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Federal Officer Criminal Case Removal
Full text linkRecent events have brought the federal officer removal statute to the fore. The statute allows a defendant to remove a criminal prosecution to federal court, provided that the allegedly criminal behavior was performed by the defendant as a federal officer under color of office and provided that the defendant has a federal defense. Current litigation has exposed several open, important questions under the statute, which this Article confronts. On the question of who qualifies as an “officer” who can remove under the statute, it argues that removal is available both to former officers and to presidents. On the question of how to determine whether prosecution of an inchoate crime—such as conspiracy—is removable, it invokes Supreme Court precedent to argue that the key inquiry is whether the officer’s official duties are essential to the alleged criminal conduct, but it also notes that a recent statutory amendment suggests even broader availability of removal.
The Article then turns to criminal cases with multiple charges and multiple defendants. It argues that a defendant must justify removal of each charge under the statute separately; a charge without an independent basis for removal should remain in state court. In a case with multiple defendants, each defendant should be treated separately. The acquiescence of co-defendants should not be required for federal officer removal. Moreover, the federal court should hear only the charges (appropriately removed) against that defendant; charges against other defendants should remain in state court (absent a valid basis for removal for each charge)
The Revolution Continues: Revitalizing the Implied Warranty of Habitability with Presumed General Damages
Full text linkEmerging out of the tenants’ rights revolution, the implied warranty of habitability has been in effect for over fifty years. Its direct purpose is to provide relief to low-income renters living in substandard conditions who held no bargaining power within the housing market, and thus, could not ensure landlords provided safe and habitable conditions. Unfortunately, the landlord–tenant dynamic remains one of drastic inequality, and millions of low-income renters continue to live in substandard conditions. Most glaringly, the housing market reflects a worsening affordable housing crisis—a crisis that landlords have used to turn a profit. Thus, the very circumstances that gave rise to both the tenant revolution and the implied warranty remain in effect today. This time, the law can, and must, do more to ensure the implied warranty’s goals are realized.
In theory, the implied warranty provides tenants the right to a safe and habitable home. In practice, that right has not been recognized to the extent necessary. Ignoring tenant realities and failing to provide recourse when the basic right to adequate housing—or human dignity—is breached is inexcusable. The result has allowed landlords not only to violate the law without consequences but also to exploit the unfair advantages the law provides them. Therefore, while the right to a habitable home has been established, what must be done now is ensure access to and enforcement of that right.
As a means of enforcement, this Comment argues for courts, legislatures, or both to implement presumed general damages for meritorious habitability claims. Although the American legal and economic systems favor “the owner’s” property interest, this Comment will show how a more forceful implied warranty better reflects its original equitable purpose and fits within traditional legal and economic analysis. Along the way, it will critique mainstream ideals and portray how disparate impacts are ignored by relying on the underlying assumptions of these ideals
Safety Whistleblowing
Full text linkWhen companies fail to do the right thing, critical safety-law violations often go unchecked. Using previously unstudied records, this Article provides the first critique of a core component of the federal consumer product safety whistleblower regime created by Congress in 2008.
This Article reveals why and how the current law—which provides protections only to employee-whistleblowers who are retaliated against—has failed to protect consumers from death and injury. First, documents obtained via the Freedom of Information Act provide evidence suggesting that the current program fails on its own terms. Very few workers have filed complaints; the number of successful complaints is minuscule; and agency investigations fixate on the employee’s conduct, virtually never examining underlying safety claims. Moreover, there is no evidence that the program has ever resulted in the removal of a hazardous product from the market or the imposition of a penalty against a corporate violator. Second, and more fundamentally, the current narrow regime fails to provide any financial incentive to blow the whistle on corporate flouting of product-safety law. Many employees with valuable information about safety-law violations (i) are not in fact retaliated against and (ii) face powerful inducements not to report, leaving safety regulators and consumers in the dark.
To address these critical gaps, this Article proposes a comprehensive reform of the whistleblower program. First, to deter and detect corporate safety misconduct effectively, Congress should transfer oversight of the product-safety whistleblower program from the Occupational Safety and Health Administration, an agency ill-equipped to examine product safety, to the U.S. Consumer Product Safety Commission, which has the expertise, enforcement power, and statutory mission to protect consumers. Second, Congress should incentivize safety whistleblowing via rewards for high-impact tips. Such a bounty program would account for whistleblowing’s value as a crucial backstop to federal safety law’s reliance on industry self-reporting. Third, antiretaliation protections should be strengthened to expand remedies for workers targeted for revealing crucial safety information. Finally, Congress should amend the statute to account for modern-day economic realities, including the dominance of consumer-product imports and the rise of non-employees as knowledgeable tipsters. Together, these reforms would protect both American consumers and workers from corporate misconduct
La Vie Continue: Legal Recognition as a Gateway to Sustainable Cross-Border Investments Between China and the U.S.
Full text linkThe Variable Interest Entity (VIE) structure is a network of contracts that connects the shell company listed on U.S. exchanges to the operating company in China. In 2000, Chinese enterprises first created the VIE structure to circumvent stringent PRC regulations and gain direct access to capital markets overseas. However, despite its strategic utility, the VIE structure has remained in a regulatory gray area. While the VIE contracts effectively mimic equity control, they face an uncertain reception from the PRC government, posing significant risks to U.S. investors.
Following the Luckin Coffee fraud scandal in 2020, the U.S. government passed the Holding Foreign Companies Accountable Act (HFCAA) as its first attempt to address the risks associated with VIE-structured Chinese companies. But the HFCAA has faced criticism for its limited effectiveness. Meanwhile, within China, court judgments, arbitration awards, and administrative decisions have sent mixed signals regarding the VIE structure, ranging from prohibition to neutrality and subtle encouragement. Together, these mixed signals convey a clear message: a complete ban on the VIE structure, as suggested by some experts, is not optimal for the PRC.
With a deeper understanding of the VIE structure’s legality, U.S. investors can better anticipate and adapt to changes that may impact their investments. This Comment predicts that the PRC government will recognize the legality of the VIE structure in the near future and suggests that this should be done through legislative means without further hesitation. Prompt legal recognition of the VIE structure through amending pertinent regulations will pave the way for China and the U.S. to establish a regulatory framework that promotes stability, enhances transparency, and fosters sustained growth in cross-border investments
Farewell, Feres: Does the Camp Lejeune Justice Act Overturn the Feres Doctrine?
Full text linkIn 1950, the Supreme Court held in Feres v. United States that soldiers cannot sue the government for injuries incurred “incident to service.” This holding set a precedent for denying suits by injured soldiers and their families, and the precedent became known as the Feres Doctrine. Over time, the Feres Doctrine has been expanded and abused to universally dismiss lawsuits by soldiers for negligence, medical malpractice, sexual assault, and intentional torts including sexual assault. Because the original decision did not adequately define “incident to service,” the Feres doctrine has been applied differently in different judicial circuits, causing confusion and drawing ire from legislators, judges, and Justices alike.
In 2022, the Feres Doctrine was dealt two significant legal blows. First, Congress passed the Camp Lejeune Justice Act (Lejeune Act), allowing soldiers negligently injured by toxic water at Camp Lejeune to sue the government. Second, the Ninth Circuit decided Spletstoser v. Hyten, which both allowed a survivor of military sexual trauma to sue the government and held that sexual assault is not incident to service. This Comment argues that, because soldiers are allowed to sue for negligence under the Lejeune Act and for sexual assault under Spletstoser, neither negligence and subsequent medical problems nor sexual assault are incident to service.
Today, the combination of the Lejeune Act and Spletstoser results in a severely curtailed Feres Doctrine. This is because, under both the Lejeune Act and Spletstoser, the only lawsuits still barred by Feres are suits for other intentional torts, which is far narrower than the Doctrine’s original purpose of barring all Federal Tort Claims Act suits by soldiers. Thus, Feres is ripe for reconsideration and abandonment because of the confusion it brings upon courts and because a majority of Feres’s founding legal precedent has been overturned. The combination of the Lejeune Act and Spletstoser provides the ideal opportunity to fully revisit the Feres Doctrine. This reconsideration is necessary to open the courthouse doors to thousands of wrongfully injured and deceased soldiers who have been unjustly silenced and denied their day in court
Federalism, State Action, and Workers’ Medical Privacy
Full text linkInjured workers entering state workers’ compensation systems effectively forego their medical privacy. This is due to widespread judicial misinterpretation of the HIPAA Privacy Rule (HPR) as excluding injured workers from federal medical privacy protections. As a result, medical privacy for workers’ compensation claims is effectively governed by state law. This Article argues that states have failed to protect the medical privacy of injured workers adequately and that there is a pressing need for legislative reform. The Article presents the first comprehensive survey in the legal literature of state action protecting the medical privacy of injured workers. Part I describes the data collection, including the methodology used and an overview of the results. Part II examines state response in three areas: scope of information protected, ex parte communications, and protective orders for disclosures. Detailed survey results are presented in the Appendix. Part III describes best practices among the states and provides proposals for legislative change, including the adoption of the HPR’s standards as a floor for medical privacy protections, or, alternatively, more state statutory protections to limit disclosures. I conclude by summarizing the implications of this work
Chapter 11 Mediation
Full text linkMediation has become an increasingly popular and powerful tool in chapter 11 reorganizations, especially in large cases. Despite its widespread and growing use, mediation in chapter 11 is under-studied. This Article begins to fill this gap in the literature by critically assessing mediation, a form of largely private dealmaking, in the context of a bankruptcy process that is supposed to be largely public. The Article begins by discussing mediation’s popularity within the bankruptcy process before turning to a review of issues that have arisen in recent cases, providing a critical assessment of mediation’s promise and perils. In particular, the Article examines the role mediation can play in providing—or, in some cases, denying—different groups equitable access to bankruptcy dealmaking. The Article then offers suggestions for ways that courts can provide more guidance as to the use of mediation practice and the choice of mediators and concludes with some thoughts on how this private dealmaking process must evolve to better coexist with the public nature of a bankruptcy proceeding
The Protection of “Style” Under Copyright and Its Application to Generative Artificial Intelligence
Full text linkSince it began to pick up steam in the mid-2010s, generative Artificial Intelligence (AI) has quickly developed breathtaking capabilities. It has found applications in a great variety of industries, and in the last couple of years it has developed to the point where it has captured public attention by producing artistic works that match the quality of human-made works. While bringing great advantages, this development is not without concern, especially within the artistic community. Much has been made of the use of artists’ works in training generative AI, the likely replacement of artists with AI models, and the threat these pose to artists’ livelihoods. Unfortunately for artists, copyright law provides practically no restrictions on the use of their works in training AI or on the replication of their artistic styles in AI-generated works.
This Comment proposes using copyright law to address some of these concerns, without significantly inhibiting the progress brought by AI. After first providing a background of copyright law and generative AI, this Comment surveys the inadequate theories of infringement put forth by plaintiff-artists in recent AI-related copyright litigation. It then gives a much-needed definition to artistic style and shows that style can, and should, be protected under existing copyright law. Finally, this Comment proposes a three-step test for style infringement that follows the established copyright infringement test. The proposed test, like the established test, begins with copying-in-fact and ends with substantial similarity. An intermediate step ensures that the protection of style does not overreach and interfere with AI-produced works that do not specifically attempt to replicate an artist’s style. This test borrows theories from character copyright to slightly expand copyright law and protect artistic style—a protection that is sorely needed in the rapidly evolving area of generative AI
Health is Wealth: Strengthening Plaintiffs’ Ability to Confer Standing in Health Information Data Breach Cases
Full text linkIndividuals’ health information is increasingly at risk of data breaches as healthcare providers adopt health information technologies and individuals use digital devices and applications to log their health data. The frequency of data breaches involving health information has escalated year after year, and, as a result, more individuals are seeking recourse in federal court. To proceed in federal court, however, these individuals must have Article III standing, and meeting the injury-in-fact requirement to confer standing has been a difficult hurdle for plaintiffs in data breach cases to overcome. Federal courts have narrowly interpreted what constitutes a concrete harm stemming from data breaches, disregarding the noneconomic harms faced by plaintiffs and focusing almost exclusively on economic harms, such as identity theft and credit card fraud, as sufficient to constitute an injury-in-fact. This narrow interpretation fails to acknowledge the sensitive, immutable nature of individuals’ health information and threatens individuals’ ability to enforce privacy rights.
This Comment argues that federal courts should broaden their interpretation of injury-in-fact in data breach cases involving protected health information. It proposes that federal courts shift their analytical framework for evaluating injury-in-fact by expanding their recognition of intangible harms that result from both the threat of misuse of compromised data and the mere fact that the data has been compromised. Moreover, Congress should amend HIPAA to include a private right of action, and the U.S. Department of Health and Human Services should broaden the definition of entities that must comply with HIPAA regulations. These measures will empower victims of data breaches to seek redress for harms stemming from their exposed health data, enforcing their right to privacy