Notes

Despite decades of litigation and court case rulings, pursuing the goal of diverse student populations in schools, including through affirmative action policies, remains a controversial subject. In the present day, discrimination on the basis of race or ethnicity by educational institutions is still a divisive issue in the United States. In our nation’s most populous municipality, this contentious subject has been debated as a result of the lack of diversity at New York City’s eight “testing” Specialized High Schools (SHSs). Due to the disproportionately low number of Black and Hispanic/Latino students admitted, the prestigious SHSs have not been spared from allegations of racial and ethnic discrimination occurring in their admissions process. Over the past decade, critics have claimed that the admissions system for the SHSs, renowned for their rigorous, career-based academic curricula and ability to produce successful alumni, is discriminatory. Relatedly, there has been a renewed focus on promoting student body diversity in these elite schools, including a plan announced by Mayor Bill de Blasio in June 2018 to increase the number of Black and Hispanic/Latino students admitted. This Note explores the flaws of the Mayor’s proposal and presents an alternative plan for reforming the SHSs’ admissions system—a timely and controversial topic—that fits within the Supreme Court’s doctrine on affirmative action in educational contexts. 

This Note begins by providing background information on the SHSs and their current admissions process. Then, this Note discusses the schools’ lack of student body diversity and past efforts aimed to address this issue, including de Blasio’s recent plan. Next, this Note proposes a novel admissions process for these eight schools, which was created based on the Supreme Court’s precedent on educational affirmative action and the guidance of several experts in this field of law. Under this proposal, a semi-holistic, multi-factor process involving four measures of academic performance—SHSAT score, GPA, rank in eighth grade graduating class, and rank among eighth graders citywide—would be used to evaluate applicants, as well as an explicit fifth factor of diversity. This plan would allow the City’s Department of Education to admit a critical mass of underrepresented minority students, similar to the approach used by institutions of higher-education. By analyzing the Court’s recent affirmative action jurisprudence in the educational context, this Note argues that despite the legal challenges imposed by the Fourteenth Amendment, this plan would allow the City to preserve these schools’ standards of high scholastic achievement, as well as admit increased numbers of Black and Hispanic/Latino students to these elite public high schools in a constitutionally-permissible way. 

Most of the literature addressing shareholder derivative litigation has emphasized the perils of excessive multi-forum shareholder litigation, proposing various solutions to sidestep the problems encountered in cases like California State Teachers’ Retirement System v. Alvarez (Wal-Mart II). This Note addresses a separate and distinct problem—a long overlooked inquiry into the due process implications of using nonparty issue preclusion to curb what is seen as an overgrowth of shareholder derivative litigation. 

The Delaware Chancery Court’s recent decision in Wal-Mart II illustrates a conceptual puzzle in the application of issue preclusion rules in the context of derivative shareholder suits. In Wal-Mart II, a separate federal suit was dismissed on the grounds that the plaintiffs had failed to satisfy the demand requirement, a crucial step for establishing the plaintiffs’ authority to bring a derivative suit on behalf of the corporation. The Delaware courts gave preclusive effect to the federal court’s ruling in barring a derivative action by different shareholders. But how can such a judgment—finding that a shareholder plaintiff seeking to bring a derivative action lacks authority to bring suit on behalf of the corporation—be given preclusive effect to bar a future suit by other shareholders? A rule that would resolve this inconsistency was proposed by Chancellor Bouchard’s decision for the Chancery Court late in 2017, In re Wal-Mart Stores Delaware Derivative Litigation (Wal- Mart I). While the Delaware Supreme Court declined to adopt the proposal, an analysis of the Delaware Supreme Court’s decision suggests that Chancellor Bouchard’s proposal may have been the right rule at the wrong time. This Note proposes adoption of the rule proposed in Wal-Mart I as Delaware’s preclusion law, arguing that the current treatment of nonparty preclusion in derivative share- holder suits is incompatible with the strong presumption against nonparty preclusion and inconsistent with the treatment of a related mechanism: the class action. In doing so, this Note advocates for an approach to nonparty issue preclusion that would deny preclusive effect to putative derivative suits dismissed prior to satisfaction of the demand requirement. 

There is an ongoing movement to democratize the criminal justice system. Providing more avenues for layperson participation, “democratizers” believe, will result in a more egalitarian system. But how to incorporate the public is an ongoing and complicated question. This Note takes a first step in disentangling important differences within the democratization movement. In doing so, it defines for the first time a sub-group of democratizers, which it terms the “localizers.” Analyzing this distinct strand of democratization serves two valuable functions. First, because democratization and localization reforms have often been lumped together, critics of the movement to democratize the criminal justice system have overlooked the unique problems that localizers’ reforms raise. This Note fills a substantial gap in the extant scholarship by providing tools for scholars to evaluate and critique some of the distinct concerns of localization. Second, and perhaps more importantly, this Note serves as a practical road map for localizers by raising questions that they must consider before advancing their reforms, many of which could, if effectuated correctly, immensely improve the current state of the criminal justice system. 

In 2005, Congress amended the Immigration and Nationality Act to strip jurisdiction over petitions for habeas corpus challenging an order of removal or the decision to execute an order of removal. A first generation of legal challenges argued that this provision was a facial violation of the Suspension Clause of the U.S. Constitution, which guarantees the right to bring writs of habeas corpus, or an adequate and effective alternative to habeas. These challenges were unsuccessful, and for years, the conventional wisdom has been that noncitizens cannot bring habeas petitions to challenge or delay their removal. However, recent district court cases demonstrate the viability of a new generation of as-applied Suspension Clause challenges to the denial of habeas jurisdiction. This Note identifies and describes a category of cases where the denial of habeas jurisdiction is a Suspension Clause violation: noncitizens with orders of removal who are at risk for persecution in their countries of origin because of changed country conditions that arose while they were living in the United States. Recognizing habeas jurisdiction in these circumstances is essential to protect noncitizens’ rights and to check executive power. 

In the United States, nearly thirty-four million individuals provide informal care for their adult family members each year. Adult care recipients experience positive emotional and health-related outcomes when cared for by relatives, but this responsibility also places significant stress on caregivers. The government should subsidize and encourage family adult care, not only because of these social impacts, but also because this care can reduce healthcare costs. Family caregivers help their relatives avoid expensive institutional care and are also cost-efficient providers of care due to their relationships with the care recipients. The tax code is an effective and politically palatable vehicle through which the government can provide this subsidy, despite some structural limitations. However, existing and recently proposed tax incentives do not adequately target the benefits associated with family caregiving. Therefore, this Note proposes a new two-part advanced refundable tax credit that will help the government reduce costs and enhance social benefits.

The Department of Justice and the Federal Trade Commission have largely abdicated their role to scrutinize and challenge mergers in zero-priced industries. This abdication derives from a Chicago School assumption that concentration in these industries will not lead to consumer harm. Due to the agencies’ hands-off approach to merger review, the digital economy is rapidly concentrating as firms are permitted to acquire their competitors with no meaningful antitrust supervision. Increased consolidation of ownership is evident in the dating app industry. One firm has acquired twenty-five rival dating apps in the past decade and now operates over forty-five distinct dating sites, including Tinder, OkCupid, and Hinge. In this Note, I argue that increased concentration and decreased competition in the dating app sector can lead to three types of consumer harm: price discrimination, deterioration of quality, and reduced data privacy.

This Note analyzes a circuit split over the application of the Forfeiture Rule, which holds that plaintiffs forfeit American Pipe tolling when they file individual actions before class certification has been resolved in the underlying putative class action. This Note rejects the Forfeiture Rule and argues that it misunderstands the purpose and rationale of American Pipe and class action tolling. Given the increased uncertainty facing class action plaintiffs, the policy and equity interests that motivated courts to adopt the Forfeiture Rule now require courts to abandon it. This is the first article to analyze the Forfeiture Rule’s history and evolution, to explore the impact of changes in class action jurisprudence on statutes of limitations on the Forfeiture Rule, and to argue against the continued viability of the Forfeiture Rule across the federal judicial system.

In late 2017, the U.S. Judicial Panel on Multidistrict Litigation ordered the consolidation of a few hundred cases pending around the country against opioid manufacturers and distributors into a Multi-District Litigation (MDL) in the Northern District of Ohio. Today, the Opioid MDL consists of over 1900 opioid-related cases brought primarily by states, cities, counties, and other local entities, and that number is growing weekly. Strikingly, these lawsuits are not, in their main, seeking damages for injuries to individuals. Rather, they are seeking compensation for the cost of public services needed to address the consequences of addicted communities, ranging from emergency response capabilities to rehabilitation services. The Opioid MDL is the first mass litigation to involve this number of local government plaintiffs, and although this Note predicts that the Opioid MDL, like most MDLs, will resolve in an aggregate settlement, the presence of local governments poses a unique problem for achieving that outcome. Mass litigation can only result in settlement if the settlement provides some guarantees to the defendants of “global peace”—meaning that the settlement forecloses all, or close to all, current and future litigation against the defendants—and any settlement arising out of the Opioid MDL will have to contend with resolving the claims of around 33,000 city, township, and county governments. Even though only a fraction of these local governments are currently part of the Opioid MDL, their presence leaves open the threat that absent localities will sue later, undermining the likelihood or value of any settlement. This Note discusses the various ways that a settlement could be structured with local governments by looking to prior mass tort litigation and applying the settlement tactics used in those cases to the Opioid MDL. In doing so, this Note proposes that even though the players in this MDL are unique, the solutions are not.

This Note argues that policy proposals mandating law enforcement involvement in campus sexual assault cases are harmful to survivors of sexual assault and are inconsistent with Title IX. Title IX’s gender-equality goals require schools to address sexual assault as a civil rights issue, with a focus on its impact on survivors’ continued access to education. Mandatory police involvement proposals will frustrate that goal. These proposals take a criminal law view rather than a civil rights approach, and in doing so, import obstacles that survivors have long faced in the criminal system into the campus process. What is more, these proposals will have the effect of making it more difficult for survivors, particularly those from marginalized communities, to report their sexual assaults to their schools. If survivors are not able to report, they will not be able to access the accommodations they need to continue their education, and schools will not have the information they need to adequately combat sexual assault on campus. Efforts at reform would be better served by focusing on improving the campus process than on limiting survivors’ options.

“That Mexican’s probably off right now in some bar, laughing at us.” Humberto Casarrubias-Sanchez, thirty-six, was a husband, father of three, and first-time beneficiary of the United States’ H-2A temporary agricultural worker visa. Hailing from Morelos, Mexico, he had just begun his first day of detasseling corn in Illinois when, by day’s end, Humberto was nowhere to be found. Presuming he had fled, crew leaders shrugged their shoulders, ending the search for him early. His body was found fifty days later in the middle of that same cornfield. Using Humberto’s story and the crew leader’s words as evidence, this Note argues that historic racialization of Latina/o immigrants has transcended into the H-2A agricultural workers visa program, and that burgeoning migrant farmworker coalitions are rewriting these racialized narratives through political action that may create the cultural groundswell for government change. Racialization, or the way in which society places nonwhites within a racial hierarchy, has resulted in a system of abuses of H-2A workers, including wage theft, sexual harassment, and human trafficking. Through direct appeals to top food purchasers, coalitions of migrant farmworkers have subverted their racialized identities via political empowerment, perhaps ultimately attaining a “dual solution” to this racialization that would include necessary government support.