UCLA Law Review Volume 54, Issue 4


The Implied Warranty of Habitability, Foreseeability, and Landlord Liability for Third-Party Criminal Acts Against Tenants

Over the past several decades, two of the most significant developments in landlord-tenant law have been the establishment of the implied warranty of habitability and the advent of landlord tort liability for third-party criminal acts against tenants. For the most part, the implied warranty of habitability and landlord liability for third-party criminal acts were created by separate movements. Consequently, the vast majority of courts have predicated landlord liability for third-party criminal acts against tenants on tort law or on contract law principles. However, the Supreme Court of New Jersey in Trentacost v. Brussel established a landlord duty to protect tenants from third-party criminal acts based on the implied warranty of habitability. This Comment argues that the implied warranty of habitability provides a flexible means of establishing landlord liability for third-party criminal acts against tenants. Unlike the tort or contract approaches, the implied warranty of habitability approach is narrowly tailored to landlord-tenant law. However, the implied warranty approach failed to gain the support of courts and commentators in the wake of Trentacost, in large part because the Trentacost court refused to consider foreseeability, thus effectively creating a strict liability standard that was seen as unfair to landlords. This Comment calls for the implied warranty of habitability combined with a foreseeability requirement as an effective, flexible, and fair approach for establishing landlord liability for third-party criminal acts against tenants. The addition of a foreseeability requirement addresses the fairness concerns that undermined the influence of the Trentacost implied warranty of habitability approach.

The New Wal-Mart Effect: The Role of Private Contracting in Global Governance

This Article argues that networks of private contracts serve a public regulatory function in the global environmental arena. These networks fill the regulatory gaps created when global trade increases the exploitation of global commons resources and shifts production to exporting countries with lax environmental standards. As critics of trade liberalization have noted, public responses often are inadequate to address the attendant environmental harms. This Article uses empirical data to examine how private contracting regulates firm behavior, focusing on supply-chain contracting. The Article shows that more than half of the largest firms in eight retail and industrial sectors impose environmental requirements on their domestic and foreign suppliers. This contracting, which the Article terms “the new Wal-Mart effect,” reduces externalities by translating a complex mix of social, economic, and legal incentives for environmental protection into private contractual requirements. After demonstrating that private environmental contracting is an important part of global environmental governance, the Article examines the efficacy and accountability of this regime. The Article concludes that the private contracting regime often is preferable to the alternatives: lax national and international regulation of firms in many exporting countries, and markets that lack private environmental contracting. Finding much promise in the private contracting regime, the Article concludes by suggesting new strategies for governments, nongovernmental organizations, and firms.

Just Until Payday

The growth of payday lending markets during the last fifteen years has been the focus of substantial regulatory attention both in the United States and abroad, producing a dizzying array of initiatives by federal and state policymakers. Those initiatives have had conflicting purposes—some have sought to remove barriers to entry while others have sought to impose limits on the business. As is often the case in banking markets, the resulting patchwork of federal and state laws poses a problem when one state is able to dictate the practices of a national industry. For most of this industry’s life, just that has happened—the ability of lenders to take advantage of the laws of the least restrictive states has effectively displaced the laws of more restrictive states. Recently, however, significant changes in the policies of federal regulators have limited the ability of lenders to “export” less restrictive laws. Now, states can effectively police payday lenders within their borders for the first time. Yet as we enter an era in which states will be able to regulate payday lending more effectively, there has been little clear analysis regarding how they should do so. This Article provides a detailed explanation of the business models and regulatory regimes that exist today, together with a framework of options designed to implement various perspectives regulators might adopt. We emphasize three main points. The first is the unusual nature of payday lending, with very high interest rates accruing against necessarily limited debt amounts. Unlike other consumer-lending products such as credit cards, the payday loan amount does not increase over time, but the repetitive short-term interest obligation can lead to a recurring cash annuity for the lender. Second, we underscore the limitations of existing legal regimes, which often leave loopholes that permit lenders to avoid the statutory framework; this is a particularly serious problem for the majority of states that have tried to limit rollover lending. Third, addressing the majority of jurisdictions that have not banned payday lending, we advocate a reversal of the current hostility to market activity by large institutions. If the market is to exist, we believe it is better for it to be populated by highly visible national providers than by smaller mom-and-pop providers.

Limiting Constitutional Rights

The structure of constitutional rights in the United States and most other countries grants to legislatures a limited power to override rights when they conflict with certain public policy objectives. This limited override power contrasts with an absolute one, as enshrined in section 33 of the Canadian Charter of Rights and Freedoms, and is also both general and noninterpretive in nature, unlike the “substantive” congressional power claimed by some under Section 5 of the Fourteenth Amendment. This override power tends to be somewhat obscured in the United States by the absence of express limits on rights and, thus, a textually mandated two-stage process of rights adjudication. In this Article, I first highlight the existence and nature of this limited override power and then present a normative justification of it and the general structure of rights that underlies it. In moving beyond description to defense, I also aim to respond to the highly influential, but largely unanswered, antibalancing critique in constitutional law. Specifically, I offer a democratic justification for the modern structure of rights as presumptive shields rather than peremptory trumps against conflicting public policy objectives—that, at least when certain substantive constitutional criteria are satisfied, rights should be overridable by legislatures for democratic reasons. My justification in turn has important consequences for how courts should go about their task of reviewing exercises of this legislative power. My specification and defense of the limited legislative override power also provide fresh perspective on two other vigorous debates in constitutional theory. First, both opponents and proponents of judicial review have overlooked the role that the near-universal override power plays in rendering systems of judicial review less vulnerable to democratic critiques. Second, this power represents a form of popular constitutionalism that does not challenge—indeed is entirely consistent with—the interpretive supremacy of the U.S. Supreme Court and other constitutional courts.