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The Crippling Costs of the Juvenile Justice System: A Legal and Policy Argument for Eliminating Fines and Fees for Youth Offenders
Get PDFAcross the United States, approximately one million youth appear in juvenile court each year. In almost every state, youth and their families face monetary charges for a young person’s involvement in the juvenile justice system. Too often the inability to pay subjects juveniles and their families to incarceration, suspension of driver’s licenses, an inability to expunge records, and economic and social stress, and pushes the youth offender deeper into the juvenile justice system. Over one hundred years ago, the Illinois legislature established the first separate juvenile court system. That system was designed to recognize that youth are different from adults and to respond with a focus on rehabilitation. Over the course of the century, while state juvenile justice systems have changed, the idea of a separate system has become firmly entrenched nationally and the core goals of supporting youth, assisting rehabilitation, and improving outcomes have remained the same. Fines and fees for youth offenders undermine these core values. This Comment argues that fines and fees imposed on youth offenders should be eliminated nationwide because they ignore the U.S. Supreme Court’s holding in Bearden v. Georgia, they would be categorically banned under a correct interpretation of the Excessive Fines Clause, they are applied unlawfully under state statutes, they exacerbate economic and racial disparities, they increase recidivism rates for juveniles, and they create hardship for families, pushing responsibility onto sometimes uninvolved parents. Congress must safeguard the due process rights of youth and families and ensure the juvenile justice system, designed to support and rehabilitate, does not instead impose undue harm on juveniles and their families
Defending Data: Toward Ethical Protections and Comprehensive Data Governance
Get PDFThe click of a mouse. The tap of a phone screen. Credit card purchases. Walking through an airport. Driving across a bridge. Our activities, both online and offline, are increasingly monitored, converted into data, and tracked. These troves of data—collected by entities invisible to us, stored in disparate databases—are then aggregated, disseminated, and analyzed. Data analytics—algorithms, machine learning, artificial intelligence—reveal “truths” about us; weaponize our data to influence what we buy or how we vote; and make decisions about everything from the mundane—which restaurant a search engine should recommend—to the significant—who should be hired, offered credit, granted parole. This Article is the first to chart the terrain of this novel, networked data landscape and articulate the ways that existing laws and ethical frameworks are insufficient to constrain unethical data practices or grant individuals meaningful protections in their data. The United States’ sectoral approach to privacy leaves vast swaths of data wholly unprotected. Recently enacted and proposed privacy laws also fall woefully short. And all existing privacy laws exempt de-identified data from coverage altogether—a massive loophole given that the amount of publicly available data sets increasingly render reidentifying de-identified data trivial. Existing ethical frameworks, too, are unable to address the complex ethical challenges raised by networked datasets. Accordingly, this Article proposes an ethical framework capable of maintaining the public’s full faith and confidence in an industry thus far governed by an ethos of “move fast and break things.” The CRAFT framework—arising from considerations of the shortcomings of existing ethical frameworks and their inability to meaningfully govern this novel, networked data landscape—establishes principles capable of guiding ethical decision making across the data landscape and can provide a foundation for future legislation and comprehensive data governance
Corporate Governance, Bankruptcy Waivers, and Consolidation in Bankruptcy
Get PDFThis outstanding Article by Daniel J. Bussel examines bankruptcy’s ability to override corporate law formalities and provide effective relief consistent with the underlying policies of the Bankruptcy Code. Recent scholarship and case law tend to support the legitimacy of entity partitions and contractual barriers to voluntary bankruptcy relief found in corporate charters. The author persuasively contends that bankruptcy law should return to the basics by refocusing on substance over form in order for corporate formalities to again yield to substantive bankruptcy policy
The Pros and Cons of the Small Business Reorganization Act of 2019
Get PDFEffective February 19, 2020, Congress enacted new bankruptcy legislation granting debtors the option to elect a new subchapter V of chapter 11 of the bankruptcy code (Subchapter V). This was made possible by the bipartisan legislation known as the Small Business Reorganization Act of 2019 (SBRA). 1 The SBRA was enacted to provide small business debtors 2 the opportunity to reorganize in a cost-effective manner. This Article addresses certain pros and cons of these amendments to the Bankruptcy Code (Code), which will depend upon the eyes of the beholder
Thawing the Freeze: Cutting Costs and Increasing Efficiency by Granting Administrative Expense Priority to Nonquantifiable Benefits
Get PDFDisputes over priority claims in bankruptcy proceedings are common because they are often the only way to recover assets from the limited pool available to claimants. Claims for professional fees for those who facilitate bankruptcy proceedings after the petition has been filed are given high priority to ensure that they have incentive to complete their work. However, those who come into bankruptcy with claims against the debtor have a much harder time recovering their costs if they do any work to assist with the proceedings. Currently, the administrative expense analysis requires these applicants to demonstrate that they made a substantial contribution to the estate before receiving priority on their claims for reimbursement. Courts overwhelmingly deny requests for administrative expenses under § 503 of the Bankruptcy Code because the applicant did not make a quantifiable benefit to the estate. This Comment calls upon the Federal Judiciary and Congress to allow administrative expense priority for reasonable expenses to applicants who benefit the estate without being duplicative, self-interested, or meritless, but are unable to directly quantify how they did so. For applicants and their attorneys, this Comment serves as a guide on requesting administrative expense priority for costs incurred when a direct benefit cannot be shown. The current substantial contribution analysis will be discussed to show why it should not require a benefit to be quantifiable. First, the types of potential applicants for this priority claim will be analyzed to demonstrate how each can benefit the estate in ways that are not quantifiable under the current interpretation of § 503(b)(3)(D). The language that courts commonly use to convey the rationale of a substantial contribution analysis will be discussed to show that precedent does not preclude the proposed interpretation. An interpretation is provided for the existing text of § 503(b)(3)(D) that would allow courts to make this change on a case by case basis. Finally, a change to the text of § 503(b)(3)(D) that would allow Congress to implement this change directly is provided as a model
Consumer Bankruptcy Should Be Increasingly Irrelevant—Why Isn’t It?
Get PDFProfessor Pamela Foohey responds to Professor Martin’s argument by pointing out a number of important reasons why consumer bankruptcy remains relevant. Moreover, the author argues that some of these reasons suggest that it is more relevant than ever. This Article overviews the place consumer bankruptcy presently occupies in the United States. In doing so, Foohey details why consumer bankruptcy remains relevant in the face of a socio-economic structure and of laws that suggest that bankruptcy may not be a particularly useful place for struggling Americans to turn to for help. Foohey argues it is the time for bigger changes to the system that have a greater chance of making consumer bankruptcy relevant to Americans’ needs. The Article concludes with suggestions to streamline the consumer bankruptcy system to provide people with a place to turn to deal with their financial struggles that more fully accounts for why they have come to bankruptcy for help
Expensive Patients, Reinsurance, and the Future of Health Care Reform
Get PDFIn 2017, Americans spent over 10 million per year. Part II then examines the normative question of how the costs of treating expensive patients’ medical conditions should be shared and identifies three different dimensions of sharing: (1) scope, from narrow (plan members only) to broad (all of society); (2) boundedness, whether there are limits on the costs others can be asked to bear; and (3) progressivity, whether wealthier individuals are asked to bear more costs (similar to progressivity in tax). Part III then considers how health care reform choices could advance or hamper the adoption of broad, bounded, progressive sharing, with a focus on recent state-level reinsurance programs that legal scholarship has not yet analyzed in depth. This Article contributes to the literature on health care reform in three interlocking ways. First, it develops a novel proposal for fairly sharing the cost of expensive patients’ care that could usefully inform state- and federal-level policy discussions. Second, it provides a normative, rather than purely political or economic, analysis of existing and proposed options for sharing expensive patients’ costs. Third, it bridges the disconnected literature on reinsurance, limit setting, and health care financing, identifying how proposals in these different areas intersect
Ancillary Enforcement Jurisdiction: The Misinterpretation of Kokkonen and Expungement Petitions
Get PDFCriminal records do not always provide the disposition of the case. Therefore, in some circumstances, individuals who were arrested and subsequently had their charges dismissed or who were acquitted at trial are not always distinguishable from those convicted of a crime. For those individuals who were convicted of a crime, criminal records additionally do not always provide information on the crime you were convicted of. Consequently, the proliferation in access to background checks has resulted in the stigma associated with an arrest record becoming a significant barrier to employment and housing opportunities for individuals with a record. Prior to the Supreme Court’s decision in Kokkonen v. Guardian Life Insurance Co. of America, nearly every federal circuit had held that district courts had ancillary jurisdiction to entertain motions to expunge criminal records solely under equitable considerations. District courts, in deciding these petitions, would balance the interests of the individuals in having their records expunged against the interests of the public in having the records widely available. Because of the great strength of the public interest in the availability of these records, a court would only grant these petitions in extraordinary circumstances. The Court in Kokkonen attempted to clarify the scope of the murky and ill-defined ancillary jurisdiction doctrine. The Court set forth two circumstances in which ancillary jurisdiction had generally been asserted: “(1) to permit disposition by a single court of claims that are, in varying respects and degrees, factually interdependent . . . and (2) to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees . . . .” After this decision was cast down, there has been a domino effect of federal circuits holding they no longer have the authority to assert ancillary jurisdiction over equitable expungement motions reasoning that they do not fall within the reach of the test Kokkonen articulates. Unfortunately for individuals with criminal records, these circuit courts interpret the Court’s decision in Kokkonen far too narrowly. Accordingly, this Comment argues that neither the language of the holding in Kokkonen nor the holding itself warrant the restrictive interpretation that these circuits apply. These lower courts are disregarding the qualifying language the Court employed and the cues the Court gave that demonstrate its intent was not to set a strict standard for ancillary jurisdiction
Sexual Abuse and Bankruptcy: How Organizations Abuse Chapter 11 to Avoid Victims\u27 Demands for Answers
Get PDFUSA Gymnastics has been embroiled in highly contested bankruptcy proceedings since December 5, 2018, and the organization has been unable to confirm a reorganization plan. Prior to filing for bankruptcy, these victims filed over 100 suits against USA Gymnastics claiming that the organization failed to properly investigate claims of abuse and placed the gymnasts in an unsafe environment. Now, the victims claim USA Gymnastics is unwilling to negotiate a settlement agreement in good faith. The bankruptcy filing activated the automatic stay, putting the victims’ litigation on hold. The automatic stay is a powerful tool that is necessary to ensure the bankruptcy court’s success. However, in situations involving organizations accused of sexual abuse, the automatic stay prevents victims from delving into the organization’s role in their abuse. Bankruptcy courts are courts of equity, but they are bound by statute in their ability to remedy a wrong. Organizations like USA Gymnastics abuse the Bankruptcy Code to gain unintended benefits at the expense of abuse victims. They place victims in a difficult position; if the survivors receive compensation through bankruptcy, they lose their chance to conduct discovery proceedings otherwise available through litigation. This outcome prevents the victims from receiving answers regarding their own abuse and from guaranteeing that the abuse will not continue in the future. Further, the discovery process may uncover other sources of damages like USA Gymnastics’ officers or the U.S. Olympic and Paralympic Committee, but the victims are forced to wait until the organization is out of bankruptcy to pursue litigation. This lengthy delay could prevent victims from timely discovering evidence vital to successfully litigating their claims. Due to the statute of limitations and failure to timely uncover evidence, the delay may also prevent victims from bringing suit against any nondebtor that could be liable for their injuries. The bankruptcy process is currently inadequate to properly protect the interests of sexual abuse victims. Bankruptcy focuses on financial issues, so victims of sexual abuse will have non-financial interests negatively impacted by the bankruptcy process. This Comment argues that bankruptcy courts should borrow from other areas of law and provide special protections for victims of sexual abuse. This protection would prioritize the victims’ claims and ensure that the victims can pursue an investigation into the organization’s involvement in their abuse. This plan would allow adequate protection for sexual abuse victims and deter misuse of the bankruptcy courts by organizations
Notice Risk and Registered Agency
Get PDFTo sue a firm is to sue an artificial person, making the most reliable service method—physically handing papers to the defendant—unusable. This problem illustrates notice risk: if a plaintiff’s service obligations are loose, it is advantaged (because the defendant may never receive notice), whereas if they are strict, the defendant is advantaged (because the plaintiff may struggle to effect service). For litigation involving corporate defendants, civil procedure and corporate law mitigate this problem through a technology for managing notice risk: registered agency. A firm using this technology, because it cannot be served directly, appoints an agent who will accept papers and forward them to management. By serving an intermediary, the plaintiff shifts to the defendant the risk that actual notice fails. Although registered agency was once an innovative solution to corporate-defendant notice risk, this Article scrutinizes it in a contemporary light, using state corporate data to estimate that it imposes more than a quarter-billion dollars each year in avoidable costs on business, public administration, and civil process. To tackle these costs, it proposes model legislation for a less expensive, more reliable notice technology: email