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Congestion Pricing and the Opportunity to Confront New York City\u27s Air Quality Emergency
Get PDFPoor air quality in New York City is a public health emergency that disproportionately harms the city’s most vulnerable populations. Recent studies have found that exposure to particulate matter pollution previously thought “safe” causes significant damage to perhaps every organ of the human body. While New York City has reduced particulate matter exposure over the last decade, progress has stalled. In fact, climate change, the shift in the automobile market from sedans to SUVs and “light” trucks, and the federal pullback of environmental enforcement under Trump suggest that air pollution in New York City is likely to worsen.
While the City has little control over global climate change, the federal government, or the automobile market, it has sweeping powers over its streets. Furthermore, New York City is set to become the first American city with a congestion tolling system. The pending implementation of congestion pricing offers policymakers the opportunity to rethink the access of private automobiles to New York’s core.
This Article argues that the Metropolitan Transportation Administration should implement a variable congestion toll that is based, in part, on measures of local air quality. Furthermore, the City should act unilaterally to reduce automobile access to the core when local air quality reaches particularly dangerous levels. The Introduction presents these recommendations and evaluates the stalled progress on air quality in New York City. Part I reviews the alarming literature on the public health impact of air pollution with a particular focus on PM2.5. Part II provides a discussion of the legal authority and potential legal roadblocks for New York State to implement a variable congestion toll tied to air quality, and for the City to unilaterally ban certain private automobiles from the central business district during air quality emergencies
The Original Meaning of the Habeas Corpus Suspension Clause, the Right of Natural Liberty, and Executive Discretion
Get PDFThe Habeas Corpus Suspension Clause of Article I, Section 9, is primarily a limit on Congress’s authority to authorize detention by the executive. It is not mainly concerned with the remedial writ of habeas corpus, but rather with the primary right of natural liberty. Suspensions of the privilege of the writ of habeas corpus are statutes that vest very broad discretion in the executive to decide which individuals to hold in custody. Detention of combatants under the law of war need not rest on a valid suspension, whether the combatant is an alien or a citizen of the United States. The Suspension Clause does not affirmatively require that the federal courts have any jurisdiction to issue the writ of habeas corpus, and so does not interfere with Congress’s general control over the jurisdiction of the federal courts. The clause does not impose any limits on congressional authority with respect to the habeas corpus jurisdiction of state courts that would not exist in its absence
An Evaluation and Performance Measure Framework for Online Dispute Resolution Programs: Assessing Improvements in Access to Justice
No full textOne type of programming designed to improve access to justice for civil litigants is online dispute resolution (ODR). ODR generally consists of an internet-based software platform on which litigants can resolve legal problems, including negotiating settlements or exchanging information to narrow the factual and legal issues in a formal court hearing. ODR programs were first developed by online commercial businesses such as PayPal, eBay, and Amazon to resolve disputes more effectively between buyers and sellers, but they are still a relatively new innovation in courts, with most programs launching within the past three years.
ODR programs are intended to increase access to justice, especially for self-represented litigants, while decreasing costs. They aim to achieve these goals by increasing convenience, case processing efficiency, and awareness of litigant options. Generally, litigants try to resolve their disputes on the ODR platform first, and those who are unable to do so divert back to the traditional in-court process. The term online dispute resolution encompasses a wide variety of programmatic features that often make it difficult to compare program effectiveness, either to traditional litigation processes or to other ODR programs. This report provides a brief summary of the history of ODR and describes the ways in which ODR programs vary from jurisdiction to jurisdiction.
This abstract has been taken from the authors\u27 executive summary
Reconsidering Section 1983\u27s Nonabrogation of Sovereign Immunity
Get PDFMotivated by civil unrest and the police conduct that prompted it, Americans have embarked on a major reexamination of how constitutional enforcement works. One important component is 42 U.S.C. § 1983, which allows civil suits against any person who violates federal rights. The U.S. Supreme Court has long held that person excludes states because Section 1983 flunks a condition of crystal clarity.
This Article reconsiders that conclusion--in legalese, Section 1983\u27s nonabrogation of sovereign immunity--along multiple dimensions. Beginning with a negative critique, this Article argues that because the Court invented the crystal-clarity standard so long after Section 1983\u27s enactment, the caselaw contravenes commonsense interpretive practice, works a methodological anomaly, and offends foundational democratic values. This Article also contends that the caselaw rests on inappropriate assumptions that members of Congress during Reconstruction thought about federalism the same way members of the Court a century later did.
Turning to an affirmative critique, this Article explores Section 1983\u27s semantic meaning and expected applications. Among other things, this analysis uncovers evidence that some members of the public may have initially understood the statute to reach states--and that members of Congress inadvertently amended the default definition of person in 1874. The upshot is that despite credible counterarguments, the best reading of Section 1983 may make states suable.
Finally, this Article explores implications for reforming constitutional-tort law. In particular, it introduces the policy landscape and proposes a path forward with an initial focus on Fourth Amendment excessive force claims and a gradual extension to other contexts
The Rule: Modernizing the Potent, But Overlooked, Rule of Witness Sequestration
Get PDFStarting with its illustration in the Apocrypha and continuing into the modern day both in courtrooms and in ubiquitous criminal procedurals, one evidence rule has proven so powerful that it has become known as “THE” Rule of Evidence. The rule of witness sequestration demands that multiple witnesses to the same events be examined separately from one another to prevent them from, consciously or subconsciously, tailoring their testimony to ensure that it remains consistent. Witness sequestration is conceptually simplistic and famously mighty. Yet, this bedrock protection against inaccurate trial testimony is imperiled by conflicting interpretations of Federal Rule of Evidence 615, the Rule that provides sequestration protection in federal court. In some circuits, the Rule is narrowly construed in accordance with its plain language to prohibit witnesses only from remaining physically present in the courtroom during testimony. Under this view, the Rule offers no protection against testimonial tailoring outside the courtroom. Yet, remaining physically present during the testimony of other witnesses is not the only means by which a prospective witness might adapt her testimony to match that of other witnesses. Although extra-tribunal witness coordination has always been possible, the explosion in technology and the recent specter of COVID-19 have multiplied exponentially options for testimonial tailoring beyond the courtroom doors. For this reason, some circuits construe terse “Rule 615” orders broadly to prohibit witness collaboration and access to testimony beyond the trial setting. Although these circuits afford the full complement of sequestration protection, their expansive construction of succinct “Rule 615” orders generates fairness concerns about inadequate notice of proscribed witness behavior. This Article details the competing interpretations of Rule 615 orders adopted by the federal courts and examines the merits and demerits of each approach. It further elucidates the philosophical divide reflected in the circuit split, exposing the textualist and purposive theories of rule construction animating the opposing views. The Article ultimately proposes detailed alternatives for revising Rule 615, offering draft language that could be adopted to memorialize either of the federal approaches to witness sequestration in amended rule text
Reforming the Visual Artists Rights Act to Protect #streetart in the Digital Age
Get PDFConsider the following: Building Owner commissions Artist to paint a mural on the wall of his building. A decade later, Business buys that building from Building Owner and, unaware of details relative to Artist’s wall mural, develops plans to renovate the building for a new use. Upon hearing of Business’s attempt to alter its newly acquired property, Artist seeks an injunction to prevent Business from restoring its building in a way that would change or destroy her mural. Would a court prevent Business from altering its building due to Artist’s moral rights to her work? If the court follows the Second Circuit’s decision in Castillo v. G & M Realty L.P., the answer might be yes.
The law of property, unlike that of contracts, provides individuals with a fixed and narrow range of rights. In the civil law system, the limitation on individuals’ property rights is known as numerus clausus. Thomas Merrill and Henry Smith assert that property owners’ right to exclude others from their property “must be regarded as a moral right.” Further, although the principle of numerus clausus is not explicitly recognized in the American common law system, common law courts “treat previously-recognized forms of property as a closed list that can be modified only by the legislature.”
By enacting the Visual Artists Rights Act (VARA) in 1990, Congress expanded artists’ bundle of rights and guaranteed certain protections, including the right “to prevent any destruction of a work of recognized stature,” although the statute does not further define “recognized stature.” In doing so, Congress perhaps unintentionally created an opportunity for street artists to promote their rights over and against those of real property owners. This moral right opportunity made headlines in February of 2020 when the Second Circuit affirmed a $6.75 million judgment against a property owner, Gerald Wolkoff, after the trial court found he violated VARA by destroying artwork displayed on his property in retaliation against twenty-one plaintiff-artists seeking to preserve their works.
Did Congress predict that a city’s murals would draw tourists to that location, or that street art shared through social media would launch artists’ careers when it failed to elaborate on what constitutes a work of recognized stature? Certainly not. Although street art has existed throughout history, the widespread use of social media in the twenty-first century has created a platform from which visual artists can garner public attention and acclaim.
In enacting VARA, Congress created problems for both visual artists and real property owners. Over the past three decades, artists have rarely brought VARA actions against real property owners due, in part, to the statute’s limited scope. Of the suits that are brought, artists seldom win.
It is unclear whether artists who complete commissioned murals do so on a made-for-hire basis. Therefore, street artists who create art for property owners may find no protection under VARA due to the statute’s limitations and exceptions. Further, the ambiguous language in VARA, namely the recognized stature provision, potentially impairs the common law rights of property owners whose buildings display artists’ graffiti art or murals without putting those individuals or groups on notice.
Artists and moral rights advocates celebrate the Castillo decision for its promotion of visual artists’ moral rights over their works. However, some property owners argue that the recognized stature provision of VARA “egregiously runs afoul of the Fifth Amendment’s due process requirements because Congress neglected to define this novel phrase” and that it “clearly impairs the traditional rights of property owners, which include the right to dispose or destroy one’s property.”
Ultimately, the statute’s ambiguous language presents problems for both the artists it seeks to protect and the real property owners it apparently threatens. Without revision, VARA and recent court decisions surrounding the statute could lead business owners to disallow artists to create works of visual art on their property. Such a refusal would stand in direct contrast to the original purpose of VARA: the acknowledgement of artists’ moral rights in order to produce “a climate of artistic worth and honor that encourages the author in the arduous act of creation.”
When Congress drafted and enacted VARA, neither large-scale mural projects nor social media were prevalent in the United States. This Note addresses the present-day ramifications of VARA’s ambiguity by examining the conflicting rights of visual artists who create street art and those of real property owners. This Note ultimately argues that Congress should amend VARA in order to balance the rights of visual artists and real property owners and notify property owners of VARA’s protections.
Congress should omit ambiguous and unnecessary language from VARA—namely the recognized stature requirement and the workmade- for-hire exception. Omitting this language would elucidate visual artists’ rights under VARA, as artists and property owners will not have to guess whether a work of visual art has achieved recognized stature status or whether an artist completed a work of commissioned art on a for-hire basis. In addition, Congress should implement a formal recording system for street art that artists or their communities wish to protect. This innovation would alleviate risks that many property owners who maintain buildings that display street art unknowingly face. Without proper notice of artists’ possible VARA claims, property owners who renovate their buildings could face severe consequences after they alter or destroy an artist’s work. Ultimately, a recording system of street art would promote artists’ moral rights to the general public while placing property owners on notice of those rights.
Part I of this Note provides background on the development of visual artists’ moral rights in the United States. Part II discusses the ways in which courts have addressed visual artists’ moral rights and introduces the problems that arise from the Second Circuit’s interpretations of the Copyright Act and VARA. Part III proposes a solution to clarify VARA’s language in order to better promote the moral rights of visual artists who produce street art in the twenty-first century. In addition, Part III posits that a proper recording system of VARA-protected street art would increase public knowledge of artists’ moral rights in the United States and prevent property owners from mistakenly altering or destroying art, thereby subjecting themselves to suit. Part IV concludes by addressing polar counterarguments that assert, on the one hand, that VARA does not protect artists enough, and on the other hand, that VARA provides unnecessarily broad protections to artists
The Use and Misuse of Fiduciary Duties: Corporate Social Responsibility and the Standard of Review
Get PDFThis Article provides a crucial corrective to the “corporate social responsibility” debate, which concerns whether corporations have the obligation to protect or serve the interests of groups other than their shareholders, like employees or customers (often called “stakeholders”). Scholars on one side of the debate have repeatedly presumed that corporate directors’ fiduciary duties to shareholders play an important role in protecting shareholders from decisions that favor stakeholders at their expense. Scholars on the other side agree that fiduciary duties provide meaningful protection against unfavorable conduct but argue that directors should also owe fiduciary duties to stakeholders so they may be similarly protected. This Article argues that this shared premise is mistaken: Fiduciary duties in practice play almost no role in director decisions to favor one corporate group over another. The Article first explains that courts and scholars rarely note the difference between two distinct definitions of the duty of loyalty—one broad and one narrow— and argues that only the broader definition would allow this duty to have any impact on directors’ distribution of corporate resources. Under this narrow definition, fiduciary duties to shareholders prevent directors from acting in their own self-interest, but not from acting in the interests of stakeholders at shareholders’ expense. The Article then argues that Delaware law enforces only the narrow definition of loyalty due to its default judicial standard of review, the business judgment rule, which largely eliminates shareholders’ ability to protect themselves from directors’ decisions that favor other stakeholders. Finally, given this is true for shareholders, the Article argues it would likewise be true for employees (or any other stakeholders), were they to be owed fiduciary duties by directors. Because fiduciary duties do not protect against such unfavorable conduct, the Article concludes it is a mistake to debate to whom directors should owe fiduciary duties. Advocates for shareholder or stakeholder protection should therefore focus on other mechanisms to obtain it