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Follow-Up Enforcement
Get PDFFirms sometimes break the law. When they do, a host of government agencies have power to bring enforcement actions against them, which serve to punish past wrongs, compensate victims, disgorge unlawful gains, deter others, and prevent recidivism. Each of these purposes but one—preventing recidivism—is either met or not once the case reaches settlement. Whether recidivism will occur, however, remains uncertain at the time a case is settled. In light of that uncertainty, this Article takes a critical look at how enforcers currently address recidivism prevention—what it dubs the “clawback” approach—under which defendant firms receive penalty credit today in exchange for remedial efforts that, it is hoped, will prevent recidivism tomorrow. This Article examines the incentives and constraints of the two parties—the enforcer and the firm—and concludes that an alternative “follow-up” approach that credits only firms’ demonstrated results would be more effective and efficient at recidivism prevention
Between a Rock and a Hard Place: The Struggle to Analyze School Board Prayer and a New Method of Establishment Clause Analysis
Get PDFThe constitutionality of public school board prayer under the First Amendment Establishment Clause has vexed lower federal courts for over two decades. With only an inconsistent string of Supreme Court cases to rely upon, lower courts have been forced to choose between competing doctrines and frameworks that embody different interests and were designed for different circumstances.
Nowhere is this struggle more aptly displayed than in the current split between the Fifth Circuit in American Humanist Association v. McCarty and the Ninth Circuit in Freedom From Religion Foundation v. Chino Valley Unified School Board. The Fifth Circuit argued that the school board prayer of the Birdville Independent School District is constitutional because it falls under the Supreme Court’s legislative prayer doctrine. Relying on the long tradition of opening American legislatures with prayer dating back to the Founding Era, the doctrine upholds such prayers in other state-based gatherings. Conversely, the Ninth Circuit struck down Chino Valley’s school board prayer, arguing that the school board is too intertwined with the school day and student life, and therefore the prayer should be analyzed under school prayer caselaw, using either the Lemon or coercion tests that struck down all such prayers at public school events.
This Comment argues that neither of these approaches is appropriate alone to address the constitutionality of school board prayers challenged under the Establishment Clause. School board meetings are similar to state legislative sessions in that they mostly involve adults who are voluntarily present and can make their own judgments about whether to attend or listen to the prayer. But public school boards are undeniably intertwined with the public school day and sometimes do involve students who are young and impressionable, along with other participants who have no real choice but to appear at the meeting, necessarily implicating coercion concerns. However, school boards are much less student-centered than other regular school activities where the risk of coercion is heightened. Adopting one of these Establishment Clause approaches for this unique and variable setting, as the Fifth and Ninth Circuits have done, leads to unsatisfactory analysis and ultimately fails to capture all the concerns inherent in this unique setting.
This Comment proposes an original balancing test—one that protects parties against religious coercion and respects traditional practices—that draws on and sequences two Supreme Court approaches to the Establishment Clause. Under this test, the coercive effect of the prayer policy should first be measured to prevent blatantly coercive practices from constitutional approval solely because they have a longstanding history. Then, where a practice passes this initial threshold, any coercive effect will be balanced against the history and tradition of acknowledging prayer and religious heritage in public life. This test more fully encapsulates the concerns inherent in the school board setting, honors our tolerance of some religious acknowledgment in public life, unifies elements of previously disparate Establishment Clause precedent, and is based on recent Supreme Court jurisprudence
Rejecting Honorary Whiteness: Asian Americans and the Attack on Race-Conscious Admissions
Get PDFSince the 1960s, Asian Americans have been labeled by the dominant society as the “model minority.” This status is commonly juxtaposed against so-called “problem” minorities such as African Americans and Latinx Americans. In theory, the model minority narrative serves as living proof that racial barriers to social and economic development no longer exist in America. If Asians can succeed against all odds, the reasoning goes, so can everyone else. Further, if a member of a minority group fails, it is because of their own lack of diligence and ambition, and not some supposed systemic unfairness. However, the model minority narrative serves as nothing more than a legitimizing myth that positions minority groups in opposition to one another and preserves both the benefits and disadvantages of the existing racial hierarchy. Even more, it is an implicit invitation for Asian Americans to assume an “honorary white” status—the dominant society’s conferral of social benefits to nonwhite people who pose little threat to the racial status quo. The recent Harvard affirmative action case brought by Students for Fair Admissions (SFFA) is an apt illustration. SFFA, led by a white conservative crusader against affirmative action, recruited Asian Americans to serve as plaintiffs in a case designed to end race-conscious admissions. However, SFFA’s proposed colorblind remedy will not benefit Asian Americans. Instead, I argue that the interests of Asian Americans converge with other racial minorities in America—a substantive and ongoing convergence of interests to preserve affirmative action in higher education to enhance the learning experience of all students. In doing so, I reveal the critical reasons why Asian Americans should reject the invitation to honorary whiteness, which only serves to hinder America’s ongoing battle against its historic legacy of white supremacy
Hate Speech Laws and Blasphemy Laws: Parallels Show Problems with the U.N. Strategy and Plan of Action on Hate Speech
Get PDFIn May 2019, the United Nations Secretary-General introduced the U.N. Strategy and Plan of Action on Hate Speech, an influential campaign that poses serious risks to religious and political minorities because its definition of hate speech parallels elements common to blasphemy laws. U.N. human rights entities have denounced blasphemy laws because they are vague, broad, and prone to arbitrary enforcement, enabling the authorities to use them to attack religious minorities, political opponents, and people who have minority viewpoints. Likewise, the Strategy and Plan of Action’s definition of hate speech is ambiguous and relies entirely on subjective interpretation, opening the door to arbitrary and malicious accusations and prosecutions. The campaign gives cover to countries that want to continue their blasphemy laws—under the guise of banning hate speech—with the endorsement of the United Nations. Indeed, examples of enforcement of hate speech laws in Indonesia, Russia, North Macedonia, and Denmark reveal that countries use these laws, just as they use blasphemy laws, to punish the expression of minority viewpoints. This Article is the first to highlight the dangers posed to religious and political minorities by the U.N. Strategy and Plan of Action on Hate Speech, which will only become more influential within the United Nations and across U.N. Member States the longer it is left unchecked. This Article shows human rights advocates and Member States that support minority rights why they must immediately denounce and call for the revocation of the campaign
Exclusion Diffusion
Get PDFOver the last few decades, municipalities and local governments have increasingly turned to banning and exclusion laws as a means of crime prevention. Banning and exclusion laws prohibit an individual from accessing a particular area or building for a prescribed period of time (often one to five years). Violations frequently trigger penalties of up to a year in jail. Because they are focused on crime prevention, no actual wrongdoing is necessary to trigger these bans: many bans are issued on the basis of mere suspicion. Banning and exclusion laws most typically forbid suspicious individuals from being in public spaces, like city parks or neighborhoods. But they also extend beyond just public spaces, into spaces that mix public and private aspects, like private businesses open to the public, and public housing. And now, banning and exclusion practices have diffused out into the purely private realm. Through a recent trend of local ordinances, state legislation, and ad hoc initiatives, many private landlords have been empowered to ban a tenant’s invited guests from a rental home, on virtually any basis. Landlords can exercise this power solely on personal fiat, though they often do so in partnership with local police. This Article is the first to surface and critique this expansion of banning and exclusion laws into the private realm of the home. As private rental homes join city streets, neighborhoods, parks, private businesses, and public housing as yet another site of state-driven exclusion and banning, spatial governance becomes nearly totalized. Although carefully constructed exclusionary mechanisms can be a justified crime-prevention tool in certain limited circumstances, landlords’ new exclusionary powers, as currently constituted, all but guarantee they will be exercised in the same racially discriminatory manner as prior forms of exclusion from public spaces. These enhanced exclusionary powers increase displacement, evictions, and arrests; link associational rights to property ownership in troubling ways; negatively affect family formation; and infringe upon the liberty and privacy rights of already vulnerable populations. For these reasons, this exclusionary expansion should be curtailed
Water Under the Bridge? A Look at the Proposal for a New Chapter 16 of the Bankruptcy Code from a Comparative Law Perspective
Get PDFIn light of the ongoing COVID-19 pandemic, bankruptcy law will play a crucial role in addressing the consequences of the global economic shutdown. Many large corporations in the U.S. will need to undergo chapter 11 bankruptcy proceedings or may attempt to reorganize their financial debt in an out-of-court workout. However, section 316(b) of the Trust Indenture Act of 1939 has long been blamed for making out-of-court restructurings practically impossible, because it requires unanimous approval from bondholders. In 2014, the National Bankruptcy Conference presented a solution for the inefficiencies in bond workouts by proposing a streamlined debt reorganization procedure for borrowed money in a new chapter 16 of the Bankruptcy Code. This Article argues that now is time to take a new look at the 2014 proposal from a comparative law perspective. Considering the legal situation in England and Wales as well as Germany, the Article outlines a proposal for a modern workout mechanism for bond debt
Bankrupting Tribes: An Examination of Tribal Sovereign Immunity as Reparation in the Context of Section 106(A)
Get PDFThis Comment concerns section 106(a) of the Bankruptcy Code, which abrogates sovereign immunity of “a State, a Commonwealth, a District, a Territory, a municipality, or a foreign state; or other foreign or domestic government.” A circuit split exists as to whether this section applies to Native Nations. The Sixth Circuit interpreted this section to maintain sovereign immunity for Native Nations in the Code, while the Ninth Circuit interpreted it to abrogate tribal sovereign immunity. This Comment argues that the Sixth Circuit’s interpretation of section 106(a) is the correct interpretation because of the unique relationship between Native Nations and the federal government. This Comment first reviews the history between the federal government and Native Nations to explore this unique relationship and to establish a reparative legislative history. It then compares tribal immunity to other forms of sovereign immunity in order to establish Native sovereign immunity as unique and to demonstrate congressional intent to exclude Native Nations from section 106(a). Finally, it argues that tribal sovereign immunity should be maintained in the context of the Code because the renewed sovereign status of Native Nations and the privileges associated with that sovereign status are reparations efforts and therefore deserve significant weight in any calculus that considers the weakening of sovereign privileges
The Paradox of Recidivism
Get PDFThe idea that we should respond more severely to repeated wrongdoing than we do to first-time misconduct is one of our most deeply held moral principles, and one of the most deeply entrenched principles in the criminal law and sentencing policy. Prior convictions trigger, on average, a six-fold increase in the length of punishment in states that use sentencing guidelines. And most of the people we lock up in the U.S. have at least one previous conviction. This Article shows that given the current law and policy of collateral consequences, and the social conditions they engender, judges and sentencing commissions should do exactly the opposite of what they currently do: impose a recidivist sentencing discount, rather than a premium. This thesis is counterintuitive and politically unpalatable. It goes against the grain of criminal law and policy dating back as far as we know it, virtually the entire scholarly literature, and millennia of social tradition. But this Article shows that it follows logically from fairly ordinary moral premises
Panel II: Technology and the Fourth Amendment: Surveillance and Security in the Digital Age
No full textPanel II. Technology and the Fourth Amendment: Surveillance and Security in the Digital Age
Kay L. Levine, Professor of Law, Emory University School of Law (Moderator)
Chaz Arnett, Associate Professor of Law, University of Maryland Carey School of Law
Jamil N. Jaffer, Founder & Executive Director, National Security Institute; Director, National Security Law & Policy Program; Assistant Professor, George Mason University Antonin Scalia Law School
Jennifer Lynch, Surveillance Litigation Director, Electronic Frontier Foundatio