Battling Batson: State v. Andujar and New Jersey’s Efforts to Fix a Broken Doctrine

While the details of the jury selection process vary state to state, the general rule is that before the commencement of a jury trial, parties to the case conduct a voir dire process to gather information on the prospective jurors at court. This Case Note explores State v. Andujar and its impact, before discussing solutions to the issues left unaddressed in Andujar. By highlighting New Jersey’s successes and remaining flaws, this Case Note seeks to provide guidance to other states as they look to implement changes to their Batson equivalents.

The Future of Property

Property law focuses predominantly on spatial conflicts of interest between neighbors but neglects temporal conflicts between generations. This lack of attention to the temporal dimension leads to a troubling mismatch in property law: while property rights last forever, the corresponding duties that require property holders to respect the interests of others are remarkably short lived. The result is that property law currently does not adequately protect the rights of future generations. In this Article, we offer a blueprint for correcting this anomaly. We advocate a change in the current conception of property and propose that property law focus more on intertemporal conflicts of interest. This new conceptualization provides greater consideration to intertemporal externalities and the problems of overconsumption and overuse by current property holders, so that property law can better protect the rights of future generations. This type of protection is needed now more than ever, with the growing recognition that the climate crisis represents a catastrophic failure on our part to respect the interests of those who will come after us. We discuss the implementation of our proposal, demonstrate its benefits, and explain its origins within the existing structure of property law.

The Charter School Network (Almost) No One Wants: Mobilizing Regulation and Litigation to Serve the Public Interest

Federal and state laws and policies implemented in support of charter school expansion over the three decades of charter school history provide little protection against unchecked expansion of the Hillsdale agenda. This leaves our country in the position of publicly funding a political mission to overturn the public education system. Although charter schools are subject to the same laws governing all public schools, there is little oversight and substantial evidence of violations ranging from discrimination against students in protected classes to outright fraud. Existing recommendations to limit the number of charter schools or to hold charter schools accountable are inadequate or infeasible. Our proposal is to activate private incentives to litigate as a means of holding charter schools accountable to serving the public interest. We identify three areas in which litigation may provide an enforcement incentive for compliance with federal laws: employment discrimination liability under Title VII, liability of boards of directors of charter schools, and liability of third-party affiliates of charter schools.

Legalized Sports Wagering in America

For twenty-five years, state legislative efforts to legalize, tax, and regulate sports wagering were forestalled by a federal law that disallowed new states from legalizing sports wagering. This freeze on new state-sponsored sports wagering ended abruptly on May 14, 2018, when the U.S. Supreme Court ruled in Murphy v. National Collegiate Athletic Ass’n that the Professional and Amateur Sports Protection Act violated the U.S. Constitution by impermissibly commandeering the states.
Since the U.S. Supreme Court’s ruling in Murphy, there has been a rapid proliferation of legalized and regulated sports wagering throughout much of the United States. At present, thirty-five states allow for some form of legalized and regulated sports wagering, with most of these states allowing for sports wagering not only in the brick-and-mortar format but also online and on mobile applications.
This rapid proliferation of sports wagering, however, has not always gone perfectly. At present, some states enforce strict limits on the number of companies that are eligible to obtain sports wagering licenses. Other states have implemented hefty taxation schemes that have made it difficult for any licensed operator to turn a profit. Meanwhile, still other states have focused primarily on maximizing tax revenues while doing little, if anything, to protect the interests of consumers, including problem gamblers.
This Article provides an expert-level analysis of the emergent market for regulated sports wagering—examining the evolution of sports wagering before legalization, the Murphy decision, and the market for sports wagering since Murphy. The Article then proceeds to elucidate some of the high-profile failures of the present market for sports wagering and examines ways of ameliorating many of these failures.

How Private Enforcement Exacerbates Climate Change

Private enforcement—the practice of allowing private actors to directly enforce statutes or regulations—has been a fixture of environmental law for the last fifty years. In the absence of comprehensive climate legislation, climate change has been brought under the fold of the environmental regime and its emphasis on private enforcement. Yet climate change presents a distinct global challenge from those harms that the 1970s environmental regime was designed to address. This Article investigates how private enforcement is limiting our ability to respond to the crisis of climate change. The central claim is that private enforcers are using the mantle of environmental protection to prioritize private interests in ways that are paradoxically exacerbating climate problems, deepening inequality, and placing a disproportionate burden on those with the least voice.
In advancing this claim, this Article makes three main contributions. First, I show how the political foundations of private enforcement in environmental law grew out of an era of crisis and were based on a widespread distrust of government. Second, I challenge the traditional rationale that private enforcers provide a powerful check on the influence of special interests and ideology in government. I argue that while private enforcers take on a range of actions related to environmental protection and climate change mitigation, private enforcement also operates as a largely unchecked form of special interest whose priorities serve to deepen the climate crisis. This reinforces not just particular interests but particular visions of environmentalism that are often at odds with the broader public interest in tackling climate change. This failure of private enforcement suggests the need to reexamine the ways in which private and public enforcement serve, or fail to serve, as checks upon the other. As a third contribution, I consider the benefits and drawbacks of potential prescriptions to address this particular failure of private enforcement.

The Due Process Owed to Noncitizens: Standardizing the Burden in § 1226(a) Bond Hearings with the Help of Hernandez-Lara and Velasco Lopez

The Supreme Court distinguishes immigration detention from criminal detention as “nonpunitive in purpose and effect.” However, investigations have consistently found immigration detention to be abusive, unsanitary, overcrowded, torturous, and fatal. These conditions combined with prolonged detention create prison atmospheres erasing any practical distinctions between punitive and nonpunitive detention for detainees. Concerningly, the United States has excessively relied on detention as part of its immigration policy. As of November 2021, 22,438 noncitizens were being held in detention. This number peaked under the Trump administration when over 55,000 noncitizens were held in detention at one point. The vast majority of detained noncitizens—seventy-six percent—have no pending criminal charges nor are convicted criminals. Yet, while most detained noncitizens are held in private detention centers, many are held alongside criminal defendants in county jails and state prisons, further blurring the line between immigrant and criminal detention.

Mission Impossible? The Case for Municipal Tort Liability Reform in a Post-Valdez World

This Note examines the nearly impossible standard for municipal tort liability in New York and proposes that judicial remedies still hold the potential for reform. Part I of this Note contextualizes the Valdez decision by evaluating the history of state accountability and prior federal and state case law building up to Valdez. Part II examines the Valdez majority’s reasoning with a critical lens, focusing on major flaws in the legal standard, and discusses the subsequent application of Valdez. The Valdez majority failed to adequately consider the harsh ramifications of narrowing tort liability for survivors of domestic violence, as it rendered orders of protection virtually meaningless if plaintiffs harmed by negligent officers could not realistically seek redress. Part III then makes comparisons to other state approaches to municipal liability and contends that judicial remedies can still ameliorate the effects of the Valdez holding. Although Valdez is currently still good law, the potential for judicial remedy leaves hope that perhaps municipal tort liability reform is not an impossible mission.

Confidentiality over Privacy

This Article carefully untangles a complex web of confidentiality and privilege laws that are implicated by the collection, use, disclosure, and sale of reproductive health data post-Dobbs. After describing both common and anticipated fact patterns involving reproductive health information, this Article applies health information confidentiality laws, including the federal HIPAA Privacy Rule, state hospital licensing laws, state medical practice acts, state medical record privacy acts, state consumer data protection laws, recently introduced data protection legislation, and evidentiary privilege laws, to these fact patterns.