Columbia Journal of Law and Social Problems


Vol. 48, No. 3, Spring

Punishing Animal Rights Activists for Animal Abuse: Rapid Reporting and the New Wave of Ag-Gag Laws
In the last few years, several states have proposed so-called "ag-gag" legislation. Generally, these bills have sought to criminalize (1) recording video or taking pictures of agricultural facilities without the consent of the owner and/or (2) entering...
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TrinCo and Actual Necessity: Has the Federal Circuit Provided the Tinder to Burn Down the Public Necessity Defense in Wildfire Takings Cases?
Wildfires cause massive property damage each year in the United States. One means of combating wildfires is by lighting a smaller controlled fire to burn and consume the wildfire's fuel supply and thereby slow or stop its expansion. These intentionally...
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An Administrative Alternative to the As-Applied Challenge: New York's Public Integrity Reform Act and the Future of Disclosure Statutes
In recent years, tax-exempt organizations have become increasingly prominent in political activity of all sorts, including lobbying. In response to the perceived abuses associated with this trend, there have been a number of proposals to disclose the...
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Striking a Balance between Victim and Commanding Officer: Why Current Military Sexual Assault Reform Goes Too Far
Under the military justice system, as it currently stands, commanding officers (COs) almost complete discretion to decide whether to prosecute the accused in sexual assault cases, and whether to commute the sentences of soldiers found gui lty of such...
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Vol. 48, No. 2, Winter

Do We Have a Quorum?: Anticipating Agency Vacancies and the Prospect for Judicial Remedy
The nomination and confirmation process has crept to a halt in the contemporary hyper-partisan political atmosphere, where minority party blockage of presidential nominees has become a routine practice. Now more than ever, federal regulatory commissions...
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A Broken Clock: Fixing New York's Speedy Trial Statute
New York City's criminal courts, and those in the Bronx especially, are in crisis. Following the institution of "Broken Windows" policing in the mid-nineties, New York City courts have been flooded with misdemeanor cases, preventing the timely administration...
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Drone Regulations and Fourth Amendment Rights: The Interaction of State Drone Statutes and the Reasonable Expectation of Privacy
Current federal case law allows warrantless observation of property from manned aerial vehicles if they are in publicly navigable airspace. The increasing domestic use of unmanned aerial vehicles, colloquially known as "drones," and the Federal Aviation...
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Sunlight Is the Best Disinfectant: Public Disclosure of Electoral Advocacy in Union Member Communications
In 1948, the Supreme Court held in United States v. CIO that the statutory ban on direct union spending in federal elections could not be applied to electoral advocacy by leaders of an organization directed at the members of that same organization. As...
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Vol. 47, No. 4, Summer

Square Pegs and Round Holes: Moving beyond Bivens in National Security Cases
Since its inception, the Supreme Court has largely orphaned the Bivens doctrine, a child of its own jurisprudence. In doing so, the Court has repeatedly invoked dicta from the Bivens case warning that unspecified "special factors counseling hesitation"...
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Dancing the Two-Step Abroad: Finding a Place for Clean Team Evidence in Article III Courts
Federal agents often employ a two-step interview process for suspects in extraterritorial terrorism investigations. Agents conduct the first interview without Miranda warnings for the purpose of intelligence-gathering. Separate "clean team" agents then...
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Choosing between Saw and Scalpel: FCPA Reform and the Compliance Defense
The Foreign Corrupt Practices Act ("FCPA") is an essential anti-corruption tool used to prosecute corporations that engage in the bribery of foreign officials overseas. Once a mere rubber stamp, over the past five years the statute has been used aggressively...
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Vol. 47, No. 2, Winter

Reviving Essential Facilities to Prevent REMS Abuses
The Hatch-Waxman Act permits generic drug manufacturers to bypass the clinical drug trial requirement for drug approval if the generic product is the bioequivalent of a previously approved brand product. Generic drug companies typically purchase the...
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Regulating Relationships: A Challenge to the Constitutional Authority of the FDA Regulation of Private Sperm Donation
This Note challenges the constitutionality of the FDA's current regulation of private sperm donation under 21 C.F.R. § 1271. The FDA currently regulates private sperm donors donating to known couples in the same way that it regulates anonymous sperm...
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Whither Central Hudson? Commercial Speech in the Wake of Sorrell V. IMS Health
The Supreme Court has only recognized that commercial speech deserves First Amendment protection since the 1970s. Commercial speech is intertwined with economic matters, an area in which legislatures are given broad discretion to regulate, and courts...
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Unforeseen Consequences: The Constitutionality of Unilateral Executive R2P Deployments and the Need for Congressional and Judicial Involvement
The role that the Responsibility to Protect ("R2P") played in the United States' decision to intervene in Libya in 2011 received wide coverage in academic and policy circles. While the Executive Branch's legal justification for taking action in Libya...
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Vol. 46, No. 3, Spring

Peer Review Is Threatened, but (P)So What: Patient Safety Organization Utilization in Florida after Amendment 7 as a Troubling Sign for PSQIA
This Note considers the interaction between medical peer review, patient safety organizations (PSOs) and Florida's Amendment 7, also known as the Patients' Right to Know. All three are directed towards curing the epidemic of medical error in the United...
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Navigating the Relationship between the DHS and the DOL: The Need for Federal Legislation to Protect Immigrant Workers' Rights
High-visibility workplace raids have drawn attention to the relationship between the Department of Homeland Security (DHS) and the Department of Labor (DOL) and how it affects workers' rights. To better align their interests, these agencies recently...
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Why the Law Should Intervene to Disrupt Pay-Secrecy Norms: Analyzing the Lilly Ledbetter Fair Pay Act through the Lens of Social Norms
This Note addresses the Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co. and the subsequent legislative response, the Lilly Ledbetter Fair Pay Act (LLFPA). Through the LLFPA, Congress overrode the Ledbetter decision and enacted...
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Amending § 1415 of the IDEA: Extending Procedural Safeguards to Response-to-Intervention Students
In 2004, Congress amended the Individuals with Disabilities Education Act (IDEA) to ameliorate the over-inclusion of students diagnosed with "specific learning disabilities" (SLDs) in special education. To achieve this goal, the amendments permit the...
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Vol. 46, No. 2, Winter

Exit, Pursued by a "Bear"? New York City's Handgun Laws in the Wake of Heller and McDonald
In its landmark 2008 decision in District of Columbia v. Heller, the Supreme Court held for the first time that the Second Amendment protects an individual's right to keep and bear arms in the home for the purpose of self-defense. Then, in 2010, the...
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Federal Anticorruption Law in the State and Local Context: Defining the Scope of 18 U.S.C. § 666
Federal law proscribes theft and bribery relating to federally funded programs under 18 U.S.C. § 666. The language of § 666 appears clear enough on its face, but this clarity quickly dissolves when one attempts to define what types of actions the statute...
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"Hispanic in Everything but Its Voting Patterns": Redistricting in Texas and Competing Definitions of Minority Representation
Based on unprecedented population growth revealed by the 2010 census, Texas picked up four additional congressional districts. Although minorities made up 89% of the population growth between 2000 and 2010, Texas lawmakers added only one Hispanic opportunity...
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Vol. 46, No. 1, Fall

Jury Duty Is a Poll Tax: The Case for Severing the Link between Voter Registration and Jury Service
Federal jury service has been formally connected to voter registration since 1968. Congress intended for this linkage to improve the American jury system by increasing representation of groups previously excluded from the jury pool. However, as legislative...
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Fair Housing Act Challenges to the Use of Consumer Credit Information in Homeowners Insurance Underwriting: Is the McCarran-Ferguson Act a Bar?
Despite the promise of the Fair Housing Act, structural inequality in the housing market persists. One of the most notable manifestations of this inequality is the racial and ethnic divide in patterns of homeowner ship. Although many factors contribute...
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Antitrust's Single-Entity Doctrine: A Formalistic Approach for a Formalistic Rule
Antitrust law makes a fundamental distinction between "concerted" conduct among multiple entities and "unilateral" conduct of single entities. Under the "single-entity doctrine," § 1 of the Sherman Antitrust Act is inapplicable to the latter. The statutory...
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Vol. 45, No. 4, Summer

The Democratization of Mass Actions in the Internet Age
I. INTRODUCTIONThe need for aggregate litigation is increasing as our society becomes more interconnected. Even as courts and legislatures contract the availability of efficacious class actions,1 demand for mass actions is rising. New procedures are...
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Democratization of Mass Tort Litigation: Presiding over Mass Tort Litigation to Enhance Participation and Control by the People Whose Claims Are Being Asserted
Cases raising claims for personal injury, even those presenting similar claims based on the same facts, have to be run by lawyers. There is no other way to provide for fair and efficient progress of cases towards satisfactory resolutions. Providing full...
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The Essentials of Democratic Mass Litigation
I. INTRODUCTIONWe take for granted our immersion in contemporary mass society, and have learned to cope with, if not rejoice in, our pervasively depersonalized daily lives. Only a few years ago, our quotidian transactions would have been conducted primarily...
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Democratization of Mass Litigation: Empowering the Beneficiaries
When it comes to mass complex litigation, all eyes are focused on the pending trials: observers want to know who the adversaries are, whether liability be found by judge and jury, what the scope of damages will be, and what the battlefield will look...
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Litigation Finance: What Do Judges Need to Know?
In any future case in this district such an agreement must be revealed to the court and members of the class as soon as possible. A "sunshine" rule is essential to protect the interests of the public, the class, and the honor of the legal profession.1In...
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Vol. 45, No. 2, Winter

The Pursuit of Integrated Living: The Fair Housing Act as a Sword for Mentally Disabled Adults Residing in Group Homes
Today, many state-licensed group homes for mentally disabled adults have come to resemble their predecessor psychiatric institutions in that they segregate residents from the community at large. In 2010, a court found that private group homes in New...
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Language and the Limits of Lemon: A New Establishment Clause Analysis of Catholic League for Religious and Civil Rights V. City of San Francisco
High-profile issues involving sexual orientation remain at the forefront of public debate, and rhetoric on both sides remains emotionally charged, even inflammatory - no more so than in the case of Catholic League for Religious and Civil Rights v. City...
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Retroactive Application of the Sex Offender Registration and Notification Act: A Modern Encroachment on Judicial Power
In the past decade, preventing sexual offenses has become a pressing concern throughout the United States. Following a series of kidnappings and rapes committed by individuals who had previously been convicted of similar offenses, legislatures at both...
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An American Way of Life: Prescription Drug Use in the Modern ADA Workplace
The dramatic rise in prescription drug use in the United States over the past two decades, with its attendant risk of a myriad of side effects, has left employers struggling with ways to balance their interests in productivity and safety with potential...
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Vol. 44, No. 4, Summer

Injured Undocumented Workers and Their Workplace Rights: Advocating for a Retaliation per Se Rule
Undocumented workers typically work in some of the lowest-paying and most dangerous jobs in the country. Although they experience abnormally high workplace injury rates, undocumented employees injured on the job rarely enforce their workplace rights...
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Prosecutorial Investigations Using Grand Jury Reports: Due Process and Political Accountability Concerns
"It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind...
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Tailoring the Taylor Law: Restoring a Balance of Power to Bargaining
In December 2005, 34,000 New York City transit workers went on strike following the breakdown of contract negotiations with the Metropolitan Transportation Authority ("MTA") over retirement, pension, and wage increases. The strike lasted only sixty hours...
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Childhood Obesity and State Intervention: An Examination of the Health Risks of Pediatric Obesity and When They Justify State Involvement
During the past three decades, the incidence of childhood and adolescent obesity has more than doubled in the United States, coupled with increases in the severity of pediatric obesity and the prevalence of illnesses associated with obesity among the...
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It's Not Who Hires You but Who Can Fire You: The Case against Retention Elections
Since Republican Party of Minnesota v. White was decided by the Supreme Court, "merit selection" plans have been the favored method for judicial election reform over non-partisan elections. This Note will offer a survey of the reform methods and examine...
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Vol. 43, No. 4, Summer

Search for a Round Peg: Seeking a Remedy for Recruitment Abuses in the U.S. Guest Worker Program
Migrant workers often incur high debt to pay recruitment fees for placement as guest workers in the United States.1 Recruiters regularly use false promises regarding working conditions and earnings opportunities to extract exorbitant fees. Workers then...
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Lowering Sentences for Illegal Immigrants? Why Judges Should Have Discretion to Vary from the Guidelines Based on Fast-Track Sentencing Disparities
"Fast-track" programs are selectively implemented programs that give illegal reentry defendants a reduced sentence in exchange for a quick guilty plea and broad waiver of procedural rights. Found predominately in southwest border districts overburdened...
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The Intentional Targeting Test: A Necessary Alternative to the Disparate Treatment and Disparate Impact Analyses in Property Rentals Discrimination
This Note addresses when a landlord exclusively rents to particular minority groups intending to profit from substandard apartment conditions and services. Because there is no similarly situated group of non-minority tenants with whom they can compare...
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Data Breach: From Notification to Prevention Using PCI DSS
With over 350 million records containing sensitive personal information having been compromised since 2005, it is evident that data breaches are an epidemic problem. After demonstrating the security breach problem, the Note begins by discussing California's...
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Vol. 43, No. 3, Spring

Don't Save the Date: How More Restrictive State Voter Registration Deadlines Disenfranchise Minority Movers
Most states close their registration books before Election Day, claiming that they need time to verify new registrations and prepare for voters to come to the polls on Election Day. The Supreme Court has accepted these proffered explanations for advance...
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Efficiency and Certainty in Uncertain Times: The Material Adverse Change Clause Revisited
What role do material adverse change clauses play in merger agreements? This Note analyzes the increasing importance of material adverse change clauses in economic downturns and examines their evolution and judicial interpretation. The Note argues that...
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Paying for Prisoner Suits: How the Source of Damages Impacts State Correctional Agencies' Behavior
This Note addresses an often overlooked issue facing state prisoners suing for federal civil rights violations: the impact of rules about the source of a monetary judgment or settlement on correctional agencies' litigation strategies. Using empirical...
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A Matter of Interpretation: How the Language Barrier and the Trend of Criminalizing Illegal Immigration Caused a Deprivation of Due Process Following the Agriprocessors, Inc. Raids
After more than 300 unlawful alien workers were arrested on criminal charges in the Agriprocessors, Inc. raid in Postville, Iowa, the proceedings used a fast-tracking plea-bargaining system where every defendant pled guilty within two weeks. These defendants...
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Vol. 43, No. 2, Winter

From Equal Protection to the Right to Health: Social and Economic Rights, Public Law Litigation, and How an Old Framework Informs a New Generation of Advocacy
Since the 1990s, rights to health, food, and shelter have been litigated in South Africa, India, and elsewhere. Human rights scholars and American legal commentators frequently treat social and economic rights litigation as if it were a distinct form...
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Improving Prescription Drug Access for Dual Eligibles after the Medicare Modernization Act
The Medicare Modernization Act of 2003 ("MMA") provided a new prescription drug benefit for millions of Americans who receive healthcare through Medicare. However, for those individuals who qualify for both Medicare and Medicaid, "dual eligibles," the...
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A Different Type of Housing Crisis: Allocating Costs Fairly and Encouraging Landlord Participation in Section 8
The Section 8 Housing Choice Voucher Program ("Section 8") is an important effort to make quality housing accessible to low-income families. Although the federal program is voluntary, several states, cities, and local communities have responded to the...
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Vol. 42, No. 4, Summer

Afraid to Be Myself, Even at Home: A Transgender Cause of Action under the Fair Housing Act
Discrimination against transgender individuals in housing is pervasive. Nonetheless, American jurisprudence has not explicitly addressed whether there are legal protections available to transgender individuals who are the targets of housing discrimination....
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When Should Interstate Compacts Require Congressional Consent?
The Compact Clause of the U.S. Constitution states "No State shall, without the Consent of Congress . . . enter into any Agreement or Compact with another State." Despite this language, the Supreme Court has consistently held that only a small fraction...
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Closing the Door on Positive Rights: State Court Use of the Political Question Doctrine to Deny Access to Educational Adequacy Claims
The United States system of funding schools with local property tax dollars leads to qualitative disparities across school districts. It is crucial that state courts address this problem, since no federal right to education exists. Students and parents...
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State Attorneys General and Contingency Fee Arrangements: An Affront to the Neutrality Doctrine?
Around the nation, a lack of government resources and / or expertise has forced state attorneys general to resort to outsourcing of prosecutorial efforts in order to ensure that the needs of the state and its citizens are adequately represented. Such...
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