Notes

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. 

Despite decades of litigation and court case rulings, pursuing the goal of diverse student populations in schools, including through affirmative action policies, remains a controversial subject. In the present day, discrimination on the basis of race or ethnicity by educational institutions is still a divisive issue in the United States. In our nation’s most populous municipality, this contentious subject has been debated as a result of the lack of diversity at New York City’s eight “testing” Specialized High Schools (SHSs). Due to the disproportionately low number of Black and Hispanic/Latino students admitted, the prestigious SHSs have not been spared from allegations of racial and ethnic discrimination occurring in their admissions process. Over the past decade, critics have claimed that the admissions system for the SHSs, renowned for their rigorous, career-based academic curricula and ability to produce successful alumni, is discriminatory. Relatedly, there has been a renewed focus on promoting student body diversity in these elite schools, including a plan announced by Mayor Bill de Blasio in June 2018 to increase the number of Black and Hispanic/Latino students admitted. This Note explores the flaws of the Mayor’s proposal and presents an alternative plan for reforming the SHSs’ admissions system—a timely and controversial topic—that fits within the Supreme Court’s doctrine on affirmative action in educational contexts. 

This Note begins by providing background information on the SHSs and their current admissions process. Then, this Note discusses the schools’ lack of student body diversity and past efforts aimed to address this issue, including de Blasio’s recent plan. Next, this Note proposes a novel admissions process for these eight schools, which was created based on the Supreme Court’s precedent on educational affirmative action and the guidance of several experts in this field of law. Under this proposal, a semi-holistic, multi-factor process involving four measures of academic performance—SHSAT score, GPA, rank in eighth grade graduating class, and rank among eighth graders citywide—would be used to evaluate applicants, as well as an explicit fifth factor of diversity. This plan would allow the City’s Department of Education to admit a critical mass of underrepresented minority students, similar to the approach used by institutions of higher-education. By analyzing the Court’s recent affirmative action jurisprudence in the educational context, this Note argues that despite the legal challenges imposed by the Fourteenth Amendment, this plan would allow the City to preserve these schools’ standards of high scholastic achievement, as well as admit increased numbers of Black and Hispanic/Latino students to these elite public high schools in a constitutionally-permissible way. 

Most of the literature addressing shareholder derivative litigation has emphasized the perils of excessive multi-forum shareholder litigation, proposing various solutions to sidestep the problems encountered in cases like California State Teachers’ Retirement System v. Alvarez (Wal-Mart II). This Note addresses a separate and distinct problem—a long overlooked inquiry into the due process implications of using nonparty issue preclusion to curb what is seen as an overgrowth of shareholder derivative litigation. 

The Delaware Chancery Court’s recent decision in Wal-Mart II illustrates a conceptual puzzle in the application of issue preclusion rules in the context of derivative shareholder suits. In Wal-Mart II, a separate federal suit was dismissed on the grounds that the plaintiffs had failed to satisfy the demand requirement, a crucial step for establishing the plaintiffs’ authority to bring a derivative suit on behalf of the corporation. The Delaware courts gave preclusive effect to the federal court’s ruling in barring a derivative action by different shareholders. But how can such a judgment—finding that a shareholder plaintiff seeking to bring a derivative action lacks authority to bring suit on behalf of the corporation—be given preclusive effect to bar a future suit by other shareholders? A rule that would resolve this inconsistency was proposed by Chancellor Bouchard’s decision for the Chancery Court late in 2017, In re Wal-Mart Stores Delaware Derivative Litigation (Wal- Mart I). While the Delaware Supreme Court declined to adopt the proposal, an analysis of the Delaware Supreme Court’s decision suggests that Chancellor Bouchard’s proposal may have been the right rule at the wrong time. This Note proposes adoption of the rule proposed in Wal-Mart I as Delaware’s preclusion law, arguing that the current treatment of nonparty preclusion in derivative share- holder suits is incompatible with the strong presumption against nonparty preclusion and inconsistent with the treatment of a related mechanism: the class action. In doing so, this Note advocates for an approach to nonparty issue preclusion that would deny preclusive effect to putative derivative suits dismissed prior to satisfaction of the demand requirement. 

There is an ongoing movement to democratize the criminal justice system. Providing more avenues for layperson participation, “democratizers” believe, will result in a more egalitarian system. But how to incorporate the public is an ongoing and complicated question. This Note takes a first step in disentangling important differences within the democratization movement. In doing so, it defines for the first time a sub-group of democratizers, which it terms the “localizers.” Analyzing this distinct strand of democratization serves two valuable functions. First, because democratization and localization reforms have often been lumped together, critics of the movement to democratize the criminal justice system have overlooked the unique problems that localizers’ reforms raise. This Note fills a substantial gap in the extant scholarship by providing tools for scholars to evaluate and critique some of the distinct concerns of localization. Second, and perhaps more importantly, this Note serves as a practical road map for localizers by raising questions that they must consider before advancing their reforms, many of which could, if effectuated correctly, immensely improve the current state of the criminal justice system. 

In 2005, Congress amended the Immigration and Nationality Act to strip jurisdiction over petitions for habeas corpus challenging an order of removal or the decision to execute an order of removal. A first generation of legal challenges argued that this provision was a facial violation of the Suspension Clause of the U.S. Constitution, which guarantees the right to bring writs of habeas corpus, or an adequate and effective alternative to habeas. These challenges were unsuccessful, and for years, the conventional wisdom has been that noncitizens cannot bring habeas petitions to challenge or delay their removal. However, recent district court cases demonstrate the viability of a new generation of as-applied Suspension Clause challenges to the denial of habeas jurisdiction. This Note identifies and describes a category of cases where the denial of habeas jurisdiction is a Suspension Clause violation: noncitizens with orders of removal who are at risk for persecution in their countries of origin because of changed country conditions that arose while they were living in the United States. Recognizing habeas jurisdiction in these circumstances is essential to protect noncitizens’ rights and to check executive power.