Notes

Inadequate prison health care has created a health crisis for reentering prisoners and their communities—a crisis that is exacerbated by barriers to employment and other collateral consequences of release. This Note will first examine how current Eighth Amendment doctrine has failed to sufficiently regulate prison health care so as to have any significant effect on the crisis. Next, it will argue that the Affordable Care Act (ACA) alters the Eighth Amendment analysis by triggering a change in the “evolving standards of decency” that guide the doctrine. Specifically, this Note will argue that, after the passage of the ACA, releasing sick, Medicaid-eligible prisoners without enrolling them in the federal benefits program violates the Eighth Amendment.

On February 21, 2012, members of the Russian punk band Pussy Riot stormed the historic Cathedral of Christ the Savior in Moscow and performed a “punk prayer” to protest the policies of Vladimir Putin’s government. The band members’ subsequent arrests and prosecutions set off a global firestorm of criticism. While some critics focused on the disproportionate sentences handed down by the court following the band’s convictions, or the meaning of justice meted out by an unjust regime, the mainstream reaction was by and large one of disbelief at such an apparently egregious crackdown on free speech. This Note argues that such criticism largely missed the mark by casting the Pussy Riot affair in terms of free speech, despite the likelihood that the punk rockers would have faced a similar fate even under American free speech law—a tradition of protected speech more robust than any other. Instead, criticism of the injustice perpetrated by the prosecutions is better aimed at the inadequate procedural protections of a Russian judiciary in desperate need of reform. As Russians are already aware of the deficiencies in their judicial system, they would likely be much more amenable to international criticism that acknowledges that the Pussy Riot prosecutions did not trample on free speech rights but were nonetheless unjust due to the lack of procedural safeguards accorded to the band members. Such an approach, by more accurately criticizing the real issues Russia’s fledgling democracy faces, promises to further Russia’s development by keeping lines of communication open between the Russian electorate and the West.

This Note offers a framework for analyzing related-to bankruptcy jurisdiction under 28 U.S.C. § 1334 that courts can implement immediately within the bounds of the statute and case law. It argues that that the current requirements for related-to jurisdiction should be better deployed in accordance with the relative merits of jurisdictional rules and standards, and proposes a broad threshold inquiry back-stopped by a robust abstention doctrine, which will allow courts to both define bright-line boundaries where possible and fulfill the policy objectives of bankruptcy jurisdiction on a case-by-case basis.

In 2010, the economy was reeling from an economic recession that particularly affected low-income consumers. One law, known as the Durbin Amendment, sought to protect consumers by regulating the fees that financial institutions charge merchants each time a customer uses a debit card. This Note examines the amendment’s effects, arguing that it has ultimately raised the costs of banking for low-income consumers. Due to complex banking disclosures and the structure of the regulations, these increased costs have not been offset by increased transparency or lower retail prices. This Note recommends specific changes to the Durbin Amendment that will better support its stated goals. However, because these changes cannot entirely mitigate the negative effects, this Note recommends that Congress also pass legislation to improve access to banking for low-income consumers.

In the wake of the Supreme Court’s 2009 decision in Arizona v. Gant, lower courts continue to debate whether Gant represents an overhaul of the search incident to arrest doctrine or is instead a minor tweak. This Note argues that the answer lies somewhere in the middle. It proposes that courts conduct a more searching inquiry into whether an arrestee has a reasonable possibility of access to the area searched at the time of the search, rather than apply the more lenient standard that some courts have adopted. This middle ground is more faithful to the policy considerations underpinning the search incident to arrest doctrine, while additionally providing the proper balance between officer safety and defendants’ rights.

In recent years, many scholars have argued that the U.S. Supreme Court has moved away from following an anti-subordination approach to the Equal Protection Clause of the Fourteenth Amendment and toward an anti-classification approach. In turn, advocates have shied away from anti-subordination arguments in the equal protection cases that are brought before the U.S. Supreme Court. Discussing the briefs and oral argument from Fisher v. University of Texas at Austin as an example, this Note argues that underemphasizing anti-subordination principles is detrimental to equal protection doctrine because these arguments help steer the Court in the right direction. When historical context and ongoing inequitable realities are not incorporated into the doctrine, equal protection moves further from its core mission—ensuring equal treatment under the laws. In addition, the gains for people of color and other marginalized communities will be on tenuous ground without full emphasis on inequality. Advocates must use anti-subordination arguments in order to engage the Court and Justices in the slow process of struggling for a more just world.

Mass incarceration in the United States has led many state governments to hand over the management and construction of prisons to private corporations, which are able to meet demand more quickly and are perceived as more cost-effective. There are approximately 100 private prisons housing about 62,000 inmates today, and this number is expected to increase to 360,000 in the coming decade. Unfortunately, private prisons have failed to effectively address many of the issues pervasive in public prisons—namely recidivism, violence, and poor living conditions. Furthermore, the government-customer has failed to effectively hold private prisons accountable for their failures. As a solution this Note proposes the Private Prisoner Rehabilitation (PPR) credit: a performance-based, refundable tax credit that incentivizes private prisons to address some of the key issues plaguing the criminal justice system.

The Speech or Debate Clause of the United States Constitution protects legislators from being questioned at trial about their legislative acts. This protection shields legislators from being prosecuted or sued based on those acts and also sometimes protects them from having to testify about those acts at trial. While this protection is important in certain circumstances to safeguard the independence and proper functioning of the legislature, it can also be problematic when plaintiffs need to prove an invidious legislative purpose to challenge a law. This is especially the case in the redistricting context, where the standards to analyze both racial and partisan gerrymandering claims require information regarding legislative intent. Yet a close look into judicial interpretations of the Speech or Debate Clause, and the legislative privilege that stems from it, finds a conflicting set of opinions regarding when such protections should and should not apply. This confusion has made it difficult for courts to address legislative privilege questions properly and may lead courts to protect and uphold redistricting legislation more than is warranted. This Note surveys Supreme Court and lower-court Speech or Debate Clause opinions to develop a straightforward and consistent framework for addressing all Speech or Debate Clause disputes and then applies that framework to the questions that arise during redistricting litigation.

Thanks to a streamlined approval process under the 1984 Hatch-Waxman Act, generic drugs have largely helped make prescription medications in the United States more affordable by providing an essentially identical product at a lower price. While generics may appear to be a perfect substitute for brand-name pharmaceuticals, consumers injured by prescription drugs may encounter an unexpected difference: because federal regulations severely restrict the ability of generic manufacturers to unilaterally update their warning labels, the Supreme Court has held that many products liability claims against generic manufacturers are pre-empted. At the same time, the Court has held that identical claims against brand name manufacturers remain viable. In response, the Federal Food and Drug Administration (FDA) has recently proposed a rule that would purportedly “fix” this asymmetry by allowing generic manufacturers to make labeling changes without prior FDA approval, even if it results in a brand-name drug and its generic “equivalent” bearing different warning labels.

This Note argues that the FDA’s response, while well intentioned, loses the forest for the trees by overvaluing compensation for injured consumers at the expense of low-cost generic drugs and accurate, consistent information for consumers. Instead, both the Agency and consumers injured by generic drugs should focus on discrepancies that already exist—that violate FDA regulations—between generic and brand name labels. Such cases not only present an information problem that should be corrected, but they may also provide a viable avenue for litigating products liability claims. While there is currently a circuit split on the issue, this Note explains why these failure-to-update claims should not be preempted. Moreover, given that such differences may occur in a majority of generic drug labels, these claims offer the possibility of recovery for a significant number of consumers.

A discriminatory school district is sued, placed under court supervision, remedies the discrimination, and is released from court supervision. What next? There is a growing, and worrisome, trend towards the resegregation of schools following their release from supervision. While the problems of resegregation have recently drawn attention among social scientists and journalists, the procedural hurdles to litigating a claim of resegregation remain largely unexamined. Indeed, certain procedural hurdles could greatly impede litigation to challenge resegregation. This Note examines the defense of preclusion in the resegregation context, and concludes that in two categories of cases—pre-1966 class actions, and post-1966 “implied” class actions—school districts cannot rely on preclusion to defeat an action challenging resegregation. The first category, pre-1966 class actions, were filed before the 1966 Amendments to Rule 23, which provide greater procedural protections to ensure adequate representation. The second category, implied class actions, were filed after the 1966 amendments, never formally certified as class actions, but informally treated as such by courts. Because many pre-1966 class actions and post-1966 implied class actions do not provide the procedural protections to satisfy the constitutional requirement for adequate representation, judgments releasing school districts from court supervision cannot properly bind future plaintiffs challenging resegregation.