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Recently, on the morning of October 3, 2017, Justice Ginsburg made an important point for mandatorily detained noncitizens: “there is something in between.” Under Chapter 8 of the U.S. Code, the government must detain certain non-citizens throughout their removal proceedings. The issue being argued in Jennings v. Rodriguez is whether it is unconstitutional to detain these individuals for a prolonged amount of time without some form of bond review. Many complicated factors, such as the plenary power doctrine, due process issues, and the congested immigration court system left the Supreme Court of the United States befuddled on when it is appropriate to require review for potential release. What has become clear, though, is that something must be done to correct the injustices thrust upon those placed in prolonged detention, even if it requires a new middle ground, much like that which Justice Ginsburg alluded to in her statement at reargument.
One group of non-citizens that are greatly effected by mandatory detention are convicts, as 8 U.S.C. 1226(c) orders the Department of Homeland Security must “take into custody any alien who” is convicted of certain crimes. The original intention behind the provision was that it would increase the removal of dangerous criminals and improve public safety. While data confirms removal rates dramatically increased since the provision was passed, the time it now takes for a detained individual to be removed from the United States also similarly increased. The concern is if a non-citizen is detained under 1226(c), he or she will most likely be detained for the entire removal process, including any appeals process, and there is very limited avenues available for 1226(c) detained individuals to seek bond during this period. Mandatory detainees argue this lack of opportunity to request bond is in violation of due process rights. In addition, an individual review should be required no later than six months after being detained to prevent such unconstitutional detention.
Previously, the Court held there are two reasons for detaining removable individuals–securing appearance at proceedings and protecting the general public. But if for some reason removal is impossible, then these justifications cannot logically apply, and, therefore, a “court must ask whether the detention in question exceeds a period reasonably necessary to secure the removal.” To ensure consistency throughout all removal proceedings, courts should consider anytime after six months without a significant probability of removal, to be unreasonable. However, in Demore v. Kim, the Court also held that if removal remains a possibility, then the justifications for mandatory detention of non-citizen criminals remain in effect, as long as it is not indefinite. Unfortunately, the Court in Demore incorrectly relied on statistics showing removal proceedings averaged no more than five months.
Since then, there has been a split throughout the nation on how to deal with mandatory detainees. The Second and Ninth Circuit require detainees to obtain a bond review at least every six months. This is due to the recently revealed data showing detainment can last well more than ninety days–typically lasting more than six months, and often lasting years. The irreparable harm placed upon detainees is also a key issue. Some mandatory detainees pose less of a threat to society and their removal proceedings were initiated for non-violent crimes. Nevertheless, they are “often treated like criminals serving time,” causing them to miss important family and business events.
On the other hand, the other circuits believe the case-by-case standard should remain intact, in which bond review occurs on an individual basis whenever it naturally arises in the proceedings. The courts agree reasonableness must remain a key consideration, but the fact most 1226(c) detainees can be deported within the foreseeable future still makes the justifications for detention relevant.
Justice Steven Breyer hit the nail on the head when he stated: “Now, that to me is a little odd, particularly when. . .we give triple ax murderers, at least people who are accused of such, bail hearings.” To require immigrants, who may be of very little risk of flight or to the community no access to bond, but to automatically give bail hearings to clearly dangerous individuals, seems like a clear substantive due process violation. This topic is particularly important due to the Trump administration’s increase in immigration enforcement and rise in ICE arrests. With the now looming possibility of increased removal, it is imperative something in between is considered by the Court to ensure there is not an added amount of detainee suffering from prolonged detention. A six-month bright line rule could potentially cause chaos in the immigration system, which is already overwhelmed. In addition, to force a review every six months may cause removal proceedings to become extended even further. However, there are other options. Requiring review within a period of 12 months after the start of detention could also be deemed reasonable or exercising non-detention options, such as monitoring devices, would also provide the relief detainees are looking for, but also keep the reasoning behind detention in mind. Gathering from what the Justices asked about on October 3, it seems like a majority may be open to such a compromising option.
 See Transcript of Oral Argument at 9, Jennings v. Rodriguez, No. 15-1204, (argued Oct. 3, 2017), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/15-1204_m6hn.pdf [https://perma.cc/6F85-BBL6].
 See Rodriguez v. Robbins, 804 F.3d 1060, 1065 (9th Cir. 2015) (explaining history of prolonged detention issue).
 See 8 U.S.C. § 1226(c) (2012) (requiring detainment of certain criminal non-citizens and placing strict limitations on forms of release).
 See Gerard Savaresse, When is When?: 8 U.S.C. § 1226(c) and the Requirements of Mandatory Detention, 82 Fordham L. Rev. 285, 299 (2013) (discussing Congress’ two main reasons for enacting section 1226(c) provision).
 See Carl Takei et al., ACLU, Shutting Down the Profiteers: Why and How the Department of Homeland Security Should Stop Using Private Prisons 7 (2016) (showing rise from 7,475 to 32,985).
 See Savaresse, supra note 4, at 303-04 (explaining Joseph hearing only way for 1226(c) to obtain bond).
 See Rodriguez v. Robbins, 715 F.3d 1127, 1133-36 (9th Cir. 2013) (explaining non-citizen stance on prolonged detention); see also Plyler v. Doe, 457 U.S. 202, 210 (1982) (confirming non-citizens included those who are afforded due process rights in United States).
 See Maria Mendoza, A System in Need of Repair: The Inhumane Treatment of Detainees in the U.S. Immigration Detention System, 41 N.C. J. Int’l. Law 405, 427-28 (2016) (arguing lack of individual review not acceptable).
 See Zadvydas, 533 U.S. 678, 690 (2001) (holding indefinite detention raises constitutional issues but can be outweighed by other justifications).
 Zadvydas, 533 U.S. 678, 699 (2001).
 See Zadvydas, 533 U.S. at 699-701 (holding intention behind provision did not include indefinite detention). However, the holding does not require every removable detainee to be released after six months, only those who remain detained after six months since it was determined removal would no longer be possible for whatever reason. See id.
 See Demore, 538 U.S. 510, 527-28 (2003) (differentiating between person deemed removable but with no ability to remove against someone with ongoing removal proceedings).
 See Letter from Ian H. Gershengorn, Acting Solicitor Gen., Dep’t of Justice, to Hon. Scott S. Harris, Clerk, Supreme Court of the U.S. (Aug. 26, 2016) (on file with Wall Street Journal) (agreeing previous data provided to the Court incorrect).
 See Rodriguez, 804 F.3d at 1077.
 See Gershengorn, supra note 11 (clarifying new data shows longer detention of non-citizens than originally thought).
 See Rodriguez, 804 F.3d at 1072-73 (explaining prolonged detention causes detrimental effects on relationships with those in U.S.).
 See Note, “A Prison Is A Prison Is A Prison”: Mandatory Immigration Detention and the Sixth Amendment Right to Counsel, 129 Harv. L. Rev. 522, 529-30 (2015) (detailing removal for crimes such as: stealing cigarettes or jumping turnstiles).
 See Rodriguez, 804 F.3d at 1073 (explaining detainment does not allow for attendance at funerals or job interviews).
 See Reid v. Donelan, 818 F.3d 486, 496 (1st Cir. 2016) (criticizing circuits for deferring to Zadvydas for all mandatory detainees when other original system still available); Ly v. Hansen, 351 F.3d 263, 267-68 (6th Cir. 2003) (comparing Zadvydas post-removal situation against those still partaking in initial removal process).
 See Sopo v. US AG, 825 F.3d, 1199, 1213-14 (11th Cir. 2016) (agreeing time of detention should be reasonable but defining reasonable time is difficult).
 See Transcript of Oral Argument at 11, Jennings v. Rodriguez, No. 15-1204, (argued Oct. 3, 2017), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/15-1204_m6hn.pdf [https://perma.cc/6F85-BBL6].
 See Nick Miroff, Deportations slow under Trump despite increase in arrests by ICE, Washington Post (Sept. 28, 2017), https://www.washingtonpost.com/world/national-security/deportations-fall-under-trump-despite-increase-in-arrests-by-ice/2017/09/28/1648d4ee-a3ba-11e7-8c37-e1d99ad6aa22_story.html?utm_term=.0b3cd153388a [https://perma.cc/T23A-VEXK] (describing President Trump’s plan to implement new immigration policy).
One of the weak sides of the republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption.
The Emoluments Clause to the United States Constitution frequents the news these days, but what is it and why did the founders include it in the Constitution? The clause states, “No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or Foreign State.” When the Constitutional Convention met to draft the United States Constitution it was important to the drafters that their new nation leave behind and protect against the corruption they had experienced in some European practices. The brand new Americans wanted to avoid corruption resulting from royalty giving gifts and money to politicians, diplomats, legislators, etc. in order to gain influence. The founders saw this danger in the U.S.’s growing relationship with France and in U.S. generals’ acceptance of money from foreign states during the Revolutionary War.
The Electoral College – that sometimes maligned process by which the United States elects a new president – was initially established as a compromise between allowing Congress to vote for the next leader of the country and allowing the popular vote to dictate who would hold the position. The founding fathers did not believe that the general public should be tasked with electing a leader and instead gave that job to a group of experts who would make the decision. This means that when American citizens go to the polls, they aren’t voting for the President directly, but rather each vote helps to decide which candidate will receive that state’s electors. That state’s chosen electors then meet and cast their votes for President and Vice President.
For any new law review or law journal (law review) staff member, one of the first things you learn is how to properly write and edit footnotes. Staff members spend so much of their time editing and writing footnotes that they often forget to ask why they need twice as many footnotes as text. Footnotes exist to allow “the interested reader to test the conclusions of the writer and to verify the source of a challengeable statement.” The creation of the 2:1 footnote ratio began when law professors, trying to get published as frequently as possible in order to gain tenure, realized that student-editors were editing out their creativity in order to force all pieces into the same style. This caused authors to express themselves in their footnotes, a practice which naturally bulked up the footnote section. Additionally, the strong competition among law reviews for lead articles (excluding only law reviews of top tier law schools) combined with the pressure editors are under to fill each issue with a preselected number of pages, helped create a “longer the better” mentality, which contributed to today’s lengthy footnotes.
For many couples, giving birth to a child is the culmination of their relationship. Parenthood is an integral part of the human experience, and when would-be parents find themselves, for one reason or another, unable to conceive, the options are limited. Adoption is an excellent choice, but the hoops through which aspiring parents must jump are often extensive and the process can last for years. Furthermore, the idea of bringing a genetically-related child into the world is a high priority for some. Even if genetics aren’t important, some prospective parents want to know that the child will be carried by a woman who has access to high-quality prenatal care and a family history that doesn’t include drug abuse or mental illness.
Last month, a minor in Belgium became the first to receive a medically assisted death through euthanasia since the country made the practice legal for children in 2014, renewing the conversation on the issue of assisted death and euthanasia.1 Belgium is the second country to legalize euthanasia and the only country that currently allows minors of any age access to euthanasia.2 (more…)
A combination of “bikini” and “burqa,” the Burqini – swimwear that covers all parts of the body except for the face, hands, and feet – remains at the center of a heated controversy in France. Created in 2003 in Australia by Aheda Zanetti, the Burqini was designed as a garment that would be flexible and comfortable for women who adhered to the “Islamic code of dressing” and also wanted to participate in sports.1 According to Zanetti, the idea behind the clothing was to promote freedom and a healthy lifestyle, not to encourage oppression of women.2 Since 2003, the brand has enjoyed a significant amount of success, particularly with women of the Muslim faith, though not exclusively; some secular women choose to wear the garment because it provides protection from sun exposure.3 (more…)
One might think, at first glance, that the recognition of a Sixth Amendment right to have a jury rather than a judge determine relevant sentencing facts would put an end to the use of acquitted conduct. One would be wrong, however, at least so far. The federal appellate courts have been unanimous in holding that reliance on acquitted conduct to enhance an offender’s sentence is still permissible under the now-advisory Guidelines. While recent academic commentary has largely taken the opposing view on the constitutionality of acquitted conduct, there is currently little reason to believe that the courts will be persuaded to change their views on this issue any time soon.
[O]ne may wonder why now is an especially appropriate moment to reflect on the role of the federal courts in civil suits challenging military operations, even more so given the winding down of hostilities in Afghanistan and the settled nature of the judicial role in the Guantánamo habeas litigation. But the prompt for this paper lies in two developments that are relatively recent: the proliferation of the use of private military contractors to conduct traditional military functions (and the concomitant rise of civil suits challenging such conduct), and the blurring of conventional conceptions of the “battlefield” (and, as in the counter-piracy context, of the line between law enforcement and combat operations). For better or worse, these developments have been—and will likely continue to be—litigation-provoking, prompting an ever-growing array of courts to have to consider these same issues in an ever-growing array of contexts. Thus, this paper attempts to provide a more coherent and convincing explanation for when judicial reticence to intervene in such disputes is and is not appropriate, hopefully before the doctrine becomes completely unmoored from its analytical and normative justifications.
The CROWDFUND Act required the SEC to adopt rules to facilitate equity crowdfunding. Although the final rules do not go into effect until 180 days after publication in the Federal Register, preliminary observations can be made. Both the CROWDFUND Act and the SEC’s final rules impose restrictions for intermediaries, particularly for the newly introduced funding portals. These restrictions raise the question of whether or not the SEC’s rules create an appropriate balance between adequately protecting unaccredited investors and allowing funding portals to act as gatekeepers. The specific concern to investors in donating capital to these funding portals is that investments may be subject to fraud. Due to funding portals’ novelty, this Note pays special attention to funding portals in the context of the SEC’s final rules.
In light of presidents’ consistently requested and approved defense funding to Israel, the Supreme Court confirms in Zivotofsky that the Executive’s contemporary recognition power no longer harbors any significance. In Zivotofsky, while the Executive rightfully prevailed, each Justice refused to acknowledge the Executive’s hypocritical stance: presidents argue no country has sovereignty over Jerusalem, yet presidents continually provide military funding to Israel to further Israeli occupation and control of Jerusalem. For well over half of a century, the Executive has approved substantial military aid to Israel by signing into law congressionally-backed legislation to provide weapons and funding overseas. Therefore, as the Supreme Court does not address the Executive’s financial recognition of Israel, but rather states the Executive’s spoken recognition is at odds with Section 214(d) in Zivotofsky’s case, the Supreme Court reduces the recognition power to a frivolous formality, one with little tangible impact in the modern realm of foreign policy.
This Note will address the U.S. military funding at odds with the Supreme Court’s ruling that the Executive’s claim of neutrality is paramount and trumps the exercise of Section 214(d) as the United States must “speak with one voice” on the matter of Israeli-Palestinian foreign policy.
Holes in the bank’s D&O policy’s coverage are perilous. They may require the directors to pay out-of-pocket damages, and the FDIC may forego payment. One of the common gaps that exists in the D&O policy’s coverage is the Insured v. Insured (IvI) exclusion. Generally, the IvI exclusion excuses the insurer from payment when a claim is brought by, or on behalf of, an insured party against an insured party. This Note will consider the circumstances in which an IvI exclusion to a D&O policy may excuse an insurer from coverage when the FDIC brings claims against the directors of a failed bank.
In abiding by legislated law, judges must often implement mandatory sentences for some crimes, negating the ability of that judge to consider the inherently distinct characteristics of a minor offender. The United States Supreme Court in Miller v. Alabama held the sentencing term of mandatory life without the possibility of parole (LWOP) unconstitutional for juvenile homicide offenders, classifying LWOP as “cruel and unusual punishment” when applied to juveniles under the Eighth Amendment. In turn, the Supreme Judicial Court of Massachusetts (SJC) took the position that mandatory and discretionary sentences of LWOP under Massachusetts General Laws chapter 265, Section 2 shall no longer apply to juveniles and violate Article 26 of the Massachusetts Declaration of Rights. As a result, individuals currently serving LWOP sentences following a homicide conviction as a juvenile are now eligible for parole if they have served a term of at least fifteen years. In issuing this historic relief, the SJC noted the broader protections afforded to citizens under Article 26, yet discussing its similarity to the Cruel and Unusual Punishment clause of the Eighth Amendment. The SJC, however, failed to parse why Article 26 offers these heightened protections, and in failing to do so the court erred in proscription of discretionary LWOP sentences for the most heinous of juvenile offenses.
This Note will examine the relationship between the Legislature and state courts in sentencing criminally convicted juveniles. This Note will also seek to clarify perceptions as to the current state of the law behind the mandatory sentencing of minors; the concept of individualized assessment; and the disparities between trying an adult and, alternatively, a child under the age of eighteen. Finally, this Note will analyze the extended protections created under Article 26 and the SJC’s scrutiny of the Massachusetts General Court’s (MGC) sentencing schemes.
Until June 2015, there had been little legal action against the firms taking advantage of investors through high-frequency trading (HFT). The New York Attorney General (NY AG), Eric Schneiderman, brought the first big case under a little-known state law from the 1920s, the Martin Act, which grants the NY AG the power to regulate and investigate securities fraud. In efforts to boost investor confidence and ensure the markets work for the entire general public, Schneiderman hopes to stifle the fundamentally unfair situations that HFT has created at the expense of the rest of the market.
This Note aims to provide a useful overview of the development of the U.S. stock market and show how lawsuits, such as the one against Barclays, will shape the U.S. stock market’s future. Part II of this Note will present a detailed assessment of HFT, relevant SEC regulations, and a history of the Martin Act. Part III will discuss the current case against Barclays and how regulators should proceed in handling contemporary dark pool and HFT crises affecting the U.S. stock market and, in turn, its investors. This Note advocates for an approach that seeks a balance between a free market economy and clear regulations, so as to avoid further market exploitation.
Despite generic manufacturers’ forced reliance on brand-name warning labels, brand-name manufacturers are immune from liability for failure-to-warn or negligence claims arising from generic drugs. In a majority of jurisdictions—as long as the drug that caused the injury was generic—brand-name manufacturers escaped negative judgments, even though they played an integral role in the initial development of the drug and its warning label. On an issue of first impression, however, the California Court of Appeals in Conte v. Wyeth, Inc. rejected this traditional view and held that a brand-name manufacturer’s duty to warn extends to patients whose prescriptions are filled with the generic version of the drug. Following the decision, three other courts adopted this minority position that brand-name manufacturers can be liable for injuries caused by the generic version of their drug.
On November 13, 2013, the Food and Drug Administration (FDA) proposed a new rule that would make it nearly impossible for courts to follow that minority view. The new rule would allow generic drug manufacturers to update warning labels without waiting for the brand-name manufacturer to make changes. This change in policy will have widespread consequences, both positive and negative, for consumers and manufacturers alike, including quicker safety updates for pharmaceuticals. In November 2014, the FDA announced that it was delaying the finalized rule, which was to be published in December 2014, until the fall of 2015; by November 2015, instead of publishing the finalized rule, the FDA again delayed and stated it plans on issuing the final rule by July 2016.
This Note will explore the procedure for introducing new drugs and chronicle changes in manufacturers’ postmarket duties. It will also explain the proposed rule for making changes to a drug’s warning label. In Part II, this Note will examine how different courts handled liability issues between brand-name and generic drug manufacturers, and it will focus on the recent shift in liability to brand-name manufacturers for injuries caused by generic versions of their drugs. In Part III, this Note will analyze the proposed rule’s effects on consumers, prescribing physicians, and drug manufacturers. In conclusion, this Note will provide an overall impression of the proposed rule and further suggest that the FDA not finalize this rule as it is currently proposed.
In many ways, Justice Story’s Bill of Peace stands as the keystone between the Founders’ demands for a fair trial, and later courts’ struggles to preserve judicial economy and fairness in class actions. Years before Justice Story’s Commentaries on Equity Jurisprudence, Hamilton argued that courts of equity provided relief “in extraordinary cases, which are exceptions to general rules.” Hamilton’s insistence on the value of chancellors foretells the flexibility future courts would require in accommodating class action litigation, especially where absent class members’ rights are adjudicated.
Hamilton’s insistence on the need for judicial flexibility, as implemented by Justice Story, should carry through with today’s judiciary. Consequently, courts must now take up the baton, applying—and sometimes adapting—Rule 23 safeguards in a way that negotiates the difficult balance between efficiency and fairness. It is only then that courts can ultimately achieve adequate representation in the adjudication of non-identified, absent class members.
It has become common practice for manufacturers to implement policies to prevent retailers from advertising products at prices lower than those set by the manufacturers. What many manufacturers do not realize, however, is the potential for antitrust claims that may follow. Specifically, Internet Minimum Advertised Price (IMAP) policies can be a serious pitfall for the unwary and unadvised. This area of antitrust law has recently undergone dramatic changes, though it has yet to become uniform across all fifty states. Consequently, manufacturers should evaluate, with due diligence, whether enforcing an IMAP policy on a retailer is acceptable in each individual state before acting.
The legal and social spheres of adoption in the United States are still evolving today through recent legislation, social welfare policies, and programs focused on the institutional care of dependent children, but the tracking of adoptions still proves to be difficult. While the recent boom of social media and networking has given adoption a new voice, it has also enabled an underground, online marketplace for children to flourish, free from government regulation. A Facebook spokeswoman claimed the activities occurring on its forum show “that the Internet is a reflection of society,” and individuals use Facebook “for all kinds of communications and to tackle all sorts of problems.” The Internet has become a preferred method of transacting business on a large scale, but sensitive adoption matters require regulation that the digital marketplace does not currently support.
This Note will analyze whether current United States law is capable of resolving the emergence of an online, underground child network and its complex, inevitable issues.
Despite recognizing the pitfalls of relying on suggestive pretrial eyewitness identifications, the United States Supreme Court in United States v. Wade upheld the admissibility of such identifications at trial, and issued a broad ruling that requires only some independent basis for the subsequent identification. Although all pretrial identifications raise an issue as to suggestibility and reliability, show-up procedures have indisputably been acknowledged as the most vulnerable to false-suspect identification. A showup is an identification procedure where an officer presents the witness with a single suspect and asks him or her whether that suspect is the perpetrator of the crime at issue. Praised as a quick and easy method of confirming or negating police investigation leads, such advantages come at a heavy cost. Preferably, showups are administered just moments after the commission of a crime, when the image of the perpetrator is presumably fresh in the witness’s mind. Despite this ideal, showups are permitted at any point during an investigation when, under the totality of the circumstances, the identification is deemed sufficiently reliable.
Unfortunately, even when showups are deemed unreliable and thus inadmissible, witnesses are often permitted to make an in-court identification of the suspect. Despite any good intentions of a witness, common sense reality remains: witnesses may not be identifying the perpetrator, but rather the innocent defendant forced to participate in an unduly suggestive show-up procedure. Witnesses rarely comprehend the impact of a suggestive showup on their ability to make an accurate in-court identification. For this reason, in-court identifications are inescapably tainted by pretrial showup procedures.
Medical malpractice litigation is complex, lengthy, and thus costly. The cost of this type of litigation contributes, in various ways, to the soaring cost of health care in the United States, although the degree to which this occurs is hotly debated. Tort reform efforts aimed at reducing medical malpractice lawsuits began in the 1970s; the reform of choice for some states, including Massachusetts, was the adoption of screening panels. Although these panels differ in composition from state to state, all involve a panel of individuals that review a plaintiff’s evidence at an early stage in the litigation process and “screen out” the frivolous lawsuits, namely those that do not produce adequate expert witness support. The underlying policy is that not having to defend against frivolous lawsuits will translate into suppressing the cost of medical malpractice litigation, which would in turn lower the cost of the medical malpractice insurance premiums charged to healthcare providers and so on up the chain. Despite this well-intentioned goal, the bottom line is that these screening panels do not work.
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This Note explains the reasons for the adoption of Massachusetts’s medical malpractice tribunal system, the goals it sought to achieve, how it has been implemented, and how its goals have not been met. It further explains Section 60L’s pre-suit notification procedures instituted in 2012 and then explores the use of certificates of merit, which is an alternative used in liquor liability litigation that offers a framework for reworking the tribunal system. This Note concludes with a specific proposal to replace the tribunal system with a process combining the positive aspects of the pre-suit notification procedure with the use of certificates of merit.
The merger between AMR, Corporation (American) and US Airways (USAir) attracted wide media attention as well as a multitude of Congressional hearings. The board of directors for each airline approved the merger, so the last hurdle appeared to be a challenge from the Department of Justice (DOJ). The DOJ contended that the two airlines merging would severely harm consumers. In response, the two airlines put forward three main defenses: the merger is complementary, the merger has significant customer benefits, and the merger enhances competition in the airline industry. Subsequently, the DOJ announced a proposed settlement that would divest slots and gates at highly concentrated airports around the country to low cost carrier airlines (LCCs). However, the DOJ did not address the airports where American and USAir would hold over sixty percent of the market share and instead primarily focused on the East Coast corridor between Washington, DC and Boston.11 This Note will argue that the DOJ settlement with American-USAir did not go far enough to protect consumers in Boston, Charlotte, and Washington, DC.
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Part II.A of this Note will discuss the traditional definition of competition. Part II.B will then discuss airline deregulation and merger guidelines. Part II.C will sample past mergers by examining their effects on consumers and the industry as a whole. Part II.D will discuss LCCs and their interaction with megacarriers. Next, Part III will analyze these concepts by focusing on the recent merger between American and USAir. Finally, Part IV will conclude that the merger between American and USAir will ultimately hurt consumers.
Historically, heads of state, both sitting and former, enjoyed absolute immunity because there was no distinction made between immunity afforded to a head of state and the immunity afforded to a sovereign. Over time, however, international law slowly evolved to allow the prosecution of former heads of state for certain acts, particularly war crimes and crimes against humanity. International courts holding current and former heads of state accountable, as well as the weakening of head of state immunity generally, have received both criticism and praise.
This Note will explore the emerging issue of sitting head of state immunity. Part II.A discusses sovereign and diplomatic immunity, from which head of state immunity has evolved. Part II.B discusses various theories of head of state immunity in international law. Part II.C details one of the most famous instances where a head of state faced prosecution. Part II.D describes the ratification of the Rome Statute, a treaty establishing a permanent international court and international criminal laws, and how it changed the scope of head of state immunity. Part II.E reviews the four instances where an international court has pursued charges against sitting heads of state. Part III.A then explores the arguments for and against continuing to narrow the legal concept of head of state immunity. Part III.B further argues that despite some of the potential political ramifications, allowing international courts to indict sitting heads of state is ultimately a positive trend.
Thanks in part to the [Green Communities Act of 2008 (GCA)], the renewable energy industry in Massachusetts is thriving at an all-time high; the Commonwealth, however, must build upon this success by simplifying certain processes and creating further incentives for continued development. Massachusetts already ranks among the nation’s leaders in installed solar capacity, due to ambitious policy goals supported by aggressive subsidy and incentive programs that should be continued and strengthened. Although Massachusetts streamlined the permitting process for the largest capacity wind energy projects, this consolidated process should also be available to smaller capacity projects.
Part II.A of this Note will discuss the ways states and local governments regulate and promote renewable energy through permitting, siting, incentives and subsidies for developing renewable energy. Part II.B will then analyze the policies implemented in Massachusetts through the GCA, subsequent legislation, and regulations. Part II.C will focus on the permitting and siting of wind in Massachusetts and pending legislation to streamline those procedures. Part II.D will then consider the various incentives and subsidies available for solar energy development in Massachusetts. Part II.E will discuss various constitutional challenges to state and local renewable energy policies. Part III will analyze and propose further steps Massachusetts can take to build upon the successes of the GCA to continue promoting renewable energy development. Part IV will then conclude that the Commonwealth’s renewable energy policy is still evolving and, by building upon the successes of the GCA, Massachusetts will continue to lead the nation in this renewable energy development.
. . . First, we should end the practice of profiting from student loans, period. Second, bankruptcy protections on student loans should be reinstated. This will protect struggling students. And third, give colleges some “skin in the game” when it comes to student debt. When students default, they feel the pain, and so do the taxpayers who may ultimately have to pick up the bill. Colleges should feel some of that pain too. And it should affect the colleges who are taking on lots and lots of students who are not repaying their debts. And fourth, refinance student loans to wring some of the profits out of the system and put the money back in the pockets of young borrowers. We’ve got to do this.
Education loan debt in the United States now stands at approximately $1.2 trillion. Some thirty-nine million Americans, nearly 20% of U.S. households, owe student loans. Student loan borrowing has mushroomed in recent years. In 1990, students borrowed $11.7 billion to fund their educations. By 2013, students took out $114 billion in new loans. Student loans are by far the fastest growing component of non-housing consumer debt. For example, in the fourth quarter of 2013, U.S. households incurred $82 billion in debt (exclusive of housing debt), which is a 3.3% increase from the previous quarter. Of this amount, $53 billion (65%) was student loan debt. In contrast, auto loans and credit card debt accounted for only $29 billion.
The rise in borrowing for higher education has been matched by a rise in student loan debt as reported by debtors in consumer bankruptcy cases. This study presents empirical data regarding the growth of student loan debt in consumer bankruptcy.
What we think about student debt may be very different from what we know about student debt. And there is much more that we should know. Framing the issues in a way that facilitates an understanding of the real problems, rather than just the startling headlines, is the first step toward solving the problem. We should ask the right questions and work toward gathering the information we need to assure that student loans play a positive role in improving access to quality educational opportunities. We should seek constructive ideas for mitigating existing difficulties rather than creating panic about a situation that is much more complicated than the headlines suggest.
You get what you measure. The federal government tracks data on student loans with an emphasis on total indebtedness and default rates, and as a result, those two data points are the main influencers of the policy debate surrounding student debt. In order to change the focus of the discussion and to increase student repayment success, there must be a push to collect and publish data on the entire range of student loan repayment statuses, including delinquency, deferment, forbearance, and repayment.
This Article [argues] that the widely recommended expansion of income-based repayment will not fix many of the federal student loan system’s serious problems, unless complemented by a more comprehensive income-based approach. Income-based repayment alone does not address the tendencies of students to over-borrow or under-match, the inclination of institutions to raise prices, or the likelihood loan forgiveness will become very expensive. The more comprehensive income-based approach that we propose incorporates the use of “choice architecture,” including variable, risk-based financial incentives that tie expected income to loan decisions throughout the loan cycle.
Private student loan lending is disproportionately concentrated among nontraditional students who often borrow in large amounts and borrow before exhausting other federal aid. Borrowers are facing increasingly aggressive collection efforts while receiving little in the way of advocacy or relief. The continuing high default rates and the lack of meaningful repayment options raise concerns that lessons from the recent past have not been learned, as investor demand for SLABS has once again begun to grow. Further regulatory reforms would protect investors from market instability and illiquidity caused by rising borrower defaults.
Most discussions about student loans have centered on national trends, but student loan debt and performance vary widely among borrowers and across geographic lines. In this Article, we focus on the geographic variation of student loan debt and delinquency rates. The purpose of this analysis is twofold. First, a state-level analysis may shed light on consumers’ decisions to take out student loans and how to repay them. While there is limited information available at the level of the individual borrower, looking instead at state-level data may reflect the circumstances individuals face. Second, an understanding of how state-level support for higher education influences student loan borrowing and performance may inform student loan disbursement and repayment policies, as well as other higher education policy decisions.
Changing how we talk about higher education will not magically create legal and regulatory change overnight, but it will at least show that relying on student loans is not inevitable or unavoidable. It will lead us away from accepting that some students will be winners, while the rest will lose social mobility in a horrible gamble. It will open space for a regulatory framework that helps us to meet our collective goals: a vibrant, socially mobile society in which higher education leads to innovation, supports the production and preservation of knowledge, and ensures that all people have the tools they need to meet their full potential.
Law school clinical programs offer an important site for examining multiple frameworks for understanding the complex phenomenon of student debt. Student debt can be approached as an issue of consumer debt, access to education, economic mobility, or the nature of public responsibility for higher education, among other possibilities. Each framework implicates different social and political institutions and related legal regimes. Each framework prompts lawyers to think about different legal strategies and take different kinds of actions. Problems for low-income students are understood in different ways depending upon the framework used. Solutions get evaluated in different terms.