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Pyrrhic Victories: The Mirage of Winning at the Supreme Court
Get PDFWe conduct in-depth archival research of landmark constitutional criminal procedure cases and find two ways in which the declarations of the vindication of rights they contain are misleading. First, most defendants who successfully establish police violations of their constitutional rights before the highest court in the land nonetheless remain in prison for years or decades subsequently. The multitude of ways in which the state can convict the individual defendant even in the face of one or more constitutional violations means that the Supreme Court precedents that bear their names seldom translate to genuine wins for the defendants. Second, there are often overwhelming hurdles to finding out what happened, even for legal experts and even in landmark cases—suggesting that holding the state accountable in ordinary cases and for ordinary people must be close to impossible. Transcripts are unavailable, individual official discretion determines if files are accessible, files are missing, extraordinarily high fees apply even where transcripts are available, and there are numerous other sometimes insurmountable barriers to researching these topics.
The fact that even those who win landmark criminal procedure cases typically remain in prison has significant doctrinal implications. The modern Supreme Court weighs “costs to society” in assessing whether to apply the exclusionary rule or Miranda protections, but our findings mean that these costs are less than they appear. Further, we argue that this opaque informational legal ecosystem masks the power of prosecutors and prevents accountability and transparency, hampering the rule of law. Accordingly, this Article has implications for specific doctrines as well as the orientation of the criminal justice system more generally
Playing Fair, Paying Fair: A Comprehensive Federal Scheme for the Regulation of Collectives and the Student-Athlete Name, Image, and Likeness Market
Get PDFCollege athletics have transformed with the advent of new name, image, and likeness (NIL) policies, permitting student-athletes to earn compensation in exchange for the use of their NILs. This development was driven by a series of court decisions, ultimately constraining the National Collegiate Athletic Association’s (NCAA) authority and capacity to enforce its compensation-prohibiting rules. State legislatures have adopted NIL laws in an effort to obtain competitive advantages for in-state educational institutions (“institutions”), resulting in a patchwork of NIL regulations across the United States. In the midst of this varied NIL regulatory landscape, the NCAA is ill-equipped to enforce NIL rules, the market values of NILs are shrouded in mystery, and entities unaffiliated with institutions have been able to avoid accountability for sex discrimination. Though numerous federal NIL bills have been proposed in both the House and Senate, no proposal has gained traction due to the inclusion of controversial provisions.
This Comment proposes a comprehensive federal scheme for NIL regulation, combining core provisions from state NIL laws, considering the failures of previous federal proposals, and addressing issues regarding the actions of collectives in the NIL dealmaking process. Specifically, this federal scheme calls for the creation of a central oversight entity with subpoena power to regulate the NIL marketplace, an express preemption of state NIL laws, the incorporation of foundational provisions from state NIL legislation, mandatory disclosure of NIL deals, the participation of institutions in the dealmaking process, and a requirement for collectives to affiliate with institutions. The combination of these provisions would allow student-athletes to earn fair market NIL compensation while being protected from discrimination in the dealmaking process
How They Get Away with Murder: The Intersection of Capital Punishment, Prosecutor Misconduct, and Systemic Injustice
Get PDFBlack defendants are executed at a disproportionately high rate, an injustice quietly persisting in the shadow of America’s dark history of slavery and Jim Crow. While a variety of intersectional factors have perpetuated this injustice, the role of prosecutors who commit misconduct to secure a conviction is significant. Defendants are presumed innocent until proven guilty, but when the prosecutors who carry the burden of proving that guilt choose not to play by the rules, they wantonly and recklessly embrace the risk of convicting—even killing—an innocent person.
This Comment focuses on two primary forms of prosecutor misconduct: Batson violations that occur during jury selection when a prosecutor uses his or her peremptory strikes in a racially discriminatory manner, and Brady violations that occur when the prosecution suppresses materially exculpatory evidence from the defense. While the Supreme Court has established Fourteenth Amendment safeguards to protect criminal defendants from these forms of misconduct, this Comment argues that those safeguards are incomplete. Fourteenth Amendment jurisprudence fails adequately both to deter prosecutorial misconduct and to guarantee that criminal defendants receive a fair trial. These failures are only amplified for Black capital defendants, who experience disproportionally higher rates of prosecutor misconduct and capital sentencing.
Seeking to better deter incidents of prosecutor misconduct and better ensure Black capital defendants receive due process of law, this Comment proposes a four-part Model Act. Inspired by the Sentencing Reform Act of 1984 and the Federal Sentencing Guidelines, this Act (1) creates a state commission for prosecutor misconduct, (2) charges the commission with the role of drafting advisory guidelines for classifying prosecutor misconduct, (3) mandates that the commission consider the guidelines prior to imposing sanctions on prosecutors found to have committed misconduct, and (4) mandates that state judges consider the guidelines prior to imposing remedies for cases affected by misconduct
Standardizing and Unbundling the Sub Rosa DIP Loan
Get PDFIn many recent chapter 11 cases, debtor-in-possession (“DIP”) loans determine reorganization plan payoffs at the outset of the case. Recent DIP loans are tied to plan terms including rights offerings, which give the DIP lender exclusive rights to purchase discounted equity in the reorganized company, and backstop fees, which pay the rights holder for committing to purchase them. Terms like these raise fears that DIP loan approval is being used to short circuit the chapter 11 reorganization plan process—in bankruptcy parlance, that the DIP loan is a sub rosa plan. How should bankruptcy law manage this sub rosa DIP loan problem?
We argue that the problem is a common one affecting many types of pre-plan transactions that provide the estate with an asset (cash) but also fix the priority and/or payoff of liabilities. We argue that bankruptcy law uses a common set of tools to deal with these crossover transactions that simultaneously involve asset-side and liability-side effects. Where crossover is inherent to the transaction, the Bankruptcy Code standardizes the liability-side effect to protect the interests of the other creditors. Where crossover is strategic, courts police transactions by unbundling liability-side effects that are unnecessarily bundled into transactions involving the asset side.
We conduct a case study of the J.C. Penney bankruptcy to understand how a non-standard, bundled DIP loan transaction can be used strategically to distort priorities. In that case, a DIP loan tied to a restructuring support agreement allowed a majority group to prime a minority group, roll up undersecured debt, and control the allocation of payoffs in the case. We find that a standardized, unbundled DIP loan would have required an interest rate of at least 545% to give the majority group the same payoff it received in the case. We argue that courts should revive and strengthen standardization and unbundling norms. This would better defend priorities by encouraging competition and increasing transparency of DIP loan terms
Smart Regulation: Lessons from the Artificial Intelligence Act
Get PDFThe European Union (EU) has recently announced that it will consider a proposal to systematically regulate artificial intelligence (AI) systems. This regulation will add to the legacy of other data regulation acts adopted in the EU and move the EU closer to a comprehensive framework through which it can address rapidly evolving technologies like AI. The United States has yet to implement data regulation or AI regulation legislation at the federal level. This inaction by the United States could negatively impact global cooperation with the EU and China and innovation within the United States. The United States is currently the global leader in AI technology. However, if it wants to maintain that position, it should consider the negative repercussions of dragging its feet regarding regulation. This Comment will demonstrate why systematic regulation of the type being developed in the EU should be adopted in the United States
Contract Law Should Be Faith Neutral: Reverse Entanglement Would Be Stranglement for Religious Arbitration
Get PDFThe first section of this Article will outline the ways in which communities—religious and other groups, including the LGBTQ+ community—have used and continue to use private law to achieve meaningful dispute resolution. By diminishing the role of civil courts to review arbitrations, parties may tailor their resolutions to prioritize community values that may be misaligned with secular society. Outside of historical religious usage, private law offers a field ripe for jurisprudential growth. Through alternative dispute resolution, affinity-based minority groups can pave an avenue towards justice which accurately reflects the unique values of their lived experiences.
The second section will provide a direct examination of two legal doctrines proffered by opponents of religious arbitration: the Bixler religious exit right to contract and the expansion of the state action doctrine through the Reverse Entanglement principle. Both solutions are meant to protect against the unwitting waiver of state and federal rights of weaker parties to contract, but both would effectively abolish religious dispute resolution within the United States. Such rights waivers exist in the commercial arbitration context generally and also involve relationships with inherent power imbalances: consumer and company, employee and employer, etc. There are serious problems with abuse under arbitration law, but we argue that the solutions to those problems reside outside constitutional First Amendment jurisprudence. Furthermore, allowing exit from contracts on First Amendment grounds is a radical change in contract law with countless implications outside of arbitration.
Instead, we propose that unconscionability be used more frequently against abusive arbitration clauses, be they secular or religious in nature. This doctrine is the workhorse of contract law’s defenses and offers a thoroughly faith-neutral way of determining bargaining naughtiness. Further, we propose expanding unconscionability through the state action doctrine. There should be a lower standard of unconscionability based on the old doctrine of privity, where arbitration clauses impact non-parties to an agreement.
The Bixler religious exit right and the proposed Reverse-Entanglement principle represent a conflation between secular traditions: it proposes a French laïcité solution (which aims to keep religion out of public life) to an American religion pluralist problem (which allows religion to participate on the same terms as all other customs). To us, establishment of secularism is another form of religious establishment, and prohibiting the blossoming use of contract law within faith-based minority communities will not solve the culture wars or bolster contract defenses. We propose allowing both secularism and religion access to the public sphere, and we believe that faith-based extrajudicial tribunals create the path for true American pluralism
Women, International Human Rights Law, and the Right to Adequate Housing in Africa
Get PDFIn many African countries, the rights of women and girls to adequate housing are under threat and remain vulnerable to violation by state- and non-state actors. This is so even though these rights are guaranteed by international human rights instruments and national constitutions. Of particular note is the existence of customary laws that discriminate against women and frustrate their ability to realize the right to adequate housing. To enhance the ability of women to realize their right to adequate housing, each African State must domesticate the various international and regional human rights instruments that guarantee this right in order to create rights that are justiciable in domestic courts. In the meantime, however, progressive judiciaries are using their power to interpret the constitution to eliminate or modify customary and other laws that are not in conformity with the provisions of international human rights instruments and the country’s Bill of Rights. For example, in several African countries, courts have been adjudicating cases involving the right to adequate housing (e.g., discrimination against women by customary laws and forced evictions of women and other vulnerable individuals by state- and non-state actors). These courts have issued directives that can help the political branches develop and implement policies to ameliorate the deplorable living conditions that many women and their children face on a daily basis. Unfortunately, in many countries, the political branches have not been amenable to implementing court orders. However, recent socio-economic rights jurisprudence by the South African Constitutional Court offers a possible solution to this quagmire. That solution is found in the engagement approach, which emphasizes robust dialogue between the political branches, the affected individuals and groups, and civil society and its organizations. While such a holistic approach can proffer solutions that reflect the values and norms that are enforced by the socio-economic rights guaranteed by the constitution, it can also encourage democratic engagement and make the courts an important force in the protection of human rights, particularly those of women and girls. Of greater importance is that this approach places women at the center of public efforts to confront the problems that afflict them
America’s Public Shell Trafficking Problem: Ripe for Reprocessing
Get PDFThe scourge of public shell trafficking has led to fraudsters taking advantage of and pilfering the hard-earned dollars of the American investing public for decades. These fraudsters seek to abuse the chapter 11 bankruptcy process by discharging the debt of such public shells, so that they can increase the profitability of schemes that target innocent investors, such as reverse mergers and pump-and-dump schemes. Regulators and lawmakers alike have fought back against this phenomenon through statutory reform and targeted regulatory programs; recently, their principal method of fighting back has been to consistently object to chapter 11 plans of reorganization that could potentially be used in such schemes. This Comment analyzes the strengths and weaknesses of the current regulatory approaches to combat public shell trafficking and proposes a new solution: the Shell Reprocessing Approach (“SRP Approach” or “Approach”). The SRP Approach involves regulators taking a more active role in debtor reorganization by moving for the appointment of a chapter 11 trustee and/or filing a competing plan as a party in interest. The Approach has the potential to enable regulators to stop bad actors seeking to abuse the bankruptcy process in a potentially more effective and innovative manner and to better protect the American public from fraudulent investment schemes. Ultimately, unlike objections to confirmation, the Approach promises to preserve the economic value of a debtor public shell by repurposing its ticker and to close the information gap by subjecting the entity to greater regulatory scrutiny via existing Special Purpose Acquisition Company (“SPAC”) regulations
Executive Secrecy: Congress, the People, and the Courts
Get PDFCongress enacted the Freedom of Information Act (“FOIA”) to ensure that “any person” could gain access to all the executive branch information that could safely be disclosed, without any special showing of need, thereby enhancing the ability of citizens to know what their government is doing. Writing in 1982, then-Professor Antonin Scalia ridiculed the concept of active citizenship which FOIA embodied, asserting that the statute was the product of “an obsession [with the idea] that the first line of defense against an arbitrary executive is do-it-yourself oversight by the public and . . . the press.” That was a “romantic notion,” he thought, because significant disclosures of executive branch information do not ordinarily result from the work of the press or the public, but from the operation of institutionalized checks and balances, that is, through the tug-and-pull between Congress and the President. Four decades later, it seems clear that the choice implicit in Professor Scalia’s account is a false one: the health of our representative democracy depends on the vitality of both avenues of access to executive information, and both avenues require shoring up. On the one hand, FOIA has not fully satisfied its proponents’ expectations with respect to its “informing function,” meaning its capacity for enhancing the public’s knowledge of government and for promoting active citizenship. On the other hand, lessons from the recent past suggest that Professor Scalia’s faith in Congress’s superior ability to secure information from an uncooperative executive may itself be something of a “romantic notion.” This Article will explore both avenues, the ways in which they have not fulfilled their promise, and how they might be made more effective