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Why Flexibility Matters: Inequality and Contract Pluralism
Full text linkIn the decade since the Great Recession, various contract scholars have observed that one reason the financial crisis was so “great” was due in part to contract law—or, more precisely, the failures of contract law for not curbing the risky lending practices in the American housing market. However, there is another reason why contracts made that recession so great: contracts furthered inequality. In recent years, when economic inequality has become a dominant national conversation topic, we can see development of that inequality in the Great Recession. And indeed, contract law was complicit. While contractual flexibility and innovation were available to soften the blow of large commercial deals gone wrong during the crisis, residential mortgage defaults across the U.S. were subject to strict contractual formalism that led to severe consequences for those pursuing one of the hallmark prizes of the American Dream, homeownership. Specifically, cases during the Great Recession featured commercial parties relying on the gravity of the Great Recession as the reason why their contract breaches ought to be excused through doctrines such as impracticability. Although impracticability defenses premised on economic changes are usually unconvincing, commercial claimants during the Great Recession had some surprising successes and advantages in taking such positions. Meanwhile, hundreds of thousands of homeowners, whose abilities to honor their mortgage agreements were also hindered by the economic downturn, could not predicate their defaults on the crisis and get away with it. Instead, they were subject to rigid contract formalism. The entitlement to flexible and innovative excuse arguments seemed particularly exclusive to commercial claimants during the Great Recession. And contract law helped sustain that exclusivity. Therein lies the inequality.
This Article’s ultimate goal is not to argue, like others already have, for the efficacy of expanding contract excuse doctrines in significant times of crisis. Instead, the heart of this Article’s investigation examines, using the example of impracticability arguments during the Great Recession, why commercial parties had more access to flexibility in contracts than others in order to point out how it resonates societally for contracts. Modern contract law furthered inequality when it could have been more instrumental in advancing social mobility and economic opportunity. Thus, this Article’s observations ultimately support the idea that rather than formalism, contract pluralism ought to be adopted in order to give contracts a more meaningful role in furthering a fair and just society
Adverse Modification of the Endangered Species Act: Regulatory Impediment or Tool?
Full text linkIn the past, the agencies charged with the implementation of the Endangered Species Act have shirked invoking the full range of regulatory tools at their disposal. They altered the structure of the Act in violation of Congressionally-granted authority to better accommodate both developmental and conservation interests. After a string of critical judicial decisions, the Services finally changed their implementation of the Act to parallel the protections envisioned by Congress. Though these changes will shift strength between provisions within the Act, they will not drastically alter the status quo by allowing the Services discretion in making judgments regarding the recovery of listed species and value of cost-benefit analysis
Keeping More than One Fish in the Sea: Why the Magnuson-Stevens Act Should Be Reauthorized
Full text linkThe American fishing industry has long been an important part of the economy. In time, overfishing led to restrictions on the industry through the Magnuson-Stevens Act. However, the Act has led to severe curtailments on fishing that have severely hampered the industry. This caused particular harm to the Northeast, resulting in a federally declared fishing disaster. This Note argues that the recently proposed revisions to the Magnuson-Stevens Act allow for a balance between protecting our oceans and allowing the fishing industry to thrive again. This would help the Northeast fishing industry properly recover while preventing any further tragedies of the common in the region
Keep Out! The Efficacy of Trespass, Nuisance and Privacy Torts as Applied to Drones
Full text linkThe drone industry is burgeoning and there is boundless excitement over the potential civil and commercial applications of these aerial observers. Drones are also fun recreational toys that have more capabilities than their predecessor - the remote controlled helicopter. But along with the benefits comes the potential for misuse. More and more frequently concerned spectators are reporting drones flying around the windows of homes, backyards, and at beaches and sporting events. In some places people are even shooting them down. We have entered a new frontier of aerial observation with the unmanned aircraft. As is often the case with new technology, drones (or unmanned aircraft systems as they are commonly referred) are outpacing the law. Controversies over whether a drone can hover above one’s property, capture images of those on the ground without consent, destroy a drone that is invading one\u27s privacy are ripe legal issues. The question being asked by lawmakers, practitioners, journalists, and the general public is whether existing laws provide adequate remedies or whether this technology falls through a legal gap? This article sets out to answer that question at a time when lawmakers are feverishly proposing drone specific legislation, possibly duplicating laws already in place. At present, 45 states have considered legislation seeking to regulate drones. Twenty-five states have passed laws that limit the use of drones. The majority of these laws include civil causes of action for capturing images and recordings of individuals by a drone without consent. Before more incidents ripen in to lawsuits, we need to evaluate whether our long-standing common law torts - trespass, nuisance, intrusion upon seclusion, and publication of private facts, offer remedies of equal or greater value than the drone specific legislation being considered. To the extent that common law torts fall short of providing adequate remedies at law, understanding their shortcomings will strengthen future drone legislation
Crime Spectators and the Tort of Objectification
Full text linkReports of how some bystanders interact with victims on the scene of an emergency are shocking. Instead of assisting or calling for help, these individuals take pictures or recordings of the victims on their cell phones. This Article concentrates on the question of whether such an interaction with a victim might in certain circumstances constitute a distinct and legally actionable harm. This Article proposes a new tort: exploitative objectification of a person in need of emergency assistance. It works to articulate the moral and legal foundations for an argument that treating a person in need of emergency assistance as an object of amusement should be considered a legally cognizable harm. Cognizant of concerns about over-breadth and moral overload, it clearly distinguishes between those who cross the line of engaging the scene and the victim (“engaged spectators”) and those who do not (“pure bystanders”). It argues for ample space for discretion in the decision whether to engage, respecting subjective assessments of risks and priorities as grounded in the emotional and interior life of the bystander
The Role of Religiously Affiliated Law Schools in the Renewal of American Democracy
Full text linkAmerican Democracy has broken down. This crisis was on dramatic display in the 2016 Presidential Campaign. Americans are resentful, distrustful and pessimistic. We find it easy to blame “the other side” for the deadlock, mendacity and irresponsibility in American public life. By virtue of their public role, American law schools have an obligation to address the breakdown in order to understand and try to ameliorate it. That task is currently unfulfilled by law schools individually and collectively. They are distracted by marketing and pedagogy. Religious law schools, which retain the traits of normative discourse, mission, Truth and tragic limit to a greater extent than do secular schools, could assume responsibility for the health of American democracy. These schools could begin consideration of the spiritual sources of the nihilism in this culture. There are legitimate theological objections to playing this public role in a rapidly secularizing society. But if these objections are overcome, not only might American Democracy be renewed, so might religion itself
It’s Not Complicated: Containing Criminal Law’s Influence on the Title IX Process
Full text linkTitle IX processes that address campus sexual assault are undergoing dramatic changes in structure as well as in review. After receipt of the Department of Education’s 2011 “Dear Colleague” letter, colleges and universities were impelled to review how their institutions were implementing Title IX. From website information through decision making on alleged violations, the ways in which higher education addresses federally guided changes is a matter of national conversation. This essay addresses change in light of campus sexual assault allegations, and does not explicitly address other forms of Title IX complaints, such as athletic funding and opportunities. This essay will limit discussion to sexual harassment and sexual discrimination Title IX claims only, particularly, sexual assault.
The primary topic of ongoing concern is how Title IX investigations and hearing processes are conducted. Review, and in some cases revision, of campus policies was prompted by two interconnected influences. The first was the referenced letter from the Department of Education, and the second was due process and other criticism by those who advocate within the criminal justice framework. This essay explores the impact that criminal law and criminal lawyers have had on the Title IX processes. Part of this exploration will include the recently released ABA Criminal Justice Section’s recommendations on how Title IX sexual harassment complaints should be handled. Unknown at the time of this writing is whether the administration will be influenced by these recommendations. As of this publication Secretary DeVos has met with representative survivors and their advocates, as well as those who claim to have been wrongfully accused. At a minimum we know that the topic has her attention. As this publication goes to print, Secretary DeVos has requested comments on de-regulation in “Enforcing the Regulatory Reform Agenda.” We can anticipate change, when and what is undetermined at this time.
Incorporated throughout this discussion will be the complications, as well as changes, that develop when the Title IX process is viewed through a criminal justice lens. Particularly explored, is how the stereotypes regarding women’s credibility forms the foundation of challenges faced by survivors of sexual assault who seek relief. The last section of this essay addresses proposed recommendations to address the needs of those accused as well as protecting the harmed student
Law as Instrumentality
Full text linkOur conceptions of law affect how we objectify the law and ultimately how we study it. Despite a century’s worth of theoretical progress in American law—from legal realism to critical legal studies movements and postmodernism—the formalist conception of “law as science,” as promulgated by Christopher Langdell at Harvard Law School in the late-nineteenth century, still influences methodologies in American legal education. Subsequent movements of legal thought, however, have revealed that the law is neither scientific nor “objective” in the way the Langdellian formalists once envisioned. After all, the Langdellian scientific objectivity of law itself reflected the dominant class, gender, power, and race of its nineteenth-century progenitors. Thus, by sustaining the illusion of scientific objectivity, the continued application of Langdellian pedagogy distorts our understandings of law and abridges individual explorations of pluralism, subjectivity, justice, and empowerment. Such inaccurate but prevailing notions of neutrality in law leads to both disenchantment and hierarchy in practice, but, worse, it also distracts from meanings of law that would otherwise have led to empowerment and critique. In this way, legal scholars have clamored for a post-Langdellian legal conception to enable us to reach more relevant and emboldened meanings in law. Prompted by such calls amidst the post-Recession crisis in the American legal academy, this Article offers such a new conception for theorizing meanings in law by locating law within its instrumentalities. “Law as instrumentality” obtains meaning by accepting law’s fragmentation and then observing, from fragmentation, the characteristics of its agency. The law is not a science; but it does embody human-made qualities of agency. This new instrumentality conception studies law’s deliberate aesthetics as a way to explore law ontologically and critique its goals, its devices, its intentions, its significances, and its teleologies. From this conception, a broader methodology can arise to bring about a more relevant and empowering understanding of law to those who render law to life
Find out What it Means to Me: The Politics of Respect and Dignity in Sexual Orientation Anti-Discrimination
Full text linkThis accompanying article considers the state of LGBTQ equality after the Supreme Court’s decision in Obergefell v. Hodges in 2015. Specifically, by examining this upsurge of social visibility for same-sex couples as both acceptance of sexual minorities and cultural assimilation, the article finds that the marriage cases at the Supreme Court — Obergefell and U.S. v. Windsor — shifted the framing of gay rights from the politics of respect that appeared more than a decade ago in Lawrence v. Texas toward a politics of respectability. The article traces this regression in Justice Kennedy’s own definition of dignity from Lawrence, where he approached dignity concepts as an inherent respect for sexual identity and private choices, to his definition of dignity in the marriage cases, where he viewed dignity in terms of respectability — as something not inherent but earned by conforming to the norms of a dominant culture. To be sure, marriage equality significantly furthered the rights of same-sex couples. Yet, in order to make larger advances for sexual orientation anti-discrimination protections — such as explicit protections under Title VII — the framing of gay rights must return to the politics of respect. This article proposes ways to undo the respectability politics of Obergefell so that future movements toward sexual orientation anti-discrimination can be accomplished by latching onto the doctrinal successes of the marriage equality movement but detaching from connotations of respectability
Good Cause is Bad News: How the Good Cause Standard for Record Access Impacts Adult Adoptees Seeking Personal Information and a Proposal for Reform
Full text linkThere are many hurdles that adult adoptees face when seeking access to personal information contained in original birth records or adoption proceedings. One such hurdle is the widely-used good cause standard, which requires adoptees seeking information to show good cause to obtain access. This standard is problematic primarily for its vagueness. Very few jurisdictions that use this standard define “good cause” in any meaningful way, and case law interpreting good cause statutory language is inconsistent at best. Although it is meant to protect the privacy interests of all parties in an adoption proceeding, the good cause standard acts as a barrier to those seeking information about their history. While recognizing that progressive legislative solutions are ideal, this Note proposes to shift the burden in jurisdictions where the good cause standard still applies; courts should be required to show good cause to keep records sealed, consistent with other areas of records access and first amendment jurisprudence