Notes

Nearly sixty years after the passage of the Fair Housing Act (FHA), racial
segregation, housing discrimination, and consequent disparities in health and
opportunity stubbornly persist. Yet the Department of Housing and Urban
Development has made limited use of the FHA’s most powerful provision: its
mandate to affirmatively further fair housing. In recent years, new barriers
to meeting this mandate emerged. Still, affirmatively furthering fair housing
remains constitutionally viable and urgently necessary, even in the face of shifting
equal protection doctrine. This Note begins by tracing the contested meaning of
“affirmatively furthering fair housing” in the courts and executive branch. It then
examines how Students for Fair Admissions v. Harvard creates new constitutional
roadblocks to governments seeking to affirmatively further fair housing today. In
response, this Note proposes a process for crafting race-conscious policy within
the many constraints of current equal protection jurisprudence. Finally, it outlines
an application of this process to affirmatively furthering fair housing. By doing so,
this Note reaffirms the continued need for affirmatively furthering fair housing, the
continued possibility of this work in the face of constitutional changes, and specific
avenues forward for state and federal actors dedicated to building “truly integrated
and balanced living patterns.”

Flawed software costs businesses and consumers millions of dollars every year, but
existing tort law does not generally require developers to compensate others for
economic injuries caused by bad code. Discontented scholars and policy analysts
have produced an array of proposals that would force developers to pay for harms
flowing from vulnerabilities that hackers exploit to injure software users. This basic
model—which would impose a duty on developers to eliminate security-related
vulnerabilities but not other types of software flaws—dominates legislative and
academic debates about reform. This Note argues that this focus is misconceived. It
is technically ambiguous, doctrinally anomalous, and would throw national security
and consumer welfare goals into conflict. Liability proponents have focused on
it because they recognize that imposing new duties on software developers must
realistically be limited in some way. Although the vulnerability-based limitation is
ultimately misguided, this Note proposes that a party-based limitation restricting
recovery to parties in near-privity is more defensible. Focusing on party-based
limitations on duty instead of a vulnerability-based limitation would require
thinking of software development not as a product, but rather as a professional
practice subject to malpractice-like standards. This reframing, I argue, better aligns
proposals for expanding software developers’ duties with existing tort doctrine
while focusing a liability evaluation on the most important aspects of the software
development process.

In January 2024, the United States made landmark regulatory updates under the
Native American Graves Protection and Repatriation Act (NAGPRA) amidst
intensifying scrutiny on human remains stewardship and calls for repatriation.
Museums across the United States and United Kingdom currently hold hundreds
of thousands of human remains in their collections, many of which were acquired
through colonial exploitation, thefts of cultural heritage, grave robbing, and other
unethical acquisitions from marginalized communities. The dark history of these
collections and their perpetuation of harm to marginalized communities necessitates
improved mechanisms for human remains repatriation.

This Note examines the current state of museum human remains policies and makes
the case for improved regulations and social sanctions. Museums across the United
States and United Kingdom implement a wide range of policies for human remains
stewardship, and the analysis of four key case studies—the American Museum of
Natural History, the Denver Museum of Nature and Science, the British Museum,
and the Manchester Museum—demonstrates the need for interventions to facilitate
the return of human remains. Specifically, the learnings from these case studies
highlight the need for public pressure and improved regulations that carry concrete
mandates, are enforced, and address key regulatory gaps.

Unpaid internships in the federal government operate under a statutory and
regulatory regime unlike any other in American employment law. The Fair Labor
Standards Act (FLSA) constrains internships that are hosted by nonfederal entities.
The FLSA applies to the United States as an employer, but in practice, it has proven
almost entirely irrelevant to federal unpaid internships, which instead owe their form
to the interaction of appropriations law, the Antideficiency Act’s voluntary service
prohibition, and 5 U.S.C. § 3111, which authorizes “student volunteer” service at
federal agencies under strict, enumerated conditions.

This Note—the first comprehensive doctrinal and statutory account of federal
unpaid internships—argues that the federal government’s legal authority to host
unpaid interns is both narrower and more rigid than commonly understood. The Note
first contextualizes federal “student volunteer” programs within the broader economy
of unpaid internships, tracing the evolution of these programs and identifying how
education-based exceptions have redefined the permissible boundaries of intern labor.
It then turns to the federal sector, where legal authority to accept voluntary service
depends on a statutory scheme that expressly bars compensation and classifies interns
as non-employees for nearly all legal purposes. The Note synthesizes this landscape
into a clear legal test for when unpaid internships in federal agencies are lawful.

Yet even lawful unpaid internships present profound problems. This Note identifies
structural inequities, legal accountability gaps, and governance blind spots that
arise when federal agencies rely on unpaid student labor. Because these issues are
entrenched in federal statute, they are impervious to litigation or state-based reform.
Accordingly, this Note concludes with legislative solutions to fix a Congressionally
created quagmire that only Congress can properly fix.

Certain provisions within environmental statutes, known as emergency action provisions, provide EPA administrators with the authority to take legal action when certain forms of pollution threaten public health. Of the six most prevalent environmental statutes with emergency action provisions, five have unique requirements for coordination with state and local authorities. These coordination requirements fit within a broader spectrum in environmental law of cooperative federalism, the concept of dividing responsibilities between central and regional authorities.

Drawing from case law, legislative history, canons of interpretation, and academic commentary, this Note highlights the inconsistent coordination requirements of the emergency action provisions—leading to confusion and delay for enforcement authorities—and shows there is scant normative justification for those differences. This Note also assesses what levels of coordination between federal and regional authorities are practically beneficial for agency attorneys and public health outcomes. Ultimately, this Note recommends standardization of the emergency action provisions, through legislative, judicial, and/or executive action, to capitalize on the benefits and mitigate the challenges of cooperative federalism.

Tens of thousands of people are involuntarily confined in a hospital each year in connection with their mental illness or disability. In response to misconduct by people who are civilly committed, hospitals often call the police, setting in motion a chain of events with devastating consequences for the person who is transferred to criminal custody. Despite the frequency with which it occurs, little research has explored this phenomenon. This Note aims to shed light on the practice and expose its tension with constitutional norms, using the Court’s decisions in City of Grants Pass v. Johnson and Robinson v. California as points of departure.

The First Amendment is a well-known bulwark against a government that might use its regulatory powers to silence speech based on the viewpoint of the speaker. The government speech doctrine extended those protections to the government itself, allowing the government to adopt its own viewpoint when it speaks on its own behalf. The result of the Court’s decision to extend First Amendment protections to the government is that the government can use the First Amendment as a shield when it uses viewpoint discriminatory regulation to coerce speakers into silence. The theorists and judges who created the government speech doctrine have argued that the democratic process and the other provisions of the Constitution would be strong enough to stop the government from abusing its speech powers. This Note, however, identifies a gaping hole in their doctrinal framework where low-visibility government speech meets the ambiguity of the coercion-persuasion line. At that critical point, neither the First Amendment, nor the other provisions of the Constitution, nor the democratic process can stop the leviathan’s inclination to silence dissent.

The multidistrict litigation (MDL) process allows the nationwide consolidation of cases that share certain factual issues. Mass tort claims are often consolidated as MDLs and eventually resolved through mass settlement due to individual issues of causation and defenses that prevent class certification. Before settlement, courts and parties often select a small subset of cases to be tried in ‘bellwether trials’ that are intended to provide information about remaining claims in the MDL, including the circumstances of individual plaintiffs and the theories of liability and causation. However, due to practical limitations on the total number of cases that can be tried and the lack of common issues that predominate, bellwether trials cannot be used as a comprehensive overview of the MDL without exposing parties to the risk of inadequate settlement, which is exacerbated when cases are selected by parties. This Note proposes that the role of bellwether trials in a mass tort MDL should be limited to estimation of the settlement amount, and that the cases should be a representative sample selected through statistical methods. Through a scheme that combines simulation with random and stratified sampling, bellwether trials can provide litigants with a high-quality estimate of the total settlement value, which can in turn be allocated among plaintiffs according to extraneous information obtained outside the courts.

In Türkiye Halk Bankasi A.S. v. United States, the Supreme Court reviewed the Second Circuit’s holding that the passage of the Foreign Sovereign Immunities Act (FSIA) abrogated any immunity from prosecution that foreign sovereigns may have previously enjoyed under the federal common law. The Court reversed, holding that the FSIA is inapplicable in the criminal context and, therefore, left the federal common law of sovereign immunity from prosecution undisturbed. The Court’s reasoning, however, did not explicitly draw upon or elucidate the doctrine of federal common law displacement. It is possible that the Court chose not to engage with this doctrine because its underlying case law has thus far failed to supply a clear, consistent, and administrable standard for federal common law displacement. Recent appellate decisions concerning the federal common law of foreign sovereign immunity illustrate the need for doctrinal reform.

This Note advocates the adoption of a different method for analyzing federal common law displacement disputes, drawing upon an analogy to the better defined and familiar doctrine of state law preemption. Specifically, I argue that statutes may either “expressly displace,” “conflict displace,” or “field displace” the federal common law, categories which I define by reference to express, conflict, and field preemption. I contend that this framework, although never formally endorsed in so many words by any federal court, is already immanent in the Supreme Court’s case law and the scholarly literature. Using Türkiye Halk Bankasi as a case study, I illustrate how the Court could have applied this framework to reach the same result while providing courts and litigants with a more structured approach for future federal common law displacement controversies.

Central banks like the European Central Bank (ECB) have started incorporating climate change considerations into their monetary policy tools. This Note refers to this phenomenon as green monetary policy (GMP). Given the crucial role of central banks and other monetary authorities in bank supervision and regulation, GMP has emerged as a solution to tackle the continued financing of fossil fuels and industries that have accelerated climate change. Among central banks, the ECB has emerged as a leader in GMP. However, the United States Federal Reserve Board (the Fed) has signaled a refusal to engage in any climate policymaking, including GMP. This paper argues that the Fed should follow the ECB by implementing GMP, given the central banks’ similar structure, general tools of monetary policy, and monetary policy-related goals. Although the Fed, unlike the ECB, does not have a secondary mandate to support general economic policies including environmental and climate-related goals, the Fed and the ECB are both mandated to promote price stability and act as a supervisor of financial risk. This Note analyzes the implications of the potential implementation of GMP by the Fed, comparing it to the ECB’s GMP, structure, and statutory mandates. It also explores key concerns and counterarguments in the literature against Fed implementation of GMP, which deal with independence, accountability, and mission creep. Despite these concerns, the Fed should continue to research climate change’s impact on macroeconomic stability and apply climate change considerations in its collateral policy, as the ECB has already done.