Harvard Journal on Legislation

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WARNing: The “Liquidating Fiduciary” Exception Should Not Exist

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.

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

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.

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Be Warned: A Proposal to Reform Food Product Disclosure Statements

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.

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Desmond’s Law: Imprecise Language Makes for Inadequate Advocacy

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.

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The Coming Collapse of the Paris Climate Agreement

The Coming Collapse of the Paris Climate Agreement

By Bryan H. Druzin [*]

I. Introduction

Now that the Trump administration has abandoned the Paris Climate Agreement, the question is whether the agreement will collapse. A strong case can be made that it will indeed unravel—perhaps not immediately, but eventually. Although the world’s leaders have been quick to reaffirm their continued resolve to implement the agreement,[1] the problem is that multilateral environmental agreements are uniquely fragile because their value depends directly upon the number of states that are party to it and the collective perceptions that surround this. Environmental agreements have a certain “all or nothing” quality to them. For example, an agreement to reduce carbon emissions between only two states provides little value. The value of the same agreement, however, increases dramatically with twenty, ninety, or 195 governments in hand. They are thus extremely reliant on unanimity of agreement and uniquely sensitive to the loss of it.

This is why it was so vital that the Paris Agreement lock down the participation of all the states in the international system.[2] For all of its flaws, the Paris Agreement had the strength of unanimity. Countries that remain in an environmental agreement while other states pull out understandably grow reluctant to assume the burden of their commitments.[3] Because of this, withdrawal—particularly of a major player such as the U.S.—can create a knock-on effect, causing other states to follow. A slow trickle can become a flood. This dynamic renders multilateral environmental agreements extremely “tippy” and highly susceptible to collapse.[4] For international environmental cooperation to succeed, everyone needs to be onboard and everyone needs to stay onboard.

Many hold hope that the U.S. will ultimately not withdraw from the Paris Agreement, noting that under Article 28(1) the U.S. cannot exit the agreement until three years from the date on which the agreement entered into force for the party, which in the case of the U.S. was November 4, 2016. Article 28(2) mandates that withdrawal will then take effect one year after notification is received, putting the earliest date of actual withdrawal after the next presidential election, which is to be held on November 3, 2020.[5] However, this ignores that, while not yet manifest, the process of collapse has in fact already begun. The issue now is whether further erosion can be prevented. Because the agreement depends so much on international unanimity, the Paris Agreement was dealt a potentially fatal blow the moment the U.S. signaled its intention to withdraw.

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The Mathematics of Constitutional Failure

The Mathematics of Constitutional Failure

By Carrie Leonetti [*]

The federal courts were intended as anti-democratic structures.[1] Their interpretations of the federal constitution were supposed to be a counterweight to the excesses of the other two “democratic” branches.[2] The problem with this system is that the other two branches of government are not democratic. No one likes math less than I do, but the anti-democratic nature of our government only becomes apparent if one runs the numbers.

Begin with Congress. The Senate was designed to be less than democratic, as a concession to regional, states’-rights interests.[3] Its seats are decided not in proportion to electoral votes, but rather with an equal number of seats for each state, regardless of population.[4] California, the most populous state, has almost 39 million people. Wyoming, the least populous, has fewer than 600,000. Both get two Senators. So, in the Senate, the vote of each person in Wyoming counts for roughly sixty-seven times as much as the vote of each person in California.

This has ideological consequences. The high-population states, whose votes are diluted, tend to be “liberal” (California, New York, Illinois). The rural states, whose votes are supercharged, tend to be “conservative” (Wyoming, North Dakota, Alaska). So, the Senate ends up being not just unrepresentative geographically, but ideologically, as well.

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