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Piercing the Procedural Veil of Qualified Immunity: From the Guardians of Civil Rights to the Guardians of States’ Rights
Get PDFScholars have found that, despite a split on the burden of proof for qualified immunity, courts agreed that defendants must bear the burden of pleading to raise qualified immunity as a defense. This Article is the first to find that, over the past decade, this established consensus has been disrupted, culminating in a fresh circuit split.
This Article investigates twelve Federal Courts of Appeals’ qualified immunity rulings on 42 U.S.C. § 1983 and finds that six have required plaintiffs to anticipate defendants’ qualified immunity arguments at the pleading stage, essentially treating the negating of qualified immunity as an element of § 1983. This Article criticizes this approach, as it distorts the rule-of-law value of the Federal Rules of Civil Procedure, and it cannot be reconciled with the statutory text and the original intent of the forty-second Congress in enacting the Civil Rights Act of 1871.
This new circuit split should not be understood as merely a procedural split regarding the pleading burden. Courts often take advantage of procedural law’s elusive nature and use it as a veil to shield judicial activism. This circuit split is another example. Behind the veil of the pleading allocation is a clear policy agenda: anti-civil rights and unconditionally pro-law enforcement.
Yet, one subtle, albeit salient, theoretical strand remains underexplored: the undertones of states’ rights embedded within the contemporary qualified immunity jurisprudence. Both the Rehnquist and Roberts Courts exhibited a predilection for interpreting the objective knowledge test in a manner favorable to law enforcement, leading to a predicament the Reconstruction Congress once grappled with: the enforceability of a federal right today often hinges upon a state actor’s acknowledgment of that right. Such an outcome, far from being serendipitous, resonates with the Court’s overt pro-states’ rights disposition on many civil rights matters. Thus, the contemporary qualified immunity jurisprudence reflects a departure from the vision of the Reconstruction Congress, which envisioned federal courts as guardians of civil rights. The prevailing sentiment of the Court suggests a reimagining of a new role for federal courts: guardians of states’ rights
Crypto-Counterfeiting
Get PDFThe current crypto winter has given rise to a range of legal challenges. One of the most important sets of legal challenges goes to the heart of cryptocurrency. Cryptocurrency was intended to be non-duplicatable at will, that is, not to be counterfeitable. Blockchain technology is supposed to prevent token counterfeiting through a combination of game theory and cryptography that prevents normal users from simply ordering the system to generate more tokens for their benefit.
The difficulty is that blockchain software is still software. People in charge can order and program the software to generate many more tokens for those individuals’ benefit. Hackers can find ways to exploit the software to generate counterfeit tokens. Software will never be free from bugs and exploits, and humans with discretion within a system will always be susceptible to the temptations of power and greed.
Given the strong technological restraints on digital duplication of cryptocurrency and other crypto assets, many organizational structures and cultures surrounding cryptocurrency are set up particularly poorly to handle the problem of crypto-counterfeiting. Often in an attempt to avoid legal sanction, blockchain projects are set up in such a way that no legal entity controls the software. This is because there is a widely perceived vulnerability in having any single entity control a blockchain. Such a legal entity may be targeted for enforcement purposes in a murky regulatory climate.
When someone duplicates cryptocurrency, the harm is easily articulated: the duper has decreased the value of the cryptocurrency, and everyone else’s holdings, by virtue of having generated for themselves many more of the tokens. Similarly, the solution is fairly straightforward. The duped currency must be deleted in order to restore the value of the entire system. The difficulty is that legal rules must evolve in the face of the narratives crypto communities share and hold. In a fully decentralized system, who should be the plaintiff? If a token has been improperly generated, whose property has been stolen or converted?
Blockchain was supposed to solve the problem of asset duplication, referred to in blockchain circles as the double-spending problem, or in more recent incidents, an “infinite mint” attack. Ironically, it did not. Rather, blockchain created a difficult set of legal problems that this Article attempts to address. The future of the law in this space is clear. Wrongful generation of tokens will be sanctioned by courts with the remedy of deletion of those tokens. But the legal problems presented will benefit from clarification, and the precommitments of the communities that make those arguments do nothing to reduce the difficulty of the legal fit
When Public Meets Private: Private School Enrollment and Segregation in Virginia
Get PDFRecognizing Virginia’s central role in the expansion of segregated southern private schools after the Brown v. Board of Education ruling, we review law and policy related to private school segregation. We also conduct an empirical analysis of Virginia private school enrollment and segregation since the turn of the twenty-first century, finding uneven enrollment even as the number of private schools has grown. Segregation in the sector is deepening. As public funding for private schools rises, we make the case that the increasingly blurred lines between public and private education in Virginia are rooted in adaptive discrimination
\u3cem\u3eBivens\u3c/em\u3e and Beyond: Creating a Meaningful Remedy for Federal Prisoners in a Post-\u3cem\u3eBoule\u3c/em\u3e Landscape
Get PDFFor nearly 50 years, the Bivens action served as a vehicle to compensate individuals when their constitutional rights had been infringed on by a federal officer. Bivens actions operated as the federal equivalent of Section 1983 claims in state courts against state officers. But in June 2022, with a conservative majority in the U.S. Supreme Court, the Bivens framework was gutted by Egbert v. Boule. Boule held that if a Bivens claim is filed in a context that differs from the three previously accepted contexts (the Fourth, Fifth, and Eighth Amendments), the claim must fail, as Congress is better equipped to address the issue. In the context of federal prisoners, this drastically alters the current landscape, and makes it harder for prisoners in federal custody to file claims for relief when their civil rights have been violated. Federal prisoners are a vulnerable population and this post-Boule landscape leaves them without a meaningful remedy when their constitutional rights have been violated. This Note examines how Boule altered the Bivens landscape and offers support for a strengthening of Bivens actions and further protection of federal prisoner rights based on precedent and social policy
Skirting the Fourth Amendment: How Law Enforcement Agencies Abuse Technology and Constitutional Exceptions to Surveille the Public
Get PDFExisting Fourth Amendment law does not protect against law enforcement use of data gathered through the internet either by private companies who actively search their customer’s data and submit evidence of misconduct to law enforcement or from private companies who acquire the data on behalf of law enforcement. In an effort to pursue criminals, courts have permitted Fourth Amendment jurisprudence to develop in a manner that permits sweeping invasions of privacy without any probable cause through the private search doctrine or without any procedural protections through the third-party doctrine. It will require substantial judicial or legislative action to return the level of privacy and security promised by the Fourth Amendment. Current law is split over whether to evaluate technology-based invasions using a human based approach that requires a human to actively participate in the invasions for them to be permissible or a statistics-based approach that permits invasions of privacy so long as there is a high statistical chance that contraband will not be misidentified. Providing citizens with security from the invasion itself has become lost in the debate over the correct way that a citizen’s privacy should be warrantlessly invaded. The Supreme Court should stop the existing doctrines from applying to modern data collection because the existing legal framework was not designed, nor is able, to prevent improper invasions of data. Congress should pass national legislation to limit the ability of private actors to engage in reciprocal relationships with law enforcement where law enforcement receives information that would ordinarily require a warrant. For individual data to be granted the same protections that personal data had prior to the development of modern technology both Congress and the Supreme Court will need to take substantial steps
What Roosevelt Did to \u3cem\u3eBrown v. Board of Education\u3c/em\u3e, or Race and Court Packing
Get PDFRoughly one-third of American schools remain segregated. Scholars have offered a variety of explanations, mostly social and cultural, but sometimes legal, for why desegregation did not proceed effectively after Brown v. Board of Education. This Article articulates a less expected and previously undocumented cause: President Roosevelt\u27s prior attempt at court packing slowed--even derailed--desegregation.
The story of what Roosevelt\u27s court packing did to make the work of integration harder is a cautionary tale, particularly for those who want to alter the U.S. Supreme Court now in furtherance of a modern cause. The only reasonable route for reforming the Supreme Court must be based on furthering the stability and legitimacy of the Court. The lesson of Roosevelt and Brown further provide that this reform must be done with a deep knowledge of the public understanding of the Court.
When the Court decided Brown v. Board of Education, Roosevelt\u27s court packing attempt was within living memory, and strongly influenced reactions to the Court\u27s decree that American schools must integrate. Members of the public and southern lawmakers capitalized on Roosevelt\u27s attacks on the Court, rearticulating those claims to cast doubt on the legitimacy of Brown. Other opponents of integration argued that Roosevelt had succeeded in packing the Court (if by less direct means), and that the Brown Court did not legitimately have the authority to determine constitutional law. Both lines of argument proliferated through the media, reducing public acceptance of the Brown decision.
The impacts of Roosevelt\u27s court packing attempt, however, went beyond questions about the legitimacy of the Court. Roosevelt had another legacy in authoring a playbook of strategies for manipulating both state and federal courts. The public and southern lawmakers attacked Brown by employing these strategies, often directly claiming validity for their actions by way of Roosevelt\u27s endorsement.
In the decades when Roosevelt\u27s court packing attempt remained in lived memory, Brown was never going to fully succeed in the South, where it did not have the majority support of the population. The Court simply did not have the power to demand public acquiescence or sway public opinion. This understanding of the Court\u27s power matters today, as both court packing and court reforms are brewing in American politics. Any future changes must be done with a nuanced understanding of how the public will view the Court and what precedents we set that will be mirrored at the state level
Law versus Justice in International Atrocity Prosecutions
Get PDFAttribution of individual criminal responsibility in the context of extraordinary international crimes that, pace Hannah Arendt (1963), explode the limits of law and bust the global trust, indeed, remains fraught and taut. Hence, attention to legally cognizable linkages between the free will of the accused person and the connived malignant context matters greatly. These linkages adopt various monikers, including nexus and modes of liability. Insofar as international criminal trials self-identify as imposing international criminal law—as opposed to show trials that heave theatrics upon a stage—some respect toward due process is required in order to maintain credibility. While international criminal law generally aims to convict and not to acquit (with acquittals often seen as failures), the fact remains that to declare something as law means adhering to the minima of fairness and some principled punctiliousness to ensure that the attribution of responsibility does not unduly compromise the rights of the accused
Foreword: Voting Rights in a Politically Polarized Era
Get PDFAmerican democracy is under profound stress. Increasing polarization and a winner-take-all mentality to politics have led to increased conflict both within the halls of Congress and nationwide. In an era of exceedingly close elections where control of the Presidency, Congress, and state governments can turn on a relative handful of votes, the laws and processes governing democracy have themselves become a battleground
