Article
The law of property is in some areas dangerously out of step with people’s innate expectations. The idea that property law is behaviorally or biologically determined has been explored in scholarly literature in both law and psychology, although perhaps not as thoroughly as it should be. This Article looks at four categories of property, in increasing order of divergence between behavioral expectations and law. This lack of congruence inevitably creates tension. Where there is high congruence, as with personal and real property, discontent focuses on the allocation of property rather than on its fundamental nature. Where there is less congruence, as in the cases of intellectual property and especially one’s person and reputation, the underlying legitimacy of the legal regime is called into question. This questioning of the legitimacy of the regime has been especially marked since the recent Supreme Court decision in Dobbs v. Jackson Women’s Health Organization. While this is not an article about Dobbs, the section on property in one’s person necessarily reflects the impact of the Supreme Court’s regrettable decision.
by Aaron Schwabach
Article
Citibank made front page news for reasons it would rather have avoided when it mistakenly transferred $900 million of its own money to creditors of Revlon. When Citibank discovered the error the next day, it asked (initially politely then less so) for the creditors to return the mistaken payment. Several creditors refused and Citibank was forced to initiate litigation to attempt to get the money returned. This litigation is ongoing, but the first round of the battle was won by the lenders when a federal district court ruled that they had a legal right to retain Citibank’s mistaken payment under the “discharge for value” defense. This Article briefly reviews the facts and the opinion of that case. On appeal, the Second Circuit reversed that decision and held for Citibank thereby requiring the lenders to return Citibank’s money. This piece also reviews that opinion. The primary and original contribution of the piece, however, is to discuss the tax aspects of all the possible outcomes. While some tax consequences are straightforward, there are several interesting and less certain tax results that could apply to all three parties (Citibank, Revlon, and the lenders). This Article will explain those possibilities and review the tax doctrines that will apply once Citibank’s litigation has concluded.
by Jeffrey H. Kahn
Book Review
Why would a beloved small-town doctor with no history of violence suddenly strangle his father to death? The Other Dr. Gilmer is a gripping account of the search for an answer to this question. It turns out the doctor has a rare neurological disorder that likely caused the killing. If only the diagnosis had come before trial, the author believes, the doctor would not have been convicted of first-degree murder and sentenced to life without parole. That belief is appealing, but naïve. Jails and prisons are full of people with mental illness. Misdiagnosis is not the reason. A close examination of the doctor’s case reveals several doctrinal and structural forces that effectively criminalize mental illness. The doctor’s diagnosis is the key to the medical mystery, but it would not have been a key to the jailhouse door. For many individuals with mental illness, avoiding the criminal legal system entirely is the only way to avoid injustice.
by Fredrick E. Vars
Article
The Supreme Court held in Cedar Point Nursery v. Hassid that a California regulation mandating that union organizers have occasional access to privately owned farms was a per se taking because it stripped the farm owners of the right to exclude. This Article focuses on questions that arise if one accepts the Court’s conclusion that the regulation is indeed a taking, including whether to permit or enjoin the taking, how to measure compensable losses, and, more particularly, whether to compensate owners because the regulation makes them more vulnerable to what they see as profit-reducing unionization. This Article argues that owners in Cedar Point Nursery are entitled to compensation only for the loss of rights that physical takings law protects—in cases like this of temporary access mandates, losses that inhere in having to share use of a portion of the property with others. Further, we must deal with the validity of laws limiting the capacity to suppress unionization efforts in their own right.
by Mark Kelman
Essay
"HIPPA" does not exist. The real acronym for the 1996 Health Information Portability and Accountability Act is HIPAA—“privacy” is not even in the title. But many have invoked "HIPPA" in seeking to keep their personal health decisions private and autonomous. No doubt a complicated statutory and regulatory regime, HIPAA's scope is much narrower than the average person understands, applying mainly to health care providers and insurers. But its complexity does not explain the widespread and erroneous expectation that federal law will shield those who want to keep their health information, like vaccination status, to themselves. Asserting a right to confidentiality under "HIPPA" demonstrates a failure to understand the interconnected nature of public health, looking instead to claim an inviolable shield. But those who mock the "HIPPA" invokers fail to appreciate the real costs to health privacy and personal autonomy that the pandemic has engendered. All sides should approach these questions from a perspective of compromise and understanding—not as a conflict of unassailable rights.
by Matthew T. Bodie
Article
Section 1983 is a landmark statute that provides the foundation for holding state and local governments and their agents accountable when they violate constitutional rights. Unfortunately, rather than enforce the statute’s text and ensure the accountability that its drafters passed it to achieve, the Supreme Court has created four interlocking doctrines that squelch its promise of accountability: qualified immunity, absolute immunity, strict limits on local governmental liability, and the exclusion of states from Section 1983. This Article, written to mark the 150th anniversary of Section 1983, does a deep dive into the text and history of Section 1983 and recovers a critical part of the story of its enactment that is all too often ignored: Congress made a conscious choice not to provide any official immunities because it did not want to place state officials above the law. Indeed, Congress passed Section 1983 to ensure that governments and their agents could be held accountable in a court of law. By gutting Section 1983 through rank judicial legislation, the Supreme Court has let states and local governments and their agents violate our most cherished constitutional rights with impunity, and left those victimized by abuse of power without any remedy.
by David H. Gans
Student Note
Social media platforms have become the dominant public forum of the modern age but there is a big problem: they are privately owned and can moderate content however they like. This right is protected both by the First Amendment and Section 230 of the Communications Decency Act, the latter of which creates immunity from suit for platforms that exercise their right to moderate content by removing—or not removing—objectionable content. Politicians on both sides of the aisle have complained that platforms are abusing this immunity and, while they have put forward a wide variety of legislative solutions, none of them have come close to being passed. In response, this Note examines the pros and cons of these solutions and relies on First Amendment limits to put forward a legislative solution of its own.
by Nicholas Bradley
Essay
A recent Article by Professors William N. Eskridge, Brian G. Slocum, and Stefan Th. Gries critically examines textualism, both in general and as applied in Bostock v. Clayton County. This Essay makes three points in reply. First, the authors criticize strawman versions of textualism that no mainstream legal interpreter claims to hold. Second, the authors’ examples of “societal dynamism” do not put any pressure on textualism properly understood. And third, the authors’ corpus-linguistics analysis of the word “sex” is, from a textualist perspective, irrelevant to the issue in Bostock.
by Bill Watson
Student Note
The litigation over the vote-by-mail process during the 2020 general election revealed that absentee ballot voting disputes should not be left entirely to the courts. Rather, this Note argues that Congress should utilize its constitutional Elections Clause power to standardize federal vote-by-mail processes, and proposes specific elements that Congress should include in such legislation.
by Jason Nagel
