dhimelman

WARNing: The “Liquidating Fiduciary” Exception Should Not Exist

By dhimelman - November 6, 2018

WARNing: The “Liquidating Fiduciary” Exception Should Not Exist

Jonathan C. Gordon*

Abstract

The Worker Adjustment and Retraining Notification Act requires employers of a sufficient size to provide sixty days’ notice to employees affected by plant closings or mass layoffs. The Department of Labor, meanwhile, said that fiduciaries that are liquidating a business do not have to comply with that notice requirement. Courts have uniformly held that such a “liquidating fiduciary” exception exists. I disagree; there is no such exception.

Using traditional tools of statutory interpretation, I submit that Congress did not mean for such an exception to apply. Thus, Congress should clarify the WARN Act and make clear that there is no exception for “liquidating fiduciaries.” Until then, however, courts should stop applying the exception.

Combination Among the States: Why the National Popular Vote Interstate Compact is an Unconstitutional Attempt to Reform the Electoral College

By dhimelman - October 26, 2018

Combination Among the States: Why the National Popular Vote Interstate Compact is an Unconstitutional Attempt to Reform the Electoral College

Patrick C. Valencia[*]

“In all, the invisible federalism that has gone largely unnoticed in present presidential election debates serves a valuable purpose. It accounts for nonvoters, it maximizes enfranchisement, and it discourages interstate meddling. Federalism is not simply an impediment to Electoral College reform—it is a foundational element of its defense, one that precludes reform.”[1]

Abstract

Since the 2000 election “misfire” produced a President who won the Electoral College but lost the national popular vote, the National Popular Vote Interstate Compact (“the Compact”) has garnered support across the nation. Under the terms of the Compact, the states would thereafter pledge their electoral votes to the winner of the national popular vote, regardless of the outcome of the election within their own state. The Compact, already successfully approved by eleven states and the District of Columbia, needs its signatories to possess at least 270 electoral votes before it takes full effect and converts the Electoral College into a de facto direct popular election of the President. The current compacting states possess 165 electoral votes, and therefore need only 105 more before the Compact takes effect, a total that can be reached with the consent of as few as four more states. This article argues that this possibility makes the Compact a constitutional crisis–in–waiting. Although this crisis is not yet upon us, it lurks in the shadows and must be addressed before it has the chance to alter a presidential election and take away any and all effective electoral power from as many as thirty–nine states.

This article explains that the Compact is unconstitutional because it promotes combination among the states and effectively creates a direct popular election. Because these results are precisely what the Framers deliberately sought to avoid when they carefully detailed the “finely wrought” electoral procedures in Article II, Section 1, the Compact makes an impermissible fundamental alteration to the Electoral College. This Note examines the historical evidence of the Federal Convention, ratification debates, and writings of the Founding era and, in doing so, concludes that the Framers specified these procedures to prevent combination among the states and allow each individual state to vote according to its distinct interests. The Compact would force a state’s electors to disregard their state’s unique interests and, instead, vote for whomever secures a plurality of the national popular vote, regardless of that candidate’s performance in that specific state. To prevent this crisis-in-waiting from occurring, this Note concludes that if states ever attempt to enforce the Compact, a court should apply the “finely wrought” standard from Chadha and City of New York and strike down the deal, thereby preventing supporters of the Compact from passing a de facto constitutional amendment that deprives the non–compacting states of their current political power in presidential elections.

Be Warned: A Proposal to Reform Food Product Disclosure Statements

By dhimelman - October 14, 2018

Be Warned: A Proposal to Reform Food Product Disclosure Statements

By Gideon Zvi Palte, J.D. ’18[*]

I. Introduction

Dietary choices can have a significant effect on health.[1] Moderate reduction in salt consumption can reduce the risk of cardiovascular disease, stroke, and coronary heart attack.[2] High cholesterol has been identified as a major contributor to coronary heart disease, heart attacks, and strokes.[3] Reducing fat intake can contribute to weight loss.[4]

The societal prevalence of health conditions can have sizeable economic effects. The World Health Organization has identified a push to reduce salt intake as one of the most cost-effective population health measures that countries can implement.[5] Obesity costs the United States health care system $147 billion annually.[6]

The impact of dietary choices on health and the costs of chronic health conditions have led other countries to implement front-of-package food labeling requirements to warn consumers of high levels of specific nutrients in food products. Ecuador requires food products to display red, yellow, and green warning icons to indicate sugar, fat, and sodium contents.[7] Chile has implemented aggressive food labeling reforms to combat national obesity rates that are lower than such rates in the United States.[8]

The United States does not require comparable warnings of the risk of high contents of specific nutrients in food products. Although federal regulations identify fat, saturated fat, cholesterol, and sodium as nutrients that have the potential to increase the risk of a diet-related disease or health condition,[9] food products that contain these “health-risk nutrients”[10] in potentially dangerous quantities are not required to provide consistent or clear warning to consumers.

Food products are required to display disclosure statements to warn consumers of potentially dangerous health-risk nutrient contents only when those food products make a nutrient content claim[11] that characterizes the level of a nutrient in the food (e.g., “high in fiber”).[12] Because nutrient content claims are voluntarily included on food products,[13] food manufacturers can easily avoid the requirement to include a disclosure statement to warn of potentially dangerous health-risk nutrient contents by choosing not to display nutrient content claims on their packaging. Consumers therefore receive inconsistent notice of potentially dangerous health-risk nutrient contents in food products. Moreover, consumers do not receive clear notice of potentially dangerous health-risk nutrient contents because disclosure statements do not explicitly state that the food product poses a health risk due to its content of the health-risk nutrient.[14]

The shortcoming of the disclosure statement in providing consistent and clear notice of potentially dangerous health-risk nutrient contents in foods stems from its initial enactment alongside referral statements, which were intended to refer consumers to the Nutrition Facts label whenever a food product made a nutrient content claim.[15] The referral statement and disclosure statement requirements were enacted together as part of the Nutrition Labeling and Education Act of 1990 (“NLEA”),[16] which required standardized nutrition information on food product packaging for the first time.[17] Referral statements served to remind consumers to consult the newly required comprehensive nutrition information, instead of nutrient content claims that food manufacturers voluntarily included on food packaging, to learn about the nutrient contents of foods.[18] However, this requirement was abrogated with the passage of the Food and Drug Administration Modernization Act of 1997 (“FDAMA”),[19] leaving only disclosure statements, which are required to accompany nutrient content claims when food products contain health-risk nutrients at potentially dangerous levels.[20]

This Article proposes reforming disclosure statements to provide consistent and clear notice of potentially dangerous levels of health-risk nutrients in foods. The proposal would make disclosure statements (1) mandatory irrespective of the presence or absence of nutrient content claims and (2) explicit in indicating that the food products to which they apply contain health-risk nutrients in a quantity that poses a health risk.

The Article will first review the history of the legal requirement of disclosure statements in the United States and describe the current requirement and its shortcomings. Next, the Article will explore a private sector food labeling initiative in the United States and the regulatory approaches adopted by Chile and Ecuador to warn consumers of high contents of specific nutrients in foods. It will then discuss the importance of mandatory clear and accurate food labeling in addressing diet-related diseases and facilitating informed consumer decisions. Finally, the Article will propose a statutory reformation of disclosure statements in order to give consumers consistent and clear notice of contents of health-risk nutrients in food products that pose a health risk, followed by an analysis of the constitutional permissibility of the proposal.

Desmond’s Law: Imprecise Language Makes for Inadequate Advocacy

By dhimelman - August 22, 2018

Desmond’s Law: Imprecise Language Makes for Inadequate Advocacy

Nila Bala[*]

In 2016, Connecticut was lauded for becoming the first state to pass legislation allowing for an animal advocate to be appointed in animal cruelty cases.^[1] The legislation, called “Desmond’s Law,” was named for a boxer-pit bull mix that was abused and strangled to death by Alex Wullaert in Branford, Connecticut.^[2] Desmond’s body was found in a trash bag in the woods, emaciated, bruised, and starved.[3] Wullaert received accelerated rehabilitation, which meant that his charges were dismissed and his record was wiped clean.^[4] In response to Wullaert’s sentence, animal activists, calling themselves “Desmond’s Army,” rallied for animals to have a voice in court.[5]

News outlets have reported that Connecticut’s new law is similar to laws that appoint attorneys for the children and the infirm.^[6] National Public Radio, for example, expressed that Connecticut is “the first state to provide animals with court-appointed advocates to represent them in abuse and cruelty cases, similar to laws that provide for victims’ or children’s advocates.”^[7] Similarly, The New York Times described the law appointing “advocates for dogs and cats” as part of “a rising movement in the criminal justice system” that “has placed an emphasis on giving more of a voice to and adding support for crime victims,” such as “in cases involving children and the infirm.”^[8]

However, Desmond’s Law differs significantly from the laws that appoint advocates for children and vulnerable victims. Unlike those laws, advocates under Desmond’s Law do not represent the animal.^[9] According to the statute’s text, the advocate, who is a volunteer attorney or supervised law student, may “present information or recommendations to the court pertinent to determinations that relate to the interests of justice.”[10]

This Article examines why lawmakers chose to word the statute to protect the “interests of justice” rather than the animal’s interests and will argue that it was motivated by the historical underpinnings of the animal rights movement. While Desmond’s Law is an important first step in protecting animal welfare, this Article also explores the real drawbacks that the wording will present in animal cruelty cases.

It is All About the Money: Presidential Conflicts of Interest

By dhimelman - March 25, 2018

It is All About the Money: Presidential Conflicts of Interest

By Samantha Block[*]

The 2016 presidential election marked an increased distrust in the government, bringing a new era of presidential and vice presidential candidates. Current conflict of interest laws do not extend to the President and Vice President due to an outdated fear of interfering with their Article II constitutional powers. While conflicts of interest are not unique to the 21st century, the 2016 election brought about unprecedented conflicts. The 2016 election was unique—President Donald Trump was the first President in decades to refuse to remove notions of financial conflicts of interest. Trump’s acquisitions abroad have led to accusations of bias and bribery along with the fear that U.S. foreign policy will be influenced by his self-interest. Trump touted his conflicts making it clear that current laws are ineffective and outdated. This Article proffers that conflict of interest laws need to extend to the President and Vice President. First, this Article will explain why presidential conflicts of interest were previously not explicitly outlawed. This Article will then discuss current conflicts of interest laws and tools for managing these conflicts. This Article proposes a new law that would apply to presidential and vice presidential candidates which would require them to create a qualified blind trust. Additionally, this Article will explain why the Office of Government Ethics should be charged with overseeing the enforcement of this regulation.