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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