Wine Unwelcome: The Constitutional Contours of Wine Regulation

Wine retail shops face a dizzying labyrinth of state laws that severely restrict their ability to ship wine to out-of-state consumers. While the dormant Commerce Clause would normally strike down laws that impose restrictions on interstate commerce, wine (and alcoholic beverages) must contend with Section Two of the Twenty-first Amendment, which gives the states control over the importation and distribution of wine intending to be consumed within their borders. Court of Appeals cases interpreting Supreme Court precedent on the tension between the dormant Commerce Clause and Section Two have practically stripped the dormant Commerce Clause of any power. This Note critiques Court of Appeals decisions which have impermissibly relegated the dormant Commerce Clause to a mere afterthought. Additionally, this Note encourages courts to adopt a stronger, more onerous dormant Commerce Clause analysis – one that, in the end, is more faithful to the Supreme Court precedent they purport to obey. In doing so, courts can remove the shackles that stringent, discriminatory wine laws impose and mend an unjustifiably splintered market

Conflicting Canons of Construction: The Aftermath in Veterans’ Law

Until June 28, 2024, when the United States Supreme Court overturned decades of administrative law precedent, veterans\u27 law judges, veterans, and practitioners alike would gather in the administrative law arena to watch an unpredictable battle: Chevron vs. Gardner. The outcome of bouts between these heavyweights was as unexpected as the plot twist in an M. Night Shyamalan film. As a result, our nation’s veterans were defeated. Federal courts tended to apply either Chevron (agency deference) or Gardner (veteran friendliness) and courts rarely mentioned both canons of construction in the same opinion. It was difficult to predict which canon of construction would be used, yet a noticeable pattern emerged. If courts relied on Chevron in a veterans\u27 benefits case, the decision was almost always favorable for VA (the agency). In contrast, if courts relied on Gardner in a veterans\u27 benefits case, the decision was almost always favorable for the veteran. The United States Supreme Court never gave guidance to lower courts on which canon of construction to use, so inconsistency permeated veterans\u27 benefits cases involving interpretation of statutes. Chevron and Gardner fought for different causes; Chevron demanded deference to VA\u27s interpretation of ambiguous statutes and Gardner still instructs courts to apply a pro-veteran interpretation when interpreting veterans’ benefits statutes. In its recent majority opinion in which Chevron was overruled, the Supreme Court made no mention of Gardner. Despite more than sixteen million veterans living in the United States, not a drop of ink has been spilled to explain the groundbreaking decision\u27s impact on veterans and the practice of veterans\u27 law. How will courts approach statutory interpretation in veterans\u27 benefits cases now that Chevron has been overruled? The Supreme Court suggested in its recent Loper Bright opinion that courts should use Skidmore and the best reading doctrine to interpret statutes. How does the pro-veteran canon found in Gardner fit into this new framework? Although the Supreme Court did not mention Gardner in its Loper Bright decision, courts should apply Gardner in the post-Chevron era. Gardner is a battle-tested canon of construction. It should be used as courts determine whether a veterans\u27 benefits statute is truly ambiguous, and it should be considered before courts settle on the best reading of a veterans’ benefits statute. This is true even in cases wherein VA offers its own interpretation and courts use Skidmore. There is no need for Skidmore to displace Gardner. Gardner helps ensure a non-adversarial system for veterans, as Congress intended, and as reflected in the Veterans’ Judicial Review Act. VA\u27s power to persuade should be considered per Skidmore, of course, but it should be considered considering Gardner (the pro-veteran canon). This approach honors the separation of powers because Congress’s intent for a veteran-friendly adjudicatory process is clear. This proposal also promotes stare decisis because the pro-veteran canon of construction is a well-rooted tool of statutory construction that has been applied since 1994. If there is a battle between Skidmore and Gardner, it is veterans who should wear the championship belt

SHAPING A MORE EQUITABLE ELECTION SYSTEM: A CANADIAN APPROACH TO SOLVING THE VOTING RIGHTS CRISIS IN AMERICA

In 1965, the Voting Rights Act was passed, ushering in a new era of voting freedom. The Act brought an end to many of the overtly discriminatory practices that had persisted for nearly two centuries. Over time, however, states began to introduce more subtle and complex voting regulations that gradually undermined the gains achieved through the civil rights movement. In 2021, the Supreme Court dismantled an essential safeguard for voters, significantly weakening the protections the Act once guaranteed. This erosion of protections is largely attributable to a single doctrinal standard within the Act, known as the totality of the circumstances test, which determines if voting policies are discriminatory. By analyzing voting regulations individually, rather than in their broader context, this test often fails to capture the cumulative and systemic effects of multiple laws that, together, can suppress voter participation. This Note explores the proportionality test used in Canada to evaluate potentially discriminatory voting laws. This test offers a more rigorous and structured analytical framework that is better equipped to assess how seemingly neutral laws may disproportionately impact minority groups. As a result, it provides a more consistent and equitable means of protecting voting rights. Ultimately, this Note advocates for amending the Voting Rights Act to replace the totality of the circumstances test with the proportionality test

Who Owns Your Adventure? A Need for Legislative Clarity for Streamed Performances of Video Games

Video games contain copyrighted material that could easily be infringed upon by people streaming a performance of them playing the game. However, the streamers can protect themselves from infringement liability by transforming the content in some form or fashion such that their performance constitutes “fair use” of the copyrighted material. This is often accomplished by the streamer providing commentary while playing the game or adding a small video of themselves in the corner of the stream so that the viewers can see the streamers’ reactions to the content. With artificial intelligence seeing exponential growth in the past couple of years both in use and in quality of output, it is only a matter of time before artificial intelligence becomes a prevalent component or feature present in video games. For example, artificial intelligence has already been used to create video game characters that utilize ChatGPT so that the player can provide the character with unique dialogue inputs and in return receive unique dialogue outputs. This Note argues that the mere performance of a video game that utilizes artificial intelligence, without any sort of additional commentary or reactionary video content, is sufficiently transformative as to constitute fair use under copyright law. Additionally, this Note considers the possibility of legislative action providing such protection

Visa to Stay: Immigration Reform for International Students in the United States: From Contractual Limits to Affiliation-Based Opportunities

International student mobility is a vehicle of globalization in today’s world, with a significant rise in students pursuing higher education abroad over the past two decades, reaching approximately 6.9 million globally. Regardless of personal motivations, the decision to study abroad rests in a careful evaluation of whether long-term rewards outweigh the short-term sacrifices these students make. For students looking to build a professional foundation and immerse themselves in the culture of the country in which they study, few long-term rewards are more appealing than having their student visas serve as a pathway to permanent residency. Determining who may be granted permanent residence in a country is central to immigration law and an issue that continues to fuel extensive scholarly debate and theorization. Professor Hiroshi Motomura offers two lenses through which immigration law can be viewed: immigration as contract and immigration as affiliation. Immigration as contract conceptualizes the relationship between noncitizens and host countries based on mutual expectations and obligations. Conversely, immigration as affiliation acknowledges and values the evolving ties that noncitizens forge with their host communities, emphasizing integration and gradual detachment from their country of origin. The US, Canada, and the UK are among the top destinations for international students, and each country’s immigration framework aims to both promote diversity and strengthen the labor market. These goals often conflict due to concerns about immigrants displacing native workers. Consequently, due to this apprehension, the legislative framework surrounding the student visa in each country attempts to strike a balance in varying degrees. This Note examines the US’s approach to student visas, highlighting its reliance on the immigration as contract framework and contrasting it with the immigration as affiliation approach used by Canada and the UK. By adopting a strict contractual framework and restricting opportunities for students to obtain permanent resident status, the US fails to effectively balance promoting diversity with protecting its labor market

What Really is “Objectionable Conduct” in New York Co-ops? Navigating a Board Deferential Standard of Review Post-Pullman

Home is where the heart is, and in the United States, home ownership is an integral part of the American dream. A place to call home offers emotional safety as well as financial security. Property ownership can even mark the start of generational wealth. Since a home is something that can mean so much to so many, the loss of one’s home is an unimaginable fear. The risk becomes even greater when the odds are stacked against homeowners, particularly for cooperative corporation (co-op) shareholders in New York. Co-op proprietary leases exploit the risk of loss for these owners. Most proprietary leases in New York provide co-ops the option to terminate a shareholder’s lease if he or she displays objectionable conduct. While home safety is of the utmost importance, the typically vague objectionable conduct clause enables a co-op’s board of directors to evict shareholders for behavior that may not truly be “objectionable.” A board’s decision to evict a shareholder is then judicially shielded by the business judgment rule, which defers to the board’s decision as long as the board did not act in bad faith, in a way that failed to further the co-op’s corporate purpose, or in a way that exceeded the board’s authority. Notably, in Levandusky v. One Fifth Avenue Apartment Corporation, the New York Court of Appeals held that the judicial standard of review for corporate board decisions, the business judgment rule, also extends to co-op board decisions. Following this decision, in 40 West 67th Street v. Pullman, the New York Court of Appeals additionally held that this judicial review applies to a board’s decision regarding objectionable conduct evictions. In conjunction with these judicial decisions, many co-op proprietary leases lack a definition for objectionable conduct, giving boards ample discretion to define “objectionable” as whatever the board wants it to be. Shareholders are therefore vulnerable to power hungry boards who can evict shareholders for any reason the board deems “objectionable.” In response to this inequitable shareholder vulnerability, this Note proposes two solutions: (1) for shareholders to amend their proprietary leases to define objectionable conduct as conduct that constitutes a nuisance; or (2) for the New York Court of Appeals to overturn the decision in Pullman because it erroneously applies a corporate rule, the business judgment rule, to a housing issue, eviction

Redefining the Scope of Anti-discrimination Law: Illuminating Colorism as a Basis for Discrimination Claims by Black Entertainers

This Article critically examines the pervasive issue of colorism within the entertainment industry and its profound impact on dark-skinned Black entertainers. Anti-Black colorism is discrimination against Black people with darker skin tones and Afrocentric features (i.e. darker eye color, kinkier hair, broader nose, fuller lips). Tracing the historical roots of colorism from the colonial era to contemporary times, the Article emphasizes how societal preferences for Eurocentric features and anti-Black racism have created and perpetuated a hierarchy that disadvantages darker-skinned individuals. It analyzes the underrepresentation and pay disparities faced by dark-skinned Black actors and actresses. It details the industry’s preference for lighter-skinned individuals in leading roles and the relegation of darker-skinned actors to stereotypical and often negative portrayals. The Article also assesses the legal challenges that dark-skinned Black litigants face when asserting colorism claims under federal anti-discrimination laws, specifically Title VII of the Civil Rights Act of 1964 and Section 1981 of the Civil Rights Act of 1866. One of the first hurdles that any dark-skinned Black litigant that asserts a colorism claim in federal court may face is that, historically, courts have conflated colorism claims with race discrimination claims. At times, this has resulted in the dismissal of dark-skinned Black litigants’ colorism claims. In addition, dark-skinned Black litigants face significant evidentiary hurdles in asserting colorism claims. Further, in the context of the entertainment industry, casting directors may invoke the bona fide occupational qualification (BFOQ) defense, the business-necessity defense, and First Amendment protections to shield discriminatory practices. The Article proposes several solutions to combat colorism in the entertainment industry. It advocates for the introduction of implicit bias evidence to address the subtle nature of colorism and strengthen the claims of dark-skinned entertainers. Building on previous scholarship, it argues that Congress should define “color” under Title VII to provide clearer legal standards and consistency in court rulings. Further, it proposes the application of a narrowly tailored color-based BFOQ that prioritizes the hiring of dark-skinned Black individuals in the entertainment sector. The Article concludes by emphasizing the need for a comprehensive legal framework that explicitly addresses colorism within the entertainment industry

Blueprints for the Gilded Age of Borrowing: Theorizing Mutually Beneficial Policies for the Golden Age of Private Credit

Through financial ingenuity, lending practices often generate an indirect yet significant impact on the average person’s finances. Relatedly, the 2007–2008 Financial Crisis revealed the profound and far-reaching consequences attributable to risky lending. Congress sought to curb lenders’ risk appetite by passing the Dodd-Frank Act, legislation which commissioned new, industry-specific oversight bodies. However, this legislative antidote had a side effect: it engendered a new class of borrowers—those precluded, based on a variety of risk diagnostics, from obtaining capital from the most popular lenders. But when the conventional borrowing doors closed, private lending markets opened in earnest. Since the Covid-19 pandemic, growth in private credit markets has been insatiable; this protracted phase is commonly dubbed “the Golden Age of Private Credit.” The problem is that private credit investors are, at this juncture, overwhelmingly comprised of pension and insurance funds: the same individual who disproportionately suffered in the wake of the Financial Crisis now faces a familiar threat in new form. Therefore, policymakers face a dilemma. On the one hand, private credit markets create tangible procompetitive benefits that are worthy of preservation. On the other hand, the law would usually deem the loans underlying these investment vehicles too risky to permit consumer engagement. This Note harmonizes policy with market realities, demonstrating that regulation can both facilitate growth in private credit markets while simultaneously augmenting consumer protection. In particular, these guidelines delineate the features of private credit that should be left uninhibited and identifies the gaps where policymakers can implement non-disruptive protective measures in the consumer’s interest

The Extraordinary Extension of the Video Privacy Protection Act: Why the “Ordinary Course of Business” of an Analog Era is Anything but Ordinary in the Digital World

In the last dozen years, a wide range of companies—from streaming platforms to consumer goods brands to nonprofits—have been the target of lawsuits under an idiosyncratic, outdated law: the Video Privacy Protection Act of 1988 (VPPA). The VPPA focuses only on consumers’ privacy related to video content; it prohibits a party that has data on a consumer’s video viewing history, along with personally identifiable information about that consumer, from disclosing that information without the consumer’s consent. While the VPPA did not get much attention in court until recently, in the past decade, the volume of VPPA-related claims has exploded. This Note argues that the VPPA’s second life has overextended the law not only beyond Congress’s initial intent but also without due consideration for the vastly different business models and privacy threats relevant in the digital era. The Note focuses on the ordinary course of business (OCB) exception in the VPPA and courts’ lack of attention to this lynchpin term in the statute. Further, this Note examines modern companies’ business models to determine how disclosure of consumers’ data to certain third parties should be considered within their OCB. Finally, this Note evaluates possible solutions for how Congress should modify the law, as well as how courts should modernize their interpretation of OCB given the current offerings available to consumers for consuming video content, before ultimately proposing the creation of a federal privacy statute as the best solution

Court Appointed Monitorships: Effective Remedy or Modern Misstep?

When a corporate entity or organization violates the law, there are several remedies the courts may enforce against the bad actor. Most common are damages—both compensatory and punitive—and injunctive relief. The class of injunctive relief that most are familiar with is the kind that restrains the bad actor from a conduct or behavior. However, courts in certain instances may decide, either on their own volition or after being asked to consider such a remedy by a prosecuting entity, to appoint a compliance monitor with the function of ensuring that the bad actor continues traversing a legally sound path. Although court-ordered monitors are not a new remedy per se, over the past decades a new trend of court ordered monitors gaining increased power has emerged. This trend has concerned those who believe an improperly unrestrained monitor is a dangerous overreach of judicial power in an entity’s private affairs. This Note delves into the history of how the court ordered monitor has become what it is today, provides theories as to how and why the touted issues have come to be, and offers a solution for creating a more consistent application of the remedy in the future