Why Some Religious Accommodations for Mandatory Vaccinations Violate the Establishment Clause

Hillel Y. Levin

Volume 68, Issue 6, 1193-1242

All states require parents to inoculate their children against deadly diseases prior to enrolling them in public schools, but the vast majority of states also allow parents to opt out on religious grounds. This religious accommodation imposes potentially grave costs on the children of non-vaccinating parents and on those who cannot be immunized. The Establishment Clause prohibits religious accommodations that impose such costs on third parties in some cases, but not in all. This presents a difficult line-drawing problem. The Supreme Court has offered little guidance, and scholars are divided.

This Article addresses the problem of religious accommodations that impose third party harms in the context of states’ mandatory vaccination programs and proposes one approach to the line-drawing problem. This approach is consistent with the cases, offers predictable results in many situations, and accounts for relative judicial and legislative competencies. It suggests that in most cases, laws that offer religious exceptions, exemptions, or accommodations that impose third party harms are only unconstitutional if the law offers no comparable nonreligious exceptions

Under this approach, most states’ religious accommodations in the vaccination context violate the Establishment Clause. The Article also considers the relevant political dynamics and important implications of this conclusion.

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Bad Reliance in Public Law

Michal Saliternik

Volume 68, Issue 6, 1243-1290

When and how should courts protect individual reliance upon unlawful governmental acts? This question arises in various situations in all fields of public law. However, despite its pervasiveness, the problem of “bad reliance” has hardly drawn any scholarly attention. This Article sets out to fill this gap. The Article adopts a cross-public law perspective and makes two main normative claims. First, the Article argues that given their duty to promote the rule of law, courts should usually invalidate unlawful governmental acts even if they have induced extensive reliance. However, in cases where reliance upon an unlawful governmental act was essential for the exercise of personal autonomy-understood as the ability of people to control their destiny by pursuing their own life plans-courts should nevertheless consider giving effect to unlawful acts.

Second, the Article argues that when a court decides to protect reliance upon an unlawful governmental act, it should attempt to mitigate the adverse effects that such protection may have on the ex ante incentives of governmental authorities to comply with the law. The Article presents a two-tier strategy that courts can use to achieve this goal. Under this strategy, courts should explicitly acknowledge and condemn unlawful governmental behavior. Thereafter, they should exercise broad discretion with respect to the remedial measures that should be taken to protect reliance upon it. This strategy ensures that governmental authorities will know what the law requires of them and that they will pay a reputational price for violating it. At the same time, it renders the benefits that governmental authorities can gain from such violations uncertain.

Following the normative analysis, the Article turns to examining several doctrines and devices that courts have used to protect bad reliance. This examination shows that some of the rationales and considerations discussed in the Article already find expression in judicial practice, while others offer critical insights into this practice. At the same time, the case law analysis illustrates the problems and risks associated with the protection of bad reliance along the lines prescribed by this Article. The Article argues that while these difficulties should not dissuade courts from protecting bad reliance, they should affect their choice among alternative remedial solutions.

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Improving Services for Those Who Served: Practical Recommendations for the Department of Veterans Affairs’ Disability Benefits Model

Scott W. Taylor

Volume 68, Issue 6, 1291-1318

The mission of the U.S. Department of Veterans Affairs (“VA”) is “[t]o care for him who shall have borne the battle, and for his widow, and his orphan” by providing services and benefits to America’s veterans. As part of its mission, the VA administers a complex disability benefits program intended to compensate those veterans whose service-related impairments prevent them from fully engaging in the workforce. But the current VA disability benefits model constrains both its capacity to provide required services and its ability to adapt to the changing needs of the constituency it serves. So too does the VA’s outmoded disability assessment model, which amounts to a “one-size-fits-all” evaluation that determines the severity of a veteran’s disability based solely on symptomatology, and not the veteran’s actual ability to function in the workplace.

This Article suggests that the VA should instead employ a more holistic, individualized approach to assisting veterans disabled by their service by accounting for both economic and quality of life factors when assessing disability, considering both finite and ongoing payment options when providing disability benefits, and emphasizing rehabilitation and recovery in addition to compensation when providing services to those who have served.

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Sex, Drones & Videotape: Rethinking Copyright’s Authorship-Fixation Conflation in the Age of Performance

John Tehranian

Volume 68, Issue 6, 1319-1370

For more than two centuries, the Copyright Act has eschewed the task of defining authorship. However, with the decoupling of the act of creation from the act of fixation and the dramatic advance of technology, the issue of authorship has gained renewed relevance in recent years, as questions of authorship have permeated numerous high-profile legal controversies. To cite a few examples, the metaphysics of authorship lay at the heart of copyright squabbles involving Naruto (the crested macaque who famously took a selfie), Cindy Lee Garcia (the actress who received death threats for her appearance in the controversial movie The Innocence of Muslims, and, less obviously, Terry Bollea (the wrestler professionally known as Hulk Hogan who bankrupted Gawker Media with a sex-tape lawsuit).

With its exegesis of the Garcia v. Google decisions (both Judge Kozinski’s original opinion and the Ninth Circuit’s resounding reversal en banc), its reconsideration of the Supreme Court’s seminal decision in Burrow-Giles Lithographic Co. v. Sarony, and its analysis of authorial inquiries raised by interviews, drone and surveillance footage, bootleg recordings, paparazzi photographs and classroom note-taking, this Article identifies and critiques the problematic juridical conflation of copyright’s authorship and fixation requirements. As the Article argues, copyright’s authorship-as-fixation regime rests on a faulty premise, betrays copyright law’s role in recognizing and rewarding creativity and denies copyright interests to the very individuals who have provided significant, if not the most important, original contributions to works within copyright’s traditional subject matter. As a result, the Article calls for a fundamental reconsideration of the concept of authorship, including the issue of performer copyrights, in order to better align copyright law with its utilitarian goals, the realities of the creative process and broader public policy.

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Big Data, Price Discrimination, and Antitrust

Ramsi A. Woodcock

Volume 68, Issue 6, 1371-1420

Antitrust law today guarantees a particular distribution of wealth between consumers and firms by promoting competition in some markets, but allowing firms to retain pricing power in other markets, such as those in which a firm has achieved power through oligopoly or by fielding a superior product. By giving firms the power to identify individual consumers at the point of sale and determine the maximum price that each consumer can be made to pay for a product, big data will soon allow firms with pricing power to charge each consumer the highest price that the consumer is able to pay, upending the current distribution of wealth. Current antitrust rules cannot respond because those rules determine the distribution of wealth only indirectly, through regulation of competition, instead of directly through the regulation of prices, leaving firms with pricing power free to use their data to raise prices. As a political matter, a response will be necessary, however, because consumers will rebel against attempts to diminish their wealth.

Two options preserve the current distribution of wealth. One is to change antitrust rules to require more competition in markets that are exempt from antitrust scrutiny today. The traditional objection to such a deconcentration campaign, that it might reduce rewards to firms for innovation, would not apply because the purpose of deconcentration here would be to restore the current, presumably sufficiently rewarding, distribution of wealth. The other option is use by government of big data to set prices designed to maintain the current distribution of wealth. Big data would make price regulation of this kind possible by allowing regulators to calculate precisely how much wealth a given pricing policy lets consumers retain in a given market. One advantage of price regulation over deconcentration is that regulators would be able to use big data to tailor prices to achieve social justice ends, such as ensuring that the neediest consumers obtain the most value from their purchases.

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The National Bank Act and the Demise of State Consumer Laws

Angel Rzeslawski

Volume 68, Issue 6, 1421-1440

Following the financial crises of 2008, the Dodd-Frank Act was signed into law to protect consumers from abusive financial services among other things. However, the Dodd-Frank Act has a non-retroactive effect on predatory lending practices that occurred before its enactment. Therefore, many consumers who entered into abusive contracts are not able to seek relief through the Dodd-Frank Act. With the recent Second Circuit decision Madden v. Midland Funding LLC, consumers are now able to contest these contracts through the exercise of their state usury laws.

This Note suggests that the remaining circuit courts should begin to follow the Second Circuit Madden decision in the interest of consumer protection. This Note also proposes that in the event the Supreme Court grants certiorari to resolve the existing circuit splits, the Second Circuit’s decision in Madden should be upheld.

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Examining the Conditions of Confinement for Civil Detainees Under California’s Sexually Violent Predators Act

Dana Sherman

Volume 68, Issue 6, 1441-1460

“Civil detainees” under the Sexually Violent Predators Act include those persons who have already served their criminal sentences, but are still caged in prisons, awaiting court determination of whether or not they should be civilly committed to a state mental hospital. During this excruciatingly long waiting period, detainees endure conditions of confinement worse than they experienced when they were prisoners, and worse than they would experience if they were eventually to be committed to a state hospital.

Does the disparate treatment while in legal limbo deprive these civil detainees of their statutory and constitutional rights?

This Note examines relevant portions of the California Penal Code, the California Welfare and Institutions Code, and the United States Constitution, and argues that the confinement conditions for civil detainees unreasonably violate their statutory and constitutional rights.

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The Demand for Fiduciary Services: Evidence from the Market in Private Donative Trusts

Adam Hofri-Winogradow

Volume 68, Issue 5, 931-1006

Recent revelations on the use of fiduciary services raise concerns regarding their use for tax and creditor avoidance. Yet given the secrecy shrouding much of the fiduciary industry, we do not know which fiduciary services are used for such purposes, and to what extent. Shining a light on a particularly obscure part of the industry, this Article presents and analyzes the results of the first-ever global survey of professional service providers to private donative trusts, having obtained 409 usable responses from professionals in 82 jurisdictions, amplified by twenty-five interviews conducted with professional trust service providers in five jurisdictions. I report new data on four controversial features of current trust practice: (1) perpetual and extreme long-term trusts; (2) trust terms exonerating trustees from liability to beneficiaries; (3) tools rendering beneficiaries’ entitlements inaccessible to their creditors; and (4) the control of trusts by their creators.

I find that trusts drafted to subsist for more than a century are fairly common, especially offshore, but many such trusts are not in fact likely to survive that long. Trustee exculpatory terms are now standard in donative trusts serviced by professionals, with most settlors neither demanding nor receiving any quid pro quo for their inclusion. Anti-creditor techniques protecting beneficiaries’ entitlements are even more ubiquitous than trustee exculpatory terms, particularly in trusts serviced by U.S.-resident providers. Many protected beneficiaries are not less able than the average person to take care of their financial affairs. Finally, express reservation of powers by trust settlors is a majority phenomenon in the United States, but a minority one elsewhere. The actual control of trusts by their settlors is likewise far more common in the United States than elsewhere. I conclude the Article with recommendations for law reform that makes trusts likelier to benefit their beneficiaries and less likely to avoid duties owed to creditors and the state.

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Minority Mens Rea: Racial Bias and Criminal Mental States

Francis X. Shen

Volume 68, Issue 5, 1007-1084

The American criminal justice system relies upon jurors to regularly decode the mental states of criminal defendants. These determinations are often of black and Hispanic defendants, making “minority mens rea” a centerpiece of the justice process. This Article presents an empirical investigation of how jury eligible subjects decode minority mens rea. In a study involving over 1200 subjects, the Article explores whether subjects assign fictional protagonists named Jamal and Lakisha more culpable mental states than they assign to protagonists named John and Emily. The results show that, at least on this particular experimental task, racial bias does not affect the assessment of minority mens rea. An implication is that some decisionmaking contexts and tasks may dampen the effects of racial biases. The Article thus argues that we should continue to examine distinct legal decisionmaking tasks in order to better understand how biases do (and do not) affect outcomes in the criminal justice system.

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Regulation Through Deregulation: Sharing Economy Companies Gaining Legitimacy by Circumventing Traditional Frameworks

Diana Cao

Volume 68, Issue 5, 1085-1110

The “sharing economy” is a term describing organized economic activity that may supplant the traditional corporate-centered model and encourages peer-to-peer transactions. It is a system of sharing underused assets or services, for free or for a fee, directly from individuals, bypassing traditional “middle men.” The sharing economy provides much of its services through on-demand platform, such as mobile apps, and matches customer needs with providers to immediately deliver these goods and services.

Does the “sharing economy” share its risk with its consumers? Should the sharing economy be regulated? What effect does the lack of regulation have on its consumers, and would implementation of more regulations change those effects?

This Note uses home-sharing and ridesharing companies in San Francisco as case studies to explore these questions. By comparing the hotel and the taxi industries’ regulations with the emerging regulatory frameworks surrounding Airbnb and Uber, this Note argues that these companies have been left to “self-regulate.” Self-regulation has not proven to be effective, and as a result, the health and safety of consumers has been put in jeopardy. This Note argues that the regulatory regimes in place prior to the rise of the “sharing economy” should be revisited and appropriately restructured for these newly emerged business models.

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International Data Transfers: The Effect of Divergent Cultural Views in Privacy Causes Déjà Vu

Alyssa Coley

Volume 68, Issue 5, 1111-1134

Whether operating globally or simply integrating services on the Internet, many business functions inevitably subject companies to a web of complicated international regulatory and legal requirements. For example, collecting customer information worldwide, working with suppliers abroad, or operating a foreign subsidiary each trigger an obligation to protect the personal data of the individuals involved with those transactions adequately, and in accordance with various jurisdictional specific. Because thousands of American companies are affected by Europe’s strict requirements, the Department of Commerce, along with the European Commission, implemented the International Safe Harbor agreement (“Safe Harbor”) to assist companies in complying with European data protection laws.

An interesting turn of events ignited significant discourse about whether the Safe Harbor provided satisfactory protection for European data transferred to the United States. One European national’s challenge of the Safe Harbor provision led the European Court of Justice to review its adequacy, ultimately leading to the data transfer mechanism’s invalidation. Soon thereafter, a new framework, the U.S.-E.U. Privacy Shield (“Privacy Shield”) replaced the Safe Harbor. However, this new replacement mechanism has drawn equally harsh criticism.

This Note seeks to understand the disapproval of the two regulatory frameworks governing overseas data transfers, and begins by undertaking a brief analysis of the social forces shaping the vastly different regulatory approaches to privacy protection that exist in the United States and the European Union. The Author suggest that such disapproval stems from different cultural notions in the United States and Europe about privacy that are deeply rooted in those nations’ respective histories. The result? Déjà vu for the European Court of Justice as they prepare for another challenge to the validity of the existing international data transfer framework less than one year after its adoption and the date it took effect.

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The Right to Dignity in the United States

Michelle Freeman

Volume 68, Issue 5, 1135-1168

Under the law, “dignity” is a principle that is often invoked, but ill-defined. The most recent and prominent example of this was the U.S. Supreme Court’s decision in Obergefell v. Hodges. There, the Court created a right to “dignity,” but failed to articulate what a right to dignity meant, or how far it reached.

This Note attempts to provide a definition to the right created by the Supreme Court. To that end, this Note traces federal jurisprudence in order to determine what types of rights are considered to make up one’s “dignity.” This Note then examines the states’ use of “dignity” within their respective constitutions to determine whether further insight into dignity’s meaning can be found there.

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