"The point is to make it uncomfortable enough for them in our city so they will want to move on down the road." - Lily Morgan, Grants Pass City Council President.1 Lily Morgan, here referring to the unhoused in her city, is anything but a lone crusader. After her city's anti-camping ordinance was upheld against a Cruel and Unusual Punishment Clause challenge in Johnson v. City of Grants Pass, the U.S. Supreme Court cleared the way for cities nationwide to deprive the civility and dignity of our country's most vulnerable citizens-our unhoused neighbors. Public officials are responding accordingly, effectively banishing homeless communities into exile. This comes at a time when states are grappling with a homelessness crisis. New Jersey is no exception. But New Jersey is not without recourse. The seminal decision of the New Jersey Supreme Court in Southern Burlington County NAACP v. Mount Laurel Township provides an analytical framework by which shelter should be recognized as a negative right under the state constitution-protecting individuals against government punishment for simply being unsheltered.
To date, the prevailing model of public safety takes the form of a police-centric community policing model where police officers are first to engage with the community on issues such as aiding the homeless, responding to nonviolent mental health situations, stopping traffic, treating youth unemployment, addressing substance use disorder incidents and other societal service activities. As a result, this model encourages and increases civilian contact with armed police officers, which can ultimately result in violent responses and even shootings during nonviolent situations. A history of police violence against nonviolent offenders underscores the depth of the crisis. In May 2020, police officer Derek Chauvin responded to a call over a phony $20 bill. Although such an offense is a minor, nonviolent one, George Floyd was murdered by Officer Chauvin, who restrained Floyd by kneeling on his neck for over nine minutes. A few years earlier, in Staten Island, Eric Garner was killed by Officer Pantaleo when Officer Pantaleo used an illegal chokehold on Garner that ended his life for allegedly selling untaxed cigarettes. Incident after incident has demonstrated that there is a pressing need to rethink public safety. This Article argues that we need to rethink public safety by (1) narrowing the scope of police responses to only violent crimes, ongoing crimes, and serious felonies, and (2) creating a team of Civilian Unarmed Public Safety Responders ("CUPSR") to respond to all other nonviolent crimes.
In Sackett v. EPA, the United States Supreme Court departed from precedent and adopted a relatively narrow interpretation of the geographical scope of the Clean Water Act. As a result, the Court effectively eliminated the federal government's ability to regulate and protect a vast number of the country's freshwater wetlands. To fill this regulatory gap, individual states must now seek to enact their own statutes to protect freshwater wetland ecosystems from unmitigated degradation and destruction. To that end, states should consider adopting a model freshwater wetland protection law that draws upon the strengths of existing state-level programs and seeks to balance environmental interests with the interests of private property owners. Existing state-level programs, such as that created under New Jersey's Freshwater Wetland Protection Act, should serve as a framework upon which this model freshwater wetland statute is based.
Sea level rise-one of the most consequential effects of climate change-will have an outsized impact on New Jersey. Increased flooding will permanently alter the state by causing devastating damage that leaves many homes uninhabitable, precipitating a need to relocate residents before that happens. Due to its voluntary nature, the state's current property acquisition program can only do so much to respond to this looming crisis. Accordingly, New Jersey should use eminent domain in a fair and equitable manner to compel homeowners to move before disaster strikes. Given its distinct coastal geography, environmentally progressive policies, and effective, established buyout scheme, the Garden State is an ideal place to enact a groundbreaking buyout program backed by eminent domain that can be used to proactively protect residents from the impending threat presented by rising sea levels.
The COVID-19 pandemic suddenly made the impossible possible. Eviction moratoriums, loan forbearance, and new funding for both households and social programs were enacted in response to the emergency and enjoyed widespread public support. In this Note, I explore the context and consequences of a provision of a New Jersey pandemic-relief law that forbids landlords from selling or assigning rent debt accrued during the pandemic period. This law, in addition to its practical effect, serves as a reminder that property relations are malleable. I situate the law within the contemporary social context of housing and debt and review efforts to decommodify housing and prioritize its value as home over its value as an investment. The statute provides an opening to question who and what our property laws serve, and an opportunity to organize for change. Have we not found that human beings are not just means to profit? Hasn't government again and again been forced to legislate that men be given a fair wage just compensation the right to life, liberty and happiness? The government is reminding us that a man has a dignity not merely a price, a human value not merely a use value. And unless we remember this, man will perish.
This Article considers the interaction between marriage, households, and public welfare-type benefits. In light of constant cultural and media attention to "the two parent privilege," this Article argues that the very purpose of public benefits in the modern era is up for redefinition. The information age, much like the industrial revolution before it, has remade the preconditions for entry into the middle class and contributed to new middle-class family strategies geared to the changing labor market realities. This new era, which has increased income instability and employment insecurity, has increased economic inequality and eroded what were once secure pathways into middle-class status. This changing economy requires rethinking the purpose of public benefits and a reexamination of the fairness and utility of tying benefits to employment or marriage. Rethinking these connections requires reconceiving the State's role from one that fills in the gaps left by private jobs' creation and relationships to one that extends access to the preconditions for middle-class status. This Article makes three contributions. First, it shows that marriage takes on a very different meaning in the new economy. Second, this Article challenges recent exhortations to marry as a way to improve children's futures, ensure economic stability, and increase overall happiness. Finally, this Article asks how, in the context of a post-industrial economy with constantly shifting employment needs, to assist in making the preconditions for middle class status universal instead of asking how to fill in the gaps of, or supplement, a private system that no longer reliably provides life-long employment for a large part of the population. In this venture, marriage becomes largely irrelevant to benefit design. Part I surveys the design of the public benefits associated with relationship status as a precondition for middle-class status. Part II analyzes who actually receives the different types of marriage-based benefits. While, as Windsor pointed out, a number of federal statutes use marital status as a category, that status is not always a benefit, particularly for people who do not have a job. Part III explores why marriage remains resonant and for whom. Finally, Part IV sketches out what a redesign of the public system might look like, analyzing how relationship status might be irrelevant to the availability of benefits.
This Note challenges the prevailing assumption that siblings do not have fundamental legal rights of association, and illustrates, through a case in the author's own family, the barriers this presumption erects in the guardianship context. Guardianship law is state law, and therefore differs from state to state. Some states do not explicitly recognize siblings as parties that have standing in guardianship and visitation disputes. This legal construct devalues sibling relationships, which are often amongst the most meaningful and long-lasting relationships enjoyed by an individual. In the absence of state protections, siblings may turn to the Constitution to assert a liberty interest in their sibling relationship, but often find no relief. In addition to comparing state statutory schemes and examining the state-based guardianship system, this Note revisits Supreme Court family law precedents to show that they present a more complicated approach to constitutional siblinghood than conventionally assumed and point toward a fundamental liberty interest that reaches siblings. Recognizing this view, some courts have begun to embrace a broader approach to guardianship disputes and sibling standing issues. Ultimately, this Note argues that protections for sibling rights in adult guardianship and visitation cases should be strengthened at the federal and state level.
The creation of art relies upon prior influences that work to inform new and emerging styles and movements. Yet, traditional notions of copyright law are at odds with postmodern art which thrives in the ubiquity of copying. The doctrine of fair use was codified in the Copyright Act of 1976 to facilitate a workable balance between protecting the rights of the creator and permitting others to borrow for the creation of new works. However, the adjudication of the fair use defense, specifically pertaining to transformative use, is not reflective of the changing landscape of contemporary art and is applied inconsistently throughout copyright jurisprudence. This Note examines the problematic approaches undertaken by the courts when applying the first factor of the defense and ultimately suggests a proposal in the form of rebalancing the fair use doctrine, narrowing the scope of derivative rights, and limiting vicarious and contributory liability on the part of the gallery or art museum displaying the work.
2.5 million children are being raised by grandparents or other relatives, a number that continues to increase rapidly due to stresses on families including, for instance, the opiate epidemic. Children removed from their parents do best on every metric in kinship care, not least because of their ongoing connection to their families of origin, including siblings, and to cultural and racial heritage. Accordingly, kinship caregivers are doing a massive, mostly unpaid, service by caring for many children; If even half the children being raised in informal kinship care entered the foster system, it would cost over $6.5 billion a year. Yet despite their prevalence and importance for children, policymakers and legal scholars continue to, at best, ignore and, at worst, pathologize and under serve kinship care families. The erasure and under-resourcing of kinship families are inextricably connected to race and class. Living in extended family has always been more common among Black and indigenous communities due to both choice and economic necessity. Yet these families are not accorded legal status and are pressured to ‘shoehorn’ themselves into the nuclear family or other normative family forms, despite the ill fit. In this piece for the 2023 Non-Marital Roundtable, I chart the benefits of and need for more support to kinship caregiving, while also critiquing the deeply flawed landscape of fostering and public adoption. Kinship caregivers are almost always offered the stark choice of adoption or no state support at all, despite other potential options such as subsidized guardianship. Indeed, these caregivers are presented with a Hobson’s choice between legal recognition and financial support at the price of severing other family ties, and—what the vast majority choose—living in an informal arrangement, which brings no legal recognition or funding. Kinship caregivers often do not want to adopt for very legitimate reasons, such as the history of family separation and white saviorism still pervading the contemporary adoption system. My practice experience, confirmed by research, taught me that another major factor is that adoption, unlike guardianship, requires a termination of the birth parents’ rights (“TPR”). In addition to the harm a TPR, aptly termed the “civil death penalty,” brings parents, adoption disregards the lived experience of children and their families—a grandmother is not a parent in her or the child’s eyes. Driven by racialized politics denigrating low-income families, the Adoption and Safe Families Act (ASFA) framework incentivizes child removal and TPRs among marginalized families to create a supply of adoptable children. Those same racial politics are heightened in the wake of Dobbs and the cessation of most international adoption, resulting in an almost obsessive focus on increasing the supply of adoptive babies and on an (unrealistic and harmful) “adoption cure” for poverty, infertility, barriers to abortion, and more. Being offered adoption or nothing harms kinship caregivers and children in both material and dignitary ways. Many kinship caregivers continue to struggle to gain the practical ability to, for example, take a child to the doctor or enroll a child in school—abilities mainstream families take for granted. This legal gap is compounded by the fact that many relatives are also deemed not "good enough” to adopt based on poverty and bias; the recent U.S. Supreme Court case of Haaland v. Brackeen centered on two particularly heartbreaking examples concerning indigenous families. Foster and adoptive parents receive significant federal aid, and foregoing this aid to avoid adoption is no doubt a major reason why grandmothers raising children are the poorest households nationwide. There are also dignitary harms to families being forced to conform to a white middle-class hetero normative family form that never represented the majority of U.S. households. I conclude the Article with some “non-reformist reforms” to improve the current system, and a call for abolition of the current system and a re-imagination of state support can meet the needs of all children and their caregivers.
Healthcare fraud is a billion-dollar industry in the United States. Because healthcare fraud is varied in method and often subtle, it is difficult to catch. The federal government's main tool for fighting this fraud is the False Claims Act ("FCA"). One of the most important ways the government enforces the FCA is through its connection with the Anti-Kickback Statute ("AKS"). This connection provides that if a claim results from a violation of the AKS, it is false for FCA purposes. The difficulties of proof in this context have given rise to a circuit split about how to prove this causal connection. There are three main theories, each with its own problems. The taint theory, which holds that a claim is false if it is so much as tainted by a kickback scheme, has the potential to hold defendants liable for lawful conduct. The but-for cause theory holds plaintiffs to a standard of proof that is difficult to meet in healthcare fraud cases. Under the link theory, a plaintiff can prove a class of claims is false if plaintiff can prove that one of the claims is linked to a kickback scheme. The link theory seeks to ameliorate the plaintiff's difficulty in proving causation. However, it does not give the defendant a chance to contest the claims the theory allows plaintiff to skip. A new causation rule is required. It must be flexible but also fair to defendants. It should also be calibrated to account for healthcare fraud cases' factual variety and complexity. This Note proposes a new causation rule: if plaintiff can show that a kickback scheme is the kind of scheme that plausibly gives rise to the kinds of claims plaintiff alleges, the burden should shift to defendant to show that the kickback scheme was not the but-for cause of the claims.
Year in and year out, states redistribute power among officials and branches. Some redistributions, reflecting an era of polarization and hardball, are efforts by one party to entrench its power and disadvantage its rivals. Other structural changes are more ordinary efforts to advance a policy vision or retool decision-making. Either way, conflicts over power redistributions often land in state court and are unlikely to go away. State courts regularly view these structural conflicts through a federally resonant lens, patrolling the three state branches' supposed institutional boundaries at a high level of abstraction. This Essay seeks to reorient state structural adjudication. Analysis that classifies power as executive, legislative, or judicial is an important starting point. But as at the federal level, horizontal classification alone whether in service of formalism or functionalism can produce illogical decisions and fall short in hard cases. Suffused with democratic commitments, state constitutions offer other options. State courts are well-suited to consider not just horizontal. but also vertical effects on the state's democracy and the people that state distributions of power are intended to serve. Many state courts already acknowledge both the limits of horizontal classification alone and the relationship between power distributions and democracy, though they have yet to fully develop an alternative approach. The Essay proposes a framework for adjudicating state structural conflicts that incorporates a limited but crucial set of democratic considerations. As prior work has shown, state constitutions embrace core democratic pillars of popular sovereignty, majority rule, and political equality. A democratic inquiry in structural cases need not replicate the indeterminacy of horizontal classifications. Instead, it should focus on whether a law impairs all three pillars and thus the basic operation of democracy often by entrenching government power. Folding this democratic review into structural analysis will sometimes support redistributions of power by well-functioning institutions. As importantly, it stands ready to limit redistributions that would thwart popular self-rule. Review along these lines will not bring magical certainty to the distribution of powers conflicts, but it will better align structural jurisprudence with both state constitutional commitments and the real world of state democracy.
