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volume 30

CURRENT VOLUME:

ISSUE 1                                               Fall 2023

ISSUE 2                                               Winter 2024

ISSUE 3                                               Spring 2024

CJERSJ Welcomes Volume 30:

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Volume 29 Issue 3
Summer 2023 Articles:

Using State Law to Enforce “Affirmatively Further” Fair 
Housing Obligations: No Longer Fitting a Square Peg 
in a Round Hole


Andrew Darcy 

 

The United States has a deep-rooted housing problem. Decades of discriminatory laws, regulations, policies, and practices have created pockets of racially segregated communities of color, many of which experience disproportionately high rates of social and economic harms, such as crime, poverty, environmental hazards, and chronic health conditions. The status quo is neither just nor sustainable.


This is not a new realization. The Kerner Commission report (the “Kerner Report”) issued in 1968, made extensive findings regarding the unequal treatment and conditions of Black Americans and warned that the nation was “moving toward two societies, one black, one white—separate and unequal.”   Partially in response to the Kerner Report, the federal government enacted the historic Fair Housing Act of 1968 (“FHA”),  which has as its primary purpose the promotion of “fair housing throughout the United States.”   To accomplish that goal, the FHA does more than merely ban discriminatory conduct in the housing market.   Rather, it implicitly acknowledges the history of housing discrimination in the United States and imposes affirmative obligations on certain government actors to ameliorate the persistent effects of such discrimination.

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A Court of Chaos and Whimsy: On the Self-Destructive Nature 
of Legal Positivism


Joshua J. Schroeder

Each of the four arguably most famous dictators in modern Western history, Adolf Hitler, Porfirio Díaz, Napoleon Bonaparte, and Oliver Cromwell, were legal positivists.  This is to say that they rejected both the common law and natural law conceptions of human rights.  They furthermore rejected the judiciary’s equitable power to enforce human rights independently of politics by characterizing the old Chancery of England as a court of chaos and whimsy, adopting John Selden’s religious rejection of equity as a “roguish thing.”

As Bertrand Russell recounted in his History of Western Philosophy, the philosophical avatars of German, French, and English despotism, Hegel, Rousseau, and Hobbes, provided the ideological bases for legal positivism in stark realism and relativism.  Yet, the United States’ legal establishment will not shake off these problematic philosophies as clearly self-destructive and illogical.  Rather, inspired by Oliver Wendell Holmes, Jr., the United States presently embraces them by willfully ignoring how Holmes punished Porfirio Díaz’s leading critic, Eugene V. Debs.
” 

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Volume 29 Issue 3 
Summer 2023 Notes:

Judicial Interpretation by Bankruptcy Courts and the 
Department of Education Regarding the Application of 
the Undue Hardship


Anda Totoreanu

As of September 19, 2022, Americans owe a startling $1.75 trillion in student loan debt.   Many of these student loans are not in active repayment—in 2020, only sixty percent were in active repayment, and critics note that “more than one million students default on almost $20 billion worth of federal student loans each year.”   Student loan debt surpasses both credit card and automobile debt and “has serious consequences for the student debtor,” including forcing “40% of student debtors to delay major purchases, such as a house or car, and caus[ing] more than a quarter to move back in with their parents or family members." 

In the January 2022 case In re Wolfson, the United States Bankruptcy Court for the District of Delaware found in favor of discharging student loans for Ryan K. Wolfson, a thirty-four-year-old with a neurological condition.  Analysts reported that this ruling “energized consumer bankruptcy attorneys who say [In re Wolfson] pulls a harshly interpreted standard for ‘undue hardship’ back to its origins and could pave the way for wider student debt relief.”   The judge presiding over the case “rejected the ‘onerous’ and ‘overly strict’ standards that have evolved for discharging student debt as ‘unmoored from the original test and the plain language of ‘undue burden’” and thus eliminated the debtor's near $100,000 student loan debt. 


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Pretrial Release, Risk Assessment, and the Failing 
Movement Towards a Cashless Bail System: 
The Need to Target the Source


Brooke Hodgins


When Azairian Cartman was twenty four years old, he was a student at Northern Michigan University, an Army Reserves member, and an aspiring Chicago police officer who was preparing for a spring semester abroad in Morocco—then, suddenly, an arbitrary pretrial release decision from a Michigan judge changed the course of his life.   Cartman was arrested after two women accused him of stealing $150 and an Xbox gaming device from them, and was subsequently brought before the court for a bail hearing.   In addition to the theft accusations leveled against Cartman during his preliminary court hearing, one of the women claimed he had also threatened and abused her, despite the fact that this accusation had already been deemed baseless by two other judges who had previously denied her requests for a personal protection order.   Still, without any substantial evidence presented by the woman to support these accusations, the judge set Cartman’s bond at $250,000—an amount he could not pay.   As a result, Cartman sat in jail for six months before he reluctantly decided he had no other choice but to accept a plea offer for felony larceny so he could finally regain his freedom and move on with his life.   The time he spent held in pretrial detention caused him to lose his job, apartment, enrollment in school, and dream of becoming a police officer. 

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Adolescent Brain Development and Crime: 
Why New York State Should Increase the Age of Criminal Culpability to Twenty-One Years Old


Julia Patz

In 2010, four days after his seventeenth birthday, Ben Van Zandt hopped on his bike and rode down to a specific home in a wealthy suburban neighborhood.   He had recently learned that the homeowners were out of town on vacation, so he broke a window, stole some credit cards, then lit the house ablaze.   According to his family and friends, this incident was out of character for Van Zandt—it seemingly came out of nowhere.   Unbeknownst to the people closest to him, Van Zandt had recently started hearing voices telling him to light fires to subdue his depression.   Van Zandt was arrested a few days later, after he used one of the homeowner’s stolen credit cards.   Because he was seventeen years old at the time, the police denied him any parental contact during his interrogation and eventual confession, and he was automatically placed in the adult criminal legal system once he was charged.   Like many others in the criminal legal system,  Van Zandt took a plea deal that sent him to an adult prison in upstate New York for the next ten years of his life.   While Van Zandt was incarcerated, he was allegedly sexually abused by a forty-five-year-old fellow prisoner, was coerced into selling drugs for a prison gang, and was accused of fighting in the prison yard.   Then, just four years after his arrest, Ben Van Zandt was found dead, having hung himself in his cell at only twenty-one years old. 

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The Drug Policy Reform Act: Analyzing the Potential 
Future of United States Federal Drug Policy


Justin Danziger


In the early 1970s, President Nixon declared the War on Drugs and initiated a movement in the United States that instilled a wrongful sense of animus towards non-violent drug users.  Initially, Nixon’s War on Drugs was an attempt to attack drug use and possession with excessively harsh penalties.   Since the launch of this initiative, many Americans began to view drug use as a criminal activity rather than as a health issue, hindering effective policy solutions aimed at bringing an end to the War on Drugs.   More recently, however, a poll conducted by the American Civil Liberties Union shows that sixty-six percent of Americans “support eliminating all criminal penalties for drug possession and investing the resources saved in treatment and addiction services.” 

Since President Nixon declared the War on Drugs, the United States government has been excessively strict in enforcing drug criminalization.   Despite being home to less than five percent of the world’s population, the United States accounts for about twenty-five percent of the world’s incarcerated population,  and in 2019, there were over 1.5 million drug-related arrests— the vast majority of which were for drug possession.   In 2023, approximately one in every five incarcerated people have been charged with a drug-related offense.   Furthermore, these high incarceration rates especially impact minority groups, specifically Black communities, more significantly than white communities.   


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People Over Profits: Why a Private Right of Action in the 
Occupational Safety and Health Act is Necessary During the COVID-19 Pandemic


Olivia Nevola


The Occupational Safety and Health Administration (“OSHA”) is a government agency tasked with enacting and enforcing standards to safeguard employee health and safety in the workplace.   OSHA falls under the United States Department of Labor, and the OSHA Administrator answers to the Secretary of Labor (“Secretary”).   OSHA was created in 1970 by Congress through the Occupational Safety and Health Act (“the Act”). 

While the Act provides a blueprint of the requirements that employers must follow to maintain a safe workplace environment for their employees,  the Act and OSHA often fall short.   OSHA is significantly understaffed and underfunded.   Further, due to OSHA’s structural failures and because OSHA’s mandated fines are much lower than the harm caused by an employer’s violation of the Act,  OSHA has been referred to as “toothless.”   These issues have been exacerbated by the COVID-19 pandemic, as OSHA must respond to constant changes in guidance from the Centers for Disease Control and Prevention as well as address the rise and fall of COVID-19 cases.   During this health crisis, OSHA’s inadequate response has caused its own COVID-19-related regulations to be obsolete, as they lag behind real-time pandemic updates.   While some degree of outdatedness can be expected, as the COVID-19 pandemic changes daily, according to an article written in May 2021, OSHA had not updated its COVID-19 recommendations since January 2021, which some consider “eons ago in pandemic terms.” 



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Most
Recent
Essays

Redistricting: Federal Law, State Constitution, and the Courts

Arisha Andha

Gerrymandering through the method of redistricting poses a grave threat to our democracy. Redistricting is the redrawing of voting districts to reflect the census data collected every decade. . .

You Do Not Have the Right to Remain Silent: The Lack of Miranda Within "Child Welfare"

Jane Weiss

Reform within the "child welfare" system is widely discussed due to the systems prejudicial nature. The system is called many names: the family policing system, the family regulation system, and the family destruction system . . .

Landlord Duties to Combat Tenant-on-Tenant Discrimination under the Fair Housing Act

Nicholas Cinquina

Congress passed the Fair Housing Act (FHA) during the Civil Rights movement, seeking to dispel discriminatory practices in the United States housing market . . .

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