Notes

To justify its rescission of the Deferred Action on Childhood Arrivals (DACA) program, the Department of Homeland Security (DHS) employed a novel rationale: risk of litigation. DHS argued that DACA was potentially unlawful and might be disruptively enjoined by a court and that the Agency could preemptively wind down the program in light of risk that it would be forced to do so in litigation. This Note argues that agencies can and should consider litigation risk in taking regulatory action—especially given the increasing frequency of nationwide injunctions. But it proposes that an agency invoking litigation risk must examine four elements: forgone benefits prior to a predicted disruptive injunction, probability of the injunction, costs of the injunction, and contrary litigation risk. Examination of these elements here suggests that litigation risk alone did not justify the DACA rescission and that regulatory changes will rarely be justified on this sole basis. Courts must carefully scrutinize litigation risk rationales, as excessive deference to this rationale may allow agencies to evade responsibility for their policy decisions by passing blame on to hypothetical future judicial action. 

The False Claims Act is a powerful statutory vehicle for the federal government to deter fraud on its purse, a significant public policy concern. Under the Act, government contractors can be liable for violating material legal requirements of federal programs. In assessing materiality, the courts are asked to evaluate the natural tendency of a violation to influence payment. One question that has been raised in a series of cases in the health product domain is whether government’s payment, despite knowledge of a violation, necessarily means that the violation was immaterial for the purposes of FCA enforcement. The industry is asking the courts to adopt that defense—what this Note terms the “immateriality presumption from agency inaction”—at the pleading stage. To justify the presumption, the defendants argue that the nuanced judgments of the agency vested with the authority and the requisite expertise to regulate—here, the Food and Drug Administration—must prevail over both the private parties who bring actions under the statute’s qui tam provisions, as well as anyone else within the government. Using the Act’s evolution, structure, legislative history, and empirical data, this Note argues against the presumption. First, it shows that the Act’s design strikes a deliberate balance between encouraging private actors and their meaningful oversight by the government. As such, the presumption is not needed to combat unmeritorious private claims. Second, the Note argues that potential overlap between enforcement under the Act and agency oversight is valuable in several ways. The Note’s most significant contribution is in explaining why the immateriality presumption, by tethering fraud enforcement to judgments of the agencies, could be harmful to the agencies them- selves and public interest writ large. In doing that, the Note challenges the claim that the presumption honors the expertise and facilitates the discretion of agencies. 

Congress has delegated power to the Attorney General to execute the nation’s immigration laws, adjudicate individual noncitizens’ cases, and fill interpretive gaps in the statute. The Attorney General has in turn delegated this authority, by regulation, to the Board of Immigration Appeals (BIA). Most BIA decisions are administratively final, and noncitizens appeal unfavorable decisions directly to federal courts of appeals. In a small but growing number of cases, however, the Attorney General will step in to decide a case himself de novo after the BIA has ruled. This power of intervention and decision, sometimes known as the “referral and review” power or “certification” power, has drawn some praise for being an efficient use of the broad power afforded to the executive branch in the immigration context, but more often has sustained criticism for potential abuse. In this Note, I analyze this certification power through the lens of Chevron. In particular, I argue that Chevron deference to the BIA is appropriate because it serves the values of the Chevron doctrine—expertise, procedural regularity, and public accountability— but that Chevron deference to the Attorney General’s certified opinions is inappropriate. Courts have a responsibility under Step Zero not to defer to an interpretation of law unless its issuance adheres sufficiently to fundamental tenets of administrative law. Certified opinions are insufficient on all counts: Deference to the Attorney General’s interpretations of law issued in this manner serves none of the values of the Chevron doctrine. 

In administrative law, the sine qua non of agency independence lies in the enabling statute. If the statute protects the agency’s head from removal except “for cause,” then the agency is considered insulated from presidential control and classified as independent. On the other hand, if the statute is silent on for-cause tenure protection, then the agency is classified as executive. This Note questions that central assumption by relying on the history of the Federal Reserve Board of Governors, arguably one of the most independent agencies in Washington. By tracing the Board’s history from a limited institution in 1913 to the powerful central bank of today, this Note demonstrates that in at least some cases, the driving factors behind operative independence have more to do with the practical realities of governance than the formalities of administrative law. Indeed, even though the Fed’s enabling statute is silent on the issue of for-cause tenure protection, the President has never fired the head of the agency. Even President Trump has declined to go so far. This Note addresses this paradox through a detailed look at the Board’s history and the major inflection points in its rise. Throughout, this Note also highlights the active role that the Board played in its own ascendency, demonstrating the dynamic life of administrative agencies and the powerful role they can play in shaping their own futures. 

In early 2018, President Trump signed the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) into law. It was enacted mainly in response to failed civil suits against Backpage.com, a website accused of allowing, and even helping, users to post ads of sex trafficking victims. Plaintiffs, minors with ads for them posted on the website, were almost universally blocked by Section 230 of the Communications Decency Act (CDA), which granted Backpage immunity for what its users post. FOSTA removes that immunity, as well as amends and adds federal offenses. The law has faced much criticism for going too far, but no one has yet asked if it goes far enough. In other words, would Backpage now lose the suits that could not have been filed before FOSTA? To evaluate the law’s impact, this Note reconsiders the infamous Doe v. Backpage case in light of FOSTA. After analyzing the law through analogous statutes and case law, this Note concludes the law is at most ambiguous as to its legal effect. Thus, not only is the law creating negative side effects for speech online and creating danger for sex workers, it may not even be achieving its legal objective. This Note looks at the widespread reaction to FOSTA, the self-regulation of many websites in response, and explores reasons for that reaction, including the law’s expressive effect. 

In an effort to increase accountability and compliance with the Foreign Corrupt Practices Act (FCPA), in recent years both the Securities and Exchange Commission (SEC) and Department of Justice (DOJ) have held parent companies liable for the anti-bribery violations of their subsidiaries. Scholars and practitioners have argued that the two government agencies are applying an aggressive enforcement policy based on an overly expansive understanding of agency principles. However, because most investigations settle with deferred or non-prosecution agreements, a paucity of FCPA case law prevents corporations, prosecutors, and even judges from clearly understanding what the correct standards are for determining when a parent company is liable for the actions of its subsidiaries—especially under a principal-agent theory of liability. This Note is the first to challenge the narrative that the DOJ and SEC are improperly enforcing the FCPA anti- bribery provisions. It delineates the ways in which a parent can be liable for the misconduct of its subsidiaries before analyzing liability predicated on a principal-agent relationship and the amount of control required to establish such a relationship. It then provides a novel formulation of the correct standard to use in assessing whether an agency relationship exists, based on the Third Restatement of Agency and corporate case law. This Note then assesses DOJ and SEC cases before concluding that while the agencies are correct in holding parent companies liable for the misconduct of their subsidiaries, they are applying agency theories inconsistently, exacerbating the existing confusion as to what the correct standards are for parent companies. 

The Mutual Legal Assistance Agreement (MLAA) between the United States and China, effective since the late 1990s, reflects the development of cooperative law enforcement between the two countries. Study of transnational law enforcement between the United States and China and use of the MLAA has been limited because of the few notable cases and a lack of transparency. This Note will attempt to fill some of the gaps in the academic literature. 

The MLAA, which is unique among mutual legal assistance mechanisms the United States has with other states, arose out of a rocky history of trying to meld two countries’ values and interests. In practice, both prosecution and defense attorneys have noted the MLAA’s limitations. Its provisions lack the accountability of other international agreements, and both the United States and China have taken steps towards unilateral investigation and prosecution of transnational crimes where American and Chinese interests diverge. While both countries have paid lip service to continuing the MLAA, there is no external enforcement, oversight, or incentive to increase cooperation. If the MLAA remains in its current form indefinitely, it is not likely to facilitate a stronger joint law enforcement relationship. Formalizing the MLAA as a treaty could demonstrate a deeper commitment to cooperation, but the current state of relations between the United States and China makes this step politically unfeasible. 

In 2017, the Supreme Court struck down the disparagement clause of § 2(a) of the Lanham Act as contravening the First Amendment. Against the backdrop of the Washington Redskins controversy, Matal v. Tam foreclosed the question of challenging federal registrations of disparaging trademarks. The case, however, opened up the opportunity to explore how disparaged groups could work within the framework of federal trademark law to restrict the right to exclusive use that owners of disparaging trademarks possess. Just as offending groups have a constitutional right to free speech, disparaged groups should be allowed to counter disparaging trademarks with “reappropriation use”—unauthorized uses of disparaging trademarks with the purpose of reclaiming “the thought that we hate”—and still be protected under the First Amendment against infringement claims. This Note proposes a novel, three-step reappropriation use defense for courts to apply, demonstrating how federal trademark law could ensure that groups like The Slants have a platform to reclaim terms and still protect disparaged groups seeking to reappropriate disparaging trademarks. 

Vote dilution doctrine under Section 2 of the Voting Rights Act directs courts to look to evidence of election results to determine if all voters have equal opportunity to elect representatives of their choice. However, not every election in which a minority-preferred candidate prevails is necessarily evidence of equality. Those elections that courts judge to be illusory evidence of equality are said to be characterized by “special circumstances.” When a court recognizes special circumstances surrounding an election, it discounts the evidentiary value of that election, typically to the benefit of vote dilution plaintiffs. To date, no judicial opinion or scholarly work has proposed a comprehensive framework to explain the circumstances courts already recognize or point out the circumstances they ought to recognize. Drawing on the seminal Supreme Court precedent of Thornburg v. Gingles, the Voting Rights Act itself, and over thirty years of lower-court practice, this Note proposes a test. If the circumstances of an election are such that a victory for a minority-preferred candidate belie an ongoing, structural burden on the right to vote, that election is characterized by special circumstances. This Note uses a familiar tripartite framework of the “rights to vote” as an analytical lens for drawing lessons from past decisions and suggesting where the doctrine should go in the future. By recognizing the wider universe of burdens on voting rights, including those typically beyond the reach of judicial remedies, special circumstances doctrine can ensure vote dilution remedies are available where they are needed. 

A new Judgments Convention creates common, binding rules for the recognition and enforcement of foreign judgments among countries that are party to the Convention. This Note considers what such a Convention would have to offer U.S. litigants. It starts by examining a common scholarly view—that U.S. judgments are unreasonably difficult to enforce abroad, in comparison to the relative ease of recognizing and enforcing foreign judgments in the United States. It argues that this view is out of date, due to improvements in three areas that have traditionally prevented the recognition of U.S. judgments—jurisdiction, public policy concerns about punitive damages, and reciprocity. It then considers the Convention in light of the knowledge that U.S. judgments have become easier to enforce abroad and argues that the Convention would still offer important benefits to U.S. litigants, both by making the rules for recognition and enforcement more predictable and transparent, and by “locking in” existing improvements in foreign law. It concludes by arguing that U.S. litigants would benefit if the United States joined the Convention.