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Forward to States in the Vanguard: Protecting Consumers During the Financial Crisis

PdfPDF by Kathleen C. Engel · March-9-2011 · Categories: Lead Articles, Number 1, Print Edition, Volume 44

In July 2010, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act, which fills many of the gaps in mortgage regulation that brought the United States economy to its knees. This new law and the debates leading up to it grabbed the headlines for several years. What is less well known is the critical role that states and local communities have played in attempting to chill risky lending and address the fallout from home foreclosures. States have been enacting anti-predatory lending laws since the 1990s, many of which ultimately served as models for the Dodd-Frank Act. In parallel moves, state attorneys general have been enforcing discrimination and consumer protection laws against abusive lenders. And, as the subprime crisis has [...]

Five Realities About the Current Financial and Economic Crises

PdfPDF by James H. Carr and Katherine Lucas-Smith · March-9-2011 · Categories: Lead Articles, Number 1, Print Edition, Volume 44

It would be difficult to overstate the dire condition of the U.S. economy as inherited by President Barack Obama on January 20, 2009. At that time, the economy stood on the precipice of collapse. Over the past year and a half, a combination of economic stimulus spending and continued bank bailouts successfully averted a second Great Depression and returned the major banks to profitability. But the challenge of laying the foundation for a more promising long-term economic future for America remains largely unaddressed. In fact, despite recent positive GDP and employment data, the foreclosure crisis that initially imploded the credit markets and undermined the economy continues to worsen. And many characteristics of the current recovery are cause for concern. This [...]

Small-Dollar Loans, Big Problems: How States Protect Consumers from Abuses and How the Federal Government Can Help

PdfPDF by Leah A. Plunkett and Ana Lucía Hurtado · March-9-2011 · Categories: Lead Articles, Number 1, Print Edition, Volume 44

Across America, drivers pass twice as many payday loan storefronts as Starbucks coffee shops.  In twenty-nine states, there are more payday lender stores than McDonald’s restaurants.  Numerous research studies warn of the dangers associated with payday loans, including significantly higher rates of bankruptcies, evictions, utility shut-offs, and involuntary bank account closures.  Many states have recognized the dangers posed by payday and other types of small-dollar loans with predatory features, prompting them to adopt laws to combat the abusive nature of these loans. These laws, however, offer consumers varying degrees of protection. Historically, states have used their police powers to protect consumers from predatory lending. This Article discusses the extent to which each state’s current laws protect consumers from lending abuses [...]

Can Public Nuisance Law Protect Your Neighborhood from Big Banks?

PdfPDF by Kermit J. Lind · March-9-2011 · Categories: Lead Articles, Number 1, Print Edition, Volume 44

This article considers how the law of public nuisance might be applied to protect neighborhoods from the destructive forces of the mortgage crisis. For more than thirty years I have been a close observer and a participant in community development at the neighborhood level in Cleveland, Ohio.  I now supervise a law school clinical practice that provides legal counsel to an array of nonprofit community development corporations that, for more than thirty-five years, have been renewing housing and neighborhood sustainability in a city going through major social and economic change. . .

The Finger in the Dike: State and Local Laws Combat the Foreclosure Tide

PdfPDF by Geoff Walsh · March-9-2011 · Categories: Lead Articles, Number 1, Print Edition, Volume 44

The foreclosure crisis that began in 2007 has forced state and local governments to develop a first response capacity to meet a national crisis. States seeking to control foreclosures have always faced certain limitations in enacting laws that limit or impair contract rights. These limits arise primarily under the Contracts Clause of the United States Constitution. Other provisions of the U.S. Constitution, such as the Takings Clause, as well as terms of state constitutions may set additional limits. This article will examine the degree to which various constitutional provisions may limit the ability of states to control mortgage foreclosures. Overall, my conclusion is that under their police power, states have broad authority to limit enforcement of mortgage obligations. This article [...]

Book Review: Deciding Whether the Death Penalty Should Be Abolished Voices of the Death Penalty Debate: A Citizen’s Guide to Capital Punishment

PdfPDF by Thomas H. Koenig and Michael L. Rustad · March-9-2011 · Categories: Lead Articles, Number 1, Print Edition, Volume 44

The issue of the death penalty, like abortion, deeply divides this country.  To most Americans, the answer to the question of whether the death penalty is unavoidable is obvious and beyond debate. It is “one of the most complex, emotional, controversial, and important public policy issues of our time.”  American attitudes on the death penalty “have been relatively stable for almost a decade.”  Two out of three Americans support capital punishment. A Gallup poll conducted in 2006 asked respondents how they would decide “between death or life in prison without parole.”  Forty-eight percent of the respondents favored life without parole to capital punishment.  Too often, however, strongly held opinions on this topic are based on emotionally charged slogans rather than a [...]

Up in Smoke? Commercial Free Speech in the United States and the European Union: Why Comprehensive Tobacco Advertising Bans Work in Europe, but Fail in the United States

PdfPDF by Sean P. Flanagan · March-6-2011 · Categories: Notes, Number 1, Print Edition, Volume 44

On June 22, 2009, President Barack Obama signed the Family Smoking Prevention and Tobacco Control Act (Smoking Prevention Act) into law, authorizing new methods to fight youth smoking.  The new law provides the legislative approval necessary for the Food and Drug Administration (FDA) to regulate the tobacco industry.  Advertising and marketing restrictions designed to thwart the tobacco industry’s attempts to communicate with American youths are among the new rules and regulations proposed in the Smoking Prevention Act.  The new law mimics legislation passed within the European Union (EU), which instituted a complete ban on tobacco advertising in print, radio, and national services media.  Although the World Health Organization (WHO) argues that comprehensive bans on advertising—like the one implemented in the [...]

Justice Undeterred: A Call for Massachusetts Legislation on Post-Conviction DNA Access

PdfPDF by Joseph Lazazzero · March-9-2011 · Categories: Notes, Number 1, Print Edition, Volume 44

This Note argues that the Massachusetts legislature should enact a post-conviction DNA access statute by focusing on various approaches of other state courts and legislatures in recognizing a statutory right to post-conviction DNA testing. The goal of this Note is not to assess the constitutional and due process rights of access to DNA evidence, but instead to provide effective and pragmatic policy reasons for a Massachusetts statute. Part II.A provides an overview of federal legislation and case law on post-conviction DNA access.  Part II.B discusses how Massachusetts prisoners currently appeal for postconviction DNA testing.  Part II.C studies Massachusetts case law, which has interpreted and applied Rule 30, specifically in motions for post-conviction DNA access.  Part II.D focuses on the statutory [...]

Indefinite Detention After Boumediene: Judicial Trailblazing in Uncharted and Unfamiliar Territory

PdfPDF by Tyler L. Sparrow · March-9-2011 · Categories: Notes, Number 1, Print Edition, Volume 44

In the wake of Boumediene, there has been a flood of litigation in which detainees seek the writ of habeas corpus challenging their detention as unlawful.  As of this writing, there have been roughly thirteen detainees released, while at least sixteen others who were granted the writ of habeas corpus remain confined in a state of limbo at Guantanamo Bay.  With no clear guidance on how to proceed with these novel issues, the judges of the United States District Court for the District of Columbia have had the difficult task of determining which of the petitioning detainees are lawfully detained, and which have been put through an excruciating ordeal without legal justification. Part II.A of this Note will discuss the [...]

Model Citizenship: The Supreme Court Redefines Principal Place of Business

PdfPDF by Thomas G. Stanwood · March-9-2011 · Categories: Notes, Number 1, Print Edition, Volume 44

This Note will explore the evolution of diversity jurisdiction as it relates to corporations and the state of the law after Hertz. Part II.A discusses the constitutional origins of diversity jurisdiction, and Part II.B details the progression of the case law thereafter. Part II.C outlines various statutory modifications to diversity jurisdiction, while Part II.D presents the four-way circuit split prior to Hertz. Finally, Part II.E summarizes the Hertz opinion itself. With this historical background in place, Part III analyzes the decision in Hertz in light of the legislative history of diversity jurisdiction, its constitutional conception, and the administrative concerns of today’s federal court system. . .