Notes

Administering healthcare in prisons and jails has been an exceptionally difficult task for state, county, and city governments for decades. Facing the unprecedented rise in the correctional population, governments began contracting with private correctional healthcare companies in the 1980s for cheaper, higher-quality care. However, in practice, private correctional healthcare companies have been disastrous for inmate-patients and their families. This Note examines the structural deficiencies in the privatization of correctional healthcare, and argues that the market factors required for successful privatization, including choice, competition, and responsiveness to consumer preferences, are absent in the correctional healthcare sector. In addition, the lack of meaningful oversight, protective contractual provisions, and legal hurdles facing prospective litigants compound these structural problems and leave the companies unaccountable for their misconduct. This Note proposes switching from these private companies to publicly-run options, such as government health agencies, partnerships with universities, and private non-profit organizations. These public models increase democratic accountability and transparency, lower costs, and more appropriately treat correctional health as the public health issue that it is. While administering healthcare services in correctional settings will always be challenging, switching to public models is the first step in improving care and treating inmate-patients with dignity.

Autonomous weapons systems (AWS) have been described as the “third revolution of warfare,” after gunpowder and nuclear weapons. Currently in development, these weapons systems are powered by advanced algorithms that can make decisions to target and use lethal force against enemy soldiers on their own, without human intervention. Countries around the world are eager to be the first to develop and capture the advantages of AWS, while scholars and activists have sounded the alarm on the legal and ethical issues of delegating the decision to kill an enemy soldier to algorithms. Described as the dehumanization of war, the unique nature of AWS highlights an unresolved international law issue of whether and how international humanitarian law and human rights law can operate concurrently in armed conflict. Specifically, AWS raise the question of whether international humanitarian law, specialized law that governs the armed conflicts in which AWS would be deployed, would be the sole body of international law that regulates AWS, or whether human rights law would also govern the use of AWS in armed conflict. This Note argues that: 1) Human rights law applies to the use of AWS and prevails over international humanitarian law where the two bodies of law conflict, and 2) AWS’ use of lethal force violates human rights law’s prohibition against arbitrary deprivations of life.

The military is one of the most powerful institutions to define membership in the American polity. Throughout this country’s history, noncitizens, immigrants, and outsiders have been called to serve in exchange for the privileges of citizenship and recognition. At its height, the idea that service constitutes citizenship—which this Note calls “constitutive service”—successfully transformed a group of “perpetual foreigners” to “citizens.” Until 1952, individuals of Asian descent were categorically excluded from the polity, a barrier that ultimately crumbled after Asian Americans rendered a long history of military service, beginning with the War of 1812, to the Civil War, then to the two World Wars. Yet, precisely because military service is so transformative, the United States over the past decade has imposed both formal and informal restrictions barring certain groups of people from serving, among them individuals who are gay, transgender, undocumented—and to a lesser extent—women and Muslim Americans. These restrictions are reminders that the United States continue to debate who is fit to be an “American,” and therefore, an “American soldier.”

Beginning in the 1970s, politicians and the public began to view individuals who committed violent offenses as irredeemable dangers to the public whose incarceration was necessary to ensure the public’s safety. As a result, state legislators enacted sentencing statutes that increased the punishment of violent crimes, which include offenses such as murder, rape, and robbery. This Note explores what led lawmakers to adopt sentencing statutes that single out individuals convicted of committing violent offenses for enhanced punishment and then shows that those lawmakers operated on the basis of inaccurate or incomplete conceptions of violent crime. Drawing on recent sociological and other empirical work, it shows that there is no neat dividing line between people who commit violent and non-violent offenses and argues that lawmakers made their decisions on the basis of false or incomplete information. In response, this Note advocates for the elimination of sentencing statutes that impose enhanced sentences on individuals convicted of violent crimes. Lawmakers should instead determine the appropriate criminal punishment for those convicted of violent crimes through the holistic, evidence-based approach that has become popular in the last decade with respect to non-violent crimes.

Rule 23 of the Federal Rules of Civil Procedure governs the standards for certifying a class action, a type of litigation whose aggregate form is intended to make litigation accessible to large groups of injured plaintiffs and incentivize the vindication of claims that may otherwise go unpursued in the face of high litigation costs. However, while due process requires that a certifying court find that each element of Rule 23 is satisfied through “evidentiary proof,” the federal courts have failed to adopt any kind of consistent evidentiary standard to apply to the record proffered at class certification. This has resulted in the use of class certification as a bargaining chip between plaintiffs’ lawyers and wealthy defendants, rather than as a procedural mechanism that serves to test the propriety of a particular action for class treatment. Ultimately, this dynamic harms the very injured plaintiffs that this mechanism seeks to protect. This Note examines the need for a uniform evidentiary standard and surveys the countervailing interests of absent class members, defendants, class counsel, and the court at this critical juncture in a class action proceeding. It then proposes a novel categorization of the Federal Rules of Evidence as either form- or substance-based, and argues that an evidentiary standard that properly balances the interests of all parties involved in the class action requires a certifying court to apply substance-based evidence rules in determining whether a proposed class satisfies Rule 23. Such a rule, this Note will argue, is essential to ensuring that absent class members are protected, rather than exploited, by the class action mechanism.

Proof of citizenship is of paramount importance. In the United States, the need for citizenship documentation is particularly acute in light of heightened immigration enforcement. For U.S. citizens born abroad, proof of citizenship can be obtained by submitting a Form N-600 to United States Citizenship and Immigration Services, which in turn provides a Certificate of Citizenship. Although these individuals are entitled to citizenship and all of its benefits by statute, they are required to pay $1170 in order to obtain this Certificate. This Note seeks to analyze the constitutionality of this exorbitant fee. Determination of citizenship confers with it important rights and several privileges, such as access to employment, the ability to vote and seek public office, and many other government benefits. Perhaps more importantly, determination of citizenship also confers protection—protection from detention, from removal proceedings, and from deportation. This Note analyzes the viability of a constitutional challenge to the $1170 filing fee through a procedural due process claim, the importance of which is underscored by the life-altering consequences of citizenship as well as the benefits and protections it affords. Simply put, access to the benefits of citizenship should not turn on a citizen’s ability to pay a prohibitively expensive fee; the Constitution demands greater protections.

New York City Housing Authority (NYCHA) deprives hundreds of residents of their housing every year without affording them due process. Based on the allegedly undesirable behavior of one household member, NYCHA can begin a termination of tenancy action against an entire family. Using the threat of termination as leverage, NYCHA coerces the tenant of record into permanently excluding the “undesirable” occupant, barring them from living with or visiting their family. The excluded family member is given no notice of the termination action and no opportunity to contest their permanent exclusion.

This Note contends that authorized occupants in NYCHA housing have due process rights which mandate notice and the opportunity to be heard before they lose their home. NYCHA does not currently recognize such rights. But, as this Note will show, authorized occupants have a property interest in public housing. NYCHA’s practice of permanent exclusion deprives them of that interest. This Note suggests alternatives for NYCHA to consider instead of relying on permanent exclusion as a means of crime reduction. Ultimately, the goal of this Note is to push NYCHA to live up to its mission: to provide decent and affordable housing to low-income New Yorkers.

Antitrust and patent law exist in permanent tension, with patentholders permitted to engage in conduct that would otherwise be plainly anticompetitive. Given the over five hundred billion dollars of annual R&D investment in the United States, and given the importance of R&D for corporations’ long-term economic profits, the broad deference given in antitrust law to patentee conduct is shocking. Continuing such deference misunderstands the purpose of antitrust law and undermines the purpose of patent law. This Note focuses on one area where this tension should be resolved in favor of increased antitrust enforcement: strategic patent licensing arrangements whereby a patentee transfers a share of its monopoly profits in order to control its competitor’s R&D. Such strategic arrangements can be used in 1) a duopoly where large competitors agree to divide an existing market; and 2) a platform technology where the patent holder encourages inventions that follow on, rather than compete with, an existing patent. This Note argues that anticompetitive strategic patent licensing is currently addressable under existing antitrust doctrine. By defining a market for research and development, regulators can successfully litigate against strategic licensing without needing to extend existing antitrust doctrine. Defining a market for research and development, moreover, connects the academic push for dynamic antitrust analysis into the existing static antitrust framework, allowing courts to gain experience with dynamic analysis in a more comfortable static setting. Lastly, while this Note is broadly theoretical, this is not by choice, but a byproduct of the broad-scale secrecy surrounding patent license agreements. Accordingly, this Note calls for the FTC to use existing statutory authority to begin investigating the real-world anticompetitive uses of strategic patent licensing.

In 2018, the Ninth Circuit ruled in Martin v. City of Boise that the city’s ordinance criminalizing individuals for sleeping or camping outdoors in public space—an increasingly popular method for cities to regulate the homeless—is unconstitutional under the Eighth Amendment’s Cruel and Unusual Punishments Clause. Martin was not the first case in which a court struck down an anti-homeless ordinance under the Eighth Amendment. However, it was the first to deem it unconstitutional for a city to punish a homeless person for sleeping outside when shelters are not “practically available,” even if they technically have available beds. The court in Martin said the shelters at issue were not practically available because they were religiously coercive. This Note argues, however, that courts reviewing criminalization measures should consider whether shelters are practically available to homeless individuals for reasons beyond religious coercion. Many functional barriers to shelter deprive homeless individuals of a meaningful choice, and the Eighth Amendment prevents governments from punishing individuals for matters beyond their control. Courts should make individualized inquiries when considering the constitutionality of criminalization measures to assess whether individuals experiencing homelessness truly have a meaningful “choice” in sleeping outside. However, the constitutional infirmities behind criminalization measures, the highly factual inquiries required of courts to determine their constitutionality, and their exacerbation of homelessness underscore the need for cities to stop criminalizing homelessness.

Three-dimensional (3D) scanning technology presents cultural organizations with new opportunities to share their collections with a wider audience online, and conserve and archive art objects and antiquities for safekeeping. However, this technology can also present legal challenges when institutions like museums assert ownership, in particular employing copyright notices, over digital copies of public domain art and antiquities in their collections. The public domain comprises the collection of shared works that are free from legal barriers imposed by copyright law. When institutions attach copyright notices to public domain works, the legal language, even if unenforceable in court, chills the public’s use of these scans for far-ranging educational, artistic, and commercial purposes. This Note examines the current uses of 3D technology by cultural institutions and analyzes the current doctrine guiding copyright of digital models. It then discusses some of the reasons why, despite the best reading of the caselaw, cultural institutions continue to assert ownership over and restrict access to 3D models of public domain art. This Note proposes an American analogue to Article 14 of the European Union’s Directive on Copyright in the Digital Single Market. The proposed amendment to the Copyright Act would provide needed clarity to cultural institutions and the public, affirming that public domain works cannot receive copyright protection when reproduced in a digital format. A clear statement rule would reduce the chilling effect by discouraging copyright notices and restrictive terms of use on digital copies of public domain art and antiquities, in turn encouraging more institutions to provide open access to their digital collections.