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Shadow Amendments
Get PDFThe Supreme Court’s jurisprudence surrounding the Alien Tort Statute (“ATS”) reflects the phenomenon of shadow amendments, an inevitable outcome of statutory construction. These judicial interpretations altered the ATS and narrowed its reach. Through repeated shadow amendments, the Court has moved the ATS far beyond its original thirty-three word configuration and understanding. These shadow amendments reflect an aggressive form of statutory construction, an ironic description for a Court that has long championed deference to Congress and fealty to legislative text. This dynamic is evident in Nestlé USA, Inc. v. Doe, the Court’s most recent ATS decision. But shadow amendments are not limited to the ATS; they occur whenever courts interpret statutes, regulatory provisions, or even constitutional text. Characterizing judicial interpretations as shadow amendments highlights their unique status and practical impact. They are not formal amendments—only Congress can amend a statute. Yet, they achieve a similar outcome. The term “shadow amendment” provides an accurate description of judicial interpretation as legislation. Because of their ubiquity and profound consequences, shadow amendments merit careful monitoring
Real Estate Trends: Title and Blockchain Technology
Get PDFThis article discusses how blockchain technology could revolutionize real property title record-keeping, or not. It begins with a brief history of property transfers and title registry in the United States, followed by a basic overview of blockchain technology. Then it outlines how title is typically recorded today, including the role of traditional grantor-grantee indexes, plus less common tract indexes. It describes common title problems, often caused by human error, and exacerbated by an outdated system, together with an explanation of how blockchain and even tract indexes could eliminate or mitigate many title problems and simplify an antiquated system. The article shares various agencies’ studies and experiences using blockchain for land transfers or title registry, and lessons learned. That leads to a broader discussion of blockchain benefits and drawbacks for title registries. It concludes that the costs associated with making a wholesale transition to blockchain does not presently justify such transition, even though blockchain has the potential to simplify indexing, enhance security, and reduce title errors. However, many problems could be avoided or resolved through uniform adoption of tract indexes which would require universal adoption of e-recording and digital documents
A History of Fruit of the Poisonous Tree (1916-1942)
Get PDFThis is a history of a little-known stage within an otherwise well-known area of criminal procedure. The subject, “fruit of the poisonous tree,” explains the exclusion from trial of evidence (the fruit) derived from unconstitutional police practices (the tree). The Supreme Court first deployed the metaphor in 1939; exclusion of fruits by any other name, however, dates to before the Court began reviewing state convictions. While academic interest in the 1963-to-present phase of fruits is keen, the first quarter of what is now a century of history is taken as given, described in only the most conclusory terms. The 1916–1942 era began with a recently expanded federal criminal law, followed by an expanded review of convictions in the Supreme Court, whose energies Prohibition would divert to other issues of enforcement. As a result, development of fruits doctrine was taken up by the lower federal courts, led by the Second Circuit, which in turn was led by Judge Learned Hand. As the first to articulate the admissibility of so-called derivative evidence (as in copies of illegally seized papers), Hand & Co. were ahead of their time, extending their insights to related matters (harmless error, standing), some of which remain undeveloped to this day (as in evidence derived from coerced confessions). Mostly, the Second Circuit manifested a sensibility toward fruits that is distinct from the wooden, causal, torts-based angle the Supreme Court would come to adopt
Square Peg Frauds
No full textThe square-peg fraud is a kind of case that until very recently enjoyed the widespread support of prosecutors, jurists, and the general public. Rather than punishing a scheme that rids a victim of her money or property, the square-peg prosecution has long focused on deprivations of intangible property. For years, enforcement actors have employed this concept to pursue innumerable varieties of corruption.
Nowhere has the square peg been more essential than in the government’s prosecution of higher education scandals. From the Varsity Blues parents who wrongfully secured elite college slots for their children, to the business school dean who shaped certain facts to inflate his school’s U.S. News ranking, the government has relied on various intangible property “hooks” to shove highly specific fact patterns within fraud law’s boundaries.
The aim of this Essay is to explore this square-peg phenomenon and highlight one of the less-explored reasons for being wary of it, which is its expressive effect. Whatever its benefits, the square-peg prosecution conveys counterproductive signals about victimhood, which stymie the movement towards deeper, systemic reforms.
One of criminal law’s strongest justifications is that it conveys a moral lesson. In the higher education context, however, the square peg perverts that lesson. To show a loss of property in the Varsity Blues cases, prosecutors denominated universities and standardized testing companies as “victims,” notwithstanding their moral complicity in an admissions system that is only superficially meritocratic. To establish an actionable property loss in the rankings fraud case, the government’s case treated the U.S. News graduate school rankings as a reliable arbiter of value. Not only are these narratives questionable, but they also promote the very competitive, winner-take-all attitude that undergirds higher education’s corruption problem.
Recent decisions by the Supreme Court and First Circuit might well dampen the appetite for intangible property fraud prosecutions. But there will always be new theories and new square pegs. Accordingly, we would all do well to take note of the square peg’s drawbacks. Using higher education as its exemplar, this Essay sets us on that path
State Responsibility for Forced Migration
Get PDFInternational refugee law does not hold states accountable for the forced migration they cause. Using the international law doctrine of state responsibility, this Article aims to shift the discourse on migration policy towards a state accountability approach that considers the role states play in causing forced migration. This Article uses state responsibility to explore the obligations of a state after it commits a violation of international law that results in forced migration. The general principle undergirding state responsibility is that a state should provide full reparation for harms caused by its violation of an international obligation. Applying state responsibility to forced migration, a state must provide reparation for forced migration caused by the state’s violation of international law. Potential forms of reparation include monetary remedies and the resettlement of forced migrants. An examination of forced migration through the lens of state responsibility can better protect migrants and hold states accountable for their unlawful actions that cause displacement
Reawakening the Sleeping Giant: How Viking River Highlights the Obsolete Nature of Arbitrable California PAGA Suits
Get PDFGender-Based Religious Persecution
Get PDFPeople fleeing gender-based violence in the home face an uphill battle when seeking asylum in the United States. Through the lens of public and private spheres, this Article explores the underutilized religion ground for asylum for cases involving gender-based violence in the home—i.e., the private sphere. This Article argues that if an individual imposes a patriarchal practice on an asylum seeker in the private sphere and justifies that practice using religion, the asylum seeker’s resistance to that practice should constitute religious expression.The religion ground protects individuals who are persecuted because of their religious beliefs and religious expression. It typically is invoked by individuals fearing persecution in the public sphere for activities such as proselytizing and communal worship, where proving the link—the nexus—between the persecution and the asylum seeker’s religious beliefs or expression is relatively straightforward. Asylum seekers infrequently invoke the religion ground for abuse in the private sphere, however, due to that nexus requirement. To satisfy nexus, an asylum seeker must show that the persecution is on account of their protected characteristic, not the characteristic of the abuser. At first glance, claims involving gender-based violence in the private sphere seem to involve individuals imposing their religious beliefs on others, which generally would not qualify for asylum.Where an asylum seeker resists a patriarchal practice in the home that is justified by religion, that resistance should constitute a “private expression” of religion, regardless of whether the asylum seeker frames their resistance in religious terms. If the asylum seeker is harmed for their opposition to a patriarchal practice justified by religion, the persecution is on account of their religious views opposing those of the persecutor and thus satisfies the nexus requirement. This Article thereby reframes gender-based violence in the private sphere as gender-based religious persecution. While encouraging a broader interpretation of the religion ground to better protect individuals fleeing gender-based violence, this Article concludes with a caution against essentializing religion and attributing such violence to a religion wholesale
