Category: Notes

Dealing in Debt: The High-Stakes World of Debt Collection After FDCPA – Note by Lauren Goldberg

From Volume 79, Number 3 (March 2006)
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Judi Norwood graduated from Arizona State University in the late 1990s. Due to the downturn in the economy, Judi was unable to find a job and consequently defaulted on the relatively small amount of money due on her MBNA credit card, about $2000. After pursuing Judi for months, the credit card company abandoned its efforts. Believing the bad situation was behind her, Judi moved to Florida, married a surveyor, had a son, and began her current job as a waitress. In the subsequent years, the small family saved $5000 to put toward a down payment on a home. Less than a week before the deal was set to close, Judi was targeted by an attorney at Asset Acceptance, a consumer small-debt-buying company, hoping to collect her old MBNA debt. Without presenting adequate information about the debt’s validity, the attorney threatened suit in small-claims court unless Judi immediately paid her debt, which Asset Acceptance claimed had risen to nearly $7000. This amount far exceeded the original debt and was equivalent to nearly twice the credit limit on the card. Because Judi was unaware that she was not legally obligated to pay an arguably time-barred debt, she felt cornered and settled the suit for significantly more money than she originally owed to MBNA.

 

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Social Ties in the Boardroom: Changing the Definition of Director Independence to Eliminate “Rubber-Stamping” Board – Note by Rachel A. Fink

From Volume 79, Number 2 (January 2006)
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The new millennium ushered in a parade of corporate scandals. The succession of scandals, which began with the collapse of Enron, revealed a deep-seated pattern of disregard for shareholders’ interests. In response to these events and the widespread public outcry that ensued, Congress examined corporate board structure and senior management and passed the Sarbanes-Oxley Act (“SOX”) in 2002 to try to remedy problems of accountability. Even after SOX was passed, corporate governance experts continued to study the role of a board of directors and how that role may be modified in order to prevent future scandals and to protect shareholders adequately. They have analyzed many aspects of the board, ranging from the size, to whether the chief executive officer (“CEO”) should be the chairman, to the importance of truly independent directors.

True director independence is the critical inquiry. An independent director is a type of gatekeeper, providing a check on the CEO’s power, evaluating and criticizing business decisions, and ultimately protecting shareholders’ interests. All of the companies involved in the recent corporate scandals shared one characteristic – they had directors who were not truly independent.

 

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Partial Preemption Under the Health Insurance Portability and Accountability Act – Note by Grace Ko

From Volume 79, Number 2 (January 2006)
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The landmark Health Insurance Portability and Accountability Act (“HIPAA”), which President Bill Clinton signed into law on August 21, 1996, was enacted in response to advances in information technology and their dramatic impact on the health care industry. Until recently, most medical records were paper-based, but technological developments have made it increasingly efficient to collect, retain, transmit, and exchange health care data. Title II of HIPAA includes the Administrative Simplification provisions, which mandate the promulgation and adoption of national standards for electronic transactions, thereby encouraging the use of electronic data systems.

Electronic data transmission has sped the delivery of care and the processing of claims, improved systems for identifying and treating those at risk for disease, facilitated medical research, and helped to detect fraud and abuse. But at the same time, by reducing the logistical obstacles to dissemination that had previously helped to preserve the confidentiality of hard-copy records, shifting from paper-based to electronic information systems has increased the risk that sensitive information may become vulnerable to inappropriate uses and disclosures.

Consequently, with the shift to electronic data management, there has been a concomitant increase in concerns about the confidentiality and privacy of medical information. These concerns have been compounded by changes in the health care delivery system, including the rise in integrated and managed-care networks, which have resulted in more entities maintaining and exchanging information. Increasing numbers of individuals and organizations, including some not even affiliated with physicians or health plans, now have access to medical records

 

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Judging the Three-Judge Panel: An Evaluation of California’s Proposed Redistricting Commission – Note by Nicholas D. Mosich

From Volume 79, Number 1 (November 2005)
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A movement to reform the method of drawing state legislative and U.S. congressional districts has been slowly spreading across the country for decades. The movement’s goal: to revoke state legislatures’ control over redistricting and cede it to independent redistricting commissions. Spurred by progressively less competitive elections for the U.S. House of Representatives and state legislatures, and by the increasing success of partisan and bipartisan gerrymanders in manipulating the outcomes of those elections, calls for change have recently attracted national attention. Following the 2004 elections – the results of which revealed some of the least competitive races for state legislative and congressional seats in American history and exposed two of the most effective and egregious political gerrymanders ever accomplished – these calls rose to a fever pitch.

In February 2005, California Governor Arnold Schwarzenegger responded to this outcry. He backed an initiative that, if passed, would have created an independent redistricting commission in California and he joined forces with nonpartisan organization Common Cause to advocate for the establishment of such commissions across the country. Commentators foresaw a “Redistricting Revolution.” The efforts of Governor Schwarzenegger and Common Cause met early success as campaigns to reform redistricting were launched in twelve states. Additionally, initiatives to establish redistricting commissions in California and Ohio qualified for the ballots during those states’ next elections. The calls for reform were echoed in Washington, D.C., as two bills were introduced in the House of Representatives that would require every state to use an independent redistricting commission for redrawing congressional districts.

 

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The Price of Silence: The Prosecution of Domestic Violence Cases in Light of Crawford v. Washington – Note by Jeanine Percival

From Volume 79, Number 1 (November 2005)
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A woman calls 911 and says, “Please. I need an ambulance. My husband just attacked me and I’m eight months pregnant. He hit me in the stomach and I’m bleeding. I think I’m losing the baby.” The home is located outside a small town. When the police and ambulance arrive after some time, the wife is unconscious at the bottom of a staircase and the woman’s husband is there, claiming to have just arrived home to find his wife in this condition.

The wife has bruises all over her body and the baby is lost, but shortly after being admitted to the hospital and regaining consciousness, she flees and is nowhere to be found. There are no witnesses, and the husband insists the wife fell down the stairs. The husband has no prior domestic violence convictions, but the wife’s medical history reveals a number of other “accidental injuries.” The wife has no friends and has not spoken to her family since the couple married two years ago. Her coworkers can testify that they suspected the husband was abusive. They can also testify that the wife was not allowed to drive, spend money, or attend social events.

Prior to the Supreme Court’s March 2004 decision in Crawford v. Washington, the wife’s 911 call would likely have been admitted in court under a hearsay exception and used to secure the husband’s conviction. But following Crawford, if the wife could not be brought into court, the statement would be inadmissible. Given that there is no evidence besides the 911 call that directly implicates the husband as the cause of the wife’s injuries, prosecutors would be unlikely even to file a case against the husband, let alone convict him.

 

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Third-Party Visitation Statutes: Why Are Some Families More Equal than Others? – Note by Natalie Reed

From Volume 78, Number 6 (September 2005)
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Over the last quarter-century, the definition of the American family has transformed from a clearly defined image of mother, father, and natural offspring to a kaleidoscopic vision of adoptive families, extended families, gay and lesbian families, stepparent families, and single-parent families. Although a vast body of law limits the state’s ability to impinge on the parental decisionmaking of intact, biological families, nontraditional families are finding that their legal right to select the persons with whom their children associate is far less protected and even subject to state court review.

The family, which was once a standardized structure, has diversified substantially because of liberal no-fault divorce rules, social acceptance of nonmarital sexuality and cohabitation, and tolerance of same-sex relationships. Detractors assert that America is in the midst of a social breakdown; however, the structure of the American family, rather than disintegrating, is merely evolving into something new.

 

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California’s Inequitable Parole System: A Proposal to Reestablish Fairness – Note by Daniel Weiss

From Volume 78, Number 6 (September 2005)
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Dana Hill is currently serving fifteen years to life in a California prison, and for the past few years, she has struggled to convince the Board of Prison Terms (“Board”) and the Governor that she is suitable for parole and ready to reenter society. Dana is but one victim of modern parole, a draconian system used as a mechanism of enforcing retributive principles. Modern parole falls far short of achieving the goals of rehabilitation and reintegration for which it was created.

When Dana was a child, her stepfather was physically abusive, and for her own safety, she left her family’s home at the age of fifteen. She served a two-year stint in the Navy, beginning at age seventeen. Shortly after being discharged, she befriended her codefendant, Keith Chandler, who introduced her to cocaine. Addicted to cocaine and in need of money, Dana met a man named Marion Canter, who had “both money and a preference for young women.” Shortly after they met, Canter began to pay Dana’s expenses and to allow her to live with him, rent-free, until they had a disagreement and he abruptly evicted her. In need of money, Dana, along with Chandler and another person, devised a plan to rob Canter. During the robbery, Dana’s codefendants insisted that she hit Canter over the head to subdue him, but the one blow that Dana inflicted was insufficient to render Canter unconscious. After Dana struck Canter, her codefendants wrestled him to the bed and proceeded to strangle him with an electrical cord. Frightened by her codefendants’ actions, Dana left the room, and when she returned five to ten minutes later, her codefendants were in the final stages of strangling Canter. About two weeks later, Dana turned herself over to the police department and cooperated in the investigation. In 1984, Dana pleaded guilty to second-degree felony murder for her involvement in Canter’s death.

 

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Judicial Deference to Agency Interpretation of Jurisdiction After Mead – Note by Torrey A. Cope

From Volume 78, Number 5 (July 2005)
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The pervasive influence of administrative governance is a defining feature of modern American life. Indeed, it is hard to find an aspect of daily life that is not regulated by one federal agency or another: the Department of Labor enforces labor laws; the Environmental Protection Agency (“EPA”) manages air and water quality; the Federal Energy Regulatory Commission (“FERC”) regulates electricity; the Food and Drug Administration (“FDA”) monitors the nation’s food supply and ensures the safety of its medicine; the Board of Governors of the Federal Reserve System (“the Fed”) supervises banking institutions; the Consumer Product Safety Commission (“CPSC”) regulates consumer products; and the Federal Communications Commission (“FCC”) oversees radio, television, satellite, and cable communications. With so many agencies minding America, one might ask: who is minding America’s agencies?

For one, courts have a significant supervisory role. They ensure that agency actions meet the Constitution’s due process requirements and individual liberty protections. Yet at the same time, courts give agencies leeway in interpreting the federal statutes they administer. This is because agencies have technical expertise, democratic credentials, and flexibility that courts do not. There is an inherent tension between these two opposing forces – a need for control and a need for deference. Courts must balance these forces whenever they review challenges to administrative action.

 

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