In its 2005 decision in Granholm v. Heald, the U.S. Supreme Court declared that state alcoholic beverage laws that discriminate against out-of-state entities are unconstitutional restrictions of interstate trade under the dormant Commerce Clause. Despite this holding, lower courts have split in their analyses and conclusions regarding protectionist alcoholic beverage laws. Specifically, the Eighth Circuit recently upheld Missouri’s residency requirements for alcoholic beverage distributors. Meanwhile, a district court in Michigan has found that a similar law imposing residency requirements on alcoholic beverage retailers was an unconstitutional restriction of interstate commerce. This confusion adversely affects both consumers and smaller producers of alcoholic beverages. Therefore, this Note argues the Supreme Court should, in the appropriate case, clarify that Granholm applies to residency requirements for wholesalers and retailers, thereby subjecting these restrictions to heightened Commerce Clause scrutiny.
Category: Notes
The Praetorians: An Analysis of U.S. Border Patrol Checkpoints Following Martinez-Fuerte
In the late seventies, the United States Supreme Court held in United States v. Martinez-Fuerte that the United States Customs and Border Protection (“CBP”) could constitutionally operate checkpoints within the United States for the purpose of conducting brief, routine questioning in order to verify a person’s citizenship and immigration status. The case was fueled by efforts to curtail the flow of undocumented immigrants into the United States from Mexico. Some of these undocumented immigrants came to the United States because of economic opportunities unavailable in Mexico. But throughout the thirty-eight-year history since the Court’s holding, some argue that CBP routinely ignores, misunderstands, or continuously refuses to acknowledge the fact that the checkpoints were to be solely utilized for immigration inquiries.
In addition to preventing undocumented immigrants from entering the United States, checkpoints are utilized in other law enforcement functions, such as seizing illegal drugs and contraband, apprehending human traffickers, and intercepting unregistered firearms. One can hypothesize the endless law enforcement functions that checkpoints could serve outside the immigration context: perhaps apprehending inmates who break out of prison, catching notorious drug lords like “El Chapo” Guzman, or perhaps even preventing terrorist organizations like Al Qaeda and ISIS from committing gruesome acts against Americans. Thus, the checkpoints can pursue laudable objectives within the United States.
This broader use of the checkpoints, however, “subverts the rationale of Martinez–Fuerte and turns a legitimate administrative search into a massive violation of the Fourth Amendment.” The underlying reasons the checkpoints are scrutinized are twofold. First, the “Martinez–Fuerte [court] approved immigration checkpoints for a very narrow purpose—detecting, and thereby deterring, illegal immigrants.” Second, individuals have become frustrated by the undermining of fundamental constitutional protections that, presumably, apply within the United States. Individuals traveling through the checkpoints consist of US citizens, lawful permanent residents, and foreign travelers. Hispanics primarily take issue with the controversial language from Martinez-Fuerte, where the Court allowed CBP to use “Mexican ancestry” to interrogate, and potentially search, certain individuals. Non-Hispanics likewise take issue with the checkpoints because the procedures have opened the floodgates to harassment and abuse.
This Note proposes standards for checkpoint procedures that would strike an equilibrium between implementing effective law enforcement procedures at interior checkpoints and preserving constitutional values within the United States. This Note distinguishes CBP procedures conducted at the international border, which address compelling governmental interests in regulating foreign commerce and preserving national security, from CBP procedures not conducted at the international border that should be scrutinized much more stringently.
The Declining Allure of Being “American” and the Proliferation of Corporate Tax Inversions: A Critical Analysis of Regulatory Efforts to Curtail the Inversion Trend
In the realm of tax policy, within which there is rarely broad-based consensus, there are few topics as polarizing as corporate tax inversions. An inversion is a paper transaction in which a US corporation reincorporates abroad to realize strategic tax benefits, without actually transplanting its operations overseas. These transactions necessarily reduce the US corporate income tax base, because although an inverted corporation is still taxed the same amount on income earned within the United States, it will no longer have to remit tax payments to the US Department of the Treasury (“Treasury”) for income earned abroad. This reduction in the tax base is especially troubling given that the national debt exceeds $19 trillion, the US credit rating is experiencing unprecedented volatility, and the annual US government deficit ranges from hundreds of billions to more than a trillion dollars per year. Given the current state of the domestic economy, the notion of successful US corporations nominally moving their headquarters abroad to alleviate their tax burden is unpalatable for many. Others do not fault inverters for acting in the interests of their shareholders, and simply see the trend as evidence of the need for substantial corporate tax reform so that the United States can become more globally competitive as a home for businesses. However, those with opposing viewpoints may be closer together than they realize, and meaningful reform may be attainable if productive dialogue can be facilitated.
This Note provides an overview of trends in corporate taxation, the thirty-year history of inversions and governmental attempts to contain them, and an analysis of recent anti-inversion regulations proposed by Treasury in September 2014. Finally, this Note critiques the legislative and regulatory framework that attempts to restrict the practice of inversions, and provides a suggestion for constructively responding to the trend. Given the passion and diversity of viewpoints on the issue, arriving at a national consensus on how to respond to the recent proliferation of inversions presents an extraordinary challenge. There may, however, be enough common ground for lawmakers to craft a solution that removes the incentive for corporations to invert, thereby shoring up the tax base and making the US economy more competitive globally. In light of the substantial—and rapidly growing—national debt, there is no better time to critically reevaluate the policies and priorities of corporate taxation.
Protection for the Vulnerable: How Unaccompanied Minors From El Salvador, Guatemala, and Honduras Can Qualify for Asylum in the United States
In the past few years there has been an increased number of unaccompanied minors coming to the United States from El Salvador, Guatemala, and Honduras. They make a long and often dangerous journey to flee violence in their home countries and seek protection in the United States. One way these children may seek protection is by claiming asylum. The definition of asylum in the United States provides for protection if the applicant has suffered or fears they will suffer persecution due to: race, religion, nationality, membership in a particular social group, or political opinion. Children coming to the United States from El Salvador, Guatemala, and Honduras likely cannot qualify for asylum unless they have suffered persecution based on membership in a particular social group.
Although the Board of Immigration Appeals and the courts have tried to define membership in a particular social group, it is vague and ambiguous. The Board of Immigration currently requires that the group under which the applicant is claiming to be a member share a common immutable characteristic, is particular and socially distinct.
This note examines the Board of Immigration Appeals definition of particular social group. It discusses the situation of children fleeing from El Salvador, Guatemala, and Honduras and proposes a particular social group under which the children may qualify for asylum. It analyzes the proposed group and explains why it would be likely to succeed. The note further considers alternative options for protecting the unaccompanied minors who have fled by looking at international conventions that have been adopted in other parts of the world, such as Africa and Latin America.
Life is Better in the Land Down Under: Australian Treatment of GM Contamination and Why It Should Be Followed in the United States
Over the past two decades, the United States has seen the introduction and widespread adoption of genetically modified (“GM”) crops, followed by the rise in popularity of organic products. These two industries, while diametrically different, together form the base of the hugely important agriculture sector in the United States. As GM and organic farmers attempt to exist side by side, the potential for inadvertent contamination looms large. GM materials can travel large distances by wind, animal, or even carried by rented farm equipment. Once a strain of seed is approved for widespread use, the regulations that govern GM use do not restrict the growth of GM crops, even if grown beside organic farms. This has the potential to place organic farmers—who must comply with strict federal regulations on products labeled ‘organic’—in a bind.
Although there have not been any major rulings by U.S. courts in cases where facts allege GM drift contaminated organic crops, the threat remains. However, with the continued growth of both sectors, the threat remains. With this in mind, some scholars propose imposing strict liability on those farmers from whose fields the GM material drifts, similar to courts’ treatment of pesticide overspray. Such analogies mischaracterize GM materials as inherently dangerous. Others propose imposing new federal regulations that establish liability for GM drift. However, regulations of this sort have the potential to unnecessarily target GM farmers and restrict their ability to grow affordable foodstuffs for the American public. Because GM crops represent a majority of several staple crops, such regulations could lead to widespread harm.
This Note instead proposes that the U.S. follow the lead of the Supreme Court of Western Australia via the recently decided case Marsh v. Baxter. There, the court applied common law theories to a dispute between GM and organic farmers following the drift of GM material between farms. The Marsh holding displays the potential for injured farmers to seek recovery through theories of common law tort. In particular, this Note suggests that private nuisance actions could institute a balancing test to effectively consider the interests of both parties. Such a test would not only allow for equitable outcomes for the injured farmer, but also ensure that the United States has a continued source of reasonably-priced food for its citizens.
The Global Colony: A Comparative Analysis of National Security-Based Foreign Investment Regimes in the Western Hemisphere
In 1975, the United States took steps to prevent its national security from being undermined by foreign investment through the creation of the Committee for Foreign Investment in the United States (CFIUS). CFIUS is an interagency committee meant to review and approve mergers and acquisitions of US companies that have a relation, however tangential, to national security. CFIUS has evolved since its inception from a relatively benign review mechanism to a sophisticated shield with the power to block almost any questionable foreign transactions involving US companies.
This Note compares CFIUS to the investment regulations of Mexico, Chile, and Brazil, specifically those regulations focused on guaranteeing the national security of these countries. Each country’s regulatory regime is compared to CFIUS to determine their relative strength and potential to be undermined by a foreign power. This comparison is buttressed by background on the Latin American economy to illustrate the importance of natural resources and their effect on the definition of “national security” within the region. This Note continues by drawing a relation between the inadequacy of these investment regimes and the prevalence of nationalization by various regional governments. It suggests that nationalization might serve to compensate for these investment regimes by enabling governments to reassert control over critical industries and resources.
Finally, this Note argues that the turmoil created by the region’s ineffective investment regimes creates a security risk for the United States and the Western Hemisphere as a whole. To reduce this risk, the United States should work with its hemispheric neighbors to ensure they have robust legal regimes to protect themselves and ensure they maintain economic independence.
The Evolution of Federal Courts’ Healthcare Antitrust Analysis: Does the PPACA Spell the End to Hospital Mergers?
Traditionally, hospital mergers were seen as a benefit to consumers. That is no longer the case. After years of nonprofit hospitals engaging in price inflation and misreporting charity care, new hospital mergers will be more heavily scrutinized. Specifically, the United States government has implemented policies that are intended to shrink the relevant market, separate hospital services into individual lines, and require more than a good faith standard for evidence of proposed efficiencies. These policies were created as a response to the findings in antitrust court cases that hospital executives were increasing prices as a monopolist. These cases have worked to discredit previous studies supporting the notion that nonprofit hospitals exhibit a lower association between market share and price. The resurgence of hospital merger cases in the federal courts combined with the PPACA provisions—namely, ACO implementation and redefined charity-care standards—will subject mergers to heightened scrutiny. Some damage has already been done in the hospital merger setting, but it is certain that, going forward, nonprofit hospitals no longer enjoy the same deference as before.
The Inbetweeners: Standardizing Juvenileness and Recognizing Emerging Adulthood for Sentencing Purposes After Miller
In June 2012, the United States Supreme Court decided Miller v. Alabama, marking significant progress in the Court’s Eighth Amendment jurisprudence regarding juvenile offenders. In Miller, the Court held mandatory life without parole for juvenile offenders to be unconstitutional. Following its reasoning set forth in previous cases, the Court found that “children are different” in a fundamental way: offenders under the age of eighteen are incapable of being criminally liable to the same extent as their adult counterparts. Miller was an enormous win for the juvenile justice system, because it meant that the Court concluded that, as a constitutional rule, juveniles’ cognitive development has not progressed enough to warrant adult sentencing (save for extreme circumstances, which the Court did not outline). Although that conclusion has major implications for juvenile justice, some questions remain.
After Miller, there are two related, unsettled issues that contribute to the daunting uncertainty facing juvenile offenders. First, there is no uniform definition or cutoff of the “juvenile” class of defendants in the United States, which means due process may differ from state to state, depriving some children of the full constitutional protection intended by the Court. The Court’s decision in Miller may necessitate a constitutional definition of “juvenile” as a person under eighteen years old. Second, if the neurological research and social science on which Miller was based conclude that cognitive abilities are not fully developed until around age twenty-five, it may be arbitrary and inconsistent to choose age eighteen as the age after which a defendant may be subject to mandatory life without parole, or even the death penalty. The distinction of adulthood beginning at age eighteen is arguably based on no more than traditional and outdated norms. The Court’s Eighth Amendment jurisprudence and cognitive science articulated in Miller and its forebears may necessitate legal recognition of a stage of life between adolescence and adulthood often called “emerging adulthood,” during which defendants should be entitled to further special consideration under the Eighth Amendment.
This Note examines the Supreme Court’s Eighth Amendment jurisprudence in relation to juvenile sentencing, and the social science, psychology, and neuroscience research underpinning the Court’s decisions in these cases. In short, this Note offers two proposals. First, there should be a uniform definition of “juvenile” that ends at eighteen years of age, and this should be the cutoff age for juvenile court jurisdiction nationwide. Second, courts should recognize an age group between the ages of eighteen and twenty-five, called “emerging adulthood,” during which judges would potentially consider a defendant’s youthful characteristics, capacity for change, and culpability in deciding whether to give the defendant a sentence as harsh as his or her fully formed adult counterparts.
The Seven Dirty Words You Should Be Allowed to Say on Television
For any American who has ever watched television on one of the traditional broadcast networks, seven particular dirty words have always been conspicuously absent. Confusingly, on cable, these seven words may all occur in quick succession on one show. When one of them does make it to air on a broadcast network, it often becomes the source of a fine from the Federal Communications Commission and years of litigation. A recent case resulted in a huge victory for broadcasters. In the 2012 holding of FCC v. Fox Television Stations, Inc., the Supreme Court required the FCC to eliminate its existing policy on how it regulated indecent content on the broadcast networks. The Court found the policy unconstitutionally vague because it did not put broadcasters on notice about what types of content were prohibited on television. The FCC has yet to issue a new regulation; this holding leaves the FCC with a gaping hole, but also an enormous opportunity.
An important reason the FCC has yet to act may be that the existing regulatory framework for indecent content on television has grown obsolete. The federal government’s ability to regulate the broadcast airwaves is based on the idea that the airwaves are a scarce resource. However, after the advent of cable and the digital transition, many see opportunities to access the airwaves as plentiful, not scarce. Part of the Court’s holding in Fox was that the government does still have the power to regulate the broadcast networks. However, it would be wise for the FCC to think about television in a more modern context when making its new regulations.
The American government need only look across the pond for guidance on how to structure a modern regulatory scheme for indecent content on television. In the 2003 Communications Act, the United Kingdom empowered its Office of Communications, the U.K. equivalent of the FCC, to create a strong and coherent Broadcasting Code to take U.K. television regulation into the modern era. The code it promulgated is a happy medium that can satisfy all interested parties, which would be an excellent model to emulate in the United States. The U.K. Broadcasting Code regulates all networks equally and has flexible content regulations, but sets important limits about content during the hours when children are most likely to be watching.
Creating a regulatory model like this for the United States would be a vast improvement over its current model with its different rules for different types of broadcasting. A new U.S. model that mimics the U.K. Broadcasting Code would be much clearer than the old FCC policy and would much more likely survive a potential vagueness analysis by the Court in the future. The suggestions outlined in this Note advocate a cohesive scheme that will end the bifurcated regulatory system that has persisted despite a changing industry and culture.
The Black Box Solution to Autonomous Liability
Autonomous vehicles, or self-driving cars, have the potential to revolutionize modern transportation through increased productivity and safety. Today, industry leaders in both automotive manufacturing and technology development are engaged in the design and production of these vehicles. Representatives from these companies have already successfully lobbied a number of state legislatures to permit the testing and use of autonomous vehicles.
While the prospect of a mass market in autonomous vehicles is exciting for both consumers and manufacturers, the use of autonomous vehicles implicates novel legal issues. For example, when a car drives itself, who is responsible when it crashes? Should the manufacturer who designed the car be held liable? Or the driver who directs the vehicle? To solve this problem, I argue that all autonomous vehicles should be required to carry an Event Data Recorder (“EDR”) to monitor and record data about vehicle functioning. This technology is analogous to the Flight Data Recorder (“FDR”), colloquially known as a “black box,” found on airplanes. An FDR records and transmits information about an airplane’s functionality, and this information helps investigators determine whether the cause of a crash was human error or mechanical failure. The same would apply to autonomous vehicles. Given the possibility of manufacturers being held liable for vehicle crashes, the use of EDR data would limit financial liability in tort claims and increase manufacturer willingness to develop autonomous technology.
However, as with the collection of any personal data, there are privacy issues that must also be examined. EDRs contain personal data, such as the geographic location of the vehicle and the owner’s driving patterns. The collection and use of this data may be harmful to an individual’s privacy rights. As a result, I argue that vehicle owners should be considered the sole owner of EDR data and no data may be shared for any commercial purpose without affirmative consent of the owner.
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