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Johnson & Johnson’s Dance With Bad Faith: A Look at How Large Corporations Utilize the Bankruptcy Code to Avoid Liability From Mass Tort Claims
Full text linkSince Congress enacted the current Bankruptcy Code in 1978, large corporations have strategically used bankruptcy law to evade liability in mass tort claims. This Note examines three case studies illustrating such attempts. The first case involves Johnson & Johnson, which tried to use the so-called “Texas Two-Step” maneuver to circumvent liability for 38,000 pending talc-related lawsuits linked to injuries caused by its well-known Baby Powder. The second case is the Purdue Pharma bankruptcy. Purdue Pharma, the pharmaceutical manufacturer responsible for creating OxyContin, faces thousands of claims for strict liability, negligence, and failure to warn. The issue here is whether the Sackler family, in exchange for high contributions to the company’s Chapter 11 plan funding agreement, can receive third-party protections from liability. The third case involves 3M, which attempted to put its subsidiary, Aearo, into bankruptcy to resolve hundreds of thousands of pending lawsuits for hearing loss caused by defective combat earplugs. Bankruptcy courts must analyze the immediacy of these companies’ financial distress, which may be granted protection under their respective Chapter 11 plans, and whether each company’s filings were made in good faith. Additionally, bankruptcy judges must determine whether they have the authority to grant such protections. This Note argues that these bankruptcy strategies must be dismissed as bad faith filings and further asserts that a solution protecting tort claimants and providing amended legislation is required
Using Express Federal Preemption to Avoid a Costly State-by-State Regulatory Landscape for Social Media Platform
Full text linkOver the last five years, the federal government has been slow to respond to the growing number of calls for social media regulation. Social media has a massive impact on American life, fostering connections among people and amplifying information. The companies that own and operate these platforms enjoy a power to disseminate information that has been likened to that of the Catholic Church in the Middle Ages. Yet, there is no substantive regulation of these companies by the federal government. Instead, state governments are attempting to fill the regulatory void left by the federal government. As seen with gerrymandering, if permitted to alter the essential fabrics of democracy, state governments will take every inch given by the federal government. In this case, instead of altering voting districts, state governments seek to manipulate content moderation laws for political gain. Conservative state governments have passed legislation seeking to disallow self-moderation of content by the platform owners, while liberal state governments are poised to pass legislation mandating content moderation. This threatens to create an unmanageable regulatory framework for the platform owners and, in some states, contribute to growing polarization alongside the spread of disinformation. This Note argues that the solution to regulating social media is express federal preemption of state regulation accompanied by the formation of a politically independent regulatory agenc
Human Rights Forum Shopping in Transnational Sport Disputes
Full text linkProfessional athletes must adhere to the dispute resolution mechanisms contained in their agreements with sport governing bodies (SGBs). These typically provide for SGB institutional arbitration with appeals against such awards to CAS, although in some instances direct recourse to CAS is also possible. These mechanisms do not cater for attendant human rights claims arising from the underlying dispute. This article suggests that a variety of sui generis forum shopping possibilities are available to address this deficit. Applicants may approach national courts with a sufficient jurisdictional link to the SGB in question by raising constitutional (and by extension human rights) and tort claims. Equally, applicants may approach regional economic integration tribunals, chiefly the Court of Justice of the European Union (CJEU) and link their claims to anti-trust or other similar infringements, which has shown to force the CJEU to address underlying human rights issues. Where applicants follow their agreement with the SGB, they may well intimate that CAS or the institutional tribunal adhere to the forum’s lex arbitri, which essentially contains a plethora of human rights obligations under treaty or custom. Even if such an argument were to fail, the appellant can approach the forum’s competent court and request that the CAS or institutional award be set aside on the ground that it failed to respect the forum’s public policy, of which human rights constitutes an integral part
Does the Loss of Chance Doctrine Have a Chance in International Sport Arbitration?
Full text linkThe Article analyzes whether and, if so, how, the loss of chance doctrine providing the basis for claims against person who deprived victims of a chance of occurrence of a certain result or decreased this chance could be used in international sport arbitration at the Court of Arbitration for Sport (CAS). It provides a comparative analysis of applicability of this doctrine under English law, French law, and the law of the State of New York to sport competitions and outlines potential problems of utilizing this doctrine in the CAS arbitration through domestic law based on choice-of-law rules. The Article argues that the result of application of these rules would be either unpredictable or predominantly unfavorable to athletes, because the CAS panels would likely end up with the application of Swiss law currently not recognizing this doctrine. Such an outcome may encourage the athletes to turn their eyes to state courts, undermining many years of attempts to uniformize resolution of international sport disputes, which started with the creation of the CAS in 1984. Following an explanation of the CAS role in the uniformization of legal regulation of international sport, the Article argues in favor of incorporation of the loss of chance doctrine into the so-called Lex Sportiva as an independent supra-national concept by the CAS, outlines its content, identifies potential objections against this concept and addresses them
North Korean Trash Balloons and International Law
Full text linkIn May 2024, North Korea introduced a new tactic to the inter-Korean drama: the launching of balloons full of trash into the South. To date, over 2,000 balloons of these balloons have been launched across the demilitarized zone, carrying a mixture of different types of waste as cargo. While they have led to little material damage, the trash balloons have raised tensions on the peninsula, and led to widespread condemnation, including on the grounds that they violate international law. In this paper I examine whether the launching of these balloons in fact does violate international law. I conclude that North Korea’s trash balloons contravene the terms of the Chicago and Basel Conventions, as well as customary international law on airspace sovereignty. However, I find that they can be legally justified as countermeasures, because the South Korean government has not taken appropriate measures to stop South Korean civil activists from launching balloons carrying political and religious leaflets into North Korean sovereign airspace.
THE PET FISH CANON
Full text linkInspired by the work of the late Professor Larry Solan, this article proposes that judges recognize as one of the textualist canons of statutory construction a “pet fish” canon. Such a canon would posit that when an ordinary reader would understand two or more words to yield a meaning that is different than the sum of the two words defined separately, the statutory interpreter should not disaggregate them. The Roberts Court has already followed such a linguistic precept in some statutory cases, and this article proposes that the Court recognize this as a canon considered at least as seriously as the dictionary, associated words, and negative implication canons. The pet fish canon reveals surprising power in cases involving criminal statutes, as it proves to be a useful tool for thinking about ordinary meaning (i.e., that meaning of federal criminal law that would be accessible to all of us ordinary speakers of the language)
Essentializing Cultures in US Asylum Law
Full text linkAsylum applicants must tell a story about their home country that reduces and problematizes its culture. The requirements of asylum law demand that an applicant show why they will suffer persecution in their home country and that their government will not protect them from it. This legal framework prompts applicants to present a narrative in which their home culture plays the role of the ultimate antagonist, the force that propels the applicant’s persecutors to single them out for harm and renders their government passive—or even complicit—in the face of it. Such a narrative necessarily reduces the applicant’s culture to its most negative and threatening features, eliminating complexity and flattening contours of positivity and joy. This essentialization of culture reinforces racism, stereotypes, and the narrative of Western moral superiority. And it harms all participants in the asylum system: applicants, advocates, and adjudicators. And once such a narrative succeeds in persuading an adjudicator to grant asylum, its constricted depiction of the applicant’s culture becomes the predominant story of that culture. Case law validates and amplifies the essentialized story. New asylum applications replicate it. The cultural concept of “machismo” exemplifies this cultural essentialization. In this piece, we trace the development of this concept as it ascends through agency and federal court case law to become the predominant narrative for Central American asylum claims based on the persecution of women applicants. We closely examine these harms through a lens of racial and social justice to unpack the colonial context of essentialization and challenge its utility. Lastly, we turn to detailed solutions that can potentially mitigate this phenomenon
Democratizing New York’s Eminent Domain Regime
Full text linkSince the Supreme Court’s landmark eminent domain decision in Kelo v. City of New London, forty-three states have amended their eminent domain laws to constrain their own eminent domain powers. New York, however, was not one of them. In Goldstein v. N.Y. State Urban Development Corp., New York’s highest court decided firmly in favor of the state’s broad eminent domain powers, yet counseled New York lawmakers to act to legislatively limit the state’s unbridled eminent domain authority. Again, New York did not do so—allowing an eminent domain regime that leads to systemic deprivation of public participation to remain fully in force. However, nearly twenty years after Kelo, the time for New York lawmakers to act may finally be near. Eminent domain is back in the spotlight as the Governor of New York prepares for the redevelopment of the Penn Station district, which, at a minimum, would require state seizure of a city block in the heart of Manhattan. The breadth, scope, and newsworthiness of the Penn Station eminent domain proposal present New York lawmakers a crucial opportunity to revisit and reconsider the state’s eminent domain statute to ensure that, moving forward, eminent domain actions in the State of New York are subject to the public review they warrant. This note proposes two reform alternatives: that the City of New York amend the New York City Charter to subject state-initiated eminent domain actions to the city’s comprehensive review procedure, known as ULURP, or New York State lawmakers amend the state eminent domain statute to require ULURP-type procedural protections for property owners. With the Penn Station redevelopment proposal as the catalyst, New York lawmakers have the opportunity to amend New York’s eminent domain regime to ensure those affected by condemnation actions are accorded appropriate public review procedures that adequately allow community members the opportunity to participate in the future planning of their neighborhoods
The Mismeasure of Puerto Rico: Xenophobia and the Moral Bankruptcy of U.S. Colonialism
Full text linkThis Article examines the racialization of Puerto Ricans within the legal context of the colonial relationship between the United States and its largest colony. The first section examines the first half century of U.S. rule (1898-1952) and how colonial administrators typically used arrogance and paternalism, the self-proclaimed white superiority of the ruling class, and the presumed inferiority of the subjects and their incapability to become full members of the United States, to justify colonial rule. The second section describes the establishment of the Commonwealth of Puerto Rico in 1952, a legal fiction designed to instill in Puerto Ricans and the international community the idea that Puerto Ricans were now in charge of their own affairs and that their relationship with the United States was one among equals. Finally, the third section looks at contemporary developments in the colonial relationship as the passing of time has come to reveal the true nature of the Commonwealth: a new-age colonial super-structure where openly racist statements are avoided (though not completely), but coded depictions remain to justify the U.S. government’s ultimate say over Puerto Rico and Puerto Ricans. Puerto Ricans remain colonial subjects, inferior, racialized Others by virtue of their constructed race and non-American culture. We conclude that even though race has purportedly been debunked as an unscientific social construct, it remains a powerful lens through which the United States views Puerto Ricans and the colonial nature of its relationship with the territory
The Right to Preschool: Once a Wartime Necessity, Now a Fundamental Step Towards Educational Equity
Full text linkThe most vital time for cognitive development is the first five years of a child’s life, impacting everything from language skills to social and emotional abilities. This makes access to high-quality universal preschool a necessity, as increasingly more families are without stable childcare in America. Preschool tuition now averages $10,000 annually and without paid parental leave, millions of children are left without formal learning or adequate supervision before kindergarten. This disproportionately impacts Black and brown students and students with disabilities, while continuing cycles of poverty and the gender wage gap. The only time the U.S. government provided high-quality universal preschool was during World War II to encourage mothers to work in factories to support wartime efforts. This Note advocates for policy solutions to provide every child access to free preschool in the United States. The Note argues that investing in universal preschool benefits not only the child, but the entire family and society as a whole. The analysis highlights a feminist lens, a race-conscious lens, a disability centered lens, all under a greater critique of American capitalism. This Note proposes Congress use Title I funding to incentivize states to mandate K-12 public schools expand to include universal preschool in a P-12 system. Alternatively, the Note suggests bringing an equal protection claim on behalf of child-rearing parents against states that refuse to provide universal preschool. This Note also identifies other policy recommendations to incentivize teachers to become early child educators and increase outreach to families to dismantle systemic barriers to accessing preschool