Opportunity Gap: A Survey of State Source-of-Income Protection Laws and How They Address the Challenges Facing the Federal Housing Choice Voucher Program

Opportunity Gap: A Survey of State Source-of-Income Protection Laws and How They Address the Challenges Facing the Federal Housing Choice Voucher Program

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Introduction

 

In 1968, the United States Congress enacted the Fair Housing Act (“FHA”) with the stated purpose of “prevent[ing] segregation and discrimination in housing, including in the sale or rental of housing . . . .” The FHA prohibits landlords from refusing to rent to members of certain protected classes, including race, color, national origin, sex, religion, disability, and familial status.2 Notably absent from this list is what is commonly referred to as “source-of-income” (“SOI”) protection, which extends antidiscrimination statutes to recipients of federal public assistance.

The federal government’s primary housing public assistance program is the Housing Choice Voucher (“HCV”) Program (formerly known as Section 8). First established under the Housing and Community Development Act of 1974, the HCV Program allows voucher holders to use federal assistance to access the private housing market. The HCV Program aims “to increase access to safe, affordable housing units and to provide opportunities for low- income families to obtain rental housing outside areas of poverty or minority concentration.” Unfortunately, the goals of this pro- gram have been severely undermined by the refusal of many land- lords to accept tenants who will pay their rent through a voucher.

In response to this phenomenon, fifteen state legislatures have enacted some form of SOI-protection statute. The purpose of these statutes is to prevent landlords from refusing a tenant simply because they plan to pay their rent with the aid of federal public assistance. While each state’s statutory protections share a common purpose, they are not all structured in exactly the same manner. This Comment fills a gap in the current scholarship by highlighting the nuances of SOI protection across the states and analyzing which protections best align with the goals of the HCV Program and can best combat the current challenges the program faces. The Comment concludes by arguing that SOI protections accompanied by landlord incentives to participate in the HCV Program align best with the goals of the program and most specifically address the challenges the program currently faces.

Jamie H. Wood*

J.D. Candidate, 2021, University of Richmond School of Law; B.A., 2014, University of Texas at Austin. I would like to thank Professors Carl W. Tobias, Rachel J. Suddarth, and Tara L. Casey for their guidance and the valuable conversations that led me to explore this topic in the first place. I am immensely grateful to Professor Luke P. Norris for providing instructive feedback and encouragement that allowed me to carry on writing this Comment in the middle of a pandemic. I also appreciate my fellow members of the University of Richmond Law Review for their hard work and careful editing. Any remaining errors are mine. Finally, to Alex Wood: thank you for supporting and believing in me every step of the way.

Almond Beverage, Oat Water, and Soaked Soybean Juice: How the Dairy Pride Act Attempts to Remedy Consumer Confusion About Plant-Based Milks

Almond Beverage, Oat Water, and Soaked Soybean Juice: How the Dairy Pride Act Attempts to Remedy Consumer Confusion About Plant-Based Milks

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Introduction

Sure, you’ve heard of the Trojan War, the Napoleonic Wars, and you probably know more about Star Wars than the other two combined. However, odds are that you’ve never once heard of the Mayo Wars, and yet, the litigation behind it has likely impacted the food you have in your fridge at this very moment.

Like many wars, the Mayo Wars were fought between the big guy who set the status quo and the little rebel trying to shake things up. In this case, Unilever, owner of Hellmann’s mayo, was the big guy. Unilever is one of the largest companies in the world, with annual revenues of over sixty billion dollars, and Hellmann’s mayo has been a staple in many American households since the brand first started producing mayo back in 1912. In 2014, Unilever decided to take on Hampton Creek, the rebel of this story and the company behind Just Mayo, an egg-free, vegan mayonnaise substitute. Unilever claimed Just Mayo was, by the Food and Drug Administration’s (“FDA”) standards, not mayo at all and, in its 2014 lawsuit, demanded that Hampton Creek remove Just Mayo from the “more than 22,000 locations” in which it was sold. Unilever’s argument was based on the fact that Just Mayo violated the FDA’s standard of identity for mayonnaise because it lacked an “egg yolk-containing ingredient[].” Because Just Mayo therefore did not meet the legal definition of mayonnaise, Unilever argued that Hampton Creek misbranded by labelling the product as “mayo.” The FDA agreed with Unilever and issued a warning letter to Hampton Creek, informing the company that Just Mayo did not meet mayonnaise’s standard of identity. While Unilever eventually dropped the lawsuit, the FDA still pursued Hampton Creek, forcing the company “to do a better job of explaining the meaning behind ‘Just’ on the label” by increasing the size of “egg-free” on the label and decreasing the size of “the company’s logo of a cracked egg.”

While perhaps not the most riveting war ever fought, the Mayo Wars are an important part of the greater legal landscape dealing with standards of identity and misbranding in the food and beverage industry. However, while referred to as a “war,” the Mayo Wars pale in comparison to an even greater food war that two industry giants are waging today: the war between the dairy industry and the plant-based milk industry.

Michelle E. Hoffer*

* J.D. Candidate, 2021, University of Richmond School of Law; B.A. summa cum laude, Classical Studies, 2017, Dickinson College. This Comment would never have been published without the help and dedication of a number of people. I would like to thank Professor Kristen Osenga, for her endless enthusiasm and support, and for helping me discover this delightful topic. I also want to extend my heartfelt appreciation to Jamie Wood for her phenomenal editing and valued friendship, and to Lincoln Wolfe whose eye for detail is almost unparalleled. To the University of Richmond Law Review members who put tireless hours into this article, I truly appreciate you helping me get this piece to where it is today. Finally, to Michael Wilgus—your support for my Law Review life means more than you know.

The Preemption of Collective State Antitrust Enforcement in Telecommunications

The Preemption of Collective State Antitrust Enforcement in Telecommunications

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Introduction

 Thirty years ago, cellphones were limited to executives and eccentrics; today, they are a linchpin of modern society. Telecommunications help people connect, access emergency services, and navigate cities, but may represent a high cost to consumers. In 2013, T-Mobile branded itself the “Un-Carrier” and immediately began a strategic and widespread disruption of the consumer telecommunications market. Over the last seven years, T-Mobile instituted policies and campaigns to acquire market share from Verizon and AT&T, the two largest mobile carriers. Looking to jumpstart 5G technology and push the U.S. wireless infrastructure forward, T- Mobile decided to address its spectrum shortcomings by acquiring Sprint Mobile.3 Sprint Mobile faced an uncertain future, with declining subscribers and revenue. Telecommunications play a central role in the daily lives of most U.S. citizens, and the economics underlying the market determine the shape of that role. Before the merger, T-Mobile and Sprint had a combined 127,166,000 customer base. Changes to the market and the services provided to the existing customers of the new T-Mobile could drastically impact the welfare of a substantial number of consumers.

Federal and state antitrust differences came to a head in New York v. Deutsche Telekom AG. On April 29, 2018, T-Mobile announced its intention to merge with Sprint. The firms submitted the merger for review by federal agencies on July 18, 2018. Review by the Department of Justice (“DOJ”) and the Federal Communications Commission (“FCC”) followed. The DOJ and FCC reached settlements with the merging companies on July 26, 2019, and October 16, 2019, respectively. Then, fourteen States’ Attorneys General filed suit to block the merger, alleging concerns of raised costs and decreased competition. The suit proceeded to trial, with the district court reaching a verdict in favor of T-Mobile and Sprint. Finally, on April 1, 2020, the merger closed. Despite the closing of the merger, challenges continued with regulatory pushback from the California Public Utilities Commission (“CPUC”) and consumer litigation attempting to block the merger.

The dichotomy between the levels of government provided murky guidance to telecommunications firms on what behavior is anticompetitive and what decisions firms will have to spend years defending. Despite T-Mobile and Sprint agreeing to sell off several subsidiaries, helping to create a new competitor, and surviving a gamut of regulatory reviews, these companies still could not merge. At this point, preventing the deal would cause irreversible harm to the merging parties.

The conflicts that arose in the T-Mobile-Sprint merger could have been solved through the preemption of collective state antitrust enforcement in the telecommunications market, which would balance the twin goals of promoting the consumer and aggregate social welfares. The telecommunications market is subject to substantial federal scrutiny and regulation, which limits competitive choices to an abnormal degree and causes the market to suffer extraordinary damage when collective states interject themselves as enforcers. Limiting state antitrust activities is not a novel concept, with a variety of studies arguing that the inefficiencies and competing interests associated with state action substantially hamper state antitrust enforcement of national markets. This Comment does not presume to redefine the antitrust system in its entirety, but narrowly applies the possibility of preempting state action to the telecommunications market.

Jacob Grosso*

*J.D. Candidate, 2021, University of Richmond School of Law. B.A., 2018, George Mason University. I want to thank Professor Kristen J. Osenga for her mentorship, guidance, and friendship through this pandemic. I thank my fellow members of the University of Richmond Law Review for their hard work and dedication. Finally, I am forever grateful to Niamh Grosso and my family for their unwavering support.

Proving the Constitution: Burdens of Proof and the Confrontation Clause

Proving the Constitution: Burdens of Proof and the Confrontation Clause

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Introduction

In law, we never prove anything to 100% certainty. For factual propositions, the proponent has the burden of proving them to the satisfaction of a standard: a preponderance of the evidence at the low end; clear and convincing evidence in the middle; proof beyond a reasonable doubt at the high end. The standards are often explicit. Yet, for legal propositions, standards are often implicit or lacking altogether. This Article argues that, to decide legal issues, courts may look to similar burdens of proof that they use to decide factual issues. They should do so informally, using burdens of proof just as rules of thumb to guide their interpretation and application of law. Whereas the standard for statutory law should be at least a preponderance of the evidence, the standard for constitutional law ought to be higher—clear and convincing evidence—because judicial decisions on the meaning and applicability of constitutional (as opposed to statutory) law are harder to change by normal democratic means. But the standard should not be so high that courts cannot say what constitutional law means or how it applies in the face of any reasonable doubt, even if the evidence weighs heavily in one direction. The evidence may include textual, historical, and logical clues. To illustrate how this theory may work, this Article looks at an example related to the Sixth Amendment Confrontation Clause, which constitutionally guarantees the right of criminal defendants to be confronted with the “witnesses” against them. The Article concludes that the Clause’s application to forensic experts, as “witnesses,” simply is not warranted by clear and convincing evidence. Courts should not have accepted that application in

Enrique Schaerer*

J.D., 2008, Yale Law School; B.A., B.B.A., 2005, University of Notre Dame. Partner and Shareholder, Maupin, Cox & LeGoy. Former Fellow in Law, U.C.L.A. School of Law. Former Law Clerk to Hon. Carlos T. Bea, U.S. Court of Appeals for the Ninth Circuit, and Hon. James V. Selna, U.S. District Court for the Central District of California. For helpful input, I thank Andrew Blair-Stanek, Anthony Deardurff, Kristine Kalanges, Brian Lee, Lee Otis, Joseph Plater, Richard Re, Eugene Volokh, and Lincoln Wolfe.

Annual Survey of Virginia Law 2020

Annual Survey of Virginia Law 2020

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Preface

The University of Richmond Law Review proudly presents the thirty-fifth issue of the Annual Survey of Virginia Law. Since 1985, we have provided this comprehensive resource detailing recent legislative, judicial, and administrative changes in Virginia—and not even a pandemic will stop us!

This issue begins with a tribute to the late Justice Ruth Bader Ginsburg, a true icon and champion of equal rights for all. We memorialize the Justice’s profound impact on our state as the author of the Supreme Court’s majority opinion in United States v. Virginia, which led the Virginia Military Institute to open its doors to women for the first time.

The Annual Survey of Virginia Law features five articles, each providing summaries of changes in the last year to substantive areas of the law. The topics of these updates include Civil Practice and Procedure; Criminal Law and Procedure; Employment Law; Taxation; and Wills, Trusts, and Estates. Additionally, this issue contains two essays focused on narrower topics in the law, including an analysis of the changes in redistricting law and the impact of these changes on Virginia’s redistricting in 2021, and an argument in favor of centralized funding for state trial court law clerks. Finally, we are also proud to include a student comment written by a University of Richmond Law Review staff member, which analyzes judicial treatment of the physician-only law for first trimester abortions and the recent amendment expanding the field of abortion providers.

The Annual Survey would not be possible without these authors, many of whom contribute to the Annual Survey each year, devoting their time and expertise. I am personally grateful for their patience, kindness, and dedication throughout a challenging and un- conventional year.

Many people have worked behind the scenes to make this issue possible. First, the University of Richmond Law Review has an ab- solute treasure in Glenice Coombs. Glenice, thank you for sharing your expertise and perspective with a new group of students each year. Your commitment, guidance, and hard work have been even more essential during this particularly hectic year.

To my fellow executive board members, thank you for your dili- gent and careful work in helping this book come together. In particular to our Editor-in-Chief, Lincoln Wolfe, thank you for figuring out how to keep this ship sailing when the world locked down. And to our Executive Editor, and my very good friend Michelle Hoffer, thank you for your tireless work and for always helping me stay in good spirits no matter what issues pop up.

Finally, I am immensely grateful to Alex Wood for his love and support throughout law school. Thank you for providing a break from my school life and the much-needed perspective that only a non-law student can supply.

We hope the 2020 Annual Survey of Virginia Law serves as a valuable and thought-provoking resource in your legal practice. It has been my pleasure to serve as the Editor of the 2020 Annual Survey of Virginia Law, and I thank you for your continued readership and patronage.

Jamie H. Wood
Annual Survey Editor, Vol. 55

Click here for all of our Annual Survey 2020 articles

Religious Exemptions As Rational Social Policy

Religious Exemptions As Rational Social Policy

Justin W. Aimonetti & M. Christian Talley

 

 

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Abstract

In its 1963 decision Sherbert v. Verner, the Supreme Court interpreted the Free Exercise Clause to permit religious exemptions from general laws that incidentally burdened religious practice. Sherbert, in theory, provided stringent protections for religious freedom. But those protections came at a price. Religious adherents could secure exemptions even if they had no evidence the laws they challenged unfairly targeted their religious conduct. And they could thereby undermine the policy objectives those laws sought to achieve. Because of such policy concerns, the Court progressively restricted the availability of religious exemptions. In its 1990 decision Employment Division v. Smith, the Court then abandoned the Sherbert regime altogether. Incidental burdens would no longer suffice for Free Exercise exemptions. Instead, Smith predicated future exemptions on litigants’ showing that laws unfairly targeted religious practice or granted exemptions to secular entities that were arbitrarily withheld from religious comparators. Smith’s revision, this Article contends, subtly but profoundly changed how public policy interacts with the Free Exercise Clause. Smith created a world in which religious exemptions often promote, rather than impede, rational policy. Smith’s framework helps detect laws that are rooted in animus, rather than reason, or that impede their own efficacy with gratuitous secular exemptions. Applying that insight to recent religious liberty litigation contesting coronavirus lockdowns, this Article contends that many of those suits made state responses to COVID-19 more rational. Despite the scholarly criticism religious litigants endured, their suits exposed both irrational over-enforcement of lockdown measures against religious entities and irrational under-enforcement of those measures against their secular counterparts.

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