The End of the “War”? Sentencing in Drug Cases in the Wake of the Fair Sentencing Act of 2010 by Monica Harris

For decades the Federal Sentencing Guidelines have subjected defendants in drug cases to drastically different sentences depending on whether their offenses involved crack or powder cocaine.  Any cursory study of the “War on Drugs” reveals that crack cocaine is much more likely to be used by minority populations, or in low-income areas.  Conversely, powder cocaine

Restoring Congressional Oversight of International Trade Agreements: The Trade Act of 2009 by Matthew Bohenek

The Trade Reform, Accountability, Development, and Employment (TRADE) Act of 2009, filed by Representative Michael Michaud and Senator Sherrod Brown, proposes to add extra Congressional oversight to trade agreements that are currently negotiated with little such oversight by agents of the executive branch, in particular the United States Trade Representative.  Some of these trade agreements,

Technology and the Fourth Amendment: Striking a Balance between Efficient Law Enforcement and the Right to Privacy by Gabriel de Corral

I. Introduction The Fourth Amendment to the United States Constitution establishes, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. …”[i] The development of Fourth Amendment jurisprudence has continuously dealt with emerging technology and how it should be used to

Not in My Borders: An Analysis of Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act by Natanya DeWeese

Introduction In 2009, there were approximately 11.1 million illegal immigrants in the United States.[1]  In an attempt to address the rampant illegal immigration in Arizona,[2] the Arizona State Legislature passed the Support Our Law Enforcement and Safe Neighborhoods Act, known as Senate Bill 1070 (S.B. 1070).[3]  The bill requires Arizona law enforcement officials to verify

Stigmatized Silence: The exclusion of HIV and AIDS Sufferers from the “Obamacare” Legal Landscape by Ashley Southerland

I.             INTRODUCTION

For some time now, American citizens infected with human immunodeficiency virus (HIV) and acquired immune deficiency syndrome (AIDS)[1] have held a tenuous place amidst the substantively ambiguous concentric circles of the healthcare system, insurance regimes, and the law.  Literally and legally, these individuals—despite being engulfed in an epidemiological and often-losing battle for their lives—only have shaky ground, at best, upon which to demand per se protections under the law throughout the various stages of their disease.[2] Unfortunately for them, the economic rationales for health status-based insurance discrimination and the legislative silence on protection under the Americans with Disabilities Act have resulted in a legal “donut hole” that has left many asymptomatic[3] HIV and AIDS sufferers lost in the legal fray, further stigmatized and uninsured with mounting medical costs and no foreseeable economic relief.

However, now that the Obama Administration has instituted major health care reform, both the health care system and the insurance coverage regime will receive a significant overhaul.  This Blog posits that, while “Obamacare” reform is no doubt one of the most significant pieces of social legislation of this era, the two laws that define it—the Patient Protection and Affordable Care Act[4] (PPACA) and the Health Care and Education Reconciliation Act of 2010[5]—are both riddled with the same substantive ambiguities that plague their statutory predecessors, and ultimately leave asymptomatic AIDS and HIV suffers unprotected from discrimination.

Vanishing Venue: Poof! And You Lose by Stephen Brown

I.  Disparate Results for Similarly Situated Plaintiffs

Imagine two plaintiffs in Georgia, Alice and Belinda, with very similar claims.  Alice was injured by a product that was manufactured and sold in Fulton County, Georgia.  Belinda was injured by a similar product, which was manufactured in Fulton County, but which was sold in nearby de Kalb County.  Both plaintiffs live in Fulton County and were injured in Fulton County.  Alice sues both the seller and the manufacturer as joint tortfeasors in Fulton County, as that is the only county where she may sue.[1] Belinda, who may sue in either Fulton County or de Kalb County,[2] decides to sue both defendants in Fulton County, since that is where she lives.

Although it was not immediately apparent at the time that their suits began, it becomes clear during the course of their respective trials that the defect in these products arose in the hands of the sellers, not the manufacturer.  Thus, the Fulton County Court relieves the manufacturers of all liability in both Alice’s and Belinda’s cases.  That presents no problem for Alice, as long as the seller is solvent—the Fulton County Court can still enter judgment against the seller for Alice’s injuries, since her seller is located in Fulton County.  Belinda, however, is not so lucky: because of a peculiar oddity of Georgia jurisdictional law known as “vanishing venue,”[3] the Fulton County Court is unable to enter judgment against the seller, who is from de Kalb County, because the only defendant from Fulton County has been released from liability.[4] If Belinda is to recover, she will have to start over with a new trial in de Kalb County, despite having already litigated her claim on the merits.

These two plaintiffs are similarly situated; the disparity in their treatment results solely from their defendants’ status as either residing in the same county or multiple counties.  Further, plaintiffs with defendants from multiple counties must wait until the end of their trial to determine whether the court that conducted their trial will be able to enter a valid judgment.  For these reasons, this blog entry suggests that courts should seriously question the constitutionality of the doctrine giving rise to these unfair results.

Necessary, but Not a Necessary Evil: Reforming Mandatory Auto Insurance Laws by Miles N. Clark

I. Introduction

In March 2009, Housing and Urban Development Secretary Shaun Donovan testified before Congress about the growing danger of a unique low-income housing crisis.  He stated that suburban sprawl has decentralized both affordable housing and job opportunities, which has rendered low-income families particularly susceptible to energy cost spikes.  Today, low-income suburban families spend nearly one third of their income on transportation.[ii] As the price of private transportation continues to soar, the rate of gentrification of urban areas has increased.  This, in turn, leads to rises in rents and property taxes in urban areas, which forces low-income residents to migrate to low-cost areas.  And for the first time, the destination of the underclass is the former haven of the old establishment: the suburbs, which during the past twenty years have been overbuilt and are now drastically undervalued.[iii] However, low-income families are particularly ill-suited to suburban life.  Its low densities and “clustered” land use patterns make public transportation uneconomical,[iv] and compel transportation by automobile.[v] Faced with unprecedented demand for private transportation among indigent drivers, states should seek to decrease the derivative costs of car ownership by providing government-run automobile insurance schemes for minimum coverage.  As three Canadian provinces demonstrate, such schemes ensure lower and more equitable insurance premium costs.

II. Automobile Insurance Law in the United States

That indigents must bear suburban driving costs is an unfortunate consequence of the market response to the energy crisis.  However, driving also requires purchasing automobile insurance, which is a matter of state control.  Current insurance schemes are an artifact of suburban preference for upper- and middle-class consumption: insurers exploit a false market to raise rates, and exploit information asymmetries to package gains as losses.[vi] Such transaction costs presuppose a consumer’s voluntarily participation in the market.  But what of the involuntary participant?

New York City Taxation of Corporate REMIC Residual Interest Holders by Mireille Zuckerman

I. Introduction

In 2007, the New York Division of Tax Appeals ruled in Delta Financial that the starting point for determining New York State corporate entire net income includes Real Estate Mortgage Investment Conduit (REMIC) excess inclusion.[1] The effect of Delta Financial is that even if a corporation has net losses for a taxable year, REMIC residual interest income remains subject to New York State tax.  This mimics the federal treatment of residual interest income.  Although New York City has not litigated this issue, the reasoning behind Delta Financial also applies to New York City general corporate tax.

Although the State published REMIC guidelines in 1988, the 2007 case was the first on this issue.  This is probably because the REMIC excess inclusion provisions have an impact on State and City tax assessment only in years in which a corporation reports a net loss.  After big losses in 2007 and 2008, corporations have been reporting zero taxable income to both the State and the City, even if they have large amounts of REMIC interest income.  New York City should begin pursuing this untaxed income.  This post briefly describes REMICs and the reasoning behind Delta Financial and the City’s decision to pursue REMIC residual interest income.

The Expansion of California’s Firefighter’s Rule Beyond its Intended Scope by Harley Glazer

The firefighter’s rule is a legal doctrine that prevents a firefighter from recovering from an individual whose ordinary negligence created the fire.[1] While it may seem harsh to disadvantage those who risk their lives to protect society, there are several policy considerations that support the doctrine.  First, firefighters should not be permitted to sue for

She Take My Money When I’m in Need: Arguments in Favor of Retaining the Willfulness Requirement in the Lanham Act’s Monetary Relief Provision by G. Ian Peng

Introduction Section 35(a) of the Lanham Act[1] addresses monetary remedies for trademark infringement and false designation claims.[2] Before 1999, this section entitled the plaintiff-trademark owner to potentially receive the defendant’s profits, damages sustained by the plaintiff, and the costs of the action, if there is a violation under § 43(a) of the Lanham Act (concerning

1 2 3