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Fetch the Bolt Cutters: Reflections on Racial Capitalism and the NAFTA/USMCA
Full text linkUsing the pecan orchards of West Texas as a starting point, this Article offers a reflection on the utility of racial capitalism as an organizing frame for understanding international trade and trade agreements. The Article is also a tribute to other scholars in this field, whose work long precedes and informs my own. It is an expanded version of a presentation given for an symposium at Brooklyn Law School in October 2023 on Promises and Challenges for the Future of North American Trade, and it is written for readers who may be unfamiliar with this body of work
Balancing Preservation with Growth: How Less Judicial Deference to Decisions Made by the Landmarks Preservation Commission Can Save New York City
Full text linkThe New York City Landmarks Law of 1965, envisioning the preservation of historical treasures, empowered the New York City Landmarks Preservation Commission (LPC) with the authority to designate and regulate landmarks and historic districts. Originally established in response to public outcry over the loss of iconic architectural structures, the LPC aimed to safeguard the city\u27s cultural, social, and architectural legacy. However, this note contends that recent LPC decisions, particularly the issuance of Certificates of Appropriateness for luxury residential construction involving partial demolition of landmarks, betray the original preservation goals. Delving into the legal recourse available under the New York Civil Practice Law and Rule Article 78, this note argues that the current level of judicial deference granted to the LPC demands reconsideration. Proposing the adoption of a hard-look approach, developed in response to concerns about regulatory capture in federal agencies, this note suggests that a heightened standard is imperative to counteract the alleged capture of the LPC by influential real estate developers, prevent unnecessary landmark destruction, and mitigate the commission\u27s role in exacerbating the housing crisis and accelerating gentrification
Outlier on LGBTQ Rights: Japanese Ban on Same-Sex Marriage and its Contradiction in the Age of Globalization
Full text linkJapan is the only Group of Seven country yet to recognize same-sex marriage. Despite strong public support for marriage equality, the conservative dominance of the Japanese legislature and the Japanese courts’ deferential approach have stalled the change. This Note will analyze the legal issues and implications of Japan’s failure to recognize same-sex marriage and Japan’s worldwide inheritance tax regime, with an emphasis on cross-border succession and estate planning. Specifically, the Note argues that the United States, as the only country with which Japan has a treaty in estate, inheritance, and gift tax, should renegotiate the treaty as it could have discriminative impacts on property interests of the US citizens
Puerto Rican Presidential Voting Rights: Why Precedent Should Be Overturned, and Other Options for Suffrage
Full text linkThe United States has continued to hold Puerto Rico as a colony, much like the British empire did the US colonies, and has given it no clear path to incorporation, statehood, or independent sovereignty. It has also denied its citizens the right to vote for their president and have voting representation in Congress. Current case law regarding Puerto Rican presidential voting rights and voting representation in Congress rests on precedent that dates almost as far back as its acquisition—the infamous Insular Cases. This case law is inconsistent with prior precedent, constitutional principles, and does not account for Puerto Rico’s contributions and deep entanglement with the United States. Neither does it account for the modern-day relationship between the United States and Puerto Rico. Moreover, the United States’s continued denial of full voting rights and representation to Puerto Rico and its residents is wholly inconsistent to the principles of its founding. Many articles and scholars have evaluated the arbitrary standards set out in the Insular Cases as they apply to Puerto Rican citizens and their right, or lack thereof, to a presidential vote and a voting member of Congress. It has been proven time and time again that the factors present at the time of their decision are no longer in place today. Although there is much advocacy to overturn the Insular Cases, not much has been proposed by way of which specific issues to overturn within the cases, nor other viable options for suffrage presented and evaluated altogether in one article. This article does just that—it proposes that the precedent set forth in 1901, and regrettably affirmed in 2022, regarding the incorporated or unincorporated status of territories and subsequent legal ramifications, be abandoned and overturned. This article also proposes three other solutions in granting Puerto Rican residents the right to cast presidential votes and have voting representation in Congress. Since the devastation that the Puerto Rican people have faced in the last decade of natural disaster after natural disaster, a discussion on these topics is more critical now than ever. A resolution in the law is needed to account for a just and fully representative system for all our citizens
Emerging Technologies and Perfection of Security Interests: A Financial University of Uncertainty
Full text linkSince the founding of Bitcoin in 2009, digital assets, such as cryptocurrency, have exploded in popularity. Cryptocurrency has been associated with stories of immense profit and immense loss. The lucky transactors have been able to capitalize on the price fluctuations of cryptocurrency, while the unlucky transactors became victims of the same volatility, losing tremendous amounts of money. The novelty and ingenuity of cryptocurrency has been coupled with mass confusion to transactors and regulators alike. These early days of cryptocurrency have been characterized by a sort of regulatory tug of war that is a direct result of confusion of what cryptocurrency is and whether it can be woven into the existing lending framework with respect to secured transactions. This note explores the current attempts to weave cryptocurrency into secured lending practices, which have traditionally been governed under Uniform Commercial Code Article 9. However, it is clear that digital assets and cryptocurrency do not fit seamlessly into these existing mechanisms. Therefore, this note proposes that cryptocurrency should be classified and regulated using a combination of existing ideas and practices that remain cognizant of the asset’s differences and novelty. It specifically proposes that it should be categorized under Article 12 of the UCC and that the Securities and Exchange Commission and Commodity Futures Trading Commission should jointly create a Self-Regulatory Organization to regulate it
South Africa Land Reform: More Is Less
Full text linkIn 2019, South Africa\u27s Parliament considered a bill to amend the Constitution and expropriate land taken from black South Africans during Apartheid. The bill did not pass, despite a general consensus in the country that land reform is needed (Part I). Thus, lawmakers are challenged by exactly how to achieve equitable land reform for South Africa. This paper looks to the language of the proposed amendment and offers improvements alongside accepted U.S. legal frameworks (Part II). By comparing Just Compensation under the Takings Clause of the United States Constitution and South Africa\u27s proposed expropriation amendment, this paper advocates for clear legislation that embraces binary directives (Part III). As South Africa pursues a more just future, land reform will resurface. Law makers would do well to take a more narrow and focused approach that safeguards private property rights while allowing for equitable redistribution of land
The Good Officer: President Trump, General Milley, and the “Necessity” of Constitutional Fidelity
Full text linkActions taken by General Mark Milley, the former Chairman of the Joint Chiefs of Staff, to prevent an abuse of presidential power during the waning days of the Trump administration prompted a range of reactions and concerns. This Article leverages these events to explore the circumstances under which a member of the armed forces or senior executive branch official may have a moral or legal right or duty to disobey presidential orders or authorizations that entail a clear violation of the Constitution or federal laws, or that abuse lawful authorities in ways that would subvert the Constitution’s text or vital principles. Further, this Article proposes a theory of necessity grounded in one’s oath to support and defend the Constitution—a necessity of constitutional fidelity—to guide officials faced with the constitutional dilemma of an elected Chief Executive and Commander-in-Chief contemplating a clear and obvious abuse of power. Although there is a growing literature addressing intra-executive branch bureaucratic resistance to questionable presidential policies, this Article seeks to stimulate a more robust conversation regarding the circumstances under which such resistance should become outright disobedience or defiance
Liberty and Equality Under the First Amendment: Scrutinizing Book Bans Through an Equal Protection Framework
Full text linkWhile the constitutional text refers only to liberty, equality has been recognized as an implicit principle of the First Amendment. The guarantee of free speech ensures an equal opportunity for every voice to be heard. As school book bans proliferate, the consistent targeting of titles containing themes of race or LGBTQIA+ identity reveals a discriminatory motivation on the part of state actors. The resultant infringement on students’ right to receive information, as well as the unequal treatment of particularly-themed content would seemingly run afoul of both the First Amendment and the Equal Protection Clause. Given the broad discretion granted to schools when prescribing educational offerings suitable for student use, content-based restrictions in public schools are afforded greater lenience by the courts. Although school boards are expected to implement restrictions whilst adhering to established First Amendment principles, under the standard set forth in Board of Education v. Pico, a school may justify its removal of a book by merely demonstrating that the title lacks “educational suitability” or is “pervasively vulgar.” The lax nature of this standard has inadvertently created a loophole by which school boards can justify censorship through weak and subjective rationale. This Note argues that the Supreme Court should reexamine the holding in Pico to better address First Amendment concerns with regard to book bans in public school libraries. More specifically, the Court should utilize the tiered scrutiny framework of equal protection analysis to provide more clarity when determining whether a book may be removed beyond a mere consideration of the “educational suitability” of the material