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Blind Spot in Plain Sight: The Need for Federal Intervention in the Sober Living Home Industry and the Path To Making It Happen
Get PDFThe United States federal government is fighting the nation’s addiction epidemic harder than ever before. Billions of federal dollars are invested each year in substance use disorder treatment and prevention in amounts that have more than doubled over the last decade—yet addiction is still winning, and winning big. Substance use disorder claimed the lives of a record-breaking nearly 160,000 Americans in 2019. One of the epidemic’s biggest obstacles has turned out to be within the nation’s substance use disorder treatment industry itself: fraudulent treatment providers are getting rich quick off a broken, unregulated system. This Comment discusses the sober living home industry, a place in the substance use disorder continuum of care where fraud and abuse are not only most pervasive, but also almost entirely beyond the bounds of government regulation. In 88% of states, anyone can legally open a sober living home facility with zero inspection or oversight. A rapidly growing influx of bad players takes advantage of this blind spot by luring in potential residents with patient brokering schemes, pocketing residents’ cash, and hiking up their insurance bills with excessively expensive and unnecessary drug tests. This Comment asserts that current federal and state attempts to intervene in the sober living industry have no teeth. Moreover, despite federalism-based objections, federal efforts, as opposed to solely-state based efforts, offer the only effective solution for meaningful intervention in the sober living industry. Yet, the anti-commandeering doctrine of the Tenth Amendment significantly hinders the federal government’s ability to regulate the industry. This Comment makes the case that the Commerce Clause provides an unusual, but not unheard of, path for the federal government to step into state health care sectors to eliminate the sober living industry’s bad players. Pursuant to its Commerce Clause authority, Congress can, and should, enact a federal law that creates minimum quality standards and accreditation requirements for operating a sober living home in the United States
Public Benefit Corporations: There\u27s No Public Benefit to Breaching Fiduciary Duties
Get PDFDuring the spring and summer of 2020, in the midst of the COVID-19 pandemic, the United States witnessed large, public protests and activism reminiscent of the 1950s and 60s. Following the death of George Floyd, a Black man, at the hands of Minneapolis police, the American public once again mobilized to fight the ills and inequities of racism and discrimination. A significant number of nonprofit organizations and government departments have been created to resolve the social and political issues that plague Americans. Even Corporate America has been called to act, given that seventy percent of consumers are interested in the social justice efforts taken by the corporations they patronize. By the third quarter of 2020, plenty of companies answered the call. For example, Bank of America and PNC Bank each have committed 12 million to further racial equality. Target Corp. has committed 75 million to organizations including the National Urban League, the Equal Justice Initiative, and the NAACP, along with $25 million in media over the next three years. Recognizing that corporate activism could be inconsistent with the duty of directors and officers to secure and retain value for the company, some commentators have suggested that corporations committed to activism should create or convert to a Public Benefit Corporation (“PBC”). While the core trait of a PBC is that it must pursue public benefit, that charge is not superior to directors’ and officers’ responsibility to generate and preserve value for the company’s stockholders. Thus, while PBCs provide legal cover for corporate activism, corporate management must weigh that interest against the obligation to satisfy traditional fiduciary duties of due care and loyalty, as well as the obligation to avoid waste. This balance is not difficult to strike; it simply requires that directors and officers carefully evaluate the anticipated conduct to ensure the action considered appears likely to provide corporate benefit, reasonable for the resources expended. As part of that due diligence process, directors and officers also must make certain any transaction that benefits a director or officer is entirely fair to the corporation. Furthermore, directors and officers must ensure that the resources committed to a social cause are reasonable given the company’s size and value, as well as the benefits of the philanthropy
Electric Vehicle Limbo: The Need for Charging Incentives
Get PDFA study published by AAA in 2018 shows, “20 percent or 50 million Americans, will likely go electric for their next vehicle purchase.” This means that 1/5 Americans plan on moving on from their previous gasoline car to an electric vehicle. Fast forward to 2021, electric vehicle technology has vastly improved in the battery, range, and charging spheres which further popularizes this movement. It is evident that companies have taken note, as announcements of new electric vehicles coming to the market keeps increasing. There are many reasons for this shift and electric vehicles are set to become the future. However, there are obstacles that must be overcome for electric vehicles to take over the road. Generally, two main concerns for consumers are running out of charge while driving and the poor electric vehicle charging infrastructure in the United States. On the other hand, there are not that many electric vehicle charging incentives for businesses like gas stations to warrant such a major investment. Summarized, consumers do not want to buy electric vehicles without a better charging infrastructure and businesses do not have enough incentives to build that better charging infrastructure—hence, the electric vehicle “limbo”. This highlights the need to start developing the EV charging infrastructure now rather than later. To get out of this limbo, the federal government needs to further incentivize electric vehicle charging stations for gas stations
Preserving the Environment By Serving the Notion of Common Good: Toward a Responsible Investment
Get PDFOur lives on the planet constitute a bigger image defining the relationship with the environment. Hence, it is worth talking about the common good of people worldwide. In this sense, we envisage a borderless good or better to say a shared good that is the environment, and individuals’ activities can be interpreted by their impacts on it. Environmental protection is a hot topic and states have put their efforts to minimize humans’ footprints by introducing regulations and measures because lack of comprehensive measures leads to regulative imbalances among communities. Less-developed communities (LDCs) intend to attract multinational corporations to invest in their communities to decrease the unemployment rate and increase economic prosperity. In this case, there is competition among them to ease the regulations in favour of investment maximization. Such a practice often treats environmental preservation as the secondary matter that results in regulative imbalances between less-developed and industrialized communities (ICs). In this scenario, multinational corporations (MNCs) opt for a more convenient regulative system other than a developed legal system and move their polluted production lines to LDCs, while this is in stark contrast with the flourishing of individuals. This Article discusses that preserving the environment calls for responsible investment through MNCs. It is incumbent on them to ensure that their businesses in the LDCs comply with the stricter regulations in the parent companies’ domicile and individuals would be entitled to make them accountable in their home communities
Introduction
Get PDFThe idea for this Special Issue began with a conversation between me and Mr. Sam Reilly, the then Editor-in-Chief of the Emory Law Journal. Mr. Reilly and I go way back—all the way to his first semester in law school when he was a student in my Legislation and Regulation class. I subsequently selected him to become one of my research assistants later that summer. Mr. Reilly wanted to discuss what more the Emory Law Journal should be thinking about doing given the moment of racial reckoning the country found itself in. We discussed the Journal putting together a special issue dedicated to addressing systemic racism and the law. He brought the idea to the Executive Board, and they enthusiastically agreed. The Journal issued a call for proposals for a forthcoming Special Issue: Systemic Racism in the Law & Anti-Racist Solutions. The Journal received ninety-four abstracts and, from an embarrassment of riches, selected the seven Essays published on these pages
Faith in Strasbourg and Luxembourg? The Fresh Rise of Religious Freedom Litigation in the Pan-European Courts
Get PDFThe religious landscape of Europe has changed dramatically in the past two generations. Traditional Christian establishments have been challenged by the growth of religious pluralism and strong new movements of laïcité and secularism. Once powerful religious cultures have been shattered by exposures of clerical abuses and financial self-dealing, leading to emptier pews and waning political influence. Once quiet, homogenous European communities are now home to large groups of new Muslim emigrants, making new demands and sparking strong anti-immigrant movements. Once strictly controlled national borders have opened across Eastern and Western Europe, leading to massive migration and tense local intermixtures of Orthodox, Catholics, Protestants, Jews, Muslims, Buddhists, Confucians, Hindus, Atheists, and Secularists never seen on this scale before. Old constitutions, concordats, and customs that privileged local forms and forums of Christian identity and morality have come under increasing attack. A single mention of God in the proposed new European Constitution triggered continent-wide debate. Old Christian Europe is dying; a new religious and political order is beginning to form. These new religious movements have reshaped the religious freedom law not only of individual European states but also of the European Court of Human Rights sitting in Strasbourg and the Court of Justice of the European Union sitting in Luxembourg. These two pan-European Courts have become new hotspots for religious freedom claimants from all over Europe. The rapidly expanding case law of these two Courts reflects the transition and tenuousness of European law and religion. Both Courts do often repeat and apply firmly the core religious freedom mandates of the 1950 European Convention of Human Rights and the 2010 European Charter of Fundamental Rights and Liberties and their statutory echoes—freedom of thought, conscience, and belief for all; freedom from direct and indirect discrimination by state and private actors; freedom to manifest one’s beliefs in public, alone, and in religious groups that deserve legal personality and religious autonomy. Both Courts have emphasized the need for State neutrality toward religion, for strong protections of religious pluralism, and for ample deference to local political traditions. Both Courts have also stepped in to remove blatant religious discrimination by some state officials. But both these pan-European Courts have also been notably churlish of late in their treatment of both Muslim and conservative Christian claimants, even while generously accommodating self-professed Atheists, Agnostics, and Secularists. Both Courts have repeatedly rejected requests by religious claimants to protect their religious dress, jewelry, dietary rules, holiday observance, and traditional beliefs about sex, marriage, and family, in each instance privileging the rights of others and the interests of democratic society over the claims of religious freedom. Both Courts have repeatedly held against Eastern European Orthodox state policies on religion, even while granting wide margins of appreciation to French, Belgian, Swiss, and other States’ policies that blatantly targeted religious minorities, especially Muslims. And particularly the Luxembourg Court has begun to second-guess internal church employment decisions long protected by religious autonomy norms, and to question longstanding constitutional forms of church-state relations, even though the European Treaty formally protects them. This Article offers a detailed comparative analysis of the religious freedom jurisprudence of these two pan-European Courts. It outlines their approaches to the variety of religious traditions and church-state models within the Old Continent and the principles and precepts of religious freedom that they have developed to date. This Article analyzes how the two Courts operate and highlights the reality that the Strasbourg Court issues only soft law that depends on individual state compliance, while the Luxembourg Court issues hard law that is binding throughout the European Union. This reality is rapidly making the Luxembourg Court an attractive forum for transnational litigation, including on religious freedom. This is a worrisome trend for the future of religious freedom, however, for the Luxembourg Court has been notably less accommodating than the Strasbourg Court of religious freedom claims, more insistent on state neutrality on religion even at the cost of religious exemptions, and more willing to unsettle longstanding church-state models and cooperative arrangements
The Time Has Come for Disaggregated Sovereign Bankruptcy
Get PDFWith expanding global vaccinations and the potential end of the COVID-19 pandemic in sight, who among us has not succumbed to daydreams of post-crisis ‘normal’ life? Still—and setting aside for now the certain obstacles on any road to public and economic health—we should not be too sanguine about the degree to which the eventual recovery will be even, including across countries. By now, the images of economic dislocation resulting from the pandemic, including empty tourist beaches, deserted town centers, and closed manufacturing plants, have become commonplace. In certain regions and countries, this dislocation and its after-effects may prove long-lasting, putting the world at risk for a post-pandemic sovereign debt crisis. In this Essay, I provide an overview of some of the key developments that have emerged in the sovereign debt space in the wake of the COVID-19 pandemic and argue that we should use the energy generated in this moment to move toward what might be called ‘disaggregated sovereign bankruptcy,’ in part by establishing institutions that could more effectively and efficiently address future crises as they arise. I first note the country financial difficulties generated by the current situation and emphasize the ways in which national responses may have long-term financial impacts that make states more vulnerable to debt distress, particularly in the developing world. I also delineate how any restructuring efforts that might result from such distress would have to contend with longstanding problems in the global architecture relevant to sovereign debt. These difficulties have hardly disappeared and may even have become more complex in recent years. I then mention several proposals that have been put forward to address the pandemic-related financial crisis, formulated by scholars and policymakers to deal with problems already present or likely to emerge. These ideas should, if fully implemented, help to address countries’ financial distress in the short-to-medium term. However, the general reaction to such proposals by private creditor groups and others has made the existing gaps in the international financial architecture even more apparent. If anything, recent crisis efforts and creditor responses suggest that—in addition to short-term, emergency-focused proposals—the need for a more rational global debt restructuring platform remains. As such, the fact of the ongoing and fast-moving public health and economic situation does not mean that we should exclusively focus on emergency-level solutions. Indeed, it remains imperative to harness the crisis energy to move in the opposite direction—toward putting in place longer-term institutions that will be ready for the next crisis and, perhaps, make that next crisis less likely or less intense. Finally, I lay out more fully that the time has come for ‘disaggregated sovereign bankruptcy’—which can be understood as a framework by which multiple processes at varying levels simultaneously support or instantiate a shared set of sovereign debt resolution principles and commitments. Although numerous actors have called for a full-blown multilateral treaty-based restructuring regime, most famously the International Monetary Fund (IMF) in the early 2000s, such proposals have thus far met with resistance. Improvements in market-based, contractually grounded solutions have taken some of the pressure off, but still leave many problems un- or under-addressed. Although the narrative of voluntary, market-based advancements versus ‘involuntary’ (or perhaps less voluntary) international statutory options offers a neatly binary conceptual package, it is well past time to abandon such overly simplistic framing. Improvements in the contractual realm, in the multilateral arena, and at the level of domestic legislation should be conceived of as complementary rather than competitive. Or, if these arenas may sometimes compete, we should understand this as the type of healthy competition that ultimately results in better outcomes; there is no need to champion one approach over another
Law, Fact, and Procedural Justice
Get PDFThe distinction between questions of law and questions of fact is deceptively complex. Although any first-year law student could properly classify those issues that fall at the polar ends of the law-fact continuum, the Supreme Court has itself acknowledged that the exact dividing line between law and fact—the point where legal inquiries end and factual ones begin—is “slippery,” “elusive,” and “vexing.” But identifying that line is crucially important. Whether an issue is deemed a question of law or a question of fact often influences the appointment of a courtroom decision maker, the scope of appellate review, the administration of certain evidentiary rules, and the application of preclusive or precedential weight to its resolution. This Article seeks to bring theoretical coherence and analytical clarity to the law-fact distinction. It pushes back against the formal view that questions of law and questions of fact are categorically distinct. Instead, drawing on legal process principles, this Article argues that an issue is typically deemed a question of law or a question of fact because legitimacy concerns demand its resolution by a particular decision maker. Through that reconceptualization, this Article’s legal process model offers a number of significant contributions. First, as a descriptive matter, it explains the cause of the jurisprudential turbulence surrounding the law-fact distinction. Second, normatively, it highlights the weaknesses of traditional law-fact model, which enables institutional aggregations of power. Finally, it promises to transform the process of classifying issues, turning that analysis into a simple transparent effort to allocate decision-making authority in a manner that will best optimize the legitimacy of adjudication—that will best achieve procedural justice
Ford Motor Company v. Montana Eighth Judicial District Court: Lots of Questions, Some Answers
Get PDFIn Ford Motor Company v. Montana Eighth Judicial District Court, the Supreme Court handed down its seventh personal jurisdiction decision in the last ten years. Ford—involving two consolidated state-court products liability suits alleging defects in the defendants’ cars that injured forum-state residents in their home states—is the only case in the Supreme Court’s decade-long spate of jurisdictional decisions to find the minimum contacts test satisfied. In this Article, we examine all three opinions of the case. Ford is a welcome return to serious consideration of the fairness of the assertion of jurisdiction. Unlike its six immediate predecessors, Ford considers not only the burden on the defendant in asserting jurisdiction, but also the unfairness to the plaintiff if the Court were to not allow jurisdiction. That said, Ford leaves open many important questions, which we explore. The consequences of the majority’s splitting the “arise out of or relate to” test for specific jurisdiction are not entirely clear. It remains an open question as to under what circumstances a non-causal relationship will suffice and when the presumably more demanding “arise out of” test must be met. We explore several hypothetical factual scenarios in which jurisdiction would depend on which formulation of relatedness is employed
Advertising Injustices: Marketing Race and Credit in America
Get PDFAccess to affordable credit played a central role in the Civil Rights Movement. But today, racial and ethnic minorities oversubscribe to high-cost lending products like payday loans and underuse more affordable credit options that traditional banks offer. These trends remain even when controlling for demographic variables like income, credit score, and education. While research verifies that these disparities exist, little work explains why. This Essay argues that advertising entrenches these racial inequities. Two empirical studies we conducted of advertising by banks and payday lenders suggest that payday lenders steer African Americans and Latinos to their products while banks market to whites. For instance, though African Americans make up only 23% of payday lending customers, 35% of the “model” customers featured in advertising on these lenders’ websites depict African Americans. Meanwhile, almost 30% of mainstream bank websites featured no African American models. Almost 75% featured no Latino models. Only 3% did not feature a white model. Even after the outcry over racial injustice in 2020, banks did not appreciably increase the representation of people of color on their websites. This needs to change. We argue that lenders themselves are the first and simplest source for racial justice in advertising credit. Both payday lenders and banks can easily ensure that their advertising reflects the communities they serve. Congress and the Consumer Financial Protection Bureau also have a role to play. Amendments we propose to the Equal Credit Opportunity Act, the Community Reinvestment Act, and the regulations that implement them call for advertising that welcomes people of color to affordable credit sources