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A Yellow Light for New York’s Red Flag Law in Criminal Prosecutions: Contextualizing the Fruits of New York Extreme Risk Protection Orders
Full text linkPublic concern over gun violence grabs the news headlines, highlighting mass shootings at schools and suicide rates, amongst other gun-related problems. Twenty-three states in the United States turned to red flag laws to proactively address these gun violence issues. New York is one such state. The crux of New York’s Red Flag Law is the extreme risk protection order (ERPO), which is a civil court order that prevents respondents to ERPO proceedings from possessing or attempting to possess a firearm, rifle, or shotgun for up to one year. This civil court order, however, could slip into the realm of criminal law if an ERPO search or surrender of weapons leads law enforcement to discover an illegal weapon. ERPO respondents, foreseeing potential criminal implications of the ERPO, have challenged the New York statute in state courts, arguing that the firearm, rifle, or shotgun search and surrender processes are unconstitutional. In terms of the search process, challenges stem from questions over whether the current statute allows for unreasonable searches under the US Constitution’s Fourth Amendment and New York State Constitution’s Article I, Section 12. Concerns over the surrender process center on whether the requirement that a respondent list what firearms they possess to law enforcement officers violates the Fifth Amendment right against self-incrimination. This Note proposes that to ensure New Yorkers constitutional rights are protected, the ERPO statute should be amended so the search process clearly conforms with New York’s Criminal Procedure Law. Further, law enforcement and ERPO respondents alike should be better informed about when the fruits of an ERPO can lawfully prompt a criminal prosecution, protecting the right against self-incrimination. With these changes, ERPOs would have the potential to reduce gun violence while still supporting criminal prosecutions in limited situations where respondents are fully informed and fully protected by the law
SILENT SUFFERING: DEMANDING INDIVIDUAL ACCOUNTABILITY FOR SEXUAL ASSAULT AGAINST DISABLED CHILDREN IN SCHOOL ENVIRONMENTS
Full text linkDisabled children are among the most vulnerable in society, particularly in school environments where they depend on the actions and care of others for their safety. These children face significantly higher risks of sexual abuse than their non-disabled peers, and school officials\u27 negligence can exacerbate this danger. Despite the prevalence of such cases, the Fifth Circuit\u27s refusal to recognize school officials’ liability under the state-created danger doctrine, as seen in Fisher v. Moore, deprives disabled children of adequate legal recourse under 42 U.S.C. § 1983. The decision holds that school officials cannot be held personally liable for the peer-inflicted sexual assault of a child under their supervision—a troubling outcome for parents in Texas, Louisiana, and Mississippi. This Note critically examines the legal framework of § 1983 and the state-created danger doctrine, focusing on the reluctance of the Fifth Circuit and other courts to apply this theory of liability to cases involving sexual assault of disabled children in schools. Through an analysis of Fisher v. Moore and related precedents, it highlights the insufficient protections for disabled children and the limitations of Title IX as a remedy for peer-inflicted sexual violence. Ultimately, this Note advocates for amending § 1983 to hold negligent school officials individually accountable and better protect disabled students from sexual assault
PROPERTY RIGHTS OR OBSTACLES TO PROGRESS?: THE FUNDAMENTAL FLAWS IN TAKINGS JURISPRUDENCE
Full text linkNew York boasts some of the strongest protections for tenants out of all jurisdictions throughout the country. Chief among these laws is the state Rent Stabilization Law (“RSL”). Among other protections, the RSL has limited excessive rent increases on regulated apartments, granted tenants a right of renewal so that they could remain in their homes, and permitted family members to take over the tenancy of their loved ones upon their passing. The RSL has been amended several times throughout its history, each time providing more or less protections depending on the administration at the time. Recently, in 2019, the New York State Legislature passed the Housing Stability and Tenant Protection Act (“HSTPA”), a comprehensive reform act which brought back several key provisions of the RSL that had been dismantled by previous administrations. In response to the restored protections, several landlord groups challenged core provisions of the RSL as both regulatory and per se physical takings. This Note explores the history and jurisprudence of both regulatory and per se physical takings in order to make sense of the “muddled” doctrine behind these concepts, applies takings precedents to the challenged provisions of the RSL, and discusses the dangerous policy implications of the Court’s prioritization of wealthy landowners’ property rights over the general welfare. Ultimately, this Note advocates for eliminating regulatory and per se physical takings outside of a highly limited set of circumstances, and proposes a two-part, deferential due process test for evaluating when regulations affecting property rights are constitutional
What Should Caremark Encompass?
Full text linkUnder In re Caremark Int’l Inc. Derivative Litig., decided in 1996, directors are required to oversee corporate compliance and can be liable for breaching their fiduciary duties if their oversight efforts do not suffice. Since it was decided, Caremark has been very influential, notwithstanding its high bar to liability. Notably, its influence far exceeds the actual probability that directors would be found liable under the doctrine. Instead, much of Caremark’s force is “soft,” through extra-legal mechanisms such as norms and pressures from various constituencies. Caremark clearly covers oversight for violations of law or regulation. But what, beyond those two things, might Caremark encompass? What about ethical violations? Or business risk? This Article argues that an expansion of Caremark’s scope to cover some ethical violations and some business risks is consistent with well-established principles of Delaware corporate law. This argument has implications for broader debates on the role litigation should play in corporate governance and the duties corporations owe to society at large
I Ain\u27t Afraid of No Ghost…Kitchen! A New Realm of Consumer Protection After the INFORM Consumers Act
Full text linkThe effects of the COVID-19 pandemic were pervasive, sparing none from its impact. However, the restaurant industry bore an even greater change and a heavier burden than most. At the height of the pandemic, some 110,000 restaurants shut down. QR codes replaced paper menus, street parking transformed into outdoor dining sheds, and Friday night dinners at the “great spot on the corner” became takeout orders from the couch. Reopening was an unpredictable gamble for restaurant owners, fraught with tiered plans and inconsistent regulations on safe and unsafe dining practices. The desperate search for creative solutions to stay in business propelled the ‘ghost kitchen’ phenomenon, a market predicted to be worth one trillion dollars by 2030. The rapid growth of the ghost kitchen industry illustrates two critical points. First, public distrust of this new business model highlights the growing need for government regulation to protect consumer interests. Second, traditional regulatory frameworks are ill-prepared to protect consumers amid the growth of e-commerce transactions through marketplace platforms. This Note argues for regulating third-party delivery apps as market platforms under the Integrity, Notification, and Fairness in Online Retail Marketplaces for Consumers Act. Additionally, it advocates for directly regulating ghost kitchens under the ‘unfairness’ prong of the Federal Trade Commission’s consumer protection authority. Ultimately, this Note is a call to action. Our consumer protection framework has historically evolved in response to subsequent waves of public agitation against unfair commercial practices. Now is the time to renew public demand for regulations that prioritize consumer interests as e-commerce transactions proliferate across all sectors
Tax Law Analysis Applied to Section 1031 Exchanges & Proximate Business Transactions
Full text linkThe popularity of nonrecognition of gain under section 1031 of the Internal Revenue Code attracts advisors from several corners of the real estate industry, including real estate attorneys; real estate professionals, such as brokers; section 1031 qualified intermediaries; and tax advisors. The varying degrees of professional training often results in advice varying from one advisor to the next. Nowhere is this more apparent than with respect to so-called “drop-and-swap” and “swap-and-drop” transactions. Some advisors claim that property owners must hold property for a specific period of time before or after an exchange to qualify for section 1031 nonrecognition. Others advise property owners to hold property for some period of time as a precaution to help buoy up the support for claiming section 1031 nonrecognition. This Article presents an overview of tax law analysis and the authority that governs section 1031 exchanges that occur in proximity to business transactions, i.e., drop-and-swaps and swap-and-drops. The Article shows that very strong authority supports section 1031 nonrecognition even if an exchanger receives exchange property in a tax-free distribution from an entity immediately before an exchange or transfers replacement property as a tax-free contribution to an entity immediately following an exchange. The same cannot be said for advice to hold property for a specific period of time before or after an exchange. In fact, such advice runs the risk of exposing exchangers to other tax and non-tax risks and could expose advisors to advisory risk. Given the popularity of drop-and-swaps and swap-and-drops, it is important that advisors look to the law when providing advice and that they apply tax-law analysis when considering authorities in this area of the law
How Sovereign Wealth Investment May Fail to Enter the United States Sports Market: Investigating the Governance Restricting Sportswashing
Full text linkIn recent years, the world of sports has been disrupted by foreign nations engaging in human rights violations, masking their wrongdoings through sport-related investments. This practice, referred to as “sportswashing,” has negative impacts on both the sports industry at large and the individual victims whose suffering is perpetuated. Currently, there is no direct legislation preventing foreign investors from taking over sports franchises in the United States. However, the Committee on Foreign Investment in the United States, the United Nations, and sports leagues’ private regulations, each provide means to resist sportswashing. This Note analyzes the problem of sportswashing, the existing framework attempting to prevent it, and finally, proposes legislative reform and league action in the United States to address this moral responsibility and maintain an ethical standard in sports
Summary Eviction Proceedings as a Debt Collection Tool: How Landlords Use Serial Eviction Filings to Collect Rent
Full text linkThis note explores how landlords use housing court as a debt collection tool, impacting the rights of tenants and their ability to fairly adjudicate claims in summary eviction proceedings. Disparities in the number of evictions that are filed, as compared to evictions that are ultimately executed, indicate that landlords do not always use eviction proceedings to kick out a tenant, but rather as a method of debt collection. Using these proceedings in this manner affects a tenant’s ability to defend against eviction, even when the tenant has meritorious claims that their landlord did not provide a habitable apartment. This note argues that landlords are able to co-opt these eviction proceedings to use the court to obtain rental debt, which exacerbates the already asymmetrical power dynamic between the landlord and tenant. To solve this problem, this note proposes several solutions. First, it argues that because landlords use eviction proceedings as debt collection tools, the Fair Debt Collection Practices Act should apply. Second, it proposes a procedural requirement that landlords maintain a habitable apartment as a prerequisite to filing for eviction. Third, it suggests that prefiling alternatives to housing court can prevent this form of co-opting by moving rent disputes entirely out of housing court. Finally, in line with existing scholarship, it recognizes that access to counsel is vital. These changes will help alleviate the asymmetrical power dynamic that currently exists in housing court by allowing tenants to more fairly adjudicate claims against their landlord and prevent landlords from using the state as their debt collection tool