Issue – 22.3

EXPLOITED AT THE INTERSECTION: A CRITICAL RACE FEMINIST ANALYSIS OF UNDOCUMENTED LATINA WORKERS AND THE ROLE OF THE PRIVATE ATTORNEY GENERAL
Llezlie Green Coleman

Undocumented Latina workers experience wage theft and other workplace exploitation at alarmingly high rates. The stock stories associated with immigrant workers often involve male day laborers or female domestic workers and fail to capture the experiences of women toiling in the farms, restaurants, factories, and home and business cleaning services that employ hundreds of thousands of immigrant women. The resulting invisibility of undocumented Latina women in the typical narratives parallels the paucity of undocumented Latina workers who make legal claims against their exploitative employers. Their distinct experiences are characterized by multiple intersecting vulnerabilities based upon their ethnicity, gender, and immigration status. Their vulnerability and their responses to workplace exploitation must also be understood with the context of intra-cultural narratives that complicate or discourage their ability to pursue their rights.

This Article applies a critical race feminist analysis to the workplace exploitation of undocumented Latina workers by exploring cultural narratives that may impact how workers experience workplace exploitation and how they respond to exploitation. It posits that a critical race feminism lens permits us to better identify, analyze, and construct potential solutions to the lack of claims-making by undocumented Latina workers. Given the importance of private enforcement of this country’s wage and hour statutes, this Article positions private attorneys general, and their role as storytellers, as critical to the enforcement of Latina workers’ rights and argues that the collaboration of organizations and attorneys is necessary to achieve that end.


UNHEALTHY DETERMINATIONS: CONTROLLING “MEDICAL NECESSITY”
Janet L. Dolgin

The notion of medical necessity has been the operative tool through which healthcare coverage determinations in the United States have been rendered and justified. Now, for most people, decisions about coverage translate into decisions about healthcare since few people can afford to pay for their own healthcare. The notion of medical necessity constitutes a necessary component of any healthcare system that is committed to providing high-quality healthcare at a sustainable cost. In practice, however, reliance on medical necessity to determine healthcare coverage is only as productive as the larger health care system within which medical necessity determinations occur. Definitions of both “medical” and “necessity” are flexible and interpretations are varied. As a result, the value of medical necessity determinations depends on the character of a nation’s healthcare delivery and payment structure and on the identity of those rendering medical necessity determinations.


OBESITY AND PUBLIC POLICY: A ROADMAP FOR REFORM
Deborah L. Rhode

 

This Article examines the causes and consequences of America’s rising rates of obesity and the public policy strategies most capable of addressing it. Discussion explores the complex factors that influence weight and the costs of obesity for individuals and society. Analysis then turns to the justifications for government intervention and evaluates a broad range of policy initiatives including disclosure requirements, taxes, bans on certain sugar-sweetened beverages, food stamp modifications, zoning regulations, children’s marketing, physical education, litigation, and education.


Note

TO BE OR NOT TO BE FORGOTTEN: BALANCING THE RIGHT TO KNOW WITH THE RIGHT TO PRIVACY IN THE DIGITAL AGE
Chelsea E. Carbone

In March 2010, Mario Costeja González filed a complaint with the Spanish Data Protection Agency against three entities: the daily newspaper La Vanguardia Ediciones SL, Google Spain SL, and Google, Inc. The complaint referred to two announcements that the newspaper had published on its online database, which Mr. González argued ought to be removed since they no longer portrayed accurate information and negatively impacted his reputation. In May 2014, the European Court of Justice ruled in Google Spain SL v. Mario Costeja González that individuals have a “right to be forgotten” within the European Union digital arena. Ironically, though Mr. González struggled to be forgotten, the attention elicited by the ensuing legal dispute rendered his past anything but forgotten.

This Note will address the Google Spain ruling and the significance of the “right to be forgotten” in the European Union and beyond. It will focus in particular on the balance between the right to know and the right to privacy by obscurity in the digital age, arguing that though implementation of the “right to be forgotten” is unlikely under U.S. law, its value is manifold when it comes to maintaining control over today’s global and ever-evolving digital culture.

Issue – 22.2

MAPPING THE FAMILIES OF THE INTERNAL REVENUE CODE
Tessa R. Davis

The Tax Code contains not one, but two conceptions of family. Existing scholarship does not address this puzzle but instead takes one of two views on the family—either the family is a tool for avoiding taxes or it is a source of discrimination. Current scholars, motivated by the discrimination concern, reject the relevance of kinship to tax and argue for an increased focus on the individual. This Article takes a different approach. Utilizing the “status” and “contract” distinctions familiar to family law scholars, it explains the puzzle of the multiple families in the Code, identifying the two families of the Code and their respective functions. Specifically, this Article shows that when we convey benefits through the Code, we understand family as broad and contract based. On the other hand, when our goal is to root out or head off tax gaming and avoidance, we constrict our notion to that of the nuclear, status-based family. Current reform proposals undervalue the importance of family to the prevention of avoidance and evasion, make targeting beneficial provisions more difficult, and inhibit the challenging work of reforming the Code to be both administratively feasible and nondiscriminatory. Contrary to existing scholarship, this Article argues we should neither cut kinship from the Code nor rely exclusively upon the contract family. Instead, this Article creates a framework for modernizing the tax treatment of the family that combines the strengths of kinship theory and the status and contract families to maintain fairness and administrability and utilizes that framework to make preliminary reforms to existing law.


INSIDER TRADING AND EVOLUTIONARY PSYCHOLOGY: STRONG RECIPROCITY, CHEATER DETECTION, AND THE EXPANDING BOUNDARIES OF THE LAW
Steven McNamara

Insider trading law has expanded in recent years to cover instances of trading on nonpublic information that fall outside of the fiduciary duty framework set forth by the U.S. Supreme Court in the landmark cases of Chiarella and Dirks. The trend towards a broader insider trading law moves the law closer towards what evolutionary psychology insists humans desire when engaging in collective action: that individuals benefit in proportion to the effort or investment they make in a common enterprise. Insider trading law can therefore be understood as a societal response to cheating in group activities, and the recent expansion of the law can be regarded as reflecting a proclivity for fairness as proportionality. An evolutionary psychology–based account of insider trading law also provides a basis for understanding the observed correlation between insider trading enforcement and various measures of the health of the financial markets, as well as a unified jurisprudence of insider trading law encompassing both consequentialist and deontological aspects.


TAKING DEMOCRACY SERIOUSLY: TOWARD A JURY-CENTERED JURISPRUDENCE
Daniel R. Correa

Legal philosophers have long labored to articulate a single standard by which practitioners and, to a lesser degree, members and passersby in any political society can identify the demands law makes of them. The challenge has always been to reconcile competing moral concerns between legal philosophers who hold that morality informs the inquiry and those who hold that social facts inform the inquiry without regard to whether one considers the law’s content good or evil. These debates, in large part, remain internal to legal practice, rarely inviting and hardly accessible to the general public.

Jeremy Waldron approaches the age-old inquiry by narrowing its focus. Rather than ask how law presents itself generally, Waldron asks how law presents itself in a democratic political system. Representatively enacted legislation epitomizes law in a democratic system for Waldron. To accept Waldron’s exposition of what law is like in a truly democratic system is to adopt a new approach to jurisprudence. The challenge is to take the promise that democracy makes seriously, that anything that aspires to the status of law permeate with an ethos of equality of participation. Although Waldron does not explicitly offer a vision for the judiciary in his democratic jurisprudence, this Article argues that his works implicitly offer such a vision. The jurisprudential inquiry no longer turns to what a traditional judge or judges do in courts; rather, a jurisprudential challenge is issued to increase the opportunities for and capacity of citizens to actively participate on an equal basis in choosing the laws that govern them. Jurisprudes are led, that is, toward a jury-centered jurisprudence.


Note

UNIQUELY QUALIFIED: THE CONSTITUTIONALITY OF POLICE AND CLERGY ALLIANCES
Nicholas Reaves

In October 2013, the American Atheists and the Freedom From Religion Foundation both threatened to sue Montgomery, Alabama over a controversial new initiative: Operation Good Shepherd. This initiative was designed by the city to leverage the resources of local clergy to help prevent crime and comfort victims and their families at crime scenes. While Operation Good Shepherd has received significant media attention following the publication of a September 2013 article in The Atlantic magazine questioning its constitutionality, it is not unique. Dozens of police departments in the past few decades have been teaming up with local clergy to create so-called “police and clergy alliances.”

This Note will analyze the constitutionality of Operation Good Shepherd and similar police and clergy alliances by applying several of the Supreme Court’s Establishment Clause tests to different aspects of the program. This Note will then argue that police and clergy alliances do not violate the Establishment Clause so long as volunteers respect the programs’ secular purposes and refrain from proselyting or talking about religious issues without the consent of program beneficiaries.

Issue – 22.1

Preventing Balkanization or Facilitating Racial Domination: A Critique of the New Equal Protection
Darren Lenard Hutchinson

The Supreme Court requires that equal protection plaintiffs prove defendants acted with discriminatory intent. The intent rule has insulated from judicial invalidation numerous policies that harmfully impact racial and ethnic minorities. Court doctrine also mandates that state actors generally remain colorblind. The colorblindness doctrine has led to the judicial invalidation of policies designed to ameliorate the conditions of racial inequality. Taken together, these two equality doctrines facilitate racial domination. The Court justifies this outcome on the ground that the Constitution does not protect “group rights.”

Constitutional law theorists have criticized these aspects of equal protection doctrine. Recently, however, some theorists have defended the Court’s discarding of group-based equal protection. They argue that social justice advocates should pursue redress for vulnerable groups by asserting dignity-based liberty claims under the Due Process Clause. In a widely cited article, Professor Kenji Yoshino argues, in fact, that dignity is the “New Equal Protection.” Applying insights from “social capital theory,” Yoshino contends that group-based equal protection causes “pluralism anxiety”—or a fear of “balkanization” among the justices. Dignity arguments, by contrast, do not present such concerns because they rest on appeals to universal justice.

This Article contests the view that the Court should discontinue class-based equal protection in order to maintain social cohesion. Leading social capital theorists find that multiculturalism, though temporarily divisive (if at all), provides many long-term benefits. Also, numerous social psychology studies find that racial and ethnic inequality cause far more social disruption than group-based identities. This empirical research also demonstrates that the Court’s equality doctrine mirrors the views regarding race relations held by most whites, while contradicting the perspectives of most persons of color. The enforcement of white majoritarian viewpoints should not serve as the foundation for an equality doctrine. Antisubordination theory, by contrast, would provide more egalitarian outcomes and should inform Court doctrine.


Bridging the Gap Between Unmet Legal Needs and an Oversupply of Lawyers: Creating Neighborhood Law Offices—The Philadelphia Experiment
Jules Lobel and Matthew Chapman

In the United States there is, simultaneously, an abundance of unemployed lawyers and a significant unmet need for legal care among middle-class households. This unfortunate paradox is protected by ideological, cultural, and practical paradigms both inside the legal community and out. These paradigms include the legal chase for prestige, the consumer’s inability to recognize a legal need, and the growing mountain of debt new lawyers enter the profession with.

This Article will discuss a very successful National Lawyers Guild experiment from 1930s-era Philadelphia that addressed a similar situation, in a time with similar paradigms, by emphasizing community-connected lawyering. That is, lawyering where the attorney prioritizes the client, works and is active in the community he or she seeks to serve, practices preventive lawyering, and charges fees that a working-class or middle-class person can afford. This Article then pulls this Philadelphia Experiment forward to our current time and discusses it in the light of other, more recent developments, including rural lawyer programs, the medical residency model, and crowd funding platforms. In doing so, this Article hopes to equip today’s practitioners with ideas they could utilize to help bridge this gap between unmet legal needs and an oversupply of lawyers.


The Impulse Towards Individual Criminal Punishment After the Financial Crisis
Robert Quigley

There is a widespread and influential account that the 2007–08 financial crisis was caused by the criminal acts of high-level banking executives, and that the failure to punish these acts delegitimizes our legal system and paves the way for future crises. This Article is the first piece of academic legal literature to assess this account in detail. It concludes that though high-level wrongdoing connected with the crisis may have been distressingly underprosecuted, it is neither a necessary nor a sufficient cause of the crisis. Economic regulation, not prosecution, is the surest way to prevent future crises.


Note

Made in America: Medical Tourism and Birth Tourism Leading to a Larger Base of Transient Citizenship
Tyler Grant

Transnationalism has become a much larger issue as international travel has increased, and countries are incentivized to ease border controls in order to boost their economies. At times, this comes at a cost. Birth tourism and medical tourism are becoming trends in the United States and Taiwan and are producing differing consequences that policymakers will have to address.

Many policymakers in the United States hoped that lifting travel restrictions would spur tourism. While perhaps true, as a result of this policy change, more foreign citizens are now able to perform a cost–benefit analysis of other nations’ laws in the hopes of relocating for benefits. With the Fourteenth Amendment to the U.S. Constitution providing citizenship to those born in the United States, thousands of pregnant women legally travel to the United States every year to give birth. This birth tourism ensures those children access to public education and healthcare in the United States. Additionally, U.S. citizens with dual citizenship in countries with affordable national health care, like Taiwan, travel overseas for medical treatment with minimal costs for reentry into those foreign health care systems. Such medical tourism increases medical and educational costs for taxpayers in the countries that provide generous government-sponsored health care. As globalization becomes more prominent, the amount of individuals looking across borders for healthcare and educational opportunities will continue to grow. When individuals cross borders for these opportunities, economic or social strain can result. This Note highlights this tension and discusses how policymakers on the ground are responding to an escalating situation.