Mired in \u3cem\u3eMeyer\u3c/em\u3e\u27s Mischief A Century After Fabrication of Constitutional Parents\u27 Rights

The seminal Supreme Court decisions Meyer v. Nebraska and Pierce v. Society of Sisters, now commemorated on their centenary anniversary, are odd doctrinal ducks. They are both still routinely cited as the foundation for ascribing to persons on whom the state has conferred legal parent status a right under the Fourteenth Amendment Due Process Clause of the United States Constitution. (According to Westlaw, judicial citation count for Meyer now nears 3000, and secondary-source citations have surpassed 7000.) It is a constitutional right to force states to confer on them greater legal power than the state is otherwise inclined to give them, power to dictate the lives of children they are raising, even against the state’s own efforts to protect and promote what it views as healthy development of children. That sounds like something today’s conservatives should like, and they do. But the way the Court created that right is directly contrary to the view conservatives generally trumpet regarding the proper role of the judiciary. Part I explains this conservative paradox. Part II shows that the analytical framework for parent-state disputes that Meyer introduced is both deeply problematic, conceptually and normatively, and contrary to classic liberal principles. Part III lays out an alternative framework more consistent with those principles. This abstract has been taken from the author\u27s introduction

Real Housewives & Real Crimes: The Implications of Broadened Privacy Rights on White-Collar Offenses

Reality television stars turn their fame into fortune, often blurring ethical lines as they exploit their platforms for personal gain. These personalities engage in fraud, tax evasion, and embezzlement, all while maintaining a prominent presence on-screen. Specifically, stars on The Real Housewives franchise realize tremendous successes from their stints on the famous television show by capitalizing on their exposure through social media. With their newfound wealth and fame, many of these stars commit white-collar crimes under their viewers’ watchful eyes. This Note examines three prevailing examples of reality television stars who committed various white-collar crimes. Interestingly, networks tolerate criminal behavior because the contractual relationship with their talent permits the companies to collect royalties from a star’s business ventures. Although contractual relationships require a star to discuss their legal matters on television, stars are becoming savvy in their ability to call on privacy laws to limit their negative exposure. As technology exploitation and constitutional concerns continue to rise, the courts and state legislatures attempt to balance an individual’s right to privacy with public interest in acquiring important information. This Note proposes that courts and the legislature should resist broadening privacy protections to reality television stars who commit white-collar crimes by exploiting their platforms

Taking Back the Takings Clause: The Case for Compensating Innocent Property Owners Caught in the Crossfire of Police Activity

Part I of this Note will provide an overview of the history of the Takings Clause, the role of the police power in takings jurisprudence, and the necessity exception to takings. Specifically, Part I will demonstrate that (1) the gravity of physical government intrusions has led the Supreme Court to consistently treat such intrusions as per se takings, (2) any distinction between eminent domain and the police power exists in the context of regulatory takings, and (3) the necessity exception rests on a shaky foundation as a common law tort doctrine. Part II will refute Lech’s conclusion that law enforcement destruction falls within a categorical police power exception to takings liability. Specifically, Part II will demonstrate that no categorical exception exists, and even assuming such an exception did exist, it has no place in a case involving physical destruction of an innocent owner’s property. Finally, Part III will explain how Baker’s alternative approach—the necessity exception—is similarly unconvincing, given its direct incongruity with the purpose of the Takings Clause and its basis in mass public emergencies like war, where destruction was inevitable, not small-scale emergencies like those in Lech and Baker, where destruction was avoidable. This abstract has been taken from the author\u27s introduction

The Kincare Craze in Child Protection: Romanticism, Subterfuge, and Racial Separatism

Among recent developments in family law, the most prevalent issue on legislative agendas has been Kincare as an alternative to non-relative foster care when maltreated children cannot remain with parents. Long an available option legally but traditionally regarded with skepticism by child protection workers, Kincare is now idealized. A steady stream of state legislative bills aims to encourage or command child protection and foster care agencies to place maltreated children in the home of relatives or friends of their parents whenever one is available, ostensibly based on an assumption that this is categorically better for children than living with unrelated foster parents. That assumption has romantic appeal. But the reality of Kincare’s benefits and pitfalls is far more complex. Moreover, motivations other than child welfare are driving Kincare advocacy. The best explanation for the recent fervor points to two aims. An immediate aim is to undermine federal child-welfare mandates that advocates for poor and minority-race parents and communities have long condemned—principally, foster care time limits and the prohibition on race-matching in adoption. A longer-term objective for some is a return to racial separatism in private life. [...] This Article is a corrective to the false assumptions on which the Kincare campaign rides and a child-centered pushback against adult-focused and group-protective ideological agendas. This abstract has been taken from the author\u27s introduction

Restructuring Ruritania: Bankruptcy, Sovereign Debt, and the Equity Receivership

The traditional legal story of sovereign restructuring goes something like this: foreign governments cannot file for bankruptcy under domestic law. When faced with the need to restructure unsustainable debts, they must negotiate with each of their creditors. Since the late 1980s, private debt has been held by increasingly diverse and dispersed bondholders, making renegotiation more difficult. Defaulting debtors face two basic problems: first, they have no process analogous to the automatic stay in bankruptcy, which can pause litigation by creditors and buy time for an orderly reorganization; second, and more importantly, they have no process analogous to the cramdown provisions of Chapter 11, whereby new terms can be imposed on non-consenting creditors. As a result, sovereign reorganizations are at the mercy of holdout creditors, who can extract concessions at the expense of other creditors. This creates economic uncertainty with attendant lower growth rates and ultimately imposes additional hardship on the sovereign’s taxpayers. This Article argues against the conventional wisdom, showing how it is possible for a sovereign debtor to use existing law to stay pending or future litigation, and impose new terms on holdout creditors. This can be done with the venerable equity receivership, a legal device used to reorganize corporate debtors prior to the adoption of the first modern Bankruptcy Code in the 1930s. In effect, sovereign debtors can be treated like a nineteenth-century railroad in need of reorganization. To be sure, this procedure would reach only American law-governed debt, but the ability of sovereigns to resolve the holdout problem for all their dollar-denominated debt could dramatically simplify restructurings. Even if finance ministries are hesitant to avail themselves of such a novel and untested legal theory, the possibility of being able to cram down new terms against holdout creditors may ease the process of negotiated restructurings

Every Piece of Jewelry Tells a Story: Modern Techniques for Conflict-Free Gold and Diamonds

This Article seeks to reimagine ways to prevent the circulation of conflict-affected gold and diamonds in the international jewelry market. This Article first examines the existing regulatory framework, and then applies that analysis to public survey data and conversations with industry leaders to create a set of informed proposals using behavioral analytics and modern solutions. This Article proposes increased use of two new technologies, blockchain and lab-creation, as well as a fundamental restructuring of the regulatory framework, including higher standards for gold regulation and an international council specific to jewelry regulation

The Case for Specific Performance of Personal Service Contracts

The per se rule against specific enforcement of personal service contracts is well established under Anglo-American contract law. At the same time, there is a well-developed literature suggesting that specific performance is often a superior remedy to money damages, and those arguments apply with equal or greater force to personal service contracts. We, therefore, argue that this per se rule is mistaken. The per se rule has been justified by the need to avoid involuntary servitude, preserve personal autonomy, and husband judicial resources. We argue that these claims cannot justify a per se rule against specific performance, particularly as at-will employees could not be subject to such a remedy and employees with definite term contracts who could be subject to an injunction are generally sophisticated, well-compensated, elite workers with specialized and often hard-to-replace skills. We argue that the traditional rule allowing specific performance where money damages are inadequate should be applied to personal service contracts in situations where the parties explicitly agree to such a remedy and there is rough equality of bargaining power, such as when employees are represented by counsel. We then apply our proposed rule to three cases, which we label The Coach, The Schoolteacher, and The Pop Star. These stylized examples represent typical employees with fixed term contracts, and we show why our proposal would award specific performance in some cases but not others