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Article VI of the Constitution establishes the supremacy of federal law over the states, while the Eleventh Amendment grants the states immunity from suit without their consent. The incompatibility of these provisions becomes apparent, however, when a defendant state asserts its immunity in response to an attempt to enforce a valid federal law in federal court. This constitutional contradiction recently divided two circuit courts ruling on suits brought under the same state-managed federal program: the Fourth Circuit held the Eleventh Amendment barred a state agency from enforcing the program’s requirements against state officials in federal court, while the Seventh Circuit held the amendment posed no bar. This Case Comment analyzes the Seventh Circuit’s decision in Indiana Protection & Advocacy Services v. Indiana Family & Social Services Administration and concludes that the court was correct in holding an independent state agency’s suit against named state officials can be heard in federal court under the Supreme Court’s Eleventh Amendment exception, the doctrine of Ex parte Young. . .
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 morphed into a foreclosure crisis, states have adopted tools to keep people in their homes. . .
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 paper presents five key points about the recent near collapse of the financial system and the efforts to rein in foreclosures and reinvigorate the economy. It concludes with recommendations to ensure a robust and sustainable economy that serves working Americans more effectively and that limits the prospects of a repeat of the financial misconduct that led to the crisis.
The Fourth Amendment to the United States Constitution guarantees that persons shall be free from searches that invade their reasonable expectation of privacy without a warrant issued on the basis of probable cause. Search incident to an arrest represents one of four primary exceptions to the requirement for search warrants. In State v. Smith, the Supreme Court of Ohio confronted a modern question about the scope of searches incident to arrest: when police arrest a person with a cell phone, may the arresting officers search the information stored in the phone? Concluding that a cell phone should not be characterized as a closed container, the Supreme Court of Ohio held that a cell phone’s storage capacity creates and justifies a high expectation of privacy in the cell phone’s stored information and the state may not invade that interest without a warrant. . .
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 associated with four common small-dollar loans: payday loans, auto-title loans, six-month installment loans, and one-year installment loans. Specifically, this Article highlights the findings from the 2010 Small Dollar Loan Products Scorecard (Scorecard), which updated the original 2008 Scorecard. Both the 2008 and 2010 Scorecard grade state laws based on the maximum annual percentage rate (APR) they allow for the four typical small-dollar loan products listed above. Since the 2008 Scorecard, there has been significant state legislative activity across the country related to small-dollar loans. Only a handful of states, however, have enacted new measures that adequately protect consumers. This Article provides policy recommendations to guide ongoing reform efforts. . .
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 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 reasoned consideration of the issue’s complexities.
Russell Murphy’s book, Voices of the Death Penalty Debate: A Citizen’s Guide to Capital Punishment (Voices), is a desperately needed book to educate citizens around the world on the difficult public policy issues raised by capital punishment. The book presents multiple theoretical, ideological, sociological, and personal perspectives on the death penalty debate. Capital punishment continues to be one of the most passionate political disputes of our time, even though the number of death penalty sentences has been reduced by fifty percent in recent years. . .
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 will trace the history of state laws that have sought to alleviate the harsh effect of foreclosures in the past, beginning with the significant controversies that arose over state foreclosure laws during the Great Depression of the 1930s. Later sections will review trends in recent state legislation. During the current crisis, state and local efforts have focused on foreclosure mediation and conference laws, as well as laws to control servicer conduct, so as to encourage a full consideration of loss mitigation options. Overall, I conclude that recent state laws enacted in response to the foreclosure crisis have been relatively mild and have not approached the true limits of states’ authority to control mortgage foreclosures. . .
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 and case law approaches of the state of New York. Part II.E discusses the statutory requirements needed for post-conviction DNA access under Maine law, as well as Maine’s recently amended DNA access statute. Finally, Part III suggests the approach the Massachusetts legislature should take in developing a post-conviction DNA statute, incorporating successful aspects of federal, Maine, and New York legislation on post-conviction DNA access. . .
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 historical precedent for the detention of enemy combatants, the writ of habeas corpus, and issues implicating separation of powers during times of national and international crisis. Part II.B will explore the evolution of legislation dealing with detention of enemy combatants from World War II to the present, focusing on how such legislation has come to pass, and its utilization by the executive branch. Part II.C will then examine how the Supreme Court granted detainees the ability to challenge their detention, and how that ability affects habeas corpus litigation in the federal courts. Part II.D will examine the importance of the Al Ginco decision and its implications on detainee habeas corpus litigation. Finally, Part III of this Note will call for legislation that may serve to unify the courts in their consideration of detainee habeas corpus actions, maintain the correct separation of powers throughout the three branches of the U.S. government, and ensure that no one is indefinitely detained without clear legal justification. . .