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Volume 17 - Issue 2


Delayed Synergy: Challenging Housing Discrimination in Chicago in the Streets and in the Courts

Rubinowitz, Leonard S.,Shaw, Michelle | April 1, 2022

During the Montgomery Bus Boycott, the Montgomery Improvement Association combined a boycott with a successful constitutional challenge to bus segregation laws, producing more progress to desegregate the buses than either strategy could have brought about on its own. The Montgomery Improvement Association’s approach was a paradigm of the synergy between a social movement and social change litigation. This Article argues for opportunities for synergy between social movements and social change litigation in three ways: 1) extending the time frame; 2) joining the forces of two separate organizations to produce change, unlike the single organization in Montgomery; and 3) creating an innovative new program that is different from either of the earlier separate strategies. The Article takes housing desegregation in metropolitan Chicago as a case study. As a result of close, ongoing collaboration between two organizations, substantially more low-income Black families in metropolitan Chicago secured affordable housing of their choice than in the decade before the two organizations joined forces and produced “delayed synergy.”

Insuring Contraceptive Equity

Hickey, Jennifer | April 1, 2022

The United States is in the midst of a family planning crisis. Approximately half of all pregnancies nationwide are unintended. In recognition of the social importance of family planning, the Affordable Care Act (ACA) includes a “contraceptive mandate” that requires insurers to cover contraception at no cost. Yet, a decade after its enactment, the ACA’s promise of universal contraceptive access for insured women remains unfulfilled, with as many as one-third of U.S. women unable to access their preferred contraceptive without cost. While much attention has been focused on religious exemptions granted to employers, the primary barrier to no-cost contraception is the profit motivation of private insurance companies. This Article fills a crucial gap by providing an in-depth examination of the insurance practices that burden contraceptive access for the vast majority of reproductive-aged women on both public and private insurance. Private insurers are afforded substantial discretion in the products they choose to cover and the costs they set, and this causes significant disparities in the availability and affordability of various contraceptive methods. Arguments for equitable and enhanced contraceptive access are traditionally grounded in claims of constitutional rights to reproductive freedom. Unfortunately, this rhetoric of individual rights, rooted in privacy jurisprudence, focuses only on restraining the state from interfering with a woman’s reproductive decisions. This absolves the state of responsibility for family planning and allows women to shoulder the burden of unintended pregnancy as a matter of individual choice and responsibility. This Article instead applies vulnerability theory to establish state responsibility for just and fair distribution of contraception. A vulnerability approach imposes positive obligations on the state to provide contraception as a form of resilience, rather than allowing the state to abdicate responsibility to the private insurance market and individual women under a limited “consumer protection” role. This approach requires the state to monitor and regulate the discretion afforded to insurance companies in making public decisions regarding coverage of various contraceptive methods. This includes examining inequitable insurance practices and policies and assessing power imbalances between insurers, providers, and pharmaceutical companies and patients. In this manner, the United States can move beyond its narrow consumer-oriented approach to contraception and recognize that contraception is vital to fulfillment of important social obligations, not an individual choice made by empowered consumers.

How Judicial Accounting Law Fails Occupying Cotenants

Rich, Phil | April 1, 2022

Few law students remember judicial accounting law from their property law course, and it’s hard to blame them. This little-discussed body of law is formulaic and rarely addressed by appellate courts. Judicial accounting law, however, should not be ignored. The law, which allocates equity to cotenants (or, more colloquially, co-owners) of residential property upon partition of that property, guides homeowners’ behavior and shifts wealth between them. This Note argues that state legislatures should reform judicial accounting law to better protect those cotenants living in their homes from partitions brought by cotenants living elsewhere. The problem with judicial accounting law lies in its rigid approach to distributing property among cotenants. Current judicial accounting law considers only six monetary factors when allocating equity to cotenants, including housing payments and the fair market value of rent (credited to cotenants who are not living in the home). As this Note explains, this inflexible process ignores the unique nature of residential property, improperly pushing occupying cotenants—those who live on the property—away from their home. To prevent harm to occupying cotenants, judicial accounting law should incorporate some additional non-monetary factors to enable judges to shift more equity to the occupying cotenant in cases where (1) that cotenant has an established connection to their home and community, and (2) the non-occupying cotenant has induced the occupying cotenant to rely on stable housing. This modest change in law promotes utility while remaining grounded in analogous areas of law, such as the marital distribution of property.

Outside Tinker’s Reach: An Examination of Mahanoy Area School District v. B. L. and its Implications

Hunt, Michelle | April 1, 2022

In the 1969 landmark case Tinker v. Des Moines Independent Community School District, the Supreme Court reassured students that they do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Ever since then, the exact scope of students’ free speech rights has been unclear, but the high court has used Tinker’s substantial disruption test to clarify its scope in successive legal challenges. In 2017, B. L., a Mahanoy Area School District student, was suspended from her cheerleading team after using vulgar language off-campus that made its way back to her coaches. She challenged the decision in the courts, and when her case reached the Court of Appeals, the Third Circuit declined to use Tinker’s test in its decision, instead ruling that Tinker categorically does not apply to any off-campus speech. The Third Circuit’s argument that courts should use a bright-line rule in applying Tinker to off-campus speech is a compelling one. This Comment evaluates the substance of the Third Circuit’s decision, describes the Supreme Court’s eventual retort, and discusses why the Supreme Court’s ruling fails millions of public school students and their families. While the Supreme Court vindicated B. L., students suffer without clear guidance regarding student free speech rights.

Medical Necessity of Residential Treatment for Anorexia: Can Parity be Achieved?

Derechin, Abbey | April 1, 2022

This Note examines the statutory landscape of mental health parity in the United States. The lens of this Note is through the mental illness of anorexia. Parity laws mandate analogous limitations between mental and physical illness. Therefore, because anorexia has many physical manifestations, it serves as a nice juxtaposition to physical illnesses. This Note will argue for broad interpretation of the Mental Health Parity and Addiction Equity Act (MHPAEA) through comparative analysis of counterpart statute, the California Mental Health Parity Act (CMHPA). It will explore how courts have interpreted the CMHPA broadly to suggest that the MHPAEA should be interpreted the same way.