REDUCING FAMILY SEPARATIONS IN NEW YORK CITY: THE COVID-19 EXPERIMENT AND A CALL FOR CHANGE

Child welfare agencies and family courts have long removed children from allegedly abusive or neglectful parents as an ultimate means of ensuring a child's safety. The theory that high numbers of removals are necessary to keep children safe, however, had never been tested-there was no mechanism or political will to do so until the onset of the COVID-19 pandemic in March 2020. With the near-complete shutdown of New York City, the child welfare apparatus had no choice but to remove fewer children from their homes. Catastrophe did not ensue. Rather, the numbers tell a different story. Children remained safe across a range of metrics, avoided the trauma of removal from their homes during a global pandemic, and experienced sustained safety as the City began to reopen. This Piece argues that New York's child welfare system must learn from COVID-19 and significantly curtail its drastic measure of removing children from their families, which can cause substantial, often irreparable trauma to children. It uses the COVID-19 pandemic as a case study to demonstrate the safety and soundness of reserving removals (also known as remands) for only the most extreme circumstances. This Piece focuses on the dramatic reduction of removals specifically during the pandemic;examines the traumatic, racially biased, and overused practice of family separation from a child's perspective;and calls for specific reforms within the existing system to reduce remands while protecting children's safety.

Public Defense after the Pandemic

[...]a significant number of backlogged cases are murder cases. According to a recent public defense workload study conducted by ABA SCLAID and consulting firm Crowe in Indiana, public defenders require, on average, 232 hours for a noncapital murder case in which the individual is not facing life without parole and 311 hours in a case in which the individual is facing life without parole. [...]the ability to adequately build or defend a case decreases as time goes past, meaning backlogs impact not only the timing of justice, but the quality of justice. According to the Prison Policy Initiative, even before the pandemic extended jail stays, "[s]omeone in jail is more than three times as likely to die of suicide as someone in the general U.S. population."

Criminal Liability Nuances of Medical Negligence During the COVID-19 Pandemic

Under normal circumstances, the medical negligence of doctors in most European (continental) states is assessed within the limits of criminal liability under the criminal laws of each state, without exception in the case of COVID-19 or another pandemic. The author raises the question of whether doctors, in the performance of their duties and in the provision of treatment services during the COVID-19 pandemic, deserve any relief from their liability due to errors or negligence in the performance of their duties that have resulted in the consequences of damage to health or life loss of patients. The article provides an analysis of the special laws created for such situations and adopted in Poland and Italy while presenting the shortcomings and advantages of such legal regulation and distinguishing the discussion issues raised by legal scholars and practitioners of the abovementioned states. The author criticises the attempt to adopt a similar legal act in Lithuania and at the same time proposes to discuss the possibility of changing the existing legal regulation and setting limits on the criminal liability of doctors during the COVID-19 pandemic.

IN RE COVID-RELATED RESTRICTIONS ON RELIGIOUS SERVICES Consol. C.A. No. 2021-1036-JTL

For starters, he claims that this court lacks subject matter jurisdiction over the plaintiffs' claims. The Governor argues that it is not reasonably conceivable that the plaintiffs face a threat of imminent irreparable harm given that he lifted the Challenged Restrictions more than two years ago, has no intention of re- imposing them, and has entered into a settlement agreement that resolved a federal lawsuit brought by another religious leader in which he agreed to limitations on his ability to impose restrictions on houses of worship. The Delaware cases that impose that requirement have ported it over from the tests that a plaintiff must meet when seeking interim forms of injunctive relief, such as a temporary restraining order or a preliminary injunction. [...]when a plaintiff seeks to ground equitable jurisdiction on the potential need for a permanent injunction, the pled facts must support a reasonable apprehension that the defendant will act in a manner that will necessitate the injunction's issuance.

For emergency CS, a labour epidural should be removed and a spinal anaesthetic used instead

Planning, Preparation and Pre-emption are three key concepts in the practice of anaesthesia. In obstetric anaesthesia specifically, these three ‘P’s are particularly relevant as parturients are commonly present the Delivery Suite for a period of time prior to requesting or requiring anaesthetic intervention. One frequently encountered example of implementing Planning, Preparation and Pre-emption by the obstetric anaesthesiologist is the recommendation of starting epidural analgesia during labour. Unless contraindicated, this is suggested or advisable in parturients with modified WHO 3 and modified WHO 4 heart disease1, in women with maternal obesity2, in active COVID-19 infection3, in the presence of certain ophthalmic pathologies4, and in laboring women with pre-eclampsia5, among others. This is to ensure labour analgesia and patient comfort;to prevent deterioration of medical conditions due to the added physiological and psychological stresses of labour;to reduce the need for further anaesthetic intervention should anaesthesia be required for a surgical procedure;and to avoid general anaesthesia wherever possible, reducing the incidence of associated complications and protecting healthcare staff from aerosol-generating procedures.The main benefits of having an established Labour Epidural providing good epidural analgesia are: 1) the possibility of its conversion to an epidural anaesthetic in the case of an emergency Caesarean section, 2) the avoidance of disadvantages associated with removing the Epidural and using a Spinal, and 3) other considerations including cost, environmental impact, anaesthetist workload, and patient perspectives.1. Conversion to Epidural Anaesthesia for Emergency Caesarean SectionLumbar epidurals are regarded as the gold standard for labour analgesia6. The Obstetric Anaesthetists’ Association (OAA) in the United Kingdom estimates that only 5% of labour epidurals will not work well enough for a Caesarean section7, should it be required. In an Irish study, the rate of labour epidurals converted to spinal or general anaesthesia for Caesarean section was 9%8, the conversion rate from an Indian study was approximately 4%9, a Maltese study identified a rate of epidural conversion to spinal or general anaesthesia for Caesarean section as 0.85% and 1.5% respectively10, a Chinese publication showed a conversion rate to general anaesthesia of 3%11, while a systematic review in 2022 by authors from the United Kingdom and the United States of America including over 3000 patients showed an overall prevalence of inadequate epidural anaesthesia of around 30%12. It is however worth noting that this systematic review relates to elective caesarean section, and not emergencies, with the possibility that epidural analgesia was not established for a significant period of time prior to the procedure.Naturally, it is important to ensure that the epidural analgesia provided during labour is satisfactory to increase chances of success of epidural anaesthesia for emergency Caesarean section13. A number of risk factors have been identified as being associated with a failure of conversion from epidural analgesia to anaesthesia and recommendations for their mitigation14, in line with the spirit of Planning, Preparation and Pre-emption, have been made. The presence of an obstetric anaesthetist has also been mentioned as a relevant factor in this regard15.Furthermore, the time required for an epidural top up to a level adequate for surgical anaesthesia compares favourably with that required for a spinal, and in some cases, even with that required for a general anaesthetic. A 2018 retrospective cohort study showed that unadjusted median operating room-to-incision intervals were 6 minutes for general anaesthesia, 11 minutes for epidural top-up, and 13 minutes for spinal anaesthesia16. It is important to point out that when relating to clinical significance, general anaesthesia was associated with worse short term neonatal outcomes in this study, and that longer time intervals were not associated with worse neona al outcomes16. A 2007 retrospective audit from Australia showed mean decision-to-delivery times of 17 (±6) minutes for general anaesthesia, 19 (±9) minutes for epidural, and 26 (±9) minutes for spinal17. It has also been reported that established epidural analgesia may mitigate the increased anaesthesia and surgery time required in obese obstetric patients undergoing Caesarean section18.Finally, epidural anaesthesia for emergency Caesarean section has the benefit of being topped up as often as required to prolong the duration of the anaesthetic block. It also allows for manipulation of the time of onset of the anaesthetic, speeding it up by using lignocaine together with adjuvants such as opiates, bicarbonate, or adrenaline;or even providing a gentle onset of neuraxial anaesthetic blockade when required, for example, in patients with severe heart disease. One-shot spinal anaesthesia does not confer these benefits.Therefore, it can be said that in over 90% of cases where a functioning labour epidural analgesia is present, this can be satisfactorily used for emergency Caesarean section anaesthesia in a timely manner. This is very promising data which encourages the anaesthesiologist to utilize epidural top ups, instead of removing the labour epidural and attempting an alternative technique.2. Disadvantages associated with removing the Epidural and using a SpinalThe decision to remove a labour epidural for an emergency Caesarean section and opt for a spinal anaesthetic has its disadvantages. Firstly, as described above, the anaesthesiologist is losing an anaesthetic option which has a high chance of success and is negating some benefits related to Planning, Preparation and Pre-emption in obstetric anaesthesia. Secondly, the patient is being exposed to the potential complications associated with a second procedure, which may not have been justifiably necessary. In this case, there is always the possibility that a spinal anaesthetic is not possible to site due to patient anatomy, difficulty with appropriate positioning in an emergency situation, challenges resulting from the volume already present in the epidural space, and psychological stress due to the urgency felt by the multidisciplinary team, among others. This would result in the anaesthesiologist having to resort to general anaesthesia, which may further expose the patient to complications such as awareness, aspiration, and difficulty with airway manoeuvres.Additionally, there is controversy in the literature regarding the safety of spinal anaesthesia following pre-established epidural analgesia in obstetrics. A number of authors express concerns regarding the risk of high spinal or total spinal with the injection of local anaesthetic and adjuvants into the cerebrospinal fluid once this is already compressed by the contents of the epidural space14,19. This seems to be more of an issue if a recent epidural bolus would have just been administered, as compared to an epidural infusion only19–20. Case reports of these complications have been published21–22.3. Other considerationsWhen considering the choice between topping up a labour epidural or removing it and using a spinal for emergency Caesarean section, one should also factor in the issues of cost, environmental impact, anaesthesiologist workload, and patient perspectives.It can be argued that removing a labour epidural and performing spinal anaesthesia is more costly than topping up the already-present epidural. A new sterile gown and gloves will need to be used by the anaesthesiologist, together with the opening of a new sterile pack for spinal anaesthesia. This will include consumables, such as the spinal needle, the cleaning solution and swabs;as well as the cost of cleaning, decontamination, and sterilization of any reusable items, which involves the cost of additional staff. The repeated use of personal protective equipment, utilization of consumables, and processes associated with cleaning, decontamination, and sterilization also carries an environmental impact. In a world where cost-efficiency is key, and minimization of environmental impact is important, these considerations cannot be ignored.Choosing to remove a labour epidural and use a spinal anaesthetic for an emergency Caesarean section may also have an effect on the anaesthesiologist in terms of stress and workload. Deciding to remove a working epidural analgesia catheter before even giving it a chance to work is eliminating a realistic anaesthetic option for an emergency procedure. This limits the tools available to the anaesthesiologist as it is not usually feasible for an epidural catheter to be re-inserted in an emergency. It also requires the anaesthesiologist to explain this additional procedure to the patient and gain informed consent in a challenging situation. This extra workload i.e., explaining, gaining informed consent, and inserting a spinal anaesthetic, may be stressful for the anaesthesiologist. Also, they are now required to perform a procedure in a time-pressured and high-stakes environment. Performance anxiety may also play a part if the anaesthesiologist is very keen to avoid a general anaesthetic, for example, if they feel the patient’s airway looks particularly difficult or the patient has pre-eclampsia and would therefore be at a higher risk of complications.Patient perspectives should also be considered. The author has found no published literature specifically relating to patient preference regarding epidural or spinal anaesthesia for emergency Caesarean section. However, it is reasonable to think that a patient who has a working labour epidural already has confidence in the technique and as a result, may feel more reassured with epidural anaesthesia for emergency Caesarean section as compared to alternatives.In summary, labour epidurals providing satisfactory analgesia shouldbe considered for a top up to provide epidural anaesthesia for emergency Caesarean sections. In fact, this is one of the main benefits of siting labour epidurals in patients who are at a higher risk for Caesarean section and is a strong feature of obstetric anaesthesia practice using the principles of Planning, Preparation and Pre-emption. In addition, there are disadvantages to the alternative of removing the labour epidural and using a spinal anaesthetic. Furthermore, there are cost, environmental, anaesthesiologist, and patient considerations that may support the choice of epidural anaesthesia over spinal.National Institute for Health and Care Excellence (Great Britain). Intrapartum care for women with existing medical conditions or obstetric complications and their babies. National Institute for Health and Care Excellence (NICE);2019.Denison FC, Aedla NR, Keag O, Hor K, Reynolds RM, Milne A, Diamond A, on behalf of the Royal College of Obstetricians and Gynaecologists. Care of Women with Obesity in Pregnancy. Green-top Guideline No. 72. BJOG 2018Bauer M, Bernstein K, Dinges E, et al. Obstetric anesthesia during the coronavirus disease 2019 pandemic. Anesthesia and Analgesia 2020 Apr 20.Digre KB. Neuro-ophthalmology and pregnancy: what does a neuro-ophthalmologist need to know? Journal of Neuro-Ophthalmology 2011 Dec 1;31(4):381–7.Siddiqui MM, Banayan JM, Hofer JE. Pre-eclampsia through the eyes of the obstetrician and anesthesiologist. International Journal of Obstetric Anesthesia 2019 Nov 1;40:140–8.Kumar, Nishant DA, DNB, MNAMS Epidural Technique in Obstetric Anesthesia, Anesthesia & Analgesia: March 2021 - Volume 132 - Issue 3 - p e40 doi: 10.1213/ANE.0000000000005359Obstetric Anaesthetists’ Association (OAA). Risk of having an epidural or spinal to reduce labour pain. March 2021. Accessible at: https://www.labourpains.com/Epidural-Information-CardSingh V, Lal S, Thomas J, Narayanan N. ESRA19–0621 Incidence of failed epidural anaesthesia for emergency cesarean section and conversion rate to spinal or general anaesthesia.Pandya ST, Mikkilineni J, Madapu M. Conversion of labour epidural analgesia to anaesthesia for emergency caesarean section: A retrospective audit. Journal of Obstetric Anaesthesia and Critical Care 2021 Jan 1;11(1):5.Abela GP, Thor ton B, Cortis PA, Calleja P. Evaluation of the obstetric anaesthesia procedures at mater dei hospital in 2019. Malta Medical Journal 2022 Jan 11;34(1):43–9.Shen C, Chen L, Yue C, Cheng J. Extending epidural analgesia for intrapartum cesarean section following epidural labor analgesia: a retrospective cohort study. The Journal of Maternal-Fetal & Neonatal Medicine 2022 Mar 19;35(6):1127–33.Patel R, Kua J, Sharawi N, et al. Inadequate neuraxial anaesthesia in patients undergoing elective caesarean section: a systematic review. Anaesthesia. 2022.Visser WA, Zwijnenburg RD. Management of neuraxial anaesthesia for intrapartum caesarean delivery based on the quality of epidural labour analgesia: A case series. European Journal of Anaesthesiology;EJA. 2019 Aug 1;36(8):615–7.Desai N, Carvalho B. Conversion of labour epidural analgesia to surgical anaesthesia for emergency intrapartum Caesarean section. BJA education. 2020 Jan;20(1):26.Bjornestad EE, Haney M. An obstetric anaesthetist: A key to successful conversion of epidural analgesia to surgical anaesthesia for caesarean delivery?. Acta Anaesthesiologica Scandinavica. 2020;64(2):142–4.Palmer E, Ciechanowicz S, Reeve A, et al. Operating room-to-incision interval and neonatal outcome in emergency caesarean section: a retrospective 5-year cohort study. Anaesthesia. 2018 Jul;73(7):825–31.Popham P, Buettner A, Mendola M. Anaesthesia for emergency caesarean section, 2000–2004, at the Royal Women’s Hospital, Melbourne. Anaesthesia and intensive care. 2007 Feb;35(1):74–9.Lawrence S, Malacova E, Reutens D, Sturgess DJ. Increased maternal body mass index is associated with prolonged anaesthetic and surgical times for caesarean delivery but is partially offset by clinician seniority and established epidural analgesia. Australian and New Zealand Journal of Obstetrics and Gynaecology. 2021;61(3):394–402.Vaida S, Dalal P, Mets B. Spinal anesthesia for Cesarean delivery following pre-existing epidural labour analgesia. Canadian Journal of Anesthesia/Journal canadien d’anesthésie 2009 Dec;56(12):988–9.Dadarkar P, Philip J, Weidner C, et al. Spinal anesthesia for cesarean section following inadequate labor epidural analgesia: a retrospective audit. International journal of Obstetric Anesthesia. 2004;13(4):239–43.Siddik-Sayyid SM, Gellad PH, Aouad MT. Total spinal block after spinal anesthesia following ongoing epidural analgesia for cesarean delivery. Journal of Anesthesia 2012;26(2):312–3.Gupta A, Enlund G, Bengtsson M, et al. Spinal anaesthesia for caesarean section following epidural analgesia in labour: a relative contraindication. International Journal of Obstetric Anesthesia 1994 jul 1;3(3):153–6.

Peer Mentor-Coaching in the Massachusetts Trial Court

INNOVATIVE PROFESSIONAL DEVELOPMENT FOR JUDGES The Massachusetts Trial Court's judicial mentoring program is called J2J, for judge-to-judge. Later, when we resumed jury trials, I held Zoom meetings for my new judge mentees to prepare them to manage the heavy caseload and provided a forum for nuanced analysis and discussion of complex jury management issues to compensate for their lack of traditional courtroom experience due to the pandemic. - New judge mentee History of the J2J Program The J2J Program began in 2009 when the Massachusetts Trial Court sought a formal and structured means of professional development for judges identified as struggling in a particular area. Working with an outside consultant5 and the director of judicial education in the Trial Court's Judicial Institute,6 a core group of judges initiated and developed an innovative program of peer mentor-coaching support for judges likely to benefit from focused, collaborative work with a trained colleague.7 While mentor-coach/mentee work proved beneficial to the judges involved in this context, the resource was not widely publicized or sought after, and it was considered remedial and rather stigmatizing in nature.

Mandatory Covid-19 Vaccination for U.S. Labors: Case I

In November 2021, the Occupational Safety and Health Administration (OSHA) issued an order targeting the majority of the workforce in the State. Employers with more than 100 employees must enforce the issued order and approximately 84 million workers will be subject to this regulation: Workers must be vaccinated with the COVID-19 vaccine or be screened negative weekly at their own expense and wear a mask at work. The issued order overrides the states laws as well. States, employers and nonprofits challenged the tethering order. The Fifth Circuit Court of Appeals was the first to stay the order;the Sixth Circuit later consolidated and reversed the Fifth Circuit's decision, holding that the order did not exceed the authority of the OSHA. The claimant sought emergency relief from the Supreme Court. The Court held that the Occupational Safety and Health Act only authorizes OSHA to specialize in occupational hazards and worker safety and health, and does not encompass a wide range of public health measures;the risk of COVID-19 infection is not unique to every occupation and varies in magnitude, and OSHA exceeded its authority by requiring all workers to be vaccinated without explicit congressional authorization. Accordingly, the Supreme Court stayed the application of the order at issue.

JUDICIAL HONORS

The Ohio State Bar Association (OSBA) honored Judge MARY JANE TRAPP of Florida's 11th District Court of Appeals with the Ohio Bar Medal. U.S. District Court Judge J. MICHELLE CHILDS of the District of South Carolina received the South Carolina Association for Justice's Outstanding Contribution to Justice Award. Retired Judge LESLIE E. STEIN of the New York Court of Appeals was selected to receive the Ruth G. Schapiro Memorial Award from the New York State Bar Association's Women in Law Section.

Oral argument at the Supreme Court before, during, and after the pandemic

[...]beginning this past fall, the justices returned to the courtroom, assuming a "hybrid" model that retains both pre-pandemic and telephonic elements: [...]in what proved to be one of his last exchanges with some of his colleagues, the late WALTER DELLINGER, a former acting solicitor general of the United States and a much beloved Duke Law professor who had himself argued 24 cases before the Supreme Court, moderated. [...]the Court builds in quite a bit of time to read and distill those documents - along, of course, with the amicus briefs - before oral argument. [...]I think there are the difficult cases where the Court actually may come out one way or the other based on how oral argument goes, either because the question is just exceptionally close and vexing, or because it's an area of law where the justices may not have as much familiarity - for example, when they deal with a new statute or an arcane area of law. In those cases, the justices are learning more at argument about either the law or the real world as it applies to that legal issue. When representing institutional clients like the federal government, it often matters a lot more what the Court says by way of reasoning than whether a particular conviction is upheld, a particular individual recovers damages, or even whether or not a particular law is upheld.

PROTECTING THE SUBSTANTIVE DUE PROCESS RIGHTS OF IMMIGRANT DETAINEES: USING COVID-19 TO CREATE A NEW ANALOGY

While the Supreme Court has defined certain constitutional protections for incarcerated individuals, the Court has never clearly defined the due process rights of immigrant detainees in the United States. Instead, the Supreme Court defers to the due process protections set by Congress when enacting U.S. immigration law. Increasingly, the federal courts defer to Congress and the Executive 's plenary power over immigration law and enforcement. This has resulted in little intervention in immigration matters by the federal courts, causing the difference between immigration detention and criminal incarceration to diminish in both organization and appearance. Immigration detention, however, is a form of civil detention and is legally distinct from criminal incarceration. This distinction is important because the federal courts traditionally approach civil detention with a scrutinizing eye. Civil detainees receive certain Fifth Amendment protections not available to the criminally convicted, namely that their detention cannot amount to punishment. The consequences of lacking a clear definition of immigrant detainees ' due process rights became far more apparent during the COVID-19 pandemic. As COVID-19 infections spread and detention and confinement conditions became more perilous, immigrant detainees relied on habeas corpus petitions to challenge the conditions of their confinement and seek release. However, several federal courts concluded that habeas was an inappropriate vehicle through which to challenge conditions of immigration detention, reflecting a long-standing circuit split within the criminal incarceration context. This Comment argues that courts that denied habeas petitions for release of immigrant detainees during the COVID-19 pandemic incorrectly analogized immigration detention to post-conviction criminal incarceration. This Comment suggests that the COVID-19 pandemic highlights the need for the federal courts to take a more principled approach to analyzing the substantive due process rights of immigrant detainees by drawing analogies to a different stage of the criminal adjudication process: pretrial detention.

Recent California State and Local Tax Developments: Certified Public Accountant

With respect to Internet activities, TAM 2022-01 provides that the following activities in California exceed the protections afforded under PL 86-272 and therefore create a California income tax filing requirement: * Post-sales assistance through online chat and e-mail via a business's website * Solicitation and submission of online applications via a business's website of branded credit cards that generate interest and fee income * The ability to upload or complete resumes on a website for non-sales positions * Websites that download Internet cookies and similar items for the purpose of gathering customer information used to adjust inventory, and other business activities such as the production and development of new products * Remotely repairing and transmitting a computer code to fix or upgrade previously purchased products * Selling extended warranties via a business website * Maintaining inventory in California at a marketplace facilitator's fulfillment center or warehouse. TAM 2022-01 also provides three activities that do not exceed the limitations of PL 86-272 and, therefore, on their own does not create a California income tax return filing requirement: * Post-sales assistance by posting answers to an FAQ on the Internet. * Downloading Internet cookies only for purposes of soliciting sales of tangible goods;Internet cookies may be used to- * remember items that customers have placed in their shopping cart, * store personal customer information so the customer does not need to re-input, and * remind customers of previously view items. * A website that only sells tangible personal property and whose capabilities are limited to posting product descriptions, selecting items for purchase, choosing delivery options, and issuing payment. Stay Alert CPAs should be mindful of the fact that the above tax provisions will benefit many taxpayers in California. [...]CPAs also need to be cognizant of the fact that TAM 2022-01 could create nexus and California corporation income tax filing requirements for taxpayers located outside California while benefiting taxpayers located in California.

ARBITRARY PROPERTY INTERFERENCE DURING A GLOBAL PANDEMIC AND BEYOND

To stymie COVID-19's spread, state and local governments imposed sweeping and burdensome lockdown measures that crushed American businesses and interfered with private property. Despite interfering with many Americans' property rights, state and local governments have consistently prevailed on pandemic-related regulatory takings claims in federal court. By forcing governments to pay for deprivations, the Takings Clause can thwart arbitrary interference with private property. However, the dispensation of regulatory takings claims arising out of pandemic-related regulations suggests that the Takings Clause may presently fail to adequately thwart arbitrary property interference in the partial regulatory takings context when the government claims that it is acting in the name of public health or safety. This Note expands on existing literature and details how substantive due process may presently only protect property from extremely arbitrary or despotic interference. This Note then argues that when substantive due process fails to thwart arbitrary interference, the regulatory takings doctrine will also fail to shield property when interference is substantial but is made pursuant to states' police powers. Because both doctrines may simultaneously fail to stymie arbitrariness, this Note contends that our Republic may constitutionally tolerate arbitrary property interference, a phenomenon highly detrimental to the rule of law. To incentivize legitimate and principled decision-making, and to protect private property from arbitrary interference, this Note urges states to pass laws that resemble the Texas Private Real Property Rights Preservation Act. These laws should, at a minimum: (1) require governments to compensate property owners for regulatory diminutions in property value that exceed a legislatively calibrated threshold;(2) excuse compensation when governments can satisfy a form of heightened scrutiny;and (3) permit governments to seek immunity from a law's requirements in exigent circumstances.

Beyond Discriminatory Intent: Agriculture, Labor Rights, and the Shortcomings of Equal Protection Doctrine

The National Labor Relations Act provides labor protections for millions of workers. The existing exemption for agricultural workers, however, leaves a crucial category of workers vulnerable because they lack federal protection to form unions and collectively bargain with their employers. Implemented in 1935, the exemption created a severe disparate impact for farm workers, most of whom are Latinx. This lack of labor rights robs agricultural workers of important tools to increase wages and improve working conditions and benefits. In the past, plaintiffs have attempted to challenge the exemption on equal protection grounds, but these challenges have failed-in large part because there is no direct evidence of Congress' intent to discriminate against Latinx workers, despite the exemption's disproportionate harm. This Note presents a theoretical framework for assessing equal protection claims challenging laws that have a prolonged and severe disparate impact, a framework which, unlike current equal protection doctrine, does not require plaintiffs prove discriminatory intent. The intention in creating this new framework is to make it easier for plaintiffs to challenge longstanding laws that continue to have a harmful disparate impact on minorities, even in cases where it is difficult or impossible to prove that Congress harbored discriminatory intent when it passed the law. This Note explains the elements of the theoretical framework and applies it to the NLRA agricultural exemption.

The Potential Impact of COVID-19 on Franchise Lost Profits Claims

By mid-February 2021, the outlook for the franchise sector had improved greatly, with IFA predicting that the number of franchised businesses would grow by the end of the year to offset 2020 losses and the number of franchise jobs would grow more than 10%, almost recovering fully from the 11.2% decline in 2020 employment, provided that COVID19 was managed.2 In July 2021, a fourth wave of COVID-19 swept through the United States fueled by the more transmissible Delta variant.3 The new surge in cases led businesses to delay their plans to require employees to return to the office starting in September 2021, creating concern that the economic recovery could be negatively impacted.4 At the time of this article's publication, the Omicron variant has just been discovered, with conflicting reports about its transmissibility and severity.5 When the influence of the pandemic recedes from the economy, the abatement may not benefit all sectors. [...]franchisors may become more aggressive about pursuing claims against franchisees for potential violations to try to enforce quality controls and preserve goodwill if the franchisees have fallen behind in compliance with brand standards due to the economic stresses of the pandemic, in which case the franchisors will seek to recover their lost future royalty streams to compensate for the loss of revenue until they can install a new franchisee to service the terminated franchisee's service area. [...]it is likely that the pandemic's long-term impact will cause an overall increase in franchisor-franchisee disputes and litigation. [...]for some claims, the onset of the pandemic might serve as a functional barrier on lost profit damages available to a plaintiff in a franchise dispute. "11 Thus, for a plaintiff to establish that it is entitled to an award of lost profits, it must prove not only that the underlying breach was both the "but-for" cause of its lost profits, but also that the conduct was a "substantial factor in bringing about the harm" and that the lost profits were caused by the breach and not some other factor.12 Moreover, if a plaintiff cannot prove that its lost profits were attributable specifically to the underlying breach where there are other potential causes of their loss, that lost profits claim should be rejected.13 B. Proving the Amount of Lost Profits Given that an award of lost profits necessarily requires an evaluation of potential events that ultimately did not come to pass, courts must weed out claims for damages that are too remote or speculative.14 Claims for lost profits are subjected to a heightened burden and must be proven with "reasonable certainty," or they will be deemed "too speculative" and will be rejected.15 Unfortunately, this "reasonable certainty" standard is not well defined, and courts have observed the difficulty in determining the precise quantum of proof needed to meet this standard.16 When making this evaluation, courts seek to balance the possibility of awarding a windfall to a wrongdoer by applying too high a bar to the recovery of lost profits, but also prevent that wrongdoer from becoming an unwitting guarantor of profits for plaintiffs.17 To carry its burden, a plaintiff must present evidence that is sufficiently persuasive not only to prove that it should be granted relief on its underlying claim, but also to prove that it meets this heightened "reasonable certainty" standard required for an award of lost profits and do so without the benefit of bright-line rules about what that standard requires or how it will be applied.

A Foreword for the Centennial

The Honorable Gregg Costa, Judge of the United States Court of Appeals for the Fifth Circuit and Volume 77 Editor in Chief, examines the influence of Texas Law Review articles in judicial opinions. First and foremost, Scott Atlas, former president and current ex-officio director of the Texas Law Review Association (TLRA), has played an instrumental role in planning the Centennial Year Banquet. [...]we appreciate our firm and individual sponsors, whose generosity has made our anniversary celebrations a reality.

COVID-19 pandemic not a basis for failing to pay rent for retail space

[...]the lease defined an "event of default" as occurring when Gap failed to pay monthly rent when due. [...]in its fifth argument, Gap asserted that the lease should be reformed because the parties made a mutual mistake in drafting the lease by failing to foresee and address the possibility of a global pandemic. The court disagreed, noting that mistaken assumptions about the future do not amount to mutual mistakes warranting rescission of a contract.

CONTRACTS AND THE COVID-19 VIRUS PANDEMIC

[...]as often noted by U.S. President Donald Trump and others, United States commerce is, for the most part, at a standstill throughout the pandemic period. [...]the use of "Stay at Home" or "Stay at Work" lockdown orders and other strict restrictions is a postconstitutional, or more modern interpretation by judicial review, is often controversial. [...]the exposure of the American population to the current COVID-19 pandemic is not a unique circumstance in the nation's history, nor is its impact on the state of contracts in commercial transactions unique. ( 1.Revolutionary war The Constitution's contract clause was enacted in the aftermath of the American Revolution (1775-1781) to prohibit states, federal government and other debtors from reneging on contracts and resultant "IOU" debts issued by states, their agents and militias during times of conflict.8 Indeed, one of the earliest Supreme Court cases dealt with such an attempt by the State of Georgia to breach a contract in the case of Chisholm v. Georgia (1793).9 Chisholm was the executor for a South Carolina merchant, Farquhar, who had supplied provisions to the Georgia Militia fighting during the Revolutionary War.10 When it came time to pay for the provisions, Georgia refused claiming "sovereign immunity.

Property Tax Assessments, Collections, and Revenue Performance in Economic Downturns: An Examination of Large American Cities

As state and local governments plunged into budget crises caused by the loss of sales, income, and other tax revenues in 2020, this study presents an examination of the Great Recession's effects on property tax collections in large American cities. Herein we explore the interactions between property tax components and key socioeconomic indicators in urban economies. In particular, we report how changes in house prices, household incomes, and employment affect the interactions among assessed values, levies, tions, and tax revenues. The stylized model we develop presents how, through property tax levies, valuations, and collection rates, property tax revenues are impacted. To correct for endogeneity among the variables, we use seemingly unrelated regressions and three-stage least squares estimators. The dataset includes financial indicators for the 147 largest American cities collected from 2003-2012. Results show that during recessions, declining house prices reduce assessed valuations, and reduced tax collection rates further compound this negative fiscal effect. The inelastic response of tax revenues to assessed values suggests that jurisdictions take back the difference by re-setting millage rates. Because each part of the levying and collecting process is very sensitive to the economic environment, revenue estimation for large cities becomes more difficult during recessions. OHLA

Malta ∙ Contract Extensions, the Covid-19 Pandemic and Interim Injunctive Measures by Incumbent Concessionaires: Water Leisure Limited et vs Transport Malta

The injunction is interim in nature, and therefore, the law requires that the claimant shows that these three requisites exist on a preliminary (prima facie) basis on the face of the documents before the Court. [...]in principle, the evidentiary burden to be satisfied by the claimant is lower than that required in a trial on the merits. [...]the Plaintiff claimed that it had carried out a number of investments in the area over which rights were granted with the expectation that it could exercise the right of first refusal in due course. [...]the Plaintiff claimed that the Contracting Authority was treating economic operators in the same category differently and that it was entitled to be granted an extension on the premise that others were. In particular, the Contracting Authority emphasises that the Contract expressly stated, in clear and unambiguous terms, that: (i) the duration of the Contract was until 30 September 2020;and (ii) the Contract ‘shall not be renewed or extended, neither shall a new [Contract] be signed with the Operator, on the expiry or termination thereof’. [...]on this basis, from a purely prima facie perspective on the face of the documents before the Court, the Plaintiff did not have a right at law or contract for the extension as a result of Covid-19.