Innate Property: The Danger of Incongruency Between Law and the Biological and Behavioral Roots of Property and Possessiveness

Property law is, in some areas, dangerously out of step with property expectations. Property—the idea that a place, object, or idea can belong to a person—is at the root of the world’s economies and thus also at the root of much of its laws. Property is neither solely a creature of positive law, nor of some abstract natural law with a moral underpinning, but rather may be biologically determined, much as Noam Chomsky proposed for languages in Aspects of the Theory of Syntax.1 The idea that ownership is at least behaviorally, and perhaps to some extent instinctively, determined has been extensively explored in academic literature2 and in popular works including Michael Heller’s and James Saltzman’s recent bestseller Mine!3 This Article takes a broad look at the possible biologically or behaviorally determined origins of personal, real, and intellectual property, as well as property in one’s person and reputation. The legal system’s treatment of these four categories of property spans a spectrum. The treatment of property in chattels is most congruent with behavioral norms. The treatment of real property is still mostly congruent, while the treatment of intellectual property is sporadically congruent and the treatment of property in one’s person and reputation are not congruent at all. This lack of congruence inevitably creates tension. Where there is high congruence, as with personal and real property, discontent focuses on the allocation of property rather than on its fundamental nature. Where there is less congruence, as in the cases of intellectual property and especially one’s person and reputation, the underlying legitimacy of the legal regime is called into question. Part I of this article looks at the right to exclude, and Parts II through V look at the nature of the innate urge to exclude for each of these four categories of property in turn

A Cashless Economy: How to Protect the Low-Income

This Note discusses how cashless business practices disparately harm low-income individuals, minorities, and other groups, and proposes the need for federal, state, and local legislation to combat these impacts

Zealous and Effective Advocacy: An Assessment of the Constitutional Right to Counsel Within a Drug Court Proceeding

This Note will proceed in three parts. Part I will explain the drug court model by detailing the key components of drug courts in general and by providing an outline of the three predominant drug court models. Additionally, this Part will provide an overview of the right to counsel in traditional criminal proceedings, including probation revocation hearings. Part II will contemplate why the non-traditional stages of a drug court proceeding may constitutionally require counsel and why the defense attorney’s role within the context of drug court is problematic. Using the standards that govern traditional criminal proceedings, Part III will argue that the Sixth Amendment right to counsel should attach during all stages of the proceeding including staffings, status hearings, and hearings regarding termination from drug court. Additionally, this Part proposes that the Sixth Amendment right to effective assistance of counsel through zealous and effective advocacy is also constitutionally required during all drug court proceedings

A Taxing Mistake

Citibank made front page news for reasons it would rather have avoided when it mistakenly transferred $900 million of its own money to creditors of Revlon. When Citibank discovered the error the next day, it asked (initially politely then less so) for the creditors to return the mistaken payment. Several creditors refused and Citibank was forced to initiate litigation to attempt to get the money returned. This litigation is ongoing, but the first round of the battle was won by the lenders when a federal district court ruled that they had a legal right to retain Citibank’s mistaken payment under the “discharge for value” defense. This Article briefly reviews the facts and the opinion of that case. On appeal, the Second Circuit reversed that decision and held for Citibank thereby requiring the lenders to return Citibank’s money. This piece also reviews that opinion. The primary and original contribution of the piece, however, is to discuss the tax aspects of all the possible outcomes. While some tax consequences are straightforward, there are several interesting and less certain tax results that could apply to all three parties (Citibank, Revlon, and the lenders). This Article will explain those possibilities and review the tax doctrines that will apply once Citibank’s litigation has concluded

Zoned In: How Residence Restrictions Lead to the Indefinite and Unconstitutional Detention of New Yorkers Convicted of Sex Crimes

Despite the New York Court of Appeals majority holding in People ex rel. Johnson, New York’s policy of detaining individuals beyond their maximum sentence because they are unable to procure SARA-compliant housing is plainly unconstitutional. The policy violates sex offenders’ fundamental right to be released from prison after serving their sentence. Further, the policy fails to meet even the most relaxed form of judicial review because the state has not shown that it benefits public safety. Indeed, there is virtually no evidence proving that this policy serves to protect the public at all, and a growing body of research shows that restrictive residence constraints create hardships that lead to recidivism. Finally, the policy violates sex offenders’ Eighth Amendment rights because it punishes them for being homeless, a status imposed upon them by the sex offender statute itself

The Road to Adopting and Implementing Systemic Disclosure Changes in the Dallas County District Attorney’s Office

Discovery and Brady are currently two of the most discussed and debated topics in our criminal justice system. Americans have become more and more aware of the number of individuals convicted and incarcerated for crimes they did not commit. In 2007, in a very bold and innovative move, the Dallas County District Attorney’s Office created the Conviction Integrity Unit (CIU) to reexamine questionable convictions to determine if a particular defendant was in fact guilty

Remotely Relevant: Addressing Employment-Based Immigration Worksite Location Requirements in the Remote Workspace

The worksite location requirements for the PERM process for immigrant visas and LCAs for specialty occupation nonimmigrant visas have lost their relevance during the revolution of the white-collar remote workspace within the United States under current DOL guidelines. Although on its face foreign nationals working outside the office appears to be a novel legal issue, remote work within the United States has been an insurmountable hurdle in the immigration space since telework gained popularity in the late twentieth century. It is possible to apply for both kinds of visas for telework, but adherence to the Farmer Memo appears to be unsustainable. It would be in the interest of employers—especially influential Silicon Valley tech companies who are some of the largest employers of foreign nationals—to modify the current guidelines to save costs on audits and appeals, and to retain their employees’ valid immigration status

Is the Uniform Faithful Presidential Electors Act Constitutional?

My topic is both timely and perennial: The Electoral College. More specifically, I will first discuss the constitutional problem known as the “Faithless Elector” and, then, I will attempt to solve such problem. My proposed solution is the Uniform Faithful Presidential Electors Act (UFPEA), a statute that several states have adopted

College Students’ Online Speech: Searching for the Appropriate Standards Within First Amendment Case Principles

College student free speech cases, particularly as applied to student online speech challenges, suffer from conflicting legal principles. This paper highlights empirically noted problems in resolving disputes between a college student’s free speech rights and a public college’s authority to maintain order and campus safety. In Part I of this paper, the authors present the established legal principles from two foundational cases addressing issues of student speech in the educational context. In Part II, the authors demonstrate how courts have used PK12 education cases and public employment cases as sources that address legal principles for college student speech cases—particularly to resolve college students’ speech challenges with an online dimension. In Part III, the authors conclude that existing legal principles, ones largely derived from the PK12 education context, are insufficient to analyze some types of student collegiate speech cases. This thesis is supported when examining several cases involving college students, especially cases dealing with college students’ online speech or expression. In resolving the legal framework problem, the authors suggest a modification of existing legal principles that accounts sufficiently for characteristics specific to the collegiate learning space

A New Approach to Judicial Scrutiny of Voter Registration Laws

This Note argues that 3PVRO activities implicate First Amendment rights to a degree that merits substantial constitutional protection, and therefore more robust judicial scrutiny of laws regulating them. The applicable constitutional standard requires a court to ask whether the regulated acts constitute political activity within the meaning of the First Amendment. An approach that more accurately reflects the political nature of voter registration will likewise enhance the utility of that standard, and yield more consistent results. This Note further argues that in certain cases restrictions on voter registration activities severely burden core First Amendment rights, and should therefore be subject to the most rigorous scrutiny. In Part I, this Note presents the prevailing state of the law by reviewing leading Supreme Court cases and detailing the inconsistent application of that law at the trial and appellate levels. Part II analyzes why this dominant case law has been applied incorrectly, and presents a framework for incorporating additional relevant law into an analysis of such regulations. In Part III, this Note proposes an additional framework for especially severe restrictions, arguing that in such cases a balancing test is inappropriate, and heightened standards of review should apply