Notes

Although lesbian, gay, bisexual, and queer people in the United States of America have experienced significant changes in their legal rights over the previous decade, they are still disproportionately likely to live in poverty. The Supreme Court’s 2015 decision in Obergefell v. Hodges granted LGBQ individuals access to the institution of marriage and the attendant social benefits, but the safety net is still full of holes for low-income LGBQ individuals because of deeply rooted heteronormativity in the administration of welfare. Using three facially neutral examples— proof-of-paternity requirements for welfare recipients, work requirements for the Temporary Assistance for Needy Families (TANF) and Medicaid programs, and barriers to state support for low-income LGBQ youth experiencing homelessness—this Note elucidates and indicts enduring paradigms of heteronormativity in the welfare state. This Note also offers prescriptive solutions, advocating for the adoption of the perennial legislative proposal known as the “Equality Act” as well as state and federal executive action to ease the burdens on LGBQ welfare recipients in the near term.

Since the victory of Mao Zedong’s Communist forces in 1949, the People’s Republic of China (PRC) has laid claim to Taiwan. In 2005, the PRC adopted a law stating that China can use force against Taiwan, officially known as the Republic of China, if it undertakes to form an independent state. This law is an expression of the One-China policy: the idea that mainland China and Taiwan are part of the same country. However, present-day Taiwan is increasingly described as a de facto state with its own people, territory, government, and capacity for international relations. This Note asks whether international law on the use of force protects Taiwan from attack by China, given that Taiwan has many characteristics of a state but has not been formally recognized as such. Part I of the Note summarizes the debate over Taiwan’s statehood. Part II lays out the argument that non-state entities have no protection under international law on the use of force. This argument relies on a Westphalian conception of the international system, positing that states are the only subjects of international law. The Note then poses three “post-Westphalian” challenges to that argument: first, that “peoples” in pursuit of self-determination have legal protection from attack by states; second, that the United Nations Charter has been interpreted to forbid changing non-state entities’ legal status by force; and third, that states have an obligation under Article 33 to resolve their disputes without threatening international peace and security. Part III applies this legal framework to Taiwan. It finds that though the two sides of the debate are incommensurable because they are based on different understandings of international law, Taiwan’s geopolitical situation shows that arguments based on the Westphalian conception of statehood create absurd results. The post-Westphalian view that allows Taiwan limited rights under international law on the use of force better comprehends the geopolitical reality of contested states.

Access to consumer credit is essential to accumulate wealth. The use of big data and machine learning in assessing creditworthiness can be a great opportunity to generate more accurate credit reports and improve access to credit. However, so far, lenders have used big data and machine learning to generate profits, developing algorithms that unfairly classify consumers. Racial and other protected minorities are disproportionately affected by these practices. Consumer credit is regulated in the U.S. mainly under the Fair Credit Reporting Act (FCRA) and the Equal Credit Opportunities Act (ECOA). These statutes are inadequate to regulate lenders, credit reporting agencies (CRAs), and data brokers which use big data and machine-learning algorithms to assess consumers’ creditworthiness. Noticing recent international developments, this Note proposes the General Data Protection Regulation (GDPR), an industry-agnostic data privacy law passed by the European Union (EU), as a model for consumer credit reform. Concretely, the Note proposes expanding consumer credit regulation from CRAs to all actors involved in the processing of consumer data, as well as granting consumers the right to access their data, have it corrected, moved to a different processor, or erased. Furthermore, these rights should be backed by the recognition of a property-like interest in personal data. Part I describes the prevailing use of big data and machine learning in consumer credit, exposing some of the major issues of the consumer credit industry. The Part ends with an overview of the current regulatory regime. Part II explores how the use of big data and machine learning erodes consumer protections, showing how the current regulatory regime fails to adequately protect consumers. Part III introduces the GDPR, an industry agnostic data protection regulation adopted by the European Union, as a model for reforming consumer credit regulation in the United States. The Part proposes three ways in which the GDPR can improve the FCRA and the ECOA, and addresses a number of potential counterarguments.

Despite extensive statutory law and regulations governing drinking water quality in the United States, water-contamination crises have been a regular feature of the American news cycle in recent years, perhaps most notably in Flint, Michigan, but also in a disturbing number of localities across the United States, including the upstate New York town of Hoosick Falls. This Note uses the water-contamination crisis in Hoosick Falls as a case study to analyze why these apparent regulatory failings continue to persist. This case study reveals how scientific uncertainty, resource constraints, and the socio-political dynamics of public regulation in the drinking-water context limit public ex ante regulatory mechanisms’ power to deter drinking-water contamination and to rebalance the equities disrupted when drinking-water pollution occurs. In Hoosick, private tort litigation has the potential to be a powerful vehicle for addressing such regulatory shortcomings, but its ability to do so will turn on whether courts are willing to be more flexible in their conceptions of legally cognizable harm. I argue that such flexible conceptions are justified and would serve a crucial dual purpose—bolstering pollution deterrence and providing a forum in which social costs not accounted for during the regulatory, industrial, and political processes that drive public-resource governance may, finally, be accounted for.

This Note discusses one method to permanently delegitimize Article 98 agreements: exercising International Criminal Court (ICC) jurisdiction over Americans to prosecute them for alleged crimes committed in Afghanistan (“the Situation in Afghanistan”). Since their inception, Article 98 agreements have threatened the ICC’s mission by limiting states parties’ ability to assist the ICC in exercising jurisdiction over Americans. This Note considers potential proceedings against an American in the Situation in Afghanistan as a case study to demonstrate how, in practice, Article 98 agreements undermine the ICC’s anti-impunity mission. First, this Note describes the principles and procedures followed by the ICC. Second, this Note discusses the United States’ legal justifications for Article 98 agreements and responds to these justifications with the most prevalent critiques of Article 98 agreements. Although the legal bases for the agreements under Article 98(2) of the Rome Statute are controversial, this Note assumes that the agreements are legally valid as originally intended by the parties. However, this Note also assumes that Article 98 agreements are never binding on the ICC and thus cannot prevent the ICC from exercising its territorial jurisdiction. Finally, this Note explores the allegations against Americans in the Situation in Afghanistan and considers how Article 98 agreements are likely to hamper the ICC’s proceedings. This Note concludes that the Situation in Afghanistan is an opportunity to demonstrate the need to permanently delegitimize Article 98 agreements, and that it can serve as a catalyst for change, even if Americans are not prosecuted.

There is a circuit split as to whether a decedent’s statements can be entered into evidence under the exclusion from hearsay provided for party-opponent statements under Federal Rule of Evidence 801(d)(2)(A). The courts disagree as to the best characterization of decedents’ statements—whether they should be understood as privity-based admissions that, while admissible under the common law, are no longer admissible under the Federal Rules of Evidence, or if the decedent should be considered a party to the litigation, in which case the statements are admissible under Rule 801(d)(2)(A). This Note first discusses the circuit split by explaining the concept of privity-based admissions, conducting a statutory interpretation of the Federal Rules to determine if the enactment of the rules abrogated the common law admissibility of privity-based admissions, and analyzing whether it is appropriate for a decedent to be considered a party to the litigation. The Note then discusses policy reasons for a rule favoring exclusion—namely, the concerns about perjury and ensuring equitable treatment of the estate that gave rise to states’ Dead Man’s acts, and the fact that there may be other rules under which to admit the evidence. The Note concludes that a rule favoring admissibility is preferable because the claims would not be in front of the court but for the decedent, and a rule favoring admissibility will lead to more consistent outcomes.

Over the past two years, China’s treatment of labor advocates was full of conflicting norms: Though the Party remained hostile toward labor organizing directed at domestic employers, certain conditions caused state officials to hesitate in violently cracking down on labor organizing directed at Western companies. Against this backdrop, groups like the Walmart Chinese Workers’ Association (WCWA) were leading successful campaigns to fight worker exploitation through organizing and legal remedies. In order to fund litigation against Walmart, the WCWA received litigation funding from nonprofit groups like the Hong Kong-based China Labour Bulletin (CLB). However, in January 2017, China passed a new Foreign Non-Governmental Organization Law (FNGO), which requires both foreign and Hong Kong nonprofits, like CLB, to register and submit themselves to greater government control in order to continue working in China. As a result, labor nonprofits like CLB are no longer able to fund litigation for groups like the WCWA. This Note proposes one way that Chinese labor organizations and NGOs could address the funding issues caused by the FNGO Law. Part I will discuss the state-controlled All-China Federation of Trade Unions (ACFTU), explain the role it plays in the larger Communist Party agenda, and discuss the conditions in China that have created an opportunity for labor groups like the WCWA to form. Part II will discuss how the WCWA had been using strategic litigation prior to the FNGO Law, as well as how the FNGO Law affected the WCWA’s use of strategic litigation. Finally, Part III will suggest third-party litigation funding as a potential solution to this problem.