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Structural Precarity and Potential in Condominium Governance Design
Get PDFIn the early hours of June 24, 2021, half of Champlain Towers South Condominium, a thirteen-story multifamily building located in the Miami suburb of Surfside, collapsed without warning. The Miami Herald called the collapse “unprecedented” in that one wing “simply caved in––for no obvious reason.” The collapse killed ninety-eight people and was the deadliest multifamily building engineering failure in US history. After an arduous search and rescue and safely dismantling the rest of the structure, inquiries sought to determine why this deadly collapse happened. Who was to blame, and what could have been done differently?Within six months of this tragedy, engineering analyses pieced together a picture of a building with hidden, fatal vulnerabilities. Engineering experts concluded that the condominium’s building design was flawed from the start. The project was built by inexperienced developers using an architect who had his license suspended for “gross incompetence.” Dangers created by design vulnerabilities were compounded by shoddy construction in terms of materials and methods. Drainage and waterproofing were completely inadequate. A neighboring development may have weakened the condominium’s perimeter wall. The engineering post mortem analysis concluded: “This building was so overstressed for so long it’s amazing it stood as long as it did.”The final straw that broke the back of Champlain Towers South was the failure to make necessary structural repairs. For decades, the condominium board had opted for superficial measures that masked the underlying vulnerabilities or even exacerbated them. Members of Champlain Towers South Condominium learned the extent of their building’s underlying and worsening structural problems in 2018 when the board commissioned an engineering study to comply with Miami’s multifamily recertification requirements. The engineering study identified several critically necessary repairs and warned that “[f]ailure to replace the waterproofing in the near future will cause the extent of the concrete deterioration to expand exponentially.”After the 2018 report, the board planned for remediation of the issues raised, but many members of the condominium balked when they learned that these repairs would cost over 15 million. Minutes of board meetings over the three years prior to the building’s collapse show that repeated attempts to approve a special assessment to pay for repairs were stymied by disagreements about getting the work done and, particularly, paying for it. A vocal contingent of owners resisted the repair effort, and members of the Board resigned in protest. The necessary work was delayed for months and years until, one night, damaged rebar inside the concrete structure fractured, thereby destabilizing the tower and causing it to collapse in on itself “like a folding card table.”Champlain Towers South suffered from design faults that created structural vulnerabilities as well as insufficient maintenance that exacerbated them, but the building’s ownership and governance design may have also contributed to the deadly effects of its structural failings. Champlain Towers South was a condominium, a legal ownership construction that theoretically encourages and enables adequate building construction and maintenance. In addition to asking engineering questions about the building’s physical structure, an analysis of the tragedy also requires asking legal questions regarding the condominium’s governance design. Structuring the building’s ownership as a condominium ultimately failed to ensure quality construction and upkeep, and condominium governance may also have inhibited remediation of the building’s structural vulnerabilities.This Article examines a condominium’s legal structure in the context of ensuring construction and upkeep quality in a multifamily building and explores possible systemic improvements. Part I considers three latent vulnerabilities inherent in the condominium governance structure: (1) over-protection of developers; (2) unwillingness of members to ensure optimal upkeep; and (3) association financial precarity. Part II critiques some suggested legal responses to the Surfside disaster and discusses the swift and dramatic impacts on condominium governance caused by changed underwriting requirements of Fannie Mae and Freddie Mac. Finally, this Article concludes by calling for more effective stabilization of condominium governance to remediate its inherent structural weaknesses
Strengthening the Internal Affairs Doctrine Juul Labs, Inc. v. Grove, 238 A.3d 904 (Del. Ch. 2020).
Get PDFThe state of Delaware plays a significant role in shaping corporate law around the country. Delaware is home to a substantial number of corporations – more than half of publicly held corporations and over sixty percent of Fortune 500 companies are incorporated in the state. Furthermore, it contains the most out-of-state incorporations – a situation where a business incorporates in Delaware but has a principal place of business in another state. For instance, the State of Missouri has ten Fortune 500 corporations with their principal place of business in the state, two of which are incorporated in Delaware. Delaware maintains that the large number of incorporations is due to the predictability and stability provided by the Delaware General Corporation Law (“DGCL”), the corporate law-focused Delaware Court of Chancery (“Chancery Court”), and the prompt and efficient service provided to corporations through the state’s tailored legal system. Regardless of the accuracy of these claims, commentators and experts generally agree on Delaware’s importance in corporate law
Hindsight 20/20: Missouri’s Use of Statutory Interpretation as a Key Insight for Future Litigation Missouri State Conference of Nat’l Ass’n for the Advancement of Colored People v. State, 607 S.W.3d 728 (Mo. 2020).
Get PDFIn Missouri State Conference of Nat’l Ass’n for the Advancement of Colored People v. State (hereinafter “NAACP v. State”), the Supreme Court of Missouri interpreted a Missouri statute that expanded the right to vote absentee in response to the COVID-19 pandemic. The new provision allowed all registered Missouri voters to vote absentee during the 2020 elections but required most absentee voters to have their ballots notarized. Voters who were “confined due to illness” or qualified as part of an “at-risk” category, however, were not required to have their ballots notarized. Appellants challenged the bill, claiming that voluntarily confining oneself as a precautionary measure and in accordance with social distancing guidelines was a form of “confinement due to illness,” which would permit valid absentee voting without requiring the certification of a notary. Appellants also argued that requiring notarization for individuals that do not fall into the enumerated categories infringed on their fundamental right to vote under the Missouri Constitution. The Supreme Court of Missouri employed various methods of statutory interpretation to determine when individuals are “confined due to illness” and how enacted safety and social distancing measures affect the Constitutional right to vote.6 The decision in NAACP v. State provides insight into the Supreme Court of Missouri’s interpretation of legislative action in response to emergency situations
Muddy Waters: Fair Use Implications of Google v. Oracle America, Inc.
Get PDFThe United States Supreme Court ruling in Google LLC v. Oracle America, Inc. ended a long-running dispute between two giant technology companies. The case, which first began in 2010, has received considerable attention and commentary with regard to the scope of copyright protection for software and then about the contours of the fair use defense. The Court ultimately left the software copyright questions for another day, but it did render an important decision on fair use, the first major precedent on this important topic since 1994.
The Court’s fair use ruling provides important guidance on the scope of fair use in the context of computer software and other functional works, and it provides some clarity on the extent to which a use of copyrighted works can be deemed transformative. But the Court’s analysis might only exacerbate the unpredictable nature of the fair use defense, particularly given its treatment of the role of good faith, the scope of potential markets that may be affected by an unauthorized use of copyrighted works, and the role (if any) of the public interest in the market effect factor of the fair use analysis
The Destruction Gap: A Study of the Unprotected Societal Interest in Privately Held Artworks
Get PDFImagine putting a Warhol through a washing machine, a Rembrandt in a recycling bin, or a Seurat in a shredder. If you are the lucky owner of a masterpiece by one of these artists you may take any of these actions and face no legal repercussions, thereby destroying the artwork and removing it from the cultural landscape. Our understanding of world history would be neither as beautiful, illuminated, nor as informed if artworks of cultural significance like these were destroyed. For example, little would be known of the ideologies of pre-historic civilizations but for the sculptures, wall paintings, and other artistic endeavors our predecessors have left behind. Beyond their historical significance, these original works of art can improve critical thinking skills and the viewers’ mood. Thus, there is a general societal interest in preserving our shared artistic history for generations to come
Addressing Big Tech\u27s Market Power: A Comparative Institutional Analysis
Get PDFThis Article provides a comparative institutional analysis of the three leading approaches to addressing the market power of large digital platforms: (1) traditional antitrust law, the approach thus far taken in the United States; (2) ex ante conduct rules, the approach embraced by the European Union\u27s Digital Markets Act and several bills under consideration in the U.S. Congress; and (3) ongoing agency oversight, the approach embraced by the United Kingdom with its newly established Digital Markets Unit. After identifying the general advantages and disadvantages of each approach, the Article examines how they are likely to play out in the context of digital platforms. It first examines whether antitrust is indeed too slow and indeterminate to tackle market power concerns arising from digital platforms, as proponents of ex ante conduct rules and agency oversight have suggested. It next considers possible error costs resulting from the most prominent proposed conduct rules: (1) structural separations and line of business restrictions; (2) bans on self-preferencing by platforms; (3) requirements to allow platform users to remove pre-installed software, sideload apps, and use alternative payment systems to make purchases on the platform; and (4) data-portability, data-sharing, and platform interoperability mandates. It then shows how three features of the agency oversight model - its broad focus, political susceptibility, and perpetual control - render it particularly vulnerable to rent-seeking efforts and agency capture. The Article ultimately concludes that antitrust\u27s downsides (relative indeterminacy and slowness) are likely to be less significant than those of ex ante conduct rules (large error costs resulting from high informational requirements) and ongoing agency oversight (rent-seeking and agency capture)
Ruth Bader Ginsburg\u27s Copyright Jurisprudence
No full textWhen Justice Ruth Bader Ginsburg died on September 18, 2020, the world lost a trailblazer for gender equality, a pop culture icon, a feisty liberal luminary who fought on behalf of the disenfranchised in the areas of civil rights and social Justice, and an inspiration to millions of people. She will long be remembered for the social changes she helped effectuate as an advocate, scholar, and Jurist.
Her amazing civil rights legacy overshadows other areas where Justice Ginsburg\u27s contributions have been substantial. This Article discusses one of the most interesting: copyright law. During her time as a Jurist on the Supreme Court and D.C. Circuit, she authored sixteen opinions in copyright cases and Joined her colleagues\u27 opinions in eleven others. But unlike her gender equality and social Justice opinions, in which she predictably sided with rock-slinging Davids, Justice Ginsburg tended to favor Goliath content owners in copyright cases. This Article offers possible explanations for why this was so, by holistically evaluating Justice Ginsburg\u27s copyright writings. It identifies several themes running through her copyright opinions-incrementalism, intergovernmental deference, a preference for alternative mechanisms for relief, and stoicism-and Juxtaposes her copyright Jurisprudence with her approaches to gender equality and reproductive rights
The Fourth National Guardianship: An Introduction
Get PDFThis issue of the Syracuse Law Review contains the proceedings of the Fourth National Guardianship Summit, an interdisciplinary online conference with some 125 participants which was held in May 2021 and hosted by the Syracuse University College of Law. In addition to this Introduction, this issue of the Law Review contains the Recommendations approved by the Summit attendees, and the articles prepared for the Summit. The theme of the Fourth Summit was Maximizing Autonomy and Ensuring Accountability. The Recommendations fit this theme, including Recommendations to enhance the rights of persons subject to guardianship, to improve and increase the use of supported decision-making, to increase the use of limited guardianship, including the possible elimination of plenary guardianship, to rethink guardianship monitoring to reduce tensions between fiduciary roles, and to create and fund a court improvement program for adult guardianship. The Recommendations and other details of the Fourth Summit are best considered after a discussion of the history of the prior three conferences
Crisis, Rupture and Structural Change: Re-Imagining Global Learning and Engagement While Staying in Place during the COVID-19 Pandemic
No full textThe COVID-19 pandemic led to unprecedented closures of national borders and the withdrawal of much of the social and cultural activities of society into the walls of the home. For us, educators focused on global engagement and analyzing international law and society, the abrupt retreat into the shelter of domestic walls disrupted the very subjects we were studying-inside and outside the classroom. In the pandemic \u27s first wave, most study abroad and international experiential programs were cancelled indefinitely, and the programs that continued had to operate in an environment of social distancing and uncertainty. We were forced to scramble to accommodate the needs of our students who were suddenly sent home or had travel plans cancelled. At the same time, the global nature of this and other ongoing crises (from humanitarian emergencies that spill across borders to the global impacts of climate change) underscored the need to prepare students for a future where both cross-border crises and the need for international collaboration and education will be heightened. These developments also highlighted the need for a variety of meaningful virtual alternatives for students to acquire the critical skills and knowledge needed to succeed in global and cross-cultural environments.
Against this backdrop, in late spring 2020 we turned our focus to developing a course to turn the COVID-19 crisis itself into a virtual international learning opportunity. We aimed to utilize the shared experience of living through a pandemic that was now a global crisis as a starting point for the exploration of global perspectives and responses to crisis, and as a vantage point to help students link their current challenges and experiences to the impact of pandemic in the societies where they had planned to travel for work or study. Isolated in our homes with our own public and domestic lives collapsing and colliding, we aimed to create global connections by creating a space where we and our students could connect the ruptures created by the current crisis to the ruptures and reshaping of perspectives, world views, and personal trajectories that is the hallmark of a transformative global or intercultural encounter. Our goal was to deepen students\u27 empathetic, contemplative, and communication skills-critical components of global experiential education-while drawing upon literature and pedagogy in these areas and employing experiential learning techniques. The rise of protests related to the Black Lives Matter movement in the middle of the course added a new dimension to our plan and served as a catalyst for both ourselves and our students to move beyond the original course goals and metrics, and to utilize our experiences living through a crisis as to explore how individuals and societies create and grapple with structural change. Similarly, the clashes and re-drawing of lines between our homes, workplaces and classrooms created additional opportunities for connection and to replace reimaging our individual and collective futures. This reflective essay interrogates and records our goals, methods and experiences in creating this classroom space and pedagogical experience during a period of crisis. Ultimately, it memorializes how the experience of developing and teaching this course during the COVID-19 pandemic itself also served as a crucible that reflected the pressures of the pandemic experience, and how our attempts to catalyze change and global engagement for our students were transformative for our own professional and personal trajectories
Democratic Culture and Democratic Shocks: The Limits of Constitutional Cycles
Get PDFIn his new book, The Cycles of Constitutional Time, Jack Balkin achieves something remarkable. He paints an unflinchingly grim portrait of modern American politics that is at once brutally honest about the dire state of our predicament while also somehow brimming with optimism and hope. In that regard, it is Balkinsian to its core – sober and trenchant in its analysis, yet buoyant in its outlook. Not many people could have written a book like this. And we should be grateful that he has. At a time like this, when it feels like the democratic sun is ever more likely to be shrouded in total darkness, we need Balkin’s characteristic galloping prose and encouraging spirit to instill the belief that a brighter day lies ahead