Category: Notes

Genetic modification is a process used for a myriad of purposes, including the cultivation of plant species that ultimately find their way into countless food products across the world.1 As the usage of genetically modified organisms (GMOs) has grown, so has the public debate surrounding their presence in food, and, more specifically, their undisclosed presence in food. Until recently, the United States maintained next to no regulation on the labeling of GMO products.2 After many state legislatures began proposing and passing GMO-labeling laws, Congress passed one of its own.3 This Note will discuss the implications of the federal labeling scheme, and posits that although the scheme may disappoint grassroots anti- GMO interests, the scheme will ultimately have the effect of providing consumers with the “right to know” what is in their food, and will reduce the presence of genetically modified (GM) foods in the marketplace. Part I provides background on GMOs and explains the regulatory role of the FDA. Part II discusses GMO-labeling legislation passed by certain states, a law recently passed by Congress, and the legal challenges faced by lawmakers when passing this type of legislation. Part III argues that the federal regulatory scheme is not a death knell for consumer autonomy, and that it will do little to weaken the fight against GMOs.

“If I could just change one law,” lamented Bill Gates, “it would be this.” What law provokes the ire of the Silicon Valley titan and co-chairman of the world’s largest philanthropic organization? Hint: it was at the center of a publicity maelstrom that struck the happiest place on earth—Walt Disney World—as well as one of California’s largest power utilities, Southern California Edison (SCE). In 2015, reporters revealed that Disney and SCE laid off  hundreds of their U.S. technology workers and replaced them with foreign visa workers supplied by outsourcing firms in an effort to cut IT (information technology) labor costs. Rather than denying the allegations, Disney and SCE argued that they had followed the letter of the law. Unfortunately, the law is on their side. At issue was section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (INA), a law that facilitates the country’s most commonly utilized and most contentious, highly-skilled foreign worker program—the H-1B visa.

Virtually all previous scholarship on the H-1B program has been devoted to proposing reforms to its legislative labyrinth. But a lack of data has only fueled heated debates that have shed little light on the dollars-and-cents of the H-1B visa. This Note instead takes the distinct approach of analyzing potential remedies for U.S. tech workers who allege their U.S. employer replaced them in favor of H-1B workers supplied by outsourcing firms.

Part I explains how the H-1B program’s protections—specifically, the labor condition application process (LCA) and its administrative remedies—have failed to hold employers accountable for discriminating against their U.S. tech employees. Part I concludes that the failures of the visa’s statutory regime necessitate a discussion of alternative remedies.

Part II analyzes the viability of claims brought under federal statutes: namely, the civil provisions of the Racketeer and Influenced Corrupt Organization Act (civil RICO), the Immigration Reform and Control Act of 1986 (IRCA), Title VII of the Civil Rights Act of 1964 (Title VII), and section 1981 of the Civil Rights Act of 1866 (§ 1981). Part II concludes that among these alternatives, Title VII and § 1981 offer the most promise for displaced U.S. tech workers.

However, it is still unclear whether these federal anti-discrimination statutes can effectively address H-1B discrimination. Part III argues that tech workers will ultimately achieve the greatest job security through reforming the H-1B statutory scheme. But rather than recommend the content of those reforms, Part III proposes the catalyst—a sustained campaign of litigation, unionization, and education—all with the aim of exposing the corporate exploitation of American and foreign tech workers.

Over the years, various federal, state, and local law enforcement agencies have enjoyed the growth and development of technology in aiding their efforts to combat crime. Until recently, not much information had been available regarding the use, or existence, of cell-site simulators. Cell-site simulators have been around for at least fifteen years, and they operate by mimicking cell phone towers. Known also by their popular brand name, Stingray, cell-site simulators have the capability to extract information such as location and call records by tricking a nearby cell phone to connect to them instead of cell towers.

Perhaps as a result of the petitions of various civil liberty groups and privacy advocates, the Department of Justice and the Department of Homeland Security issued guidance policies on their use of cell-site simulators. These policies generally require a warrant to be obtained if probable cause exists, unless the circumstances are exigent or exceptional. On the state level, however, the extent of available information and issued guidance varies widely. California’s Electronic Communications Privacy Act requires a warrant before state law enforcement can obtain data through cell-site simulators and other means, while the New York Police Department has been sued by the New York Civil Liberties Union after it refused to reveal information on its use of cell-site simulators.

As cell phones continue to play a larger and vital role in the everyday lives of Americans, it is troubling that enforcement agencies possess an unhindered ability to gather personal—and mostly irrelevant—information from anyone within the range of cell-site simulators without a warrant. This Note will focus on how cell-site simulators have been used in New York, and how New York’s state and local law enforcement agencies must take note of United States v. Lambis and appropriately modify or create (as it is unknown whether they even have such policy) their policies to require warrants.

A circuit split has developed over the recognition of a de minimis exception for unlicensed sampling of copyrighted digital recordings. In 2005, the Sixth Circuit opted not to recognize a de minimis exception in this field in Bridgeport Music, Inc. v. Dimension Films. Certain efficiency-based policy concerns do support the Sixth Circuit’s bright-line rulemaking approach in Bridgeport. However, the Court’s choice to ignore congressional intent in reaching its decision has been roundly criticized among commentators. The Ninth Circuit reached a conflicting decision in 2016 in VMG Salsoul v. Ciccone, where the Court did recognize a de minimis exception for unlicensed sampling of copyrighted digital recordings. In its opinion, the Ninth Circuit addressed the Sixth Circuit’s failure to consider congressional intent. Yet, in doing so, the Court adopted a test for de minimis use of copyrighted digital recordings which runs counter to efficiency-based concerns of copyright law.

This Note argues that while the Ninth Circuit’s opinion is persuasive in its legal analysis, the average audience test for de minimis use that follows from its ruling creates significant problems that do not exist under the Sixth Circuit’s bright-line rule prohibiting all unlicensed sampling. In response, this Note examines proposals for improving upon the average audience test.

The United States Constitution and forty-three state constitutions include a Speech or Debate Clause granting legislators a legal privilege for their legislative work. Although there is a well-developed body of federal Speech or Debate Clause law granting an absolute privilege to legislators, case law interpreting many state Speech or Debate Clauses is undeveloped. One context in which state Speech or Debate Clauses are tested is redistricting litigation. State courts provide a desirable forum for challengers seeking to expose partisan gerrymandering in redistricting plans. Because the potential for exposing partisan gerrymandering increases if state legislators’ statements and legislative documents are accessible, many observers have concluded that Speech or Debate Clause protections should be watered down in the redistricting context. However, failing to strongly enforce state Speech or Debate Clause protections would lead to negative effects for representative democracy. Rather than weaken Speech or Debate Clause protections, a better solution is to restrict the free reign of partisan legislators over the redistricting process by using independent commissions.

Part I of this Note traces the history and development of the federal Speech or Debate Clause and legislative privilege with an emphasis on Supreme Court case law. Part II summarizes major trends in state court interpretation of state Speech or Debate Clause cases. Part III examines state Speech or Debate Clause treatment in the context of redistricting litigation and surveys relevant state supreme court cases. Finally, Part IV proposes a framework for approaching state Speech or Debate Clauses in state redistricting litigation and explores the feasibility of independent redistricting commissions as a solution to redistricting problems.

It is time for the remaining states with death transfer taxes to consider repeal. Some state death transfer taxes have rates that give preferential treatment to bequests that are likely on the decline due to changes in household structure. State death transfer taxes, as a result of interstate competition, give incentives to people to move states, underreport death transfers, and use other tactics to avoid a state death transfer tax. State death transfer taxes are failing to be a significant source of state revenue. Additionally, state death transfer taxes cannot be an effective tool to combat wealth inequality. Without any justification and serving no purpose, the state death transfer tax is at its end. The remaining states with a death transfer tax should begin the process of repeal.

Phil Parhamovich was pulled over on I-80 in Wyoming. He had changed lanes improperly, and his seat belt was not fastened. Seven hundred seventy-five dollars would have been a reasonable fine. Instead, Parhamovich nearly lost $91,800. The money represented his life savings; he was on his way to Wisconsin, where he planned to buy a music studio. During the traffic stop, though, under intensive questioning, he lied. When police suggested that the money was indicative of drug crimes and led Parhamovich to believe, incorrectly, that simply carrying so much cash was illegal, he claimed it belonged to a friend. The money was seized under suspicion that it—not Parhamovich—had been involved in a drug crime. Since Parhamovich had denied the money was his, he could not claim it. The fictional friend, of course, also could not claim the money. As a result, the State of Wyoming maintained that the money was abandoned. The State maintained this, in part, because of Parhamovich’s statement that the money was not his. This statement is hearsay, but would be admissible, at least prima facie, as an opposing party statement.

At first glance, the Crawford doctrine might seem to supersede the opposing party statement exclusion. This doctrine prohibits the admission of testimonial hearsay against criminal defendants. However, the Crawford doctrine applies only in criminal cases, and civil asset forfeiture proceedings are not considered criminal.

This Note  argues that the historical sources cited in Crawford and later cases suggest that the concerns regarding testimonial hearsay also apply in certain civil contexts, and that Crawford protections should be extended to citizens, like Phil Parhamovich, facing asset forfeiture. Civil asset forfeiture is a prime candidate: it shares important characteristics of criminal proceedings and imposes comparable penalties. Even if the Sixth Amendment is inapplicable in such proceedings, the logic of Crawford suggests that, as a policy matter, confrontation should be available in civil asset forfeiture proceedings. This could be done through legislation or through amendment of the Federal Rules of Evidence (FREs).

In 2011, a man was involved in a road rage incident on a public highway in New Mexico. Two women called 911 to report the man as a drunk driver who was swerving while driving. The women then drove close behind the man, keeping on their bright lights, until the man, feeling threatened, pulled over on the off-ramp of the highway. The man spoke with the women and asked them why they were following him. There was no physical altercation or violence. The man then left the off-ramp and drove to his house where he lived with his brother.

Around 10:00 p.m., an officer responding to the women’s 911 call arrived at the off-ramp and interviewed the two women. The women gave the officer the man’s license plate number, and the women then left. Two other officers joined the interviewing officer on the off-ramp, and the three decided to investigate, though they decided that there was insufficient probable cause to arrest the man. One of the officers stayed on the off-ramp in case the man returned. The other two officers drove in separate police cars to the address registered with the license plate, and neither officer turned on his vehicle’s police lights.

Arriving at the man’s rural, secluded house, each officer parked his car at a distance not visible from the house and covertly approached the residence. The officers used their flashlights intermittently. The officers saw a light on inside the house and the man and his brother moving around inside. Around 11:00 p.m., noticing that there were people outside using flashlights, the man and his brother yelled out, “Who are you?” and “What do you want?” to which the officers responded, “Hey motherfuckers, we got you surrounded. Come out or we’re coming in.” The man and his brother did not hear the officers identify themselves as police at any point, and they did not see any police vehicles. They believed that they were being attacked, perhaps because of the earlier road rage incident. At that point, the man’s brother yelled, “we have guns,” opened a side door, and fired two shotgun shots into the air to try to scare off the potential attackers.

Meanwhile, the third officer arrived on the scene and covertly approached the house. He heard the “we have guns” statement, followed by the shots, and feared for his and his co-officers’ safety. One of the officers shot at the brother and missed. The third officer then shot at the brother and killed him.

In White v. Pauly, from which the above facts are based, the brother’s estate sued the three officers for Fourth Amendment excessive force violations, and the officers moved for summary judgment asserting the defense of qualified immunity.

A government official is entitled to qualified immunity when the official’s conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” The Supreme Court in White v. Pauly suggested that the third officer’s conduct did not violate clearly established law and remanded the case to the Tenth Circuit. The Tenth Circuit found that the officer who shot the brother was entitled to qualified immunity. The court granted the defendant’s motion for summary judgment against the plaintiff’s constitutional claim, holding that the officer did not violate clearly established law because the court could not identify any case “close enough on point to make the unlawfulness of [the officer’s] action apparent.”

The purpose of qualified immunity is to allow law enforcement officers and government officials room to breathe in performing their duties so that they may make “reasonable but mistaken judgments about open legal questions” without fear of suit. There is a fundamental tension in qualified-immunity cases between the societal need for officers to be able to exercise discretion without fear of suit on the one hand, and, on the other hand, the constitutional and statutory rights of citizens. In the last three decades, however, qualified immunity has expanded incredibly, creating an almost insurmountable hurdle for civil rights plaintiffs.

While there are many historical reasons for the expansion of qualified immunity, this Note examines the current state of the qualified-immunity doctrine, focusing specifically on the analytical procedure used by courts to decide qualified-immunity cases. In 2001, the Supreme Court held that lower courts ruling on qualified-immunity cases were required to decide both prongs of the qualified-immunity inquiry—i.e., courts were required to decide both (1) whether the official’s conduct would amount to a constitutional or statutory violation, and (2) whether the relevant law at the time of the official’s conduct was clearly established. In 2009, in Pearson v. Callahan, the Supreme Court overturned Saucier’s rule of mandatory sequencing after just eight years of its controversial application in qualified-immunity cases. The Pearson Court held, instead, that in deciding qualified-immunity cases courts now need only to decide the clearly-established prong of the qualified-immunity two-part inquiry. Under Pearson, if a court finds that the law was not clearly established at the time of the official’s conduct, the court has discretion whether or not to decide the underlying merits of the plaintiff’s claim.

This Note proposes a new four-part balancing test which courts should use in choosing whether to decide both prongs of the qualified-immunity analysis, as in Saucier, or to decide only the clearly-established prong, as in Pearson. Part I traces the history and development of the Court’s qualified-immunity jurisprudence in order to shed light on the order-of-battle dilemma. Part II explains the empirical effects of Pearson on plaintiffs’ efforts to vindicate their civil rights. Part III focuses on the Supreme Court’s recent employment of Pearson discretion in Ziglar v. Abbasi to highlight four important concerns of qualified-immunity doctrine and to propose a new balancing test for the employment of Pearson discretion. The goal of this Note is to give courts a more nuanced standard for when to employ Pearson discretion, thus allowing vindication of plaintiffs’ rights while respecting the importance of the qualified-immunity defense for government officials.

Beverly Harrison worked for the city of Dallas, Texas, for twenty-eight years before she retired to devote more time to her grandchildren and her church. In 2013, Harrison took a job as a crossing guard for Dallas County Schools to supplement her retirement income. Eight days into her new role, Harrison was terminated. The cause? A nearly forty-year-old assault conviction on her background check, stemming from an altercation when Harrison was just eighteen. Although Harrison’s criminal record had not barred her from a long career in public service or several years as a home health aide, she was dismissed from her new role without discussion.

With an increasing number of employers performing background checks on potential employees, stories like Harrison’s are all too common. When a candidate fills out a job application, often one of the questions she will encounter is, “Have you ever been convicted of a crime?” A “yes” may spell the end of her candidacy. Even when a candidate makes it through the selection process, like Harrison, she may find that a criminal record stands in the way of continued employment.

An inability to obtain employment is one of the collateral consequences that affects an individual’s ability to reintegrate into society following criminal conviction. As in Harrison’s case, the barrier to employment can persist for years or even decades. This is a problem for a large and still-growing segment of the population, as a result of the “tough-on-crime” policies prevalent in the 1980s and 1990s.11 These policies have disproportionately affected racial minorities—particularly black and Hispanic men—exacerbating the challenges they already face in obtaining employment. Legislators have responded to these interlinking problems with laws to remove “the box,” the criminal-record question on job application forms. The fundamental theory of “Ban the Box” (BTB) laws is that if a candidate with a criminal record is considered on his own merits before his criminal history is revealed, the employer will be more willing to hear him explain the circumstances of the offense and provide evidence of rehabilitation.

BTB laws exist within a larger framework of employment laws designed to inhibit the flow of sensitive information that employers receive about potential employees. Like criminal records, some information that employers receive during the candidate selection process may disproportionately disadvantage minorities who already face obstacles to employment. As more of these types of laws are enacted, studies indicate that they may have the opposite of the intended effect. Recent research indicates that BTB laws may worsen employment outcomes for young black and Hispanic men. These studies conclude that, in the absence of concrete information, employers assume that minority candidates are more likely to have criminal records and decline to hire them. These findings have generated much discussion about the value of BTB laws. Reports suggest that they may hamper further BTB legislation. Some legal commentators have responded with calls to repeal BTB laws and pursue alternative means of redressing criminal-record discrimination.

This Note examines the implications of these recent studies in the context of BTB’s goals. Part I traces the development of the BTB movement and surveys current political responses to the call to delay criminal-record inquiries. Part II examines recent research suggesting that BTB laws lead to an increase in race discrimination in hiring. Part III contextualizes this research within a broader theme of negative effects produced by withholding key information during the candidate selection process. This information-withholding problem surfaces on both sides, with employers and candidates alike relying on guesswork to find the right fit. Part IV recommends breaking through the mystification from the candidate’s side. By increasing the information available to the candidate, candidates can make more informed decisions about which jobs to seek, and employers will see the benefit of a stronger candidate pool.

Society is progressing at a rapid pace. As math and science evolve, new technologies begin to utilize these advances and create something novel. These technological changes are revolutionizing not only the science-oriented industries, but also the humanities. One such example falls within the legal arena. More specifically, the exciting advent of smart contracts and their use of technological changes are altering the way law is processed and practiced. However, as is often the case, new technological innovations spur certain growing pains. The implementation of smart contracts is proving no different.

Some view the smart contract as the start of a more ideal society. With the aid of smart contracts and blockchain technology, machines can finally be equipped to fulfill some of the most basic human functions. Not only would business transactions always occur in a timely, seamless, and cost-effective manner, but also more mundane life tasks, such as ordering laundry detergent, could soon be done via smart contract technology. As exciting as these changes may be, smart contracts and the blockchain technology behind them are still immature. Before this legal phenomenon is widely accepted, there needs to be more advancement in not only the code that creates the technology, but also in the law and its regulations. As it stands today, smart contracts are most likely to be accepted only in part, and heavily tailored to meet each contracting party’s needs.

This Note will start by giving an overview of the technology needed to implement smart contracts—blockchain technology—and an explanation of how smart contracts fit within the framework of a blockchain. Next, this Note will discuss some of the major issues smart contracts face. Such issues include: the need to translate natural language into computer code, the traditional concept of contracting in conjunction with the effect of smart contracts on traditional legal notions, and reoccurring enforcement issues. After discussing smart contracts and the current issues barring wide-spread acceptance, this Note will explore the future of smart contracts in the legal arena by analogizing such an electronic contracting change to the now-widely accepted electronic clickwrap agreements. Additionally, this Note will explore recently enacted state statutes that create favorable legal conditions for smart contracts and what impact, if any, these statutes may have upon federal legislation. Furthermore, this Note will analyze the lack of and potential need for regulations regarding smart contracts. In an attempt to make smart contracts acceptable, this Note will suggest future regulations focus on two components of smart contracts. As it will be discussed, regulations should require smart contracts to utilize a permissioned ledger and focus on ensuring the legal requirement of mutuality between the two contracting parties. Lastly, this Note will conclude that although the publicity surrounding smart contracts is exciting and innovative, this form of contracting is likely to remain in a controlled business environment with implementation under select circumstances.