legal protections provided for due care violations no longer apply. The framework set forth provides a theoretical justification for drawing such a conceptual distinction.
The Identity Criterion: Resuscitating a Cardozian, Relational Approach to Duty of Care in Negligence Article
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Tim Kaye, The Identity Criterion: Resuscitating a Cardozian, Relational Approach to Duty of Care in Negligence, 49 Hofstra L. Rev. 945 (2021)Clicking on the button will copy the full recommended citation.
Everyone agrees that the canonical case in American negligence law is Palsgraf v. Long Island Railroad Co. In his famous majority opinion in the New York Court of Appeals, Chief Judge Benjamin Cardozo held that the outcome of the case turned on whether the plaintiff, Mrs. Palsgraf, had been owed a duty of care by the Long Island Railroad. He declared that the answer to this question depended on whether the parties had a relevant relationship at the time of the conduct under consideration. “Negligence, like risk,” he said, is “a term of relation. Negligence in the abstract, apart from things related, is surely not a tort, if indeed it is understandable at all.”
Over ninety years have passed since then. One thing that everyone agrees upon (including Judge Charles Andrews, who wrote the almost equally famous dissent in Palsgraf) is that not everyone who sustains an injury as the result of someone else’s negligence is entitled to compensation in a court of law. In Andrews’s words, “because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point.” Yet torts lawyers continue to search in vain for a full articulation of a relational approach to duty of care that tells us where that point is. This paper seeks to fill that void.
Justice for Parents with Disabilities and Their Children Article (Online)
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Robyn Powell, Justice for Parents with Disabilities and Their Children (2021)Clicking on the button will copy the full recommended citation.
The child welfare system disproportionately harms families headed by parents with disabilities. The only way to achieve justice for these families is to abolish the child welfare system and reimagine methods of providing non-punitive supports and resources. Such efforts must recognize and respond to the needs of parents with disabilities and their children, such as by ensuring economic well-being, investing in accessible supports, ending surveillance of families, and providing high-quality legal representation for those entangled in the system. Most importantly, all legal and policy responses must be led by those most impacted by the current child welfare system, including parents with disabilities. The goal must be to create a world in which the child welfare system is no longer deemed necessary.
Obstruction of Justice: Redesigning the Shortcut Article
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Ellen S. Podgor, Obstruction of Justice: Redesigning the Shortcut, BYU L. Rev. (2021)Clicking on the button will copy the full recommended citation.
When one looks to accomplish consistency and predictability in the criminal justice system – important goals tied to achieving deterrence – the architecture of obstruction of justice remains important. It is insufficient to suggest that we have consistency in sentencing by using sentencing guidelines, when the charging process is undermined by its failure to provide uniformity. Achieving a consistent charging framework for obstruction of justice needs to be individualized, remain true to the contextual setting, and provide consideration for the specific processes of a trial, sentencing, or impeachment. But it also needs to have a structure that is not rearranged dependent upon the Attorney General, United States Attorney, the politics of the time, and varying interpretations of government officials.
This Article examines obstruction of justice, looking at it in three different contexts: as a criminal offense, a sentencing enhancement, and as a basis for a judicial or presidential impeachment. It provides a comprehensive picture of the elements of obstruction of justice crimes, the challenges brought to courts, and the constituencies handling these matters. It focuses on the prosecutorial practices in bringing obstruction charges in federal court including its use as a “short-cut” offense that is easily proved in some contexts, while noting the difference in other arenas, such as impeachment inquiries. Like its practice regarding false statements and perjury, and unlike that for corporate criminal liability, the Department of Justice offers little internal guidance when selecting obstruction of justice crimes as the basis for a criminal prosecution. The actual practice, as recently seen in the differing views of Special Counsel Robert Mueller and Attorney General William Barr in examining the allegations of obstructive conduct by President Donald Trump, as outlined in the Mueller Report, highlights the inconsistency in this area of the law. This Article provides an empirical and diagnostic lens to study the law and practice of whether federal obstruction of justice crimes require an underlying criminal offense or, alternatively can be prosecuted as a sole charge, or in conjunction with other shortcut offenses such as false statements and perjury.
From Carrie Buck to Britney Spears: Strategies for Disrupting the Ongoing Reproductive Oppression of Disabled People Article (Online)
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Robyn Powell, From Carrie Buck to Britney Spears: Strategies for Disrupting the Ongoing Reproductive Oppression of Disabled People (2021)Clicking on the button will copy the full recommended citation.
In June 2021, Britney Spears made news headlines when she testified to a judge that she was being prevented from having children because her conservator would not allow her to stop using contraception. Britney Spears’ dreadful experiences are a glaring reminder that nearly 100 years after the infamous Buck v. Bell decision, reproduction is still weaponized to subjugate people with disabilities. Indeed, the reproductive oppression experienced by Britney Spears and other people with actual or perceived disabilities is deeply entrenched in our laws, in our policies, and in our collective conscience. Confronting these persistent inequities will require us to radically transform our laws and policies. This Essay responds to the ongoing reproductive injustice experienced by disabled people by proposing a vision to assist activists, legal professionals, scholars, and policymakers conceive of and articulate the basic contours of a paradigm shift that supports the coalescence of the reproductive justice and disability justice movements. The guiding principles set forth herein are intended to advance a long-overdue conversation about reproductive justice for people with disabilities by providing a starting point for activists, scholars, legal professionals, and policymakers to use, critique, and improve upon. The need for action could not be more timely or clear.
The Political Branding of Us and Them: The Branding of Asian Immigrants in the Democratic and Republican Party Platforms and Supreme Court Opinions 1876-1924 Article
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Ciara Torres-Spelliscy, The Political Branding of Us and Them: The Branding of Asian Immigrants in the Democratic and Republican Party Platforms and Supreme Court Opinions 1876-1924, 96 N.Y.U. L. Rev. 1214 (2021)Clicking on the button will copy the full recommended citation.
In this piece, I examine the political branding of Asian immigrants by comparing the rhetoric used in the political platforms of the Democratic and Republican parties from 1876 to 1924 to the language deployed in U.S. Supreme Court opinions during the same time period. The negative verbiage repeated at national political conventions branded the Chinese is a threat to labor, immoral, unassimilable, diseased, and invaders. Interestingly, the Republican authors of their political platforms were multiracial, and yet they produced rhetoric as harshly anti-Asian as their Democratic counterparts, who included ex-Confederate soldiers and even KKK members. And disappointingly, the Supreme Court picked up this derogatory language found in both parties’ political platforms and continued to echo it in cases that diminished the rights of Chinese and other Asian immigrants. This history is then linked to the present day through the example of the negative impact of politicians’ calling the contemporary COVID-19 pandemic “Kung Flu.”