University of Richmond Law Review

Making Federalism Work: Lessons from Health Care for the Green New Deal

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Making Federalism Work: Lessons from Health Care for the Green New Deal

For decades, federalism had a bad reputation. It often was perceived as little more than a cover for state resistance to civil rights and other social justice reforms. More recently, however, progressive scholars have argued that federalism can meaningfully advance nationalist ends. According to these scholars, federalism allows for spaces in which norms can be contested, developed, and extended. This new strain of scholarship also recognizes, however, that these federalist structures can still shield national-level reforms from reaching all Americans. Many see such gaps as a regrettable but unavoidable feature of our federalist system.

But to embrace federalism as an important component of the U.S. legal architecture does not mean that one must abandon efforts to craft effective federalist programs. To the contrary, this Article argues that the scholarly coalescence around the virtues of federalism raises a pressing new question: are there ways to structure federalist programs that help to build constituencies and participation over time? That is, for those who accept federalism but are committed to expanding essential services and goods to all Americans, how can policymakers best make federalism work?

To answer this question, the Article analyzes an important case study in modern federalism: the Affordable Care Act. We argue that the ACA experience offers three critical lessons about how to structure modern, federalist social justice legislation that both respects states as partners and builds effectively toward national norms.

These lessons involve (1) the new importance of federal program “backstops,” (2) the need to create unusual coalitions, and (3) the counterintuitive benefits of building upon entrenched statutory pro-
grams. These lessons from the ACA should, we assert, help architects and scholars of new legislative efforts better understand how to make federalism work to achieve social justice ends today. To illustrate how, the Article concludes by applying these lessons to the Green New Deal—the vibrant new legislative effort to jointly tackle climate change and inequality.

Jesse M. Cross*

Shelley Welton**

*Assistant Professor, University of South Carolina School of Law

**Associate Professor, University of South Carolina School of Law. The authors would
like to thank Morgan Hylton for outstanding research assistance, as well as the editors at
the University of Richmond Law Review for their excellent work.

Rules and Standards in Justice Scalia’s Fourth Amendment

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Introduction

When looking at Justice Scalia’s approach to the Fourth Amendment, most would say he was an originalist and a textualist. Justice Scalia himself would like to explain, “I’m an originalist and a textualist, not a nut.” Although originalism and textualism were often prevalent in his Fourth Amendment decisions, even more important to his decision-making was his disdain for judicial activism. To limit judicial discretion, Justice Scalia frequently opted to impose bright-line rules rather than vague standards. This is apparent not only within his jurisprudence as a whole, but also specifically in his Fourth Amendment decisions.

This Article examines Justice Scalia’s effort to limit judicial discretion through the lens of the debate between rules and standards. It is the first article to situate Scalia’s goal of limited discretion within the framework of the debate between rules and standards, as well as the first to discuss this issue specifically with respect to his Fourth Amendment decisions. Rules are binding directives that leave little room for considering the specific facts of any given situation. Critics argue that they tend to be over- or under-inclusive, but the value of rules is that by taking power away from the decisionmaker, they limit judicial discretion. Further, some argue that rules promote democracy because they properly leave the power to make decisions based on politics or value judgments to the legislature. On the flip side, proponents of standards argue that standards produce judgments that are less arbitrary and more substantively fair because they allow decisionmakers to consider all of the relevant facts and circumstances of the case.

Robert M. Bloom*

Eliza S. Walker**

* Professor of Law and Dean’s Distinguished Scholar, Boston College Law School.

**J.D., 2020, Boston College Law School; Law Clerk, Massachusetts Supreme Judicial Court.

Acknowledgments

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Acknowledgments

Each year, the Editor-in-Chief of the University of Richmond Law Review authors Acknowledgments to be included in their volume’s final publication. Typically in these remarks, the Editor-inChief offers their gratitude to those who have made the past year’s work possible, highlights the ups and downs that have marked their time in the role, and reflects on lessons learned after publishing a full volume of distinguished legal scholarship. In keeping with tradition, I will leave space for those matters here, as there is plenty to reflect upon and plenty to be grateful for. These Acknowledgments, however, would not be complete without due consideration of the extraordinary and historic year that has enveloped Volume 55 of our Law Review.

A year spent as a member of a law review—any law review—is a considerable undertaking, regardless whether spent as a second year or third-year editor, irrespective of the particular position held. Even in the most conventional of times, the hours spent poring over articles, the grind of learning the intricacies of the editorial process, and the effort of collaborating with peers combine to yield a uniquely challenging, if hopefully rewarding, experience. Such was the case well before the onset of the COVID-19 pandemic. Since March of 2020, a year unlike any other in the sixty-three year history of our publication has unfolded, and with it has come no shortage of tests.

J. Lincoln Wolfe, Editor-In-Chief

The Bivens “Special Factors” and Qualified Immunity: Duplicative Barriers to the Vindication of Constitutional Rights

Amelia G. Collins

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Introduction

When courts imply a cause of action under a Bivens analysis and when they apply an immunity as a defense, they are acting in their capacity as common-law courts. However, each of those mechanisms developed differently, and the Supreme Court of the United States has been hesitant to utilize one—Bivens causes of action—while generously applying the other—qualified immunity. The purposes behind each device were originally antithetical, with Bivens aiming to deter unconstitutional conduct and qualified immunity seeking to ensure courts did not deter too much. However, the Supreme Court gradually restricted its Bivens jurisprudence, from granting a cause of action unless there are “special factors,” to denying a cause of action whenever there are “sound reasons.” As a result, the practical outcomes of both analyses are the same: plaintiffs cannot fully vindicate their constitutional rights and often cannot vindicate them at all. This Comment argues that, to ensure the vitality of the foundational presumption that for every legal right, there is a remedy, the Supreme Court should restore its Bivens analysis to the original framework, invoking only those “special factors” recognized in the Court’s initial extensions of a cause of action to plaintiffs bringing constitutional claims.

Funeral Poverty

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Introduction

Death is an expensive proposition. The economics of life do not end with death, and putting the deceased to rest carries (often unexpected) funerary expenses for cremations, funerals, burials, and/or memorials. In 2019, the median cost of an adult funeral with viewing and burial exceeded $9000. This number is particularly stark given that four out of ten Americans would have difficulty covering an unexpected $400 expense, and 12% would be un- able to pay the unexpected $400 by any means. Although there are ways in which the consumer may mitigate cost, planning for a funeral or burial is expensive and complicated, and the consumer is frequently inexperienced and vulnerable.

For the average consumer, funerary expenses will be the third-largest category of expense incurred over a lifetime—and notably, this category of expenditure is often managed during an emotion- ally fraught time when the consumer may be cognitively impaired. A grief-stricken consumer is not a rational actor. This consumer is not price sensitive and is generally aware of only those prices and options made available by the first funeral home consulted. And though pre-need planning and prepayment would facilitate informed decision-making and purposeful saving, the options for pre-need prepayment are severely limited, with disadvantages that frequently outweigh benefits.

It is important to consider the way in which unremarkable, mundane, unconsidered expenses perpetuate inequality and contribute to intergenerational cycles of poverty, and this issue has been heretofore relatively unexplored by the legal academy in the context of death service expenses.10 And though the topic of funeral poverty is rarely discussed in the United States, it has been a trending is- sue in many other parts of the world. In the United Kingdom, it was raised before Parliament.13 In South Africa, economists found that the households studied between 2003 and 2005 spent an average of a year’s income (measured at median per capita African income) for an adult’s funeral, leaving poor households in a state of extreme hardship. Scotland implemented a funeral expense assistance program with eligibility for those with low incomes, with an average subsidy of £1372 in 2017/2018.15 And notably, the Swedish have preempted the need to have any conversation: all residents are entitled to burial services and charged a mandatory scaled fee for expenses on the resident’s annual tax statement, with financial assistance (if needed) from the municipal social services office.

In the United States, we are extraordinarily distanced from death and have largely moved the process from home to institution. After the Great Depression and World War II, life expectancy increased and death became taboo. Modern society shifted death out of sight and mind, railing against aging, whisking the dying to hospitals, removing the deceased to funeral homes, and purchasing meat for consumption. This sheltering from the organic and necessary end of the life cycle has created a “death illiteracy” that renders the consumer particularly vulnerable to foolish decision-making and exploitation while planning a funeral and/or burial. Important conversations about end-of-life planning, the responsibility to pay for one’s own funerary expenses, the notion of planning for inexpensive, simpler options, and meaningfully addressing funeral poverty are all ideas generally without traction in the United States. The consumer cloaks himself in the illusion of immortality and end-of-life planning threatens that illusion.

This Article makes a unique contribution to the literature by drawing attention to the financial burden of death service being shouldered by those who are “relatively poor,” or those for whom everyday life may be a financial struggle. The thesis is equal parts positive, normative, descriptive, and prescriptive: it is imperative that options be made available to transition human remains in a way that does not exacerbate cycles of poverty and allows for the living to preserve dignity. This need calls for important changes to existing legal structures, including modernization of consumer protection regulation, change to laws regulating the death service industry, and recharacterization of expenses for tax purposes. An overview of the death industry in the United States is explored in Part I, as a discussion of casket versus cremation as the path most followed. Part II traces the underlying economics of “shuff[ling] off this mortal coil” in the United States, and the limited options (beg, borrow, surrender) that are available to assist the struggling consumer. The structure of any marketplace influences consumption, and Part III considers gaps in marketplace regulation that highlight or exacerbate structural features such as uncertainty of need, information asymmetry, vulnerability of the consumer, and inelasticity of the marketplace. Part IV considers the multifaceted issue of funeral poverty and the potential long-term implication of these extraordinary expenses upon families. The Article concludes with a cohesive framework of solutions responsive to the unique structural features of the death services marketplace, by which funeral poverty issues may be comprehensively addressed in the United States.

Victoria J. Haneman*

* Frank J. Kellegher Professor of Trusts & Estates, Creighton University School of Law. I would like to thank Tiffany Graham (Touro), Marc L. Roark (Southern University), Katherine Macfarlane (Idaho), Carla Spivack (Oklahoma City), Paul E. McGreal (Creighton), John Linarelli (Touro), and Caitlin Doughty for feedback, guidance, and encouragement. Special thanks to Troy C. Johnson, Director of the Creighton Law Library, who has always been amazingly supportive of my research needs. Director Johnson was particularly accommodating and accessible when COVID-19 abruptly closed the school. Finally, my heartfelt gratitude to research assistants Sarah K. Mielke and Thomas R. Norvell for attention to detail and impressive editing skill.

Mergers, MACs, and COVID-19

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Introduction

The conventional wisdom is that MAE/MACs in merger agreements provide an opportunity for buyers to renegotiate merger agreements in the event of intervening adverse events. However, the experience following the COVID-19 outbreak suggests that the conventional wisdom is incorrect or at least overstated. In fact, MAE/MACs shift the risk of exogenous adverse events (like COVID-19) to buyers while leaving only the risks of adverse endogenous and semi-endogenous events with the seller. The consequence of this risk-shifting is to strictly limit the circumstances under which a buyer can credibly lean on a MAE/MAC to threaten to terminate a merger agreement and initiate a renegotiation. Parties to merger agreements appear to have internalized that lesson, as demonstrated by the relative paucity of renegotiations in the immediate aftermath of the COVID-19 outbreak.

Brian JM Quinn*

* Associate Professor of Law, Boston College Law School. Many thanks to Ms. Jihoo Kim for her valuable research assistance.

Trade Secrets and Personal Secrets

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Introduction

Two separate systems of law govern secrets. The first one concerns trade secrets: confidential business information that provides an enterprise with a competitive edge. The unauthorized use of a trade secret by persons other than the holder is regarded as an unfair practice and a violation of the trade secret. The second system protects personal secrets. This system is information privacy law. In- formation privacy law deals with the regulation, storing, and use of personal information of individuals. While both systems concern secrets, the laws that govern them comprise entirely different regimes, and have almost nothing in common.

This Article aims to examine the different ways in which the law protects commercial and private secrets. The most fundamental difference is that the trade secrets regime forbids the unauthorized use of a business’s confidential information, while privacy law does not forbid the unauthorized use of a person’s confidential information. If a firm takes measures to protect information of value, the law forbids the use of this information. Yet, as to personal secrets, the mere fact that someone has taken measures to protect their privacy does not create an obligation to avoid misappropriation of their in- formation.

This asymmetry of protection is especially troubling when these two systems collide. For example, certain information can be subject to a trade secret of a company, while at the same time strongly ‘belong’ to an individual. Trade secret laws often prevent individuals from learning about uses that firms conduct with their own private information.

This Article explores the extent to which the distinction between the two laws is justified, and analyzes whether the law of information privacy can be modified to resemble trade secrecy more closely. This exploration is particularly relevant under today’s climate of commodification of private information, where both users and companies make transactional use of personal data on a regular basis.

Lital Helman*

*Assistant Professor (Senior Lecturer in Law), Ono Academic College. The author is grateful to Michael Birnhack, Rochelle Dreyfuss, Daniel Gervais, Sonya Katyal, Gideon Parchomovsky, Joel Reidenberg of blessed memory, Michael Risch, Sharon Sandeen, Ofer Tur Sinai, Deepa Varadarajan, Felix Wu, and Tal Zarsky, for helpful insights and advice. The author is also thankful for input received in the 2020 Intellectual Property Scholars Conference and in the Ono Faculty Workshop.

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

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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

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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.