Recent Articles and Comments in Volume 77 (2024)
By Mark G. Kelman – Matthew Desmond made the claim in Evicted, his powerful work on housing insecurity, that those concerned with alleviating poverty should focus not merely on ensuring that poor people have higher disposable incomes, but on countering the exploitative price gouging that depresses the value of whatever income they have. This suggests the possibility that it might be a worthwhile anti-poverty strategy for courts to use the unconscionability doctrine to regulate exploitative contracts.
Three main issues follow from considering this possibility: (1) Do the poor actually pay more for goods of the same quality? (2) If they indeed pay more, do they do so because prices are exploitative? How should we define an exploitative price, and how can we identify that any particular group of buyers is indeed exploited? (3) Could courts seeking to make use of the unconscionability doctrine realistically identify cases in which poor people generally are overcharged, or will courts successfully invoke the doctrine to challenge unwarranted prices only when the price a particular seller charges exceeds some benchmark (e.g., the price charged before an emergency or the price charged to other buyers in highly similar transactions)? [...]
The Relationship Between Force Majeure Clauses and the Excuse Defenses
By Gregory Crespi – Many commercial contracts include force majeure clauses that excuse the parties from performing some or all of their obligations upon the occurrence of specified supervening events. The law is unclear as to the proper relationship between such clauses and the assertion of common law or statutory excuse defenses such as impossibility, impracticability, or frustration of purpose with regard to supervening events that are outside of the scope of such clauses. In particular, under what circumstances, if any, should a force majeure clause be regarded as preclusive of these excuse defenses with regard to those supervening events that the clause does not cover? In addition, should the determination that a particular supervening event is outside of the scope of a force majeure clause then be relevant for the determination of the merits of a subsequent excuse defense that is based upon that event? The judicial authority on these questions is surprisingly sparse, and I offer some recommendations as to how the courts should address these issues.[...]
The President’s Criminal Immunity
By Amandeep S. Grewal – This Article addresses a monumental question that the Supreme Court will soon decide: does the President enjoy criminal immunity for her official acts? This Article argues that she does. The potential criminal immunity for official acts has drawn exceptionally sharp critiques. Some scholars believe that the immunity is nonsensical, absurd, or downright offensive. Judge Florence Pan of the D.C. Circuit even posited that criminal immunity would allow the President to murder her political enemies with SEAL Team Six. This Article shows that the critics are profoundly mistaken. Criminal immunity for a president’s official acts finds a strong foothold in Supreme Court jurisprudence. As important, criminal immunity for official acts applies more narrowly than the critics believe. Immunity would allow a president to fearlessly exercise her constitutional prerogatives but would not allow her to bribe, steal, or murder.[...]
Section 363 Sales and Their Blind Faith in the Markets (Comment)
By Jacob DeSelms – Airlines tend to go bankrupt. In fact, all the so-called legacy carriers have gone bankrupt at one time or another. What leads these airlines into financial distress varies from case to case. Sometimes they are overrun by costs, and other times they lack sufficient demand. The concern of this paper, though, is not why airlines file bankruptcy—it is assumed that, from time to time, airlines will face financial distress and will require the protection of the U.S. Bankruptcy Code (the Code). Instead, this paper will examine how large firms such as airlines are navigating bankruptcies today. [...]
Protect Trans Kids: A Call to Action (Comment)
By Suzi Goebel – The last several years have seen an increasing number of attacks on marginalized groups in the United States, including people of color, women, and members of the LGBTQ+ community. Most recently, some state legislatures have focused their efforts on preventing transgender youth from accessing gender-affirming medical care. Despite a virtually unanimous consensus on the importance and benefits of gender-affirming care, many conservative politicians have taken aim at vulnerable children, standing in the way of potentially life-saving treatment and accusing their families and doctors of child abuse. Laws preventing transgender youth from receiving gender-affirming care are just one battle in the larger war on individual liberty interests, bodily autonomy, and health care privacy. Already, anti-trans laws written under the pretext of protecting minors are being expanded to detransition transgender adults and criminalize the very existence of transgender people. At the same time, pregnant people around the country are losing their reproductive rights and access to safe and legal abortions. These are both part of a concerted effort to wedge the unjust influence of oppressive state governments into two of the most intimate social and legal relationships: the relationship between a child and their parent, and the relationship between a patient and their doctor. [...]