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Defeating De Facto Disenfranchisement of Criminal Defendants
Full text linkIn a democracy, voting is not only an important civic duty but also a right that governments owe to their citizens. However, by operation of law, forty-eight states deny voting rights to individuals based on criminal convictions. Activists and scholars attack de jure disenfranchisement as an improper collateral consequence that disproportionately impacts people of color. Although recent years show substantial reforms to re-enfranchise defendants, an estimated 5.17 million defendants remained ineligible to vote in 2020. While efforts to address de jure disenfranchisement remain necessary, a problem that has received considerably less attention is the de facto disenfranchisement of criminal defendants who have the legal right to vote but are prevented from exercising it. De facto disenfranchisement applies to defendants who have regained their voting rights as well as defendants who have never lost their rights. Although de jure disenfranchisement excludes millions from voting, confusing restoration requirements, lack of information, misinformation, and physical barriers prevent millions of eligible voters from voting. For example, while most of the nearly 750,000 people in jail have the right to vote, they face informational and access hurdles to exercising their voting rights. Moreover, distrust of the political system and fear of arrest for voting exacerbates the issue. As with de jure disenfranchisement, de facto disenfranchisement disproportionately impacts people of color. As states decide to restore voting rights to more individuals, de jure disenfranchisement will fade, but de facto disenfranchisement threatens to keep the same restrictive policies alive. As a result, more progress is necessary to go beyond merely providing criminal defendants with the right to vote and instead actually empowering them with the ability to vote. This Article addresses the problems associated with de facto disenfranchisement. Further, this Article suggests and analyzes the national, state, and local reforms and practices necessary to ensure that defendants with voting rights have meaningful notice of their rights and access to voting
The Cocaine Cowboy\u27s Trojan Horse: Dirty Real Estate
Full text linkThe United States’ real estate market has suffered a complex issue for decades: money laundering. Money laundering through real estate is commonplace and presents a two-fold issue: one, compromised real estate transactions are extremely difficult to trace; and two, such transactions can, unfortunately, be beneficial to local economies. This economic gain is short-lived, however, as real estate developments funded with “funny money” frequently result in poor construction and a lack of maintenance; they may also artificially inflate the local housing market, effectively pushing out local residents from valuable areas, and, at worst, result in gentrification. Money laundering is particularly harmful in the condominium sphere, where those seeking to hide ill-begotten funds for short-term gain may irreparably harm condominium communities and, in rare circumstances, lead to casualties. This Note first examines the history of Miami as a key location of the real estate money-laundering crisis. This Note then considers how the relative ease with which one can create a shell corporation and avoid detection from the federal government as a “beneficial owner” makes the United States the perfect target when illicitly acquiring real property. Next, this Note examines how the Champlain Towers collapse was, allegedly, a product of a fraudulent funny money scheme from its inception and explains why this tragedy should serve as a cautionary tale to both the federal and Florida governments. This Note concludes by analyzing money laundering as a kind of “virus,” in that there is a period of concealment, encroachment, and duplication. As such, targeting each stage of real estate development through transactional processes using new state and federal reform may serve to prevent funny money from continuing to penetrate the U.S. real estate market. Doing so may be the only way to prevent the next era of “Cocaine Cowboys” from proliferating as they did in Miami in the 1980s
It\u27s a Sham! : How Sham Political Candidates are Threatening Democracy
Full text linkBy means of the U.S. election system, democracy in America is under attack—from within. If action is not taken, the public’s trust in elections will plummet to the lowest point in the history of this country. This Note brings to light a little-known political trick: sham political candidates. Political operatives place sham candidates on the ballot to siphon votes from opposing candidates. And the most shocking fact of it all is that it is completely legal. This Note identifies how sham candidates have impacted the modern election, while also examining the history of U.S. elections and election laws. This Note proceeds by demonstrating how the current law is inadequate to protect the integrity of elections from sham candidates and identifies some key characteristics of a sham candidacy. It continues to propose a new statutory framework to be enacted—including an analysis of procedural vehicles in which to effectuate this change—to close the loophole that political operatives use to successfully employ sham candidates. Finally, this Note rebuts procedural and substantive objections to the statute and evaluates its success. Most notably, this Note calls on legislators across America to fix this nation’s electoral system before it is too late
Deconstructing Employment Contract Law
Full text linkEmployment contract law is an antiquated, ill-fitting, incoherent mess. But no one seems inclined to fix this problem. Employment law scholars, skeptical of employees’ ability to bargain, tend to disregard contract law and advocate for just-cause and other legislative reforms to eliminate at-will employment. And contracts scholars largely ignore employment cases—viewing them, with some justification, as part of a peculiar, specialized body of law wholly divorced from general contract jurisprudence. As a result of this undesirable employment law exceptionalism, courts lack the tools needed to resolve recurring disputes. This Article offers a new, comprehensive historical account that exposes the formalistic and anticontractual origins of existing doctrine and shows how to repair the resulting harm. Blinkered by the powerful employment-at-will presumption, judges seized on unilateral contract theory to enforce employer promises of deferred benefits and job security. But this narrow doctrine ignores the complexity of the employment relationship and permits only piecemeal analyses of individual terms. The result is rigid, and frequently inaccurate, judicial reasoning that obscures courts’ underlying policy choices and produces technical opinions largely detached from real life. Meanwhile, creative judicial efforts to develop an informal alternative—which would sidestep these doctrinal challenges by enforcing employees’ legitimate expectations—have failed to take root. This Article concludes by identifying a path forward. The problems with existing doctrine flow principally from courts’ failure to respect the contractual character of employment and their disregard of widely accepted developments in contract doctrine and theory. Employment is a long-term, fluid relationship governed by an agreement that is necessarily incomplete, dynamic, and usually expressed in indefinite terms. To address these challenges, we outline a new model of a “hyper-relational” employment contract, an approach that reframes the dynamic features of employment agreements in contemporary terms as a form of contractually conferred discretion within an enforceable bilateral relationship. This Article considers how the implied duty of good faith and fair dealing and modern approaches to contextual evidence could resolve indefiniteness, supply missing terms, and accommodate modification. This new model would both supply the formal framework that courts demand and build employment contract law on a firm doctrinal foundation at last
Complete Diversity: The Origin Story
Full text linkThe complete diversity rule is among the most criticized rules in the law of federal jurisdiction. The product of Chief Justice John Marshall’s cryptic decision in Strawbridge v. Curtiss, the rule vests federal diversity jurisdiction only if all adverse parties on a complaint are citizens of different states. Complete diversity protects states’ control of state-law litigation. Yet, the rule is also hard to square with the diversity statutes’ text. As a result, federal jurisdiction mavens have condemned the complete diversity rule as a Marshall invention “out of whole cloth.” This Article offers new historical evidence that proves the critics wrong. The complete diversity rule turns out to be a straightforward application of an ancient canon of construction, the canon against jurisdictional privilege. The canon governed the interpretation of jurisdictional grants keyed to a litigant’s legal status. It directed construing these grants against jurisdiction when a party lacking the requisite status was joined alongside someone possessing that status. And the canon operated unless it was expressly disclaimed by the jurisdictional grantor. Textual cues strongly suggest Chief Justice Marshall relied on period treatments of the canon to decide Strawbridge. By recovering this history, this Article builds a case for complete diversity’s compatibility with important strands of textualism. Although textualists disagree about the validity of substantive canons of construction, leading textualist-originalists argue substantive canons are legitimate if they (1) predate the founding and (2) are used to construe ambiguous statutes or statutes communicating technical legal content or (3) supplement constitutional structure. The canon against jurisdictional privilege has just these features—it (long) predates the founding, while protecting state courts’ role in our system of federalism. And applied to diversity jurisdiction, it resolves ambiguity in texts that communicate technical legal content. Strawbridge, it follows, is a canon-based decision that deserves textualists’ respect. This Article’s historical evidence also raises major new questions about whether complete diversity is constitutionally required. Leading schools of originalism disagree about when canons can inform constitutional interpretation. But the canon against jurisdictional privilege would seem relevant to Article III’s original meaning under every major school of originalism. The canon thus points to the significant additional possibility that originalists should read the text of Article III’s diversity grant, not just Congress’s diversity statute, to reach no farther than instances of complete diversity. This history does not necessarily doom statutes (like the important Class Action Fairness Act) that ditch the complete diversity rule. It does mean the originalist case for these statutes depends on identifying constitutional language that overcomes the canon on the constitutional plane. This Article ends by suggesting one promising candidate—the Necessary and Proper Clause—for future research
Making Things Worse, Failing to Make Things Better
Full text linkThis Article presents the first extensive analysis of a question in American tort law that has remained unresolved for nearly a century. When someone voluntarily attempts to protect another person from a pre-existing, independent risk of harm, should they be held liable for negligently failing to make the situation better or should they be held liable only if they negligently make the situation worse? Different courts have answered this question differently. Noting the absence of a clear pattern in the case law, the Second and Third Restatements of Torts both decline to take a definitive position on the issue. I argue that it should be settled as follows: except in narrow and unusual circumstances involving emergency situations, it should be a necessary condition of liability for negligence in a voluntary undertaking that the actor’s conduct have made the situation worse by increasing the risk of harm to the victim beyond what it would have been absent the undertaking. Negligent conduct that does not increase the risk to another person—which I dub non-endangering negligence—generally should not give rise to liability unless nonfeasance (complete inaction) would have done so in the same circumstances. This follows from a principle lying at the heart of the common law of torts: tort liability generally requires that the defendant have engaged in affirmative conduct that made the world more dangerous to the plaintiff than it would have been in the defendant’s absence. Examining the question through the theoretical lenses of incentive-based tort theory and wrongs-based tort theory, I argue that non-endangering negligence in a voluntary undertaking should give rise to liability only in an emergency situation where a volunteer rescuer engages in bad-faith misconduct after taking charge of the imperiled person. In such circumstances, wrongs-based considerations weigh so heavily in favor of liability as to overcome tort law’s strong presumption against imposing negligence liability on a defendant who has not increased the danger to the plaintiff beyond what it would have been in the defendant’s absence
